Bibb County v. Hancock

• Decision Date: 14 March 1955
• Docket Number: No. 18850,18850
• Citation: 211 Ga. 429,86 S.E.2d 511
• Parties: BIBB COUNTY et al. v. John M. HANCOCK, Jr.
• Court: Georgia Supreme Court

Page 511

86 S.E.2d 511

211 Ga. 429

BIBB COUNTY et al. v. John M. HANCOCK, Jr.

No. 18850.

Supreme Court of Georgia.

March. 14, 1955.

Syllabus by the Court

1. The act of the legislature, Ga.L.1953, Nov.-Dec. Sess. p. 478, providing that whenever it shall appear to the presiding judge of the superior court that a defendant, indicted for a capital felony, is because of his poverty, indigent and unable to pay an attorney for his defense, it shall be the duty of the court to appoint an attorney to represent him, who shall receive reasonable compensation not to exceed $150 and expenses incurred in the necessary preparation and investigation of the case not to exceed $500 to be paid upon order from him upon the county treasurer by said county treasurer--does not violate the Constitution of Georgia of 1945, article 7, section 4, paragraph 1, Code, Ann. § 2-5701, which limits the purpose for which counties may levy taxes, becuse said expenditure is an expense of court within the meaning of said provision of the Constitution which provides that counties may levy taxes 'to pay the expenses of courts.'

2. Where an attorney qualifies for fees or expenses provided for in section 1, subsections A, B, of the act, Ga.L.1953, Nov.-Dec. Sess. p. 478, the judge of the superior court has authority to order payment out of the county treasury. The provision in section 1 B of said act, that the judge 'shall enter an order directing the county treasurer, wherein the defendant or defendants were indicted, to pay to such attorney,' is directory, and said provision does not limit the operation of the act only to those counties having a county treasurer, where, as here, the manifest intention of the legislature was that it should apply in all counties of the State.

3. (a) The guaranty of due process of the Federal and State constitutions does not apply as against a State in behalf of a county of the State as to the revenues of the county, as its revenues are subject to legislative control. The act (Ga.L.1953, Nov.-Dec. Sess. p. 478), therefore, does not violate the due-process clauses because of its failure to provide notice, hearing or opportunity for hearing by the county treasurer or other county officials.

(b) The question of impairment of contract cannot be raised by the county treasurer, where it is not contended that any contract between said county treasurer or the county of which she is treasurer, is impaired.

(c) Article 6, section 9, paragraph 1 of the Constitution of 1945 (Code, Ann. § 2-4401), requiring uniformity in the jurisdiction, powers, proceedings, and practice of all courts or officers invested with judicial powers (except city courts) of the same grade or class, relates to jurisdiction as to subject matter alone and not to jurisdiction over person or territory.

4. Under the title 'to provide for the appointment of an attorney or attorneys to represent indigent defendants in criminal cases involving capital felonies; * * * to provide for payment of compensation and expenses to such attorney or attorneys therefor,' an act of the legislature could grant authority to the county to levy a tax for that purpose, and such act was not unconstitutional, as containing matter different from its title.

John M. Hancock, Jr., filed his petition in the Superior Court of Bibb County, Georgia against Mrs. Agnes L. Freeney, Treasurer or Bibb County, Georgia, in which he alleged: that one Joe Burke was indicted by a grand jury of Bibb County for a capital felony, to wit murder; that the presiding judge appointed petitioner to represent the accused, upon a showing that he had no legal counsel and because of his poverty was unable to employ counsel; that petitioner represented said accused and thereafter filed application with the judge of the superior court for an award of attorney's fees pursuant to an act of the legislature approved by the Governor on January 5, 1954, Ga.L. Nov.-Dec. Sess.1953, p. 478 et seq. Thereafter, the court issued an order relieving and discharging petitioner from rendering further service to the said defendant, and ordered the Treasurer of Bibb County, Georgia, to pay the petitioner the sum of $35 as compensation for services rendered. The Treasurer of Bibb County, Georgia, refused payment, and petitioner seeks a writ of mandamus to compel payment of said amount by the Treasurer of Bibb County, Georgia. To the petition the defendant filed general demurrers, attacking the constitutionality of the above cited act upon a number of constitutional grounds which are set out in the opinion, and also filed an answer.

On the same day when John M. Hancock, Jr., filed his petition against the Treasurer of Bibb County, Georgia, she filed a petition against him, setting out substantially the same facts contained in his petition, which petition as later amended, raised substantially the same constitutional questions to the act in question as were raised by her general demurrers to the petition filed against her. She paryed that the order of the superior court be arrested, vacated, and declared invalid, that the rights of the parties be declared, and for further relief as the court determined proper. John M. Hancock, Jr., filed general demurrers to the petiton of the Treasurer of Bibb County, and also filed an answer.

Upon agreement of the parties the two cases were consolidated by order of the judge of the superior court and certain stipulations were entered, those of which are pertinent to a decision of this case being included in the opinion.

Upon a hearing the court overruled all the demurrers of the Treasurer of Bibb County to the petition of John M. Hancock, Jr., and sustained the general demurrers of John M. Hancock, Jr., to the Treasuer's petition, and granted a mandamus absolute, to which order the Treasurer excepted.

The caption of the act of 1953, p. 478 (supra) and section 1, subsections A and B, and section 3 are under attack in this case, those sections dealing with the fixing of fees in the superior court. Section 2, subsections A, B, and C, dealing with the fixing of fees on appeal are not at issue here.

Ellsworth Hall, Jr., Macon, for plaintiff.

Frank C. Jones, Jones, Sparks, Benton & Cork, Macon, for defendant.

M. Cook Barwick, Lamar Sizemore, Chas. M. Lokey, Edw. E. Dorsey, Hugh M. Dorsey, Jr., Francis G. Jones, Jr., W. Colquitt Carter, Edw. L. Savell, Ben Weinberg, Jr., Richard D. Carr, A. Walton Nall, C. Baxter Jones, Arthur B. L. Martin, Alex W. Smith, Jr., Wm. H. Schroder, Henry B. Troutman, Jr., Pole B. McIntire, Harry S. Baxter, Roscoe Pickett, Jr., Stanley P. Meyerson, Herbert Johnson, Young H. Fraser, Edwin L. Sterne, Robt. R. Richardson, Atlanta, for parties at interest.

MOBLEY, Justice.

1. In his oral argument counsel for the plaintiff in error discussed two of the grounds of general demurrer, making the statement that he had put in some ballast to go along with them. While ballast may make smooth the ship's course, it makes the sailing rough for this court, when it comes in the form of such regged constitutional questions as counsel ably presents in this case. The two grounds orally argued are: (1st) that the act, Ga.L.1953, Nov.-Dec. Sess, p. 478, is a special law, in that it refers only to those counties having county treasurers, was not advertised as is required for a special law and is therefore invalid; and (2d) that compensation of appointed attorneys is not a purpose for which counties may expend public funds. We will deal with the latter first, as it goes to the very heart of the matter, for, if this is not an expense for which taxes may be levied by a county under the Constitution, then the act is unconstitutional, and only by constitutional amendment could the purpose expressed in the legislative act be accomplished.

The Constitution of Georgia of 1945 by article 7, section 4, paragraph 1, Code Ann. § 2-5701, limits the purposes for which counties may levy taxes. One of those is 'to pay the expenses of courts,' which admittedly is the only classification under which this act may come. The question then is, whether compensation provided by the act for appointed attorneys is an 'expense of court,' as contemplated by the Constitution. This provision first appeared in the Constitution of 1877, article VII, section VI, paragraph II (old Code, § 2-5402). There was no such restriction or limitation upon the power of counties to tax prior thereto. It is clear that, in placing this same provision in the Constitution of 1945, there was no intention to declare any new principle of law, but merely to continue in the new constitution the same provision of the old, with the same meaning. A construction placed upon the similar provision of the Constitution of 1877 would be controlling as to its meaning in the present Constitution. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883; Griffin v. Vandegriff, 205 Ga. 288(1), 53 S.E.2d 345. Therefore, a construction by this court of this section of the Constitution of 1877 would be controlling here.

Prior to the adoption of the Constitution of 1877, this court in Elam v. Johnson, 48 Ga. 348, held that appointed counsel was not entitled by any law of this State to be paid for such services out of county funds, stating as follows: 'An attorney at law who was assigned by the Judge of the Superior Court as counsel to defend an indigent defendant, on his trial upon an indictment in the said court, and who accordingly did appear and defend him, is not entitled by any law of this State to be paid for such services out of the county funds.' That practice has continued in Georgia throughout the intervening years, and the members of the legal profession have willingly performed this obligation placed upon them, giving their best, spending their own funds, and have with rare exception furnished the indigent accused adequate representation.

Elam v. Johnson, supra, held that payment of a fee to appointed counsel could not be made because...