71 S.E. 479 (Ga. 1911), Hammond v. Clark

Citation:71 S.E. 479, 136 Ga. 313
Opinion Judge:LUMPKIN, J. (after stating the facts as above).
Party Name:HAMMOND v. CLARK.
Attorney:Wm. H. Barrett, E. H. Callaway, Jos. B. & Bryan Cumming, C. H. & R. S. Cohen, Boykin Wright, Archibald Blackshear, Jno. M. Slaton, L. Z. Rosser, and Alex C. King, for plaintiff in error. Salem Dutcher and W. K. Miller, for defendant in error.
Case Date:May 11, 1911
Court:Supreme Court of Georgia
 
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Page 479

71 S.E. 479 (Ga. 1911)

136 Ga. 313

HAMMOND

v.

CLARK.

Supreme Court of Georgia

May 11, 1911

Syllabus by the Court.

In the absence of some other exclusive method of determination provided by the Constitution, whether an amendment has been properly proposed and adopted according to the requirements of the existing Constitution, and has become a part of the fundamental law of the state, is generally a judicial question.

Where an act of the Legislature proposing an amendment to the Constitution of the state directed the Governor to publish such proposition and submit it for ratification at the next general election, the fact that after the election he published a proclamation declaring that the amendment had been ratified was not conclusive on the courts.

The requirement of article 13, § 1, par. 1, of the Constitution, that the proposed amendment shall be published in one or more newspapers in each congressional district for two months previous to the time of holding the next general election, was complied with, as to the publication in a particular newspaper, where the amendment was published once a week for nine weeks; the first publication being on August 5th, and the last being on September 30th, preceding the general election which was held on October 5th.

Where an amendment to the Constitution has been proposed by the Legislature in the manner provided by that instrument, and it has been submitted to the voters for ratification at the prescribed time and in substantially the prescribed manner, and has been ratified by them, such amendment will not be declared void, even if it should appear that an executive or ministerial officer did not comply strictly with the law as to the extent of publication in a particular newspaper.

Where the Legislature by an act proposed an amendment to the Constitution, and directed the Governor to make the required publication and to submit the question of ratification to the voters at the next general election, and set forth the form of ballot to be used in voting for the amendment or against it, the publication by the Governor of a proclamation, setting forth the entire act and declaring that the proposed amendment was submitted for ratification or rejection to the qualified voters of the state at the next general election, to be held on a named date, was a sufficient compliance with the Constitution and the act as to the form of publication and submission.

The Constitution does not require that the journals of the two houses of the Legislature must be published and distributed before a proposed amendment can be submitted to the voters for ratification.

Where an act of the Legislature and certain amending acts were declared unconstitutional by this court, and thereupon the Legislature proposed an amendment to the Constitution, curing the defect which had existed in the legislative acts, and also ratifying them as of the dates of their passage, and such amendment was ratified by the qualified voters of the state, it will not be declared void on the ground that it did not set out in substance or in terms the legislative acts sought to be validated, but only described them by copying their captions and referring to the year in which they were passed, or because such acts were not copied in extenso on the journals of the Senate and House of Representatives as part of such proposed constitutional amendment.

Where a constitutional amendment was submitted to the qualified voters of the state for ratification or rejection, the fact that in one county the printed ballots contained only a form of vote for ratification, and no form for voting against it, will not alone cause the amendment, after ratification, to be declared void.

(a) This is especially true where it was not made to appear that any official was concerned in the preparation of such printed form of ballot, or that this had any substantial effect upon the general result of the election.

The Legislature sought to increase the salaries of judges of the superior courts in certain circuits containing the largest cities in the state, and to have the difference between what was paid to judges from the state treasury and the amount so fixed paid from the treasuries of the respective counties in which such cities were located. The acts making such provision were declared by this court to be in violation of the Constitution. An amendment to the Constitution was proposed by the Legislature, and ratified by the people, which changed the Constitution as to the salaries of such judges for the future, and also ratified the acts of the Legislature as of their respective dates. Held, that such amendment will not be declared void on the ground that, in effect, it constituted two amendments, and its submission as one was violative of article 13, § 1, par. 1, of the Constitution, which provides that, "when more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately."

If an amendment to the Constitution has been proposed by the Legislature, duly submitted to the voters of the state for ratification or rejection, and by them has been ratified, so that the amendment has become an integral part of the Constitution, it cannot be declared void on the ground that in some particular it does not accord with some other provision of the same instrument.

(a) The different provisions of the Constitution should be harmonized, if practicable. If an amendment duly adopted necessarily conflicts with some previous provision, the amendment, being the last expression of the sovereign will of the people, will prevail as an implied modification pro tanto of the former provision.

An amendment to the Constitution of the character indicated in the ninth headnote will not, at the instance of a county affected by it, or of the treasurer of such county, be declared void as being in conflict with the provision of the fourteenth amendment of the Constitution of the United States, that no state shall deprive any person of property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.

Where the Legislature undertook to make an increase in the salaries of judges in certain circuits, and to have the increase paid by the counties therein containing cities of not less than a certain population, and such acts were declared by this court to be invalid, because violative of a provision of the Constitution of the state, an amendment to the Constitution thereafter duly made, which changed the constitutional provision on that subject so as to fix the rule in regard to such salaries for the future, and which ratified the legislative acts as of their respective dates, cannot be declared void at the instance of one of the counties concerned, or its treasurer, on the ground that it sought to overrule the former decision, invaded the province of the judiciary, and deprived the county of its property without due process of law.

Where, under the acts of the Legislature authorizing payment of a part of the salary of the judge of the superior court in certain counties, a judge was paid by warrants drawn by the county commissioner of one of such counties directing the county treasurer to pay to the order of the judge the amount thereof, "subject to any claim of the county," and such warrants were indorsed in collecting them, this did not amount to a contract on the part of the judge to pay back to the county such salary as was paid to him, in case the act of the Legislature under which it was paid should at some future time be declared unconstitutional by the courts.

An amendment to the Constitution of the state, which ratified the acts of the Legislature under which such payments were made, was not violative of the provision of the Constitution of the United States which prohibits the passage of laws impairing the obligation of a contract.

Such an amendment to the state Constitution as that indicated in the preceding headnotes was not violative of the clause of the Constitution of the United States which guarantees to every state a republican form of government.

In Clark v. Hammond, 134 Ga. 792, 68 S.E. 600, this court held that the effort by legislative enactments to supplement the salaries of judges of the superior courts in certain circuits, by requiring the payment of the increase over that payable from the state treasury to be paid by certain counties in the circuit containing cities having not less than a certain population, was in violation of the Constitution as it then stood. This provision for payment was an essential part of the legislative scheme expressed in the acts under consideration. It could not be stricken from them, and leave the acts as fixing an increased salary for the judges described, payable from the state treasury, and no such construction was given to those acts by this court.

(Additional Syllabus by Editorial Staff.)

A "county" is one of the civil divisions of a state for judicial and political purposes, created by the sovereign power of the state of its own will, without the particular solicitation, assent, or concurrent action of the people who inhabit it; a local organization, which, for the purpose of civil administration, is invested with certain functions of corporate existence.

A "public corporation" is one having for its object the administration of a portion of the powers of government, delegated to it for that purpose. Such are municipal corporations.

Error from Superior Court, Richmond County; D. W. Meadow, Judge.

Mandamus by H. C. Hammond against W. A. Clark. From a judgment refusing the writ, applicant brings error. Reversed.

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