Williams v. Kaylor, 21844
| Decision Date | 16 January 1963 |
| Docket Number | No. 21844,21844 |
| Citation | 129 S.E.2d 791,218 Ga. 576 |
| Parties | W. L. WILLIAMS, Ordinary, v. Leroy KAYLOR, Commissioner, et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The requirement of our statute embodied in Code Ann. § 110-1106 (Ga.L. 1945, pp. 137, 138) requiring the Attorney General to be served with a copy of the proceeding in declaratory judgment cases where there is an attack made upon the constitutionality of a statute of the State is mandatory and jurisdictional.
An action for declaratory judgment was instituted in Whitfield Superior Court by the ordinary of the county against the commissioner of roads and revenues and menbers of the advisory board to the commissioner, and was brought to this court by writ of error, the bill of exceptions assigning error on the judgment of the trial court sustaining the defendants', general demurrers. The case arose as the result of an act of the General Assembly enacted into law in the year 1960 (Ga.L.1960, pp. 2007-2017). The act contained a provision which read:
'Commencing with the term of office which begins on January 1, 1961, the Sheriff of Whitfield County, the Clerk of Superior Court of Whitfield County, the Ordinary of Whitfield County, the Tax Collector of Whitfield County, and the Tax Receiver of Whitfield County, shall be paid monthly salaries by Whitfield County, and said salaries shall be said Officer's sole compensation for performing the duties of their respective offices.'
It further provided that the annual budget of operating expenses for each of the offices would be passed upon by the commissioner of roads and revenues and the advisory board of the county under a mode of procedure therein prescribed.
The petition, however, alleged that for several reasons the act of 1960 was unconstitutional and based the plaintiff's whole case for declaratory judgment, to adjudicate the plaintiff's rights concerning the issues in controversy, upon the contention that the act was unconstitutional and hence void. In the plaintiff's supplemental brief filed in this court he emphasizes this position: 'plaintiff is asking that the act be declared unconstitutional so that he will then have the right to: (1) Employ two full-time clerks to perform the typing and other clerical duties in his office so as to free himself for the performance of his administrative and judicial duties, and (2) The fees and compensations due him at the present and which will be due him in the future * * * Plaintiff had not asked for any inconsistent remedy but has simply asked that the court declare the act unconstitutional so that he might have all of the relief as prayed for in the petition.'
The record of the case discloses that there was no prayer for service on the Attorney General of the State; that the Attorney General was not served with a copy of the proceedings and made no appearance in the case. In argument before this court, counsel for the plaintiff candidly admitted that, through inadvertence, service upon the Attorney General as required by the declaratory judgments law of force in this State had been omitted.
Pittman & Kinney, L. Hugh Kemp, Dalton, for plaintiff in error.
Ernest McDonald, Adams & McDonald, Dalton, for defendant in error.
The declaratory judgments law, contained in the Acts of 1945 (Ga.L.1945, p. 137) and amended by subsequent acts (Ga.L.1959, pp. 236, 237), is the uniform declaratory judgments act adopted by most of the states of the Union. A provision of the uniform act, and embodied in Code Ann. § 110-1106 (Ga.L.1945, pp. 137, 138), is: In 16 Am.Jur. 331, Declaratory Judgments, § 61, it is said: 'The Uniform Act provides that in any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard and that if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceedings and be entitled to be heard.'
The holdings of the appellate courts throughout the country, simply stated, is that where service is not made on the attorney general as required by the declaratory judgments statutes in a case where there is an attack made upon the constitutionality of a statute enacted by the general assembly of the state, the court to which the petition is addressed does not have jurisdiction of the subject matter of the case, the subject matter being whether the statute in question is constitutional.
In the case of Wheeler v. Bullington, 264 Ala. 264, 266, 87 So.2d 27, 29, is the pronouncement: 'As already indicated, this is a proceeding under the Declaratory Judgments Act, Code 1940, Tit. 7, §§ 156-168, as amended, which involves the validity of a statute, Act No. 174, supra, it being alleged in the bill that said statute is unconstitutional. Applicable in this situation is § 166, Tit. 7, supra, which provides as follows:
* * *
'This section is identical with Sect. 11 of the Uniform Declaratory Judgments Act, 9 U.L.A.
'It does not appear from the record that the Attorney General was served with a copy of the proceeding; nor does it appear from the record that he had notice of the proceeding or participated in it in any way. Accordingly, it is our view that jurisdiction of the trial court was not invoked and that the decree declaring Act No. 174 to be unconstitutional is void. It follows that the case is properly here on appeal from the decree of September 19, 1955, and that appellee's motion to dismiss the appeal must be denied.
'We have not been referred to any Alabama case dealing with the requirements of Sect. 166, supra, that 'if the statute * * * is alleged to be unconstitutional, the attorney-general of the state shall also be served with a copy of the proceeding and be entitled to be heard'; nor have we found any. However, the effect of this provision has been dealt with in a number of other jurisdictions, and it appears to be universally held that compliance with this provision is mandatory and goes to the jurisdiction of the court. But as to what constitutes compliance and the extent to which the attorney general may or should participate, the cases are divided.
'In the case now before us we need only decide at this time whether the requirement of service on the attorney general is mandatory and jurisdictional, and we limit our decision to that question. Among the cases holding that service on the attorney general is mandatory and jurisdictional are the following: Cummings v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062, 1063; Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 916-917; Day v. Ostergard, 146 Pa.Super. 27, 21 A.2d 586, 588; Ethington v. Wright, 66 Ariz. 382, 189 P.2d 209, 213; Watson v. Claughton, 160 Fla. 217, 34 So.2d 243, 246-247; Pressman v. State Tax Commission, 204 Md. 78, 102 A.2d 821, 826; City Manager of Medford v. Civil Service Commission, 329 Mass. 323, 108 N.E.2d 526, 530; Lowell v. City of Boston, 322 Mass. 709, 740-741, 79 N.E.2d 713, 731; Roehl v. Public Utility Dist. No. 1 of Chelan County, 43 Wash.2d 214, 261 P.2d 92, 108; Parr v. City of Seattle, 197 Wash. 53, 84 P.2d 375, 377; Lee v. Clark, 224 S.C. 138, 77 S.E.2d 485, 487-488; ...
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