Abbott v. Commissioners of Roads and Revenues of Fulton County

• Decision Date: 24 June 1925
• Docket Number: 4645.
• Citation: 129 S.E. 38,160 Ga. 657
• Parties: ABBOTT, TAX RECEIVER, v. COMMISSIONERS OF ROADS AND REVENUES OF FULTON COUNTY.
• Court: Georgia Supreme Court

129 S.E. 38

160 Ga. 657

ABBOTT, TAX RECEIVER, v. COMMISSIONERS OF ROADS AND REVENUES OF FULTON COUNTY.

No. 4645.

Supreme Court of Georgia

June 24, 1925

Rehearing Denied July 18, 1925.

Syllabus by the Court.

The Act approved August 13, 1924 (Acts 1924, p. 87), which is an act to change from the fee to the salary system in certain counties, etc., is a general and not a special law, and therefore is not in violation of article 1, § 4, paragraph 1 of the Constitution of the state of Georgia, which provides that "laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law."

Nor is the act in question unconstitutional on the ground that in certain instances the ordinary of the county will be called upon to fix his own salary. There is no constitutional inhibition that would prevent this, if the Legislature by an act duly passed should authorize it. The Constitution has given to the Legislature the state's power to legislate and that body may make all laws which it deems proper, unless in conflict with the Constitution itself, or with the Constitution of the United States, or laws enacted by Congress in pursuance thereof.

The act under consideration is not void on the ground that it delegates legislative power in contravention of article 3, § 1, paragraph 1, of the state Constitution.

Nor is the act unconstitutional on the ground that it violates the provision of article 7, § 6, paragraph 2, of the Constitution, which limits the taxing power of counties.

Nor is it unconstitutional on the ground that it is violative of the clause of the Constitution of Georgia providing uniformity of taxation, as embodied in Civil Code 1910, § 6553 (article 7 § 2, par. 1).

The act in question does not violate the provision of the Constitution in regard to uniformity of county offices, nor the equal protection and due process clauses of the Constitution.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by W. H. Abbott, Tax Receiver of Fulton County, etc., against the Commissioners of Roads and Revenues of Fulton County. Judgment for defendants, and plaintiff brings error. Affirmed.

Russell C.J., dissenting in part.

Gillon & Tomlinson, of Atlanta, for plaintiff in error.

R. H. Pharr and Chas. B. Shelton, both of Atlanta, for defendants in error.

BECK P.J.

W. H. Abbott, as tax receiver of Fulton county and as a taxpayer of that county, filed his equitable petition against Edwin F. Johnson and others, commissioners of roads and revenues, and prayed for an injunction against the defendants to prevent their carrying into effect or putting in force in any respect an act of the General Assembly of this state approved August 13, 1924 (Ga. Laws 1924, p. 87), "to change from the fee to the salary system * * * in Georgia," etc. The defendants, being called upon to show cause, filed their answer, and the case came on for a hearing. After the hearing at chambers, the court passed an order denying the interlocutory injunction, and the petitioner excepted.

1. The application for injunction in this case is based upon the contention that the act of the Legislature referred to above is unconstitutional, null, and void. The constitutionality of the act is challenged upon several grounds. The first of these grounds, and the one which is argued most at length and most elaborately by counsel for plaintiff in error, rests upon the contention that the act is violative of article 1, § 4, paragraph 1, of the Constitution of the state of Georgia (Civil Code, § 6391), which provides that:

"Laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law."

This contention renders it necessary to decide whether the law under consideration is one of a general nature, or whether it is a special law. If it is a special law, then it is null and void, because there is already a general law which makes provision for the compensation of the officers specified in this act. In the first section of the act it is provided that it shall apply to all counties in the state of Georgia having by the federal census of 1920, or which may have by any future census, a population of 200,000 inhabitants or more; that in all counties falling within that description the fee system for compensating the officers named in the act shall be abolished, and the officers thereafter shall be paid salaries instead of fees. The officers included under this provision are the clerk of the superior court, the sheriff, the ordinary, the tax collector, and the tax receiver. In the case of Lorentz v. Alexander, 87 Ga. 444, 13 S.E. 632, this court, dealing with the provision of the Constitution we now have under consideration, said:

"A law to be general under this section of the Constitution must operate uniformly, throughout the whole state, upon the subject or class of subjects with which it purposes to deal. The act under consideration deals with the establishment of county courts. In order for it to be general and have uniform operation throughout the state, it must affect each county in the state. If it excepts one, or several, it is not general, and cannot have this uniform operation in all counties of the state."

The act under consideration in that case, and which was held to be a special law, excepted from the provisions of the act certain specified counties and other counties which were described. In that respect it differs from the present act. It may be true that the county of Fulton alone comes within the class of the counties for which provision is made by this law, attacked as a special law, but none are excluded from the operation of the act, if at any time they may come into the class of counties embraced in the act upon attaining the characteristics that must mark a county falling within the provisions of the act.

"Where a law is broad enough to reach every portion of the state, and to embrace within its provision every person or thing distinguished by characteristics sufficiently marked and important to make them clearly a class by themselves, it is not a special or local, but a general, law, even though there may be but one member of the class or one place on which it operates." 25 R.C.L. 818.

In the case of Stewart v. Anderson, 140 Ga. 31, 78 S.E. 457, it was said:

"The question, therefore, is whether the act under consideration is a general or a special law. Has it uniform operation throughout the state? It does not purport to apply to all counties in the state, but only to such as meet a certain description. The legislature may make classification for purposes of legislation and pass general laws with reference to such classes. They may classify counties. The basis of classification must have some reasonable relation to the subject-matter of the law, and must furnish a legitimate ground of differentiation. Mere arbitrary discriminations are not permissible under the constitution. If a legitimate classification is made with respect to persons, the law must be applicable to all persons within the class or coming within the class. If the classification is sought to be made with reference to counties, and the basis of classification is legal, the law must apply to all counties within the class, or which may come within the class. The legislature could not constitutionally classify one county by itself. There must be some reasonable basis of classification, so that all which fall within the class may come within the scope of the provisions of the law. Although the act may purport to make a classification of counties for purposes of legislation, yet if the so-called class is so hedged about and restricted that the act applies to only one county, and that other counties coming within the class provided cannot also come within the purview of the law, it is in fact a local or special act and not a general one."

In that case the court was considering an act passed by the Legislature abolishing the fee system of compensation for the offices of solicitor general, tax receiver, tax collector, solicitor of the criminal court, and clerk of the court, in counties having a population of 100,000 or more, and it will be seen that, while this court recognized the principle that the Legislature could not constitutionally classify one county by itself, and that there must be some reasonable basis of classification, so that all which fall within the class may come within the scope of the provisions of the law, the court held further that:

"The population of a county bears such a legitimate relation to the amount of work which county officers do, and to the compensation which they receive by way of fees therefor, as to furnish a reasonable basis for a classification relatively to the constitutional requirement of generality."

From the case last referred to it clearly appears that, though the act under consideration in that case was applicable only to counties which might, as shown by the federal census of 1910 or any future census, have a population of 100,000, the act would not have been unconstitutional on the ground that it was applicable at the time of its passage to only two or three counties, and not to other counties of the state, if it had not contained certain other restrictions and limitations, which--

"not only excluded counties which might possess the alleged basis of classification by some future census, so that the act could not apply to them, but practically restricted its application to Fulton county."

And the court further said, in this connection:

"When it was declared that the class should consist

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