Fleming v. Daniell
| Decision Date | 10 May 1965 |
| Docket Number | 22924,Nos. 22920,s. 22920 |
| Citation | 142 S.E.2d 804,221 Ga. 43 |
| Parties | E. W. FLEMING v. J. C. DANIELL, Commissioner of Roads & Revenues of Carroll County. J. C. DANIELL, Commissioner of Roads & Revenues of Carroll County v. E. W. FLEMING. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The Act of 1964 (Ga.L.1964, pp. 361-62) creating the office of Assistant Solicitor General of the Coweta Judicial Circuit and the amendment thereto (Ga.L.1964 Ex.Sess., p. 13) which provides that said Assistant Solicitor General shall receive as compensation for his services a salary of $400 per month to be paid at the rate of $87.50 per month for four of the counties and $50 per month for the remaining county in the circuit affect only these counties. The Acts are local and special Acts and not having been advertised as required by Art. III, Sec. VII, Par. XV of the Georgia Constitution (Code Ann. § 2-1915) are unconstitutional.
Tisinger & Tisinger, Robert D. Tisinger, David H. Tisinger, Carrollton, for plaintiff in error.
Gilbert & Head, Aubrey W. Gilbert, Carrollton, for defendant in error.
The main bill of exceptions (#22920) seeks a review of an order denying a writ of mandamus absolute and the cross bill assigns error on the overruling of general demurrers to a petition for mandamus.
The petition of E. W. Fleming alleged: that the Georgia General Assembly in its session of 1964 created the position of Assistant Solicitor General of the Coweta Judicial Circuit (Ga.L.1964, pp. 361-62) and at its special session in 1964 provided that Carroll County should pay to said Assistant Solicitor General the sum of $87.50 per month for his service (Ga.L.1964, Ex.Sess., p. 13); that pursuant to the provisions of said Acts he was appointed Assistant Solicitor General of the Coweta Judicial Circuit; that he has performed the duties of said office since May 22, 1964, the date of his appointment, but the defendant, J. C. Daniell, sole Commissioner of Roads and Revenues of Carroll County, and fiscal authority for said county, has failed and refused to pay his salary of $87.50 per month for the months of June through October of 1964. The prayer was that a mandamus absolute be granted requiring the defendant to make such payments.
By general demurrers and answer the defendant asserted that the Act of the General Assembly and the amendment thereto creating the position of Assistant Solicitor General of the Coweta Judicial Circuit was invalid and void as being violative of (a) Art. III, Sec. VII, Par. XV (Code Ann. § 2-1915); (b) Art. VI, Sec. XI, Par. I (Code Ann. § 2-4601); (c) Art. VI, Sec. XII, Par. I (Code Ann. § 2-4701) and (d) Art. I, Sec. IV, Par. I (Code Ann. § 2-401) of the Constitution of Georgia.
The court overruled the general demurrers. The case was submitted on an agreed statement of fact. After a hearing the court entered an order denying the plaintiff's prayers for mandamus absolute.
The correctness of the ruling on the general demurrers being controlling on the main issue in the case--the validity of the Act of 1964 creating the position--we examine first the errors assigned in the cross bill of exceptions.
Art. VI, Sec. XI, Par. I (Code Ann. § 2-4601) provides that there shall be a solicitor general for each judicial circuit. Sec. XII, Par. I (Code Ann. § 2-4701) of said article provides for the payment of the salary of the solicitor general and Par. II (Code Ann. § 2-4702) relates to abolishing or reinstating the fees of the solicitor general. Neither the Constitution or a general law affecting the office of solicitor general in all judicial circuits in the State makes any provision for the appointment or election of an assistant solicitor general.
It appears without dispute that the Act of 1964 creating the office of Assistant Solicitor General of the Coweta Judicial Circuit as well as the amendment to the Act, which fixed the compensation for such office, was passed as a general law. It is contended by the defendant that the Act creating the position as well as the amendment thereto is invalid in that it violates Art. III, Sec. VII,...
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...area). This general notice requirement was meant to protect both the public and the affected local government. See Fleming v. Daniell, 221 Ga. 43, 45, 142 S.E.2d 804 (1965) (explaining that one of the main purposes of the constitutional notice requirement was “to prevent duties and obligati......
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...on local govenments without giving those in charge of such governments an opportunity to oppose their passage.' Fleming v. Daniell, 221 Ga. 43, 45, 142 S.E.2d 804, 806 (1965). See also Brown v. Clower, 225 Ga. 165, 166 S.E.2d 363 As to proof the notice was given, this court has stated that ......
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