Sumter County v. Allen
| Decision Date | 12 November 1941 |
| Docket Number | 13937,13941. |
| Citation | 17 S.E.2d 567,193 Ga. 171 |
| Parties | SUMTER COUNTY v. ALLEN, Court Clerk. ALLEN, Court Clerk, v. SUMTER COUNTY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. By section 1 of the act of the General Assembly approved March 2, 1933, Ga.L.1933, p. 238, it was declared: 'That in all counties of this State having a population of twenty-six thousand seven hundred fifty (26,750) to twenty-seven thousand seven hundred fifty (27,750) inhabitants, inclusive according to the United States census of 1930 or according to any subsequent United States census, the fee system of compensating the clerk of the superior court for all his services as such clerk, and as clerk of any other court in this State in said counties, is hereby abolished; and the said clerk shall hereafter be paid a salary as herein provided, in lieu of all fees paid said clerk under the fee system.'
2. On proper construction of the foregoing statute, it was not intended to apply to any county which according to the last preceding United States census does not have a population within the prescribed limits.
3. In the instant suit by Sumter County for the writ of mandamus to compel the clerk of the superior court of that county and of the city court of Americus to continue filing monthly statements and to pay into the county treasury the fees received by him, as he had done for several years in accordance with such statute before the year 1941, it appearing from the allegations that according to the Federal census of 1940 the population of the county fell below the prescribed minimum, the petition showed upon its face that the act of 1933, supra, did not apply to Sumter County at the time the suit was filed, April 11, 1941; and for this reason it was not error to sustain the general demurrer and dismiss the action.
In 1933 the General Assembly passed an act which in section 1 declared: 'That in all counties of this State having a population of twenty-six thousand seven hundred fifty (26,750) to twenty-seven thousand seven hundred fifty (27,750) inhabitants, inclusive, according to the United States census of 1930 or according to any subsequent United States census, the fee system of compensating the clerk of the superior court for all his services as such clerk, and as clerk of any other court of this State in said counties, is hereby abolished; and the said clerk shall hereafter be paid a salary as herein provided, in lieu of all fees paid said clerk under the fee system.' Approved March 2, 1933. Ga.L.1933, p. 238. Other sections required the authorities of each such county to fix a salary not less than $4,000 per annum in lieu of fees, and declared that all fees and emoluments accruing to the clerk should be received and held by him for the sole use of the county or of the State of Georgia according to the service rendered, and be paid monthly 'to the said county or State treasury, as the case may be, with an itemized statement verified by the said clerk, showing such collection and the source from which collected, which said statements shall be kept as permanent records of said county or State.' §§ 2, 6.
On April 11, 1941, Sumter County instituted an action against H E. Allen as clerk of the superior court of that county and of the city court of Americus, seeking a mandamus to require the clerk to comply with the foregoing statute. The clerk filed a demurrer, and an answer. His original demurrer contained grounds numbered 1 to 5 inclusive, to which a ground numbered 3A was added by amendment. The plaintiff demurred to the answer both generally and specially. The judge sustained all grounds of the defendant's demurrer as amended, except grounds 3A and 5; overruled the plaintiff's demurrer on all grounds, except one ground of special demurrer which he sustained in part; dismissed the petition for mandamus, and denied a mandamus absolute. The plaintiff excepted, and the defendants sued out a cross-bill of exceptions.
In the petition it was alleged: At the time of the passage and approval of said act Sumter County had a population as in said act provided, and immediately following the passage and approval of said act H. E. Allen, who was then clerk and has been clerk since said time, acquiesced in the provisions of said act, complied with same, and continued to comply with the provisions of same up to the first day of January, 1941. On January 30, 1941, H. E. Allen, as clerk of the superior court of Sumter County, Georgia, gave written notice to the commissioners of roads and revenues of Sumter County, Georgia, through its chairman, that because the population had fallen below the minimum named in said act, he was no longer bound by the provisions of said law, and he would therefore decline to comply with the provisions thereof as of January 1, 1941. A copy of the notice, signed by the clerk and his deputy, was attached as an exhibit, and contained among others the following statement: 'Irrespective of whether the act was, or was not, valid in its inception, it being by its terms a revolving act, and the population of the county having, as shown by the United States census of 1940, fallen below the minimum population prescribed by the act, we feel that we are no longer bound to its salary provisions.' The petition contained no denial of this statement as to the population by the census of 1940. It prayed for mandamus requiring the clerk to continue filing monthly statements and to pay all fees and emoluments into the treasury of Sumter County.
Grounds 1 and 2 of the defendant's demurrer were: (1) 'That the allegations of the petition do not justify the relief prayed for;' (2) 'that the petition sets forth no cause of action.' Grounds 3, 3A, and 4 assailed the act of 1933 as violating the constitutional provision against enactment of a special law in any case for which provision has been made by an existing general law (Const. art. 1, § 4, par. 1; Code, § 2-401), and the uniformity provision contained in Const. art. 9, § 3, par. 1, Code, § 2-8401; ground 4 referring also to an act passed in 1941, amending the act of 1933 by striking the words 'or any subsequent United States census.' Ga.L.1941, p. 493. Ground 5 of the demurrer was in part as follows: 'Because the act of 1933 could only be designed as a rotating act, and by the census of 1940 Sumter County is without the terms of the class named in said act.'
The main bill of exceptions challenged the judgment so far as it sustained any of these grounds of demurrer, and also assigned as error the overruling of the plaintiff's demurrer to the answer. The cross-bill of exceptions complained that it was error to overrule grounds 3A and 5 of the defendant's demurrer, as amended.
Dykes, Bowers & Dykes, of Americus, for plaintiff in error.
Hubert F. Rawls, of Nahunta, for party at interest, not party to record.
R. L. Maynard, R. L. LeSueur, W. E. Smith, and Fort & Fort, all of Americus, for defendant in error.
We consider first the main bill of exceptions.
It is a well-established rule of judicial procedure that the constitutionality of a statute will not be decided, if the case can be properly determined without deciding such question. Georgia Power Co. v. Decatur, 173 Ga. 219(3), 159 S.E. 863; Moore v. Bell, 186 Ga. 583(2), 198 S.E. 711. It is also the rule that if a statute is reasonably susceptible of two constructions, one harmonizing it with the constitution and the other rendering it unconstitutional, the former construction is generally to be preferred. Smith & Co. v. Evans, 125 Ga. 109, 112, 53 S.E. 589; Fordham v. Sikes, 141 Ga. 469, 81 S.E. 208. In the instant case we are of the opinion that, regardless of its constitutionality, a proper construction of the act of 1933, Laws 1933, p. 238, required the judgment sustaining the general demurrer and dismissing the action. The question as to construction is whether the act applied to Sumter County after its population fell below 26,750 according to the United States census of 1940. While the question was raised by ground 5 of the demurrer and that particular ground was overruled, it also inhered in grounds 1 and 2, contending in general terms that the petition did not state a cause of action, both these grounds having been sustained.
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