Opinion
14935.
SEPTEMBER 7, 1944.
The Court of Appeals (in Case No. 30535) certified to the Supreme Court the following questions:
George G. McCoy, for plaintiff in error.
Hester Clark, contra.
1. There is nothing in the act approved March 30, 1937 (Ga. L. 1937, p. 753), which makes it unlawful in dispossessory-warrant proceedings for an agent who is not a duly licensed attorney at law to swear out the warrant upon which the proceedings are based.
2. The provision in the act approved March 30, 1937 (Ga. L. 1937, p. 753), which declares that, "in preparing and filing affidavits upon which the following summary proceedings are based, to wit, dispossessory warrants, distress warrants, and attachments, and prosecuting such proceedings, it shall be unlawful for the plaintiff to act through any agent or employee that is not a duly licensed attorney at law," does not impliedly repeal the portion of the Code, § 61-301, which provides in part that "the owner his agent, or attorney at law or attorney in fact" may make oath as to the facts.
No. 14935. SEPTEMBER 7, 1944.
"1. In a dispossessory-warrant proceeding, is it a violation of Code, § 9-401, as amended by the act of the legislature of 1937 (Ga. L. 1937, p. 753), which in part provides, `But in preparing and filing affidavits upon which the following summary proceedings are based, to wit, dispossessory warrants, distress warrants, and attachments, and prosecuting such proceedings, it shall be unlawful for the plaintiffs to act through any agent or employee that is not a duly licensed attorney at law,' for any agent, who is not a duly licensed attorney at law, to swear out the warrant, that is, make the affidavit upon which the proceeding is based?
"2. Is that portion of the act of 1937 just above quoted in conflict with Code, § 61-301, which among other things provides, `And the owner of the lands or tenements shall desire possession of the same, such owner may, by himself, his agent, attorney in fact or attorney at law, demand the possession of the property so rented, leased, held, or occupied; and if the tenant shall refuse or omit to deliver possession when so demanded, the owner, his agent or attorney at law or attorney in fact may go before the judge of the superior court or any justice of the peace and make oath to the facts,' as was ruled in Morgan v. Fidelity Trust Co., 65 Ga. App. 873 ( 16 S.E.2d 522)?"
The act approved March 30, 1937 (Ga. L. 1937, p. 753), a portion of which is quoted in the first question propounded by the Court of Appeals, does not purport to expressly repeal the provision contained in the Code, § 61-301, which is quoted in the second question. Repeals by implication are not favored, and never occur except where the later act is clearly and indubitably contradictory and contrary to the former act, and the repugnance is such that the two can not be reconciled. Montgomery v. Board of Education, 74 Ga. 41; Swift v. Van Dyke, 98 Ga. 725 ( 26 S.E. 59); Moore v. State, 150 Ga. 679 ( 104 S.E. 907). In order to bring about a repeal by implication, the legislative intent must be clear, manifest, and irreconcilable with intent not to repeal. Griggs v. Macon, 154 Ga. 519 ( 114 S.E. 899); Cornwell v. Atlanta Trust Co., 177 Ga. 303 ( 170 S.E. 194); McGinty v. Gormley, 181 Ga. 644 ( 183 S.E. 804); Britton v. Bowden, 188 Ga. 806, 811 ( 5 S.E.2d 47). What is there in the act of 1937 that is in conflict with the provision in the Code, § 61-301, which among other things declares that the owner's attorney in fact may go before a proper judicial officer and make oath to the facts? What is there in that act which discloses a legislative intent irreconcilable with the intention not to repeal? The Code section declares in effect that an attorney in fact may make the affidavit. What affidavit? The Code section says, "make oath to the facts." The act of 1937 says, not that it shall be unlawful for any attorney in fact to "make oath to the facts," to "swear out the warrant," or to "make the affidavit upon which the proceeding is based," but that "in preparing and filing affidavits [italics supplied] upon which the following summary proceedings are based, to wit, . . it shall be unlawful for the plaintiffs to act through any agent or employee that is not a duly licensed attorney at law." There is nothing irreconcilable in an act which says that no agent other than a duly licensed attorney at law shall prepare and file the affidavit required, and a Code section which authorizes an attorney other than an attorney at law to make oath to the facts. Since the two can be reconciled, it is the duty of the courts, under the authorities cited, in seeking the legislative intent, to harmonize the two, if they can be harmonized, rather than to give to the later act the force of an implied repeal of the former law.
It has been suggested that the General Assembly in enacting the amendment of 1937, was activated by the decision of this court in Sharp-Boylston Co. v. Haldane, 182 Ga. 833 ( 187 S.E. 68), and that the act amounted to a practical reversal of that decision as to what would constitute the practice of law. That may be true, but it does not follow that the act of 1937 operated to repeal so much of the Code, § 61-301, as provides that any agent may make the affidavit which is the basis of the proceeding, as was held in Morgan v. Fidelity Trust Co., 65 Ga. App. 873 ( 16 S.E.2d 522). Both questions propounded are answered in the negative. All the Justices concur.