Macon & Augusta Railroad v. Little

Warner, Chief Justice,

dissenting.

This was an action brought by the plaintiff against the defendant on the contract of his testator as a subscriber for fifteen shares of the capital stock of the Macon and Augusta Railroad Company, to recover the amount due for his unpaid stock. On the trial, the defendant made a motion to dismiss the plaintiff’s action, on the ground that it was a debt existing prior to the 1st of June, 1865, and that no affidavit had been filed, that all legal taxes due thereon had been paid as equired by the Act of 13th October, 1870. The Court dismissed the plaintiff’s action, to which ruling of the Court the plaintiffs excepted. The Act of 13th of October, 1870, so far as it applied to the plaintiff’s debt, is in violation of the 10th section of the first Article of the Constitution of the United States, and is therefore void. See concurring opinion in Scott, guardian, vs. Dysart & Vinson, decided at the present term. That Act is also void, as having been passed in violation of the express provisions of the Constitution of the State of Georgia. The Constitution of 1868 declares that, “ No session of the General Assembly, after the second under this Constitution, shall continue longer than forty days, *410unless prolonged by a vote of two-thirds of each branch thereof.” This Act was passed at the third session of the General Assembly under the Constitution of 1868, more than forty days after the commencement of the third session, which was not prolonged by a vote of two-thirds of each branch thereof, and is therefore null and void as a law of this State. My reasons for this judgment were fully expressed in my dissenting opinion in the case of Gormley, Ordinary, vs. Taylor, (not yet reported) and will not be again repeated. All legislative enactments, which are to be binding upon the people, as laws, must be enacted in pursuance of the requirements of their Constitution, and if not, whenever they interfere with the lights of the citizen, such citizen may appeal to the Courts and have them declared void; for the Constitution of 1868 expressly declares that, “legislative Acts, in violation of this Constitution or the Constitution of the United States, are void, and the judiciary shall so declare them.” If the Courts may inquire into the validity of legislative Acts passed by the General Assembly when sitting within the time prescribed by the Constitution, much more may they inquire into the validity of pretended legislative Acts which were passed at a time prohibited by the Copstitution, because there is no legal presumption in favor of the validity of legislative enactments passed at a time expressly prohibited by the Constitution, although they may have the form and color of laws upon the face thereof, the more especially when it is apparent that such pretended laws were intended to deprive the honest people of the State of their legal and just rights to their property.

We may have a corrupt Executive, we may have a venal Legislature, (and such a state of things is not impossible,) still, if we have an honest, independent judiciary, the rights and liberties of the people may be protected; but if we have a mere time-serving judiciary, which will indorse and sanction the usurpations of the other two departments of the government, then the people will have no protection for *411either their persons or their property. The position assumed by the majority of the Court in this case, as I understand it, is that the session of the General Assembly of the State of Georgia, held in 1870, was not a session after the second, under the Constitution of 1868, but that the sessions of the General Assembly of the people of this State, held in 1868, 1869 and 1870, were held under the Reconstruction Acts of Congress, and, therefore, that clause of the Constitution of 1868 which prohibits any session of the General Assembly after the second, under that Constitution, from continuing longer than forty days, unless prolonged by a two-thirds vote of each branch thereof, has no application to those sessions of the General Assembly which were held in the years 1868, 1869 and in 1870. This position, in view of the plain facts of the case, is totally incomprehensible to my mind, and can only be accounted for on the principle of the old adage, that when a fox is closely pursued he will run into almost any hole.” The Constitution of 1868 was accepted by Congress as the organic law of the people of this State prior to the 21st July, 1868, in accordance with the provisions of the Reconstruction Acts, and that Constitution, so accepted by Congress, has never been interfered with as the organic law of the State, by Congress. It is true, that in December, 1869, Congress passed an Act to reorganize the General Assembly held under that Constitution, in accordance with their declared views of it, and it is also true that the General Assembly was purged by military authority, in violation of the provisions of that Act; but no Act of Congress has interfered with the provisions of the Constitution of 1868 since its acceptance by that body.

The General Assembly of the State of Georgia was created by the Constitution thereof, and owes its existence to that organic law of the State, and no session of the General Assembly of the people of Georgia, provisional or otherwise, could be held under any law except that which created it, and provided for its organization and election of its members *412Every session of the General Assembly of the people of Georgia, whether provisional or otherwise, must, necessarily, have been held under that Constitution which created it, and provided for its organization. If, since the acceptance of the Constitution of 1868 by Congress, under the Reconstruction Acts, there has been any unconstitutional interference by Congress or the military [authorities of the United States, with the sessions of the General Assembly of the people of Georgia under that Constitution, such interference does not make the sessions held under it any the less sessions of the General Assembly held under that Constitution. The published journals of the General Assembly show that the first session of the General Assembly, under the Constitution of 1868, commenced in July, 1868, and adjourned sine die on the 6th day of October, 1868. The second session of the General Assembly under that Constitution commenced on the 13th day of January, 1869, and adjourned sine die on the 18th day of March, 1869. The third session of the General Assembly under that Constitutson commenced on the 10th day of January, 1870, and was adjourned by proclamation of the Governor on the 25th day of October, 1870. The Act in question, now before the Court, was passed on the 13th day of October, 1870.

If the sessions of the General Assembly of the people of Georgia, held in 1868, 1869 and in 1870, were not held under the Constitution of 1868, under what Constitution, or under what law, organic or otherwise, was that body created and organized as the General Assembly of the people of the State of Georgia,'’and authorized to hold a session thereof?

The confessor of Ferdinand of Styria, the Jesuit, once said of him, that such was his devotion to his religious creed, that if a pries? and an angel had met Ferdinand, that he would have made his obeisance to the representative of Rome, before he noticed the heavenly visitor. The majority of the Court, in order to sustain their judgment in this case, exhibit a wonderful alacrity to make their obeisance to the Reconstruction Acts of Congress, without noticing the *413Constitution of the State, under which they hold their office, and which they are sworn to support, when there is nothing in those Acts which requires them to do so, in regard to the question now before the Court. But there is another difficulty in the way of the judgment of a majority of the Court, which, to most legal minds, would seem to be insurmountable. In Foster vs. Daniels, 39 Georgia Reports, 39, this Court unanimously held and decided that the Constitution of 1868 took effect and went into practical operation, on the 21st day of July, 1868. There is nothing in any of the Reconstruction Acts of Congress that interferes with or pretends to interfere with the principles settled by the unanimous decision of this Court in that case, in regard to the time when the Constitution of 1868 took effect and went into practical operation, and that is really the only question in the ease now before the Court. The 204th section of the Code declares that “A decision, concurred in by three Judges, cannot be reversed, or materially changed, except by a full bench.” This has not been done ; and the majority of the Court, as well as the minority, were bound by it, unless they have the legal power to dispense with the stern provisions of the law.

If the Constitution of 1868, as accepted by Congress, took effect and went into practical operation under the Reconstruction Acts, on the 21st day of July, 1868, as this Court unanimously decided, then there is an end of the question, whether the sessions of the General Assembly of the people of Georgia, held subsequent to that date, were held under that Constitution, for they could not have been held under any other law except that which created that legislative body, and provided for its organization. I, therefore, dissent from the judgment of the Court in this case, and in the case of Johnson, administrator, vs. Sayre et al.