Carter v. Burson

• Court: Georgia Supreme Court
• Writing for the Court: Arthur K. Bolton, Atty. Gen., Alfred L. Evans, Jr.; HAWES
• Citation: Carter v. Burson, 198 S.E.2d 151, 230 Ga. 511 (Ga. 1973)
• Decision Date: 25 April 1973
• Docket Number: Nos. 27765,27772,s. 27765
• Parties: Jimmy CARTER et al. v. William H. BURSON. William H. BURSON v. Jimmy CARTER.

Page 151

198 S.E.2d 151

230 Ga. 511

Jimmy CARTER et al. v. William H. BURSON.

William H. BURSON v. Jimmy CARTER.

Nos. 27765, 27772.

Supreme Court of Georgia.

April 25, 1973.

Syllabus by the Court

1. Senate Resolution 313 (1972) submitted to the electorate the question of whether the office of State Treasurer should be abolished. It was not objectionable on the ground that it submitted in one proposition more than one question to be voted on. The language of the submission to the electorate, when considered in connection with the advertisement of the amendment, was sufficient to inform the electorate of the nature of the amendment. The people having ratified the same as the general election in November, 1972, the office of the State Treasurer stood abolished as of January 1, 1973.

2. The Executive Reorganization Act of 1972 (Ga.L.1972, p. 1015, et seq.) does not violate the constitutional inhibition against multiple subject matter legislation, nor does it contain in the body thereof matter different from that set forth in the title.

Arthur K. Bolton, Atty. Gen., Alfred L. Evans, Jr., J. Lee Perry, Asst. Attys. Gen., Harold N. Hill, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellants.

Byrd, Groover & Bufford, Garland T. Byrd, Denmark Groover, Jr., Macon, for appellees.

HAWES, Justice.

This litigation involves one phase of the State Governmental Reorganization Program instituted by the Governor and implemented by legislation passed at the 1972 session of the general assembly, and further implemented by the vote of the people in approving certain proposed constitutional amendments submitted to them at the general election held in November, 1972. Among the changes proposed was the abolition, as the appellants contend, of the office of State Treasurer, which had theretofore been an office provided for by the Constitution. William H. (Bill) Burson was, in 1972, the incumbent in that office, having been elected thereto for a 4-year term beginning January 1, 1971, at the general election held in November, 1970. On September 26, 1972, Burson filed a complaint in the Superior Court of Fulton County, naming as defendants therein the Governor, the Secretary of State and the Attorney General. In count 1, plaintiff sought a temporary and permanent injunction against the submission of an amendment of the Constitution proposed by Senate Resolution 313 on the ground that same violated the provisions of Art. XIII, Sec. I, Par. I of the Constitution of the State of Georgia of 1945 (Code Ann. § 2-8101) which requires that when more than one constitutional amendment is submitted at the same time they shall be so submitted as to enable the electors to vote on each amendment separately. Plaintiff also sought in count 1 a declaratory judgment that even if said amendment was submitted and ratified the same would be illegal and would not become a part of the Constitution of the State of Georgia. In count 2, plaintiff sought a declaratory judgment that even if said amendment is legal and is ratified by the people, it does not have the effect of abolishing the office of State Treasurer since the intent to accomplish such result is not clear. In count 3, plaintiff attacked the provisions of §§ 408, 408-A and 408-B of the Act approved April 6, 1972 (Ga.L.1972, pp. 1015, 1037, 1038). That Act known as the 'Executive Reorganization Act of 1972' undertook in those sections attacked by the plaintiff to transfer the functions of the State Treasurer and Treasury Department to the fiscal division of the Department of Administrative Services created by Chapter 4 of that Act. In count 3, plaintiff sought a declaratory judgment with respect to the validity of that Act on the ground that the same violated the constitutional prohibition against the passage of any Act referring to more than one subject matter and containing matter different from that expressed in the caption or title thereof.

Senate Resolution 313 proposed an amendment to the Constitution of the State of Georgia 'so as to remove the Treasurer as an elected constitutional officer.' Section 1 of that resolution proposed an amendment to Art. V, Sec. II, Par. I of the Constitution relating to 'executive officers, how elected,' so as to strike therefrom the word 'Treasurer.' Section 2 of the resolution proposed an amendment to Art. V, Sec. II, Par. IV of the Constitution relating to 'qualifications' of persons eligible to hold various 'State house' offices by striking therefrom the word 'Treasurer'. Art. VII, Sec. III, Par. IX of the Constitution relates to the State sinking fund and provides that such fund may be invested in bonds of the State and also in bonds and securities of the Federal Government but that if such bonds are not available for purchase the sinking fund may be loaned 'by the Treasurer of the State, with the approval of the Governor, upon terms to be fixed by such officials and when amply secured by bonds of the State or Federal Government.' Section 3 of that resolution proposed to strike the language italicized from the paragraph and to add the following phrase at the end of the paragraph: 'upon such conditions as may be provided by law.' Article VII, Sec. IX, Par. IV of the Constitution as amended provides that, except as provided in that paragraph, appropriations for each department, officer, bureau, board, commission, agency or institution for which appropriation is made, shall be for a specific sum of money and no appropriation shall allocate to any object, the proceeds of any particular tax or fund as a part or percentage thereof. Sub-paragraph (b) of that paragraph which was originally added to the section by an amendment proposed in 1951 and ratified on November 4, 1952, contained a provision that, 'an amount equal to all money derived from motor fuel taxes received by the State Treasurer in each of the immediately preceding fiscal years, . . .' is appropriated for the purpose of maintaining an adequate system of public roads and bridges in the State. The italicized word, 'Treasurer,' contained in the foregoing quotation was proposed to be stricken by Section 4 of Senate Resolution 313, and a further provision relating to grants to counties for aid in county road construction which authorized the State Treasurer to make such grants under certain conditions was amended by striking the words, 'the State Treasurer to make.' The formula under which the proposed constitutional amendments embodied in this resolution was submitted to the people was, 'Shall the Constitution be amended so as to delete the name and office of Treasurer from the Constitution?' to which question the voters were afforded the opportunity to vote 'Yes' or 'No.'

Senate Resolution No. 48 proposed the amendment to the Constitution by striking therefrom Paragraphs I, II, III, IV and IX of Section III of Art. VII of the Constitution and inserting in lieu thereof new paragraphs numbered I, II, III, IV and IVA, the texts of which are set out in the resolution. That amendment is not under attack in this proceeding. It is lengthy and contains several references in the text of the proposed new paragraphs to 'State Treasury' and to the 'State Treasurer.'

The 'Executive Reorganization Act of 1972' undertakes a general and comprehensive revision of the organization and functions of the executive department of the State Government. It abolishes numerous non-constitutional executive offices and establishes in lieu of those abolished some 25 departments of State government under which all executive offices, boards, commissions, committees, agencies, departments, bureaus and instrumentalities of the executive branch of the State government are to function and to which are allocated by the Act the administration of the State government.

Upon presentation of the complaint to the Presiding Judge of the Superior Court of Fulton County, a restraining order was issued restraining the defendants from advertising the constitutional amendment until further order of the court. That order was issued on September 26, 1972. Thereafter, on September 27, 1972, the attorney general tendered to the trial judge who had issued the temporary restraining order a motion for a supersedeas in order that the advertising of the constitutional amendment might proceed, since because of the time limitations involved and the necessity for advertising once a week for three weeks prior to the general election to be held on November 7, 1972, the failure to advertise would invalidate the vote on the constitutional amendment and would render the questions presented by the case moot. The trial court refused to grant the supersedeas, and this court thereafter on October 2, 1972, granted a supersedeas, there then being pending in this court an appeal from the grant of the temporary restraining order. That appeal was later dismissed as being moot. See Carter v. Burson, 229 Ga. 748, 194 S.E.2d 472. Thereafter, at the general election held on November 7, 1972, the constitutional amendments submitted by Senate Resolutions 313 and 48 were ratified.

Upon the return of the case to the superior court, the plaintiff filed a motion for a judgment on the pleadings based upon the allegations of the complaint admitted by the defendants and based upon facts which, though not admitted, are deemed to be judicially known. After argument and the submission of briefs on that motion, the trial court on December 15, 1972, passed an order sustaining plaintiff's contention made in count 2 of his complaint and holding that the intention to abolish the office of State Treasurer was not clearly manifested by the wording of Senate Resolution 313, especially when the same is considered in connection with the wording of Senate Resolution 48. The court declined to pass on any of the other questions raised by the complaint respecting the validity of the submission of the constitutional amendment under Senate Resolution 313; respecting the legality of the...