1. By section 1 of the act of the General Assembly approved March 2, 1933 (Ga. L. 1933, p. 238), it was declared: "That in all counties of this State having a population of twenty-six thousand seven hundred fifty (26,750) to twenty-seven thousand seven hundred fifty (27,750) inhabitants, inclusive, according to the United States census of 1930 or according to any subsequent United States census, the fee system of compensating the clerk of the superior court for all his services as such clerk, and as clerk of any other court in this State in said counties, is hereby abolished; and the said clerk shall hereafter be paid a salary as herein provided, in lieu of all fees paid said clerk under the fee system." On proper construction of the foregoing statute, it was not intended to apply to any county which according to the last preceding United States census does not have a population within the prescribed limits.
2. In the instant suit by Sumter County for the writ of mandamus to compel the clerk of the superior court of that county and of the city court of Americus to continue filing monthly statements and to pay into the county treasury the fees received by him, as he had done for several years in accordance with such statute before the year 1941, it appearing from the allegations that according to the Federal census of 1940 the population of the county fell below the prescribed minimum, the petition showed upon its face that the act of 1933, supra, did not apply to Sumter County at the time the suit was filed, April 11, 1941; and for this reason it was not error to sustain the general demurrer and dismiss the action.
Nos. 13937, 13941. NOVEMBER 12, 1941. In 1933 the General Assembly passed an act which in section 1 declared: "That in all counties of this State having a population of twenty-six thousand seven hundred fifty (26,750) to twenty-seven thousand seven hundred fifty (27,750) inhabitants, inclusive, according to the United States census of 1930 or according to any subsequent United States census, the fee system of compensating the clerk of the superior court for all his services as such clerk, *Page 172 and as clerk of any other court of this State in said counties, is hereby abolished; and the said clerk shall hereafter be paid a salary as herein provided, in lieu of all fees paid said clerk under the fee system." Approved March 2, 1933. Ga. L. 1933, p. 238. Other sections required the authorities of each such county to fix a salary not less than $4,000 per annum in lieu of fees, and declared that all fees and emoluments accruing to the clerk should be received and held by him for the sole use of the county or of the State of Georgia according to the service rendered, and be paid monthly "to the said county or State treasury, as the case may be, with an itemized statement verified by the said clerk, showing such collection and the source from which collected, which said statements shall be kept as permanent records of said county or State." §§ 2, 6.
On April 11, 1941, Sumter County instituted an action against H. E. Allen as clerk of the superior court of that county and of the city court of Americus, seeking a mandamus to require the clerk to comply with the foregoing statute. The clerk filed a demurrer, and an answer. His original demurrer contained grounds numbered 1 to 5 inclusive, to which a ground numbered 3A was added by amendment. The plaintiff demurred to the answer both generally and specially. The judge sustained all grounds of the defendant's demurrer as amended, except grounds 3A and 5; overruled the plaintiff's demurrer on all grounds, except one ground of special demurrer which he sustained in part; dismissed the petition for mandamus, and denied a mandamus absolute. The plaintiff excepted, and the defendant sued out a cross-bill of exceptions.
In the petition it was alleged: At the time of the passage and approval of said act Sumter County had a population as in said act provided, and immediately following the passage and approval of said act H. E. Allen, who was then clerk and has been clerk since said time, acquiesced in the provisions of said act, complied with same, and continued to comply with the provisions of same up to the first day of January, 1941. On January 30, 1941, H. E. Allen, as clerk of the superior court of Sumter County, Georgia, gave written notice to the commissioners of roads and revenues of Sumter County, Georgia, through its chairman, that because the population had fallen below the minimum named in said act, he was no longer bound by the provisions of said law, and he would therefore decline to comply with the provisions thereof as of January *Page 173 1, 1941. A copy of the notice, signed by the clerk and his deputy, was attached as an exhibit, and contained among others the following statement: "Irrespective of whether the act was, or was not, valid in its inception, it being by its terms a revolving act, and the population of the county having, as shown by the United States census of 1940, fallen below the minimum population prescribed by the act, we feel that we are no longer bound to its salary provisions." The petition contained no denial of this statement as to population by the census of 1940. It prayed for mandamus requiring the clerk to continue filing monthly statements and to pay all fees and emoluments into the treasury of Sumter County.
Grounds 1 and 2 of the defendant's demurrer were (1) "that the allegations of the petition do not justify the relief prayed for;" (2) "that the petition sets forth no cause of action." Grounds 3, 3A, and 4 assailed the act of 1933 as violating the constitutional provision against enactment of a special law in any case for which provision has been made by an existing general law (Code, § 2-401), and the uniformity provision contained in § 2-8401; ground 4 referring also to an act passed in 1941, amending the act of 1933 by striking the words "or any subsequent United States census." Ga. L. 1941, p. 493. Ground 5 of the demurrer was in part as follows: "Because the act of 1933 could only be designed as a rotating act, and by the census of 1940 Sumter County is without the terms of the class named in said act."
The main bill of exceptions challenged the judgment so far as it sustained any of these grounds of demurrer, and also assigned as error the overruling of the plaintiff's demurrer to the answer. The cross-bill of exceptions complained that it was error to overrule 3A and 5 of the defendant's demurrer, as amended. We consider first the main bill of exceptions.
It is a well-established rule of judicial procedure that the constitutionality of a statute will not be decided, if the case can be properly determined without deciding such question.Georgia Power Co. v. Decatur, 173 Ga. 219 (3) (159 S.E. 863); Moore v. Bell, *Page 174 186 Ga. 583 (2) (198 S.E. 711). It is also the rule that if a statute is reasonably susceptible of two constructions, one harmonizing it with the constitution and the other rendering it unconstitutional, the former construction is generally to be preferred. Smith v. Evans, 125 Ga. 109, 112 (53 S.E. 589);Fordham v. Sikes, 141 Ga. 469 (81 S.E. 208). In the instant case we are of the opinion that, regardless of its constitutionality, a proper construction of the act of 1933 required the judgment sustaining the general demurrer and dismissing the action. The question as to construction is whether the act applied to Sumter County after its population fell below 26,750 according to the United States census of 1940. While the question was raised by ground 5 of the demurer and that particular ground was overruled, it also inhered in grounds 1 and 2, contending in general terms that the petition did not state a cause of action, both these grounds having been sustained.
It is conceded in the briefs that the population of Sumter County is less than the minimum stated in the act, according to the census of 1940. Independently of this, however, and irrespective of any question as to judicial notice (cf. Fidelity Deposit Co. v. Smith, 35 Ga. App. 744, 746,134 S.E. 801), the petition, construed most strongly against the pleader, discloses the fact. It recites the defendant's contention that the act is not now applicable to Sumter County, for the reason that according to such census the population has "fallen below the minimum prescribed," and contains no denial of such statement of fact as to population. In James v. Maddox, 153 Ga. 208 (3) (111 S.E. 731), it was held: "Ordinarily the plaintiff, in his petition, need not anticipate or negative a possible defense. Where, however, such defense is anticipated, it must be effectually avoided, or the complaint is bad." So the petition here must be construed as showing affirmatively that the population of Sumter County is now less than the prescribed minimum; and if this does as a matter of law render the statute inapplicable, the action was properly dismissed under grounds 1 and 2 of the defendant's demurrer.
The intent of this act was to classify counties on basis of population, for the purpose of changing the system of compensation to clerks of the superior courts, as it then existed in such counties under general laws. As indicated in section 1, the class was to be *Page 175 composed of counties having a population of 26,750 to 27,750, inclusive, according to the United States census of 1930 or according to any subsequent United States census.
The constitution provides that "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law." Code, § 2-401. In Stewart v.Anderson, 140 Ga. 31, 33 (78 S.E. 457), this court had under consideration a statute which purported to classify counties in relation to method of compensating county officers. In the opinion it was said: "The legislature may make classification for purposes of legislation and pass general laws with reference to such classes. They may classify counties. The basis of classification must have some reasonable relation to the subject-matter of the law, and must furnish a legitimate ground of differentiation. Mere arbitrary discriminations are not permissible under the constitution. If a legitimate classification is made with respect to persons, the law must be applicable to all persons within the class or coming within the class. If the classification is sought to be made with reference to counties, and the basis of classification is legal, the law must apply to all counties within the class, or which may come within the class. The legislature could not constitutionally classify one county by itself. There must be some reasonable basis of classification, so that all which fall within the class may come within the scope of the provisions of the law. Although the act may purport to make a classification of counties for purposes of legislation, yet if the so-called class is so hedged about and restricted that the act applies only to one county, and that other counties coming within the class provided can not also come within the purview of the law, it is in fact a local or special act and not a general one." In Futrell v. George,135 Ga. 265 (69 S.E. 182), there was an attempted classification of counties having a population between 7,000 and 8,000, or between 13,700 and 14,000 or between 16,000 and 21,000 as shown by the United States census for 1900; and it was sought to vary the general road law by such an act. It was patent that the description included only a few counties under the census of 1900, and that other counties which might at any time thereafter have a population within the limitations stated could not come within the provisions of the act. It was accordingly held unconstitutional. *Page 176
In the instant case, any conclusion to the effect that Sumter County is now subject to the act of 1933, merely because its population was within the prescribed limits under the census of 1930, would ignore the provision as to "any subsequent United States census," and determine its status just as though no such provision was contained in the statute. If classification should be thus fixed unchangeably by the particular census, the county or counties might as well have been specified by name, since they could be readily identified by such description, and would be hedged thereby. Any such construction would render the act special, and repugnant to the constitutional provision contained in the Code, § 2-401, as quoted above. Futrell v. George, supra; Reynolds v. Hall, 154 Ga. 623 (2) (114 S.E. 891);Medders v. Stewart, 172 Ga. 507 (158 S.E. 56); Marbut v.Hollingshead, 172 Ga. 531 (2) (158 S.E. 28); Gibson v.Hood, 185 Ga. 426 (195 S.E. 444); Hoover v. Brown,186 Ga. 519 (198 S.E. 231). Since it should be presumed, prima facie, that no such unconstitutional result was intended by the lawmaking body, and an intention to that effect does not clearly appear, the necessary conclusion is that the purpose of this statute was to classify counties, not according to any particular Federal census, but simply by the last preceding census, at any given time.
If, in order to be valid, a classification by population must open to let in counties subsequently falling within the class, so also it must open to let out a county which either by increase or decrease according to the last census ceases to have the required population. Otherwise no constitutional classification could be maintained. See, in this connection, 12 Am. Jur. 146-7, § 479. Accordingly, under a correct construction of this statute, the words "any subsequent United States census" must be applied and given effect in determining the status of Sumter County; and since the population of this county fell below the prescribed minimum of 26,750 according to the census of 1940, the act is not now applicable to it.
Whether this conclusion would follow from a strict, grammatical construction of the statute, it accords with the principle that the intention of the legislative body, as it manifestly appears in a statute, must be carried into effect, although the precise and literal sense of the terms might be different. Erwin v. Moore, 15 Ga. 361; Demere v.Germania Bank, 116 Ga. 317, 318 (42 S.E. 488); *Page 177 Board of Tax-Assessors v. Catledge, 173 Ga. 656 (2) (160 S.E. 909); Evans v. Evans, 190 Ga. 364 (9 S.E.2d 254);Carroll v. Ragsdale, 192 Ga. 118 (15 S.E.2d 210); StateRevenue Commission v. Alexander, 54 Ga. App. 295, 297 (187 S.E. 707).
The court properly sustained grounds 1 and 2 of the general demurrer and dismissed the action. In this view, it is unnecessary to pass upon other questions raised by the main bill of exceptions, or to rule upon the assignments of error contained in the cross-bill.
Judgment affirmed on the main bill of exceptions; cross-billdismissed. All the Justices concur.