Summary
In Carroll v. Ragsdale, supra, 192 Ga. at 120, the court said: "While all parts of the statute should be preserved, yet a cardinal rule of construction is that the legislative intent shall be effectuated, even though some verbiage may have to be eliminated.
Summary of this case from Maples v. City of VarnellOpinion
13716, 13717.
MAY 14, 1941.
Petition for mandamus. Before Judge Pomeroy. Fulton superior court. February 3, 1941.
Howard, Henson Howard, for plaintiff.
Spalding, Sibley, Troutman Brock, E. H. Sheats, W. S. Northcutt, and Ellis G. Arnall, attorney-general, contra.
To entitle a court bailiff of Fulton County to receive a salary of $200 per month, payment of such salary must be approved by the county authorities having charge of county finances. The amendment of section 876 of the Penal Code of 1910 (Code of 1933, § 59-120), approved August 15, 1927 (Ga. L. 1927, p. 135), requires, as a condition precedent to the payment of court bailiffs' salaries thereunder, the approval of such payment by the county authorities having charge of the county finances. The provision requiring approval is not satisfied for all future years by an approval in 1927, but under the act approval of such payment must be given by the county authorities each year, and the amount stated is construed to be a maximum, and the county authorities are authorized to approve the maximum or any other amount not exceeding the maximum.
Nos. 13716, 13717. MAY 14, 1941.
By an act of 1879 (Ga. L. 1878-9, p. 190; Code, § 59-120), it was provided that "it shall be the duty of the first grand jury empaneled at the fall term of the superior courts of the several counties of this State to fix the compensation of jurors and court bailiffs of such county for the next succeeding year, such compensation not to exceed the sum of two dollars per diem." By amendment the maximum per diem was raised to three dollars. Ga. L. 1919, p. 104. In 1922 the act was amended by adding the following: "In counties of 200,000 population or more it shall be permissible for the grand jury impaneled at the fall term of the superior courts to fix compensation of court bailiffs in a sum not to exceed $5.00 per day." Ga. L. 1922, p. 50. In 1925 the act was further amended by adding, after the words "such compensation not to exceed three dollars per diem," the following: "except in counties having a population of 200,000 or more, according to the last United States census, the compensation of court bailiffs as fixed by the grand jury shall be $150.00 per month; provided the commissioners of roads and revenues, or other authority having control of county finances of such counties shall first approve the payment of such salaries and the number of deputies to be employed in each court." Ga. L. 1925, p. 100. In 1927 the act was further amended by striking the figures "$150" and inserting in lieu thereof the figures "$200," and by striking the word "deputies" and inserting in lieu thereof the word "bailiffs." Ga. L. 1927, p. 135.
Troy L. Carroll brought an action for mandamus against J. A. Ragsdale, Ed L. Almand, Charles R. Adams, I. Glore Hailey, and Troy G. Chastain, as commissioners of roads and revenues, and Mrs. Mabel Abbott MacNeill as treasurer, of Fulton County. The petition as amended alleged, that the commissioners are the county officials having control of the finances of Fulton County; that at all times between February 1, 1932, and April 1, 1938, the petitioner was a bailiff in Fulton superior court, and qualified as such at each term of court during said period, taking the special oath required of court bailiffs; that he was entitled to receive compensation for his services in accordance with section 876 of the Penal Code of 1910, as amended by an act approved August 15, 1927 (Code of 1933, § 59-120), namely $200 per month; that the commissioners of roads and revenues as then constituted, by a resolution dated September 7, 1927, approved the act of the legislature amending the above Code section; that it was and is the duty of the commissioners of roads and revenues to issue to petitioner a draft on the county treasurer for the money due him, and it was and is the duty of the treasurer to pay same; that the commissioners have not paid petitioner the full amount of salary as provided by law, but on the contrary, between March 1, 1932, and July 1, 1932, he was paid at the rate of $180 per month; for July and August, 1932, he was paid $160 per month; September and October, 1932, $133.33 per month; November, 1932, $133.34; and December, 1932, $160; that from January 1, 1933, through February, 1934, he was paid $135 per month, and from March through December, 1934, he was paid $150 per month; that from January 1, 1935, through March, 1938, he was paid $155 per month; that the sum total of all reductions withheld from petitioner is $3125, for which amount Fulton County is indebted to him, together with interest thereon at seven per cent. per annum; that each of the several deductions in salary was predicated upon resolutions adopted by the commissioners of roads and revenues as constituted at the time of such deductions; that by such resolutions the commissioners sought to alter the law of force concerning petitioner's salary and to pay him according to such resolutions; that all of such resolutions were ultra vires and void, because, having once accepted the law as amended, the commissioners could not thereafter change the same without affirmative action by the General Assembly; and that demand has been made upon defendants for the amounts claimed in the petition, which demand has been refused by the defendants. The prayer was for mandamus nisi, directing the commissioners of roads and revenues to issue to petitioner a draft in the form and amount set out in the petition, and requiring the treasurer to pay the same, and that after hearing such mandamus be made absolute. The plaintiff excepted to the dismissal of his action on general demurrer; and the defendants excepted to the overruling of that portion of the demurrers attacking the law upon which petitioner's claim is based, upon stated constitutional grounds.
The controlling question presented by the main bill of exceptions will be answered by a proper construction of the 1925 amendment as amended by the 1927 act, the particular language requiring interpretation and construction being: "The compensation of court bailiffs as fixed by the grand jury shall be $200 per month, provided the commissioners of roads and revenues, or other authority having control of the county finances of such counties, shall first approve the payment of such salaries." In construing a statute the obvious intention of the legislature will control and must be given effect. Seeking secret legislative meanings at variance with the language used is a perilous undertaking which is quite as apt to lead to an amendment of the law by judicial construction as it is to arrive at the actual thought in the legislative mind. 25 R. C. L. 961, § 217. But where an ambiguity exists either because of uncertainty in the meaning of words, conflicts with previous laws, or conflicts between different clauses in the same statute, courts should look beyond the verbiage and discover the intent. While all parts of the statute should be preserved, yet a cardinal rule of construction is that the legislative intent shall be effectuated, even though some verbiage may have to be eliminated. The legislative intent will prevail over the literal import of the words. Washington v. Atlantic Coast Line Railroad Co., 136 Ga. 638 ( 71 S.E. 1066, 38 L.R.A. (N.S.) 867); Youmans v. State, 7 Ga. App. 101 ( 66 S.E. 383); United States v. Farenholt, 206 U.S. 226 ( 27 Sup. Ct. 629, 51 L. ed. 1036); Pickett v. United States, 216 U.S. 456 ( 30 Sup. Ct. 265, 54 L.ed. 566); American Security Trust Co. v. District of Columbia, 224 U.S. 491 ( 32 Sup. Ct. 553, 56 L. ed. 856); State v. Pay, 45 Utah, 411 ( 146 P. 300, Ann. Cas. 1917E, 173); 25 R. C. L. 967, § 222. The statute must be examined as a whole, and its different provisions reconciled if possible. Cairo Banking Co. v. Ponder, 131 Ga. 708 ( 63 S.E. 218); Roberts v. State, 4 Ga. App. 207 ( 60 S.E. 1082); State v. Burnett, 173 N.C. 750 ( 91 S.E. 597); Board of Supervisors v. Cox, 155 Va. 68 ( 156 S.E. 755); J. E. Moss Iron Works v. Jackson County Court, 89 W. Va. 367 ( 109 S.E. 343). The general scheme and purpose of the legislation is a proper criterion for the construction thereof. Singleton v. Close, 130 Ga. 716 ( 61 S.E. 722); Pennington v. Douglas, Augusta Gulf Railway Co., 3 Ga. App. 665 (3) ( 60 S.E. 485).
With the aid of these rules of construction we now proceed to a consideration of the portion of the statute here involved. In the outset we look to the original act of 1879. The purpose of the original together with all amendments was to provide a scheme or plan for compensating court bailiffs. That act together with all amendments prior to the amendment of 1925, which brought in for the first time the language upon which the present case is based, reveals unmistakably a legislative intent to effectuate three definite purposes, namely: (1) to fix by law a maximum for such compensation; (2) to vest in the county authorities of each county the right to determine the amount of compensation in that county, not to exceed such maximum; and (3) to authorize and require the county authorities to re-examine the question of compensation and fix the amount once each year. To justify a construction of the amendment here involved that would discard these fixed principles of the legislation, there must be found in that amendment language which clearly manifests a legislative intent to depart from these policies. In search of such language we have painstakingly scrutinized the amendment word by word. It retains the principle of authorizing the county authorities to fix the compensation by providing that this shall be done by the grand jury, and by its provisions there is brought into the law for the first time the county authority having charge of county finances. Upon these authorities is conferred the power to approve or disapprove the payment of the salary of $200 per month therein provided for. In thus giving authority to approve or disapprove the payment of the salary stated and in making the fixing of that amount contingent upon such approval, controlling authority for fixing the compensation is by the terms of the amendment retained in the local county officials. But the plaintiff contends, that while the county authorities are empowered to determine whether or not the amendment shall become effective as law, yet this power can be exercised once and only once, and that the action of the county authorities in approving "payments" on September 7, 1927, had the effect of putting the law in operation, and that it remains of force without any further approval on the part of such county authorities. If this contention is sound, there has been a departure from the legislative policy of having the compensation fixed each year. A ruling that such legislative intent exists must find support, if it is supported at all, in the following language of the amendment: "shall first approve the payment of such salaries." Significantly the approval referred to is not approval of the amendment, but instead is approval of "the payment." It would have been legal and in harmony with legislative practice to provide that the amendment would become effective or operative upon its approval by the county authorities. But a provision for such authorities at a given time to discharge not only a duty resting upon them, but also a duty imposed upon their successors, to exercise a discretion and judgment in expending public moneys, has no support in law or practice. Had the amendment fixed unconditionally the amount of compensation it would thereupon, and without more, have become a legal charge against the county, payment of which would have been authorized and demanded without further approval. However, since the law fixing such salaries is expressly conditioned upon the approval of payment thereof by the county authorities, it imposes upon those persons constituting such county authorities the duty to exercise their own judgment in deciding the amount to be paid from the public treasury. This duty can neither be delegated nor usurped. The payments must be made from available funds each year, and only the county authorities in charge of county finances during that year are authorized to approve such payment. An approval of payment in 1927 will not authorize payments in 1932 and other years covered by this suit. Therefore the amendment must be construed to require the approval of payment each year as a necessary step in the fixing of such salaries.
At this point it might appear that when the county authorities failed to approve salaries of $200 per month there is no way provided by law for paying the court bailiffs any amount. Such a view, however, fails to take into account the policy of the law of fixing only a maximum and authorizing compensation to be fixed at an amount not exceeding that maximum. Beyond any doubt whatever the legislative intent to compensate such bailiffs is clearly manifest. Bailiffs are essential to the dispatch of court business; and it is the duty of the court, by application of the rules of construction hereinbefore stated, to effectuate that legislative intent by eliminating, restricting, or expanding the verbiage of the statute where necessary. Accordingly, the amount of salary as stated in the amendment is construed to mean the maximum, and the authority to approve the payment of the maximum includes authority to approve any other amount not to exceed that maximum. The petition showing that the county authorities had not approved payment of any of the amounts sought to be recovered, it was fatal in this respect, and was properly dismissed on demurrer.
Judgment affirmed on the main bill of exceptions; cross-bill dismissed. All the Justices concur.