Gay v. Laurens County, s. 19763

• Decision Date: 12 September 1957
• Docket Number: Nos. 19763,19777,s. 19763
• Parties: Carlus GAY v. LAURENS COUNTY, Georgia. LAURENS COUNTY, Georgia, v. Carlus GAY.
• Court: Georgia Supreme Court

Page 271

100 S.E.2d 271

213 Ga. 518

Carlus GAY v. LAURENS COUNTY, Georgia.

LAURENS COUNTY, Georgia, v. Carlus GAY.

Nos. 19763, 19777.

Supreme Court of Georgia.

Sept. 12, 1957.

Rehearing Denied Oct. 11, 1957.

Syllabus by the Court

1. Article 3, section 7, paragraph 15, of the Constitution of 1945 which provides that no local or special bill shall be passed unless notice to apply therefor shall have been published in the official gazette of the locality affected once a week for three weeks during a period of sixty days immediately preceding its introduction in the General Assembly, is not complied with when one of the publications is on a Sunday.

2. There is no estoppel by conduct where both parties have equal knowledge or equal means for ascertaining the validity or invalidity of a statute under which one pays money to the other.

3. Where the whole of any legislative action on a given subject matter cannot be enforced because unconstitutional in part, the remaining part will not be enforced unless it is reasonably certain that to do so will correspond with the main purpose which the legislature sought to accomplish by its enactment.

Carl K. Nelson, Nelson & Nelson, Dublin, for plaintiff in error.

Harold E. Ward, H. Dale Thompson, Dublin, A. Russell Ross, Edwin W. Ross, Eastman, for defendant in error.

CANDLER, Justice.

By an act the legislature passed in 1952 (Ga.L.1952, p. 2396) which was approved on February 12, 1952, and by its terms became effective on January 1, 1953, compensation for the Sheriff of Laurens County was changed from a fee basis to an annual salary of not less than $6,000 nor more than $7,500 to be fixed each year by designated county authorities in a prescribed manner. It provides for the payment of his salary monthly out of county funds. It requires him to submit annually during January to the county's fiscal authorities a list of those selected by him to serve as deputy sheriffs during the year and it gives such fiscal authorities power to fix the number who shall serve during that year and the amount of compensation they shall receive monthly out of county funds. In addition to an annual salary for the sheriff and his deputies, it also provides for a mileage fee to be paid out of county funds for necessary travel in the performance of their official duties. By another act passed at the same session and approved on February 13, 1952 (Ga.L.1952, p. 2484) and which became effective on January 1, 1953, an act of 1925 (Ga.L.1925, p. 430) which made the Sheriff of Laurens County ex officio Sheriff of the City Court of Dublin was amended by adding thereto the following words: 'When acting as ex-officio Sheriff of the City Court of Dublin, the Sheriff Laurens County shall receive no compensation in addition to that which he receives as Sheriff of Laurens County.' Section 2 of this act reads in part as follows: 'All fees, costs, fines, percentages, forfeitures, penalties, allowances and all other perquisites of whatever kind which are now or may hereafter be allowed by law as compensation for services rendered by the ex-officio Sheriff of the City Court of Dublin shall be received and collected by such officer for the sole use and benefit of the County of Laurens.' This section of the act also requires the sheriff to pay over all such funds monthly to the officer of the county who is entitled to receive county funds. And Section 3 of it also provides: 'This Act shall not become effective unless its companion bill, H.B. No. 735, passes and is approved by the Governor and ratified by the people under the referendum therein provided for. In the event its companion bill does pass, as hereinbefore stated, then this Act shall become effective on January 1, 1953.' On September 9, 1955, Laurens County acting through its board of county commissioners instituted this litigation against Carlus Gay. The petition alleges that the defendant has at all times since January 1, 1953, been the Sheriff of Laurens County and also ex officio Sheriff of the City Court of Dublin and during that period has, as ex officio Sheriff of the City Court of Dublin, received and retained $15,736.57 arising from fines, forfeitures and costs in the City Court of Dublin which under the provisions of the act approved on February 13, 1952, he should have paid over to the officer of Laurens County who is entitled to receive county funds. By general demurrers to the petition the defendant attacked the constitutionality of the salary act which was approved on February 12, 1952, on several different grounds. These demurrers were overruled on October 19, 1956. During the same term of the court and on January 17, 1957, the trial judge vacated and set aside his order which overruled the defendant's demurrers on the ground that it had been inadvertently granted. On March 15, 1957, the defendant amended his general demurrer by amplifying its original grounds and adding other grounds attacking the constitutionality of the salary act of 1952. Objections to the allowance of this amendment were overruled. The defendant on March 15, 1957, filed a written motion to dismiss the amended petition on the ground that it failed to state a cause of action and in which he made several constitutional attacks on the act. The plaintiff on March 29, 1957, amended its petition and alleged that the defendant had received the salary and the other benefits provided for by the act of 1952; that he had neither restored nor offered to restore the amounts so received; and that he is thereby estopped to question the validity of the act. Demurrers were interposed to the amendment and all previous demurrers and the written motion to dismiss were renewed to the petition as amended. They were all overruled and error is assigned in the main bill of exceptions on those judgments. The cross-bill of exceptions assigns error on the judgment of January 17, 1957, which vacated and set aside the order of October 19, 1956, which overruled the defendant's demurrers and also on the judgment overruling the plaintiff's objections to the allowance of an amendment to the defendant's original demurrers.

1. Article 12, section 2, paragraph 2, of the Constitution of 1945 (Code Ann. § 2-7902) declares: 'County officers may be on a fee basis, salary basis, or fee basis supplemented by salary, in such manner as may be directed by law.' In this case the defendant contends that the petition as amended fails to state a cause of action against him because the act of 1952 which placed the office of sheriff on a salary basis is for several enumerated reasons unconstitutional. This act is, of course, a local or special one and its constitutionality is attacked on the ground that notice of the authors' intention to introduce it in the General Assembly was not published as required by article 3, section 7, paragraph 15, of the Constitution of 1945 which in part provides: 'No local or special bill shall be passed, unless notice of intention to apply therefor shall have been published in the newspaper in which the Sheriff's advertisements for the locality affected are published, once a week for three weeks during a period of sixty days immediately preceding its...