Board of Com'rs of Roads and Revenues of Sumter County v. City of Americus

• Decision Date: 17 April 1914
• Docket Number: 274.
• Citation: Board of Com'rs of Roads and Revenues of Sumter County v. City of Americus, 81 S.E. 435, 141 Ga. 542 (Ga. 1914)
• Parties: BOARD OF COM'RS OF ROADS AND REVENUES OF SUMTER COUNTY v. MAYOR, ETC., OF CITY OF AMERICUS.
• Court: Georgia Supreme Court

81 S.E. 435

141 Ga. 542

BOARD OF COM'RS OF ROADS AND REVENUES OF SUMTER COUNTY v. MAYOR, ETC., OF CITY OF AMERICUS.

No. 274.

Supreme Court of Georgia

April 17, 1914

Syllabus by the Court.

The act of the General Assembly approved August 11, 1913 (Acts 1913 p. 438), "authorized and required" the board of commissioners of roads and revenues of Sumter county to work the county chain gang of that county upon the streets of the city of Americus for not exceeding three months in each year using in such work, if necessary, everything pertaining to the convicts and to the road equipment; the work to be done at such times as may be suitable to the board and at such places as may be designated by the mayor and city council the streets to be worked and graded under the direction of such person or persons as "are so authorized" by the city; the city not to pay any part of the expense of maintaining the county convicts. At the time of the passage of this act, the general "alternative road law" (Civ. Code 1910, § 694 et seq.) was in force in Sumter county, and the act of 1908 (Pen. Code 1910, § 1207 et seq.) was also in effect. Held, that the special act of August 11, 1913, above referred to, is unconstitutional and void, because violative of the constitutional provision declaring that no special law shall be enacted in any case for which provision has been made by an existing general law.

Error from Superior Court, Sumter County; Z. A. Littlejohn, Judge.

Mandamus by the Mayor and City Council of the City of Americus to compel the Board of Commissioners of Roads and Revenues of the County of Sumter to work the county chain gang force on the city streets. Demurrer to petition overruled, and defendants bring error. Reversed.

W. T Lane and R. L. Maynard, both of Americus, for plaintiff in error.

W. P. Wallis and Hollis Fort, both of Americus, for defendant in error.

FISH C.J.

The board of commissioners of roads and revenues of the county of Sumter, upon the recommendation of the grand jury of that county, adopted the "alternative road law" as embraced in the Civil Code, § 694 et seq., and are working the convicts, both felony and misdemeanor, upon the public roads of the county. On August 11, 1913, a special act was approved (Acts 1913, p. 438), authorizing and requiring the commissioners of roads and revenues of that county to work the county chain gang force upon the streets of the city of Americus, to prescribe the length of time for such work, and the regulation under which it should be done. After the passage of such act, demand was made by the mayor and city council of Americus upon the board of commissioners of roads and revenues that the county chain gang force should work the streets of the city in accordance with such special act. The board of commissioners refused to comply with the demand, whereupon the mayor and city council filed a petition for mandamus against the board of commissioners to compel them to work the streets of the city as required by the special act. A nisi was served on the members of the board requiring them to show cause why a mandamus absolute should not be granted. The petition was filed, and the hearing was had thereon in term, when the board of commissioners demurred to the petition upon various grounds, among which was that such special act was void because it was unconstitutional, in that at the time of its passage there was a general existing law wherein provision had been made as to the same subject-matter. The demurrer was overruled, and the board of commissioners excepted. The special act above referred to is as follows: "That the board of commissioners of roads and revenues of Sumter county, be and they are hereby authorized and required to work the county chain gang of said county of Sumter upon the streets of the city of Americus for not exceeding three months in each year after the passage of this act, beginning with the present year 1913, except that said board are not authorized and required to work longer than forty days during the present year upon said streets. At such times, all mules, plows, wagons, scrapes, utensils, guards and all other things pertaining to the convicts and to the road equipment, shall be used, if necessary, upon the streets of the city of Americus free of charge to said city. The county convicts and road force shall do such work at such time as may be suitable to said board and at such places as may be designated by the mayor and city council of the city of Americus, or its authority. The streets shall be worked and graded under the direction of such person or persons as are so authorized by the mayor and city council of Americus; and the mayor and city council of Americus shall not be called upon or required to pay any portion or any part of the expense of feeding, maintaining, guarding or caring for said county convicts."

The only point we deem it necessary to determine is whether such special act is violative of article 2, § 4, par. 1 (Civil Code, § 6391), of the Constitution of this state, which declares that no special law shall be enacted in any case for which provision has been made by an existing general law. It may be remarked in passing that it is a somewhat curious coincidence that the next paragraph of that section of the Constitution, which immediately follows the one which contains the declaration above stated, provides that: "Legislative acts in violation of this Constitution, or the Constitution of the United States, are void, and the judiciary shall so declare them." Whether this juxtaposition was the result of accident, or whether the framers of the Constitution in their wisdom foresaw the frequency with which it would be sought to enact special laws in cases for which provision had been made by a general law, and the consequent necessity of declaring them invalid, and thought it a most appropriate place to locate the mandatory provision that the courts should declare acts in contravention of the Constitution void, we do not know. However that may be, the violation of the first paragraph of this section not infrequently renders it the duty of this court to declare void special acts in cases already provided for by general existing laws.

The first question which presents itself is whether the constitutional provision prohibiting the enactment of special laws in cases for which provision has already been made by existing general law applies to the method of dealing with the working of convicts and chain gangs by county commissioners. By article 6, § 19, par. 1, of the Constitution (Civil Code,§ 6548), it is declared that "The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties." And by article 11, § 3, par. 1 (Civil Code, § 6600), it is declared: "Whatever tribunal, or officers, may hereafter be created by the General Assembly, for the transaction of county matters, shall be uniform throughout the state, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for the appointment of commissioners of roads and revenues in any county." It was urged that, under this section, the Legislature had authority to create a board of county commissioners in Sumter county and to define their duties; and that, under this power, they could impose upon such county commissioners the duty of having the streets of Americus worked by the county chain gang under the direction of the municipal authorities. The different provisions of the Constitution are to be construed as in harmony with one another, rather than as contradictory. Construing together the two sections last quoted, it is evident that the constitutional intent was that generally the tribunal or officers created for the transaction of county matters should be uniform throughout the state, and have the same name, jurisdiction, and remedies, but that the Legislature might provide for the creation of county commissioners in such counties as should require them, and define their duties, without being restricted by the general provision just mentioned. That body has the power to pass separate and distinct acts creating county commissioners for any county which requires them, and it is not necessary that these acts shall be uniform in their operation in all such counties by reason of the clause of the Constitution providing generally for uniformity in name, jurisdiction, and remedy in regard to officers created for the transaction of county matters. Such acts frequently contain differences in the powers conferred upon the commissioners, in the manner of their election, as to their number and compensation, and in other respects. County of Pulaski v. Thompson & Co., 83 Ga. 270 (4), 9 S.E. 1065; Sayer v. Brown, 119 Ga. 539, 46 S.E. 649. This provision in regard to the creation of county commissioners and defining their duties was not intended, however, to authorize the Legislature to violate every other provision in the Constitution under the name of defining the duties of the county commissioners; and, if it should be held that the authority of the Legislature on this subject is without limit, then that body could confer upon any board of county commissioners authority to issue bonds without having an election, as required by another section of the Constitution, or it could authorize a board of commissioners to elect a judge of the superior court, or to elect a tax collector or other county officer, or to levy a tax without any limitation upon the property of the tax payers, or, in fact, to exercise arbitrary and autocratic powers, without regard to any constitutional provision as to how such powers shall be exercised, or by whom. It will hardly be contended that, because the...