Speer v. Martin

• Decision Date: 14 January 1927
• Docket Number: 5396.
• Citation: 136 S.E. 425,163 Ga. 535
• Parties: SPEER, State Treasurer, et al. v. MARTIN et al.
• Court: Georgia Supreme Court

136 S.E. 425

163 Ga. 535

SPEER, State Treasurer, et al. v. MARTIN et al.

No. 5396.

Supreme Court of Georgia

January 14, 1927

Syllabus by the Court.

The judge erred in enjoining the Treasurer of the state from paying mileage as involved in this case.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Petition by C. D. Martin and others against W. J. Speer, State Treasurer, and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Hill and Gilbert, JJ., dissenting.

Geo. M Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for plaintiffs in error.

McElreath & Scott, of Atlanta, for defendants in error.

RUSSELL C.J.

There is only one question presented in this case, whether the judge of the superior court erred in rendering the judgment sought to be reviewed, which restrained the Speaker of the House and the President of the Senate from certifying and approving the per diem of the members of the General Assembly at the extraordinary session which convened on March 19 1926, and adjourned April 12, 1926. It is my opinion that the three co-ordinate branches of our state government are so completely independent each of the other that the judicial department of the government cannot interfere with any provision made by the legislative branch of the government which the General Assembly may deem to be necessary as expenses in discharging its duties of legislation. The question is not raised that the mileage is in an amount in excess of that allowed by the Constitution, but this proceeding merely seeks to determine under what circumstances such mileage may be allowed by the proper committees and presiding officers of the General Assembly. I think that the judge, in granting the injunction, exercised a power not conferred upon the courts, to wit, that of in a sense supervising the expenditures of the General Assembly for the conduct of its business of legislation.

Judgment reversed.

All the Justices concur, except HILL and GILBERT, JJ., dissenting.

BECK, P.J., and ATKINSON, J., concur in the judgment of reversal, being of the opinion that, upon a construction of article 3, § 9, paragraph 1, of the Constitution of Georgia (Civil Code of 1910, § 6454), members of the General Assembly are entitled to mileage for attendance upon an extra session of the Legislature, just as they would be for attendance upon a regular session, and, the session in question here being an extraordinary session called by the Governor, they were entitled to receive the mileage to and from their respective homes, whether or not they actually traveled, and that the court below erred in enjoining the payment of the same, and that to this extent the judgment of the trial court should be reversed.

HINES, J.

I concur in the result of the judgment of reversal for this reason: Whether the members of the General Assembly are entitled to mileage for attending the extra session of the Legislature is a question for determination by that body, and is not a question for judicial determination. Skrine v. Jackson, 73 Ga. 377; 126 J. 878, § 381. By law the compensation due to the members of the General Assembly must be certified by the President and Speaker, respectively, upon the report of the auditing committee, to the Treasurer, who afterwards shall pay each member who presents his accounts duly audited. Civil Code 1910,§ 354. By this statute a method is provided for determining what compensation including per diem, is due to the members of the General Assembly. This statute establishes a special tribunal for the determination of the matter in question. There certainly should be no judicial interference with this method and this tribunal before any action is taken by this special tribunal, by assuming that it will certify per diem to which members are not entitled under the Constitution.

GILBERT J. (dissenting).

This case presents a degree of novelty, as is shown by the fact that no case in any state has been found which deals with the precise question. The states differ in their provisions for compensation of legislators, some making special provisions for extraordinary sessions and limiting mileage. Index-Digest State Constitutions, 898 et seq. It is certain that it has not previously been the subject of litigation in this state. As I view the principles involved, it is impossible for me to concur in the judgment of reversal, and the importance of the subject is my excuse for presenting this dissent. It is declared by two of the Justices that this is a political question, and therefore that this court has no jurisdiction (citing Skrine v. Jackson, 73 Ga. 377); that a special tribunal, consisting of the President of the Senate and the Speaker of the House, respectively, upon the report of the auditing committee, have been provided by statute to determine what compensation is due to members of the General Assembly. Civil Code 1910, § 354. The Skrine Case dealt with the power of the courts to interfere with legislative power delegated to the ordinary to declare the result in an election in favor of or against a fence. If this were a question of legislative policy of delegating such power, it would fall under the Skrine Case; but we are not dealing with the question of whether the Legislature should delegate certain powers to the ordinary, nor with the policy of referendum. Such questions are not justiciable. For a full discussion of this question, see Green v. Atlanta, 162 Ga. 641, 135 S.E. 84. At a very early date in the history of this court, when it was composed of Judges Lumpkin, Warner, and Nisbet, in the case of Beall v. Beall, 8 Ga. 210, the court dealt with the fundamental question of the respective powers and relationships of the three departments of government. It was there said:

"Measures, exclusively of a political, legislative or executive character, are not examinable by the courts. In such case, the remedy for any real or supposed abuse, is solely by appeal to the people, at the elections."

The court also said:

"The General Assembly of this state has power to make all laws and ordinances which they shall deem necessary and proper 'for the good of the state,' provided they are not repugnant to the Constitution of the United States, the laws of Congress, passed pursuant thereto, public treaties and the Constitution of the state."

This was not the declaration of a new principle. It had been recognized from the beginning of our government. Our present Constitution declares:

"Legislative acts in violation of this Constitution, or the Constitution of the United States, are void, and the judiciary shall so declare them." Civil Code 1910, § 6392.

This provision, in one form or another, has been embraced in every Constitution in the history of this state-those of 1777, 1789, 1798, 1861, 1865, 1868, and 1877. McElreath on the Constitution of Georgia, §§ 245, 317, 373, 456, 561, 681, and 850. The provincial Congress of Georgia, on April 15, 1776, proclaimed a temporary Constitution, which provided:

"That all laws, whether common or statute, and the acts of Assembly which have formerly been acknowledged to be of force in this province, and which do not interfere with the proceedings of the continental or our provincial Congresses, and also all and singular the resolves and recommendations of the said continental and provincial Congress, shall be of full force, validity, and effect until otherwise ordered." McElreath on the Constitution of Georgia,§ 52(4).

Thus it will be seen that the legislative department was never without constitutional limitation.

The General Assembly formally passed an act making an appropriation with which "mileage" could be paid. Mileage could not otherwise be paid by the Treasurer. The act is found in Georgia Laws, Extraordinary Session 1926, p. 8 approved April 10, 1926. Petitioner alleges, on information and belief, that the Speaker...