Park v. Candler

• Decision Date: 12 June 1901
• Citation: 39 S.E. 89,113 Ga. 647
• Parties: PARK, Treasurer v. CANDLER, Governor.
• Court: Georgia Supreme Court

39 S.E. 89

113 Ga. 647

PARK, Treasurer v. CANDLER, Governor.

Supreme Court of Georgia

June 12, 1901

Syllabus by the Court.

1. Under the provisions of paragraph 1, § 1b, art, 7, of the present constitution of this state (Civ. Code, § 5900), which declares that "the proceeds of the sale of the Western and Atlantic, Macon and Brunswick, or other railroads held by the state, and any other property owned by the state whenever the general assembly may authorize the sale of the whole or any part thereof, shall be applied to the payment of the bonded debt of the state, and shall not be used for any other purpose whatever, so long as the state has any existing bonded debt," no part of the fund derived from the sources therein mentioned can be lawfully laid out, paid out or expended in the payment of any obligation or demand due by the state, other than the bonded debt of the state, or some portion thereof; and this is true whether such disposition of the fund permanently disposes of the same, or merely applies it to some other obligation or demand temporarily, and until the taxes levied for the purposes of paying such other obligation or demand can be collected.

2. The phrase "other railroads held by the state," in the paragraph of the constitution quoted in the preceding note was intended to embrace all railroads constructed under "state aid" charters granted prior to the adoption of the present constitution, of which the state might at any time become the actual owner by reason of the seizure and sale of such railroads in consequence of default on the part of the companies constructing the same in paying the interest upon bonds indorsed by the state.

3. An act of the general assembly will never be so construed as to make it violative of the constitution, unless it is plain and manifest from the terms of the act that a construction having that effect was intended by the general assembly; and when an act is capable of two constructions, one making it violative of the constitution, and the other making it consonant therewith, the latter construction must be adopted.

4. While repeals by implication are not favored, when an act must be construed either as violative of the constitution, or as having the effect of repealing a former act by implication, the latter construction will always be adopted.

5. A warrant drawn by the governor upon the state treasurer, directing the latter to place the amount of such warrant "to the account of the school fund," is payable out of that fund, as derived from the sources authorized by the constitution and the law; and it is not only the right, but the duty, of the state treasurer to so construe such a warrant.

6. The state treasurer has no authority to pay out any money from the state treasury until there has been "an appropriation made by law," and then only upon a warrant drawn by the governor, specifying "on what appropriation or fund" it is drawn, except "for sums due to the members and officers of" the two houses of the general assembly, which may be paid on the draft of the presiding officers of the respective houses.

7. Even if an officer of the executive department of the state and the securities on his official bond will be protected from liability when he acts on the opinion of the attorney general, still such an officer will not be compelled by mandamus to do an act which would be a violation of the constitution, notwithstanding the attorney general is of opinion that such an act, would not be a violation of that instrument, and has so advised the officer upon his own application.

8. Whether the state treasurer is such a ministerial officer as would not be permitted to bring in question the constitutionality of an act of the general assembly, or is such a subordinate officer of the executive department of the state as that he will not be heard to question the authority of the governor to draw a warrant upon the treasury, are questions which, in view of the rulings made in the foregoing notes, are not involved in the present case.

9. A mandamus absolute should not be granted against a public officer, compelling him to do an act, when on the hearing of the application for mandamus it is an undisputed fact that such officer has never refused to perform the act, and in his answer avers his willingness to perform it.

1. The constitutional provision embodied in section 5900 of the Civil Code, touching the application of the proceeds of the sale of public property to the payment of the bonded debt of the state, is not prospective, and applies only to such railroads and other public property as the state owned at the time of the adoption of the constitution. It follows that as the state did not own, possess, or hold the North-eastern Railroad at that time, the $200,000 realized from the sale of that property does not constitute any part of the public fund intended by the constitution to be applied exclusively to the payment of the bonded debt.

2. When a warrant upon a fund in the treasury has been duly drawn by the governor and approved by the comptroller general, even if the treasurer has a right to question the constitutionality of the executive act in so doing, and to set up that the fund on which the warrant was drawn cannot, for the reasons mentioned, be applied to the warrant, the burden is on him to identify the specific fund in the treasury which he claims to be the proceeds of the sale of public property set apart from the general fund for the payment of the bonded debt.

Error from superior court, Fulton county; John S. Candler, Judge.

Application by A. D. Candler, as governor, for a writ of mandamus directed to R. E. Park, treasurer. Judgment for plaintiff, and defendant brings error. Reversed.

Per Lewis, J., dissenting.

Washington Dessan, Du Pont Guerry, and Orville A. Park, for plaintiff in error.

J. M. Terrell, Atty. Gen., for defendant in error.

COBB J.

The constitution of this state declares: "The proceeds of the sale of the Western and Atlantic, Macon and Brunswick, or other railroads held by the state, and any other property owned by the state, whenever the general assembly may authorize the sale of the whole or any part thereof, shall be applied to the payment of the bonded debt of the state, and shall not be used for any other purpose whatever, so long as the state has any existing bonded debt." Paragraph 1, § 13, art. 7; Civ. Code, § 5900. The fund in the state treasury derived from the sources indicated in the paragraph of the constitution above quoted has been termed the "public property fund," and, for convenience, that expression will be used to indicate such fund. The controlling question in the present case is whether, at a time when none of the public property fund is needed to pay any part of the public debt (that is, the bonded debt of the state), such fund can be applied to the payment of other obligations and demands due by the state, for the payment of which provision has been made by the levy of a tax, which has not been collected, but which, when collected, can be used to replace that part of the public property fund thus applied; the exact question in the present case being whether the public property fund can be lawfully applied temporarily to the payment of the amounts due the school authorities of the different cities and counties of the state for the pro rata due each from the sums to be collected by a tax already levied for school purposes. In other words, will the requirements of the constitution be infringed by temporarily converting the public property fund into the school fund, and then, when the school fund is collected, converting that into the public property fund? To determine this question, it is necessary to ascertain what is meant in the constitution by the word "used." The word "use" has been variously defined, as: "To employ for the accomplishment of a purpose; turn to account make use of; to treat." Stand. Dict. "To make use of; to convert to one's service; to avail one's self of; to employ; to put to a purpose." Webst. Int. Dict. "To employ for the attainment of some purpose or end; to avail one's self of; to make use of; as, to use a plow; to use a book." Cent. Dict. Whether the word "use," as employed in the constitution, should be so construed as to provide that the public property fund should be kept separate and distinct from all other funds, and should lie idle in the treasury, and not be loaned out, as is distinctly declared may be done with the sinking fund provided for in paragraph 1, § 14, art. 7, of the constitution (Civ. Code. § 5901), it is certain that the constitution means that this fund shall not be applied to the payment and discharge of any other obligation than the public debt of the state. Whatever else the word "use" may mean in the provision of the constitution above quoted, it certainly means that the public property fund shall not be laid out, paid out, or expended in the discharge of any other claim for which the state is liable. The public property fund is set apart by the constitution for a particular purpose, and it is distinctly declared that it must be applied to no other, and that purpose is the discharge of the public debt of the state. When the time arrives for the public debt, or any part thereof, to be discharged, this fund must be intact, so that it may be used for that purpose. That the setting apart of this fund for a number of years, when it is not needed to discharge the public debt, and during a time when other demands due by the state must be discharged by taxation, which demands could be temporarily met by the use of the public property fund, is an unwise policy and bad financering, is an argument which cannot be considered, in the face of a plain and unambiguous...