Thomas v. MacNeill

• Decision Date: 15 January 1946
• Docket Number: 15326,15335.
• Citation: 37 S.E.2d 705,200 Ga. 418
• Parties: THOMAS v. MacNEILL. MacNEILL v. THOMAS.
• Court: Georgia Supreme Court

37 S.E.2d 705

200 Ga. 418

THOMAS v. MacNEILL.

MacNEILL v. THOMAS.

Nos. 15326, 15335.

Supreme Court of Georgia

January 15, 1946

Rehearing Denied Feb. 21, 1946.

Syllabus by the Court.

Under the provisions of the constitution of Georgia, as amended (article 6, section 13, paragraphs 1 and 2 according to the arrangement and numbers existing at the time the instant case arose), the board of commissioners of roads and revenues of Fulton County were authorized at their discretion to reduce the supplemental sums payable from the county treasury to the judges of the superior court of that county, although such reduction was ordered during the term of a judge affected and after a higher sum from the county had been directed by resolution of the county commissioners at a previous session. Accordingly, the trial judge did not err in refusing a mandamus absolute and in dismissing the petition on the facts stated.

Mrs. E. D. Thomas, widow and executrix of her husband, the late E. D. Thomas, instituted in Fulton superior court a mandamus proceeding against Mrs Mabel Abbott MacNeill, treasurer of Fulton County, seeking to compel the payment of certain salary which she alleged was due because of the services of her husband as a judge of the superior court of Fulton County. The petition alleged that Judge Thomas was elected for a term beginning January 1 1929, and expiring December 31, 1932. Prior to his term, the board of commissioners of roads and revenues of Fulton County, hereinafter called 'county commissioners,' under authority of article 6, section 13, paragraph 1 of the constitution of Georgia, as amended, by resolution supplemented the salary received from the State by adding thereto $7000 per year. On January 9, 1931, the county commissioners by resolution 'ordered that the salary, as paid by Fulton County for all judges of the superior court of Fulton County, be fixed at $583.33 per month, for and during the year 1931, and that such salaries be considered as fixed for the term of office of each judge.' Thereafter, during the term of Judge Thomas and in the years 1931 and 1932, the county commissioners by resolutions attempted to reduce the amount payable from the county and thereby withheld, according to the contention, $3166.65 from the salary of said judge. The respondent treasurer filed demurrers to the petition, one ground of demurrer asserting that no cause of action was set out. Subject to her demurrers, the respondent filed her answer. The petitioner filed demurrers to the answer, and to the answer as amended. The substantial allegations of fact in the petition were undisputed, but the respondent treasurer denied that those facts entitled the petitioner to the relief sought. All the issues were heard together by the trial judge, on the pleadings, and without a jury, and he refused a mandamus absolute and dismissed the petition. Certain other rulings were made, and exceptions preserved thereon, some of which were brought to this court by the petitioner in the lower court, in a main bill of exceptions, and others by a cross-bill of exceptions filed by the respondent treasurer. Under the view which this court takes of the case, as stated in the following opinion, it is unnecessary to set out in this statement of facts the other rulings mentioned.

James O. Branch and Thomas B. Branch, Jr., both of Atlanta, for plaintiff in error.

W. S. Northcutt and E. Harold Sheats both of Atlanta, for defendant in error.

CANDLER Justice (after stating the foregoing facts).

Provision for the payment of salaries of judges of the superior courts was made in the State constitution of 1877 under article 6, section 13, paragraph 1, which originally read as follows: 'The Judges of the Supreme Court shall have, out of the Treasury of the State, salaries not to exceed three thousand dollars per annum; the Judges of the Superior Courts shall have salaries not to exceed two thousand dollars per annum; the Attorney-General shall have a salary not to exceed two thousand dollars per annum; and the Solicitors-General shall each have salaries not to exceed two hundred and fifty dollars per annum; but the Attorney-General shall not have any fee or perquisite in any cases arising after the adoption of this Constitution; but the provisions of this section shall not affect the salaries of those now in office.' The salaries of judges of the superior courts in certain judicial circuits were sought to be increased to $5000 per annum, by statutes, particularly by an act approved August 6, 1904, Ga.L.1904, p. 73, as amended by an act approved August 15, 1905, Ga.L.1905, p. 100, and later by an act approved July 31, 1906, Ga.L.1906, p. 56. Said act as amended, among other things, declared: 'That the judges of the superior courts of all the judicial circuits, which are now or may hereafter be established in this State, having therein a city with a population of not less than 34,000 inhabitants, according to the United States census of 1900, shall receive a salary of five thousand dollars per annum, the difference in amount between the sum paid said judges out of the treasury of the State, and said five thousand dollars to be paid out of the treasury of the counties in which said cities are located, as other court expenses of said counties are paid; provided, that the provisions of this Act shall not affect the salaries of such judges as are now in commission.' Relying upon the purported increase of salary provided in said act as amended, the judge of the superior courts of the Augusta Circuit instituted a suit for the writ of mandamus against the treasurer of Richmond County to compel the payment of the portion of the salary alleged to be due by the county. The county treasurer attacked the statute as amended on the ground that it was in violation of article 6, section 13, [200 Ga. 421] paragraph 1 of the constitution of Georgia , because under that provision of the constitution salaries of the judges of the superior courts were required to be paid out of the treasury of the State exclusively, and the legislature was prohibited from making any part of the salary chargeable upon the county treasury. After the grant of a mandamus absolute, the county treasurer excepted, and the case was decided by the Supreme Court of Georgia on July 14, 1910, as Clark v. Hammond, 134 Ga. 792, 68 S.E. 600, 601, 603, where, after an elaborate discussion of the history of the payment of salaries of judges of the superior courts, this court held: 'Under a proper construction of the Constitution the salaries of the judges of the superior courts are payable exclusively from the treasury of the state; and so much of the act of 1904, as amended by the subsequent acts of 1905 and 1906, hereinbefore mentioned, as purports to buthorize said salaries to be supplemented by funds from county treasuries is void.'

After the decision in Clark v. Hammond, supra, an amendment to the aforementioned paragraph of the constitution was ratified on October 5, 1910, Ga.L.1910, p. 42, by adding to the original language thereof a proviso as follows:

'Provided, however, That the counties of Chatham, Fulton and Richmond shall pay from their respective county treasuries to the Superior Court Judges of the Circuit of which they are a part, and the county of Fulton to the Judge of the Stone Mountain Circuit, or the Judge of such other Circuit as may hereafter be required to regularly preside therein, for additional services rendered in the Superior Court of Fulton county, such sums as will with the salaries paid each Judge from the State Treasury, make a salary of $5,000.00 per annum to each judge; and said payments are declared to be a part of the Court expenses of such counties, such payments to be made to the Judges now in office as well as their successors.

'The Act of the General Assembly of 1904, entitled 'An Act to regulate the salaries of Judges of the Superior Courts of all Judicial Circuits of this State, having, or that may hereafter have therein a city with a population of not less than 54,000, nor more than 75,000 inhabitants, and for other purposes,' with the Acts of the General Assembly of 1905 and 1906 amendatory thereof; and also the Act of the General Assembly of 1906, entitled 'An Act to regulate the compensation of Judges of the Superior Courts for services rendered outside of their own Circuits in those Judicial Circuits of the State having therein a city of not less than 75,000 inhabitants according to the Census of 1900, and for other purposes,' which acts provide for the payment from the treasuries of the counties containing said cities to the judges aforesaid of a part of their salaries, are ratified, validated and confirmed as to the dates of said respective enactments.'

Article 6, section 13, paragraph 1, of the constitution of Georgia of 1877 was further amended by an amendment ratified November 3 1914, Ga.L.1913, p. 30, which made that portion of the proviso authorizing additional salaries to judges of superior courts to be paid by certain counties applicable also to Bibb County; and, by an amendment ratified November 7, 1916, Ga.L.1916, p. 22, Clarke, Floyd, Sumter and Muscogee were inserted among the other named counties authorized to pay such additional salaries. By an amendment ratified November 5, 1918, Ga.L.1917, p. 36, the said paragraph of the constitution was amended by fixing the salaries of the Justices of the Supreme Court and the judges of the Court of Appeals at $5000 per annum each, by fixing the salaries of the judges of the superior courts at $4000 per annum, each payable out of the treasury of the State, continuing the same provision in effect as to the certain counties being authorized to pay the difference between the salary paid out of the treasury of...