The Macon And Augusta R.R. Co. v. Little

• Citation: 45 Ga. 370
• Parties: THE MACON AND AUGUSTA RAILROAD COMPANY, plaintiff in error. v. FRANK L. LITTLE, executor, defendant in error. JACKSON B. JOHNSON, administrator, plaintiff in error. v. R. STOKES SAYRE et al., defendants in error.
• Decision Date: 31 January 1872
• Court: Supreme Court of Georgia

45 Ga. 370

THE MACON AND AUGUSTA RAILROAD COMPANY, plaintiff in error. v. FRANK L. LITTLE, executor, defendant in error. JACKSON B. JOHNSON, administrator, plaintiff in error. v. R. STOKES SAYRE et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1872.)

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Constitutional Law. Reconstruction complete. Expiration of Provisional Government. Relief Act of 1870. Obligations of contracts. Tax-affidavit. Tried before Judge Andrews. Hancock Superior Court. October Term, 1871.

The first of these cases was an action of assumpsit by the Macon and Augusta Railroad Company against Frank L. Little, as executor upon the estate of T. H. Andas, deceased, for a subscription to the capital stock of said company, made by said Andas when in life, at some time prior to June 1st, 1865, the date not appearing upon the record. When said cause was called for trial, a motion was made to dismiss the same, because no affidavit had been filed of payment of taxes under the Relief Act of 1870, which motion was sustained by the Court, the case dismissed, and plaintiff excepted.

The second case arose upon a bill filed by Jackson B. Johnson, as administrator of James Thomas, deceased, de bonis non, cum testa-mento annex, v. R. Stokes Sayre et al., asking direction as to whether he should pay anything on such debts as appeared to have arisen prior to June 1st, 1865, unless accompanied by affidavits of the payment of the taxes. The said administrator moved to dismiss said claims when *presented, upon the ground that no tax-affidavit had been filed, which motion was overruled by the Court upon the ground that said claims were not in suit, to which ruling complainant excepted.

B. H. Hill, Esq., and Henry L. Benning, Esq., having appeared in Court and stated that they represented interests which would be materially affected by the decision of the principles involved in this case, were allowed to be heard.

R. Toombs; C. W. Dubose; Linton Stephens, against the constitutionality of the Relief Act of 1870.

B. H. Hill; Henry L. Benning; Frank L. Little, contra.

MONTGOMERY, Judge.

In these cases the Act of October 13th, 1870, commonly known as the Relief Act, is attacked, mainly on two grounds: 1st. It is said to be invalid because the session of the Legislature at which it was passed was not a session of the General Assembly, after the second under the Constitution, and that, at the time of the passage of the Act, that Legislature had been in session more than forty days without having prolonged the session by a vote of two-thirds of each House. 2d. That the Act impaired the obligation of all contracts made prior to June 1865, and is, therefore, repugnant to the tenth section of Article I. of the Constitution of the United States. It is impossible to consider intelligently the first question made without reviewing the so-called Reconstruction Acts of Congress, and ascertaining to what extent Courts are now compelled to recognize the results of those unconstitutional and revolutionary measures as facts accomplished, and which are now beyond the remedial power of the Courts.

1. Before entering upon that discussion, it becomes necessary to fix, with some degree of precision, the import of that clausein our State Constitution, which says "no session of *the General Assembly, after the second under this Constitution, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof." Does this mean no session of the General Assembly, after the second session under this Constitution, or no session of the General Assembly after the second General Assembly under the Constitution? If "General Assembly" is to have the same relative meaning under the Constitution of Georgia that "Congress" is understood to have under the United States Constitution, then the latter is perhaps the correct reading.

The Congresses of the United States are regularly numbered, and each has two regular sessions. The last clause of the sentence which we are considering, would seem to strengthen this view, "unless prolonged by a vote of two-thirds of each branch thereof." Does this mean unless prolonged by a vote of two-thirds of each branch of the session? The question is debatable, it is not necessary to decide it. It may be dismissed with the general remark that, our General Assemblies are elected every two years, and organized at their first session for the entire period for which they are elected, but each holds a regular session annually. If the reading here intimated, as possibly the proper one be correct, this disposes of the question at once. No one pretends that the Legislature of 1870 was a General Assembly after the second under the Constitution of 1868. But suppose the word "session" is to be understood after the word second, in the clause under review, what, then, is meant by the words "under this Constitution"? A brief retrospect at the anomalous circumstances by which the Convention of 1868 was surrounded, explains the meaning to my mind, at least, very clearly.

By the Act of March 2d, 1867, the first of the reconstruction measures, five conditions precedent were required to be complied with before military rule should cease in the States "lately in rebellion." These have been correctly stated to be, 1st, The formation of a State Constitution; 2d, The approval *of that Constitution by Congress; 3d, The ratification of the fourteenth amendment; 4th, The declaration by Congress that the State is entitled to representation; and, 5th, The final Act of recognition—the admission of Senators and Representatives, on their taking the oath prescribed by law. Section sixth of the Act then provides, "that until the people of the said rebel States shall by law be admitted to representation to the Congress of the United States, the civil governmentsthat may exist therein shall be deemed provisional only, and shall be in all respects subject to the paramount authority of the United States any time to abolish, modify, control and supersede the same."

Article XI., sections nine and eleven of the Constitution of Georgia, fully recognizes the provisional nature of the government then forming, and that it was to remain so until otherwise declared by Congress. It is also matter of history that the Convention which framed that Constitution assembled under, and recognized the validity of the Act of March 2d, 1867. It is further matter of history that our laws were well nigh in a state of chaos, resulting from the disastrous termination of the war, and the Reconstruction Acts of Congress. Such being the condition of things during the session of the Convention of 1868, is it not obvious that they meant to make the first two sessions of the General Assembly (so to read the Constitution) of indefinite duration, in order to give them full time to bring order out of chaos, and to reconcile an unwilling people to a government forced upon them by the bayonet? It so seems to me. But will it be said that they meant that a Provisional Legislature should undertake this arduous work? Even supposing they had been permitted to finish such a work, by the very terms of the Act under which the new government as called into being, all their labor might have been lost by having the system established by them abolished, modified, controlled or superseded by the order of a military commander, or by Act of Congress. Can it be supposed that the Convention had so *little foresight as this? With great deference to adverse opinions, it seems to me impossible. When that part of the Constitution now under review was first reported to the Convention it read as follows: "The first meeting of the General Assembly shall be within.........days after the adjournment of this Convention, etc. * * * No session of the General Assembly, after the first above mentioned, shall continue longer than forty days, etc.: Journal of Convention of 1868, page 122. It was amended by striking out the words "first above mentioned" and inserting "second under this Constitution: " Ibid., page 318. This, perhaps, militates against the reading first suggested in this opinion. But it indicates much more strongly that the Convention contemplated meetings of the General Assembly held under some other authority than that of the Constitution.

I conclude, therefore, that the language used in the Constitution contemplated that there would be one or more sessions of the General Assembly under the Reconstruction Acts and the military commander, provisional in their character, and that the sessions of the General Assembly to be held "under this Constitution" were the sessions to be held after the iron hand of a hostile and despotic government had been withdrawn from the control of the State government. But it is said that the government was not provisional after the withdrawal of the military control over the State, in July, 1868, by General Orders, No. 55, Adjutant General's office, and General Orders, No. 103, Headquarters Third Military District, July 22d, 1868, issued by General Meade, and that this Court has decided that the State had fully complied with the Reconstruction Acts on July 21st, 1868, in Foster v. Daniels, 39 Georgia, 39. The question in that case was, when did the County Courts cease, which depended upon, when did the Constitution go into operation. If, as I think I have shown, the Constitution went into provisional operation, before it became permanent, by permission of Congress, Foster v. Daniels cannot affect the question *now before the Court. But, unfortunately, neither the Military Department nor the Supreme Court of Georgia was the proper judge of this matter. General Terry, General Meade\'s successor, thought the State had not, and recommended that the President should countermand those orders. It was done. He further recommended that members of the Legislature, elected under General Meade, should be called together as a...