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WILLIAMS, Ordinary v. KAYLOR, Commissioner, et al.
21844.
Declaratory judgment; constitutional question, etc. Whitfield Superior Court. Before Judge Davis.
QUILLIAN, Justice.
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 members 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 Officers' 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.
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: "No declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding involving the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard as a party. If a statute of the State, or any order regulation of any administrative body of the State, or any franchise granted by the State is alleged to be unconstitutional, the Attorney General of the State shall be served with a copy of the proceeding and shall be entitled to be heard." 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 holding 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 S2d 27), 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:
" 'Parties when declaratory relief is sought.--All persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. 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 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 proceeding and be entitled to be heard.' . . .
"This section is identical with Sect. 11 of the Uniform Declaratory Judgments Act, 9 U.L.A.
"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 SW2d 1062, 1063; Cummings v. Beeler, 189 Tenn. 151, 223 SW2d 913, 916-917; Day v. Ostergard, 146 Pa. Super. 27, 21 A2d 586, 588; Ethington v. Wright, 66 Ariz. 382, 189 P2d 209, 213; Watson v. Claughton, 160 Fla. 217, 34 S2d 243, 246-247; Pressman v. State Tax Commission, 204 Md. 78, 102 A2d 821, 826; City Manager of Medford v. Civil Service Commission, 329 Mass. 323, 108 NE2d 526, 530; Lowell v. City of Boston, 322 Mass. 709, 740-741, 79 NE2d 713, 731; Roehl v. Public Utility Dist. No. 1 of Chelan County, 43 Wash.2d 214, 261 P2d 92, 108; Parr v. City of Seattle, 197 Wash. 53, 84 P2d 375, 377; Lee v. Clark, 224 S. C. 138, 77 SE2d 485, 487-488; Wichita County v. Robinson, Tex., 276 SW2d 509, 511-512; Land Clearance for Redevelopment Authority of City of St. Louis v. City of St. Louis, Mo., 270 SW2d 58, 63; Johnston v. Board of Adjustment and Town Council of Westfield, 190 A 782, 783, 15 N.J. Misc. 283; Jefferson County Fiscal Court v. Trager, 300 Ky. 606, 189 SW2d 955; Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 SW2d 945, 125 ALR 1149, 1161. See also, Borchard, Declaratory Judgments, 2d Ed., p. 275.
"From what we have said it follows that the action of the trial court in denying the motion to set aside the decree is due to be reversed."
A statute of the state as defined in Words & Phrases, Vol. 40, p. 97, is: "Any law directly passed by the Legislature of a state, and any enactment to which a state gives the force of law, is a 'statute of the state.' Federal Trust Co. v. East Hartford Fire Dist., CCA Conn., 283 Fed. 95, 98." See New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 US 18 (8 SC 741, 31 LE 607); Reinman v. City of Little Rock, Ark., 237 US 171 (35 SC 511, 513, 59 LE 900); King Mfg. Co. v. City Council of Augusta, Ga., 277 US 100 (48 SC 489, 72 LE 801). In practically all of the cases cited as supporting authority in the case of Wheeler v. Bullington, 264 Ala. 264, supra, the opinions of the courts dealt with local acts of the legislatures of those states, and of nature similar to the act of 1960 attacked in this case as being unconstitutional.
Relative to want of Jurisdiction of the subject matter of the case where service is not made upon the attorney general in compliance with the declaratory judgments act is Cummings v. Shipp, 156 Tenn. 595, 597 (3 SW2d 1062), where a county judge brought a bill against a county trustee, whose interests were not adverse under the declaratory judgments act, seeking determination of the validity of a public act without notifying the attorney general as provided by the declaratory judgments act in cases involving statutes alleged to be unconstitutional; held court was without jurisdiction, and could not render a declaratory decree conclusive of the questions presented. The Tennessee court pointed out: "The county judge is the financial agent of the county and the county trustee is its revenue collector and treasurer, and both are interested in the collection of county revenue. Their interests are in no sense adverse. The Attorney General of the state was not made a party to the proceeding, and no notice was served upon him. The court is without jurisdiction, and cannot render a declaratory decree conclusive of the questions presented. The jurisdictional defects indicated were not brought to the attention of the chancellor, or no doubt he would have dismissed the proceeding."
The subject matter of which the court must have jurisdiction in order to enter a valid judgment is defined by the courts of this State as: "the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power." Melton v. Jenkins, 50 Ga. App. 615 (1) (178 SE 754). See Kaiser v. Kaiser, 178 Ga. 355, 366 (173 SE 688); Mitchell v. Arnall, 203 Ga. 384, 385 (5) (47 SE2d 258). Words & Phrases, Vol. 23, p. 409, contains the apt definition: "Jurisdiction of the subject-matter, is the power to inquire and adjudge whether the facts of a particular case make that case a proper one for jurisdictional consideration by the judge before whom it is brought." Montgomery v. Equitable Life Assur. Soc., 83 F2d 758, 761. See Chambers v. Sanford & Treadway, 154 Tenn. 134 (289 SW 533).
This court held in Dix v. Dix, 132 Ga. 630, 634 (64 SE 790):"Where the court of ordinary is without jurisdiction to deal with a particular subject-matter, or to make a decision in regard to it, an effort to do so is ineffectual; and this is true whether want of jurisdiction of the subject-matter is urged before that court or not. Craddock v. Kelly, 129 Ga. 818, 825 (60 S.E. 193)." It is well settled that: "When a trial court, in a case over which it has, as to subject matter, no jurisdiction, renders therein any judgment except one of dismissal, this court will of its own motion reverse the same whether exception to it for want of jurisdiction in the court below be taken in the bill of exceptions or not." Georgia R. & Bkg. Co. v. Redwine, 208 Ga. 261 (1) (66 SE2d 234); Smith v. Ferrario, 105 Ga. 51, 53 (31 SE 38); Kirkman v. Gillespie, 112 Ga. 507 (37 SE 714). Hence, where as in this case, the trial court sustains the general demurrers and dismisses the petition, his judgment will be affirmed. Sweatman v. Roberts, 213 Ga. 112, 113 (97 SE2d 320); Kantzipper v. Kantzipper, 179 Ga. 850, 852 (177 SE 679); Smith v. Upshaw, 217 Ga. 703, 704 (124 SE2d 751).
Judgment affirmed. All the Justices concur.
Ernest McDonald, Adams & McDonald, contra.
Pittman & Kinney, L. Hugh Kemp, for plaintiff in error.
ARGUED NOVEMBER 14, 1962 -- DECIDED JANUARY 16, 1963.
Friday May 22 22:35 EDT


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