Summary
In Campbell v. Hunt, 115 Ga. App. 682 (155 S.E.2d 682), this court considered "reference statutes" and the question of whether a statute adopting provisions of another by reference will be affected by amendment or repeal of the adopted statute.
Summary of this case from Medical Assn. v. Tax AssessorsOpinion
42680.
ARGUED APRIL 3, 1967.
DECIDED APRIL 21, 1967. REHEARING DENIED MAY 3, 1967.
Election contest. Houston Superior Court. Before Judge O'Connor from Oconee Circuit.
James H. Harmon, Abe Crosby, Jr., for appellant.
Wisse Kushinka, George Kushinka, for appellee.
When the legislature enacts a statute which adopts provisions of an existing statute by reference, the question whether subsequent amendment or repeal of the adopted provisions will change or repeal those provisions in the adopting statute is to be determined by the intent and purpose of the legislature at the time it was enacted.
ARGUED APRIL 3, 1967 — DECIDED APRIL 21, 1967 — REHEARING DENIED MAY 3, 1967.
The plaintiff and two other candidates qualified and sought election to the office of Post 4 of the City Council of Warner Robins. No candidate receiving a majority of votes, there was a run-off election between the plaintiff and one of the other candidates. After the run-off the election manager announced that the plaintiff's opponent received one more vote than the plaintiff. This petition to the superior court to contest the election, naming the winning candidate as defendant, alleged that certain persons voted when they were neither eligible nor qualified to vote, and their votes caused the plaintiff not to be declared the winner of the election as he should have been, and prayed for a hearing to determine whether those persons voted illegally and prayed that plaintiff be declared as having received more votes than his opponent and the winner of the election. An amendment to the petition prayed that the election be declared null and void and a new election be called.
The defendant filed a general demurrer and a plea to the jurisdiction on the ground that the Ordinary of Houston County rather than the superior court had jurisdiction of the case. In this appeal the plaintiff enumerates as error the trial court's order sustaining the general demurrer and plea to the jurisdiction and dismissing the petition.
The charter of the City of Warner Robins provides: "If any person shall desire to contest any election held under and by virtue of this Act, said contest shall be held, and notice thereof given, as is now provided for contest of elections for county officers in this State." Ga. L. 1943, pp. 1624, 1629, approved March 5, 1943.
In 1943 the law provided that contest of election of county officers should be held in accordance with proceedings set out in Chapters 34-28 and 34-30 of the Georgia Code, with contest of election of municipal officers being heard and determined by the ordinary of the county wherein such contest arose. Code § 34-3001. Those chapters were specifically repealed by the Georgia Election Code enacted in 1964 (Ga. L. 1964, Ex. Sess., p. 26; Code Ann. § 34-2001) and replaced by new provisions for contest of election of county officers, placing jurisdiction of the proceedings in the superior courts. Ga. L. 1964, Ex. Sess., pp. 26, 177 ( Code Ann. Ch. 34-17). The new Election Code does not apply to any municipal primary or election. Ga. L. 1964, Ex. Sess., pp. 26, 28 ( Code Ann. § 34-102).
In the present case the plaintiff followed Ch. 34-17 of the 1964 Election Code, supra, which was clearly not authorized. Ga. L. 1964, pp. 26, 28 ( Code Ann. § 34-102).
The plaintiff contends that the 1943 charter provision that a city election contests shall be held as is now provided for contest of county elections operated in 1964 to substitute for the proceedings then provided for contest of county elections ( Code Chs. 34-28 and 34-30) the new proceedings for contest of county elections ( Code Ann. Ch. 34-17). For two reasons we disagree with this contention. First, we are of the opinion that, in using the words "as is now provided" in the provision for contest of elections in the 1943 statute establishing the charter of the City of Warner Robins, the legislature intended to adopt the proceedings provided for contest of elections for county officers existing on March 5, 1943, when the charter became effective, and did not intend to adopt changes that might thereafter be made in the general law governing contest of elections for county officers. Hoffman International Corp. v. Overstreet, 110 Ga. App. 752 ( 140 S.E.2d 79); Tillamook City v. County Court of Tillamook County, 56 Ore. 112, 115 ( 107 P. 482); Darmstaeter v. Maloney, 45 Mich. 621 ( 8 N.W. 574); Petition of Easby, 326 Pa. 511 ( 192 A 646). "The word 'now' has a fixed and definite meaning. It signifies 'at the present time', at a time contemporaneous with something done." Tillamook City v. County Court of Tillamook County, supra. Second, the 1964 statute specifically provides that it shall not apply to municipal elections. Code Ann. § 34-102.
Our opinion is consistent with the following summary from legal texts.
Statutes adopting provisions of existing statutes, such as the character of the City of Warner Robins, supra, have been called "reference statutes" by courts and legal writers who have analyzed decisions involving such statutes. The question whether one statute adopting provisions of another by reference will be affected by amendment or repeal of the adopted statute is one of legislative intent and purpose. 82 CJS 847, § 370. A specific reference statute (referring specifically to a particular statute by its title or section number) incorporates the provisions referred to from the statute as of the time of adoption without subsequent amendments, and unless the legislature has expressly or by strong implication shown its intention to the contrary, subsequent amendment or repeal of the referred statute will have no effect on the reference statute. A general reference statute (referring to the law of a subject generally) adopts the law on the subject as of the time the law is invoked. This will include all amendments and modifications of the law subsequent to the time the reference statute was enacted. 2 Sutherland, Statutory Construction 547-550, §§ 5207, 5208; 82 CJS 848, § 370; 50 AmJur 58, § 39 (Supp. p. 6); Anno. 168 ALR 627.
The use of the word "now" in the adopting statute may in some instances change the rule. The adoption in a special or local law of the provisions of a general law does not carry with it the adoption of changes afterward made in the general law. 50 AmJur 58 (Supp. p. 6) § 39; 168 ALR 627, 634, 635.
The trial court did not err in sustaining the general demurrer and the plea to the jurisdiction.
Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.