Lampkin v. Pike

• Decision Date: 17 July 1902
• Citation: 42 S.E. 213,115 Ga. 827
• Parties: LAMPKIN et al. v. PIKE.
• Court: Georgia Supreme Court

42 S.E. 213

115 Ga. 827

LAMPKIN et al.

v.PIKE.

Supreme Court of Georgia.

July 17, 1902.

STATUTES—AMENDMENT—CITY COURT—REVIEW OF DECISIONS.

1. While the general assembly has full power to amen* its legislative enactments, an amendatory act, to be valid as such, must relate to an existing statute, and not to one which, having been repealed, is wholly inoperative.

2. At the date of the passage of the act of November 30, 1897, to establish the city court of Jefferson, in Jackson county, there was iu that county no incorporated city having the name of Jefferson; and consequently it was not within the power of the general assembly to provide that the judgments of that court might be reviewed by the supreme court upon a direct bill of exceptions.

(Syllabus by the Court.)

Error from city court of Jefferson; W. W. Stark, Judge.

Action between T. C. Lampkin and others and Essie Pike. From the judgment, Lamp-kin and others bring error. Dismissed.

Geo. C. Thomas, Brown & Randolph, and Brutus J. Clay, for plaintiffs in error.

John J. Strickland, for the State.

LUMPKIN, P. J. The defendant in error moved to dismiss the writ of error in this case, "upon the ground that a bill of exceptions will not lie from the city court of Jefferson to this court, because said city court of Jefferson is not a constitutional city court."

The general assembly has in the past enacted numerous statutes relating to Jefferson. We shall, however, in the discussion which follows, confine ourselves to those only of them which bear upon the question presented by the motion to dismiss. On August 14, 1872, an act was passed "to incorporate the town of Jefferson, in the county of Jackson, and to provide for the election of mayor and aldermen for the same, and for other purposes." This act in and of itself set forth a full and complete charter for the town. At the same session of the general assembly, on August 23, 1872, an act was passed "to incorporate the town of Jefferson, in the county of Jackson; to provide for town councilmen and intendant for the same, and for other purposes." It conferred upon the town of Jefferson corporate powers similar to those which had previously been bestowed upon "the town of Clarkesville, in the county of Habersham." The latter of these acts may be found on page 210 of the Acts of 1872, and the former begins on the same page. The obvious result of the act of August 23d was to annihilate the charter of August 14th. This charter was, however, resuscitated by an act approved February 5, 1873, which by its express terms repealed the act of August 23, 1872, and re-enacted that of August 14th. See Acts 1873, p. 149. It will thus be seen that the effect of the act of 1873 was to provide a new charter for the town of Jefferson, the provisions of which were identical with these embraced in the act of August 14, 1872.

On December 23, 1896, an act was passed "to amend an act incorporating the town of Jefferson, in the county of Jackson, approved the 14th of August. 1872, and all amendments thereof, by striking out of said act whenever it occurs, the word 'town, ' and inserting in its place the word 'city, ' so that said place of Jefferson will be incorporated as a city, and not as a town." See Acts 1896, p. 191. In the body of this act the general assembly undertook to enact the legislation indicated by its title. On November 30, 1897, an act was passed "to establish the city court of Jefferson, in Jackson county, " whereby it was declared that 'the city court of Jefferson, located in the city of Jefferson, is hereby established and created with civil and criminal jurisdiction over the whole county of Jackson." In the thirty-third section of that act the general assembly also undertook to provide that "a writ of error shall be direct from said city court to the supreme court of this state, upon a bill of exceptions filed under the same rules and regulations as govern and control the Issuing of writs of error and filing of bills of exceptions in the superior courts of this state." See Acts 1897, pp. 485, 498.

In view of the above-recited legislation, the vital and controlling question now for decision is whether or not there was, on the date of the act last mentioned, an incorporated city in the county of Jackson having the name of Jefferson. We are constrained to hold there was not The act of August 14, 1872, after its repeal by that of August 23, 1872, Teas no longer a living statute capable of being amended or modified as such. As a legislative enactment, it had simply become a dead letter, and could not properly be treated and dealt with as having any force or vitality. "The legislature has general power to amend statutes, but an amendatory act, to be valid as such, must relate to an existing statute, and not to one which is nonexistent, or has been repealed." 23 Am. & Eng. Enc. Law, 270, 277. To the same effect, see State v. Benton, 33 Neb. 823, 833, 51 N. W. 140; Draper v. Palley, 33 Ind. 465; Blakemore v. Dolan, 50 Ind. 191; Board v. Smith, 52 Ind. 420; Ford v. Booker, 53 Ind. 395; Clare v. State, 68 Ind. 17; Brocaw v. Board, 73 Ind. 543; Lawson v. De Bolt, 78 Ind. 563; Mc-Intyre v. Marine, 93 Ind. 199; Feibleman v. State, 98 Ind. 518; Hall v. Craig, 125 Ind. 529, 25 N. E. 538; Wall v. Garrison, 11 Colo. 515, 19 Pac. 469; Stingle v. Nevel, 9 Or. 62. Consequently, when the general assembly, in 1896, undertook to amend the act of August 14, 1872, by striking therefrom the word "town" wherever it occurred, and inserting in its stead the word "city, " the lawmaking power really accomplished nothing. To all intents and purposes, this act of 1872 had, in...