Opinion
16438, 16444.
JANUARY 12, 1949. REHEARING DENIED FEBRUARY 17, 1949.
Equitable petition. Before Judge Mallory C. Atkinson. Bibb Superior Court. September 7, 1948.
Ellsworth Hall Jr., for plaintiff.
Harry S. Strozier, for defendants.
1. The proposed amendment to the Constitution of 1877 (Ga. L. 1945 p. 106), adopted simultaneously with the new Constitution of 1945, can not be sustained as a valid continuing pre-existing amendment to the old Constitution such as was carried forward as a part of the new Constitution, nor can it be sustained as a direct amendment to the new Constitution.
2. The act of 1946 (Ga. L. 1946, p. 237), which seeks to vest in the Board of Commissioners of the County of Bibb "full power and authority in its discretion to inaugurate, constitute, and administer pension and/or insurance provisions and benefits for all or any of the officers and employes of the County of Bibb," is violative of article III, section I, paragraph I of the Constitution of 1945 (Code, Ann., § 2-1301), which vests the legislative power of the State in the General Assembly, and is an unwarranted and unsuccessful attempt to delegate its legislative authority.
Nos. 16438, 16444. JANUARY 12, 1949. REHEARING DENIED FEBRUARY 17, 1949.
This case originated in the Superior Court of Bibb County, when that county, hereinafter referred to as the plaintiff, filed a petition against Charles H. Garrett, et al., hereinafter referred to as the defendants, seeking a declaratory judgment for the settlement of a justiciable controversy, existing between the plaintiff, on the one side, and the defendants, on the other, over the validity and meaning of a pension and retirement plan, inaugurated by resolution of the governing authorities of the plaintiff, and, by its terms, affecting each and all of the defendants. The brief of counsel for the plaintiff states the contentions of the respective parties, and the facts of the case, as follows:
It was contended: (a) By the plaintiff, that such retirement and pension plan was authorized and justified by a constitutional amendment of specific application, proposed by resolution (Ga. L. 1945, p. 106) and ratified at the general election held August 7, 1945; and by the defendants, that such amendment was not properly adopted, in that it was purportedly ratified contemporaneously with ratification of the Constitution of 1945, and therefore could neither be an amendment to the Constitution of 1877, which was extinguished on August 7, 1945, nor an amendment to the Constitution of 1945, which had no existence prior to that date.
(b) By the plaintiff, that the retirement and pension plan was authorized and justified by an enabling act of the General Assembly of specific application (Ga. L. 1946, p. 237), and even though such act delegated powers to the local authorities, such powers were not legislative in character, but were administrative or at most quasi-legislative powers; and that even though the delegated powers were legislative in character such delegation was authorized by the Constitution; and contended by the defendants, that such act of the General Assembly was invalid and unconstitutional, in that it involved an unauthorized delegation of legislative powers reserved exclusively by our Constitution to the General Assembly.
(c) By the plaintiff, that even though the specific constitutional amendment referred to in contention "A" was invalidly adopted, the legislative enactment referred to in contention "B", was authorized and valid in view of that provision of the Constitution of 1945 authorizing the General Assembly to delegate to counties authority to levy a tax "to provide for workmen's compensation and retirement or pension funds for officers and employees," (Code § 2-5701, sub-paragraph 15); and by the defendants, that the authority to delegate the power to tax for the purpose did not authorize delegation of legislative powers to make the tax necessary.
(d) By the defendants, that even though the legislative enactment referred to in contention "B" be otherwise valid, it was expressly repealed by another act of the General Assembly (Ga. L. 1947, p. 674), which was neither a local nor special act requiring notice of intention to apply for passage; and by the plaintiff, that the repealing act relied upon by the defendants was itself invalid, since the enrolled act which was a local or special law did not disclose, by reference or attachment, that it had been properly advertised, and because, if otherwise effective, said act would impair obligations of contract, created by the adoption of the pension and retirement plan prior to the passage of the alleged repealing act.
(e) By the plaintiff, that even though the specific constitutional amendment described in contention "A" was improperly adopted and ratified, and even though the specific enabling act described in contention "B" was invalid or had been repealed, the pension plan adopted by the plaintiff was authorized by the specific constitutional provision pointed out in contention "C" (purposes for which the right to levy taxes might be delegated), and the general enabling act (Ga. L. 1946, p. 87, Code § 92-3701) delegating to counties the power to levy a tax "to provide for workmen's compensation and retirement or pension funds for officers and employees"; and by the defendants, that the power to levy a tax for providing a pension fund did not carry with it the implied power to enact legislation to create the pension plan, and that such legislation would have to be supplied by the General Assembly and not by the local authority.
(f) By the plaintiff, that since pension and retirement plans were compensatory and in the nature of salaries and compensation to officers and employees, the plaintiff had the implied power to adopt such a plan and system of compensation; and by the defendants, that counties have no implied powers, save those essential or necessary to their existence and operation, and that a pension or retirement plan was not such an implied power of the county.
(g) By the plaintiff, that the application of the local pension plan, by its terms, to "include all persons, elective or appointive, whether appointed by the board (commissioners) or by an elected or appointed official, whose salary, wage or compensation is paid by the county," was authorized by the several constitutional provisions and enactments and implied powers, and that the words, "officers and employees," as used in such provisions and enactments should have a liberal interpretation in accord with the beneficent purposes intended by pension plans and enactments, so as to justify the interpretation placed upon them by the local pension plan; and by the defendants, that the words county "officers and employees," as used in the several constitutional provisions and legislative enactments, have a well-defined and restricted meaning, which does not authorize the latitude assumed by the local plan, that there is no implied power to adopt a county pension plan, and that the application of such plan to many of the defendants is unjustified and ultra vires.
The case was submitted to Honorable Mallory C. Atkinson on the pleadings and an agreed statement of facts, as follows:
"(1) All of the persons named as defendants and to be affected by a decision in this case, are rendering services in one of the following departments: (a) The office of the Board of County Commissioners, (b) The office of the Solicitor-General, (c) The City Court of Macon, which is a Constitutional City Court, (d) The Municipal Court of Macon, (e) The Juvenile Court, (f) The Bibb County Home and Farm, (g) The Superior Court Clerk's office, (h) The Court of Ordinary, (i) The Sheriff's office, (j) The Tax Commissioner's office, (k) The Treasurer's office, (1) County Policemen, (m) Coroner, (n) County Engineer and Department of Roads and Bridges.
"(2) All salaries and compensation received by such persons are paid exclusively from funds of Bibb County, with the exception of the Solicitor-General, who receives $6000 per annum from Bibb County, and $1000 per annum from each of the other three counties in the Macon Judicial Circuit, and who receives certain fees from the State in certain classes of cases. In the application of the pension plan of Bibb County, only compensation paid by Bibb County is considered or affected.
"(3) With the exception of the compensation received by the Solicitor-General, which is fixed by statute, the salaries of all persons affected by the pension plan are paid by the County Commissioners alone, or, in some instances, such as the Superior Court Clerk's office, the Court of Ordinary, the Sheriff's office, and the Tax Commissioner's office, by the County Commissioners with the consent and approval of the Grand Jury then in session.
"(4) The Solicitor-General, the Judge of the City Court, the Solicitor of the City Court, the Judge of the Municipal Court, the Clerk of the Superior Courts, the Ordinary, the Sheriff, the Tax Commissioner, the Treasurer, and the Coroner, are elective officers who receive their commissions from the Governor of the State. The Judge of the Juvenile Court is appointed by the Judges of the Superior Courts. The heads of all departments are appointed by the County Commissioners.
"(5) Personnel in the office of the Solicitor-General, City Court, Municipal Court, Juvenile Court, Treasurer, Clerk of Superior Court, Ordinary, Sheriff, and Tax Commissioner, except the Tax Attorney, are selected by the heads of these respective departments. All other personnel, excepting the Judge of the Juvenile Court, are selected by the County Commissioners.
"(6) Official bonds of the Solicitor, Clerk, and Deputy Clerk of the City Court, Clerk and Sheriff of the Municipal Court, Clerk of the Superior Court, Ordinary, and Sheriff are payable to the Governor of Georgia. The bonds of the Deputy Clerks and Deputy Sheriffs in the Municipal Court are payable to the Clerk and Sheriff, respectively. The bonds of the Deputy Clerks in the Superior Court are payable to the Clerk. The bonds of the several Deputy Sheriffs, Jailer, and Assistant Jailer are payable to the Sheriff. The bonds of Clerk and Deputy Clerks in the office of the Tax Commissioner are payable to the Tax Commissioner. The bond of the Coroner is payable to the Ordinary. The bonds required of all other persons affected by the pension plan are payable to the Board of County Commissioners, except that, in addition, the Tax Commissioner also gives a bond payable to the Governor of the State.
"(7) One of the acts under which Bibb County claims the right and authority to adopt the pension plan in question (Ga. L. 1946, p. 237) has attached to the original bill — H. B. 756 — a copy of the advertised intention to apply for the legislation, together with the affidavit of the publisher, and affidavit of the author. The enrolled bill, No. 546, has attached to and enrolled with it, an affidavit of the author of the bill as to proper advertisement.
"(8) The act (Ga. L. 1947, p. 674), which the defendants contend resulted in repeal of the act just hereinabove described, has attached to the original bill (H. B. 339) copy of the advertised intention to apply for the legislation together with the affidavit of the parties. The enrolled bill, No. 339, has no reference in it or attachment to it, referring to any advertisement of the intention to apply for such legislation.
"(9) The pension plan of Bibb County was adopted March 17, 1947, and by its terms affected all pay rolls from and including the pay-roll period beginning March 15, 1947. Deductions thereafter made, therefore, affected salaries and wages earned during the period March 15, 1947, to and including March 20, 1947, on which last date the act described in paragraph (8) above was approved. The deductions for such intervening period of time were made without the consent of the persons affected.
"(10) The act of the General Assembly of 1945 (Ga. L. 1945, p. 106), proposing a constitutional provision to permit the Commissioners of Bibb County to inaugurate a pension plan was duly passed by a two-thirds vote of both houses of the General Assembly and was approved on March 9, 1945. The proposal was submitted to the people for ratification at the general election of 1945, on August 7, 1945, and was duly ratified by the requisite majority both in the State at large and in the area and jurisdiction affected by it; that is, Bibb County. The adoption was duly certified by the Secretary of State and was proclaimed by the Governor.
"(11) Each person affected by the pension plan was given the opportunity of withdrawing from the plan and having contributions made by him or her returned. The defendants did not exercise such option."
Counsel for the defendants, in his brief, states that the contentions of the parties and the facts of the case are correctly set out in the opposing brief.
The trial court entered its order and judgment determining that the pension and retirement plan of the plaintiff was invalid. In doing so, the court ruled adversely to all the contentions of the plaintiff, except that it determined that the repealing act relied upon by the defendants (Ga. L. 1947, p. 674) was invalid, and also determined that, if the plan were otherwise valid, it would apply to more of the defendants than contended for by them.
To so much of the judgment of the trial court as ruled adversely to the plaintiff it excepted by direct bill of exceptions, and to so much of the judgment as ruled adversely to the contentions of the defendants they excepted by cross-bill of exceptions.
The questions presented by the record in this case are such, and the briefs of counsel for both sides so ably present their respective contentions, with the citation of many authorities, that much time and space might be consumed in a discussion thereof, but the opinion rendered by the learned trial judge is so clearly in accord with the rulings of this court in the cases which he has cited as to render further elaboration unnecessary, and we content ourselves with adopting the following portion of his opinion as our own:
(1) "Petitioner relies in the first instance upon an amendment to the Constitution of Georgia proposed by a resolution of the General Assembly (Ga. L. 1945, p. 106), and `duly adopted and ratified at the General Election held August 7, 1945, . . by the requisite majority both in the State at large and in the area and jurisdiction affected by it.'
"This amendment was proposed and offered as `An act to amend paragraph II of section VI of article VII of the Constitution of the State of Georgia of 1877 . . and as the same has heretofore been amended, revised, and changed, and as the same may contemporaneously with the adoption of this amendment or hereafter be amended, revised, and changed, and however and wherever said described section may appear in such amendment, change or revision . .'
"`The instrument as contained in Ga. L. 1945, pp. 8 to 89 inclusive, is not an amendment to the Constitution of 1877; but on the contrary it is a completely revised or new Constitution.' Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323, 330 ( 37 S.E.2d 322).
"Notwithstanding the manifest effort to have the amendment set out in Ga. L. 1945, p. 106, attach to the existent Constitution of the State as it `has been, . . may contemporaneously with the adoption of this amendment, or hereafter be amended, revised, and changed, and however and wherever said described section may appear,' it appears that this contention of the petitioner has been controlled adversely by decisions of the Supreme Court of Georgia. Alexander v. Fulton County, 201 Ga. 857 ( 41 S.E.2d 423); Fulton County v. Lockhart, 202 Ga. 878 ( 45 S.E.2d 220).
"Since the amendment relied upon under the authorities could not be valid and effective either as attaching to the old which was replaced by the new, or as attaching to the new which was adopted contemporaneously with the adoption of the amendment, then even a patent effort to make it so would not effectuate that purpose. . . It is held that the so-called constitutional amendment as it appears in Ga. L. 1945, p. 106, is ineffective and of no force.
(2) "The legislature adopted an act (Ga. L. 1946, p. 237), providing: `The County Board of Commissioners for the County of Bibb is vested with full power and authority, in its discretion, to inaugurate, constitute, and administer, and from time to time change by resolution or resolutions, pension and/or insurance provisions and benefits for all or any of the officers and employees of the County of Bibb, with the power and authority to classify or group such officers and employees and to grant or withhold such benefits to and from any such group or classification. Said Board is further granted the power and authority to prescribe, and from time to time change rules, regulations, conditions, and standards for the grant of said pension and/or insurance benefits. Said Board is granted the power and authority to finance the payment of any or all of said pensions and/or benefits by ad valorem taxation and/or County and Officer-Employee contributions. Said Board is authorized to do any and all other acts consistent with these powers and necessary to effectuate the purpose hereof.'
"It is contended by defendants that the foregoing act is without constitutional authority, an unlawful delegation by the legislature of legislative authority, and further that the act was repealed by a valid subsequent act prior to the vesting of any rights thereunder.
"The petitioner relies not only on the attempted constitutional amendment treated in division one of this opinion, but also on the constitutional provision (Code, § 2-5701, paragraph 1, subsection 15) which provides: `The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except: 15. To provide for workmen's compensation and retirement or pension funds for officers and employees.'
"The statutory provision pursuant to this constitutional provision appears as Code, § 92-3701 (Ga. L. 1946, p. 87), the terms of this act closely following the constitutional provision quoted. Petitioner further relies upon par. I, sec XVII, art. VI of the Constitution (Code, § 2-5201), providing: `The General Assembly shall have power to provide for the creation of County Commissioners in such counties as may require them, and to define their duties.'
"The constitutional prohibition relied upon by defendants is implicit in paragraph I, section I, article III (Code, § 2-1301), which provides: `The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives.'
"It is probably true that construing the constitutional provisions quoted in pari materia and with the provision sought to be made constitutional, discussed in division one of this opinion, the General Assembly would have been constitutionally authorized to so delegate its legislative authority as attempted in the act relied upon (Ga. L. 1946, p. 237). Without the benefit of the constitutional authority sought to be obtained by that attempted amendment, it appears that the act (Ga. L. 1946, p. 237) is an unwarranted delegation of legislative authority and invalid.
"Weighing against petitioner's reliance on the vesting in the commissioners authority to tax by the Constitution serving further to authorize delegation of the power to legislate to effectuate those purposes, is the fact that each of the other specifically named purposes for which they are authorized to tax serves as the specific subject for detailed legislation by the General Assembly controlling and regulating with uniformity the effectuation of those purposes.
"With reference to the constitutional power to create commissioners and define their duties, this would not serve in any wise or manner to abrogate the inhibition against delegation of legislative authority. By analogy the General Assembly may be constitutionally authorized to set up and create various State boards, departments, bureaus and the like, but with uniformity it has been held that this authority standing alone will not permit the General Assembly to delegate its legislative authority to such lawfully constituted authorities. Moseley v. Garrett, 182 Ga. 810 ( 187 S.E. 20); Long v. State, 202 Ga. 235 ( 42 S.E.2d 729).
"It may be said that the prohibition against delegation of legislative powers does not preclude the General Assembly from vesting in some other authority the administrative power to regulate and control. `The difference between the power to pass a law and the power to adopt rules and regulations to carry into effect a law already passed is apparent and strikingly great; and this we understand to be the distinction recognized by all of the courts as the true rule in determining whether or not in such cases a legislative power is granted. The former would be unconstitutional, whilst the latter would not.' Ga. R. v. Smith, 70 Ga. 694; Richter v. Chatham County, 146 Ga. 218 ( 91 S.E. 35).
"Measured by this rule, the act (Ga. L. 1946, p. 237) did not attempt to convey power to `adopt rules and regulations to carry into effect a law . .' but, on the contrary, by its own terms undertook to vest in the board `full power and authority, in its discretion, to inaugurate, constitute, and administer . . pension and/or insurance provisions and benefits. . .'
"The act of the General Assembly (Ga. L. 1946, p. 237) was therefore an unwarranted and unconstitutional attempt to delegate its legislative authority and is invalid."
The request of counsel for the plaintiff that the case of Wheeler v. Board of Trustees of Fargo Consolidated School District, supra, be reviewed and overruled is denied.
Since, under the above rulings, the pension program sought to be instituted by the plaintiff is held to be invalid, it becomes unnecessary for this court to consider and pass upon the other rulings made by the trial court as to what persons may be included in and covered by it, or as to the validity of the repealing act of 1947 (Ga. L. 1947, p. 674).
Judgment affirmed on the main bill of exceptions; and cross-bill dismissed. All the Justices concur.