Phinizy v. Eve

• Decision Date: 24 July 1899
• Citation: 33 S.E. 1007,108 Ga. 360
• Parties: PHINIZY et al. v. EVE. EVE v. PHINIZY et al.
• Court: Georgia Supreme Court

33 S.E. 1007

108 Ga. 360

PHINIZY et al. v. EVE.

EVE v. PHINIZY et al.

Supreme Court of Georgia

July 24, 1899

1. The forty-first section of Act Sept. 22, 1881, establishing a city court in the county of Richmond, which provides that the judge thereof shall be ex officio commissioner of roads and revenues of that county, is not open to attack on the ground that it seeks to confer upon a judicial officer legislative functions, and is therefore violative of that paragraph of the constitution which declares that "the legislative judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided." Civ. Code, § 5720.

2. Nor is that section contrary to either of the constitutional provisions below quoted. viz.: "Whatever tribunal, or officers, may hereafter be created by the general assembly for the transaction of county matters, shall be uniform throughout the state, and of the same name, jurisdiction and remedies, except that the general assembly may provide for the appointment of commissioners of roads and revenues in any county." "Laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law." Civ. Code, §§ 5732, 5930.

Syllabus by the Court.

Error from superior court, Richmond county; E. L. Brinson, Judge.

Quo warranto by Jacob Phinizy and others against William F. Eve. From the judgment, both parties bring error. Judgment on main bill of exceptions affirmed; cross bill of exceptions dismissed.

E. B Baxter and Bryan Cumming, for plaintiffs.

Frank H. Miller, J. R. Lamar, Boykin Wright, and C. Henry Cohen for defendant.

LUMPKIN P.J.

1. The judge of the city court of Richmond county is, of course, a judicial officer. The forty-first section of the act of September 22, 1881 (Acts 1880-81, p. 582), reads as follows "The judge of said city court shall be ex officio commissioner of roads and revenues for the county of Richmond, and as such shall discharge all the duties formerly devolved upon the justices of the inferior court as to county business." It may, for the purposes of this discussion, be assumed that the general assembly intended to impose upon this official in his judicial capacity the duties indicated. Still, we do not think this section of the act in question undertakes to confer upon the judge of the city court any legislative power, an attempt to do which would, without doubt, be repugnant to the paragraph of the constitution copied in the first headnote, and which is now embraced in section 5720 of the Civil Code. The position taken by counsel for the plaintiffs in error, who sought by quo warranto proceedings to prevent Judge Eve from discharging the duties of county commissioner, is that he exercises a taxing power, which is purely a legislative function, and therefore one which cannot be constitutionally conferred upon a judicial officer. Granting that the power to tax is exclusively of a legislative character, we have, without serious difficulty, reached the conclusion that Judge Eve is not exercising such a power. If the rate of county taxation was the same in every county of the state, and was fixed by an act of the general assembly, it would be readily admitted that in levying the tax the judge would be performing a purely ministerial duty. It is argued, however, that he fixes the rate, and in so doing necessarily does something which is legislative in its nature. In determining what the rate shall be in a given year, the judge has before him the tax digest, showing the gross amount of taxable property in Richmond county. This is furnished to him by the receiver of tax returns. He also has before him figures representing the several sums which it will be necessary to raise for the purpose of paying all the different charges for which the county will be liable...