Sayer v. Brown
| Decision Date | 16 February 1904 |
| Parties | SAYER, Tax Collector, v. BROWN et al., County Com'rs. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The disputed questions of fact in this case cannot be considered by this court, as the evidence submitted upon the trial in the court below is neither incorporated in the bill of exceptions, nor sent up, as a part of the record, in a brief of evidence approved and made a part of the record by the trial judge.
2. Affidavits and documents offered in evidence and ruled out and amendments to pleadings offered and disallowed, form no part of the record of a case, and cannot be sent up to this court as such.
3. A mere general allegation that an act of the Legislature is unconstitutional because of the presence therein of a designated provision, without calling attention in any way to the particular provision of the Constitution with which it is claimed that it conflicts, is too vague and indefinite to invoke a decision upon the validity of the statute.
4. The act of July 30, 1903 (Acts 1903, p. 332), amendatory of the act of December 20, 1900 (Acts 1900, p. 168), creating a board of commissioners for the county of Douglas, does not violate that provision of the Constitution which prohibits the passage of any statute containing matter different from that which is expressed in the title thereof.
5. An allegation that a given statute is unconstitutional, in that it violates the constitutional provision which prohibits the passage of a special law in any case for which provision has been made by an existing general law, which fails to point out the general law which is claimed to cover the same subject as such statute, presents no question for decision by a court.
6. The above-mentioned act of July 30, 1903, did not repeal the act which it purported to amend.
7. An act creating an office may be amended by completely changing the powers and duties appertaining thereto, without destroying the office or removing therefrom the person who is lawfully filling the same.
8. The act of July 30, 1903, in question, went into effect upon its passage, except in so far as it provided for a change in the number of members of which the board of county commissioners should consist.
9. Under the powers conferred upon them by the act of July 30 1903, the county commissioners of Douglas county have authority to bring the tax collector of that county to a settlement of his accounts with the county.
10. This authority is not confined to matters in the tax collector's office which have arisen since that act was passed, but embraces any accounts of such officer which have not been lawfully settled.
11. Whether or not the board of county commissioners have the power to punish the tax collector for contempt for a failure or refusal on his part to appear before the board with the books, receipts, etc., appertaining to his office, after being notified to do so, the fact that the commissioners threatened to impose such fine upon him affords no reason for enjoining them from so doing. If they have no such power, and should impose a fine upon him and attempt to collect it, his remedy at law is ample.
Error from Superior Court, Douglas County; A. L. Bartlett, Judge.
Action by W. A. Sayer, tax collector, against J. W. Brown and others, county commissioners. Judgment for defendants, and plaintiff brings error. Affirmed.
J. S James and Roberts & Hutcheson, for plaintiff in error.
W. A. James and J. D. Kilpatrick, for defendants in error.
In considering this case we are necessarily confined to the pleadings and such facts as the allegations on the one side and the admissions on the other establish, as there is not a particle of the evidence which was introduced in the trial court, nor of that which it is alleged was offered and erroneously ruled out, properly before us.
1. An attempt has been made to send up, as parts of the record, both the evidence introduced and the evidence alleged to have been erroneously rejected. There is nothing to identify any of it as evidence which was introduced or offered upon the trial of the case. The trial judge simply certifies that the bill of exceptions "is true, and contains and specifies all of the evidence, and specifies all of the record material to a clear understanding of the errors complained of." No evidence whatever is contained in the bill of exceptions, and not an affidavit or document sent up as a part of the record is identified by the judge as evidence introduced, or evidence offered, at the hearing. Civ. Code, § 5528, provides: "If the case is not one in which a judgment on a motion for new trial is to be reviewed, the plaintiff in error *** shall incorporate in the bill of exceptions a brief of so much of the written and oral evidence as is material to a clear understanding of the errors complained of, and shall specify therein such portions of the record as are material to such understanding." Section 5529 provides: "If the plaintiff in error shall so elect, he may have such brief of so much of the evidence as is necessary to a clear understanding of the errors complained of, approved by the judge, and made a part of the record and sent up by the clerk as a part thereof, rather than have the same incorporated in the bill of exceptions." Neither of these methods of having the evidence which was introduced upon the hearing of the case sent up to this court was adopted by the plaintiff in error. No brief of the evidence was incorporated in the bill of exceptions, nor was any brief thereof approved by the trial judge and made a part of the record. Instead of pursuing either of these methods, the plaintiff in error simply specifies, as parts of the record necessary to a clear understanding of the case, various affidavits, and the clerk sends up what purport to be copies of such affidavits. As these affidavits were no part of the record originally, and were not made such by the judge in the way provided by law, the clerk could not send them up as such. There is nothing whatever which legally informs this court that they were ever used upon the hearing of the case. Indeed, we may add that the plaintiff in error does not, in his bill of exceptions, allege that they were so used, but contents himself with simply specifying them as parts of the record to be sent up by the clerk. Hancock v. McNatt, 116 Ga. 297, 42 S.E. 525, and cit.
2. Affidavits and documents offered in evidence and ruled out by the judge form no part of the record, nor could they form any part of a brief of the evidence upon which the case was tried. They should have been incorporated in the bill of exceptions. Besides, assignments of error upon the rejection or admission of evidence cannot be considered when they do not set out the evidence rejected or admitted. As this has been often decided, we simply cite the following cases: Benton v. Baxley, 90 Ga. 297, 15 S.E. 820; W. U. Telegraph Co. v. Michelson, 94 Ga. 436, 21 S.E. 169. If it was the intention of the plaintiff in error to assign error upon the ruling of the court in reference to the amendment referred to in the bill of exceptions as having been offered and disallowed, he failed to do so; and, even if he had assigned error upon such ruling, the assignment could not have been considered, because the proposed amendment is neither set out in the bill of exceptions nor attached thereto as an exhibit, but is sought to be brought up in the record, of which it formed no part. Sibley v. Mutual Reserve Fund Life Association, 87 Ga. 738, 13 S.E. 838; Barnett v. Railway Co., 87 Ga. 767, 13 S.E. 904; Moore v. Guyton, 110 Ga. 330, 35 S.E. 339.
3. The main contention of the plaintiff in error is that the persons claiming to be the county commissioners of Douglas county and acting as such are doing so without any authority of law; that the offices which they claim to fill have no legal existence in Douglas county. This contention is based upon the alleged unconstitutionality of the statute under which they were elected and the statute from which they claim to derive the power and authority which they seek to exercise. These statutes are the act of December 20, 1900 (Acts 1900, p. 168), creating a board of county commissioners for the county of Douglas, and the act of July 30, 1903 (Acts 1903, p. 332), amendatory thereof; the commissioners having been elected under the provisions of the original act, and claiming the powers conferred by the amendatory act. In the petition filed by the plaintiff each of these acts was alleged to be unconstitutional and void, but in the brief of his counsel filed in this court no allusion is made to the alleged unconstitutionality of the original act, the whole argument upon the constitutional question being directed against the amendatory act. We might, therefore, treat the allegation as to the invalidity of the act of 1900 as having been abandoned. It might well have been abandoned, as it was not made in such a way as to present any question for determination by the court. The petition alleged that this act was unconstitutional because of the presence therein of certain provisions, but failed to allege or indicate wherein the presence of such provisions renders the statute unconstitutional. A mere general allegation that an act of the Legislature is unconstitutional, without calling attention in any way to the particular provisions of the Constitution with which it is claimed it conflicts, is too vague and indefinite to invoke a decision of the court upon the validity of the statute. Jones v. Oemler, 110 Ga. 202, 35 S.E. 375; Savannah Railway Co. v. Hardin, 110 Ga. 437, 438, 35 S.E. 681; Laffitte v. Burke, 113 Ga. 1000, 39 S.E. 433.
4. One ground upon which the constitutionality of the act of July...
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