specially concurring. The foregoing syllabus expresses the opinion of the court. For the reasons stated in Howell v. State, supra, I do not concur in the statement that as a matter of law any warden or the superintendent of the prison farm is the proper person to act as executioner within the terms *222of the act of 1924 (Acts 1924, p. 195). But in my opinion this does not affect the result.
On November 12, 1926, M. M. Gore, having been convicted of murder in the superior court of Fulton County, was sentenced to be executed between the hours of 10 o’clock a. m. and two o’clock p. m. on November 26, 1926, “by the warden of” the “penitentiary” of the State of Georgia “by electrocution, in private within the walls of said penitentiary, at Milledgeville, Georgia.” At the dates above mentioned B. H. Dunaway was acting under a commission issued, January 1, 1923, by the Prison Commission of Georgia, appointing him “warden of the male camp at the State Farm, Milledgeville, Georgia.” The following occurred in reference to the offices and tenure of office by Dunaway as superintendent and warden: A resolution was passed by the Prison Commission, May 10, 1922, which rescinded a former resolution adopted September 29, 1921, and declared “that the offices of superintendent and warden be separated,” that “the deputy wardens of the several departments shall be raised to the position of warden,” and that “the superintendent shall have charge of the management of the farm and shall direct its operation. He shall have general supervision over the wardens and employees of the farm and shall discharge all duties imposed upon him by the resolution of September 28th, 1921, . . except those specially undercharge of the warden, such as custody of prisoners and their discipline.” Also, that “the salaries of the superintendent and wardens shall be $100 per month,” and that B. H. Dunaway “was elected superintendent.” On December 20, 1922, another resolution was passed by the Prison Commission which declared: “Whereas, R. N. Etheridge, warden of-the male camp at State Farm, has resigned, effective January 1st, 1922, it is ordered that the office of warden of said camp be filled by B. H. Dunawajr, the superintendent of the farm, in addition to his duties as superintendent, and that his salary as superintendent and warden be $1800.00 per annum, beginning Januarjf 1st, 1923.” On April 1, 1925, the Prison Commission passed the following resolution: “It is ordered by the Commission that the salary of the superintendent and warden of the State Farm be fixed at $200.00 per month, $100.00 as warden and $100.00 as superintendent.” On February 13, 1925,. Dunaway executed separate official bonds with *223an indemnity company as surety on each, one for the faithful discharge of his duties as superintendent of the State Prison Farm at Milledgeville, Georgia, and the other for the faithful discharge of the duties of warden at the male camp of the State Prison Farm at Milledgeville, Georgia.
When the sentence of the court above mentioned was about to be executed, Gore instituted a suit against Dunaway for injunction and prohibition to prevent the execution, on the ground that there is no warden of the State Prison Farm and no warden to carry out the sentence of the court, but that Dunaway is in possession of the said order of the court and is threatening to carry out its terms, and that his act in doing so will be an illegal act, without authority, and not within the scope of his duties as superintendent of the farm, and that Gore will be denied due process of law. The petition also set forth a copy of the act of 1924 (Acts 1924, p. 195), relating to punishment by electrocution, and made special reference to section four of the act, which -is as follows: “That there shall be present at such execution the warden of the penitentiary, who shall serve as executioner, and at least two assistants, two physicians to determine when death supervenes, an electrician, a suitable guard, and, if the condemned person so desires, his counsel, relatives, and such clergymen and friends as he may so desire.” In paragraph 10.of the petition it was alleged that the act above referred to “was enacted for the purpose of changing the mode of execution of condemned persons as set out above and in Penal Code Section: Article 26, Sections 1069, 1070, 1072, and death penalty in section 63 of the Penal Code of Georgia, 1910,” and “is unconstitutional, in that there is no-legal machinery now in force in the State of Georgia, at this time, to carry the sentence in this case into execution. There is no such person as the warden of the penitentiary. Petitioner avers that the act contemplates the warden of the penitentiary of this State. It does not by its language say that the warden of the various departments has the authority to execute any condemned person. Petitioner further shows that the act strips the sheriff of the counties of Georgia of the authority to execute a condemned person, and it does not specially designate any official with the power to act with that authority — and that no such office as warden of the penitentiary now exists and did not at the time of the enact*224ment of the law referred to herein, and there is not now in fact any person or official who has that power, and for that reason said act and sentence herein is unconstitutional.” Except as just stated, the petition did not contain any other allegation attacking the act of 1924 or the authority of Dunaway as. warden as being unconstitutional. The defendant filed a demurrer and answer. The demurrer contained one ground alleging that the petition failed to allege any reason for the grant of the relief prayed, and the substance of this was elaborated in other grounds of the demurrer. Another part of the demurrer was on the ground that equity will not enjoin or interfere with the administration of the criminal law. At a hearing the demurrer was overruled, and, upon facts as sufficiently set forth above, the judge granted’an order, December 4, 1926, continuing of force a former restraining order “until the proper constituted authorities of this State, through the Prison Commission of Georgia, elect The warden of the State Penitentiary/ as provided by the laws of Georgia, and until further order of this court on a proper proceeding to modify this order.” The order just mentioned also contained an elaborate opinion by the judge, in which it was stated: “I hold that the act of 1924,- substituting electrocution for hanging, is constitutional and legal.” Also: “That the only question for me to pass upon is as follows, to wit: Is there The warden of the penitentiary, who shall serve as executioner/ as intended by section 4 of the act of the legislature of 1924, page 196 of said acts? If the court should answer this question in the affirmative, then the restraining order granted on November 25th, 1925, in this case should be dissolved. On the contrary, should this court answer this question in the negative,, then the said restraining order should be continued in force until The warden of the penitentiary, who shall serve as executioner/ is elected as provided by law. This is a very important and vital issue involved in this case, for the reason that no person in Georgia can deprive the petitioner of his life under said sentence, except the warden of the penitentiary. If any other person should do this, it would be depriving him of his life without.due process of law, as guaranteed to him by the constitution of the United States and the constitution of Georgia.” After a discussion of the question above indicated, the judge expressed the conclusion that Dunaway was not such a warden as was contemplated by the *225act of 1924, and could not lawfully execute the sentence of the court, and, having arrived at this conclusion, continued of force the restraining order as above indicated. Dunaway and Gore each excepted to the judgment. In the bill of exceptions filed by Dunaway error was assigned upon the judgment overruling the demurrer. The bill of exceptions also quoted specific excerpts from the opinion delivered by the judge, and, referring to each of them, alleged that the court “erred,” and that the plaintiff in error assigns error upon the ruling, without alleging any specific ground of error. In the bill of exceptions filed by Gore it is stated: “Plaintiff in error acquiesces to those portions of the above order which declare the holding of the office of warden of the male 'camp by B. H.' Dunaway illegal, and to those portions which hold that he can not legally execute plaintiff in error, as well as to the grounds therein stated for so holding. To the following portion of said order, however, plaintiff in error excepted, now excepts, and assigns same as error as being contrary to law now in force in Georgia: 'I hold that the act of 1924, substituting electrocution for hanging, is constitutional and legal.’ Plaintiff in error assigns the foregoing excerpt from the court’s ruling as error, upon the ground that it is contrary to: 'Art. 1. Bill of Rights. Eights of the Citizen. Section 6359. Paragraph 3. Life, Liberty, and Property. No person shall be deprived of life, liberty, or property, except by due process of law.’ Civil Code Georgia (1910); and upon the further ground that the said excerpt is contrary to: Art. 3. Legislative Department. Enactment of Laws. Section 6445, Par. 17, Statutes and Sections of Code, how amended. No law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made.’ Civil Code of Georgia (1910). In view of the fact that the act of 1924 (Georgia Laws 1924, pages 195-197 both inclusive, No. 475) fails to meet the requirements of the foregoing provisions of the constitution of' Georgia, the said act is unconstitutional and void. In rendering the above portion, of the decision excepted to by plaintiff in error, the court had before it for consideration the foregoing Georgia constitutional provisions. Error is further assigned on the ruling that the act *226of 1924 is constitutional and legal, on the ground that it is violative of the rights of plaintiff in error under the constitution of the United States: Art. 8. Amendments, as set out in the following section of the Civil Code of Georgia (1910) : ‘ Section 6700, Art. 14. (1) Citizenship. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the' United States, and of the State wherein they reside. No State shall make or .enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ Plaintiff in error assigns as error that the court’s ruling above set out is violative of the due-process clause contained in the foregoing constitutional provision. This • constitutional provision was before the court when the ruling was made. Plaintiff in error excepts to the foregoing excerpt from the court’s judgment, and assigns same as error upon the further ground that the said act of 1924 is in violation of the principle of constitutional law that elective officers can not be shorn of the powers and duties of their offices, and such powers and duties assigned to officers nominated to their offices by ministerial appointment, by mere act of the legislature. That the office of sheriff is an elective office under the constitution of the State of Georgia, and that among his powers and duties was the execution of criminals condemned in capital cases. Thus, the performance" of his official duties was controlled by the general electorate, and the power over the office was vested in the people directly, as expressed by their suffrage as citizens. The act of 1924, in derogating from the duties of the office of sheriff by giving the warden of the State penitentiary the power and duty to execute condemned persons, diminished the vested powers of the citizens of the State as a whole. That where legislation is so drastic in its object and so far-reaching in its effect that it works a diminution of the sovereign rights of the people, it must be submitted to the people by referendum as a constitutional amendment, since they, and they alone, can alienate from themselves those powers which from time immemorial have been exercised by them. To that part of the above-named order, ruling that the act of 1924 is constitutional and legal, plaintiff in error then excepted, *227now excepts, and assigns same as error on the ground that same is in violation of the constitution of Georgia, especially: fSection 6437, Par. 8. One subject-matter expressed. No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof/ Civil Code Georgia (1910). Upon this ground that the said act does not legally divest the sheriff of the power and duty of executing condemned persons. Also upon the ground that the said act does not legally amend or specify time and place; Section 1071, Suspension when convict is pregnant; Section 1072, Warrant to issue if execution not done, all of Penal Code of Georgia (1910), according to the constitutional requirements of section 6445 Civil Code of Georgia (1910), this section was fully set out above. All of which was before the trial court when the ruling excepted to was made.”