Feagin v. Freeney

• Decision Date: 12 September 1941
• Docket Number: 13788.
• Parties: FEAGIN v. FREENEY, Treasurer.
• Court: Georgia Supreme Court

17 S.E.2d 61

192 Ga. 868

FEAGIN v. FREENEY, Treasurer.

No. 13788.

Supreme Court of Georgia

September 12, 1941

Rehearing Denied Oct. 14, 1941.

Syllabus by the Court.

That portion of the act of 1933, Ga.L.1933, p. 346, purporting to grant to the Board of Commissioners of Bibb County the power to fix the salary of the judge of the municipal court of Macon, created under the act of 1913, Ga.L.1913, p. 252, is not violative of (a) article 6, section 7, paragraph 1, of the constitution of Georgia, Code, § 2-3501, authorizing the General Assembly to abolish justice courts and establish in lieu thereof such new courts as it may, in its discretion deem necessary; (b) article 6, section 1, paragraph 1 of the constitution, § 2-2901, providing that judicial powers shall be exercised by the Supreme Court, Court of Appeals, superior Courts, courts of ordinary, justices of the peace commissioned notaries public, and such other courts as have been or may be established by law; (c) article 3, section 1, paragraph 1, of the constitution, § 2-1201, providing that the legislative power of the State shall be vested in the General Assembly, and said power cannot be delegated; (d) article 1, section 1, paragraph 23 of the constitution, § 2-123, providing that Legislative, Judicial, and Executive power shall remain separate; or (e) article 1, section 4, paragraph 1, § 2-401, providing that laws of a general nature shall have uniform operation through the State.

Harry S. Strozier, E. F. Taylor, and R. Douglas Feagin, all of Macon, for plaintiff in error.

Ellsworth Hall, Jr., of Macon, for defendant in error.

ATKINSON Presiding Justice.

This record presents for decision one question to wit, whether the legislature can constitutionally delegate to the Board of Commissioners of Bibb County power to fix the salary of the judge of the municipal court of Macon. Originally the constitution of this State contained the following provision: 'There shall be in each militia district one justice of the peace,' etc. Code, § 2-3501. In 1912 the General Assembly submitted a proposed constitutional amendment, which was duly ratified by the people, authorizing creation of municipal courts in certain counties. In pursuance of this amendment the General Assembly created the municipal court of Macon, Ga.L.1913, p. 252, and provided a designated salary for the judge. This act was several

times amended. The last act that dealt with his salary, Ga.L.1933, p. 346, authorized the Board of Commissioners of the County of Bibb to annually fix the salaries of all officers of the municipal court of Macon, including the judge. It is insisted that the act last cited is violative (a) of article 6, section 7, paragraph 1, of the constitution of Georgia, Code, § 2-3501, authorizing the General Assembly to abolish justices' courts and establish in lieu thereof such new courts as it may, in its discretion, deem necessary, because the power to fix the salary of the judge of said court is necessarily and inherently a part of the power to establish the court and cannot be delegated, and because no court could be established without providing a judge and fixing his compensation, and because the salary is a part of his office, and the power to fix, change, or modify the salary while the judge is in power is to control the office, which only the legislature can exercise, and affects his independence in the exercise of judicial power, and because it is the duty of the legislature when it discharges the duty or exercises the power of creating a court to provide for the independent maintenance of the judge by fixing certain uniform and adequate compensation; (b) article 6, section 1, paragraph 1, of the constitution, Code, § 2-2901, providing that judicial powers shall be exercised by the Supreme Court, Court of Appeals, superior courts, courts of ordinary, justices of the peace, commissioned notaries public, and such other courts as have been or may be established by law, and because the court of which petitioner was the judge was within said constitutional provision, and the power to fix his salary cannot be delegated; (c) article 3, section 1, paragraph 1, of the constitution, § 2-1201, providing that the legislative power of the State shall be vested in the General Assembly, and said power cannot be delegated, and the establishment of a salary is essentially a legislative power; (d) article 1, section 1, paragraph 23, § 2-123, providing that legislative, judicial and executive power shall remain separate, and because petitioner is a constitutional judicial officer of the State, and because said statute confers upon a Board of County Commissioners the power to fix the salary of a constitutional judicial officer; and (e) article 1, section 4, paragraph 1, § 2-401, providing that laws of a general nature shall have uniform operation through the State, and because said statute in a given case confers upon a particular board the power to fix the salary is a special law.

In the act creating the municipal court of Macon and the acts amendatory thereof it was provided that the salary of the judge should be paid by the treasurer of Bibb County. The offices, court-room, books, filing-cases, clerks sheriff, bailiffs, and reporters of the municipal court of Macon are all furnished by the County of Bibb. In article 6, section 19, paragraph 1, of the constitution, Code, § 2-4601, it is declared: '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.' The Code, § 23-904, declares: 'The board of county commissioners of roads and revenues hereby created shall have exclusive jurisdiction over and control of all county matters, such as public roads, bridges, the working of convicts, private roads, county finances, the levying and collection of taxes for county purposes, the management, control over and disbursing of county funds,' etc. In pursuance of this last amendment to the constitution the legislature created the Board of Commissioners of Bibb County. Ga.L.1873, p. 219. By an act approved March 10, 1933, Ga.L.1933, p. 346, the legislature authorized the Board of Commissioners of the County of Bibb to annually fix the salaries of all officers of the municipal court of Macon, including the judge. It is the provision in the act last cited which makes it the duty of the Board of Commissioners to fix the salary of the judge which is under attack in the instant case. The precise question here involved has not heretofore been ruled upon by this court. In Abbott v. Commissioners of Roads and Revenues of Fulton County, 160 Ga. 657, 129 S.E. 38, the court was dealing with an act which made it the duty of the commissioners of Fulton County to fix the salaries of various county officers, including the tax-collector and the ordinary of Fulton County. The Abbott decision dealt only with the right of the legislature to confer upon the commissioners of Fulton County the right to fix the salary of the tax-collector. This court sustained that right, and in the opinion it was said by way of obiter that there is no inhibition against the legislature allowing the ordinary to fix his own salary, and that the act was not void on the ground of delegation of a legislative authority. No attack appears to have been made upon that act in so far as it made it the duty of the commissioner to fix the salary of the ordinary who is a constitutional judicial officer. Mosley v. Garrett, 182 Ga. 810, 187 S.E. 20, dealt with an act which gave to the grand jury the right to fix the salary of the solicitor-general of the Macon judicial circuit, and it was held that this could not be done. It is to be noted, however, that the Mosley case is not authority for the proposition that the legislature may not empower another governmental unit to fix the compensation of certain officers where the constitution does not expressly declare that the General...