Floyd County v. Salmon, (No. 1985.)

• Decision Date: 05 March 1921
• Docket Number: (No. 1985.)
• Parties: FLOYD COUNTY. v. SALMON.
• Court: Georgia Supreme Court

151 Ga. 313

106 S.E. 280

FLOYD COUNTY.

v.SALMON.

(No. 1985.)

Supreme Court of Georgia.

March 5, 1921.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

George, J., dissenting in part.

Certiorari from Court of Appeals.

Action by J. Z. Salmon against Floyd County. A Judgment for defendant was reversed by the Court of Appeals (24 Ga. App. 796, 102 S. E. 364), and defendant brings certiorari. Affirmed, with directions.

Denny & Wright, of Rome, and Moore & Pomeroy and Joseph H. Ross, all of Atlanta, for plaintiff in error.

Maddox & Doyal, of Rome, for defendant in error.

GEORGE, J. [1] Civil Code (1910) § 1202, provides that—

"The county shall pay the receiver one-half of what the collector gets for collecting the county tax."

By an act of the General Assembly, approved August 17, 1918 (Acts 1918, p. 110), section 1202 of the Civil Code of 1910 was so amended as to be read as follows:

"The county shall pay the receiver the same compensation the collector gets for collecting the county tax."

J. Z. Salmon, tax receiver of Floyd county, claimed as such receiver, for the year 1918, the same compensation allowed the tax collector for collecting the county tax. The county paid him one-half of the compensation allowed the collector for collecting the county taxes, without prejudice to the rights of the receiver to proceed to collect the balance alleged to be due him. Accordingly the receiver filed suit against the county, and alleged that under the act approved August 17, 1918, he was entitled to recover the same compensation allowed the tax collector. To the petition the county filed a general demurrer. The demurrer was sustained, and the receiver sued out a writ of error to the Court of Appeals. That court reversed the judgment of the trial court, and the county brought by certiorari the decision of the Court of Appeals to the Supreme Court for review. The county does not by its demurrer question the constitutionality of the act of 1918, but insists that inasmuch as the duties of the receiver for the year 1918 were performed, or practically performed, prior to the passage and approval of the act, the compensation of the receiver for the year in question is to be governed entirely by the old law as contained in Civil Code, § 1202, and not by the act approved August 17, 1918.

With respect to the time when statutes are to take effect, the old English rule was that if the act was not directed to operate from any particular time, it took effect from the first day of the session at which it was passed. This legal fiction and this extraordinary application of the doctrine of relation was acted upon by the English courts until the statute of 33 Geo. III, c. 13, which statute declared that laws shall operate from thetime of receiving the royal assent. Sedgwick on Construction of Statutes (2d Ed.) 65.

"Under Constitutions which, by providing in effect that no bill shall become a law until it shall have received the approval of the chief executive or shall have been passed over his refusal to approve, make the executive a necessary constituent of the law-making power, an act becomes a law, not when it is passed by the two houses of the Legislature, but when it is approved by the executive, unless it becomes a law by the lapse of time specified for the return of a bill to the Legislature or by being passed by the Legislature notwithstanding the disapproval of the executive." 25 R. C. L. 797.

Cf. article 5, § 1, par. 16, of the Constitution of this state (Civil Code, § 6485); Green v. Hall, 36 Ga. 538: Epstin v. Levenson, 79 Ga. 718 (2), 4 S. E. 328.

The general rule followed in the United States is that, in the absence of constitutional or general statutory provision governing the matter, the statute becomes effective on the day of its passage; that is to say, on the day of its approval by the chief executive, or its passage over his veto, or by his nonaction within the time specified in the Constitution for the return of the bill to the Legislature, unless the time for the going into effect of the statute is fixed by the statute Itself. It is elementary that the statute itself may fix the day or time when it shall take effect; and it has been held that a statute providing that it shall take effect "from and after" a day named takes effect on the day following the one named. State v. Honey, 82 Ohio St. 376, 92 N. E. 486, 19 Ann. Cas. 918. The act ap...