Smith v. McMichael

• Decision Date: 24 October 1947
• Docket Number: 15893.
• Citation: 45 S.E.2d 431,203 Ga. 74
• Parties: SMITH et al. v. McMICHAEL et al.
• Court: Georgia Supreme Court

45 S.E.2d 431

203 Ga. 74

SMITH et al. v. McMICHAEL et al.

No. 15893.

Supreme Court of Georgia

October 24, 1947

Rehearing Denied Nov. 14, 1947. [Copyrighted Material Omitted]

Williams & Freeman, of Forsyth, for plaintiffs in error.

W E. Watkins and Benjamin B. Garland, both of Jackson, for defendants in error.

Syllabus Opinion by the Court.

JENKINS Chief Justice.

1. Any taxpayer of a county has the right to apply to a court of equity to prevent the county commissioners from making contracts which they have no authority to make. Mitchell v. Lasseter, 114 Ga. 275, 281, 40 S.E. 287; Dancer v. Shingler, 147 Ga. 82(2), 92 S.E. 935; see also Smith v. Magourich, 44 Ga. 163; Keen v Waycross, 101 Ga. 588, 29 S.E. 42; Wells v. Ragsdale, 102 Ga. 53(7), 29 S.E. 165; Mayor of Macon v. Hughes, 110 Ga. 795, 804, 36 S.E. 247.

(a) In the instant case the authority of the county commissioners to enter into the contracts complained of is derived from the act of the General Assembly, Ga.L.1946, p. 239 et seq., which is sought to be declared invalid. Should such contracts be invalid for want of authority in the commissioners to make the same, it would entail upon the county expense and loss in resisting the efforts of those who might claim under them. Accordingly, under the foregoing ruling, citizens and taxpayers of the county have such an interest in the validity of the act as to authorize the instant action attacking its validity on constitutional grounds.

2. Art. III, sec. VII, par. XV, of the new constitution of 1945 provides as follows: 'No local or special bill shall be passed, unless notice of the 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 introduction into the General Assembly. No local or special bill shall become law unless there is attached to and made a part of said bill a copy of said notice certified by the publisher, or accompanied by an affidavit of the author, to the effect that said notice has been published as provided by law.'

(a) The old constitution of 1877 contained a provision in general terms requiring publication as to notice, art. III, sec. VII, par. XVI. Code, § 2-1816. The specific requirement was fixed by statute, which required publication and posting of the notice on the courthouse door. Under the old rule it was only necessary to exhibit to the General Assembly a copy of the newspaper in which the notice was published, together with a certificate from the ordinary or mayor of the town or city showing that such notice had been posted. Therefore, under the law as it existed under the old constitution, it was a settled rule that a properly enrolled act of the General Assembly was conclusively presumed to have been enacted in accordance with all constitutional requirements, and it was not permissible to show to the contrary. However, unless for some reason the old and not the new laws as to publication and proof of notice should apply, the conclusive presumption just stated cannot be given application, since in the new law the proof of notice speaks for itself, with the result that under the new law the record of the bill as enrolled provides its own proof as to the prescribed notice, and there is no room for any presumption or other form of proof.

3. Art. III, sec. IV, par. III of the new constitution of 1945, Code, Ann.Supp. § 2-1603, provides in part as follows: 'All business pending in the Senate or House at the adjournment of any regular session may be considered at any later regular session of the same General Assembly as if there had been no adjournment.' This provision of the constitution does not appear to have any bearing upon the present case since the bill here involved was introduced at the session of the General Assembly of 1945 and was passed at the same session carried over by joint resolution to 1946.

It is, however, the contention of the plaintiff in error that the above-quoted provision has the effect of preserving the status of all local bills pending in the General Assembly at the time of the adoption of the new constitution; and that, since the local bill here under attack was pending at such time, the form of notice and the method of proving that such notice had been published would be controlled by the law as it existed at the time the bill was introduced, rather than by the method provided for in the constitution of 1945, and that therefore, under the rules of law respecting proof of notice under the old law, it must be conclusively presumed that the form of notice required by the old law had actually been given.

Both the old and the new methods providing for giving notice and showing compliance therewith are merely procedural. It is not contended that there is any inhibition in the Federal constitution which would prevent the sovereign people of this State from changing, either by constitutional provision or by statute, procedural matters as to the method of giving notice or proving notice, so as to have application to legislation legally pending at the time of the change. It is not contended that any property rights were thereby affected or any personal privileges abridged; and since the bill here under consideration was actually passed after the adoption of the new constitution, it is only necessary to see whether the new provision did in fact provide that the new procedure should apply as to pending bills, and what it is that the new procedure requires. It seems plain to us that, when the new constitution provides that no local or special bill shall become law unless the new stated provision is complied with, it means just that, and it devolves upon us only to determine what this new requirement means.

4. It is conceded by counsel for the plaintiff in error that the enrollment of the bill here under attack did not have incorporated therein a copy of the advertisement with either a certificate of the publisher, or an affidavit of the author showing publication, as provided by law. An enrolled bill as prepared in the office of the clerk is simply an exact copy of what remains of the original bill as introduced by its author after such alterations and amendments as the legislature may adopt. It is the final form and substance, and it alone becomes law when duly signed by the presiding officers of the General Assembly and approved by the Governor. Any portion of what was originally introduced that is eliminated by the legislature before final approval of the enrolled bill is no part of the law. If the notice and proof thereof required by the constitution to be made a part of the bill is for any cause eliminated by the legislature before final approval of the enrolled bill, it is no part of the law. It is further contended, however, that even under the new constitution it is not required that evidence of compliance with the law as to publication of notice be incorporated within the errollment of the bill, but instead it is only the original bill which must show such evidence of compliance; and that, since the enrollment is properly signed by the president of the Senate, the speaker of the House, and was subsequently signed by the Governor, whereupon it became an act, it is contended that it must therefore be conclusively presumed that the requirements of the new law as to notice had been complied with, and that evidence of such compliance was in fact attached to or accompanied the original bill.

(a) With respect to local bills, the constitution provides that no local bill shall be passed until the prescribed advertisement with respect thereto has been had. It further provides that 'No local or special bill shall become law unless there is attached to and made a part of said bill a copy of said notice certified by the publisher, or accompanied by an affidavit of the author, to the effect that said notice has been published as provided by law.' This simply means that the required notice which must be attached to the bill becomes a part thereof either when copy of publication is certified by the publisher or proven by affidavit of the author. In either case the notice as thus proven becomes an integral part of the bill itself and as such must be embodied within the enrollment of such bill. That such was clearly the intent of the commission proposing the new constitution, is shown by the published minutes of their proceedings, Vol. 1, p. 354 of the Records of the Constitutional Commission, 1943-44, shows the following colloquy after the proposal had been read: 'Chairman Arnall. Any discussion of it? If not, Mr. Harris moves the adoption of paragraph XV. Judge Candler, Wouldn't it be better to require the author of the bill to make the affidavit, and would it not be better to provide the affidavit shall become a part of the journal? Chairman Arnall. If it becomes a part of the bill, as this provides, then it would be published in the acts as a part of the law. Judge Candler. The affidavit would? Chairman Arnall. Yes, it would be a component part of the law. It would be a part of it and would have to be published. Isn't that your understanding? Mr. Harris. Yes, sir. Chairman Arnall. Any further discussion? The question is on the adoption of paragraph XV of section VII of article III of the committee report, which will become paragraph XV, section VII, article III of the proposed new constitution. Mr. Harris moves its adoption. Judge Candler seconds the motion of the gentleman who is chairman of the subcommittee. Is there any discussion? If not, the question is on the adoption of paragraph XV, section VII, article III, as read. It will be ordered adopted in the absence of objection. Is...