XA. TREATISE
CONSTITUTION OF GEORGIA
GIVING THE
Origin, History and Development of the Fundamental Law of the State, with all Constitutional Documents Con taining such Law, and with the Present Constitution, as Amended to date, with Annotations.
BY
WALTER McELREATH
of the ^Jtlanta (Ca.) Bar
" The fundamental principles of free government cannot be too well understood, nor too often recurred to."
I; Section 1; Constitution of 1861.
ATLANTA
THE HARRISON COMPANY 1912

COPYRIGHT, 1912

PREFACE
The fundamental law of any one of the original American States is a great subject worthy of the profoundest study. The consti tutional history and the organic law of Georgia are particularly and peculiarly worthy of such study.
As pointed out elsewhere, Georgia was the only one of the orig inal states founded and chartered after the English Revolution and the practical completion of the English Constitution by the great provisions of the Bill of Rights. Prior to 1752, when the govern ment of the Trustees was ended, there was no self-government in the Colony of Georgia, and no opportunity for the development of local political institutions. At this date, Virginia had already exercised local self-government through her House of Burgesses for one hundred and thirty-three years, and Massachusetts through her Assembly for more than a century, and a body of statute law had been enacted in each of those colonies and a peculiar system of local institutions had been developed. From the surrender of tlie government of the colony by the Trustees, until Georgia set up an independent government for herself, by the promulgation of a provisional constitution in April, 1776, was but twenty-four years
a period in which the germs of political institutions were in rapid gestation but too short for their birth ; hence, when an independent government was born in Georgia, it sprang more directly out of the common law and the English Constitution than that of any other American State. It would be a curious study to discover and rightly weigh the influence of this fact on the institutions and laws of the state and to determine the extent to which that in fluence still survives.
Every thorough lawyer and careful judge in Georgia has ex perienced great difficulty in tracing the history of constitutional provisions through the scattered and rare volumes of digests, codes and sessions laws and has suffered great inconvenience in ascer taining with certainty what was the organic law with respect to a given proposition at a given time. To remove this difficulty and to lessen this inconvenience, the preparation of the present work was undertaken, with the primary purpose to exhibit the funda mental law of the state, not to furnish a commentary upon it. It was at first proposed only to collect the several constitutions and

iv

PREFACE.

their amendments and to arrange them in chronological order and to follow these with the present Constitution in its amended form with notes to such of its paragraphs as had been construed by the courts of last resort, citing only a few leading cases. Even this was a difficult undertaking, for there is in existence, so far as the writer has been able to discover after patient search, but one com plete set of the acts of the legislature containing the legislative proposals of constitutional amendments. This priceless set of acts is part of the law library of Hon. W. K. Miller, of Augusta, Ga. to whose courtesy the writer is indebted for facts not otherwise obtainable concerning several of the early amendments to the Con stitution of 1798. Before the work had been completed it was urged upon the writer that it would be useful to enlarge upon the original plan and to make a more exhaustive treatment of the sub ject, both from an historical standpoint, and in the matter of annotation.
As finally undertaken, the task has been to show, as completely as the powers of the writer and the means and time at his dis posal would permit, the origin, evolution and meaning of all of the provisions of the States organic law. In order to show the source of these provisions which had their origin in the English Constitution, and to provide a ready reference to them the prin cipal documents embodying that constitution have been incorpo rated in Part Second, in chronological order and following them and preceding the first state constitution, the charter of the colony. As an additional means of showing the origin of the provisions of the present constitution, an historical note has been placed un der each paragraph where it seemed that such a note would be useful. The substance of these notes is perhaps known to every mature and scholarly lawyer, but the profession is being constantly recruited with ambitious and studious young men whose studies are not finished, and it is believed that these notes will be helpful to them and not in the way of the more mature and well informed.
While the period of Georgias colonial life was too short to
mature political institutions, the story of her public life and the
character, ambitions and ideals of her people during that period
of political ferment immediately preceding the war of the Revo
lution is inspiring to the pride of her sons of a later day and of
indispensable importance in any proper study of the evolution of
the organic law of the state. The story of this period, which has
until recently been locked up in the unpublished archives of the state

PREFACE.
and in the British colonial office has been made accessible by the ptiblication of the Colonial and Revolutionary records. The writer has attempted, in the early chapters of Part First, to present, as concisely as possible, so much of this material as seemed pertinent to the general purpose of the "work undertaken. After leaving" the colonial period, it was thought proper to prepare separate chapters dealing with the epochs which produced the several state constitu tions in order to present facts material to a clear understanding of the constitutions which were born of those epochs, mainly found in the journals of the General Assembly and of the several con stitutional conventions, in the messages of the governors, and in other sources not conveniently accessible to the average lawyer and the general reader.
Th,e main object of the work, however, was to so present the constitutional law of the state as it exists today as that its mean ing might be the more perfectly understood, and the attempt has been to arrange all of the material of the work so as to make it available as a means of interpreting the present constitution. To this end, for convenience of reference, an independent and con tinuous series of section numbers runs through the entire work_ so that by a use of the index and the cross references used in connection with the amended Constitution of 1877 contained in Part Third, easy comparison may be made of the provisions of the present Constitution with similar provisions in the constitutional documents which precede it and with the matter contained in Part First. In the preparation of the notes to the several paragraphs of the constitution, it was a matter of constant perplexity and doubt as to what should be their scope. The effort was to make the notes and the citation of authorities as nearlj exhaustive of the cases di rectly involving the constitutional provisions in question as possible and to avoid making them too long by citing authorities not directly in point. Many cases which do not bring a constitutional pi-ovision directly in cniestion, illustrate it in a collateral or secondary sense. Some of these wet~e cited, but it would obviously be im possible, in a work like this, to cite all such cases, and while care has been taken to make the notes full and complete it has not been intended to make the work serve all the purposes of a digest or a book of citations. Convenience being kept constantly in mind, the same proposition is sometimes stated, and the same case cited, under related sections.
This work does not pretend to be more than a collection and ar-

PREFACE.
rangement of material for a study of the constitutional history of Georgia. The writer is keenly conscious of the fact that his powers and opportunities would not have been adequate to a greater task, and not sufficient for a perfect performance even of the work un dertaken, but his excuse for attempting the work is that it seemed necessary to be done and no one else had done it. He has labored under the difficulty of doing his work in the evenings and at odd moments snatched from a life crowded with private, professional and public duties. It would be impossible for one far abler than he to do perfect work under such circumstances.
The writer knows of no other work prepared on an exactly sim ilar plan, and naturally feels a degree of misgiving, as to whether his plan is the best that could have been adopted. However, he hopes that it may be found convenient, and in some degree useful. The pioneer who cuts a new road through the forest prepares but a poor way at best, but he frequently sets future travel that way, and those who come after him remove the stones, cut down the hills and bridge the streams. If this work shall promote a study of the organic law of the state, make it in any degree better understood, render it more readily accessible and cause its principles to be better applied to the life of the people and thus serve in the slightest de gree, to accomplish the objects set forth in the eloquent preamble to the Constitution of 1877, the author will have accomplished his task and been repaid for his labors.
WALTER McEi/REAiH.
Atlanta, Ga., November 15, 791 T.

TABLE OF CONTENTS
PART I.
THE CONSTITUTIONAL HISTORY of GEORGIA.
Chapter I. The First Colonial Period; The Government under the Trustees, 1-10.
II. The Second Colonial Period; From the Surrender of the Charter to the Passage of the Stamp Act, H-33.
III. The Third Colonial Period; From the Stamp Act to the Passage of the Boston Port Bill, 34-41.
IV. The Fourth Colonial Period; From the Boston Port Bill to the Promulgation of the Provisional Con stitution of Georgia, 42-52.
V. From Provisional Separateness to Organized State hood, 53-64.
VI. The Revolution; The Federal Constitution, and the Constitution of 1789, 65-76.
VII. From the Convention of 1798 to the End of the Ante Bellum Era, 77-87.
VIII. Federal Relations and the Civil War Period, 88-100. IX. The Reconstruction Era; The First Period, and the Constitution of 1865, 101-106. X. The Reconstruction Era; The Second Period, and the Constitution of 1868, 107-119. XI. Restored Sovereignty, and the Constitution of 1877 ; 120-127.
PART II.
CONSTITUTIONAL DOCUMENTS.
1. Of English Origin; (1) Magna Charta, 128-166. (2) The Petition of Right, 167-177. (3) The Habeas Corpus Act, 178-198.

TABLE OF CONTENTS.
(4) The Bill of Rights, 199-224. (5) Charter of the Province of Georgia, 225-237. 2. Of the State of Georgia: (1) The Constitution of 1777, 238-301. (2) The Constitution of 1789, 302-351. (3) The Constitution of 1798, 352-439. (4) The Constitution of 1861, 440-548. (5) The Constitution of 1865, 549-649.
(6) The Constitution of 1868, 650-814.
(7) The Constitution of 1877, 815-1100.
PART III.
THE; CONSTITUTION OF 1877, AS AMENDED, WITH NOTES OF THE DECISIONS THEREON OF THE SUPREME COURT AND THE COURT of APPEALS OF GEORGIA, S 1100-1359.
INDEX .................................................. 677

PART I

The Constitutional History of Georgia.

CHAPTER I.

THE FIRST COLONIAL PERIOD THE GOVERNMENT UND^R THE TRUSTEES.

1. The provisions of a written constitution represent the theories of political science which, at the time of its adoption, had ripened into sufficient definiteness, and had acquired such a degree of popular approval as to be consciously agreed upon by an effective majority of the people of a state or nation as the practical basis of its public life. 1 The occasion of the creation of such instruments is usually the experience of public wrongs, and the ends sought by them are the common benefits which the people believe are the cer tain results of the free use of their natural rights. Their provisions usually reveal the scars of political disease, and disclose the pur pose for which the people desire political health and strength. Con sequently, a consideration of prior and contemporaneous history is a most useful means of determining the spirit and meaning of such a constitution. In the construction of such an instrument we are admonished, upon the highest authority, to look to the history of the times and examine the state of things existing when it was framed and adopted,2 and are told that the safest rule is to look to the nature and objects of the powers, duties and rights dealt with in it, with all the lights and aids of contemporaneous history and to give to each word just such force, consistent with its legiti mate meaning, as may fairly secure and attain the ends proposed,3 keeping in mind the mischief to be prevented, as disclosed in the history of the country,4 and always interpreting it in the light of the common law. 5
The history of Georgia is particularly favorable to the study of

1. Southern Ry. Company z>. Melton, 133 Ga. 382.

2. Rhode Island v. Massachusetts, 12 Pet. (U. S.) 657.

3. U. S. ex rel. Stokes, 16 Pet. (U. S.) 537.

4. Craig v. Missouri, 4 Pet. (U. S.) 410.

5. U. S. v. Worn King- Ark, 169 U. S. 649.

,/

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CONSTITUTIONAL, HISTORY.

[4

that peculiar phenomenon of American political life the creation of written constitutions and the development of government under them. She alone, of all the colonies, was founded under a charter :granted after the English Constitution had been practically com pleted, by the great second Magna Charta the English Bill of Rights 6 all the benefits of which were guaranteed to her citizens by express covenant. She enjoyed, during her short colonial life, a singular degree of royal favor and a fairly liberal government, yet we find her, within the period of half a life time, reversing all the theories of sovereignty and government which had previously obtained and creating for herself a complete, independent and newmodeled government. In order to understand her present organic law, it is proposed to examine, somewhat, the beginnings of her political life and to trace briefly and concisely the course of her constitutional development.

2. The constitutional history of Georgia begins on the 9th day of June, 1732, when the great seal was affixed to the charter of the colony. This charter constituted twenty-one persons a body corporate under the name and style of the "Trustees for Establish ing the Colony of Georgia in America" and invested the corpora tion for a period of twenty-one years with authority to form and prepare laws, statutes and ordinances, fit and necessary for the gov ernment of the colony, not repugnant to the laws of England, which were to be submitted to the privy council, and if there approved, to have force as law within the province; and also conferred on the corporation, during such period, the power and authority to erect and constitute judicatories and courts of record and other courts, to be held in the kings name, for the trial of all causes, civil or criminal, arising in the colon} and to enforce the laws by pains and penalties; to provide for the registration of conveyances; to ap point governors, judges, magistrates and officers, both civil and military, and to organize, instruct, exercise and govern a militia for the special defense of the colony; to use and exercise the mar tial law in times of actual invasion, and to erect and fortify forts. The charter further provided that at the expiration of twenty-one years such a government should then be established, as would, at that time, be judged best, in which the governor and all other

6. Taswell-Langmeade, English Constitutional History, p. 519.

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FIRST COLONIAL PERIOD.

[ 3-4

officers, civil and military, should be nominated and appointed by the king.
This great instrument, which lay at the political foundation of Georgia, expressly conferred upon the future inhabitants of the colony the benefit of all those great principles of English Constitu tional liberty, which had, by more than five centuries of struggle, been wrested from reluctant monarchs, by the provision that "all and every, the persons born within said province, shall have and enjoy all liberties and immunities of free denizens, as if abiding and born within Great Britain/ and also guaranteed liberty of conscience, to all persons, who might inhabit, or be resident in the colony, and that all such persons, "except papists,* should have freedom in the exercise of their religion.

3. On the second day of November, 1732, before the first em barkation, the trustees, under the power conferred by the charter, affixed their seal to a grant erecting "A. court of judicature" in the town of Savannah, by the name and style of the "Town Court." This court was given jurisdiction over "all manner of crimes, offences, pleas, processes, plaints, actions, matters, causes, and things what ever, arising or happening within the province of Georgia, or be tween persons inhabiting or residing therein, whether the same he criminal or civil, or whether the said crime be capital or not capital;" and, "whether the said pleas should he real, personal or mixed, they were to be tried according to the laws and customs of the realm of England arid the laws enacted for the province." 7 This court was composed of three bailiffs, who exercised the magisterial and judicial functions, and a recorder, who acted as clerk, free hold ers only acting as jurymen. On the 7th of November, 1732, the officers of the court were appointed, and at the same time eight conservators to keep the peace in the town. 8 This court was opened by General Oglethorpe in Savannah, on the 7th of July, 1733, when the first jury was drawn and impaneled, and the first case tried. 9

4. Few courts ever organized have exercised greater powers than did the Town Court of Savannah. It was a court of record,

7. Journal of the Trustees, Col. Rec. I, 83. 8. Minutes Common Council, Col. Rec. II, 11. 9. Jones History Georgia, I, 153.

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CONSTITUTIONAL HISTORY.

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was supreme, there being no appeal from it to any other court, and. in this one tribunal the several powers usually lodged in the courts of common pleas, chancery, probate, nisi prius, sheriffs, coroners and exchequer; in fact, practically the entire civil administration of the domestic affairs of the colony were all blended, and all com mitted "to men unread in the principles of law, and unversed in the usages of courts." 10 Some of the bailiffs appointed could not write, and none were qualified to exercise powers of the character over which their courts had jurisdiction. Naturally, such men could not administer the government competently, and strong public dis satisfaction soon sprang up. They were charged with "setting aside the laws of Kngland, making false imprisonments, wrongfully dis charging grand juries, threatening petty juries, blasphemy, irrever ence, drunkenness, obstructing the course of law, and other great and heinous offences." 11 When Frederica was settled a similar court was established there, and an early historian of Georgia, says : "Its officers excelled in injustice and ignorance the magistrates of Savannah." 12

5. But the infirmity of the government did not consist solely in its faulty administration. Much of it was inherent in the plan of government and the nature of the laws. One of the policies adopted by the trustees, which produced great dissatisfaction and retarded the increase of the population and the prosperity of the colony for several years, was the tenure by which the lands granted by the trustees were held. Fifty acres were granted each settler in tail male with the limitation that not more than five hundred acres should be granted to any one person, and with the restriction on alienation that the land granted could not be alienated in whole or any part, nor could any term, interest or estate in such land be granted to any person without a special license from the trustees and that "if any of the lands should not be planted, cleared and fenced, within the space of ten years from the date of the grant, every part thereof not planted, cleared and fenced should revert to the trustees." These conditions of tenure made the colonists a

10. Stevens History of Georgia, 1, 219. 11. Jones, Georgia., I, 343, citing and quoting from "A Brief Account of the Causes that have retarded the Progress of the Colony of Geor gia," Published in London, 1743. See also various entries in Stephens Journal, Col. Rec., Vol. IV. 12. Stevens, Georgia, I, 223.

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species of villeins, permanently attached to the lands granted them, which they considered contrary to the express guaranty of the char ter that every man "who transports himself hither, is to enjoy all the privileges of a free born subject." The trustees justified themselves in imposing these conditions on the grounds that the persons sent over were persons, "who had managed what they had so indiscreetly, that it did not seem safe to trust so absolute a property in their hands;" that to permit the alienation of lands might be the means of introducing- undesirable citizens into the colon}-- as land holders; that the trustees had brought the settlers to the colony for the special purpose of bringing its lands under cultivation and of dis tributing the population so as to promote the public defense, which would be defeated if the lands should be bought up in large bodies by individual owners. In December, 1738. a petition was presented by one hundred and seventeen free holders, mentioning among other grievances, "The want of a free title or fee simple to our lands." 13 This petition was denied, but even before its receipt the trustees had appointed a committee to prepare a law that the legal pos sessor, for the time being, of lands in Georgia, being tenants in tail male only, should, 111 default of issue male, by their deed or duly attested last will and testament appoint any daughter as his suc cessor, to hold to her, and the heirs male of her body, and, in case she had no daughter, to appoint any one male or female relation and the heirs male of his or her body as his successor. 14 Later the common council instructed the committee to go a step further and, in default of issue male or female, to empower the proprietor of any lot to appoint any other person, not a papist, as his suc cessor. 15 The committee, on the 8th of August, 1739, reported a set of resolutions modifying the provisions of the grants already made providing for a reversion to the Trustees on failure of male issue and for granting leave to free holders to name their suc cessors. 16 On the 28th of August the trustees adopted these resolutions. Daughters were permitted to inherit, with or without will, in default of male issue, to the extent of five hundred acres,

13. "An Account showing the Progress of the Colony of Georgia in America from its first establishment," published in London in 1741, cited and quoted, from in Jones* History of Georgia, 1, 106-108: McCalls History of Georgia (Reprint of A. B. Caldwell, Atlanta, 1909), p. 90.
14. Journal of the Trustees, Col. Rec. I, 345. 15. Minutes of Common Council, Col. Rec. II, 271. 16. Minutes of Common Council, Col. Rec. II, 300.

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CONSTITUTIONAL HISTORY._________JJJ

and every future grantee -was to have the right to give and devise his lands by his or her last will and testament. 17 Finally, in May, 1750, the tenure of grants already made was enlarged, so as to make them an absolute inheritance and all future grants were to be made on the same tenure. 18

6. Two other provisions of the Trustees for the government of the colony deserve special attention on account of the importance attached to them at the period of which we write, the statutes against the use and importation of rum and negroes in the colony.
The experience of several of the colonies already planted had warned the trustees that drunkenness was the most serious of all colonial vices, and when Mr, Oglethorpe -wrote them in August, 1733, that several persons had died in Savannah from the free use of rum, the Common Council promptly ordered "that the drinking of rum in Georgia be absolutely prohibited ;" 19 and that all -which should be brought there be staved; and they proposed an act to be effective on and after the 24th day of June, 1735, entitled, "An Act to prevent the Importation and Use of Rum and Brandies in the Province of Georgia." They provided, however, for the licensing of ale houses, and the sale of "strong beer," and wines, thus anticipating- by nearly two centuries, practically, the same experiment which the people of the State are now making. Although some effort was made to enforce the law, liquor was smuggled in from South Carolina and sold to the colonists in Savannah, and bartered to the Indians by Carolina traders. This act, like all laws on this subject, had stout opposition from part of the people and equally zealous support from others. Petitions and counter petitions for and against its repeal were constantly being made to the trustees. Eventually, the law became practically a dead letter, at least in the town of Savannah, Robert TTowe, the church clerk, saying of that place in 1739: "The rum act is not at all regarded, and if any man has but a shilling he lays it out in that way, not buying shoes or stockings. That from high to low the magistrates drink it and are unwilling to enquire what others use it. That this makes so many idle persons there, even the servants not caring to work above three hours, and then running

17. Minutes of Common Council, Col. Rec. II, 301, Georgia, 02.
18. Minutes of Common Council, Col. Rec. II, 544. 19. Journal of the Trustees, Col. Rec. I, 48.

394;

McCalls

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FIRST COLONIAL PERIOD. ______[ 7

to public houses and spending the rest of the day there." 20 In the same year (1739), it was stated by the kings of the Chickasaws and Cherokees that "The smallpox and rum carried up last winter by unlicensed traders, had slain near one thousand warriors and hunters among them." 21 When it is considered that the colony was founded for the relief of indigent persons, and that the people of the colony were, in a large part, supported for several years upon appropriations made by parliament and by benefactions collected from private philanthrophy, and, when it is remembered that the civilization of the Indians was one of the pet notions of the Trustees, it is not strange that they tenaciously clung to their opposition to a traffic "which promoted idleness and unthriftiness among the colonists and consumed their meager substance and bred disease and added ferocity and brutality to the savage.

7. Upon the same date upon which the trustees passed the rum act, they passed the act against the importation and use of negroes, but they did not put this act upon moral or humane grounds, but upon grounds of expediency, as indicated by the caption of the act, "which was entitled, "An Act for rendering the colony of Georgia more clefencible, by prohibiting the importation and use of black slaves or Negroes in the same." Expressed more fully, the reasons for the prohibition of negroes was that ex perience had shown that the settling of colonies with negroes obstructed the increase of "English and Christian Inhabitants;" laid the colony open to the danger of insurrection and servile wars; that the immigrants would be unable to sustain either the cost of a negro or his subsequent keeping; that it would render labor by the whites degrading, and induce idleness ; that the settlers had only fifty acres of land each, and would not need large bodies of servants; that white servants who could live in their families, would be more profitable; that it was designed to encourage the cultivation of silk and wines, which were industries requiring1 skill rather than brute strength. 22 While negro slavery was disallowed, a species of white slavery was instituted, by which Welsh, English and German servants, indentured to tbeir masters for terms of from four to fourteen years, were sent over and their service

20. Journal of the Earl of Egmont, Col. Rec. V, 178. 21. Journal of the Earl of Egmont, Col. Rec. V, 329. 22. Journal of the Trustees, Col. Rec. I, 49.

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sold to the colonists for the remaining portion of their terms. This species of servants, however, did not meet the needs of the situation. The production of silk and wines did not prove to be as profitable as had been expected. The production of lumber and the cultivation of rice and other crops were largely engaged in. The heat of the climate and the heavy nature of the labor necessary to clear the forests and to produce lumber and cultivate rice, and the inability of the people of the colony to produce lumber and rice in competition with South Carolina, where negro slavery was allowed, caused the removal of many of the colonists to that colony, so that Georgia not only languished but retrograded in population to such a degree that it was represented in 1740, that "The colony is reduced to one sixth its former number." 23 Numer ous petitions were sent to the Trustees for the repeal of the act without avail. Finally a meeting was held in Savannah on October 7, 1740, at which it was decided to appeal directly to the authorities in England, other than the Trustees, and Thomas Stephens was chosen the special representative of the colonists to present their grievances. Upon his arrival in England he pre sented a petition to the King and, at practically the same time, presented another to Parliament, in both of which he presented the deplorable condition of the colony and charged the Trustees with gross mismanagement and injustice and -with a continual re fusal to listen to the complaints of the people. 24 The House of Commons decided to enter upon a complete investigation of the matter and, after a hearing extending through several sessions at which both sides were represented by counsel, the house decided that, so far as the petition filed by Stephens tended to asperse the characters of the Trustees it was "false, malicious and scandalous," and that Stephens was in contempt of Parliament for having filed it. The House further decided that it would "be an advantage to the colony of Georgia to permit the importation of rum into the said colony from any of the British colonies," but a motion to add, by way of amendment, the words "as also the use of negroes, who may be employed there with advantage to the colony, under proper regulations and restrictions," was defeated by a majority of nine votes. 25 Accordingly on the 14th of July, 1742, the Trustees repealed the rum act, in so far as it prohibited the im-

23. Stevens, Georgia, I, 396. 24. Journal of the Trustees, Col. Rec. I, 396, 397, 400. 25. Stevens, Georgia, I, 305.

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portation of rum into the province from the British colonies, pro viding, however, that the rum so imported should be bartered or exchanged for lumber or other goods, wares or merchandise of the province. 26
Notwithstanding their former opposition and that of Parliament to the introduction of negro slaves into the colony, the Trustees set about ascertaining the real state of public sentiment concerning the matter in the colony, and were finally convinced of the neces sity of yielding their views in the matter, and, on the 8th of August, 1750, they repealed the Prohibitory Act, 27 and thus, by the overmastering industrial necessity of the age, Georgia took into her social and political life that institution about which the greatest constitutional contests of America have been waged in legislative halls, in judicial tribunals and upon a hundred hard fought fields of battle, and the end of which is not yet come.

8. In 1741, having realized that the scheme of government by a bailiffs magistracy had failed, the Trustees resolved to change it and appointed a committee consisting of the Earl of Shaftesbury, Mr. Vernon and several of the Trustees, who were members of Parliament, to prepare a new plan for the government of the colony. 28 This committee devised a constitution which was adopted by the Common Council, that divided the Province of Georgia into two counties, one to be called Savannah, including all the territory north of Darien; and the other to be called FYederica, comprising St. Simons and the settlements on the Altamaha. Each of these counties was to have a president and four assistants who were to constitute the civil and judicial tribunals in their respective counties. Williams Stephens was appointed president of the county of Savannah, and Henry Parker, Thomas Jones, John Fallowfield and Samuel Mercer, assistants. 29 On the 7th of October, 1741, the instruments containing this constitution and the appointments made under it were read in open court in Savannah, and, on the 12th day of the same month, the two officers met and assumed the administration of the government in the county.30

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The appointments for the county of Frederica were not made at the time of making those for Savannah, the council deferring the making of these appointments to confer with General Oglethorpe upon his return to Kngland.31 In May, 1743, before any appointments had been made for the county of Frederica, the council revoked the former constitution and consolidated the government by conferring jurisdiction over the whole province upon the president and assistants of the county of Savannah, after which the old bailiffs at Frederica became local magistrates sub ordinate to the superior authority at Savannah.32

9. This plan worked much better than the old, but the people yet complained of many grievances and, on the 13th of March, 1750, the Committee of Correspondence submitted a re port to the Common Council of the Trustees in "which they say, "That they have taken into consideration that many settlements that are made in different parts of the province, the true state of which in particular, as \vell as the province in general, it is neces sary the trustees should, from time to time, be acquainted with, the better to enable them to procure all the advantage they can for the good of the people, and provide for the welfare and se curity of the province," and that they had resolved upon the following proposal:
"That an assembly be formed and authorized to meet in the town of Savannah, in Georgia, every year, at the most leisure time, and such time as shall be appointed by the President and assistants; no such meeting to continue longer than three weeks, or a month at farthest.
"That every town, or village, or district in the province where ten families were settled, be empowered to depute one person,, and where thirty families were settled to depute two persons to said assembly.
"That for the town of Savannah there be four deputies; for the Town of Augusta two deputies, for Ehenezer, two deputies, and if thirty families are settled at Frederica, that they may be em powered to send two also.
"That the power of making laws being, by his Majestys Charter, vested in the Trustees the assembly can only propose, debate and represent to the Trustees what shall appear to them to be for the

31. Journal of Trustees Col. Rec. I, 368. 32. Journal of the Trustees, Col. Rec. I, 429.

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benefit, not only of each particular settlement, but of the province in general.
"That the deputy or deputies of ever}1 place, shall deliver to the assembly, within three days after their meeting, an account in writing of the state of his or their settlement signed by such deputy or deputies, which account shall contain the number of people, as well of negroes as of whites (distinguishing men from women and children, of either kind, and the childrens sex and age) ; the quantity of land cultivated by each inhabitant of such settlements, and in what manner; the number of negroes kept, and the number of mulberry trees standing (properly fenced) on each plantation, and the progress made by each man or family, in the culture of wine, silk, indigo, cotton, etc.
"That the said accounts, as likewise the proposals and represen tations of the assembly, shall, when signed by the person presiding in it, be delivered to the President and assistants, in order to be transmitted to the Trustees for their consideration.
"That the person to preside in the Senate be chosen by them, to be approved or disapproved by the President, that he-be obliged, if it is demanded by any three of the assembly, to give his reasons for so doing, and transmit the same in writing to the Trustees.
"That the assembly be empowered and called to meet as soon as conveniently may be; but that from and after the 24th day of June 1751, no person shall be capable of being chosen a deputy, who has not one hundred mulberry trees planted, and properly fenced upon every fifty acres he possesses; and that from and after the 24th day of June, 1753, no persons shall be capable of being chosen a deputy, who has not strictly conformed to the limitation of the number of negro slaves in proportion to his white servants, who has not at least one female in his family, instructed in the art of reeling silk, and who does not yearly produce fifteen pounds of silk upon fifty acres of land, and the like quantity upon every fifty acres he possesses.
"But as the trustees are desirous of seeing- some immediate good effects from this assembly, and are sensible that, at the present, there are not many in the province, who may have the aforesaid qualifications, they do not insist on requiring any of these in the deputies who meet in the assembly within the year 1750."33

33. Minutes of Common Council, Col. Rec. II, 498.

1O ]

CONSTITUTIONAL HISTORY.

[ 14

This proposal was sealed and became the law of the Trustees on the 27th day of March, 1750, and the first meeting of this provincial parliament, which indeed was a "parliament," in the literal sense, for it could only parley, and not legislate, and eligibility to membership in which depended, not upon educational qualifications, nor upon the free hold of lands, but upon mulberry trees and raw silk, convened in Savannah on the 15th day of January, 1751. It was the first representative assembly in Georgia. On the part of the Trustees it was a sort of census agency and information bureau to discover the state and needs of the colony; on the part of the colonists it was a sort of organized and representative method of exercising their constitutional right of petitioning for redress of grievances. After having deliberated for some weeks, they then submitted, on the 30th day of January, certain "heads of grievances," and then proceeded to formulate an address containing additional representations; one of which is material to the purpose of this work, and of the highest importance. This was with reference to the separate existence of the colony, after the expiration of the charter, which would occur within two years. They feared that when the charter expired the colony would be annexed to South Carolina and that the people of Georgia would be treated, "as persons, fit only to guard her frontier." After having concluded their list of grievances, and formulated and submitted their address and representations, the assembly was dissolved on the 8th day of February, 1751.34

10. The time when the charter was to expire by limitation being now near at hand, the Common Council of the Trustees, on the 27th day of April, 1751, appointed a committee, with the Earl of Shaftesbury as chairman, to arrange the surrender of the charter. The committee and the Trustees evidently shared the fears of the colonists that the separate existence of the colony as an independent province might be lost by such surrender, and they undertook to bargain against such a fate.35
By reference to the terms of the charter, it will be seen that, while the powers of the Trustees to govern and make laws was limited to twenty-one years from the date of the charter, the right

34. Stevens, Georgia, I, 248-250. 35. Minutes of Common Council, Col. Rec. II, 506.

15 ]

FIRST COLONIAL, PERIOD.

[ 10

to grant the lands conveyed by the charter was granted to said corporation and its successors forever. The committee prepared a memorial in which they proposed to surrender their trusts for the granting of lands in the colony upon certain conditions, one of which was, "That the colony of Georgia be confirmed in a separate and independent province, as it is expressly declared in his Maj estys charter it shall be, in confidence of which the inhabitants, both British and foreigners, have gone thither, and as the assembly of the Province of Georgia have petitioned for in a representation to the trustees dated January 15th, 1750,"
This memorial was laid before the Lords of the Privy Council, who replied, in substance and effect, that they could not advise the king to agree to any conditions, unless the Trustees would make an absolute surrender of their charter. Although the charter did not expire by limitation until the 9th day of June, 1753, the Trus tees were in financial straits and were without the funds to carry on the government of the colony, and, having arranged such terms of surrender as guaranteed the integrity of the colony as an inde pendent province, separate from South Carolina, they decided to make an immediate surrender of all of their rights under the charter.36 Accordingly, a deed -was prepared by which the Trustees surrendered their trusts into the hands of the King, and at a meet ing held on the 23rd day of April, 1752, they made their last grant of land, paid their last bills, rendered to the L,ord High Chancellor and the Master of the Rolls their last account, affixed the seal of the colony to the deed of surrender, after which they defaced the seal, and the first period of Georgias political history was at end.37
For the period of twenty-one years during which the govern ment was vested in the Trustees, its inhabitants were practically without the exercise of any of the forms of self-government. The Trustees were good men and observed faithfully all of the guar anties of the organic law under which the colony had been founded, but the history of the institutions and civil government of the colony during this period affords striking proof of the difficulty of gov erning men by laws not of their own making, and by magistrates not of their own choosing.
The Trustees could not always plan wisely nor execute well, but there is in their conduct with reference to the colony not

36. Minutes of Common Council, Col. Rec. II, 513. 37. Minutes of Common Council, Col. Rec. II, 523.

10 ]

CONSTITUTIONAL HISTORY.

[ 16

a single act of intentional oppression or tyranny ; there is not the remotest suspicion that any of them ever sought his own profit, but the story of their rule is a story of good intentions, of honest pur pose and of unselfish philanthrophy and the government of Georgia, by the men who founded her and nursed her in her infancy, is the brightest spot in British colonial history.

17]

SECOND COLONIAL, PERIOD.

[ 11

CHAPTER II.
THE SECOND COLONIAL PERIOD.
FROM THE SURRENDER OF THE CHARTER To THE PASSAGE OF THE STAMP ACT.
11. On the surrender of the charter, the government of the colony passed under the control of the "Board of Trade and Plantations" acting under His Majesty, composed of Lords Com missioners appointed for the superintendence of colonial affairs. 1 In order to provide for the government of the province until a new form of government should be prepared and instituted, a proclama tiito_inn wwas made early in June, 1752, by the Lords Justices, upon the advice of the Privy Council, that all officers of the colony both civil and military holding appointments from, the Trustees, should continue in their respective places of trust, and that all the in habitants should render obedience and assistance to them in the performance of their official duties. 2 On the 18th day of January, 1753, the Privy Council took under consideration "The necessity that appeared to them for the immediate establishing of a form of government m his Majestys colony of Georgia." And on the 5th day of March, 1754, the Lords Commissioners for Trade and Plantations, to whom the matter had been referred, submitted the following plan:
"That of the different constitutions now subsisting, in His Majestys Dominion of America, the form of government estab lished by the crown in such of the colonies as are more immediately subject to its direction and government appears to us the most proper form of government for the province of Georgia.
"We would therefore propose that a governor should be ap pointed by commission under the great seal, in like manner as the governor of His Majestys other colonies and plantations are ap pointed with power and directions to call an assembly to pass laws, to erect courts of judicature, to grant lands and to do all other nec-
1. Stokes View of the Constitution of the British Colonies, 115. 2. Mss. referred to in W. B. Stevens History of Georgia, 1, 372 (note).
2

12 ]

CONSTITUTIONAL HISTORY.

[ 18

essary and proper things, in such manner, and under such regula tions, as shall, upon due consideration, appear to be best adapted to the present circumstances of the colony. All of which matters as well as every other regulation necessary to be made for the better ordering and governing the colony, conformably to the plan proposed will come under consideration when we receive his Maj estys directions to prepare instructions for the government, etc.
"We would likewise propose that twelve persons should be ap pointed by his majesty to be his council of the colony, with the same powers, authorities and privileges, as are given to, or enjoyed by the Council of his Majestys other colonies.
"We further recommend that the governor be Vice-Admiral of the colony, that a court of admirality should be constituted; that custom officers should be appointed; that a register and receiver of quit rents, and a surveyor of lands be appointed ; that a secretary be appointed to keep the public records, and to act as registerer of deeds, and as clerk of the Council, that a Provost Marshal be ap pointed to execute the office of sheriff, until the province should be divided into counties; and that an Attorney General be appointed to assist the governor and council in matters of law, -which may come before them in their judicial capacity."3

12. The plan proposed was approved, and the Lords Com missioners of Trade and Plantations were instructed to nominate to the king a proper person for appointment as governor and proper persons to compose the provincial council and to fill the offices provided for in the scheme of government which had been adopted. Such nominations having been made, on the 6th day of August, 1754, the king appointed Captain John Reynolds, governor of the province; William Clifton, Esq., attorney general; James Habersliam, secretary and register of records; Alexander ICeller, Esq., provost marshal; and William Russett, Esq., naval officer. Patrick Graham, Sir Patrick Houston, James Habersham, Alex ander Keller, AVilHam Clifton, Noble Jones, Picker ing Robinson, Francis Harris, Jonathan Bryan and William Russell, were con firmed as members of the Council, and afterwards Clement Martin was added.
The task of preparing a better abstract of the scheme of govern ment, and the political machinery provided for the administration
3. Stevens, Georgia, I, 381-383.

19 ]

SECOND COLONIAIv PERIOD. [ 13-14

of the executive, legislative and judicial affairs of the colony, than has already been prepared by the principal historian of Georgia, would certainly be difficult., and probably impossible, and so we quote this abstract in the next succeeding sections.

13. "The official title of Governor Reynolds was Captain General and Governor-in-Chief, of his Majestys Province of Georgia, and Vice Admiral of the same. He was addressed as Your Excellency and was, within the colony, the immediate and highest representative of his Majesty, enjoying prerogatives which, within a limited jurisdiction and in a modified degree, savored of royalty. As Captain General, he commanded all land and naval forces, appertaining to the province, and appointed all officers of the militia.

14. "As Governor-in-Chief, he was one of the constituent parts of the General Assembly, possessing the sole power of con vening, adjourning, proroguing and dissolving the body. It rested with him to approve or to veto any bill passed by the council and the assembly. All officers who did not receive their warrants directly from the crown were appointed by him, and if vacancies occurred by death or removal, in offices usually filled by the im mediate nomination of his Majesty, the appointees of the governor acted until the pleasure of the home government was promulgated, and until superseded, they received the profits and emoluments appertaining to the stations they were called upon respectively to fill. He was custodian of the great seal, and as chancellor, exer cised, within the province, powers of judicature similar to those reposed in the High Chancellor of England. He presided in the court of errors composed of himself and the members of council as jurors, hearing and determining all appeals from the superior courts. As ordinary, he collated to all vacant beneficies, granted probates of wills, and allowed administration upon the estates of those dying intestate. By him were writs issued for the elec tion of representatives to sit in the Commons House of Assembly. As Vice Admiral, while he did not sit in the court of vice admirality (a judge for that court being usually appointed from England) in time of war he issued warrants to that court, empowering it to grant commissions to privateers. "With him reposed a power to pardon all crimes save treason and murder. It was optional with him to select as his residence such locality within the limits of the

15-17]

CONSTITUTIONAL HISTORY.

[20

province, as he regarded most convenient for the transaction of the public business, and he might direct the assembling of the General Assembly at that point. He was invested with authority, for just cause, to suspend any member of council, and, in a word, to do all other necessary and proper things in such manner and under such regulations, as should, upon due consideration, appear to be best adapted to the circumstances of the colony.

15. "The kings council consisted of twelve members in or dinary, and of two extraordinary members appointed by the crown to hold office during his Majestys pleasure. When, by reason of death or absence, the number of councilors in the province was less than seven, the governor was authorized to fill all vacancies up to that number until the Kings pleasure could be signified. Should the governor be dead or absent from Georgia, the adminis tration of affairs devolved upon the lieutenant governor, who was styled, His Honor, and who, while executing the government, was entitled to half the salary and fees enjoyed by the governor. When the governor was present, the lieutenant governor was entitled neither to salary nor to perquisite. If both the governor and the lieutenant governor were dead or absent, the senior member of the council in ordinary administered the government, receiving the same compensation as that allowed to the lieutenant governor when acting in the place of the governor. The two extraordinary members of council, who were the surveyor general of trie customs and the superintendent general of Indian affairs, were not allowed to preside in the absence of the governor, and the lieutenant governor.

16. "When sitting as one of the three branches of the legis lature, the council was styled the Upper House of Assembly. It also acted as privy council to the governor, assisting him with advice in conducting the government. As an tipper house of as sembly, or as a privy council, five members constituted a quorum, if there were so many present. Three, however, in an emergency, were sufficient for the transaction of business. As a council, they convened whenever the governor saw fit to summon them, and on such occasions, the governor presided and suggested matters for consideration and advice.

17. "When sitting- as an upper house the members of the council met at the same time that the Commons House of Assembly

21 ]

SECOND COLONIAL PERIOD. [ 18-19

was convened, was presided over by the lieutenant governor (if he was of the council and present), or in his absence by the senior member present, and observed forms of procedure similar to those used in the House of Lords in Great Britain, with the exception that no member had the right to make a proxy, and no adjourn ment during the session could be authorized for a longer period than from Saturday to Monday.

18. "The qualification of an. elector was the ownership of fifty acres of land in the parish or district where he resided and voted; that of a representative was the proprietorship of five hundred acres of land in any part of the province. Writs of elec tion were issued by the order of the governor in council, under the great seal of the province, were tested by him, and were returnable in forty days. The representatives, when convened, were called the Commons House of Assembly. Choosing their own speaker, who was presented to the governor for his approbation, this body, composed of the immediate representatives of the people, and con forming, in its legislative and deliberative conduct to the precedence established for the governance of the English House of Commons, continued its session until dissolved by the governor. Its adjourn ments were de die in diem, except when Sunday intervened. The representatives selected their own messenger and doorkeeper, but their clerk was appointed by the governor. This Commons House of Assembly claimed and enjoyed the exclusive right of originating money bills. The upper and lower houses as thus constituted formed the General Assembly of the province, and legislated in its behalf. Journals were regularly kept by each body. All bills hav ing passed both houses were submitted to the governor for his approval, and if approved by him, the seal of the colony was duly attached and they were duly filed. Authenticated copies were then prepared and transmitted for the information and sanction of the home government.

19. "Provision was made for the establishment, in Georgia, of a court of record to be known as the General Court, to be holderi four times a year and to possess the same jurisdiction in the province, that the courts of Kings Bench, Common Pleas, and Exchequerer exercised in England. Letters patent were also issued for erecting a court of session of Oyer and Terminer and General Gaol delivery, to be holden twice a year. The civil busi-

20-24 ]

CONSTITUTIONAL HISTORY.

[ 22

ness was to be transacted in the General Court, and the criminal business in the court of Oyer and Terminer. Grand juries were returned twice a year. As the judges of the two courts were the same, and as a general jail delivery only twice a year was insuffi cient in a warm climate, where the accused suffered much from close confinement, arrangements were subsequently made to abolish the Court of Session of Oyer and Terminer, To transfer its business to the General Court, and to cause four grand juries to be returned each year. The General Court remained stationary at Savannah, where its sessions were regularly held.

20. "The presiding judge was styled Chief Justice of Georgia. He was a barrister at law, had attended Westminster, was appointed by warrant under his Majestys sign manual and signet, and enjoyed a salary of 500 pounds sterling, raised by annual grant of parliament. The assistant justices were three in number. They received no salary, except on the death or in the absence of the chief justice, and were appointed by the governor.

21, "During the kings government there was also a court of vice admiral!}, with a justice appointed by the crown, to judge of captures at sea and to take cognizance of all maritime causes.

22. "Inferior or justice courts were provided for the trial of minor causes. Where the debt or damages claimed did not ex ceed forty shillings, there was no appeal. The jurisdiction of courts of conscience was limited to eight pounds. Attorneys at law. who also acted as counsel, were admitted by the General Court.

23. "The provost marshal received his appointment from the crown. His duties were akin to those of a sheriff of a county in England. He was also the returning officer for every district and parish in the province and was by law empowered to appoint deputies pro hac vice to hold such election for him.4 "

24. Governor Reynolds arrived in Savannah on the 29th day of October, 1754, and on the following day presented his com-

4. Jones, Georg-ja, 463-466, citing- Stokes View of the Constitution of the British Colonies in America, pp. 259-261.

23 ]

SECOND COLONIAL PERIOD.

[ 25

mission to the president and the council, and assumed the govern ment and announced the dissolution, of the old board and the formation of a royal council under letters patent from the crown. The next morning, the members of the council took the oath of office when the council was organized and the other officers of the government sworn. 5 The governors commission as captain general and vice admiral of the province was read, to the militia, which -was in line before the council chamber. A proclamation was published continuing all officers in their employments until further notice, and writs of election were issued for the selection of members of a general assembly to meet in Savannah 011 the 7th of January, 1755. The creation of courts of justice and judicature was taken under consideration by the governor and his council, but final action was not taken until the 12th of December, when the council created a system of courts for the province by adopting a report prepared for them by the attorney general. 0
25. The system o f courts created by the council consisted, of a General Court, a Court of Chancery; a special court of Oyer and Terminer; a Court of Admiralty; Justice Courts; and pro vision was made for the issuing, in emergencies, of special cornmissions of oyer and terminer to the justice of a district where a capital offence was committed by a slave for the trial of the accused without a jury. The General Court -was permanently located in Savannah and held four regular terms a year. It had jurisdiction of all criminal matters and of all civil actions, real, personal and mixed, where the amount in controversy exceeded forty shillings. If the amount involved exceeded three hundred pounds, an appeal lay to the governor and council; and if the judgment was for more than five hundred pounds, a further appeal could be presented to his Majesty in council, provided the appellant would enter into security to press his claim and respond to the final judgment. The Court of Chancery, which was open after each session of the General Court, had jurisdiction of equity cases. The governor sat in this court as chancellor, and its other officers were a master, a register and an examiner. The special court of Oyer and Terminer, -which was first provided for the trial of criminal causes, was soon discontinued and its business tranferred

5. Proceedings of the President and Assistants, Col. Rec. VI, 461. 6. Proceedings and Minutes of the Governor and Council, Col Rec. VII, 42.

26]

CONSTITUTIONAL HISTORY.

[24

to the General Court. The Court of Admiralty, appeal from which lay to the High Court of Admiralty of England, had jurisdiction over violations of the acts of trade, the wages of seamen, claims of salvage and maritime affairs. The governor presided over this court as vice admiral, and the other officers were a judgeadvocate, an advocate-general, a marshal and register. Justices authorized to hear and determine civil causes, where the amount involved did not exceed forty shillings, and to try, in emergency, cases under special writs of oyer and terminer, offences committed by slaves, were appointed for the several districts of the province.7

26. On the 7th of January, 1755, the first General Assembly of Georgia met in Savannah.8 Many of the acts passed by this legislature were of the highest importance and a study of them would be a curious and instructive task, but none of them fall within the purpose of this work except such as relate to the organization of the various departments and agencies of the gov ernment, and such as present questions affecting the constitutional rights of the people of the province or throw light upon the de velopment of the organic law of the State. Among the laws passed during1 the administration of Governor Reynolds, two or three are worthy of special notice. One was an act providing for the emis sion, making current, and redemption of paper bills of credit, -which bore interest at the rate of six per cent per annum, and which were declared to be a legal tender in payment of all debts and dues. 9 The practice of issuing such currency was an expedient resorted to by practically all of the colonies, and was rendered necessary by the fact that the foreign trade of the colonies absorbed all of their specie and, but for this colonial currency, the people of the colony would have been left to carry on commerce among themselves by notes of hand, orders on merchants, or the barter of specifics. This expedient was itself but a poor one, for the currency of the colony was not a legal tender beyond its own borders and was rarely at par, even within the colony of original issue. "Until the issue of currency under this act, the people of Georgia were dependent upon the bills of South Carolina, which were so much depreciated that seven pounds of such currency was only worth one pound sterling.

7. Proceedings and Minutes of the Governor and Council, Col. Rec. VII, 49.
S. Journal of the Commons House of Assembly, Col. Rec. XIII, 7. 9. Statutes Enacted by the Royal Legislature, Col. Rec. XVIII, 48.

25 ]

SECOND COLONIAL PERIOD.

[ 27

The issue of the colonial currency was disapproved by the Lords Commissioners of Trades and Plantations, and, in 1751, an act had been passed by Parliament for regulating and restraining bills of credit in the colonies, "by which colonial bills were not to be a legal tender, and could only be emitted for the current expense of the year, and in case of invasion." This foreshadows the provision of the constitution of 1877, that "No debt shall be contracted by and on behalf of the State, except to supply casual deficiencies of revenue, to repel invasion, suppress insurrection, and defend the State in time of war, or to pay the existing public debt." Under the peculiar circumstances, and in view of the manner in which the currency was to be issued, this act of Parliament was not en forced as to Georgia. 10

27, Another act passed by the assembly, deserving of some particular notice, was the act for the better ordering and gov erning of negroes and other slaves in the province. Under the provisions of this act, slaves charged with capital crimes were to be tried by two justices of the peace and not less than three, and not more than five freeholders in the district where the crime was committed. Upon conviction, the defendant was to be sum marily executed by the constable of the district. This act contained many other provisions regulating the conduct of slaves and pre scribing the duty of their masters to them, a number of which remained in force until rendered inoperative by the fall of the Confederate States, and their repeal by the Constitution of 1865. 1:L It serves to illustrate the pregnant meaning of the word "free" as used in the twenty-ninth article of Magna Charta. This principle of legal discrimination in favor of the free man whereby superior safeguards were set about his trial and punishment for crime came early to be embodied in the fundamental law of the State. It appears, first, in the amendment of 1810-1811 in which the superior courts were given final and exclusive jurisdiction in all criminal cases "except as relates to people of color, etc.," which might be tried in such statutory courts as might be provided. This pro vision appears in all the subsequent amendments of the constitution of 1798 defining the jurisdiction of the superior courts, and in the constitution of 1861. The first code, published in 1861, contained

10. Stevens, Georgia, I, 403. 11. Statutes Enacted by the Royal Legislature, Col. Rec. XVITT f 102.

28]

CONSTITUTIONAL, HISTORY.

[26

a separate "Penal Code for Slaves and Free Persons of Color." This discrimination against "persons of color" was, at the time, doubtless on account of their being slaves. Although, at the time of the adoption of the constitution of 1865 "persons of color" were freemen, their previous condition of servitude was considered as continuing their status with regard to the criminal law and au thorizing the provision in it that the General Assembly should, at its next session, "provide by law for the government of free per sons of color" and "to confer jurisdiction upon courts now existing, or to create County Courts with jurisdiction in criminal cases excepted from the exclusive jurisdiction of the superior courts, and in civil cases whereto free persons of color may be parties."
Among the most important of the other acts was an act estab lishing the method of summoning and drawing jurors ; 12 an act for the attachment of personal property of absent debtors, which is the parent of the present attachment and garnishment laws of Georgia; 13 an act for laying out and maintaining public roads; 14 an act authorizing justices of the peace to bind out Acadians, who refused to labor, to such persons as would feed and clothe them in return for their labor; 15 an act to make it a penal offence to deny the authority of the acts of the General Assembly; 16 an act to make it high treason to counterfeit his Majestys "Broad Seal" of the province j 17 and an act for confirming sales of land in Georgia made by attorneys and agents of absent parties, and prescribing the proper method of authenticating documents executed outside the province, and intended to be used within it. 18

28. This assembly did not adjourn without asserting, in two important particulars, the right of local self-government. By the "constitution" or plan of government promulgated upon the estab lishment of the royal government, the right to fix the fees of the public officers was conferred upon the governor and council. The as sembly contended that these fees were in the nature of a specific tax upon the people of the colony, the members of the lower house

12. Statutes Enacted by the Royal Legislature, Co!. Rec. XVITI, 144. 13. Statutes Enacted by the Royal Legislature, Col. Rec. XVITI, 172.
14. Statutes Enacted by the Royal Legislature, Col. Rec. XVTII, 87.
15. Statutes Enacted by the Royal Legislature, Col. Rec. XVI a, 188.
16. Statutes Enacted by the Royal Legislature, Col. Rec. XVIII, 69. 17. Journal of the Commons House of Assembly, Col. Rec. XIII, 40,
41, 44. 18. Statutes Enacted by the Royal Legislature, Col. Rec. XVI i I, 258.

27 ]

SECOND COLONIAL PERIOD.

[ 29

of assembly asserted that they ought to have a voice in the matter, and, in a petition addressed to the crown, they prayed that they should be intrusted with the regulation of these fees. 19 Thus did the question of "taxation without representation," and the rule of English law, that all revenue bills should originate in the elective branch of the legislature, first assert itself in Georgia. The other matter related to the qualifications of electors and of members of the General Assembly, which were that no person was qualified as an elector for representative in the assembly who did not have at least fifty acres of land, and no person was eligible for election as a representative who did not own at least five hundred acres. Consequently, residents in the towns who owned real property of much greater value than five hundred acres of farming lands "were excluded from the privilege, either of sitting in the assembly, or of voting for members of it. On the 27th of February, 1755, a memorial was adopted by the assembly praying that it should be permitted to prescribe the qualifications of its own members. 20 The petition with respect to fees was unheeded, but the memorial with respect to the qualification of voters was favorabty received and the qualification changed accordingly.

20. On the 27th of January, 1756, the assembly was prorogued to meet again on the second day of the next month. On the day of the meeting, the assembly refused to seat three new members elected to fill vacancies, and, on account of this refusal, the governor adjourned the assembly from the fifth to the twelfth to give them time to act in obedience to his instructions. The as sembly did not take this treatment kindly or meekly and it ordered the message of adjournment sent by the governor to lie on the table and confined the speaker to his chair, forced him to sign a paper, while some private members seized upon the minutes, made such alterations as they pleased, and refused to deliver them to his written order. On the 19th of February, the governor dis solved the assembly 21 and reported to the Board of Trade that, "No assembly can be had that will raise any money for the sup-

19. Journal of the Commons House of Assembly, Col. Rec. XIII, 41. 72.
20. Journal of the Commons House of Assembly, Col. Rec. XI11, 42. 73.
21. Journal of the Commons House of Assembly, Col. Rec. X-TII, 91,
99, 100, 101.

29]

CONSTITUTIONAL HISTORY.

[28

port of the government, or even for holding the courts of oyer and terminer, unless the governor "was to admit of their exorbitant claims." These troubles -were largely the result of the governors having bestowed upon an unprincipled man named Little the office of Clerk of the Assembly, Clerk of the Crown and Peace, agent and commissioner for the Indians, justice of the peace, aid-de camp to the Captain-General and the commander in chief, thus investing this sycophant with almost the entire control of Georgia. His conduct had been made the subject of a memorial and re monstrances by the council to the governor, as early as September, 1755, in which they charged him with extortion as clerk of the general court; of falsification of the minutes of the house of repre sentatives, whose clerk he was, in order to cover his sinking certain bills that had passed both houses; and of forging a minute relative to another bill, -which had also gone through two houses; with interferring in the departments of the kings officers, making, as justice of the peace, illegal commitments, and divers other acts of usurpation and tyranny. The council demanded the removal of Little, but the governor stood by this fawning petty tyrant. 22 In the election of a new assembly which met in Savannah on the 2nd day of February, 1756, Little succeeded in securing a majority of members favorable to him, eleven of the seventeen members of the assembly being persons -who held some office, or were receiving some emolument from the governor.23 This assembly elected Little speaker, and appointed a committee "to enquire into the state of the provinces," which made a report setting forth the flourishing state of the colony, and presented thanks to his Majesty for ap pointing Governor Reynolds as governor. 24 But the Council had acquainted the Board of Trade with the failure of Governor Reynolds administration, charging him with conferring his power and authority upon his secretary; with humiliating his council, with appointing judicial and ministerial officers of justice -without the advice and consent of council; that he falsified the journals; that he dissolved the best assembly which the province could produce and, thereby, left the taxes of the colony and the support of the government unprovided for, merely to prevent an investigation of

22. Proceedings and Minutes of the Governor and Council, Col. Rec. VII, 351-261, 366-368.
23. Stevens, Georgia, 1, 420. 24. Journal of the Commons House of Assembly, Col. Rec, XIII, 146-151.

29]

SECOND COLONIAL PERIOD. [30-31

Littles conduct, so as to "interrupt the course of justice and legis lation, as guaranteed to the province by the king, and as signified to the colony by the royal instructions of the governor." These complaints were referred to the king, who ordered that Governor Reynolds should be directed to come immediately to England to answer for his conduct in his government; and, accordingly, on the 5th day of August, 1756, the Lords of Trade sent him the royal order to return to England and give an account of his administra tion. "When he arrived, he found himself met with a bill drawn against him for maladministration, based upon the letter of Mr. Bryan, one of the council, to the Earl of Halifax and the memorial of Mr. Kellet, provost marshal of the Board of Trade, which bill was laid before the Lords of Council. Governor Reynolds filed his defense but it was not convincing or satisfactory, and, to pre vent bis removal, he was permitted to tender his resignation. 25

30. On the 15th of August, 1756, Henry Ellis was appointed lieutenant governor of Georgia, and arrived in Savannah on the 16th of February, 1757. He immediately called upon Governor Reynolds, who accompanied him to the council chamber, where his commission was read and, after taking the oath of office, the great seal of the province was turned over to him, and he became invested with the full powers of the government. 26 That night, Little was burnt in effigy as "a tyrant in himself, and a promoter of it in his master." On the 16th of June he called together the General Assembly which had been elected under writs of election issued by Governor Reynolds. This was the same assembly that had elected Little speaker, and, upon its meeting, he tried to foment trouble among the members so as to make it necessary for the new governor to dissolve the assembly, and thus make it appear that the new administration was a failure. The assembly remained in session until the 28th of July, when they were prorogued after having passed but few measures of any permanent importance. 27

31. On the llth of January, 1758, the third session of the General Assembly met in Savannah. Among the most interesting1

25. Stevens, Georgia, I, 431-423. 26. Proceedings and Minutes of the Governor and Council, Col. Rec. VIT, 485-487. 27. Journal of the Commons House of Assembly, Col. Rec. XIII, 231, 237.

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CONSTITUTIONAL HISTORY.

[30

acts passed at this session, to our purpose, at least, was the bill to divide the province into parishes, and to establish the church of England. The title of this bill was "An Act for constituting- the several Divisions and Districts of the Province into Parishes, and for establishing religious worship therein, according to the rites and ceremonies of the Church of Kngland; and also for empower ing the church wardens and vestry men of the respective parishes to assess rates for the repair of churches, the relief of the poor and the parochial service." 28 The colony was accordingly divided into eight parishes; viz., Christ Church, including Savannah, Acton, Vernonburg, Sea Island and Little Ogeechee; St. Matthews, con sisting of Abercorn and Kbenezer; St. Georges, embracing Halifax; St. Pauls, Augusta; St. Phillips, Great Ogeechee; St. Johns Mid way and Sunbury; St. Andrews, Darien; St. James, Fred erica. By this law a salary of twenty-five pounds was given to every clergyman of the Church of England in the colony. This estab lishment imposed upon ever taxpayer in the colony the burden of paying the salaries of the ministers of the established church and of paying rates to keep the churches in repair, but it did not pre vent his belonging to any church that he desired. If he did so, he had the voluntary burden of supporting his own church, and, in addition, the legally imposed burden of the church of Kngland, but conformity to the established faith was not made a qualification of holding any political office.

32. The assembly adjourned on the 15th of March, 1758, and convened again on the 13th of the following November. One act passed at this session of the General Assembly of es pecial interest and importance in the development of the organic law of the State, "was an act approved on the 24th day of April, 1760, entitled "An Act for the more easy and speedy re covery of small debts and damages," 29 which seems to be the first law conferring civil jurisdiction upon justices of the peace in Georgia, and the origin of justice courts as a part of the judicial system of the State. In England justices of the peace never had jurisdiction in purely civil matters. They could commit for of fences done in their respective counties and take recognizances. They had not only the power to enquire of crimes and mis-

28. Statutes Enacted by the Royal Legislature, Col. Rec. XVITI, 258. 29. Statutes Enacted by the Royal Legislature, Col. Rec. XVIII, 372.

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SECOND COLONIAL PERIOD.

[ 32

demeanors, and to commit or hold to bail, but in misdemeanors and many petty treasons, they had the right to try for the offense and to assess punishment. In America, general jurisdiction was conferred upon justices of the peace first in criminal cases. In the colony of Georgia, by the act we are now considering, they were made judges of "small debt courts" as well as conservators of the peace. The jurisdiction of this court was of "all actions of debt or damage (wherein the titles of land are not concerned) whether the same be by bond, promissory note, or other specialty, account book debts, or assumpsits for any sum not exceeding the value of eight pounds." Actions for sums not exceeding forty shillings were to be tried and determined by two justices with three free holders and for any sum above forty shillings and not exceeding eight pounds sterling, by two justices of the peace and a jury of twelve men. The rule of decision in these courts was according to "conscience and equity" and the courts were styled "Courts of Conscience." In 1762 this act was explained and amended and the constitution of 1777 declared "That the Court of Conscience shall be contimi-ed as heretofore practiced and that the jurisdiction thereof be extended to try cases not amounting to more than ten pounds." By the provisions of all subsequent constitutions the civil jurisdiction, of these officers has been continued until the nature, jurisdiction and powers of justices of the peace have been so modified as to transform them from magistrates for the conservation of the peace with incidental civil powers into judges of constitutional civil courts -with incidental criminal jurisdiction conferred by statute.
Another matter of special importance considered at this session
was the length of the terms of the members and the duration of the
sessions of the assembly. As the law then stood, the term of serv
ice of the members was indefinite and they "were kept in session a great part of the time, at great expense and inconvenience, especially
to those members who came from a distance and were thus forced to be away from their families and to neglect their own affairs.
The house passed a bill limiting the duration of each assembly to
three years, but the governor opposed the measure and secured a
temporary delay. The legislature finally framed an address, re
questing him to lay before the Board of Trade the great incon venience they suffered from being away from their homes so much
and for such a long series of years, and then tirged the soundest
possible reasons that the officers of government should be more

33 ]

CONSTITUTIONAL HISTORY.

[ 32

equally distributed among* the people. 30 Soon after this, Governor ElHs asked to be relieved on account of ill health, and on the 13th of May, 1760, James Wright was appointed governor in his stead. On the 2nd of December, 1760, his commission was published and the administration was turned over to him.

33. The first session of the fourth General Assembly of Georgia met in Savannah on the 27th day of March, 1761. The principal matter transacted by this legislature was to induce the governor to use his good offices with the Board of Trade to secure the approval of the king upon a bill passed on the first day of May, 1760, for printing and emitting seven thousand four hundred and ten pounds sterling, in paper bills of credit and to provide for the sinking of the same. This approval was secured and the money was issued.
By the treaty of Paris, signed on the 10th day of February, 1763, which concluded the French and Indian War, Hngland acquired from France all of her territory east of the Mississippi, except the city of New Orleans, and from Spain vast territory south of the colony of Georgia. By a royal proclamation dated the 7th of October, 1763, all the lands acquired from Spain lying between the Altamaha and the St. Marys River were annexed to the Province of Georgia and, in 1765, four additional parishes were laid off out of the territory, viz,, St. David, St. Patrick, St. Thomas and St. Mary. The war which had just closed had been entered into largely upon the solicitation of the colonies and for their benefit, and at the conclusion of this peace, all the American colonies were grateful and loyal to the mother country. Georgia was particularly well pleased on account of having received such an addition to her territory, making her no longer a frontier country exposed to perpetual .danger from a formidable enemy at her door. If Hnglish statesmanship had been wise enough, at this auspicious moment, to grant to the American colonies those rights which the people of Kngland enjoyed and had not made the fatal mistake of treating them as mere dependencies, it has been thought by many that she might have preserved their loyalty and retained her empire in the western hemisphere.
The war had cost over three hundred millions of dollars. In view of this fact, and the fact that the colonies were the inime-

30. Journal o the Commons House of Assembly, Col. Rec. XII, 408.

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SECOND COLONIAL PERIOD.

[ 33

diate beneficiaries of the war, parliament, in March, 1764, passed a resolution that they had a right to tax America. This resolu tion precipitated the Revolution. The assertion of the abstract right was soon after followed by the declaration that such taxa tion was expedient, and in a few days the expedient right was matured into a statute, by the passage of the act commonly known as the "Sugar and Molasses Act," which was followed by the act entitled "An Act for Granting and Applying Stamp duties in the British Colonies and Plantations of America," which on the 22nd of March, 1765, received the assent of the king.
--3

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CONSTITUTIONAL HISTORY.

[ 34

CHAPTER III.
THB THIRD COLONIAL PERIOD.
FROM THE STAMP ACT TO THE. PASSAGE 01? THE BOSTON PORT BiLt,.
34. The first principle of American liberty to be developed and insisted upon was that which denied the right of taxation without representation. In 1718, the Virginia House of Burgesses declared that the act of parliament extending the post office system to the colonies was an usurpation of a function, which belonged only to the colonial legislature, because the levying of postal rates was a species of taxation, 1 and when that state capitulated to the commonwealth of Cromwell in 1652, it was expressly stipulated that no taxes or customs should be laid, except by her own repre sentatives. From time to time, the colonial legislatures passed declaratory acts asserting the principle that there could be no tax ation without representation, and the assembly of New York as serted this right, which had been foreshadowed in Magna Charta, and had been expressly recognized by the Petition of Right, by the passage of an act in 1691, "that no tax whatever should be levied on his ]Xlajest3s subjects in that province or on their estates, on any pretence whatever, but by the act and consent of the repre sentatives of the people in the General Assembly convened." When the news of the passage of the Stamp Act, arrived in America, the Virginia Assembly was m session, and immediately passed reso lutions denying the right of parliament to tax the colonies. On the 25th of June, 1765, the General Assembly of Massachusetts sent a circular letter to all of the colonies, asking them to send representatives to a General Congress to meet in New York on the first Tuesday in October, 1765, for the purpose of "United Re sistance." When this letter was received by the Speaker of the Commons House of Assembly of Georgia the assembly was not in session but the speaker immediately issued a call for a meeting of the members of the assembly, and sixteen of them met in Sa vannah on the 2nd da}? of September, 1765. A reply was sent to the Massachusetts resolutions expressing their willingness "to co-
1. John Fiske; Old Virginia and Her Neighbors; II, 435,

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THIRD COLONIAL PERIOD.

[ 35

operate in every measure for the support of their common rights," 2 but, through the influence of Governor Wright, they did not send delegates to the Congress, although Georgia sent a messenger, who was to get a copy of the proceedings.

35. James Habersham, president of the Council of Georgia, said with reference to this tax, "the annual tax raised here for the support of our internal policy, is full as much as the inhabitants can bear, and suppose the stamps produce only one eighth of what they would in South Carolina, it would amount to as much in one year as our tax laws will raise in three; and perhaps we have not five thousand pounds in gold and silver, come into the province in five years, though the Act requires it in one. If this is really the case, as I believe it is, how must every inhabitant shudder at the thought of the Act taking place, which according to my present apprehen sion must inevitable ruin them."3
Before the arrival of the stamps an association was formed known as the "Liberty Boys" to prevent the distribution of the papers on their arrival, and to compel the distributors to resign. On the 5th of December the ship Speedwell, bearing the stamps, arrived in the river. The stamps were secretly transferred to Fort Halifax. On the 2nd of January, 1776, the governor was informed that two hundred "Liberty Boys" had assembled to break open the fort and destroy the stamps. The governor ordered out two military com panies and removed the stamps to the guard house. Towards the close of January, a body of six hundred men assembled a few miles from the town and sent word to the governor that, unless the papers were removed, they would march to Savannah and storm the governors house and the fort and destroy them. The governor sent the stamps to Fort George, on Cockspur Island, where they remained for a few days, when, for better security, they were returned to the man-of-war, Speedwell, on which they had been brought to the colony.*
From the first day of November, 1765, when the law was to go into effect, the courts were closed, judicial business was sus pended and the issue of all warrants granting land was suspended.

2. Journal o the Commons House of Assembly, Col. Rec. XIV, 270-
273. 3. Jones, Georgia, II, 07. 4. Letter of Governor Wright to Secretary Conway, quoted in Jones
History of Ga., II, 62-65.

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CONSTITUTIONAL HISTORY.

[ 36

When the stamps arrived, there were in the port between sixty and seventy vessels, waiting for clearance, which could not be ob tained on account of the refusal of the people of the colony to allow the use of the stamps necessary to give validity to their clear ance papers. Cut the necessity for clearing the port seemed so urgent that the people finally consented to allow the use of the stamps for this purpose, but for none other. Their use, even for this purpose, was greatly resented by the people of South Carolina. Georgia was condemned as a "Pensioned Government/ 3 which had "sold her birthright for a mess of pottage, and whose inhabitants should be treated as slaves without ceremony," It was resolved that no provisions should be shipped to "that infamous colony;" "that every vessel trading there should be burnt;" that whoever should traffic with them should be put to death." These inflammatory
words were not an exaggeration of the feeling of the people of
South Carolina, for two vessels, about to sail from Charleston to
Savannah, were captured and taken back into port and destroyed
with their cargoes.5

36. The official announcement of the repeal of the Stamp Act was received by the governor on the 6th day of July, 1766. A proclamation was immediately issued convening the General As sembly, which met on the 16th of the month. The announcement of the repeal of the obnoxious measure gave great satisfaction to the assembly, which expressed itself in a letter to the king of un dignified servility. 6
The era of good feeling produced by the repeal of the Stamp Act was of short duration, for other grievances soon arose. In the Petition of Right, the Lords and Commons of parliament had as serted that the quartering of soldiers upon private citizens was against the law and customs of the realm, and by the act declar ing the rights and liberties of the subjects of the Crown, com monly known as the English "Bill of Rights," passed on the accession of William and Mary, it was declared that a subversion of the laws and liberties of the kingdom had been committed by King James, by raising and keeping a standing- army within the kingdom, in time of peace without consent of the parliament, and

5. Stevens, Georgia, Vol. II, p. 48. 6. Journal of the Commons House of Assembly, Col. Rec. XIV, 370, 371, 374.

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THIRD COLONIAL PERIOD.

[ 36

quartering soldiers contrary to law; and the raising or keeping a standing army within the kingdom in time of peace, unless with consent of parliament, was declared to be against the law. The American colonies contended that those things which could not be done in England, except with the consent of the parliament, such as the levying of taxes and the quartering of troops, could not be done in America with the consent of parliament, because the American people had no representation in that body and it had, therefore, no agency to represent them and consent for them, and such things could be done, in America, only with the consent of the colonial assemblies. In April, 1765, parliament extended the Mutiny Act to the American colonies, and passed an act com pelling the furnishing of quarters to the royal troops, which con tained a clause to compel the colonies to furnish such troops with various articles, the sums needed for this purpose being required to be raised "in such manner as the public charges for the province are raised." On the 6th day of January, 1767, Captain Phillips, who commanded a regiment of royal soldiers in South Carolina and Georgia, addressed a letter to Governor Wright inquiring where he should apply for such supplies for his troops as were authorized by the "Mutiny Act." The governor transmitted a special message to the General Assembly on the subject, indi cating what supplies were needed, and also sent a copy of the "Mutiny Act." 7 The Upper House sent a ready response that they would concur with the Commons House in any measure which they might take, carrying out the request made upon them. Tbe Commons House sent no reply, until the governor sent them word, through two members of the House, that he might send a second message containing things "They might not wish to hear."8 On the 18th of February they submitted an address, in which they expressed loyalty, but said that compliance would be "a violation of the trust reposed in them by their constituents, and \vould establish a prec edent, which they did not feel justified in introducing." 9 This action having been reported to the Karl of Shelburne, the kings secretary for the southern colonies, he wrote to Governor Wright: "I have it in command from his Majesty to inform you that he expects and requires the Commons House of Assembly in Georgia,

7. Journal of the Commons House of Assembly, Col. Rec. XJV, 412-
414. 8. Jones, Georgia, TI, 88. 9. Journal of the Commons House of Assembly, Col. Rec. XIV, 441..

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CONSTITUTIONAL HISTORY.

[ 38

to render an exact and complete obedience in all respects what ever, to the terms of the Mutiny Act. " 10 But General Gage is sued an order that had more terror to the people of Georgia than any mere royal admonition concerning their duty by ordering the withdrawal of all of the kings forces from the province. The colony was surrounded by Indians and the danger from the aban donment of the forts was so alarming, that the Commons House of Assembly, at its next session, voted the supplies. 11
Two other acts of the assembly showed the same determination to insist upon the rights of Englishmen, as guaranteed by the Eng lish Constitution. The statute of Queen Anne, chap. 10, 29, required that postmen should be transmitted over the ferries with out detention, and free of charge. In two legislative bills to es tablish a ferry, this provision was omitted, and Governor Wright sent the bills back. The Upper House prepared an amendment which met the requirements of the English Act, but the Commons House refused to concur in the amendment, placing their dissent upon the broad ground that they would not submit to an enforce ment of the act of parliament, and so the bills were lost. 12
37. The public sentiment of the people of America against being governed by statutes made beyond the seas, by a body in which they had no voice, and whose members could not know the local conditions on this side of the ocean, and who were not them selves subject to the laws made for the government of the colonies, was every clay growing stronger, especially in the older colonies. This was made stronger in Georgia by the fact that every law passed by her legislature, before it had validity as a law, must needs be sent to England for approval. If assented to by the gov ernor, it was sent to London where it was referred to the kings attorney for his opinion; if he had no objection it was submitted to the Lords Commissioners of Trades and Plantations; if they approved it, it was then transmitted to the kings council ; if they approved it, it was signed by the king, and then became a law. After receiving the royal approval, it went back to the Board of Trade, and then to the crown agent, who sent it to the colonial governor. This required a period of two years, during which the

10. Jones, Georgia, IT, 99. 11. Journal of the Commons House of Assembly, Col. Rec. XIV, 484. 12. Journal of the Commons House of Assembly, Col. Rec. XTV, 443 (see Journal of Upper House).

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THIRD COLONIAL, PERIOD.

[ 38

public administration was delayed and the mischief sought to be remedied continued uncorrected. This feeling- of dissatisfaction was, at this particular time, intensified by the refusal of the king to give his sanction to two acts passed by the General Assembly and approved by the governor, one relating to the control of the slave population; the other designed to encourage settlers to come into the province, both of which acts related only to the domestic affairs of the colony. The dissatisfaction of the representatives and the people, on account of the royal veto of these acts, was such that the governor declared "That though he had hitherto kept the assembly in tolerabl} decent bounds, yet that he had lately discovered, more than ever, a strong propensity to be as consid erable and independent, as they term it, of the British Parliament or of the sovereignty of Great Britain as any of the northern col onies." 13

38. On the llth of February, 1768, a circular letter was sent out by the Colonial Assembly of Massachusetts to the assemblies of the other colonies asking them to join hi petitions to the parlia ment and the king for redress, and advising that a confederation of the several colonies be formed to oppose the oppressive acts of Great Britain. In April, Georgia had secured the services of Benjamin Franklin to represent the colony and transact its affairs in England. On the 16th of June the speaker of the Georgia As sembly replied to the communication from the Massachusetts As sembly, stating that he did so as a private person, "or late speaker," and saying that "Before the dissolution of the last assembly, the house took under consideration the several late acts of parliament, for imposing taxes and duties on the American colonies, and being sensibly affected thereby, ordered the committee of correspond ence to instruct their provincial agent, Mr. Benjamin Franklin, to join earnestly with the other colonies agents in soliciting a repeal of those acts, and in remonstrating against any acts of like nature for the future. * * * When the assembly meets, I will lay your favor before the house, and I am sure that such measures will be pursued in consequence thereof, as will manifest their re gard for constitutional liberty."
When the legislature next convened, Governor Wright made a speech in which he disapproved of the reply of the speaker to the
13. Jones, Georgia, II, 101.

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CONSTITUTIONAL HISTORY.

[ 4O

communication from the legislature of Massachusetts and threat ened to dissolve the assembly if it was attempted to give any formal sanction to the suggestions that communication contained. 14 Not withstanding this admonition, when the assembly had attended to the ordinary business of the session, the speaker, on the 24th day of December, 1768, laid before the House the letter from Massa chusetts, and also a similar letter from Peyton Randolph, speaker of the Commons House of Assembly of Virginia, whereupon the House adopted the following resolutions:
"Resolved, that from the inherent right of the subject to peti tion the throne for redress of grievances, a right allowed and con firmed by the act of William and Mary, the said letters do not appear to the House to be of a dangerous or factious tendency but on the contrary, in the opinion of this House, only tend to a justi fiable union of subjects aggrieved in lawful and laudable endeavors to obtain redress by an application founded upon and expressive of duty and loyalty to the best of kings, a becoming respect for the parliament of Great Britain, and an equitable and natural af fection for our mother country, and arises from the tender and commendable attention of those colonies to the natural rights and liberties of the British subjects in America, and to which they are undeniably entitled upon the happy principles of our consti tution."
The resolutions further provided for their publication in the Provincial Gazette, and for the sending of copies to the Massa chusetts House of Representatives, and to the Virginia House of Burgesses. 15
Upon the passage of this resolution, Governor Wright appeared in the House and made a speech reprehending the action of the House in passing the resolution and supporting the authority of parliament as the supreme legislative power to bind the people of the colonies by the enactment of any law. 16 Anticipating this action the assembly had already prepared an address to the king, in which they professed themselves attached by interest, principle and affection for their mother country and declared that they readily acknowledged a constitutional subordination to its su preme legislature.
14. Journal Upper House of Assembly; Col. Rec. XVII, 454. 1.5. Journal Commons House of Assembly, Col. Rec. XIV, G45. 16. Journal Commons House of Assembly, Col. Rec. XIV, 656-657.

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THIRD COLONIAL, PERIOD.

[ 39

"At the same time, with inexpressible concern, we much lament that by the imposition of internal taxes, we are de prived of the privileges, which, with humble deference, we ap prehend to be our indubitable right, that of granting away our own property, and are thereby prevented from a ready compliance with any requisition your Majesty may please to make, and which, to the utmost extent of our small abilities, we have hitherto always
most cheerfully obeyed/ 17 This letter being sent to Dr. Franklin was transmitted to the
king, who disapproved it, and expressed the resolution, "To sup port the constitution, as by law established, and not to countenance any claims inconsistent with its true principles."

39. Having failed to secure a redress of grievances in the repeal of the obnoxious acts, the Virginia Assembly, in June, 1769, adopted a suggestion, first made by the merchants of Boston, and passed an act prohibiting the importation of merchandise from England. On the 16th of September, 1769, a meeting of merchants was held at the residence of Mr. Alexander Creighton, in Savan nah, in which it was agreed that the late acts of parliament were unconstitutional, and that the taxes therein contemplated were in consistent with the abilities of the colonies, and it was resolved, "That any person or persons whatever, importing, arry of the ar ticles subject to such duties after having it in their power to pre vent it, ought not only to be treated with contempt, but deemed enemies to their country, it being a circumstance that need only be mentioned to any person inspired with the least sense of liberty, that it may be detested and abhorred." A short time afterwards at a public meeting a set of resolutions was drawn up and signed, con taining the following preamble :
"We, the inhabitants of Georgia, finding ourselves reduced to the greatest distress and the most abject condition by the operation of several acts by the British Legislature, by means whereof, our property is arbitrarily wrested from us contrary to the true spirit of our constitution, and the repeatedly confirmed birthright of every Briton, under all of these oppressions finding that the most dutiful and loyal petitions from the colonies from the redress of these grievances, have not answered the salutary purpose we intended, and being destitute of all hope of relief from our mul-

17. Journal Commons House of Assembly, Col. Rec. XIV, 644.

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CONSTITUTIONAL HISTORY.

[ 42

tipliccl and increasing distresses but by our industry, frugality and economy, and firmly resolved never to be accessory to the loss of any privilege we are entitled to." they resolved not to import any goods, except in certain necessary quantities, stated in the resolu tions, until the acts objected to were repealed. 18

40. The fact that the four new parishes, St. David, St. Pat rick, St. Thomas arid St. Mar}", which had been carved out of the recently acquired lands lying between the Altamaha and St. Marys river, were without representation in the colonial assembly, gave the assembly an excellent opportunity of insisting upon its prin ciples that taxes could not be laid, or any other binding laws right fully enacted without representation. Accordingly, on the 16th of November, 1769, the Commons House of Assembly memorial ized the governor to issue writs for the election of representatives from those parishes, in which it was urged that their people were deprived of the right of consenting, through their representatives, to the framing of laws affecting their persons and property, and that, unless, they were admitted to equal representation with the other parishes, the assembly could not apportion the taxes fairly. The governor replied that he was without authority to cither in crease or decrease the membership of the assembly, and the matter was referred to the general government. 19 On the 20th of Feb ruary, 1770, no response having been received, the Commons House of Assembly again addressed the governor and said: "A partial representation is a measure unknown in any part of his Majestys dominions, and entirely inconsistent with the bulwark of our lib erties, the glorious Bill of Rights, the pride of our nation, and the envy of the rest of mankind." They called attention to the fact that Georgia and her sister colonies were at that time contending that "taxation without representation was intolerable, unjust and without warrant." They concluded by saying: "Under these cir cumstances, unless your excellency coincides "with us, we dare not impose a general tax, knowing with what abhorrence every member of our community holds the idea of a partial representation." 20 The governor asked advice of his council, who expressed the opin-

18. Revolutionary Records of Georg-ia, I, 8. 19. Journal of the Commons House of Assembly, Col. Rec. XV, 47, 49, 119, 123, 127. 20. Journal, Commons House of Assembly. Col. Rec. XV, 123, 124.

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THIRD COLONIAL PERIOD.

[ 41

ion that the governor was without authority in the matter. Upon application to the king for authority to issue writs of election, he at first refused, but, finally, on the llth of December, 1770, lie consented. By thus refusing to fall into what would have been a serious inconsistency, the Georgia Assembly made a striking asser tion of the principle for which the American colonies were then contending and, by the assent of the king to their petition, at that particular time, they secured a signal acknowledgment of that principle.

41. When the General Assembly met on the 23rd clay of April, 1771, it elected Noble Wimberly Jones speaker, on account of his pronounced views in opposition to some of the acts of par liament. Governor \Vright refused to sanction this election and ordered the House to elect another speaker. The House passed a resolution "That the rejection by the governor of a speaker, unan imously elected, was a high breach of the privileges of the House, and tended to subvert the most valuable rights and liberties of the people, and their representatives." 21 The governor then dissolved the assembly. 22 Soon after this, Governor Wright obtained a leave of absence, and James Habersham, secretary of the colony and a good man but a pronounced Tory, was appointed to conduct the administration during the absence of the governor."
On the 21st of April, 1772, the first session of the eighth Gen eral Assembly met in Savannah, and proceeded to organize by elect ing Noble Wimberly Jones as speaker. On this fact being com municated to Governor Habersham, he stated that he had his Majestys command to veto the choice of the speaker elected, and directed them "to proceed to a new choice." In a short time the House informed the governor that it had again chosen Dr. Jones as speaker. The governor again put a negative on his election, and again ordered the House to proceed to the election of some other person as speaker. The next clay the House elected Archibald Bullock, whose election was approved. 23 However, on inspecting the journals of the House, the governor learned that after his sec ond veto, the House had a third time elected Dr. Jones speaker,
21. Journal of Commons House of Assembly, Col. Rec. XV, 512. 22. Journal of Upper House of Assembly, Col. Rec. XV. 315. 23. Journal of the Commons House of Assembly, Col. Rec. XV, 320, 321, 322.

41]

CONSTITUTIONAL HISTORY.____

[44

and had only receded from their choice of him on account of his declining to accept the position.
The governor then sent a message to the House complaining of the minute which showed that their election of Mr. Bullock was in consequence of Dr. Jones having declined the chair. The House promptly replied, politely asserting that their selection of Dr. Jones, "was not in the least meant as disrespectful to his Majesty, or to you as his representative, nor thereby did we mean to infringe on the just prerogative of the crown," and that they could not perceive wherein it -was contrary to the strict rule of parliamentary proceed ings. The governor thereupon promptly dissolved the assembly. 24

24. Journal of the Commons House of Assembly, Col. Rec. XV, 330.

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FOURTH COLONIAL PERIOD.

f 42

CHAPTER IV.
THE FOURTH COLONIAL, PERIOD.
FROM THE BOSTON PORT BILL, TO THE PROMULGATION OF THE; PROVISLONAL CONSTITUTION OP GEORGLA.
42. The fate of nations is too often decided by the rancours and jealousies of personal politics. It is beyond human wisdom to say whether conciliation would have preserved the American colo nies to the British Crown, or whether the spirit of independence and the principle of self-government would eventually have caused the American people to forego their allegiance for the sake of es tablishing a new government, founded upon an equality of men inconsistent with monarchial government but certain it is that the jealousy of Lord North, and the animosity of George III towards the parliamentary party of William Pitt made an immediate cer tainty of what had been hitherto but a dangerous possibility and cost England the loyalty of the \vestern world at a moment when, with an empire newly added to her victorious arms, she was at the highest point of her glory and at the turning point in her des tiny. Instead of listening to the grievances of her colonies, she determined to coerce them, and in pursuance of this determination, set about the adoption of measures not only tyrannical and oppres sive but violative of all the principles of national faith. In rapid succession were passed three acts intended to be punitive in their effect; first, the Boston Port Bill, closing the most important port in N"orth America; second, an act, which provided that the Pro vincial Council of Massachusetts, which had previously been elected by the representative assembly, should thereafter be appointed by the crown, and that the royal governor, at bis pleasure, should have the right to appoint and remove the judges, sheriffs and other public officers; that jurymen should be selected by the sheriffs, and that town meetings should no longer be held without permission from the royal governor; and third, an act which empowered the gov ernor to send to England or to some other colony for trial persons charged with capital offences committed in aiding the magistracy of Massachusetts.

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43. When the news of these acts reached Georgia, it aroused a spirit of indignation, and on the 20th of July, 1774, Noble Wimberly Jones, Archibald Bullock, John Houston and George Walton caused a notice to be inserted in the Georgia Gazette stating that "The critical situation to which the British Provinces in America are likely to be reduced from the alarming and arbitrary imposition of the late act of Parliament, respecting the town of Boston, as well as the acts that at present exist tending to raise a perpetual revenue without the consent of the people or their representatives, is considered as an object extremely important at this critical junc ture, and particularly calculated to deprive the American subjects of their constitutional rights and liberties as parts of the British Empire." This notice further contained a request that "All persons within the limits of this province do attend at the liberty pole at Ton dees Tavern on Wednesday the 27th inst in Savannah, in order that the said matter may be taken under consideration, and such other constitutional measures pursued as may then appear most eligible." 1 On account of the fact that notice had not been sent to all of the parishes in time for them to be represented at the meeting1, an adjournment was taken to the 10th of August and no tices were sent out requesting each parish to send as many delegates as it had representatives in the General Assembly. Notwithstand ing a proclamation by Governor Wright, containing a warning that the meeting was illegal and threatening- punishment, the meeting was held at the appointed time and place, and the following resolu tions were unanimously passed :
"Resolved, nemine contradiceiite, that his Majesty subjects in America, owe the same allegiance, and are entitled to the same rights, privileges, and immunities with their fellow subjects in Great Britain.
"Resolved, nemine contradicente, that as protection and alle
giance are reciprocal, and under the British Constitution, correlative
terms, his Majestys liege subjects in America have a clear and in
disputable right, as well as from the general law of mankind as
from the ancient and established customs of the land, so often
recognized, to petition the throne upon every emergency.
"Resolved, nemine contradicente, that an act of parliament,
lately passed, for blockading the port and harbor of Boston is con
trary to our idea of the British Constitution : First, for that it in

1. Revolutionary Records, I, 11.

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effect deprives good and lawful men of the use of their property without judgment of their peers; and secondly, for that it is in nature of an ex post facto law, and indiscriminately blends, as ob jects of punishment, the innocent with the guilty. Neither do we conceive the same justified upon a principle of necessity; for that numerous instances evince that the laws and executive powers of Boston have made sufficient provision for the punishment of all offenders against persons and property.
"Resolved, nemine contradicente, that the act for the abolishing the charter of Massachusetts Bay tends to the subversion of the American rights; for besides those general liberties, the original settlers brought over with them as their birthright, particular im munities were granted by such charter, as an inducement and means of settling the province; and we apprehend the said charter cannot be dissolved, but by a voluntary surrender of the people represent atively declared.
"Resolved, riemine contradicente, that we apprehend the parlia ment of Great Britain, hath not, nor ever had, any right to tax his Majestys subjects ; for it is evident beyond contradiction, the con stitution admits of no taxation without representation; that they are coeval and inseparable ; and every demand for the support of government should be by requisition made to the several houses of representatives.
"Resolved, nemine contradicente, that it is contrary to natural justice and to the established law of the land, to transport any per son to Great Britain or elsewhere to be tried under indictment for a crime committed in anv of the colonies, as the party prosecuted would thereby be deprived of the privilege of trial by his peers from the vicinage ; the injured perhaps prevented from legal repara tion, and both lose the full benefit of their "witnesses.
"Resolved, nemine contradicente, That we will concur with our sister colonies in every constitutional measure to obtain redress of American grievances, and will by every lawful means in our power maintain those inestimable blessings for which we are indebted to God and the Constitution of our Country A Constitution founded upon reason and justice, and the indelible rights of mankind." 2
Before the adjournment of the meeting it was proposed to send delegates to the Continental Congress, called to meet in Philadel phia in the following September, but the motion was defeated, it

2. Revolutionary Records, I, 15.

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was asserted, bv the votes of persons not entitled to vote upon the matter, and probably through the influence of the governor.

44. The people of St. Johns Parish who were of New Eng land origin, and whose zeal for their constitutional rights was augmented by the powerful instincts of sympathy with the people from whose midst they came, were greatly disappointed at the failure of Georgia to send delegates to the general congress. At a meeting on the 30th of August, at which deputies from St. Georges and St. Davids united with them, they resolved "That if the majority of the parishes would join with them, they would send deputies to join the General Congress, and faithfully abide by and conform to such determinations as should be there entered into, and come from thence recommended."3 This plan failed, however, by the failure of the other parishes to join with them in it and Georgia was not represented at the first General Congress of the colonies.
A few days after the meeting of the 10th of August, Governor Wright, to test the popiilar feeling, called a convention of the people. About one-third of the people living in Savannah and the vicinity attended, and signed a dissent to the resolutions adopted, declaring them unconstitutional.4 In order to further counteract the force of the resolutions, protests were prepared and put into the bands of paid agents, to be circulated among the people of the several parishes of the colony.5 The royal agents "who circu lated these petitions were paid in proportion to the signatures obtained, and consequently the lists were so enlarged, by the names of men who sympathized with the sons of liberty, but who signed out of timidity or complaisance, and by forgeries, often of the names of dead men and by the signatures of minors, that in several instances the number of the subscribers exceeded the population of the parish from whence the protests came. 6

45. The first Continental Congress met in Carpenters Hall, in the city of Philadelphia, on the 5th of September, 1774, and remained in session until the 26th of October. This Congress exercised no legislative powers ; nor did anything to shake off the

3. Stevens, Georgia, TT, 81. 4. Jones, Georgia, TI, 156; McCall, Georgia, vol. 2, p. 373. 5. Revolutionary Records, I, 18; McCall, Georgia, vol. 3, p. 373. 6. Revolutionary Records, T, 31-34; Stevens, Georgia, II, 82.

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[46

allegiance of the colonies to Great Britain, but acted as a conti nental committee of conference to correct abuses, and to take steps to secure what they contended were their constitutional rights under the English Constitution and under their several charters. In pursuance of this object they appointed a committee to state the rights of the colonies m general, the several instances in -which these rights had been violated, and to suggest means for their restoration. On the 14th of October the congress adopted a decla ration of colonial rights. This declaration asserted the rights of the colonies to life, liberty and property ; that as an inherent right of British subjects, they were not bound to any law, to which they had not consented through their legal representatives; that the right of legislation for the colonies resided in their own assemblies, and that they had the sole right of taxation, internal and external; parliament had the right only to enact such laws as \vere neces sary for the bona fide regulation of trade ; that the people of the colonies were entitled, as their birthright, to the common law of England, including the right of trial by a jury of the vicinage; the right of public meetings; the right of petition for redress of grievances; that the rights guaranteed by their charters could not be abrogated by the mother country; that the Sugar Act, the Stamp Act, the Quartering Act, the Tea Act, the Acts for the trial in Great Britain of offences committed in America; the Boston Port Rill; the Act for regulating the government of Massa chusetts, and the Quebec Act, were in derogation of the rights of the colonies, and they protested against the maintaining of stand ing armies in the colonies without their consent, and against legis lation by councils dependent upon the crown.7
With a view to the practical enforcement of their claims, on the 20th of the month, fourteen articles were agreed upon as the basis of an American Association or General Non-Importation League, and a new Congress was called to meet in Philadelphia on the 10th clay of May, 1775.

46, The "Declaration of Colonial Rights" adopted by the Continental Congress was disseminated throughout the province of Georgia, and earnest efforts were made to induce the colony to adopt it as an expression of the general sentiment of the people. A Provincial Congress was determined upon to meet in Savannah, on

7. Watson, U. S. Constitution, TI, 1680. 4

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the 18th day of January, 1775, and on the 8th day of September, 1774, many of the leading citizens of Christs Church Parish met and elected delegates, and later several of the other parishes took similar action, but Governor Wright and the other partizans of the royal government, supported by the home government, exerted themselves to the utmost by intimidation and other means to pre vent these preliminary meetings. The Lords of the Admiralty were instructed to direct Admiral Graves to station a cruiser in the Savannah River, and General Gage was ordered to send a de tachment of one hundred men from the garrison at St. Augustine.8
But notwithstanding all of the efforts of the royalists party public sentiment grew fast, and the real sentiment of the people was shown by the result of the election for members of the Gen eral Assembly, which was held early in January, 1775, prior to which there were candidates in every parish, favorable to the roval government, opposed by candidates in favor of resisting the aggressions of the king and of parliament, when, in nearly all of the parishes, the candidates of the royalists party were over whelmingly defeated. 9

47. On the 18th of January, 1775, on the same day on which the legislature met, the Provincial Congress met in Sa vannah, but delegates from only five of the twelve parishes were present, the mfkieiice of Governor Wright having prevented a fuller attendance. As a majority of the parishes were not repre sented, the congress did not feel that they could give a valid assent to the articles agreed upon by the Continental Congress. In order to get official action in some form assenting to the articles, they urged the Commons House of Assembly to adopt a set of resolu tions, which they had prepared, which were similar to, but not identical with those adopted by the Continental Congress. While the Commons House was considering- these resolutions, Governor Wright prevented action by adjourning the house.
The Provincial Congress having failed to secure the ratification of its proposed resolutions, and being without sufficient representa tions to promulgate its action as expressive of the sentiment of the parishes of Georgia, they elected Noble Wimberly Jones, Archi bald Bullock and John Houston delegates to represent Georgia in the Continental Congress, which was to assemble in Philadelphia,

8. Jones, Georgia, II, 159. 9. Revolutionary Records, I, 34.

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in May following, and adjourned on the 23rd day of May after entering into the following articles of association, similar to, but different in some respects from, the model proposed by the Continental Congress :
"Whereas a non-importation, non-consumption, and non-expor tation agreement, faithfully adhered to, will probably prove the most speedy, effectual and peaceful measure to obtain redress of American grievances, we do, therefore, for ourselves, and our constituents, firmly agree and associate under the sacred ties of virtue, honor and love of our country, as follows :
"First that we will not receive into this province any goods, wares or merchandise, that shall be sb ipped from Great Britain or Ireland, after the 15th day of March, next, or from any other place, any such goods, wares or merchandise as shall be shipped from these kingdoms, after that time, except such as come under the rules and direction of the 9th article herein mentioned; and except such goods, wares or merchandise as are absolutely neces sary for the carrying on of the Indian trade, subject nevertheless to the control of the Continental Congress, intended to be held at Philadelphia on the 10th day of May, next. Nor will we, from this day import or purchase any tea from any port of the world, or import any molasses, syrup, coffee, pimento from the British plantation or from Dominico; nor wines from Maderia or the Western Islands, nor foreign indigo.
"Second. That we will neither import nor purchase any slaves imported from Africa or elsewhere, after the 15th day of March, next.
"Third. That we will not export any merchandise or commodity whatsoever to Great Britain, or Ireland or to the West Indies, after the first day of December next, except rice to Europe.
"Fourth. Such as are merchants and use the British and Irish trade, will give orders, as soon as possible, to their factors, agents and correspondents in Great Britain or Ireland, not to ship any goods to them on any pretence whatever, as they cannot be re ceived in Georgia; and if any merchant residing in Great Britain or Ireland, shall directly or indirectly, ship any goods, -wares or merchandise for the province, in order to break such non-importa tion agreement, or in any manner contravene the same, on such unworthy conduct being well attested, it ought to be made public; and on the same being done, we will not from thenceforth have any commercial connection with such merchant.

CONSTITUTIONAL HISTORY.

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"]?ifth. That such as are owners of vessels will give positive orders to their captains or masters, not to receive on board their vessels any goods prohibited by the said non-importation agree ment, on pain of immediate dismission from their service.
"Sixth. We will use our utmost endeavors to improve the breed of sheep, and increase their number to the greatest extent, and to that end, will kill them as sparingly as may be, especially those of a most profitable kind ; nor will we export any to the West Indies or elsewhere; and tbose of us, who are, or may become, over stocked with, or can conveniently spare any sheep, will dispose of them to our neighbors, especially the poorer sort on moderate terms.
"Seventh. That we will, in our several stations, encourage frugality, economy and industry, and promote agriculture, arts and the marmfactures of America, especially those of wool, and will discountenance and discourage every species of extravagance and dissipation, especially horse racing, and all kinds of gaming, cock fighting, exhibition of shows, plays, and other expensive di versions and entertainments; and on the death of any relation or friend, none of us or our families will go into any further mourn ing- dress, than a black crape or ribbon on the arm or hat, for gentlemen, and a black ribbon and necklace for ladies, and we will discontinue the giving of scarfs and gloves at funerals.
"Eighth. That such as are venders of goods and merchandise will not take advantage of the scarcity of goods, that may be oc casioned by this association, but will sell the same at the rates they have been accustomed to do for twelve months last past; and if any vender of goods and merchandise shall sell any goods on higher terms, or shall in any manner, or by any device whatsoever, violate, or depart from the agreement, no person ought, nor will any of us, deal with any such a person, or his or her factor or agent, at any time thereafter, for any commodity whatsoever.
"Ninth. In case any merchant, trader or other person, shall receive any goods or merchandise which shall be shipped after the 15th clay of March, and before the 15th day of May next, the same ought forthwith, and at the election of the owner to be re-shipped or delivered to the committee of the town, parish or district, wherein they shall be imported to be stored at the risk of the importer until the non-importation agreement shall cease, or be sold : under the direction of the committee aforesaid; and in the last mentioned, case the owner or owners of such goods, shall be reim- |

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bursed out of the sales, the first costs and charges, the profit, if any, to be applied towards relieving such poor inhabitants of the town of Boston, as are immediate sufferers from the Port Bill; and a particular account of all goods so returned, stored or sold, to be inserted in the public papers ; and if any goods or merchan dise shall be shipped after the said 15th day of May next, the same ought forthwith to be sent back again, without breaking any of the packages thereof.
"Tenth. That a committee be chosen in every parish, town and district, by those who contribute towards the general tax, whose business it shall be attentively to observe the conduct of all per sons touching this association; and when it shall be made to appear to the satisfaction of the majority of any such committee, that any persons within the limits of their appointment, have violated this association; that such majority clo forthwith cause the truth to be published in the Gazette; to the end that all such foes to the rights of British America be publicly known and universally con demned, as the enemies of American liberty; and thenceforth, we will respectively break off all dealings with him or her.
"Eleventh. That the committee o f correspondence, do fre quently inspect the entries of the custom house, and inform the committees of the other provinces from time to time of the true state thereof, arid of every other material circumstance that may
occur relative to the association. "Twelfth. That all manufactures of this province be sold at
reasonable prices, so that no undue advantages be taken of a future
scarcity of goods. "And we do solemnly bind ourselves and our constituents, under
the ties aforesaid, to adhere to this association, until American
grievances are redressed." 10

48. On the 18th of January, the day on which the Provincial Congress met, the delegates from the parish of St. John met separately and acceded to the general association entered into and recommended by the Continental Congress, and sent a communica tion to the Provincial Congress, expressing the hope that the dele gates from the other provinces would do likewise. They waited two days, and having received no answer to their communication, sent another, to which the Provincial Congress sent an evasive and

10. Revolutionary Records, I, 43.

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CONSTITUTIONAL HISTORY.

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rather disrespectful reply. The delegates from St. Johns then met again and resolved, "That as a greater number of the parishes were not represented in the Congress then sitting, it could not properly "be called a Provincial Congress, and that they could not be bound by its proceedings. It was further resolved, that as the committee of the several parishes in Congress, now sitting, have not fully approved of, and adopted the measures entered into, and recom mended by the late Continental Congress, this committee cannot join them, without violating the general association, which they have already acceded to; and betraying the trust reposed in them by their constituents/ 11
By the failure of the Provincial Congress to at once enter into the confederation of the other provinces, the General Committee of South Carolina, on the 8th of February, 1775, passed resolutions that they would "have no trade, commerce, dealings or intercourse with the said colony of Georgia ; but will hold them as unworthy of the rights of freemen, and as enimical to the liberties of the country." 12 The people of St. Johns were so impetuous in their determination to join the other colonies, that they resolved to act independently of the rest of Georgia, and accordingly, on the 9th of February, they appointed a committee to visit Charleston and request that they be permitted to form an alliance with them, and to conduct trade and commerce, according to the new importation act, to which they had already acceded. The Carolina Committee commended their zeal but declined their request, upon the ground, that as they were a part of the colony of Georgia, it would, be a violation of the 14th article of the General Association, and recommended ; "That they will persevere in their laudable exer tions and lay a state of their case before the ensuing Continental Congress." The people of St. Johns then convened a "Parish , Congress," or mass meeting and elected Lyman flail as the repre sentative of St. Johns parish in the Continental Congress. 13
The delegates selected by the Provincial Congress of Georgia, on account of the fact that the province had not acceded fully to the terms of the General Association, and that they had not been elected by a majority of the parishes, rightly felt that they could not properly take their seats in the Continental Congress as repre sentatives of Georgia. They, therefore, addressed a letter to the

11. Revolutionary Records, I, 54-561, Report from Forces Archives. 12. Revolutionary Records, I, 57. 13. Revolutionary Records, I, 58-63.

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president of the Congress, in which they explained the conduct of the people of Georgia, and sought to temper the criticism to which the colony had subjected itself, at the same time deprecating the action of the colony in the strongest terms. 14 On the 13th day of May, Dr. PTall was admitted, to a seat in the Continental Congress, as the special representative of St. Johns Parish, being" permitted to take parts in the debates and deliberations, but not to vote. 15

49. On the 10th day of May, 1775, the news of the Battle of Lexington was received in Savannah, and produced intense excitement. On the night of the llth a small party led by Noble Wimberly Jones, Joseph Habersham and Hdward Tel fair took from the kings magazine the powder for the purpose of applying it to the use of the colonists and tradition says that part of it was sent to Boston and was used by the colonial troops in the Battle of Bunker Hill. 16 On the 5th of June a liberty pole was raised, and at a dinner immediately after it, a resolution was adopted: "That this province ought, and it is hoped will, forthwith join the other provinces in every just and legal measure to secure the liberties of all America, and for healing the unhappy dissensions, now subsisting between Great Britain and her colonies." 17 Meet ings were held in every parish to select delegates to a Provincial Congress to be held in Savannah on the 4th of July, 1775. At a meeting held in Savannah by thirty-four of the most influential citizens of Savannah, on the 13th of June, a resolution to be laid before the Provincial Congress was adopted, which, among other things, declared "That the interest of this province is inseparable from the mother country and all of the other sister colonies, and that to separate themselves from the latter would only be throw ing difficulties in the way of its own relief, and that of the other colonies, and justly incurring the resentment of all of those to whom distress over a disunion, might cause a division" and that the province ought, and it is hoped will forthwith join the other provinces in every just and legal measure, to restore the liberties of all America, and for healing the unhappy divisions now sub sisting between Great Britain and her colonies." On the 2Znd
14. Revolutionary Records, I, 63-66. 15. Jones, Georgia, II, 168. 16. Jones, Georgia, II, 175, 176. 17. Jones, Georgia, II, 178, 179.

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of June a meeting was held for the purpose of choosing a com mittee to enforce the Continental Association, and at this meeting a Council of Safety was appointed. 18

50. On the 4th day of July, 1775, the Provincial Congress met with every parish represented. On the 6th they adopted reso lutions, the first two of which, were as follows :
"1st. Resolved that this province will adopt and carry into execution all and singular the measures and recommendations of the Late Continental Congress.
"2nd. Resolved, In particular, that we in behalf of ourselves, and our constituents do adopt and approve of the American Decla ration or Bill of Rights, published by the late Continental Congress, and also their several resolves, made in consequence of some in fractions thereof."
They adopted further resolutions in accordance with the non importation and non-consumption agreements, proposed by the Continental Congress for the American Association, and made provision for the enforcement of these provisions of the resolu tions, and before adjourning they proclaimed in a set of resolutions, their conception of their natural and constitutional rights as citi zens of Georgia and subjects of Great Britain, stating that they found it prudent, besides adopting the resolutions of the late Continental Congress, "To enter into such other resolutions as may best express their own sense and the sense of their constituents on the present unhappy situation of things," and therefore they thought fit and necessary to resolve as follows, viz :
"Resolved, That we were born free, have all the feelings of men, and are entitled to the natural rights of mankind.
"Resolved, That by birth or incorporation we are all Britons, and whatever "Britons may claim as their birthright is also ours.
"Resolved, That in the British Empire, to which we belong, the constitution is superior to every man or set of men, whatever, and that it is a crime of the deepest dye in any instance, to impair, or take away or deprive the meanest subject of its benefits.
"Resolved, That that part of the American Continent which as inhabited was originally granted by the crown, and the charter

18. Jones, Georgia, II, 185.

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from Charles the second, especially makes its constitutional de pendence upon the crown only.
"Resolved, That those who would now subject all America, or this province to dependency upon the crown and parliament, are guilty of a very dangerous innovation, -which in time, will appear as injurious to the crown, as it is inconsistent with the liberty of the American subject.
"Resolved, That by the law of nature and the British Constitu tion, no man can legally be deprived of his property without his consent given by himself or his representatives.
"Resolved, That the acts of the British Parliament for raising a perpetual revenue on the Americans by laying a tax 011 them without their consent, and contrary to their protestations, are diametrically opposed to every idea of property, to the spirit of the constitution, and at one stroke deprive this vast continent of all liberty and property, and as such must be detested by every well wisher to Great Britain and America.
"Resolved, That all subsequent laws made with a view to en force these acts, viz. The Boston Port Bill, the alteration of their charter, the act to carry beyond sea for trial a (What refines every species of cruelty) the Fishery Bills are of such complexion that we can say nothing about them for want of words to express our abhorrence and detestation.
"Resolved, that the loyalty, patience and prudence of the in habitants of New "England, under their unparalleled pressure hav ing been construed into timidity and a dread of regular troops; a Civil war in support of acts extremely oppressive in themselves hath actually been begun, and there is reason to believe that plans have been in agitation big with everything harmful to other provinces ; plans as rash, barbarous and destructive, as the cause \vhich they were intended to serve.
"Resolved, That in these times of extreme danger, our assembly not being permitted to sit, we must either have been a people with out all thought or counsel, or have assemblies as we now are in Provincial Congress to consult upon measures which, under God, may prove the means of a perpetual union with the mother country, and tend to the honor, freedom and safety of both.
"Resolved, that this province bears all true allegiance to our own rightful sovereign, King George the third, and always will, and always ought to bear it agreeable to the constitution of Great

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Britain, by virtue of which only, the king is now our sovereign, and which equally binds majesty and subjects.
"Resolved, That in case his Majesty or his successors, shall at any time hereafter make any requisition on the good people of the province by his representatives ; it will be just and right that such sums shall he granted as the value of the services may require, and the ability and situation of this province may admit of.
"Resolved, That the province joins with all the other provinces In America now met by the delegates in Continental Congress, and that the Rev. Dr. Ztibly, Lyman Hall, and Noble Wimberly Jones, Esq., John Houston and Archibald Bullock, Esq., be the delegates from the province, and that any three constitute a quorum for that purpose.
"Resolved, That a committee be appointed, whose duty it shall be to see that the resolutions of the Continental Congress and the Provincial Congress be duly observed, and that every person who shall act in opposition thereto have his name transmitted to the Continental Congress, and that his misdeeds be published in every American paper.
"Resolved, That withall such persons except the indispensable duty we owe to all mankind (bad men and enemies not excepted) we will have no dealings nor connection: And we extend this, our resolution also to all such persons or corporations in Great Britain, who have shown themselves enemies to America.
"Resolved, That we will do what in us lies, to preserve and pro mote the peace and good order of this province; and should any person become an innocent sufferer on account of these grievances, we "will do whatever we justly may for his relief and assistance.
"Resolved, That in such calamitous times as the present, every possible indulgence ought to be given to honest debtors, that it "would be ungenerous (unless there appear intention of fraud) in any gentleman of the law to sue without previous notice ; and any person sued may apply to the committee ; and should it appear to them that the creditor is in 110 danger of losing his money, or that he can be properly secured, they shall interpose their friendly offices to persuade him to drop the prosecution: and every prosecutor that shall endeavor to take advantage of the conftision of the times, to distress his debtor, ought to be publicly pointed out and held in abhorrence.
"Resolved, That notwithstanding that in a late bill for restrain ing the trade of the several provinces in America, this provision is

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FOURTH COLONIAL PERIOD. [ 51-52

excepted, we declare that we look upon this exception rather as an insult than as a favor; as being1 meant to break the union of the provinces, as being grounded on the supposition that the in habitants of the excepted province can be base enough to turn the oppression of America into a mean advantage." 10

51. On the 20th of July, 1775, official notice that Georgia had acceded to the general union and had elected delegates to the Continental Congress was received by that body, and she was at once admitted to all the privileges of political union and a reso lution of non-intercourse, which had been passed respecting her on the 14th of May, was immediately rescinded. 20
On the first day of December, 1775, all courts of law in the province were taken under the supervision of the Council of Safety and a committee of fifteen was appointed as a court of ap peals to sit in Savannah quarterly and to hear and determine between the parties and to sanction or prohibit processes according to the circumstances of the case. The constitution of the courts of inferior jurisdiction was left unchanged. 21
The legislative and executive functions of the government were now in the hands of the Council of Safety, the president of which was practically the governor of Georgia. Courts of competent jurisdiction acknowledging the authority of the council were in operation. A military force had been organized, and although the governor and his council remained, they had only the shadow of authority without the substance.

52. On the 12th day of January, 1776, two men of war ar rived at Tybee with royal troops, and six clays afterwards the Council of Safety decided that in order to demonstrate that kingly rule was at an end in Georgia, "The persons of his excellency Sir James Wright, and of John Mulbryner, Josiah Tatiiall, and Anthony Stokes, esquires, be forthwith arrested and secured, and that all non-associates be forthwith disarmed, except those who will give their parole, assuring that they will not aid, assist or comfort any of the persons on board his Majestys ships of war, or take up arms against America, in the present unhappy dis-

19. Jones, Georgia, II, 191. 20. Jones, Georgia, II, 202. 21. Jones, Georgia, II, 207-208.

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pute." 22 Joseph Habersham volunteered to arrest the governor, and going with a small party to his house, he found the governor engaged with his council. Passing the sentinel at the door Haber sham walked into the room and laid his hand on the governors shoulder and said, "Sir James, you are my prisoner." The gov ernor made no resistance, and gave his word not to leave Savannah nor to hold any correspondence with the ships, and was allowed to remain in his mansion. A guard was posted to prevent any communication between him and the members of his council. This virtual imprisonment continued until the night of the llth of February, when violating his parole, the governor fled to one of the ships lying in the mouth of the river. 23
The royal government being entirely abdicated, for the time be
ing, the Provincial Congress, on the 15th day of April, 1776,
formed and proclaimed the following temporary constitution:

"COLONY OF GEORGIA: "Whereas, the unwise and iniquitous system of administration
obstinately persisted in by the British Parliament and Ministry against the good people of America hath at length driven the latter to take up arms as their last resource for the preservation of their rights and liberties which God and the Constitution gave them;
"And whereas an armed force, with hostile intentions against the people of this province, having lately arrived at Cockspur, his Excellency Sir James Wright, Baronet, and Kings Governor of Georgia, in aid of the views of the administration and with a de sign to acid to those inconveniences which necessarily result from a state of confusion, suddenly and unexpectedly carried off the great seal of the Province with him;
"And whereas, in consequence of this and other events, doubts have arisen with the several magistrates how far they are au thorized to act under the former appointments, and the greatest part of them have absolutely refused to do so, whereby all judicial powers are become totally suspended to the great danger of persons and property;
"And whereas, before any general system of government can be concluded upon, it is necessary that application be made to the Continental Congress for their advice and directions upon the same; but, nevertheless, in the present state of things, it is indis-

32. Revolutionary Records, I, 101. 23. Revolutionary Records, I, 103; Jones, Georgia, II, 313.

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pensably requisite that some temporary expedient be fallen upon to curb the lawless and protect the peaceable;
"This Congress, therefore, as the representatives of the people, with whom all power originates, and for whose benefit all govern ment is intended, deeply impressed with a sense of duty to their constituents, of love to their country, and inviolable attachment to the liberties of America, and seeing how much it will tend to the advantage of each to preserve rules, justice and order, do take upon them for the present, and until the further order of the Continental Congress, or of this, or any future Provincial Congress, to declare, and they accordingly do declare, order, and direct that the following rules and regulations be adopted in this Province that is to say
"1st. There shall be a President and Commander-in-Chief ap pointed by ballot in this Congress, for six months, or during the time specified above.
"2d. There shall be, in like manner, and for the like time, also a Council of Safety, consisting of thirteen persons, besides the five delegates to the General Congress, appointed to act in the name of a Privy Council to the said President or Commander-inChief.
"3d. That the President shall be invested with all the executive powers of government not inconsistent with what is hereafter mentioned, but shall be bound to consult and follow the advise of the said Council in all cases whatsoever, and any seven of the said Committee shall be a quorum for the purpose of advising.
"4th. That all the laws, whether common or statute, and the acts of Assembly which have formerly been acknowledged to be of force in this Province, and which do not interfere with the pro ceedings of the Continental or our Provincial Congresses, and also all and singular the resolves and recommendations of the said Continental and Provincial Congress, shall be of full force, validity, and effect until otherwise ordered.
"5th. That there shall be a Chief-Justice, and two assistant judges, an Attorney-General, a Provost-Marshal, and Clerk of the Court of Sessions, appointed by ballot, to serve during the pleasure of the Congress. The Court of Sessions, or Oyer and Terminer, shall be opened and held on the second Tuesday in June and December, and the former rules and methods of proceedings, as

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nearly as may be, shall be observed in regard to summoning of juries and all other cases whatsoever.
"6th. That the President or Commander-in-Chief, with the ad vice of the Council as before mentioned, shall appoint magistrates to act during pleasure in the several Parishes throughout this Province, and such magistrates shall conform themselves, as nearly as may be, to the old established forms and methods of proceedings.
"7th. That all legislative powers shall be reserved to the Con gress, and no person who holds any place of profit, civil or military, shall be eligible as a member either of the Congress or of the Council of Safety.
"8th. That the following sums shall be allowed as salaries to the respective officers for and during the time they shall serve, over and besides all such perquisites and fees as have been formerly annexed to the said offices respectively:

"To the President and Commander-in-Chief after the rate per annum of Sterling. .....................
To the Chief Justice. .............................. To the Attorney-General............................ To the Provost Marshal............................ To the Clerk of Court. .............................

300 100
25 60 50." 24

Archibald Bullock was elected president and commander-in-chief; John Glenn, chief justice, William Stephens, attorney general and James Jackson, clerk of the court. On the first day of May Presi dent Bullock was put into office, and the affairs of the colony were thenceforward conducted by him, with the advice and the assistance of the Council of Safety.
The promulgation of this constitution was a virtual declaration of independence on the part of Georgia, and thereafter except as her government was interrupted by the British military occupa tion, she was an independent state with a republican form of government.

24. Revolutionary Records, I, 274-S75.

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CHAPTER V.
FROM PROVISIONAL S SPA RAT EN ESS TO ORGANIZED STATEHOOD.
53. On the 10th day of August, 1776, a special messenger ar rived in Savannah with a letter from John Hancock, president of the Continental Congress, and a copy of the Declaration of In dependence. President Bullock immediately assembled the Provincial Congress and read the great instrument which declared Georgia to be an independent State, and later read the declaration to the congregated citizens of Savannah assembled in the square in front of the building in which the Congress met, and afterwards to the militia, which saluted its reading with thirteen volleys from the field pieces; and then to the garrison at the battery, which responded with a salute from the seige guns planted there.
On the 10th day of May, the Continental Congress had passed a resolution recommending the respective assemblies and convention of the united colonies, where no government sufficient to the exigencies of their affairs had been established, to adopt such a government as they deemed best, stating the intention to be to totally suppress the exercise of every kind of authority under the British Crown. By the adoption, on the 15th of the preceding April, of a provisional constitution, Georgia had provided for the exigencies of her situation, but now that she had been formally declared a State, it was deemed necessary to adopt a new constitu tion adapted to the condition of the State as a sovereign and in dependent commonwealth. Accordingly Governor Bullock issued a proclamation ordering a general election to be held between the first and the tenth of September, for the purpose of selecting representatives to meet in convention on the first Tuesday in October, and at the same time directed that a circular letter should be addressed to the inhabitants of the- parishes and districts of Georgia, reminding them of the importance of the business to be transacted by the convention., and cautioning them to select only men of the highest character; of approved patriotism, true and tried friends of freedom and men whose political wisdom qualified them to frame the best constitution for the future gov ernment of the commonwealth. 1
1. Revolutionary Records, 1, 380.

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--------------------------------------------------------------------------------------------------, i

54. Georgia had been severely censured for her hesitation in taking the final step which severed her from her allegiance to (' the crown and joined her destiny to that of the other colonies. South Carolina, always impulsive, denounced her as "That in famous Colony" and passed a law prohibiting" all trade or inter course with her.
This censure was not, in view of all the circumstances, deserved, She was the youngest, the "weakest, the most exposed and de fenseless of all the colonies. She had been founded by men of the highest integrity, from unselfish motives, and had been fostered by their philanthropy, the memory of which was fresh, for but forty-four years had elapsed since the first settler had arrived, and the father of the colony still survived and watched her course., No act of parliament, complained of as a grievance, had ever been enforced within her borders, except the bill for the quartering of soldiers, which, under the conditions existing in the colony, was objected to upon principle only, and no attempt had been made to enforce any other of them except the Stamp Act. She had grievances as to her internal government, as in the matter of the administration under the bailiffs' magistracy, and in the matter of the prohibition against the importation of rum and negroes, but such grievances had all been promptly corrected.
Sir James "Wright was an able man and a just ruler, and he, with much plausibility, construed the acts of the colonists as un grateful and lost 110 opportunity of impressing" this upon them. Then, too, it must be remembered that men change their political allegiance after the same manner as they change their religion. They hold on to the ancient form, honestly professing a conven tional loyalty, long after the substance of belief has completely changed, and worship a traditional notion of loyalty to that in which they no longer believe. All things considered, her course in throwing away the protection of the most powerful nation in the world and risking her fate in a doubtful cause is an example of the highest heroism, and evidence of her far-seeing- sagacity and a remarkable proof of the dominating thirst for self-govern ment which characterized that age.

55. The promptness with which the American colonies adopted new forms of government, and the character of the gov ernments which they formed, is a curious fact. Almost the entire official literature of the revolution, prior to that of the sessions of

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the Continental Congress immediately preceding the Declaration of Independence, contained protestations of loyalty to the crown, and expressed the sole purpose of securing to the colonists only the constitutional rights of British subjects, but with unanimity, and with an almost instantaneous promptness, as soon as inde pendence was declared, and, in some instances, even before that event, they erected new governments which, indeed, preserved all the liberties of the English Constitution, but which entered a do main far beyond anything known to English law or tradition. This was strikingly true of Virginia, which on the 29th day of June, 1776, adopted a constitution containing a bill of rights penned by Thomas Jefferson, which embodied practically all of the fundamental principles of the Declaration of Independence. The immediate and unanimous assent of the colonies to these principles and the formation of political machinery to guarantee them and to administer government in accordance with them proved the existence of an American conception of liberty without historical precedent, new, distinct, original and fundamental, which leads to the conclusion that if the Americans had been, prior to that time, sincere in their loyalty and protested willingness to remain part of the British Empire, it must, necessarily, have been to reform the English system to a new and broader idea of constitutional liberty.

56. If the colonies had had no other purpose in setting up new governments, but to secure the constitutional rights of Eng lishmen, it would not have been necessary for them to adopt written constitutions which did more than divide their respective territories into boroughs or counties for the purpose of local ad ministration and to serve as election districts from which to choose representatives to an assembly or parliament, and to make pro vision for the selection of an executive magistrate to exercise the governmental functions then exercised by the crown, and then to declare the constitution of England and the common law to be in effect. For it is not to be forgotten that England had no "written constitution. The great instruments which are commonly referred to as the English Constitution created no new right, but were merely declaratory of rights which already existed. The English Constitution was therefore, unwritten, in the sense that judicial decisions are unwritten law, being merely authoritative statements,

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not making law, but declaring what is the law already. 2 The cardinal necessity of written constitutions as the foundations for the new governments set up in America arose out of a complete and absolute reversal of the theory of sovereignty. Under the English conception, the sovereignty resided solely in the crown. The wrongs which the English people had had to protect them selves against had been invasions of popular rights and ancient customs by the king; hence the English constitution laid no limi tations, except upon the crown, Parliament being left supreme in its legislative powers. Under the American theory, sovereignty resides in the people, and their officers have no prerogatives, but are, in the language of the present constitution of Georgia, "but the trustees and servants of the people." In other words, they are but the agents of the people, and it was but natural that the people should define the agency and limit the powers which the agent might exercise in executing his trust. Besides, the Ameri cans had learned by experience that constitutional rights were as much in danger from the legislative power as from the executive. The governing powers, as well as the legislative, had been ab sorbed by Parliament, and yet the heaviest grievances of which the colonies complained were acts of parliament--the Stamp Act, the Quartering Act, the Boston Port Bill, and the Prohibitory Act, hence we are not surprised to find that the greatest principle of government discovered by the people of the new \vorld, and ap plied in the formation of their several governments was the sepa ration and limitation of all of the powers of government, legislative, executive and judicial. The proper place to begin a study of the origin and development of the new ideas of govern ment is in the constitutions of the original states,3 which deal with the social relations of men with their fellowmen, and with the relation of the individual to the body politic, while the Federal constitution, which was not formed until after the State constitu tions, deals with the political relations of the states to each other, and of the relations of the whole body of states to the other nations of the world. The constitution of no state in the Union affords a more interesting and profitable study of this subject than that of the State of Georgia.

2. Beall v. Beall, 8 Ga. 216.

j

3. DeTocqueville, Democracy in America, T, 73, 74; Hannis Taylor,

American Constitution, 18.

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57. The first constitutional convention of Georgia met in Savannah, on the first Tuesday in October, 1776. No journal of its proceeding's is in existence, and no list of its members can be found. All thai remains is the result of its labors--the Constitu tion of 1777, which, "was not finally adopted and promulgated until the 5th day of February of that year.4
The constitution framed by this convention was not formed entirely "without model and precedent," as has been sometimes asserted. The first constitution formed by an American common wealth was that of New Hampshire, which was adopted by a convention which adjourned on the 5th day of January, 1776. But this was a mere temporary or provisional arrangement, "To continue during the present unhappy and unnatural contest with Great Britain," was a mere bare outline consisting of a few sen tences, and created no new rights, erected no additional guaranties around the liberties of the people of the colony, and was not a constitution in the real sense but was rather a "modus operancli," pending the success of the war. 5 On the 26th of March, 1776, the Provincial Congress of South Carolina passed an act in the nature of a constitution, but it could not properly be regarded as such, for it was not formed by a convention specially called to form and adopt a constitution, but was a mere legislative act, repealable at the pleasure of the body which adopted it. It did not define any new rights or raise any new constitutional guaranties. In the main it adopted the machinery of government already in force, merely making such regulations concerning the political workings of the government as were necessary to adjust its ad ministration to its new conditions caused by the suppression of the British authority, and such as were necessary by reason of its relations as a member of the union formed under the resolutions of the Continental Congress. 0 On the 20th day of Jtme, 1776, Virginia adopted her first constitution, concerning which Mr. Jefferson said: "This constitution was the first that was formed in the whole United States. Virginia was not only the first of the states but the first of the nations of the earth to form a funda mental constitution and to commit it to writing and to place it

4. Revolutionary Records, I, 282. 5. Thorpe's American Charters, Constitutions and Organic Laws, vol. IV, 3451. 6. Thorpe's American Charters, Constitutions and Organic L,aws, vol 6, 3241.

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among their archives, where every one should be free to appeal to its text."7 New Hampshire, South Carolina, Virginia, New Jersey, Delaware and Pennsylvania had already adopted constitu tions when the Georgia Convention met and., before it adjourned, Maryland and North Carolina had done likewise so that Georgia was the ninth of the colonies to frame and formally adopt a fundamental law upon which to build the structure of independent statehood.
But notwithstanding whatever assistance the convention of 1776 may have derived from the labors of similar conventions in the other states, an analysis of the constitution framed by it and a comparison of its provisions with the constitutions of the other states adopled during the same period show its creation to have been a remarkable achievement. Many of its provisions still sur vive in the organic law of the state.
It begins with a preamble reciting the conduct of Great Britain in declaring and asserting the right to raise taxes upon the Ameri can people, and to make laws binding upon them in all cases what soever without their consent, and it combats this asserted right, but it is to be noticed that this preamble does not cite these things as being subversive of the rights of the people of America as in heritors of Knglish law, but denounces them as being "repugnant to the common rights of mankind obliging Americans as freeman to oppose such oppressive measures and to assert the rights and privileges they are entitled to by the laws of nature and reason." After this preamble, this great instrument proceeds, in sixty-three articles, to create the legislative, executive and judicial depart ments of the government, to define the powers of each, and to provide complete machinery for the administration of all the de partments of the government.

58. The first article consists of the celebrated Maxim of Montesquieu concerning the separation of the executive, legislative and judicial branches of government,8 which is expressed in these words: "The legislative, executive and judiciary departments shall be separate and distinct so that neither exercise the powers properly belonging1 to the other." The Virginia Constitution had embodied this principle, expressing it in the same language, but to

7. The writings o Thomas Jefferson (Memorial Edition; Washington, U, C., 1903), vol. 2, p. ICO; vol. 16, p. 46.
8. Montesquieu's Spirit of Laws, Book 6, chap. 6.

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make the declaration more explicit, adding these words: "Nor shall any person exercise the powers of more than one of them at the same time; except that justices of the County Courts shall be eligible to either house of assembly." 9
In 178O this principle was incorporated in the Constitution of Massachusetts, in terms still more explicit, in these words: "In the government of this common wealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers or either of them; to the end that it may be a government of laws, and not of men." 10 The last clause of this provision expresses the great fundamental idea of American con stitutional law, and Daniel Webster said of these words that they were the greatest words contained in any written constitutional document. This expression represents the logical conclusion of the ever-maturing theory of the Anglo-Saxon people that sov ereignty resides in the law and not in the person of the King. The subversion of the English Constitution b}^ the development of the personal power of the king1 under the claim of "prerogative" brought on the English Revolution and the overthrow of the Stuart dynasty, and English Kings understood for a hundred years that if they governed at all they must govern according to law. But kings forget like other men, and George the Third undertook to reassert the personal power of the crown. Taswell-Langmeade says: "By his meddlesome energy and restless activity in regulat ing every affair of state from the greatest to the least, combined with a resolute obstinacy in enforcing his own views against the opinion of his constitutional advisers, be succeeded in reducing the nation from prosperity to the depths of adversity, and in de priving the country forever of its American colonies." 11
Express evidence of this disposition was written into the history of Colonial Georgia, for, as we have previously seen, when the trustees were about to surrender the government under the charter, the Lords Commissioners of Trades and Plantations, to whom had been referred the duty of recommending a plan of government for the province under the royal authority, evidently tuning their words to the royal car, recommended, "that of the different con stitutions now subsisting in His Majesty's Dominions of America,

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that form of government established by the crown in such of the colonies as are more immediately subject to its direction and gov ernment, appears to us the most proper form of government for the province of Georgia."

59. As we have seen, the American colonies had learned that their liberties might be in danger not only from the personal government of the executive, but that there can be unconstitutional government by a legislature, as well as by a king ; hence, they in corporated in their organic law this principle which is justly re garded as the greatest invention of political science. However, we find that this theoretical separation was not strictly observed in the Constitution of 1777, for in defining the province of the several departments of government, it was provided that the gov ernor was to be elected by the legislature, and an executive council was to be chosen by it, out of its own members; the executive prerogative of pardon was limited by the denial of the right in the governor to grant pardons and remit fines, leaving him only with the authority to reprieve criminals and suspend fines until the meeting of the assembly, when the granting or refusing of the pardon or the remission of the fine was to be finally determined by that body; and the power of appointing justices of the peace and registers of probate was exercised by the legislature. 12 It may be observed, however, that under this constitution the governor was without a legislative function which has been conferred upon him by later constitutions--that of the veto. Laws passed by the assembly were referred to the executive council for their examina tion in order that they might propose alterations or amendments, but the council was required to return such laws within five days with their remarks thereon, and the final passage or rejection of the law, rested with the legislature.

60. This constitution contained no separate declaration or bill of rights, but the liberties of the people, in six most important particulars, "were enclosed within constitutional bulwarks by pro visions guaranteeing" "the inherent privilege of every freeman-- the liberty to plead his own cause;" protection against excessive fines and excessive bail; the benefit of the Habeas Corpus Act; the freedom of the press; and the right of trial by jury. The

12. The Federalist No. 47.

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freedom of religious belief and "the free exereise of religion (not repugnant to the peace and safety of the state)" was guaranteed, and the church was practically disestablished by the provision that no persons unless by their consent should "support any teacher or teachers, except those of their own profession."
The method provided in this constitution for its alteration or amendment is worthy of special attention for two reasons. It was an incorporation into the organic law of the State, at that early day, of what is commonly considered a modern innovation--the initiation of legislation by a popular petition, in connection with which there was a qualified referendum. While the initiative was restricted to constitutional provisions and was not applied to or dinary legislation, the principle was the same, and it was to be operated upon the same plan, in substance, as obtains where the initiative has been adopted in modern practice ; that is, when a defi nite number of citizens shall have petitioned for a specific enact ment, the legislature must submit to the people the question whether or not the proposed law shall be effective--in this case, the sub mission being, not to a popular vote, but to a convention of dele gates elected by the people to ratify the proposed amendment. The plan is further interesting from the fact that it shows a more dis tinct recognition of the rights of the counties as subordinate sub divisions of the government than now obtains, in that it required not only a majority of the voters of the whole state to sanction, by petition, the alterations or amendments proposed, but it required that there should be petitions from a majority of the counties signed by a majority of the voters therein. This plan has been criticised as "extremely cumbersome" and "unworkable." 13 Whether any attempt was ever made to put the plan into operation, the writer has been unable to learn, but it is a fact that no amendments were ever made under it.
Notwithstanding the theoretical separation of the coordinate branches of the government, this separation, so far as the legis lative and executive departments were concerned, was more of an absorption of the executive power by the legislature than a sepa ration. The constitution of these two departments reveals the fear and jealousy concerning executive power which existed at the time, and the provisions respecting the executive department show that they took pains to draw the dragon's teeth. A powerful influence
13. The Revision and Amendment of State Constitutions; Walter Fairleigh Dodd, 42.

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over the executive branch of the government was insured by the provision for the election of the governor by the legislature, thus enabling- the legislature to fill the executive chair with a man friendly to the members of that body whose views were in har mony with theirs. The provision that he was to be elected an nually by them guaranteed the continuation of this accord between the two departments. A further means of influencing the executive branch of the government -was provided in the election of a council by the legislature from its own members with whose advice the governor should carry on the government and administer the laws. By taking away the power of the veto and the right of granting pardons and remitting fines, the governor was powerless either to prevent the legislature from passing such laws as it chose, or to sus pend their operations when passed.
The foregoing restrictions grew out of the assertions of pre rogative on the part of the English monarchs, opposition to which culminated in the English Revolution, and out of the reassertion of the personal power of the sovereign by George III, and the arrogant and tyrannical conduct of some of the colonial governors. These restrictions were extreme, and were contrary to the funda mental maxim concerning the separation of the powers of the co ordinate departments of government, and have since been aban doned, but a vestige of the provision as to pardons remains in the Constitution of 1877, which allows the governor "to grant reprieves and pardons, to commute penalties, remove disabilities imposed by law, and to remit any part of a sentence," but requires him at each session of the General Assembly "to communicate to that body each case of reprieve, pardon, or commutation granted."
But the principle of the separation of the executive and legis lative departments was wisely applied, in a most important par ticular, by the provision that the legislature should meet at fixed times, thus making its meetings independent of the executive will except in emergencies rendering extraordinary sessions necessary. Charles the First had admonished the House of Commons to "Re member that parliaments are altogether in my power, for their call ing, sitting and dissolution, therefore, as I find the fruits of them good or evil, they are to be continued or not to be." 14 Under his reign England was deprived of a parliament for eleven years, but

14. The Origin and Growth of the English Constitution; Hannis Taylor, vol. 2. p. 259.

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this deprivation cost Charles his head and the Stuart dynasty the crown and led to the declaration in the Bill of Rights that "par liament ought to be held frequently," and to the enactment of the statute 6, William and Mary, ch. 2, commonly known as the Trien nial Act, requiring that parliament should assemble at least once in every three years. We have seen that two royal governors of Georgia, on several occasions, resorted to the expedient of dissolving the Provincial Assembly to coerce the legislature and to prevent an expression of its will. Thus taught by experience, Georgia, in common with the other American States, was careful to make such provision in her organic law as that no executive could pre vent the regular and frequent meeting of the people's repre sentatives.

61. The preservation of the bi-cameral form of the legis lative body by the retention of the Governor's Council, but with all of its legislative powers withdrawn, is a striking illustration of the familiar persistence of a social or political form after the substantial character of the institution has been changed and it has ceased to perform its original function. The withdrawal of the legislative power from the Governor's Council and its trans formation into an advisory institution and the deprivation of the executive o f the veto power, tlms foregoing the advantages of greater conservatism and maturer deliberation in the enactment of legislation; the denial of the elective franchise and the right to hold any "post of honor, trust cr profit" to those holding titles of nobility, disclose the extreme jealously of the American people of that age, and especially of the people of Georgia, towards any limitation upon the exercise of the powers of government by the common people. But it also discloses that the statesmen of that day had not fully matured what has since come to be accepted as the American conception of popular government. They held somewhat the English conception of the character of representa tive government as exercised by the lower house of parliament, that is, that the House of Commons is the people of England; whereas, the American conception is that legislators do not stand instead of the people, but as agents chosen to exercise the powers of a prescribed and limited agency. Treating the office o f the governor as analogous to that of the crown and the governor's council as analogous to the House of Lords, and retaining the English conception of representation, the men wrho framed the

62 ]_______CONSTITUTIONAL HISTORY._________[74 ,

Constitution of 1777 wrote into it almost tlie exact form of gov

ernment into which the English government has grown by the

slow processes of social and political evolution, wherehy the veto

power of the crown has been practically taken away, 15 the leg- ;

islative power of the House of Lords subordinated to that of the \

House of Commons by the power to cause the creation of new '

peers when needed in order to change a majority in the upper

house of parliament, and by the exercise of the administrative

powers of the government through ministers nominated by the :

crown upon the choice of the House of Comn\ons. The Upper :

House of Assembly, during the provincial government, had been i

partizans of royalty and had too often taken the part of prerog- j

ative, creating the impression that the natural function of exec

utives and upper houses is to obstruct the will of the people. As ;

soon as the idea had been matured that the executive and judiciary :

departments are the representatives of the people, just as the leg- ;

islature is, and not their masters, the different departments of;

government were erected in due proportion according to the fun- ',

damental theory of the separation and coordinate independence of j

the several departments.

;

62, But the genius for statesmanship of the men of the rev-' olutionary era, as displayed in creating representative governments embodying the principle of democracy in the largest practicable quantity, did not stop with making the legislature independent of: the executive and limiting restraint upon its most numerous branch,, The representative character of the legislature was most profoundly, changed, not in form but in substance, by the simple provision that : the members of the General Assembly should reside in and be! elected by the votes of the people of the political subdivision from which they were chosen and by their votes only, and that each elector should have a single vote in the choice of representatives, thus making the representative and his interests a part of his own constituency. This principle had never been applied, nor has it yet been fully adopted in the mother country. There, representa tives are chosen by the people entitled to vote in a county or bor-j ough. and the elective franchise, not necessarily depending upon residence in the political subdivision from which the representa-

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tive is chosen but, in some cases, being an incident to the ownership of property, persons are often entitled to vote in a borough who do not reside in it, and eligibility of the person elected does not depend upon residence in the county or borough from which he is elected, so that a person living* in a remote part of the kingdom is as eli gible to represent a particular borough as one who resides in it. William Pitt was first elected to parliament from the borough of Stowe and, later, he was elected from Old Saram, one of the rotten boroughs--"An area of about sixty acres of ploughed land, on which had once stood the old City of Salisbury, but which no longer contained a single house or resident. The electorate con sisted of seven votes. When an election took place the returning officer brought with him a tent under which the necessary business was transacted." 16 Later he represented in succession Seaford, Aldborough and Okehampton.

63. The soul of democracy is the elective franchise, and its measure in a representative government lies in the conditions un~ der which the right of suffrage is exercised. Originally in Eng land, the county franchise was enjoyed by all freeholders and the borough franchise by all who were payers of "scot and lot" or parochial taxes for "the poor, the church, lighting, cleansing, and watching." Residence was at first an essential qualification for a borough, and county elections were by the "full county." "But it was not long before the power of the crown and the aristocracy began to be increased at the expense of the liberties of the people. In 1430 the first disfranchising statute on record was passed by which the qualifications of electors was restricted to freeholders, and of them to such only as "have free land or tenement to the value of forty shillings by the year, at least, above all charges," and it was provided by the same act that both the electors and the elected , should be actually resident in the county. However this latter provision fell early into "desuetude," and was finally repealed in 1774. 17 In 1438 the crown inaugurated a new policy for the control of the borough comrmmities that was momentous in its consequences, "that of granting charters to municipal corporations in which the crown nominated the mayor and councilmen, and

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made them a self-perpetuating body, with the right of selecting the members of parliament from the borough. 18 By these means the power of the crown and the aristocracy was increased until in 1793 it was said that three hundred and fifty-seven members, or more than a majority of the house (of Commons)., as then constituted, were returned to parliament by one hundred and fifty-four patrons, of whom fifty were peers."
Under the provincial government in Georgia, residence in the parish in which he desired to vote was one of the qualifications of an elector, but the franchise was limited to those who owned as much as fifty acres of land in the parish. The constitution of 1777 conferred the franchise upon "All male white inhabitants of the age of twenty-one years, and possessed in his own right of ten pounds value, and liable to pay tax in this State, or being of any mechanic trade, and shall have been resident six months in this State." It will be seen from the foregoing that while a small property qualification, or the pursuit of a "mechanic trade" was required, the right of the franchise was restored substantially as it existed in England before it was restricted by royal usurpation and aristocratic influence, by being made conditional upon age, residence, and the payment of taxes. So important was the larg est exercise of the right of suffrage considered that it was provided that every person who absented himself from an election and failed to vote should be subjected to a penalty not exceeding five pounds.

64. The constitution of 1777 was a constitution very nearly in the strict sense of that term ; that is, its provisions were almost entirely fundamental and it contained little matter of a legisla tive character. The most notable exceptions were the provisions for the stay of executions ; the limitations upon court costs ; and the pendency of cases in the Superior Court; the provision against the entailing of estates and the establishment of rules of inher itance. The legislature was given the broad power "to make such laws and regulations as may be conducive to the good order of the State ; provided such laws and regulations be not repugnant to the true intent and meaning of any rule or regulation contained in this Constitution." "But practically no limitations were laid upon the legislative powers except as the subject matter of legislation was

18. Hannis Taylor, English Constitution, 575; Taswell-Langmeade, English Constitutional History, 277.

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already occupied by tb e creation of tbe organic laws contained in the constitution and by the provision for the separation of the leg islative, executive and judicial departments which we have seen the constitution itself did not strictly adhere to, and such further limitations as were contained in the six provisions already referred to as constituting the bill of rights of this constitution. It provided that schools should "be erected in each county and supported at the general expense of the State," as the legislature should point out and direct. No provision "was made by this constitution for the creation of a State institution of higher learning other than county academies, but there was no limitation upon the power of the leg islature to found such an institution, and the statesmanship of Georgia was so enlightened at this early day that, in February, 1784, an act was passed giving forty thousand acres of land for the support of a state institution of higher learning, and by an act entitled "An Act for the more full and complete establishment of a public seat of learning," passed on January 27, 17&5, there was created what is now- the University of Georgia, the first chartered State University in America. 19
The salaries of the public officers were left to be fixed by law. No limitations were laid upon the powers of taxation either as to amount or as to the manner of its exercise. A comparison with the constitution adopted a century later will show how little com paratively the domain of legislation was encroached upon. Besides the largeness of its legislative powers, the legislature performed other important duties of a political, administrative and judicial na ture, such as the election of the governor and the appointment of the Governor's Council; the appointment of registers of probate and of justices of the peace; the admission of attorneys at law to practice before the courts of the State, their trial and suspension for malpractice, and the right to call every officer of the State to account.

19. Marbury & Crawfords Digest, p. 560.

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CHAPTER VI.
THE; REVOLUTION"., TTT:K FKDKRAL CONSTITUTION, AND THE CON STITUTION o^ 1789.
65. The government of the State continued to be admin istered by the President and the Council of Safety until the con vening of the General Assembly and the organization of the gov ernment under the new Constitution. During the latter part of February, 1777, the President, Archibald Bullock, died, and Button Gwinett, was elected by the Council of Safety as President and Commander- in-Chief to succeed him. The Constitution having been proclaimed, President Gwinett issued bis proclamation order ing elections to be held under the constitution in all of the counties for members of a General Assembly to convene in Savannah, on the 8th day of May, 1777. The elections were held m accordance with this proclamation, and the legislature met at the time and place designated. It promptly entered upon the task of organizing the government by the election of John Adam Treutleii, governor; Noble Jones, speaker of the House of Assembly, and Jonathan Bryan, John Houston, Thomas Chisholm, William Holzendorf, John Kulton, John Jones, John \Valton, William Pew, Arthur Fort, John Coleman, Benjamin Andrew and William Peacock, members of the Executive Council. 1 This legislature remained in session almost continuously until September, and enacted a number of laws necessary to put the government under the constitution into operation, and to provide for the public defense. One of the first of these laws was "An Act defining Treason," 2 aimed at the "Tories," who took sides against the State and aided or abetted its enemies in the war with Great Britain.
The second legislature under the Constitution met in Savannah on the 6th day of February, 1778, and on the 10th day of that month elected John Houston, governor. The first act passed was a bill of attainder, approved on the first day of March, 1778, attaint ing Sir James Wright and one hundred and sixteen other persons of high treason, and declaring their estates, both real and personal,
1. Revolutionary Records, vol. 1, p. 305. 2. Revolutionary Records, vol. T, p. 332, et seq.

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confiscate to the State. 3 After Savannah fell on the 29th of De cember, 1778, Governor Wright returned and reestablished the royal government, and in March, 1780, writs of election were is sued for the election of a Commons House of Assembly, returnable on the 5th of May. The election was accordingly held and on the 9th of May the House was organized, although a constitutional quorum was not present, the Governor and Council deciding, "That, from the necessity of the thing, they should be taken as a House and proceed to business." The two principal bills passed by this House were "An Act to Attaint of high Treason the several persons hereinafter named, who are either absent from this prov ince, or in that part of it which is still in rebellion against his Majesty, and to vest their real and personal estate in his Majesty, etc.,"4 and "An Act to disqualify and render incapable the several persons hereinafter named, of holding or exercising any office of trust or profit in the Province of Georgia." 5 The first of these acts contained the names of twenty-four civil and military officers of the State, and the latter act contained the names of one hundred and fifty-one officers and citizens who had espoused the cause of the republican government.

66. From the fall of Savannah the republican government of Georgia for some time lead an uncertain and fugitive existence. Governor Houston and the Executive Council withdrew to Augusta and summoned the General Assembly to meet in January to elect a governor, but within ten days the city of Augusta was taken by the British. After the abandonment of Augnsta the legislature met there, but did not have a quorum. However, like the Royal Assembly in Savannah, they organized in August, 1779, and elected a new Executive Council and elected John Wereat as President of the Council, and authorized him to act as governor.6 On the 4th of November he issued a proclamation calling for a regular elec tion on the first Tuesday in December for members of a General Assembly to meet in Augusta, in January, 1780, and authorizing the citizens of the southern counties which were under the occu pation of the British to cast their votes for delegates wherever it might be most convenient for them to do so.7

3. Revolutionary Records, I, 326; Prince's Digest, p. 66. 4. Revolutionary Records, I, 364. 5. Revolutionary Records, I, 371, 6. Revolutionary Records, I, 403. 7. Revolutionary Records, I, 407.

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A faction led by George Walton declared the election of Wereat and the Council as "illegal, unconstitutional and dangerous to the liberties of the State/* and notwithstanding the Executive Council had issued their writs of election for deputies to the assembly as pro vided by the constitution, these malcontents called upon the people to choose delegates to an assembly to be convened in Augusta in No vember, 1779. The friends of Walton met in Augusta on the 4th of November and elected him governor for the remainder of the year. Thus, in the most critical period of her history, when patriotism should have been united, the State had, for a month, two acting governors.8 The General Assembly met in Augusta on the 4th of January, 1780, and elected Richard Howley governor. On account of the defenceless condition of Augusta, the General Assembly designated T-Ieard's Fort, where \Vashington, "Wilkes County, now stands, as the capital of the State if it should be necessary to re move the seat of government from Augusta. The necessity arose within a month and Heard's Fort became the temporary capital of the State. When Augusta was re-captured, the capital was re established at that place where the legislature met in August, 1781, and elected Nathan Brownson governor. 9 In January, 1782, the General Assembly met in Augusta and elected John Martin gov ernor. When General Wright surrendered the city of Augusta and returned to Hngland in May, 1782, the governor and the General Assembly returned to that city, and it became again the seat of government.
On the 4th of May, 1782, the legislature passed an act en titled "An Act for inflicting penalties on, and confiscating the estates of such persons as are therein declared guilty of treason, and for other purposes therein mentioned," by which two hun dred and eighty persons who had aided and abetted the royalists' cause were banished from the State on the pain of death if they returned, and their estates declared confiscate to the State. 10 This and similar acts passed by the legislatures of other states in the heat of resentment at injuries and cruelties inflicted upon them were the occasion of the fifth article in the treaty of Paris, and served, when the passions of the times had somewhat cooled, to warn the people of the danger of such a power and contributed to the prohibition by the Federal Constitution of bills of attainder

8. Jones, Georgia, II, 429. 9. Revolutionary Records of Georgia, I, 410. 10. Revolutionary Records of Georgia, I, 373.

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and the passage of ex post facto laws, and to the incorporation of similar prohibitions in the Constitution of Georgia.

67. When the American colonies had achieved their inde pendence and entered upon the business of government they found the plan provided by the articles of Confederation inadequate. The Congress cotilcl not lay taxes even to support its own existence without the consent of the individual states, and the states were unwilling to grant the power. In 1786 an attempt was made to empower Congress to raise a revenue by a tax upon imports, but this required the consent of all the states. This plan failed because of the refusal of the State of New York to consent, she being unwilling to give up or share with the other states the advantage of her great harbor. "The states indulged to the top of their bent a petty hostility towards each other. New York was by no means the only state that laid duties on merchandise brought in from the farms and shops of her neighbors. There was everywhere the same jealous spirit, the same striving for every petty advantage, the same alert and aggressive selfishness ; and the more the states deemed their interests antagonistic, the more like a rope of sand did the confederation become." 11 The Virginia House of Burgesses in January, 1786, asked all the states to send delegates to a conven tion to be held at Annapolis on the first Monday in September, but the states did not sufficiently respond, and the convention was a failure. Only Virginia, Pennsylvania, Delaware, New Jersey and New York sent delegates. Connecticut, South Carolina and Georgia ignored the call altogether. The original purpose of the conference was to consider interstate questions of a commercial nature, but it was led by Alexander Hamilton to take under con sideration the general political situation. It was not sufficiently representative in its attendance to warrant its taking action upon any subject, so it recommended to Congress and the legislatures of the several states that commissioners be appointed from each of the thirteen states to meet in Philadelphia in May, 1787, "To de vise such provisions as shall appear to them necessary to render the constitution of. the Federal Government adequate to the exi gencies of the Union/'' 13 This plan was approved by the Congress
11. History of the American People (Woodrow Wilson), III, 54. 13. The Critical Period in American History (The Writing's of John Fiske) Houghton Mifflin Co.; Boston & New York, 1903, vol. 13, pp. 255-257.

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and the convention was accordingly called. In response to the invitation to send delegates, the General Assembly of Georgia passed an ordinance on February 10, 1787, appointing William Few, Abraham Baldwin, William Pierce, George Walton, William Houston, and Nathaniel Pendleton as commissioners to represent Georgia in the convention. Although Georgia was the smallest and the least influential of the states, from the standpoint of pop ulation, wealth and commercial importance, her delegation was an exceedingly able one and it made its influence profoundly felt. Every member of her delegation had been a member of Congress. Baldwin was an alumnus of Yale College, and became president of the University of Georgia and a United States Senator. 13

68. One of the questions arising in the convention most difficult of satisfactory solution, and about which there was one of the strongest contests, "was as to whether representation in the National Congress should be equally divided between the states, or should be in proportion to population. Georgia was at this time the smallest of the states in population and when she cast her vote with the large states that supported the plan of representation based upon population, her vote was received with astonishment. Luther Martin of Maryland saw the standpoint of the Georgia delegates, however, and thus expressed it in a letter to the speaker of the House of Delegates of Maryland,--
"It may be thought surprising, sir, that Georgia, a State now small and trifling in the union, should advocate this system of un equal representation, giving up her present equality in the Federal Government, and sinking herself into almost total insignificance in the scale: but, sir, it must be considered that Georgia has the most extensive territory, being as large as the whole of Great Britain, and thirty times as large as Connecticut. This system being designed to preserve to the states their whole territory un broken, and to prevent the erection of new states within the ter ritory of any of them, Georgia looked forward to when her pop ulation being increased, in some measure proportional to her ter ritory, she should rise in the scale and give law to the other stales, and hence we found the delegation of Georgia warmly advocating the proposition of giving the states unequal representation." 14
13. Watson, U, S. Constitution, vol. 1, 59. 14. Georgia and State's Rights (Ulric B. Phillips), 18.

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It must be remembered that at that time the territory of Georgia was, indeed, imperial in extent, stretching west to the Mississippi and embracing the territory now constituting the great states of Alabama and Mississippi.

69. The constitution of the senate was more strongly con tested between the larger and the smaller states than the constitu tion of the House of Representatives. On the question as to the manner of electing senators, Mr. Pierce spoke in favor of electing the members of the lower House by the direct vote of the people, and of the upper House by the states, in order that the people of the states might be represented m the National Legislature, both directly as individuals, and indirectly as citizens of their respective states. Mr. Baldwin declared that the upper House ought to be the representation of the property interests and that it ought not to be elected as the other branch. Upon the question as to how many senators each State should have, a motion was first made that each State should have one senator. Upon being put to a vote this motion was lost, Georgia being one of the states which voted against it. A motion was then made that each State should have three senators, but this motion was also lost, Georgia again voting in the negative. The question was then compromised by the unanimous agreement that each State should have two sen ators.
Upon the question as to what vote each State should have in the Senate, a motion was made that each State should have one vote. It was urged that an equality of voices was necessary to secure the smaller states against the larger. Oliver Ellsworth of Connecticut, expressed the opinion that if this motion was not agreed to, none of the states north of Pennsylvania, with one ex ception, would agree to the general government. Upon this motion Georgia had the deciding vote, five states having voted on each side of the question, before the time came for the vote of Georgia to be cast. Under the rules, each State had one vote in the con vention. Mr. Baldwin had expressed himself as favoring the side of the larger states, but seeing the critical danger of disrupting the convention, he caused the vote of Georgia to be divided so that it did not count, and the motion failed by a tie. Finally it was decided by a vote of nine states against one, "that the sec ond branch consist of two members from each State, and that they vote per capita." With a slight change of language made by

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the committee on style, this provision became part of the constitu tion. 13

70. The paramount necessity for the adoption of the con stitution being to place the regulation of commerce under federal contro], and this power having been conferred upon Congress, un less there had been some limitation upon its power, Congress could have prevented the importation of slaves under the general power to regulate commerce. South Carolina was extreme in her con tention that the importation of slaves should not be interfered with, and Georgia seconded her contentions. The delegates from both states threatened that if the importation of slaves were not allowed, their states would not ratify the constitution. Mr. Baldwin stated that if left to herself, Georgia would put a stop to the trade of her own accord. Finally the question was compromised by the adop tion of article 1, 9, of the Constitution, which provided that "the migration or importation of such persons as any of the states now existing shall 'think proper to admit, shall not be prohibited by Congress prior to the year 1808." Mr. Baldwin's prophes3'- that Georgia would prohibit the trade was fulfilled ten years earlier than the limit fixed by the convention in the adoption of the Con stitution of 1798. 16
The slavery question caused the omission of a bill of rights from the constitution as framed by the convention. On a motion for a committee to prepare a Bill of Rights, New Hampshire, Connec ticut, New Jersey, Pennsylvania and Delaware voted "Aye !" Mary land, Virginia, North Carolina, South Carolina and Georgia voted "Nay!" and the vote being a tie the motion was lost. In explana tion of this action Charles Cotesworth Pickney said: "Such bills generally begin with declaring that all men are by nature born free. Now we should make that declaration with a very bad grace, when a large part of our property consists in men who are actually born slaves." 17

71. When the constitution had been completed it was signed by the members of the convention, William Few, and Abraham Baldwin signing on the part of Georgia. It was sent to Congress with a resolution : "That the preceding Constitution be laid before

15. Watson, U. S. Constitution, vol. I, 330, 233, 234. 16. Watson, IT. S. Constitution, vol. T, 715-721. 17. Watson, U. S. Constitution, vol. 2, 1353.

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the United States in Congress assembled, and that it is the opin ion of the convention that it should afterwards be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its Legislature, for their assent and ratification; and that each convention assenting to and ratifying the same, should give notice thereof to the United States in Con gress assembled." 18 On the 29th of September, 1787, the Congress resolved unanimously that said report with the resolutions and let ter accompanying the same, be transmitted to the several legisla tures, in order to be submitted to a convention of delegates chosen in each state by the people thereof, in conformity to the resolve of the convention made and provided in that case. 19
A copy of the constitution and the resolutions reached Augusta about the middle of October and were published in the Georgia Gazette. The . legislature was in session at the time and on the 25th of October it resolved that members of a convention should be elected on the day of the next general election, to consist of not more than three members from each county, to meet in Augusta on the 4th Tuesday in December following to consider the report, and to accept or reject any part of it. The convention met on the 28th of December and organized by electing John Wereat president, and Isaac Briggs secretary. After considering the several articles and provisions of the constitution, the convention without propos ing any amendments, on the 29th of January, 1788, did "fully and entirely assent to, ratify and adopt the proposed constitution." 20
Georgia was the fourth of the states to ratify the Federal Con stitution, and one of the three states to ratify it unanimously, the other two being Delaware and New Jersey. The fact that a State of such extreme southern views had unanimously and so promptly ratified the constitution without proposing an amendment was a matter of some surprise, and when we consider her pronounced "States' Rights" views so strongly urged early in her history, it at first blush, seems strange, but a consideration of her condition at the time discloses commanding reasons why she was eager for a cer tain and strong government. Her representatives had gained in the convention practically all they had contended for--independ ence in domestic government, the integrity of her domain, 11011-

18. Watson, 17. S- Constitution, vol. 2, 1771. 19. Watson, U. S. Constitution, vol. 2, 1344. 20. Georgia and States Rights (Phillips), giving temporaneous issues of the Georgia Gazette.

extracts from

con

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interference in the matter of slavery and of the slave trade, equal representation with the other states in the upper House of Con gress and satisfactory representation in the lower. She was weak and possibly incapable of her own defense against the Spaniards and the Indians who menaced her. Jieing the weakest of the states in numbers, wealth and commerce, she was least able to protect herself against the power of the other stales, hence she desired to create a greater power than any of the states, and then desired, as much as possible, uniform laws applicable to all of the states, by which uniformity she would be lifted to a parity with the larger states which their unhindered discrimination might have prevented her. for a long time, from reaching. Accordingly we find that while the convention which formed the Federal Constitution was in session, a newspaper published in Augusta strongly commended a proposition said to have been under consideration by the con vention, that the thirteen states should remain as they \vere, "ex cept that their laws be revised by Congress so1 as to make the whole act in conformity as of one, and the executive powers of Congress enlarged." 21

72. In order to cure numerous defects in the practical work ing of the government, arising largely out of the failure of the Constitution of 1777 to properly distribute the powers of govern ment among the three coordinate branches into which they \vere theoretically divided, and in order to bring the State government into harmonious accord with the new Federal Constitution, the Georgia Legislature, on the 30th of January, 1788, resolved, "That they would proceed to name three fit and discreet persons from each county to be convened at Augusta by the executive, as soon as may be after official information is received that nine states have ratified the Federal Constitution; and a majority of them shall proceed to take under their consideration the alterations and amendments that are necessary to be made in the constitution of this State, and to arrange, digest and alter the same, in such manner,
21. Georgia State Gazette, July 31, 1787, quoted from in Georgia and States Rights, 18. For what is perhaps the best statement extant of the ideas -which dominated the convention -which framed the Federal Constitution, see extract from the Literary Diary of Esra Stiles, of Dec. 31, 1787, consisting of an account "of the whole progress of the Convention," by Abraham Baldwin of Georgia and attested by him. Watson, U. S. Constitution, vol. 2, 1347.

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as, in their judgment, will be most consistent with the interest and safety, and best secure the rights and liberties to the citizens thereof." 22
Official notice of the ratification of the Federal Constitution by nine states was received by the governor of Georgia on the 6th of October, 1788. Governor Hadley accordingly called the members of the Constitutional Convention nominated by the legislature to meet in Augusta on the 4th of November, 1788, to carry the res olutions of the General Assembly into effect. The legislature was called to meet at the same time and place, this earlier time of the meeting of that body being necessary on account of a resolution of Congress, that presidential electors were to be chosen in each State, on the first Wednesday in January, 1780, so that they might cast their ballots on the first Wednesday in February for a president and vice president to go into office on the 4th day of March. 23
The Constitutional Convention met at the time and place desig nated, and remained in session until the 24th day of November, when they finally agreed to and signed a form of Constitution, which was ordered by the General Assembly to be printed, and "Five hundred copies to be sent by the executive to the different counties and distributed among the justices and field officers of the militia, to be communicated to the people for their consideration." 24 This Constitution was not to become effective, however, until reviced by another body created under a resolution of the General Assembly to be composed of three persons from each county chosen by the people of the several counties on the first Tuesday in December, who were to meet in Augusta on the 4th day of Jan uary, 1789, "vested with full power, and for the sole purpose of adopting and ratifying, or rejecting the Constitution as formed by the previous convention." 25 This second convention met and pro posed alterations in the Constitution, as framed by the first conven tion. These alterations being reported to the legislature, it directed that they be made known to the people and the governor was di rected to call a third convention "to adopt the said original plan or form of government, with or without any or all of the alterations contained and expressed in the said after plan of January last." 26

22. Stcvcns, Georgia, vol. 2, 388. 23. Stevens, Georgia, vol. 2, 388, 389. 24. Stevens, Georgia, vol. 2, 389. 25. Stevens, Georgia, vol. 2, 390. 26. Stevens, Georgia, vol. 2. 390.

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The third convention met at the town hall in Augusta on the 4th of May, 1789, and after remaining in session three days, on May 6th ratified the Constitution as reported hy the second convention and waited upon the governor and delivered the constitution into his hands and desired him to cause it to be promulgated to the people. 27

73. The changes in the organic law of the State, made by the adoption of the Constitution of 1789, were for the most part, the evident result of an attempt to carry out, in fact, the principle of the separation of the powers of the government. It did this, not by a theoretical statement of the principle, but by its prac tical application. The most important of these changes were the abolition of the governor's council, and the establishment of a real bicameral legislature by the creation of a senate ; the increase of the qualification of the members of the legislature, and the crea tion of a different and higher qualification for members of the Senate, than for the House of Representatives, this difference be ing the first instance of such a discrimination made by any State of the Union in its Constitution; the change of the term and method of the electing of the governor, and the provision for the succession by the president of the Senate in case of a vacancy; the conferring upon the governor of the power to grant reprieves and to pardon offences after conviction "except for treason or murder," and to exercise the veto power with respect to legislation, subject to be overridden by a vote of two-thirds of both Houses. This Constitution is the briefest of all of the constitutions of the State. Like the Federal Constitution, and probably for the^fame reason, it contained no Bill of Rights and only three provisions usually found in such a document--the provision for the freedom of the press, trial by jury, and the benefit of the writ of habeas corpus, unless the provision concerning freedom of religion should be enumerated with the foregoing.
One of the most important features of this Constitution was its organization of the legislative department so as to apply the "county unit" principle to the enactment of legislation. Under the former Constitution the executive council voted hy counties, but they did not act at all in the matter of legislation except in an advisory capacity. Under the new constitution, the composi-

27. Stevens, Georgia, vol. 2, 390.

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tioii of the House of Representatives was, to a certain extent, based upon population, arid, in that body each county might have a diverse voice through the votes of its several members, but before proposed legislation could be finally enacted into law, ft had to pass the Senate in which each county had a single and equal voice without respect to population.

74. The doctrine of ''States' Rights," so profoundly be lieved in by the people of Georgia throughout the whole period of her history, sprang into conspicuous prominence, by the filing at the August term, 1792, of the Supreme Court of the United States of the case of Chrisholm v. Georgia, being an action by a citizen of South Carolina to recover a sum of money by a suit against the State of Georgia. 28 The State having been notified of the pendency of this suit, a resolution was introduced into the Georgia House of Representatives, on the 14th day of December, 1792, declaring that the suit, "if acquiesced in * * * would effectually destroy the retained sovereignty of the State and would annihilate the very shadow of the State governments and render them but tributory corporations to the government of the United States." 29 Similar suits had been acquiesced in by New York, Mary land. South Carolina arid Virginia, but Georgia determined to resist. In doing so, she acted upon good authority. The authors of the Federalist had declared that such a suit was without "A color of foundation." John Marshall had declared in the Vir ginia convention: "I hope that no gentleman will think that a State will be called at the bar of the Federal Courts. * * * It is not rational to suppose that the sovereign power will be

28. Chrisholm v. Georgia, 3 Dallas (U. S.) 419-480. 29. Georgia and States Rights, p. 26, quoting from, the Augusta Chronicle and Gazette of the State, of Dec. 23, 1793, and citing Am.es' State Documents on Federal Relations, p. 8. A recent author has said of a resolution passed by the House of Rep resentatives of Georgia in 1793, declaratory of State Sovereignty and resolving that any person attempting- to levy on any property of the State to satisfy the claim of Chisholm, should suffer death:
"Here for the first time -was announced the principle that,the primary allegiance of the citizen is to the state, not to the nation; and that other principle, equally far reaching, that the state is the judge of the consti tutionality of its own acts. These are the bases upon which the theory of State Sovereignty is reared." Fess, Political Theory and Party Or ganization in the United States, pp. 27, 38.

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dragged before a court."30 When the motion to show cause in the case came on to be heard a written protest was filed by counsel representing the State on the ground that the State was sovereign and could not be impleaded. Counsel for the State, acting under instructions, declined to take any part, even in arguing- this ques tion. After an elaborate argument by Peytoii Randolph, the At torney General of the United States, the court (Justice Iredell, dissenting) decided in favor of the plaintiff that the action was maintainable.
This decision was pronounced on the 18th of February, 1793. Two days later the eleventh amendment to the Federal Constitu tion was proposed in Congress and formally acted upon by that body in the following December. This amendment was finally ratified by a sufficient number of states, and thus Georgia won the first great fight of the nation for "States' Rights" and wrote her victory into the fundamental law of the nation. 31

75. On the 7th day of January, 1795, the most celebrated statute ever enacted in Georgia "was passed under the caption, "An Act supplementary to an Act, entitled an Act for appropriating a part of the unlocated territory of this State, for the payment of the late State troops, and for other purposes therein mentioned; declaring the right of this State to the unappropriated territory thereof, for the protection of the frontiers, and for other pur poses."32 This is "what is known as the "Yazo-o Act." Under its patriotic and well-sounding, but misleading title, the greater part of the territory now comprised in the states of Alabama and Mississippi was sold to four land companies for the paltry sum of $500,000. Thus was swept away the larger part of the im perial territory upon which the delegates from Georgia had based their dreams of predominant future power, when they voted with the larger states in the convention which framed the Federal Constitution. This act, consummating a scheme born outside the State of Georgia, and accomplished by the rankest fraud and cor ruption, became the most prominent political issue for a third of a century, damning every man in Georgia who favored it and

30. The History of the Supreme Court of the United States (Carson) vol. T, 176; Watson on the Constitution, vol. 2, 1537, quoting- 3 ElHott's Debates, 2nd Ed. 555.
31. Watson, U. S- Constitution, vol. 2, 539. 32. Watkins Digest, 387.

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tarnishing the names of some of the most notable men of the na tion.53 On the 13th of February, 1796, an act was passed, rescinding the "Yazoo Act," the preamble of which contains an interesting statement of the constitutional grounds upon which it was claimed that the rescinded act was void.34 Some of the reasons assigned are not convincing from a legal standpoint, and some asserted views of constitutional law whereof the contrary doctrine has been accepted, but some of the grounds assigned were eminently sound and have influenced and passed into the subse quent organic law of the state. One of the reasons urged for declaring the act unconstitutional, was that it was "opposed to the good of the State." This was undoubtedly true as a premise, but the conclusion drawn from it is not certain. The legislature which passes a law must, necessarily, be the sole judges of whether it is for the "good of the State," unless it is clearly obnoxious to some constitutional provision defining the good of the State in reference to the subject matter with which the sta^ite deals. A subsequent legislature may repeal a statute because it is opposed to -what that legislature deems the good of a State, and all repeals are presumably from this reason, but repeals can no more be retro spective than other laws. No provision against the passage of retroactive laws appear in the Federal Constitution, the provision of that instrument against retrospective legislation by the states being confined to the provision, as to criminal matters, that no bill of attainder or ex post facto law shall be passed, and as to civil matters, that no law shall be passed "impairing the obligation of contracts." A prohibition against the passage of retroactive laws, as such, appears in the organic law of Georgia, first in the Constitution of 1861, -where the prohibition is limited by the qualifying clause "injuriously affecting any rights of citizens." The prohibition in its unqualified form first appears in the Constitution of 1877.
But some of the other reasoning contained m the act was much more sound. There are few clearer statements of the nature of legislative power and the limitations of its legitimate exercise than that "the free citizens of the State, or in other -words the community thereof, are essentially the source of the sovereignty of the State, and no individual or body of men can be entitled to
33. Chappell's "Miscellanies of Georgia," "The Yazoo Fraud;" (Re print by James F. Meegan, Atlanta, Ga.), Part II, pp. 56-137.
34. Princes' Digest, p. 515.

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or vested with any authority which is not expressly derived from that source, and the exercise or assumption of powers not so de rived become themselves oppression and usurpation." It was argued that the act was unconstitutional because the Constitution of 1789 provided that the legislature should have the power to lay out new counties out of the vacant territory belonging to the State and to apportion representation to such counties; that the power to lay out new counties and to provide representation ap plied to all of the territory then belonging to the State; whereas the act in question left it to the choice of the territory sold as to when it should be represented and exempted the territory from taxation until such time as it might, upon its choice, be repre sented ; that if the sale was valid, the legislature was thereby barred of its constitutional right to lay off the territory into new counties and provide government for them, arid subject the prop erty in the bargained territory to taxation; this "operating as a dereliction of jurisdictional rights, and a virtual dismemberment of the State." In this reasoning, the legislature was grasping at a constitutional principle inhering in natural right not fully grasped and expressed in the organic law of the State until it was em bodied in the Constitution of 1877, that "the right of taxation is a sovereign right, inalienable, indestructible; is the life of the State, and rightfully belongs to the people in republican govern ments, and neither the General Assembly, nor any nor all depart ments of the government established by this Constitution, shall ever have the authority to irrevocably give, grant, limit, or restrain this right; and all laws, grants, contracts, and all other acts, what soever, by said government, or any department thereof, to effect any of these purposes shall be null and void for every purpose whatsoever; and said right of taxation shall always be under the complete control of, and revocable by the State, notwithstanding any gift, grant or contract whatsoever by the General Assembly."
Another ground of rescission, strongly urged, raised the con stitutional question involved in the Chisholm case. It was as serted that passage of the obnoxious act had been procured by fraud and corruption; that fraud voids all contracts; that the courts adjudge the rescission of contracts between private persons for fraud in their procurement; that no court had jurisdiction to entertain a suit where a State is a party, or to render a judgment binding a State, and that, in default of other remedy, it was the

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duty of the legislature to declare void an act whose passage had been procured by fraudulent and corrupt means.
It is not germane to our purpose to review the history of this act, or the political history of the State caused by it, but to call attention to its contribution to the organic law of the State. It led to the incorporation into the Constitution of 1798 of the pro vision that ( 'No law or ordinance shall pass cdSstaining any matter different from what is expressed in the title thereof." An exami nation of all of the constitutions of all of the states, prior to the adoption of the Constitution of 1798, discloses the interesting fact that this is the first appearance of a provision which is now contained in the organic law of every state in the Union except a few states in the New England group.

76. The Constitution of 1789 provided that at the general election in 1794, three persons should be elected from each county as members of a convention "for the purpose of taking into con sideration the alterations necessary to be made in this constitution, who shall meet at such time and place as the General Assembly may appoint.'' Delegates having been chosen accordingly, and Louisville, in Jefferson County, having been appointed as the place of the meeting, the convention met at the place designated on the ---------- day of May, 1795, and organized by electing Noble Wimberly Jones president and Thomas Johnson secretary. The matter most strongly contested was over the apportionment of representatives among the counties.35 Besides providing for the representation of the new counties and a readjustment of the representation among' the several counties, the principal alterations made were, that the senators should be elected annually instead of triennially; that all elections by the General Assembly be by joint ballot instead of the plan provided by the Constitution of 1789 by which the House of Representatives chose three persons, from which number the Senate should choose one; the time of the meeting was changed so as to meet on the second Tuesday in January, instead of the first Monday in November; the seat of government was moved from Augusta to Louisville. Political feeling was so intense, over the "Yazoo Act," that the convention very wisely left the real work of revising the Constitution to a later convention, to be called when the public passion had had

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time to somewhat spend itself, hence, it was provided that "at the general election for members of the assembly in the year 1797, the electors of the present counties shall elect three persons to represent them in a convention for the purpose of taking into consideration the further alterations and amendments necessary to be made in the Constitution, which shall meet in the town of Louisville the second Tuesday in May thereafter." The influence of the "Yazoo Act" is seen, however, in the provision that "All powers not delegated by the constitution as amended, are retained by the people."

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CHAPTER VII.
FROM THIS CONVENTION OF 1798 TO THE END of THE; ANTE BELLUM ERA.
11. At the general election in 1797, three delegates to the Constitutional Convention to be held in the town of Louisville were elected from each county in accordance with the 4th article of the amendments of 1795. The delegates met at the place desig nated, on Tuesday, the 8th day of May, 1798, at which time fiftysix members attended representing twenty-one counties.
Popular feeling over the Yazoo Act was still intense and in nearly every case, those who had favored the act found the door to political preferment closed, while those who had been conspicious and influential in opposition to it found easy advancement. This was probably the controlling issue upon which members of the convention were elected. Jared Irwin, whose term as governor had lately expired, and who had signed the Rescinding Act, was made president of the convention and James M, Simmons was made secretary. 1
The most popular and prominent man in Georgia at this period, and the most influential member of the convention, and, indeed, one of the most justly distinguished men who ever lived in the State, was General James Jackson. So completely did his influence fill this period of the State's history, and so permanently did his pre eminent ability affect the organic law of the State, that an account of these times and of the making of the Constitution of 1798 can not rightly be written without some particular notice of him. His father was an English Whig, strongly imbued with the re publican sentiments of that age, and in 1772, when his son had arrived at that age of fifteen -years, he was sent to the then province of Georgia, and placed under the protection of John Wereat, an old friend, holding the same principles. His biographer says that the young man came to America already pos sessed of a deep seated prejudice against the hereditary distinc tions of the British aristocracy, and that he regarded the whole system of monarchy as an usurpation on the natural rights of
1. Stevens, Georgia, II, 498-505.

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man. He read law in the office of Samuel Parley, an eminent attorney of Savannah, and in 1775 warmly espoused the cause of freedom. The political theory that because a government was estahlished it should be permanent and eternal, he held to be de grading and absurd, and that "passive obedience was therefore a crime in the people, when a revolutionary resistance was dictated by their reason and their interest"--a principle which sounds very similar to the second paragraph of the first article of the Consti tution of 1861. He was one of the very first lads in America to shoulder his musket. 2 and he served during the entire war of the Revolution with such distinguished bravery, that the legislature on the 30th of July, 1782, unanimously voted that he had "ren dered many great and useful services" to America ; and presented him a house and lot in Savannah "as a mark of their sense of his merits." 8 On the 7th of January, 1788, when but thirty years of age, he was elected by the General Assembly as governor, but de clined upon the ground that neither his age nor his experience would justify his acceptance.4 In 1789 he was elected to represent the eastern district of Georgia in the first Congress held under the Federal Constitution. In the debates of Congress, although one of the youngest men in that body, he had a conspicuous part, especially in those involving constitutional questions. In 1791, he was opposed for reelection by General Anthony Wayne, the hero of Stony Point, who had become a citizen of Georgia. On the face of the returns General AVaync was successful, and at the opening of the second Congress took his seat. However, General Jackson contested his opponent's seat before the House of Repre sentatives, and so successfully that the house voted unanimously that General Wayne had not been elected, but a motion to seat General Jackson resulted in a tie, which was decided by the ad verse vote of the speaker. Coming hack to Georgia, General Jackson caused articles of impeachment to be filed before the legislature against Henry Osborne, judge of the Superior Court, for falsifying and forging the election returns of Camtlen County, The charges were sustained and the judge expelled from office. After serving a year or two in the legislature he was, in 1793, elected United States Senator, and was in that office when the

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Yazoo Act was passed, his colleague being James Gunn, who was implicated in the Yazoo speculation. When he returned to Georgia in 1795, his fellow citizens requested him to resign his seat in the United States Senate, and run for the legislature. This course he promptly took and being elected a representative from Chatham County, he wrote, introduced and secured the passage of the Rescinding Act. 5
General Jackson was regarded by everybody as having been the most influential of the public men of the State in opposing the Yazoo monopolists, and he was chosen at the general election, in 1797, as a member of the Constitutional Convention. Previous to the meeting of the convention, he was, on the 12th day of January, 1798, a second time elected governor. This time he did not feel at liberty to decline. His incumbency of the governor's office did not prevent him, however, from serving as a member of the Constitutional Convention, and from preparing much, if not the greater part, of that great instrument. 6
Sections twenty-three and twenty-four of the first article de fining the boundaries of the State and declaring "the contem plated purchases of such companies of a considerable portion" of the State's territory "constitutionally void" and providing that "no vote, resolution, law, or order shall pass the General Assembly granting a donation or gratuity in favor of any persons whatever, but by the concurrence of two-thirds of the General Assembly," and the first section of the third article establishing the judicial system of the State, were especially the work of General Jackson.
Among the other most prominent and influential members of the convention, were James Fowell, of Liberty County, the chair man of the committee of the whole house; Robert \Vatkins, of Richmond, who wrote IS of article 1, which provided that every senator and representative should, before taking his seat, purge himself of having been guilty of corrupt practices in procuring his election; Dr. George Jones, of Chatham, who wrote 7 of article 4, concerning- the promotion of the arts and sciences by the establishment of seminaries of higher learning, thus embodying in the fundamental law the recommendation of Governor Lyman Hall to the legislature in 1783, and providing the permanent legal

5. ChappeU's Miscellanies of Georgia, Part III. 6. Article in National Portrait Gallery of 1836, Reproduced : n Re print of Charlton's L-ife, 87.

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foundation upon which the State University -was established at its present site in 1801; Peter J. Carries, of Klbert, who wrote 11 of article 4, prohibiting the importation of slaves after the first clay of October, 1798; Reverend Jessee Mercer, of Wilkes, who wrote 18 of article 4, regarding religious freedom; Jonas Fouche, of Green, who wrote 8 of article 3, providing for the digesting- and the promulgation of the laws.7

78. The constitution of 1798 contained no separate article known as a "Bill of Rights," but it asserted several familiar fundamental principles usually found in such an instrument. The principle of the separation of the powers of government was put back into the organic law of the State and in more definite and explicit terms than it was expressed in the Constitution of 1777, but it had come to be realized, by this time, that the separation could not be total, hence the expression of the principle was ac companied by the saving clause "except in the instances herein expressly permitted."
This is the first of the Georgia constitutions to contain a prohi bition against the passage of ex post facto laws, and in it was the germinal appearance in the constitutional law of the State of the change of public policy for the amelioration of the law with respect to debtors, which culminated in the Constitution of 1877 in the absolute prohibition of imprisonment for debt.

79. The Senate was composed, originally, of one member from each county, as under the Constitution of 1789, but their terms were changed, so that they were made elective annually like members of the House of Representatives instead of triennially, as under the former Constitution.
The composition of the House of Representatives was changed from a constitutionally fixed number from each county, as pro vided by the Constitution of 1789 and the amendments of 1795 so as to make the number of representatives which a given county should have depend upon its population, each county to have at least one, and not more than four representatives, the basis of enumeration adopted being the same adopted by the Federal Con stitution in apportioning representation among the several states; that is, to the total white population, there was to be added three-

7. Stevens, Georgia, II, 501.

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fifths of the persons of color. This apportionment was to be first made according to a census to be taken by enumerators appointed for each captain's district by the judges of the inferior courts, and thereafter at periods of every seven years, in sucli manner as might be provided by law. The constitution fixed a temporary apportionment to be in force until such census could be taken, by which there were to be sixty-two members of the House of Repre sentatives, and twenty-four senators, that being the number of counties then organized, and each new county afterwards organ ized was to have representation on the same basis as those already organized. As a consequence of the creation of new counties carved out of land ceded by the Indians, and of the great increase of population, by the year of 1832 the Senate was composed of eighty members, and the House of Representatives of one hundred and sixty-five members. Annual meetings of so numerous a body being so great an expense, and it being recognized that so large a legislature was less effective as a parliamentary instrument than a smaller one, the General Assembly, by an Act assented to on the 24th of December, 1832, provided for the call of a con vention, to meet in Milledgeville on the first Monday in May, 1833, "to reduce the number of the General Assembly of the State of Georgia." By a provision of this act, the convention was in structed "that it shall be a fundamental article in the formation or amendment of the Constitution, that each county of the State now organized and laid out, or which may hereafter be created by law shall be entitled to at least one representative in the repre sentative branch o the General Assembly." As the convention had no power to make alterations in the Constitution, but only to suggest changes to the legislature and the people of the State, it is an interesting and curious fact that the act provided against the convention's going outside of the particular matter it was created to consider by providing that its members should take an oath "not to change, or attempt to change or alter any other sec tion, clause or article of the constitution other than those touching the representation of the General Assembly."
It was further provided that the question of "ratification" or "no ratification," should be submitted to a vote of the people at an election to be held on the first Monday in October following the adjournment of the convention. 8 This act is the first provision

8. Acts of 1832, p. 42.

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in Georgia for the submission of a proposed constitutional amend ment to a popular referendum. The meeting of this convention coincided with the most acute stage of the nullification excitement in Georgia, when political feeling between the "States' Rights" and "Union" parties was most intense. The delegates formed themselves into factions and held party caucuses, and determined upon policies and candidates for the next gubernatorial contest. At this convention the "Georgia States' Rights Party" was organ ized." Partizan politics entered into the work of the convention, and in framing the provisions of the amendments proposed, the political purposes of the successful party in the convention were served, particularly in the arrangement of the Senatorial districts.
The convention remained in session until the 15th of May con sidering the many plans proposed to it, and finally adopted the following:
"The Senate shall be elected armuallv on the first Monday in October, tuilil such day of election he altered by law, and shall be composed of one member from each senatorial district to be chosen by the electors thereof which said senatorial districts shall be formed by adding two contiguous counties together throughout the State without regard to population as is hereinafter specified and defined, the county of Murray excepted, which shall consti tute together with such county or counties as may be hereafter formed out of the territory now composing said county of Mur ray, one senatorial district; the whole number of districts shall be forty-five and no more; and in the event of the formation of any new county or counties, the legislature at the time of such forma tion shall attach the same to some contiguous senatorial district.
"Each Senator shall be a resident of the district for -which he may be elected as is required by the present constitution of resi dence in the county. The following- shall be the Senatorial Dis tricts (according to a list attached).
"The House of Representatives shall be composed of members from all of the counties, which now or hereafter may be included within this state according to their respective numbers of free white persons. The whole number of members in the House of Representatives shall be one hundred and forty-four and no more, except in the case of a new created county or counties, such new

9. Georgia and States Rights, 138.

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county or counties shall have one member for each county, until the taking of the next census thereafter, and the whole number shall be apportioned in the following manner, to wit; The fifteen counties having the highest number of free white persons shall be entitled to three members each, the twenty-five counties having the next highest number of free white persons shall have two members each and the remaining forty-nine counties, shall have one member each. Whenever from the creation of a new county or counties, the whole number of the House of Representatives shall not exceed the number of one hundred and forty-four, it shall be the duty of the legislature at its first session, after the taking of the first census after the creation of such new county or counties in apportioning the members, to take one of the members from one of the counties having three members to supply such newly created county, always beginning with the county that has the smallest number of free white persons that may be entitled to three members. The census shall be taken as heretofore once in seven years, and the legislature shall, at its first session after the taking of the census, apportion the members among the several counties of the state as hereinbefore provided; provided each county shall have one member." 10
The distrust of the people evidenced by the action of the legis lature in placing restrictions upon the convention, was not greater than their dissatisfaction with the results of its labors. While the object of the convention, as expressed in the act providing for its call, was to reduce the representation, the convention was expected also to equalize it.
Out of the territory east of the Flint River ceded by the Creek Indians in 1821, and that west of the Chattahoochee, ceded in 1825, so many new counties were erected, which were for many years sparsely settled, that the representation was so increased out of proportion to the population, that Governor Gilmer said in his message to the General Assembly in 1831, that one-third of the people of the state had equal power in the government with the other two-thirds. By the erection of new counties out of the Cherokee lands north of the Chattahoochee in 1832, the inequality of representation as between the different sections of the State was further increased. The relative number of slaves in the new

10. Georgia Messenger (Macon), May 23, 1833; File University of Georgia.

Library of

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territory was much smaller than in the older sections of the State, consequently the abandonment of the Federal basis of enumera tion and the basing of representation upon the \vhite population alone still further increased the inequality. The abandonment of the Federal basis was the strongest objection of the people to the plan proposed. At the election the amendments were rejected by a decided majority. 11
The adverse vote on the amendments proposed by the conven tion of 1833 did not indicate popular opposition to the reduction of representation, and the matter continued to be agitated. By the year 1838, the number of counties had grown to ninety-three and the population had increased to such an extent that the House of Representatives was composed of two hundred and eight members and the Senate, of course, of a number equal to the number of counties.
On the 26th day of December of the year last named, an act was passed to provide for the call of another convention for the same purpose as the convention of 1833, to meet in Milledgeville on the first Monday in May, 1839. The same provision as to the oath of members of the convention was made as was made in the act calling the former one, and the same provision as to each county having at least one representative in the lower House, but a provision was added that "The Senate shall be composed of forty-six members only, from forty senatorial districts composed of two contiguous counties; and in the event of the creation of any new county, it shall be added to some contiguous Senatorial District; and that the said convention shall not disturb the Federal basis in apportioning representation in the General Assembly of the State of Georgia." There was the same provision for sub mission to the people for ratification or rejection as in the act providing for the amendments proposed by the convention of 1833.^

80. The convention met at the time and place designated and organized by electing James M. Wayne, of Chatham, presi dent, and TV. I^a Taste secretary. Many plans were proposed, one of the most interesting of which -was by Alexander H. Stephens, then a young man of twenty-seven years, who had been elected

11. Georgia Senate Journal, 1834, p. 189. 12. Acts of 1838, p. 73.

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to the legislature three years before on the "States' Rights" ticket, the adoption of which would have meant the abandonment of the "county unit" plan in the enactment of legislation. The plan proposed by Mr. Stephens -was as follows:
"The House of Representatives shall be composed of one mem ber, and one only from each of the several counties of this State, which now are, or hereafter may be; to be chosen annually, on the first Monday in. October, until the time of election be altered by law.
"The members of the House so constituted shall, in all cases vote according to the representative population of the counties respectively by them represented, viz; the members from counties of one thousand representative population or less shall be entitled to one vote each; those from counties with two thousand repre sentative population, to two votes each, those from counties of three thousand similar population to three votes each and so on in the same ratio.
"The representative population shall be composed as heretofore of the free white persons, and three fifths of the persons of color in each county. And 'the enumeration thereof and apportionment of votes as herein provided for shall be taken and made every seven years as heretofore."
To this was added a schedule of counties arranged into fortysix Senatorial Districts of two counties each. 13

81. After remaining in session for ten days, and debating at great length the various plans proposed, the following plan was adopted:
"The House of Representatives shall be composed of members from all of the counties which now are, or hereafter may be in cluded within this state according to their respective numbers of free white persons, including three-fifths of all the people of color, to be ascertained by an actual enumeration to be made from time to time at intervals of seven years, as now by law provided. Each county shall be entitled to one member. Each county having a representative population as above specified, of six thousand persons, shall be entitled to one additional member, and each

13. Journal of the Convention to Reduce and Equalize the Represen tation (Milledg-eville, 1839), pp. 33, 33.

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county having- such representative population of twelve thousand persons, shall be entitled to two additional members.
"The number of members of which the House of Representa tives will be composed according to the aforesaid ratio, and the last census, shall not be increased except when a new county is created; and it shall be the duty of the legislature, at their ses sion, to be holden next after the enumeration provided for by law, so to regulate the ratio of representation, as to prevent such increase.
"The representatives shall be chosen annually on the first Mon day in October, until such day of election shall be altered by law.
"The Senate shall be composed of forty-six members, elected annually on the first Monday in October, and shall be composed of one member from each of the forty-six senatorial districts" (according to a schedule attached). 14
The Union party had a majority in this convention, and through its TJOwer, the plan of representation adopted was arranged to serve the interests of that party. Although the Union party triumphed in the gubernatorial election of 1839, the proposed amendments were rejected by a decided majority, the people being induced to reject them "by the belief that the amendments were intended for sectional or temporary party purpose." 15 The people having failed to ratify the amendment for the reduction of repre sentation the General Assembly, at its sessions in 1839, passed a resolution providing for submitting to the voters the question of annual or biennial sessions of the legislature. 16 The submission was accordingly made at the general election in 1840, and resulted in a vote of 37,911 votes in favor of biennial sessions, and 5,172 votes for annual sessions. In his message to the General Assembly in 1840, Governor McDonald said that the people were of one mind on the necessity of amendment, and that "past failures to amend the constitution have not resulted from any conviction on the minds of the people that it was not imperiously demanded by their best interests, but from an attempt to carry out the details of the measure in the proposed amendments." 17
In accordance with the expressed will of the people, biennial

14. Journal of the Convention, etc., pp. 20, 21. 15. Message of Governor Gilmer, House Journal 1839, p. 23. 16. Acts 1839, p. 245. 17. Message of Governor McDonald, House Journal, 1840, p. 22.

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sessions of the legislature were provided for in the amendment of 1840-1841. 18 By the amendment 1842-1843, 19 the State was di vided into forty-seven senatorial districts composed of two contiguous counties each, and the basis of representation in the House of Representatives was so changed that it should consist of one hundred and thirty members, each county to have one representative and the thirty-seven largest counties according to the Federal basis of enumeration, to have two members and no county to have more than two members. By the amendment of 1849-1851, 20 the senatorial districts created by the amendment of 1842-1843 were abolished and each county was again permitted to choose a senator at biennial elections. By the amendment of 1856-1857, 21 annual sessions of the legislature were restored, each session being limited, however, to forty days, unless extended by a two-thirds vote, taken by yeas and nays.
82. The age qualifications of senators was reduced by the constitution as adopted by the convention of 1798 from twentyeight to twenty-five years. The property qualification was changed from the ownership "of two hundred and fifty acres of land, or some property to the amount of two hundred and fifty pounds," to the ownership "of a settled freehold estate of the value of five hundred dollars, or taxable property of the value of one thousand dollars "within the county for one year preceding the election, and whose estate shall on a reasonable estimate be fully competent to the discharge of his just debts above that sum." The property qualification of representatives was changed from the ownership "of two hundred acres of land or other property to the amount of one hundred and fifty pounds," to the ownership of one-half of the amount of the same species of property which senators were required to have. By the amendment of 1834-1835, the property qualification, both of senators and representatives were removed entirely.
Influenced no doubt by the disposition of the western territory of the State by the legislature of 1795, the most careful provision was made against the selection of corrupt men as senators and representatives and for removing political temptation from them

18. Acts of 1840, p. 33; Acts 1841, p. 61. 19. Acts of 3842, p. 56; Acts of 1843, p. 15. 20. Acts of 1849, pp. 119, 120; Acts of 1851, p. 48. 21. Acts of 1857, p. 31.

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after their election. Persons holding any public moneys unac counted for and unpaid; tax defaulters and all persons holding any office of profit under either the state or the United States, ex cept "justices of the inferior court, justices of the peace, and officers of the militia" were ineligible for election as senators or representatives, and a person elected as senator or representative was ineligible to election or appointment to any office by the legis lature, having am? emoluments or compensation annexed thereto during the time for which such person was elected, unless within twenty days after his election, he should decline to accept his seat; and he could not take his seat without taking an oath that he had not obtained his election by bribery, treats, canvassing, or other undue or unlawful means, used by himself or others by his desire or approbation.
A number of provisions defining the powers and privileges of the legislature and regulating the manner of enacting legislation, taken mainly from the rules of the House of Commons, but with im portant modifications in some cases were inserted in the article relating to the legislative branch of the government. The pre cedent of the Federal Constitution in permitting revenue bills to be amended in the Senate was followed. Among the most im portant provisions relating to the manner of enacting legislation were the provisions against surprise, namely, that bills, before their passage, should be read "on three separate days, in each branch of the General Assembly--unless in case of actual in vasion or insurrection," and the provision already adverted to, prohibiting the passage of "any law or ordinance, containing any matter different from what is expressed in the title thereof."

83. A provision of this Constitution restricting the domain of private legislation, and one which presents an interesting and curious history, is the provision that, "Divorces shall not be granted by the legislature until the parties shall have had a fair trial before the Superior Court, and a verdict shall have been ob tained authorizing a divorce upon legal principles." In Rngland, prior to the time when the Constitution of 1798 was adopted, di vorces were cognizable by the ecclesiastical courts and granted by them only upon grounds recognized by ecclesiastical law. Parlia ment exercised the power of granting divorces, frequentlv grant ing them upon grounds riot recognized by the ecclesiastical law, the power exercised by parliament having no limit and recogniz-

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ing no restraint but the will of that .body. There were never any ecclesiastical courts in Georgia, and there was no legislation on the subject of divorce prior to the Constitution of 1798, and, up to that time, no court in Georgia had any authority to hear divorce cases and the legislature alone had the authority to grant divorces, and in doing so exercised the same unlimited power as that exercised by the parliament of Great Britain. On account, no doubt, of the annoyance, expense and difficulty of ascertaining the facts involved in applications for divorce, the foregoing provision was inserted in the Constitution, in order that the courts might, upon a hearing of the evidence, determine, in the first instance, whether the ap plicant for divorce was entitled "upon legal principles," to an an nulment of the marriage contract, after which, the legislature, by a vote of two-thirds of each branch, might or might not grant the divorce. Thus there were, in a sense, two "verdicts" necessary to make the divorce final--the first by the court and the second by the legislature. The courts, as a general rule, held that the jury had the same unlimited power of determining the grounds upon which divorces ,should be granted as the legislature had ex ercised prior to the constitutional provision which conferred juris diction upon the courts, and the applications to the legislature continued to be "frequent, numerous, repeated and expensive," and finally by the amendment of 1832-1833 22 the power was con ferred upon the courts to render the second verdict as well as the first, making divorces final upon two "concurrent verdicts of two special juries, authorizing a divorce upon legal principles." As early as 1812 (see Acts of 1812, p. 57) an amendment was pro posed making the verdict itself operate as a divorce, but the amendment was lost at the ensuing session. After the organization of the Supreme Court, it was decided at the February term, 1847, of that court, that the -words, "upon legal principles," meant only such grounds as existed under the ecclesiastical law of England, and did not permit divorces to be granted upon any additional or discretionary grounds. 23 On account of this decision the consti tution was again changed by the amendment of 1847-1849, 24 so as to authorize divorces "upon such legal principles, as the Gen eral Assembly may by law prescribe." At its next session in 1850,

22. Acts of 1832, p. 41; Acts of 1833, p. 47. 23. Head v. Head, 2 Ga. 191, 199. 24. Acts of 1847, p. 63; Acts of 1849, p. 419.

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the legislature prescribed the grounds of divorce as they exist at the present time. 25
The domain of private legislation was further restricted by the amendment of 1854-1855 26 in a most important and salutary manner by the withdrawal from the legislature of the power to change names; to legitimate persons; to make or change precincts; to establish bridges or ferries; and the conferring- of this power upon the courts in accordance with general laws to be enacted de fining the privileges to be enjoyed and the manner of the exercise of such power by the superior and inferior courts.

84. The powers of the governor were not materially
changed by this Constitution, and the property qualification for eligibility to the office was left practically as it was fixed by the Constitution of 1789, except that it was provided, as in the case of senators and representatives, that the amount of property pos sessed should, on a reasonable estimation, be competent to the discharge of his debts, over and above the amount of the constitu tional requirement. By the amendment of 1845-1847 27 all property qualification was removed. The executive department was en larged by the creation of two new offices, those of treasurer and surveyor-general, elected by the General Assembly. The method of electing the governor by the General Assembly was not changed. It was attempted, in the convention of 1798, to make the governor elective by the people, but a motion to this effect by Mr. Stith was defeated by a vote of fifty to eighteen. 28 In 1815, an amendment providing for the election of the governor by popular vote w-as passed, but it failed of ratification at the next session. An act proposing a similar amendment was passed in 1821, but was lost in 1822. Finally this change in the method of election was accomplished by the amendment of 1823-1824, 29 but the General Assembly preserved to itself a certain control over the election of governor, by the provision for the canvassing by the legislature, in joint session, of the returns, and the declara tion of the res-alt, with the right to determine contested elections

25. Acts of 1850, p. 151. 26. Acts of 1853 and 1854, p. 24; Acts of 1855 and 1856, p. 105. 27. Acts of 1845, p. 17; Acts of 1847, pp. 62, 63, 28. See foot-note on page 369 of "A Digest of the L,aws of Georgia;" by Arthur Foster. 29. Acts of 1823, p. 39; Acts of 1834, p. 40.

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and to elect a governor by joint ballot, of both houses in case no person received a majority of the whole number of votes.

85. The judicial power of the State was vested (1) in a superior court; (2) in such inferior jurisdictions as might be or dained by the legislature; (3) in inferior courts in each county, and (4) in justices of the peace of whom it was provided that there should be two in each captain's district. The superior court was given exclusive and final jurisdiction in all criminal cases, and in all cases respecting titles to land, together with power to correct errors in inferior judicatures by writs of certiorari, as well as to correct errors in their own courts by granting new trials "upon legal grounds," and appellate jurisdiction in such other cases as the legislature might direct. No equity jurisdiction was conferred upon any court by the constitution of 1798. This plainly appears on the face of the constitutional provision% as to the superior court, and, as it was held that the term "civil cases" did not include equity cases,30 no equity jurisdiction existed until the passage of the judiciary act of 1799, creating such jurisdiction and vesting it exclusively in the superior court. The inferior courts were first created as statutory courts by the Act approved December 23, 1789, and were made constitutional courts by this constitution and given jurisdiction of all "civil cases," but it was provided that the superior court might be given concurrent juris diction in civil cases by a law to be concurred in by two-thirds of both branches of the legislature. As civil cases were held to in clude cases respecting title to land, it was found that the inferior courts had concurrent jurisdiction with the superior courts in such cases, and to prevent this and leave the jurisdiction of the superior court exclusive as to such cases, by the amendment of 3810-1811 s1 the words "except in cases respecting- the title to lands" were inserted in 1 of article 3, after the word "civil cases" where these words are used in said section in reference to the jurisdiction of inferior courts and the superior court was given exclusive jurisdiction in such cases and, by the same amend ment, the superior court was given concurrent jurisdiction in all other civil cases. The justices of the peace were given power to

30. Gilbert V. Thomas, 3 Ga. 575; Rice v. Tarver, 4 Ga. 584; Lowndes v. Thomas, 18 Ga. 678.
31. Acts of 1810, p. 136; Acts of 1811, p. 23.

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try all cases of a civil nature within their districts, where the debt or litigated demand did not exceed thirty dollars. It is obvious that their jurisdiction up to this amount was concurrent with the inferior courts.- 2 The powers of a court of ordinary, or register of probate, was conferred upon the inferior courts of the several counties, which jurisdiction they retained until the amendment of 1850-1851, creating the court of ordinary and conferring jurisdic tion of probate matters on such court. ;i;i
The term "inferior jurisdictions," as used at the beginning of 1 of article 1 did not refer to the inferior courts provided for in each county, but to such other special tribunals as the legislature might find it necessary from, time to time, to establish, in order to provide for special exigencies. This provision is the prolific mother of the system of "city courts" which now exists in the State. A somewhat similar provision occurred in the Constitution of 1789 (article III, 1) but the power conferred by that instrument does not seem to have been exercised. In 1816 a court with jurisdiction where the sum claimed did not exceed fifty dollars, and not in volving title to land was established in Darien, styled the Mayor's Court of Darien. By the amendment of 1817-1818,R4 it was pro vided that criminal offences, not subjecting the offender to loss of life, limb or member, or confinement in the penitentiary, "should no longer be within the exclusive jurisdiction of the superior courts," but the same might be tried in the "corporation courts" then existing, or that might be constituted in any "incorporated city, being a seaport town, or port of entry." By the amendment of 1853-1854,3;i the words, "being a seaport town and port of entry" were stricken out, thus permitting the establishment of such courts in any incorporated city of the State.
The terms of the judges of the superior courts were fixed at three years, as they were by the Constitution of 1789, and re mained fixed at such term until changed to four years by the amendment of 1834-1835.36 The justices of the inferior courts were appointed by the legislature to hold office during good be havior, and justices of the peace were appointed by the inferior

32. For a brief history of Justice Courts in Georgia, see an Address by the author in 27 Ga. Bar Association Reports, p. 153.
33. Acts of 1849-50, p. 117; Acts of 1851-53, p. 49. 34. Lamar's Digest, page 175, 35. Acts of 1853-54, p. 25; Acts of 3855-56, p. 106. 36. Acts of 1834, p. 66; Acts of 1835, p. 49.

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courts, likewise to hold during* good behavior. The clerks of the superior and inferior courts and sheriffs were to be appointed in such manner as the legislature might by law direct, and such clerks were to continue in office during good behavior, but the terms of sheriffs were limited to two years, and they could not succeed themselves for two years after the expiration of their terms. By the amendment of 1807-180837 the clerks of the superior and in ferior courts were made elective as other county officers and upon the same day, and by the amendment of 18H-1S12,38 justices of the inferior courts were made elective by the electors entitled to vote for members of the General Assembly for terms 01 four years in the same manner pointed out by law for the election of clerks and sheriffs. Justices of the peace were by the same amend ment likewise made elective by the people, their election to be by the people of their respective districts on the fourth Saturday in January of every fourth year. By the amendment of 1818-181939 justices of the inferior courts and justices of the peace were made elective by the same electors as provided by the amendment of 1811-1812, 40 but "under such rules as the legislature may by law direct." from the creation of the office until the amendment of 1854-1855,41 solicitors general were appointed by the legis lature, but by the amendment named they were made elective by the people.

86. "Georgia had been a State for seventy years before it had a Supreme Court. Georgia, alone of any American common wealth, had a judicial system without an appellate court. Georgia alone had no tribunal to correct errors affecting- the rights of the private citizens, and Georgia alone, of any Anglo-Saxon State, attempted for many years to conduct government "without a su preme judicial tribunal necessary to preserve uniformity in the administration of justice."42 None of the three first constitutions of the State having made provisions for any review of judicial

37. Acts of 1808, p. 131,; Clayton's Digest, pp. 403, 515. 38. Acts of 1811, p. 138; Acts of 1812, p. 125; Lamar's Digest, p. 171. 39. Lamar's Digest, p. 177. 40. Acts of 1811, p. 138; Acts 1813, p. 135; Lamar's Digest, p. 3,71. 41. Acts of 1853-54, p. 24; Acts of 1855-56, p. 105. 42. Judge Joseph R. Tvamar, in i\n Article on Kngemius Aristides Nisbet, in Great American Lawyers (John C. Winston Co. Philadelphia), Vol. IV, p. 331.

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decisions except the provision for the grant of one new trial be fore a special jury in the county in which the action originated (a provision obviously effective only for correcting errors in in dividual cases, and incapable of forming precedents and creating uniformity), it was endeavored by the fifty-ninth section of the Judiciary Act of 1799, to remedy this defect in the judicial system of the state, by providing that the judges should meet annually at the seat of government for the purpose of making rules and while thus in convention they were required to "determine upon such points as may be reserved for argument, and which may require a uniform decision." This attempt to create a statutory Supreme Court was strangled in its infancy by the repeal in 1801 of so much of the Judiciary Act as provided that the judges should, while in convention for the purposes of making rules, determine cases reserved for argument. The repealing act provided that, "All points reserved for argument, and now awaiting a decision at the seat of government are hereby directed to be sent back to the respective counties from which they have been sent, to be there decided by the presiding judge."43
The distinguished authority from whom the quotation at the beginning of this paragraph is taken, accounts for the hostility of the people of Georgia to the establishment of a Supreme Court by their satisfaction with the method of granting new trials be fore special juries in the local courts, and by the fact that the public mind was hostile to all courts and that this feeling towards Supreme Courts was especially acute in Georgia, on account of the Chrisholm Case ;44 a prejudice which was kept alive by the litigation in the Supreme Court of the United States to quiet the title to the Indian lands in North Georgia ;45 the service of the writ of error on the governor in the case of "Corn Tassel," and the citation of the state to appear before that court in the case of the Missionaries.46
On account of the necessity of pursuing some method of pro moting some degree of uniformity of decision, a necessity more keenly realized by the judiciary than the people, the judges fell upon an expedient which did not violate the terms of the act of

43. Clayton's Digest, p. 38. 44. Chrisholm v. Georgia, 3 Dallas (U. S.) 419. 45. Cherokee Nation v. Georgia, 5 Peters (U. S.) 1. 46. "Worcester v. Georgia, G Peters (U. S-) 515.

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1801, by discussing with one another at their conventions to make rules, doubtful points involved in the cases pending before them, no record of such discussions being- kept and no formal decisions being made, but each judge rendering decisions in the particular cases pending before him when he returned to the county where the case originated. No exception appears to have been taken to this practice until Judges Berrien, Walker, Gresham, and Harris, met in convention in Augusta and participated with the trial judge in the decision of a case involving what was known as the "al leviating" law in which a decision was rendered declaring the law unconstitutional as violative of the provision of the Constitu tion of the United States against impairing the obligation of con tracts. At the next session of the General Assembly a resolution was passed, denying the "power" of the judges to assemble in such convention, and expressing the "hope that for the future this expression of public opinion "will be obeyed."47 Notwithstanding this expression of the legislature the judges continued to meet and the fruits of their meetings were some of the ablest judicial opinions which have yet been rendered in the State. Year aftei year, bills for the establishment of a Supreme Court were intro duced only to be defeated, until 1S34,4S when such a bill was passed which was concurred in at the session of 1835,48 and thus became part of the constitution. But notwithstanding the con stitutional amendment had been passed by a two-thirds vote of both branches of the legislature at two separate sessions, a bill to create the court could not receive a majority vote, and did not pass until the session of 1845. 50 When this tribunal which was born tinder such tin favorable auspices of public opinion, was finally organized in 1846, it had the good fortune to begin its life with three great judges--Lumpkin, Warner and Nisbet--and the remarkable fact has been pointed out that the court soon won such popular favor that the legislature, by the act of 1858, de clared that "a decision of the Supreme Court shall be observed by all courts as the law of the State and shall have the same effect as if it had been enacted by the General Assembly," 31 and that the

47. Journal of House of Representatives, 1815, p. 47. 48. Acts of 1834, p. 66. 49. Acts of 1835, p. 49. 50. Acts of 1845, p. 18. 51. Acts of 1858, pp. 74, 75.

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Constitution of 1877, contains the provision found in the consti tution of Georgia alone, that "Acts in violation of this Constitu tion, and of the Constitution of the United States are void, and the courts shall so declare."

87. It is an interesting fact that the Constitution of 1798, is the only constitution ever adopted by the people of Georgia at a time when there was not a virtual revolution of the government itself. The Constitution of 1777 was adopted in consequence of the casting1 off of the State's allegiance to Great Britain and of the necessity of setting up an independent government; that of 1789, on account of the abandonment of the Articles of Confederation, and the adoption of the Federal Constitution; that of 1861, on ac count of the secession of the State from the Federal Union; that of 1865 on account of the fall of the Confederacy, and the ne cessity of obtaining readmission into the Union; that of 1868, on account of the refusal of the Federal government to readmit the State under the Constitution of 1865, making the adoption of an other Constitution a condition precedent; that of 1877, when the people of Georgia resumed control of their own affairs after the end of the reconstruction era. The Constitution of 1798, and the present Constitution are the only ones which represent a settled condition of the State's organic law; the others represent temporary conditions and transitional periods.
In many respects the Constitution of 1798 was the greatest of all the constitutions which the state has yet had. It gave fuller force and power to the executive and judicial departments of the government than the earlier constitutions, and restricted the legis lative branch far less than the later ones. At the same time it gave large opportunity for the participation of the people in the government by giving the elective franchise to all the adult "citi zens and inhabitants" of the State, with small restriction upon the right of exercising such franchise, and, in the original in strument and in early amendments, making practically all of the officers of the government elective by the people.
The Constitution of 1798 remained of force as the fundamental law of the State for sixty-three years--nearly one-half the entire period of the State's life,--and was then repealed only because it was necessary to create a new government.
The vitality of this Constitution lay in its method of amend ment, which afforded a most effective means of ascertaining the

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real will of the people upon any change proposed in the organic law. The members of both houses of the General Assembly be ing", except for a short period, elective annually, when an amend ment was proposed in an act passed by one legislature, the election of a new legislature intervened before it could be ratified and enacted into law. In the contest for membership in the next House, the proposed change was certain to be made an issue, and discussion upon the hustings was sure to prevent such a change from becoming part of the Constitution without full popular knowledge and consideration, and the will of the people, as to the ratification or the rejection of the amendment, was certain to ex press itself in the result of the election. If a more positive and direct expression of the popular will was desired, the proposed change could be, and, as we have seen, was frequently submitted to a popular referendum.

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CHAPTER VIII.
FEDERAL RELATIONS ATSTD THE Civil, WAR PERIOD.
88. The time and circumstances of the founding of the colony and the peculiar facts of its early history--especially its relations to the other colonies were such as naturally to produce a keen self-consciousness and to provoke a particular self-assertiveness. The settlers, from the very first, felt that they were found ing an empire and the public purpose earliest formed was the preservation of the identity of the colony as a separate political organization. We have seen how the colony at the time of the surrender of the government by the .Trustees, though then few in numbers and scant in resources, threatened by enemies upon all sides, and enfeebled by misgovcrnment within, resented the patronage of South Carolina and took effective steps to prevent absorption by that colony.
Being still the youngest and the weakest of the colonies at the time when the confederation of the colonies was formed, and yet so when the Constitution was framed and adopted, it is possible that there was present in the public consciousness of the State some anxiety and a more or less jealous sensitiveness concerning the con sideration which the State might receive in the national councils, and a vigilant caution against being overreached by the stronger and more influential members of the confederation, and by the general government itself. Nothing could make a proud and am bitious State more determined to maintain and emphasize its sep arate dignity than to be treated as an inferior.
Even after Georgia had been declared an independent State, South Carolina held her importance and dignity in such light re gard that, in the winter of 1776, her legislature passed a resolu tion, declaring that "the strength, wealth and dignity" of both would be increased by a union of Georgia with South Carolina and appointed a committee to present the matter to the Constitu tional Convention then in session in Savannah. This committee headed by its chairman, William Henry Drayton, repaired to Sa vannah and asked for a hearing upon the floor of the convention. The committee was heard but the convention declined the propo sition. Drayton then tried to promote his scheme by circulating

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seditious papers among the people \mtil Governor Trentlen issued his proclamation offering a reward for the arrest of Drayton and his allies, thus putting an end to the matter.*

89. After the general government was formed, it was nat ural that Georgia should, on account of her relative weakness, desire that her State lines should constitute barriers against the invasion of too much Federal power, and that she should develop and strongly assert the doctrine of "States' Rights," and insist upon the broadest boundaries to the area of "retained sovereignty." We have seen how firmly she asserted this doctrine in the matter of the Chrisholm case. The fact that the judgment in that case was not enforced against her, and that her firmness resulted 111 the making of her contention in that case a part of the Federal Constitution emphasized her sense of the importance of the doc trine and increased her self-confidence in the assertion of what she conceived to be her rights as a sovereign state. Her attitude towards the Federal government, justified by her reasoning, and dictated bv her interest was an attitude of keen appreciation of the protection of the federal power as a condition of the enjoy ment by the State of the untrammelled liberty to work out her own internal destiny in her own way and by her own means. Fol lowing the Chrisholm case, a long series of controversies arose between her and the general government over 1hc acquisition and settlement of the Indian lands within her borders. These con troversies kept the subject of federal relations constantly before the minds of the people until the last of those lands were acquired in 1832. The results of some of these controversies were among the most important in the judicial history of the world. The Su preme Court of the United States in the case of Fletcher if. Peck held that the rescinding act was unconstitutional and void as being repugnant to the provisions of the Federal constitution as an im pairment of the obligation of a contract. This decision was with out any practical effect as to the people of Georgia so far as the title to the lands in question was concerned, the State having parted with all its interest in such lands by their session to the United States in 1802, but it was a matter of chagrin to them and provoked a resentful jealousy of the Federal power. This case is of supreme historical importance as being the first case in which

1. Revolutionary Records of Georgia, vol. 1, pp. 308-310.

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it was held that the Supreme Court of the United States had the power to set aside a law of a state as being1 in contravention of the Federal Constitution. 2
But notwithstanding judicial declarations of superior authority in the general government, Georgia still insisted that she was "Sovereign." This was strikingly asserted in reference to the lands west of the Chattahoochee acquired from the Creek Indians at the Treaty of Indian Springs. After the compact of 1802, by which the United States agreed to extinguish the Indian title to the Georgia lands, the United States on several occasions attempted to exercise sovereign powers with respect to the Indian lands within the limits of the State. Georgia took the position that the United States acquired no rights within the State by the compact of 1802, but assumed a mere obligation. When the president of the United States ordered the State governments to desist from the survey of the Creek lands Governor Troupe replied that "Georgia is sovereign upon her own soil," and when the legislature met, it declared in a resolution that "Georgia is a sovereign, and not a subject that sues ; it is an equal, and not an inferior that re monstrates." 5
Several controversies involving Federal relations, and resulting in other notable cases in the Supreme Court of the United. States arose out of the disputed sovereignty of the State over the lands inhabited by the Cherokee Indians north of the Chattahoochee. By the compact of 1802, the State had ceded the lands comprising the present states of Alabama and Mississippi to the United States, in consideration that the Federal government would extinguish the Indian title to the lands held by them within the present borders of the State. Having given up so much territory and curtailed by so much her rebative importance as a State, she was the more desirous and impatient to utilize the territory that remained to her. The Federal government made no haste in the matter, how ever, and took the position that the Cherokees were a sovereign nation of people to be treated with as an independent nation, and that the only duty of the Federal government was to acquire the lands from the Indians by a voluntary treaty whenever it suited the Indians to treat, and as a corollary of the recognition of the

2. Fletcher v. Peck, G Cranch (U. S.) 87; Carson's History of the Su preme Court of the U. 3., vol. 1, p. 319.
3. Acts of 1836, p. 227,

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national character of the Cherokees, it was held by the Federal authorities that the laws of Georgia had no force within the territor}^ in possession of the Cherokce Nation. At first Georgia did not formulate or expressly define her position in the matter, tmt it is apparent that she regarded the sovereignty of her laws as commensurate with her territorial limits, and that she considered that the paramount title to the Indian Lands was in the State, as the title to all other lands, but subject to a right of occupation by a special class of the inhabitants of the State, distinct in race and habits, for a special purpose peculiar to their needs, that is, to serve as hunting grounds, but that these people were too low in grade of organized society to have sovereign political rights. This right of occupation the State claimed a right to protect, and on the 14th of November, 1814, the Georgia legislature adopted a resolution reciting that many citizens of the State were going over into the Indian lands and "settling and cultivating the lands allotted to the friendly Indians as their hunting grounds" and re questing- the governor to "take the necessary means to have all intruders removed off the Indian lands."4 It is clear that the State claimed sovereignty over the lands or it would not have provided for entry upon the territory for the purpose of executing the laws of the State there. After Seqttoyah had invented the Cherokee Alphabet and a printing press had been set up at New Hchota, steps were taken by the Cherokees to formulate a written con stitution for the nation and such a constitution was adopted in a convention of the representatives of the nation on the 26th clay of July, 1827. 5 Thus was it attempted to create a sovereign and independent government within the territorial limits of a State, a proposition so self-contradictory as to be unthinkable. The State of Georgia then took step-s to extend her laws over the Cherokee Territory, and on the 20th of December, 1828, passed an act that all white persons in the Cherokee Territory should be subject to the laws of Georgia, and providing- that after June 1, 1830, the Indians resident therein sbcaild be subject to such laws as might be prescribed for them by the State and declaring that after that date all laws made by the Cherokee nation should be null and void. fi On the 22nd of December, 1830, the legislature passed a further act, entitled, "An Act to prevent the exercise of assumed
4. Acts of 1814, p. 18. 5. Georgia and States Rights 71. 6. Acts of 1828, pp. 88, 89.

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and arbitrary power, by all persons under pretext of authority from the Cherokee Indians and their laws and to prevent white persons from residing within that part of the chartered limits oi Georgia, occupied by the Cherokee Indians, and to provide a guard for the protection of the gold mines, and to enforce the laws of the state within the aforesaid territory."7 An act had been pre viously on the 19th day of December, 1829, passed adding "the territory in the occupancy of the Cherokee Indians to the counties of Carroll, DeKalb, Gwiiiett, Hall and Habersham, and to extend the laws of the state over same, and to annul all laws and ordi nances made by the Cherokee nation of Indians." 8
The Federal government denied the authority of the laws of Georgia over the territory occupied by the Cherokees and in 1830 arrested nine citizens of Hall County for trespassing upon the Cherokee lands. In order to get the question before the United States Supreme Court, William Wirt, who had been engaged as counsel for the Cherokees, suggested to Governor Gilmer that a case be made up to test the constitutionality of the several acts of Georgia extending her laws over the territory in question. This proposition was declined. A motion on behalf of the Cher okee Nation was then filed against the State to enjoin the enforce ment of the laws complained of. While this case was pending, George Tassel, or "Corn Tassel," a Cherokee Indian, was con victed of murder in Hall Superior Court and sentenced to death. A writ of error was sued out to the Supreme Court of the United States to test the constitutionality of the law under which he was convicted, and the State of Georgia was cited to appear and show cause why the writ should not be decided against the State. The governor submitted the citation to the legislature, with a message in which he declared that "so far as concerns the executive de partment, orders received from the Supreme Court in any manner interfering with the decision of the courts of this State in the con stitutional exercise of their jurisdiction will be disregarded, and'any attempt to enforce such orders will be resisted with whatever force the laws have placed at my command." 9 The legislature passed a resolution declaring; "that the State of Georgia will never so far compromit her sovereignty as an independent State as to become a party to the case sought to be made by the Supreme Court of
7. Acts of 1830, pp. 114-117. 8. Acts of 1829, pp. 98-101. 9. House Journal 1830, p. 441.

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the United States by the writ in question;" 10 The governor "was authorized to send an express to Hall County to have the sheriff execute the sentence of the court which was accordingly done, and "Corn Tassel" hanged.
'When the case of Chcrokee Nation "v. Georgia came to be de cided, it was held that the Cherokee Nation was not a foreign state in the sense of the Constitution, and consequently that the Supreme Court of the United States was without jurisdiction of the cause. 11

90. After the passage of the Act of 1830, making it unlaw ful for white persons to reside in the Cherokee territory without permission from the governor of Georgia, certain missionaries re siding therein without such permission met at New Hchota and passed resolutions protesting against the extension of the laws of Georgia over the Indians and deprecating the proposed removal of the Cherokees, The Georgia guard arrested two of these mis sionaries, Worcester and Thompson, together with other white men found to be illegally residing in the Cherokee territory. They were tried at the September term, 1831, of the Superior Court of Gwinett County and found guilty and sentenced to four years confinement and hard labor in the State penitentiary, but a pardon was offered them by the governor if they would take the oath of allegiance to the State or leave the Cherokee territory. They chose the course of martyrdom and took an appeal to the Supreme Court of the United States. Citations were served upon Governor Wilson Lurnpkin, requiring the State to appear and show cause why the judgments under which Worcester and Butler had been convicted should not be set aside. On the 25th day of November, 1831, the governor, submitted a copy of the citation to the legislature, with a message in which he said: "In exercising the duties of that depart ment of the government which devolves upon me, I will disregard all unconstitutional requisitions of whatever character or origin they may be, and, to the best of my abilities will protect and defend the rights of the state and use the means afforded me to maintain its laws and constitution." 12 The legislature on the 26th of Decem ber adopted resolutions declaring its enactments with reference to the Cherokee territory constitutional and "That the State of Georgia

10. House Journal 1830, pp. 417, 418; House Journal, 1831, p. 11. 11. Cherokee Nation v. Georgia, 5 Pet. (U. S.), 1. 12. House Journal 1831, p. 141.

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will not compromit her dignity as a sovereign State, or so far }rield her rights as a member of the confederacy as to appear in, answer to, or in any way become a party to any proceedings before the Su preme Court having for their object a revisal or interference with the decisions of the State courts in criminal matters." 13
After the case had been heard in the Supreme Court at the Jan uary term, 1832, it was decided against the State of Georgia, the court, in an elaborate opinion delivered by Chief Justice Marshall, holding that the Cherokee Nation was "a distinct community oc cupying its own territory with boundaries accurately described in which the laws of Georgia had no force." 14 But this judgment, so far as it affected the State of Georgia with reference to the cases of Worcester and Tiutler, was a brutum fulmcn. Andrew Jackson was president and he did not agree with the Supreme Court and said that now that John Marshall had rendered his decision he might enforce it. 15 Governor Lumpkin sent a message to the leg islature declaring that the decision of the court was an attempt "to prostrate the sovereignty of this State in the exercise of its con stitutional criminal jurisdiction," an attempt at usurpation which the executive of the State would meet "with determined resistance," and congratulating himself that the people of Georgia were unani mous in "sustaining the sovereignty of the State." 16 In the mean time the missionaries remained in the penitentiary until they decided to submit and meet the conditions of pardon held out to them. Ac cordingly they notified the Attorney General of Georgia that they would prosecute their case no further in the Supreme Court, where upon they were released.

91. Although Georgia developed with singular clearness and asserted with particular boldness the most pronounced doctrine of States' Rights, the student of her ante bellum history cannot fail to recognize that her people held the union of the states in the highest appreciation and that her opinions and actions were always tem pered by a strong conservatism. She never forgot that "Modera tion" was inscribed upon the great seal of the State. And it is worthy of notice that in Georgia the doctrine of "States' Rights" had other cause than slavery, for its origin and growth. But the

13. Acts of 1831, pp. 259-261. 14. Worcester i>. Georgia, 5 Pet. (U. S.) 15. Georgia and States Rights, p. 83. 16. Acts of 1850, p. 122.

515.

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"irrepressible conflict" could not fail to engage the doctrine of State Sovereignty in Georgia as in other slave holding states. The adoption of the \Vilmot proviso in the United States I-Iouse of Rep resentatives in August, 1846, although it failed to be acted upon in the Senate; the attempt to prohibit slavery in the District of Colum bia; the application of California for admission as a state under a constitution which prohibited slavery, a:id the prospect that other territories would seek admission as states and that similar terms would be incorporated by them in their constitutions or imposed upon them by Congress, thus changing the Democratic majority in the United States Senate and producing the result that the southern people would be debarred from going with their property into large areas of the common domain, so alarmed the people of Georgia, that the legislature on the 8th day of February, 1850, passed an act authorizing- the governor to call a convention of the people of the State to consider the situation. 16a Accordingly the convention was called, delegates were elected, and the convention met at MUledgeville, on the 1 Oth day o f December, 1850. The convention was organized by the election of Thomas Spalding, of Mclntosh, pres ident; William D. Wofford, of Habersham, and Andrew J. Miller, of Richmond, vice presidents, and Robert S. L-anier, of Bibb, sec retary. This was the golden age of Georgia statesmanship. It is true that William H. Crawforcl was gone, but two young men ad mitted to the bar by him, Robert Toombs and Alexander H. Ste phens, were both in Congress, and were among the most conspicuous and influential men in national politics. Tlowell Cobb was speaker of the United States House of Representatives. William C. Dawson and John McPherson Berrien represented Georgia in the United States Senate. Toombs, Stephens and Dawson were members of the Georgia Convention. Another conspicuous and able member, destined to preside over the convention which gave Georgia her present Constitution, was Charles J. Jenldns.
After the call of the convention but before its meeting, Congress had passed the several compromise measures included in the "Om nibus Bill" of Henry Clay, the Georgia members of Congress sup porting them as being the best that they could do under the cir cumstances. The people generally accepted and approved the com promise measures, at least npon the ground of expediency, and the majority of the delegates favored the Union Party, as the majority

16a. Acts of 1849-50, p. 132.

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had done in the Convention of 1833 when the "Nullification" agita tion was at its height, and in the convention of 1839. The conven tion adopted a report written by Charles J, Jenkins, which became famous as the Georgia Platform. It declared Georgia attached to the Union ; regretted the agitation of the slavery question and dis cussed the relation of the states to the Union, declaring:
"The Constitution of the United States, is, in its terms, a bond of political union between separate sovereignties, and involves a high moral obligation. The latter is indeed, the seal and sanction of the former. The southern states upon entering into this compact brought with them, as a part of their social system, as the substra tum of their industrial pursuits, the institution of slavery, and the northern states by the compact, recognized its existence, and guar anteed its secure enjoyment. Beyond the obligation thus created the people of those states have no more concern with it, than have the subjects of the British Crown." It avowed the willingness of the State of Georgia to abide by the compromise measures of Henry Clay, but declared : "That the State of Georgia in the judg ment of the convention, will and ought to resist even (as a last resort) to a disruption of every tie which binds her to the Union, any action of Congress upon the subject of slavery in the District of Columbia, or in places subject to the jurisdiction of Congress in compatible with the safety, the domestic tranquility, the rights and the honor of the slave holding states; or in any act suppressing the slave trade between slave holding states, or in any refusal to admit as a state any territory hereafter applying, because of the existence of slavery therein ; or in any way prohibiting the introduction of slaves into the territories of Utah or New Mexico, or in any Act repealing or materially modifying the laws now in force for the re covery of fugitive slaves." 17
following the convention of 1850, the Constitutional Union Party was formed in Georgia and, in 1851, Howell Cobb was its candidate for governor. He was opposed by Charles J. McDonald, candidate of the Southern Rights Party. Cobb was elected by a large major ity. The result of this election showed that the people of Georgia wished to stay in the Union as long as they could with safety and honor to themselves.
17. For the Proceedings of the Convention, see Journal of the State Convention held in Milledgeville in December, 1850. (R. M. Orme, State Printer.)

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92. But the lull in the storm caused by the compromise meas ures of 1850 "was but temporary, and the excitement broke out afresh over the virtual repeal of the Missouri compromise by the adoption of the Kansas-Nebraska Bill in May, 1854. On the 4th day of March, 1856, the legislature of Georgia passed an act, the preamble of -which recited that part of the resolution adopted by the convention of 1850, which defined what future acts of Congress in the opinion of the convention would justify resistance on the part of the State, and provided that within sixty days after any of the contingencies specified in the resolutions of 1850 should happen, it should be the duty of the governor to order an election for dele gates to a convention of the people to meet at the seat of government within twenty days after the election "to consider and determine upon the time and mode of resistance contemplated by the aforesaid recited resolution." 18 The history of the years preceding- the Civil War is too well known to bear repetition in a work of this sort. Suffice it to say that no convention was called under this resolution, but the excitement grew more intense every day.
South Carolina passed an ordinance of secession on December 20, 1860. The common apprehension felt throughout the Southern States became so strong in Georgia that the General Assembly by an act approved on the 21st day of November, 1860, provided for a convention to meet at Milledgeville, on the 16th day of January, 1861. The preamble of the Act declared: "The present crisis in our national affairs, in the judgment of this General Assembly, de mands resistance; and it is the privilege and right of the sovereign people to determine upon the mode, measure and time of such re sistance," and the bod}' of the act provided : "That said convention, when assembled, may consider all grievances impairing or affecting the equality and rights of the state of Georgia as a member of the United States, and determine the mode, measure and time of re dress." 19
The convention met at the time and place designated and organ ized by electing George AV. Crawford, of Richmond, president and Albert R. Lamar, of Muscogee, secretary. Tlie ablest men in the State were sent as delegates to this convention. Among the most prominent were A. TT. Colqiiitt, Kugenius A. Nisbet. Unton Ste phens, Herschel V. Johnson, Thomas R. R. Cobb, Hiram Warner,

18. Acts of 3855-56, p. 107. 19. Acts of 1860, p. 36.

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Henry L,. Benning, George \V. Craw ford, Henry D. McDaniel, Francis S. Bartow, Alexander Means, Augustus Reese, Alexander H. Stephens, Benjamin H. Hill, and Robert Toombs. On the third day after the organization was complete, the doors were closed, and the convention went into secret session. Immediately after the doors were closed Mr. Nisbet offered the following resolution:
"Resolved, That in the opinion of this convention, it is the right and duty of Georgia to secede from the present Union, and to co operate "with the other states as have, or shall do the same, for the purpose of forming a Southern Confederacy upon the basis of the Constitution of the United States.
"Resolved that a committee of ---------------- be appointed by the chair to report an ordinance to assert the right, and fulfill the ob ligation of the State of Georgia to secede from the Union." 20

Before the vote on the foregoing resolution was taken, Herschel V. Johnson offered as a substitute, an elaborate set of resolutions in which the attachment of Georgia to the Union was declared and her grievances and apprehensions set forth, accompanied by a dec laration that Georgia "would not remain in the Union without satis factory guaranties of future security and, as suggestive of what were deemed such guaranties, eight "indispensable amendments" to the Constitution of the United States were proposed, providing for the surrender of fugitive slaves; the permission of slave holding in the District of Columbia and in the territories ; the right of slave holders to travel into and sojourn in any part of the United States with their slaves, and that persons of African descent should not be permitted to vote, for Federal officers, nor to hold office under the government of the United States. The resolutions further provided for a general convention of all the slave holding states to be held in Atlanta, 011 the 16th of February, 1861, and that the convention then in session postpone further action, and adjourn to meet again on the 25th of February to take such action as the convention to be held in Atlanta might require "keeping- steadfastly in view the rights, equality and safety of Georgia, and her unalterable deter mination to maintain them at all hazards, and to the last extrem ity."21 After an elaborate discussion in which Nisbet, Cobb, Topmbs, Reese and Bartow spoke for the original resolution, and

20. Journal of the Convention of 1861, p. 15. 21. Journal of the Convention of 1851, pp. 15-21,

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Johnson, Alexander H. Stephens, Alexander Means, and Benjamin H. Hill spoke for the substitute the original resolution was adopted by a vote of 160 to 130.
The chair then appointed a committee of seventeen to report an ordinance of secession. On January 19th the committee reported, and the convention, by a vote of 2O8 to 89, adopted the following:
"An ordinance to dissolve the Union between the state of Geor gia and the states united with her under a compact of government entitled 'The Constitution of the United States of America.'
"We, the people of the State of Georgia, in convention assembled, do declare and ordain and it is hereby declared and ordained:
"That the ordinance adopted by the people of the state of Georgia in convention on the 2nd day of January in the year of our Lord seventeen Hundred and seventy-eight, whereby the constitution of the United States of America -was assented to, ratified and adopted; and also all acts and parts of acts of the General Assembly of this State ratifying- and adopting amendinents of the said Constitution, are hereby repealed, rescinded and abrogated.
"\Vc do further declare and ordain, that the Union now subsist ing between the State of Georgia and other states under the name of the 'United States of America,' is hereby dissolved, and that the State of Georgia is in the full possession of all those rights of sov ereignty which belong and appertain to a free and independent State." 22
When the vote on the foregoing ordinance was concluded, the president of the convention said that it was his privilege and pleas ure to declare that the State of Georgia was "free, sovereign and independent."

93. In order to put into effective exercise the resumed at tributes of sovereignty, and to carry on the functions of government then being exercised by the Federal government, a number of or dinances were adopted, among them being an ordinance providing that postmasters should continue to discharge the duties of their offices; an ordinance to provide for the execution of sentences passed by the courts of the United States, and for the execution of processes issued by such courts, and to preserve indictments ; an ordinance to continue in force sundry laws of the United States

22. Journal of the Convention of 1861, pp. 31, 32.

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in reference to the African slave trade; an ordinance to abolish the Circuit and District Courts of the United States, and to estab lish other courts in lieu thereof; an ordinance to adopt and con tinue in force the laws of the late United States in the State of Georgia (except as therein specified) ; an ordinance to define and declare what shall be treason and misprision of treason in the State of Georgia, and also certain felonies ; an ordinance concerning cit izenship ; an ordinance to make provisional arrangements for the continuance of commercial facilities in Georgia; an ordinance con cerning officers of the army and navy, whereby it was provided that such officers as were citizens of Georgia, and who should resign and tender their services to the State should be commissioned to the same relative rank in the army and navy of Georgia, as they had held in the army and navy of the United States; and an ordinance to provide for the public defense. 23
On the 24th of January, at a secret session, the convention pro ceeded to the election of ten delegates to represent the State of Georgia in the proposed Congress to be held in Montgomery, Ala bama, on the 4th of February for the purpose of forming a confed eration of the seceded states. Robert Toombs and Howell Cobb were elected delegates from the State at large; Francis S. Bartow, from the First Congressional District; Martin J. Crawford, from the Second; Eugenius A. Nisbet, from the Third; Benjamin H. Hill, from the Fourth; Augustus R. Wright, from the Fifth; Thomas R. R. Cobb, from the Sixth; Augustus H. Kenan, from the Seventh, and Alexander H. Stephens, from the Eighth. 24 This delegation was of preeminent ability and exerted a predominant influence in the formation of the Federal government. In its fat ness and accomplishments it furnished a striking parallel for the genius for statesmanship exhibited by the Virginia group of statesmen in the creation of the Federal government.
Having made temporary provisions for the exigencies of the new condition of Georgia as a "free, sovereign and independent State," and having appointed commissioners to form a new federal union to which it was expected the State would become a party, the con vention, on the 29th day of January, adjourned to reassemble in Sa vannah upon the call of the president.

23. See Journal of the Convention of 1861, title "Ordinances," pp. 374-393.
24. Journal 1861, p. 64.

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[ 94-96

94. The Congress of the seceded states met in Montgomery, on the 4th day of February, 1861, and organized by electing Howell Cobb president and J. J. Hooper, of Alabama, secretary. A provisional government was immediately formed and Jefferson Davis elected Provisional President and Alexander H. Stephens, Vice President. Mr. Toombs and Thomas R. R. Cobb were the leading members of the committee to prepare a constitution for a permanent government, and the original draft of the instrument is in Mr. Cobb's handwriting. On the 18th day of February, 1861, Jefferson Davis was inaugurated as Provisional President, and he made Mr. Toombs Secretary of State. On the llth day of March the Congress adopted the "Constitution of the Confederate States
of America." 25

95. In accordance with a proclamation made by its president, the Georgia convention reassembled at Savannah on the 7th day of March, 1861. On the 15th of March a communication was received from Howell Cobb, President of the Congress of the Confederate States, enclosing a certified copy of the Confederate Constitution.26 On the next day the following ordinance was unanimously adopted:
"An ordinance to adopt and ratify the Constitution of the Con federate States of America.
"Be it ordained by the people of Georgia in convention assembled, ajid it is hereby ordained by authority of the same,
"That the constitution adopted by the Congress at Montgomery in the State of Alabama on the llth day of March in the Year of our L,ord one thousand eight hundred and sixty-one, for the 'per manent federal government' of the Confederate States of America be, and the same is hereby adopted and ratified by the State of Georgia acting in its sovereign and independent character."27

96. On the same clay on which the Confederate Constitution was ratified a resolution was adopted instructing the committee on Constitution and Laws to revise the Constitution of Georgia. This committee had been appointed on the 21st of January, the next meeting day after the adoption of the ordinance of secession, with Thomas R. R. Cobb, as its chairman. Most of the ordinances

35. Avery's History of Georgia, 181. 26. Journal of the Convention of 3861, p. 161. 27. Journal of the Convention of 1861, p. 187.
--9

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adopted by the convention were either prepared by this committee or referred to and considered by it. The Constitution of the Con federate States of America, and the Georgia Constitution of 1861, were penned by the same hand. The original draft of the Georgia Constitution, which was adopted with little change, was drawn by Mr. Cobb before the meeting of the Convention at Savannah.
Professor Sylvanius Morris is justified in the statement that no other man who has ever lived in Georgia has ever left such an impress upon the laws of the State as Thomas R. R. Cobb. 28 He was a man of such preeminent and many-sided abilities as that the aggregate of them amounted to little, if anything, less than genius. He was intensely religious, and was a zealous officer of the Pres byterian Church; he founded the Lucy Cobb Institute, and was one of the founders of the Lumpkin Law School at Athens which sur vives as the law department of the University of Georgia; he was a great trial lawyer; he was the author of Cobb's Digest and of an able and erudite work on slavery, but the most profound work of legal authorship accomplished by him, and one of the greatest feats ever accomplished in the science of law was his work in the prepa ration of the first Code of Georgia, commonly known as the Code of 1863. containing the first civil code ever adopted by an Amer ican State, and of which he did the greater and most difficult part-- the preparation of the civil and the penal Code.
Mr. Cobb -was a strong believer in the doctrine of "State Sov
ereignty," and advocated the secession of Georgia with all of the
power of his great abilities. In preparing the Constitution of 1861,
he put into it, and especially into its "Declaration of Fundamental
Principles" much of his political philosophy and his individuality
of thought. But there were other men of great ability on the com
mittee on Constitution and Laws, among them Linton Stephens,
Benjamin H. Hill, Luther J. Glenn, Augustus Reese, Richard H.
Clarke and Simpson Fouche, all of whom contributed largely to
the formation of the Constitution.

97. One of the most interesting contributions to the ma terial from which the Constitution was formed was the following "Enunciation of Fundamental Principles," introduced and referred to this committee by Mr. Fouche :

28. Article on Thomas Reade Rootes Cobb, by Prof. Sylvanus Mor ris, in Great American Lawyers, vol. 7, pp. 311-320.

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"Experience having admonished us that there exists a wide spread disposition in many sections, to question or deny the right of the people of Georgia, to be a free, independent, and sovereign State, endowed with all the rights of a perfect sover eignty, among which is the right to secede from a Confederacy, upon finding a continuance in it incompatible with her peace, safety, happiness, interests or liberties: Aware, moreover, of the importance of a thorough understanding of the fundamental prin ciples of all just government by the people of a free State: We, the representatives of the people of Georgia, in that supreme and sov ereign capacity wherein they are entitled to make, alter and abolish Constitutions and Governments, do hereby publish and declare :
"First, The sovereignty is the supreme, ultimate power, abiding in the people of an organized community or State.
"Second, That sovereignty is one indivisible, inalienable, and im prescriptible.
"Third, That all other power in the State is derived from, is subordinate to, and revocable by, the sovereignty.
"Fourth, That governments are not sovereign, but the creatures of the sovereignty, ordained and established by it, for the purpose of a convenient exercise of its ordinary powers, in the enactment, administration, and execution of laws, to establish justice, and to promote the peace, good order, security, and prosperity of the State.
"Fifth, That Constitutions or Fundamental laws, are the direct enactments of the sovereignty, organizing governments, delegating, defining, and limiting their powers, and enumerating the purposes for which those powers are to be exerted.
"Sixth, That allegiance is due only to the sovereignty, and obe dience is due to government only as its regularly constituted organ.
"Seventh, That no mere government, whether it is a government proper or improper, has a right to resist the regularly expressed will of the sovereignty which created it, either for the purpose of retaining power, or of continuing its existence against that will.
"Eighth, That there ought to be established a real and effective responsibility on the part of all officials in every department of government.
"Ninth, That power given for one purpose, cannot rightfully be exercised for any other, and therefore the taxing power can be

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exercised only to raise revenue to defray the expenses of govern ment, defend the State, or for some other purpose specified in the grant of the power.
"Tenth, That the system of taxation adopted in a free State, ought to he just and equal in its operation as between individuals, classes and sections; and ought to he generally and thoroughly understood by the people, in order that they may be able to hold their representatives to a real responsibility, economy, and purity in the administration.
"Kleventh, Then in its relation to individuals, the protection of person, property and character, against violence, fraud, and defama tion, is the sole legitimate object of all just government; and an imbecile government which cannot, or a corrupt government, which will not give it, ought to be reformed or overthrown.
"Twelfth, That it is the indispensable duty of a good government, to provide an easy, prompt, and adequate remedy, for the infraction of every right; and a just, but certain punishment for every wrong or crime.
"Thirteenth, That all citizens of a free State, may freely, and peaceably assemble to consider any matter interesting to them ; may keep, and bear arms ; may petition their government for anything within the sphere of its powers ; may freely speak, write and pub lish their opinions upon any subject, standing to the penalty of law for any abuse of these privileges ; may profess any religious creed, and practice any form of religious worship, without being sub jected, 011 account thereof, to any political or legal disability, or en titled to any political or legal privileges of favor." 29

98. The committee reported the Constitution in complete form on the 21st of March. Its provisions were debated at con siderable length and several amendments made to it as reported by the committee, the most important being the addition of 7 of ar ticle V, providing for the submission of the Constitution to the people of the State for ratification at an election to be held on the first Tuesday in July, 1861. This was the first Constitution of Georgia upon the adoption of which the people voted directly.
In the organization and powers of the several departments of the government, except in a few instances, the Constitution of 1861

29. Journal of the Convention of 1861, pp. 193-195.

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[ 99

followed the Constitution of 1798, as it had been modified by its various amendments. Annual sessions of the legislature "were pro vided for, with a limitation of forty days unless extended by a twothirds vote of both branches, as had been provided by the amend ment of 1856-1857. The judicial power was vested in the Supreme Court for the correction of errors ; Superior and Inferior Courts, Courts of Ordinary and Justice Courts, and such other courts as had been or might be established by law. The Superior Court was given exclusive jurisdiction respecting titles to land and equity causes, and had concurrent jurisdiction with the Inferior Courts in other civil cases. The adoption of this Constitution is an important chapter in the history of the jurisprudence of the State on account of the fact that, by it, equity jurisdiction was first made part of the constitutional jurisdiction of any court. Prior thereto the equity jurisdiction exercised by the courts had rested upon the authority of the common law and upon statutory enactment. The jurisdic tion of the Court of Ordinary over probate matters was the same as under the Constitution of 1798, after the creation of such courts by the amendment of 1850-1851. The jurisdiction of justices of the peace was not denned by the Constitution, these courts being left subject to have any jurisdiction conferred upon them that the legislature might see fit whereof exclusive jurisdiction was not con ferred by the Constitution upon some other court.
The judges of the Supreme Court and of the Superior Courts were appointed by the governor subject to confirmation by a twothirds vote of the Senate, and the State's attorney and the solicitors were appointed and confirmed in the same manner.

99. Several of the most important principles of the present organic law of the State made their first appearance in this Consti-

shall be varied in a particular case by special legislation; except with consent of all persons to be affected thereby." The provision against surprise in the enactment of legislation that "no' law or ordinance shall pass containing matter different from what is ex pressed in the title thereof," was rendered more effective by "the important additional provision that no legislation should "pass which refers to more than one subject matter." Safeguards were

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thrown around the granting of "State Aid" for internal improve ments by the provision against the passage of any law -whereby a citizen should be compelled, directly or indirectly to become a stockholder in, or contribute to a railroad or other work of internal improvement without his consent.
With respect to education, the Constitution of 1861 was far more liberal than the present Constitution. It did not limit the power of taxation for educational purposes to the providing of instruction of children "in the elementary branches of an English education only," but gave the General Assembly the unlimited "power to appropriate money for the promotion of learning and science, and to provide for the education of the people."

100. The "Declaration o f Fundamental Principles," cor responding to what is usually known in such an instrument as a "Bill of Rights," is of special interest as expressive of the political philosophy underlying so great and so unique an historical event as the secession of the State from the Federal Union and its par ticipation in the formation of the Confederate government. The long dispute over the fugitive slave law gave prominence to the duty of government with respect to the rights of property. This duty was declared to be such an essential part of the purpose for which all government is created that the citizen is not bound to obey a government which neglects this duty', in other words, the protection of private property is an essential part of any real gov ernment, and a pretended government which does not perform this duty is, in fact, not a government at all.
In the second paragraph of the first article, the right of revolu tion is boldly asserted and placed upon grounds against which no logic can prevail. This right was deduced from two premises: First, that there is a divine obligation upon all men that they should live under some form of government; that all forms of government are but a means to promote the safety and happiness of the people governed, and subject to such change as necessary to produce these ends; therefore, as particular forms of govern ment are created by men, these forms can possess no absolute authority, and when they fail to perform the ends designed, the divine obligation to create some government demands that men shonlcl obey the paramount law of God and create such new gov ernment as will be in reality such government as the divine law has ordained shall condition the social life of men. This was the

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doctrine of the Declaration of Independence plus the profound religious faith and philosophy of Thomas R. R. Cobb.
The Constitution of 1861 was not amended after its adoption. The method of amendment by successive legislative enactment was abandoned and it was provided that the Constitution should "be amended only by a convention of the people called for the pur pose." The making- of it was so well done, that it would, perhaps, not have been, amended for many years longer than it remained in force. It wae the most symmetrical of all the Constitutions which the State has yet had, and its provisions were practically all funda mental, little legislative matter being contained in. it. Although the Constitution of 1861 fell with the era which made it, it will remain as one of the most perfect models of constitutional con struction this country has yet produced.

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CHAPTER IX.
THE RECONSTRUCTION ERA--THE FIRST PERIOD, AND THE CON STITUTION OF 1865.
101. The failure of Confederate arms left the states of the South in a position legally so anomalous that, at first, the Federal government had no defined theory concerning their legal status. The logical theory of the Union movement was that the states were restored to their autonomy when their arms were laid down and. resistance ended. General Sherman held to this theory and Governor Brown acted upon it. He called the legislature to meet in Milledgeville on the 22nd day of May, 1865, but before that time came, Alexander H. Stephens, Howell Cobb, Benjamin H. Hill, and Governor Brown were arrested and carried away into imprisonment, and General \Vilson, the Federal military com mander stationed at Macon, issued an order forbidding the legis lature to meet, stating that, "neither the legislature nor any other political body will be permitted to assemble under the call of the rebel State authorities." Later, speaking for Secretary of War Stanton, he said: "The restoration of peace and order cannot be entrusted to rebels and traitors who destroyed the peace and trampled down the order that had existed more than half a century in Georgia."
Governor Brown, seeing that, on account of the attitude of the Federal authorities, he could do nothing as governor to facilitate the reorganization of the State, resigned and issued an address to the people in which he advised them to make the most of the diffi cult situation that confronted them; to acquiesce in the abolition of slavery; to take the oath of allegiance and thus secure amnesty in order to be able to participate in civil affairs, and to support the administration of President Andrew Johnson. 1
102. On the 17th day of June, 1865, Andrew Johnson is sued his proclamation making provision for the reorganization of the State government, setting forth the constitutional grounds upon which such action was taken in the following preamble :
1, Averys History of Georgia, pp. 338, 339.

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THE RECONSTRUCTION ERA.

[ 1Q2

"Whereas, The fourth section of the fourth Article of the Con stitution of the United States declares that the United States shall guarantee to every state in the Union a Republican form of govern ment, and shall protect each of them against invasion and domestic violence; and, Whereas the President of the United States is, by the Constitution, made commander-in-chief of the army and navy, as well as chief civil executive officer of the United States, and is bound by solemn oath faithfully to execute the office of President of the United States, and to take care that the laws be faithfully executed; and whereas, the rebellion which has been waged by a portion of the United States against the properly constituted authorities of the government thereof, in the most violent and re volting form, but whose organized and armed forces have now been almost entirely overcome, has, in its revolutionary progress, deprived the people of the State of Georgia of all civil government; and whereas it becomes necessary and proper to carry out and en force the obligations of the United States to the people of Georgia, in securing them of the enjoyment of a Republican form of gov ernment ;
"Now, therefore, in obedience to the high and solemn duties im posed upon me by the Constitution of the United States, and for the purpose of enabling the loyal people of the said state to organize a State government, whereby justice may be established, domestic tranquility insured, and loyal citizens protected in all their rights, of life, liberty and property, I, Andrew Johnson, President of the United States, and commander-in-chief of the arrny and navy of the United States, do hereby, appoint James Johnson Provisional Governor of the State of Georgia, whose duty it shall be, at the earliest practicable period, to prescribe such rules and regulations as may be necessary and proper for convening a convention, com posed of delegates to be chosen by that portion of the people of said State who are loyal to the United States, and no others, for the purpose of altering or amending the Constitution thereof; and with authority to exercise, within the limits of said State, all the powers necessary and proper to enable such loyal people of the State of Georgia to restore said State to its Constitutional rela tions to the Federal government, and to present such a Republican form of State government as will entitle the state to the guarantee of the United States therefor, and its people to protection by the United States against invasion, insurrection, and domestic violence; provided, that in any election that may be held hereafter for choos-

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ing delegates to any State convention as aforesaid, no person shall be qualified as an elector, or shall be eligible as a member of such convention, unless he shall have previously taken and subscribed the oath of amnesty, as set forth in the President's proclamation, of May 29, A. D. 1865, and is a voter qualified as prescribed by the Constitution and laws of the State of Georgia in force immediately before the 19th day of January A. D., 1861, the date of the so called ordinance of secession; and the said convention, when con vened, or the legislature that may be thereafter assembled, will prescribe the qualification of electors, and the eligibility of persons to hold office under the Constitution and laws of the state, a power the people of the several States composing the Federal Union have rightfully exercised from the origin of the government to the present time."

The oath of amnesty required, was as follows:
"I, ----------------------------------:--------, do solemnly swear, (or affirm), in the presence of Almighty God, that I will henceforth faithfully support, protect and defend the Constitution of the United States, and the Union of the States thereunder; and that I will, in like manner, abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves; so help me God." 2

103. James Johnson, the Provisional Governor appointed by this proclamation, repaired to Milledgeville, and, on the 13th day of July, 1865, issued his proclamation calling an election for dele gates to be elected on the first Wednesday in October, 186S, to a convention to meet in Milledgeville on the 4th Wednesday in the same month.
In his proclamation, Governor Johnson, declared that "slavery is extinct, and involuntary servitude no longer exists, hence no person shall have control of the labor of another other than such control as may lawfully result from indenture, the relation of parent and child, guardian and ward, and the contract of hiring freely made; and that for a breach of duty on the part of any one standing in these relations the military authority will administer, in a summary manner adequate and proper relief under the laws of the land."3

2. Confederate Records of Georgia, vol. IV, pp. 8-12. 3. Confederate Records of Georgia, vol. IV, p. 16.

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The oath of allegiance to the Federal government was required
as a qualification to vote, and amnesty and the right to participate in civil government, even upon these conditions, were denied to
civil officers of the Confederate government; military officers above
the rank of colonel; naval officers above the rank of lieutenant ; governors, congressmen, judges, "West Point officers and citizens worth over twenty thousand dollars; these several classes aggre
gating between fifteen and twenty thousand of the most intelligent
and influential men of the State. The convention met in accordance with the proclamation of
Governor Johnson on the 25th day of October, 1865. Several of the delegates -were under civil disabilities, being in the classes ex empted from amnesty, but President Andrew Johnson pardoned them so as to qualify them to serve.
The convention organized by electing Herschel V. Johnson president, and James D. Waddell secretary. Notwithstanding the imprisonment of the States' most eminent statesmen, and the civil disability of many of her most prominent citizens, the convention was not without many men of high ability and of distinguished patriotism. Its leader was Charles J. Jenkins. On the 26th day of October he was appointed chairman of a committee of sixteen to report business for the action of the convention, and on the same date reported and moved the adoption of the following ordinance, which was unanimously agreed to:
"An ordinance to repeal certain ordinances and resolutions therein mentioned, heretofore passed by the people of the State of Georgia in Convention.
"We, the people of Georgia in convention at our seat of govern ment, do declare and ordain that an ordinance adopted by the same people, in convention on the 19th day of January, A. D., 1861, en titled, 'An Ordinance to dissolve the Union between the State of Georgia and other States united with her under a compact of gov ernment entitled "The Constitution of the United States of America," * also an ordinance adopted by the same on the sixteenth day of March in the year last above aforesaid entitled "An Ordi nance to adopt and ratify the Constitution of the Confederate States of America," and also all ordinances and resolutions of the same adopted between the sixteenth day of January and the twenty-fourth day of March, in the year aforesaid, subversive of, or antagonistic to, the civil and military authorities of the United

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States of America, under the Constitution thereof, be, and the same are hereby, repealed."4

103a. The repeal of the ordinance of secession, the aboli tion of slavery and the repudiation of the debts of the State for carrying on the war were required as conditions precedent to the readmission of the State into its political rights as a member of the Federal Union. The first two of these conditions were readily, if not willingly, acceded to, as they were not considered to involve the honor of the State, but the convention refused to meet the latter condition until it was realized that no other course was left open.
Realizing that the sentiment of the convention and of the people of Georgia was strongly against repudiation, Governor Johnson, on the 27th of October, telegraphed President Andrew Johnson, and Secretary of State, Wm. H. Seward, that aid was needed to reject the war debt and asking what the convention should do. On the 30th of October he communicated the replies of Mr. Seward and President Johnson, stating the position of the President to be that the people of no State could be recognized "as having resumed the relations of loyalty to the Union that admits as legal obliga tions, contracts or debts created on them to promote the war of the rebellion."5
In view of the ultimatum of the Federal government, Mr. Saffold, of Morgan, then introduced and had referred to the com mittee of sixteen, an ordinance to declare null and void all laws of the State by which money was raised to carry on the war, and all notes, bills, bonds and contracts founded on the same. 6 This met with a determined and stubborn opposition. On November 3, Mr. Chappell introduced an ordinance for the same purpose to be made part of the Constitution and fundamental law of the State, differing somewhat from the ordinance proposed by Mr. Saffold.7
On the 6th of November, when the question of the adoption of the Constitution came to a vote, Mr. Chappell offered his ordinance

4. Journal of the Convention of 1865, p. 17; Confederate Rec., vol. IV, p. 145.
5. Confederate Records, vol. IV, pp. 49-51. 6. Journal of the Convention of 1865, p. 62; Confederate Rec., vol. IV, p. 283. 7. Journal of the Convention of 1865, p. 135; Confederate Rec., vol. IV, p. 283.

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as an amendment to the Constitution as reported by the committee, whereupon the previous question was called, and upon a vote being taken the Constitution was adopted without the amendment.
Mr. Jenkins., chairman of the committee of sixteen, then re ported that the committee were unable to agree on the subject of the repudiation of the war debt, and returned to the convention the ordinances and resolutions relating thereto which had been re ferred to that committee, and asked that the committee be dis charged from the further consideration of that subject, 8
Mr. Chappell's ordinance was then called up. Several substitutes and amendments were offered to it. Finally, after an amendment had been agreed to, providing that the legislature might appropriate money for the payment of any claim against the State originating after the 19th day of January, 1861, where it appeared that such claim was founded upon a consideration disconnected with any purpose of aiding or assisting the prosecution of the war against the United States and not incidental to a state of war, the ordi nance was passed. 9
One of the ordinances passed by this convention, is part of an interesting chapter in the constitutional law of the State, and is a pitiful memorial of the cupidity of human nature.
While most of the productive patriotism of the State was fight ing her battles, and their families were practically paupers, a cormorant greed was fattening on the misfortunes of the people, and it is said that, at the close of the year 1864, there were fifteen millionaires in the State and a thousand citizens worth more than one hundred thousand dollars each. 10 The necessities of the peo ple during the "war forced them to create debts at ruinous prices and at excessive rates of interest, and in consequence of the long continuance of the war and the invasion of the State and the waste of its resources, when the day of maturity came the people could not pay, and there was grave danger that a vast amount of the property of the State would pass at a fraction of its real value into the hands of a few grasping creditors, and vast numbers of the citizens be reduced to pauperism. To relieve this situation, the convention adopted an ordinance "to prevent the levy and sale

8. Journal of the Convention of 1865, p. 163; Confederate Records, vol.
IV, pp. 304, 305, 9. Journal of the Convention of 1865, p. 168; Confederate Records,
vol. 4, p. 335. 10. Averys' History of Georgia, p. 315.

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of the property of debtors under execution until the adjournment of the first session of the next legislature or until otherwise di rected, if before that time." 11 This was to restrain the hand of the creditor until the legislature could grant relief by the enact ment of a "stay law." On the 12th day of December, 1866, the legislature passed "An Act for the relief of the people of Georgia, and to prevent the levy and sale of property under certain circum stances." This act declared "That there shall be no levy and sale of property of defendants in this State under any execution founded on any judgment, or decree of any court, heretofore or hereafter to be rendered upon any contract or liability, made or incurred, prior to the first of June, 1865, or in renewal thereof, though bearing a subsequent date, except in the following manner. For one-third of the principal and interest due on said execution and no more, which may be levied on or after the 1st of January, 1868, one-third of the whole on or after the first of January, 1869, and the remaining one-third on or after, the first of January, 1870, unless the defendant shall endorse on the execution, a waiver of the benefit of this Act." The act further declared "That any of ficer, or other person violating this Act shall be guilty of trespass, and liable to the defendant, or person injured, in damages not less than the amount of the judgment, order or decree upon which he is proceeding, as in other cases of trespass." 12 In the case of Aycock is. Martin, the Supreme Court of Georgia, in a divided opinion, held this law to be unconstitutional and void on the ground that it impaired the obligation of contracts, within the prohibition of the Constitution of the United States, and the Con stitution of the State of Georgia. 13
Other ordinances passed by the convention were: An Ordinance to establish Congressional Districts and to provide for the election of members of the .House of Representatives of the United States; An Ordinance to request and authorize the Provisional Governor to borrow money on the credit of the State to pay what was due on the civil list; An Ordinance to legalize certain contracts made by guardians, administrators, executors and trustees for the benefit of their -wards; An Ordinance making it the duty of the General Assembly of the State to provide for the support of indigent

11. Journal of the Convention of 1865, p. 238; Confederate Rec., vol. IV, p. 394,
12. Acts of 1866, p. 157. 13. Aycock v. Martin, 37 Ga. 124.

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widows and orphans of deceased soldiers of the State; An Ordi nance to ratify certain acts, judgments and decrees, for the benefit of executors, administrators, trustees, guardians, etc., since the 19th day of January, 1861 ; An Ordinance to make valid private con tracts entered into and executed during the war not in violation of the Constitution and laws of the State, or of the United States; An Ordinance extending the time of the election of members of the General Assembly from the 15th of November, as originally ordained, until the 25th of that month; An Ordinance to authorize the Provisional Governor or his successor to borrow money for the pressing necessities of the Western & Atlantic Railroad; and An Ordinance to provide for the payment of the officers and members of the Convention. 14
104. The abolition, or rather the prohibition, of future slavery was incorporated in the Constitution itself, but only as an acquiescence in a fact already unjustly accomplished. When the English Government in 1833, by the statute 3 and 4 William IV, ch. 73, abolished negro slavery in the colonies, the preamble of the Act declared "That a reasonable compensation should be made to the persons hitherto entitled to the services of such slaves for the loss which they will incur by being deprived of their right to such services," and in order to make such compensation, it was provided that "towards compensating the persons at present en titled to the services of the slaves to be manumitted and set free by virtue of this Act for the loss of such services, His Majesty's most dutiful and loyal subjects the Commons of Great Britain and Ireland in Parliament assembled have resolved to give and grant to His Majesty the sum of Twenty Millions Pounds Sterling," and it was enacted "That the Lords Commissioners of His Majesty's Treasury of the United Kingdom of Great Britain and Ireland may devise such sum or sums of money as shall be required from time to time under the provisions of this Act, and may grant as the consideration of such sum or sums of money redeemable annuities for terms of years." 15
With this precedent and example before them, the Convention adopted the following as a paragraph of the "Declaration of Rights :"
14. Journal of the Convention of 1865, pp. 226 to 238; Confederate Records, vol. IV, pp. 391-406.
15. Select Documents of English Constitutional History, p. 538; Alexander H. Stephens (American Statesman Series; the McMillan Co., New York, 1910), pp. 537-529.

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"The government of the "United States having, as a war measure, proclaimed all slaves held or owned in this State emancipated from slavery, and having carried that proclamation into practical effect, there shall henceforth be, within the State of Georgia, neither slavery nor involuntary servitude, save as a punishment for crime after legal conviction thereof; provided this acquiescence in the ac tion of the government of the United States is not intended to operate as a relinquishment, waiver or estoppel of such claim for compensation of loss sustained by reason of the emancipation of his slaves as any citizen of Georgia may hereafter make upon the justice or magnanimity of that government."

105. In the organization and powers of the several depart ments of the government, the Constitution of 1865 made few radical changes in the organic law as it existed at the time of its adoption. Representation, both of senators and representatives, was appor tioned among the several counties and senatorial districts in the same manner as under the Constitution of 1861, and the legislature continued to meet annually. The qualification of the governor was so changed as to make him ineligible for four years after the ex piration of his second term.
The judicial power of the State was vested in the same courts as under the Constitution of 1861, but there was some difference in the distribution of jurisdiction as between the superior and in ferior courts. Under the former Constitution, by express provision, the inferior court had concurrent jurisdiction with the superior court in all except certain expressly excepted cases. Under the Constitution of 1865, the Superior Court had jurisdiction in all civil cases with the right in the General Assembly to give concur rent jurisdiction of all civil cases, except certain exempted classes of cases, to the inferior court "or such other county court as they may hereafter create."
The jurisdiction of the supreme court was extended so as to provide for the carrying directly to it of cases "from the city courts of Savannah and Augusta, and such other like courts as may be hereafter established in other cities." The appointmen^ of supreme and superior court judges was taken from the governor. Supreme Court judges were made elective by the General Assembly and Superior Court judges by the people of their respective circuits. The State's attorney and solicitors were made elective in the same manner as the judges of the Superior Court. The method of se-

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lecting judges of the inferior courts by election of the people of the county, and of justices of the peace by the people of the district was not changed.

106. Important as were the provisions of the constitution of 1865, which dealt with the relation of the State to the Federal Union, and important as were many of the provisions which dealt with the organization and powers of the various departments of the State government, the most important of all the provisions of the constittition framed at that dark and critical period was that great police regulation laid in the State's organic law at the very foundation of her social life simultaneously with the recognition of the negro as a freeman that: "The marriage relation between white persons and persons of African descent is forever prohibited, and such marriage shall be null and void." Thus, while superior power forced the negro into the ranks of the freemen, and, presently, admitted him into the full domain of political rights, the white people of Georgia, as the inheritors of the common law, asserted that their homes, though ruined by war, were their castles and that into them even the king could not enter, and upon their thresholds, they erected a barrier behind which legitimate home life should be sheltered from African admixture.
--10

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CHAPTER X.
THE RECONSTRUCTION ERA--THIS SECOND PERIOD, AND THE; CON STITUTION OP 1868.
107. The Constitution of 1865 was submitted to the people for ratification and was adopted, receiving 17,699 votes. In ac cordance with an ordinance adopted by the convention which framed that Constitution, an election was held on the 15th day of November, 1865, for governor, members of the legislature, State House officers, and representatives in Congress. Charles J. Jenkins was elected governor, without opposition, receiving 37,200 votes, more than twice as many as were cast for the ratification of the Constitution.
The legislature assembled on the 4th day of December, and im mediately ratified the Thirteenth Amendment to the Constitution of the United States abolishing slavery, 1 and passed a law allow ing freedmen to testify in all of the courts. 2 On the 6th of De cember, 1865, a legislative committee waited upon Cover nor-Elect Jenkins and notified him of his election and requested him to ap point a time to be inaugurated. He replied stating that he had received a communication from Provisional Governor Johnson, stating that he, as provisional governor, had been directed to con tinue to act as such, until relieved and his successor recognized by the government.3 On December llth the President of the United States telegraphed the provisional governor that the governor-elect should be inaugurated, but that his inauguration was not to inter fere with the provisional governor in the exercise of his duties until relieved.4 Accordingly on the 14th of December, Governor Jenkins was inaugurated, 5 and on the 15th the legislature adjourned to reassemble on the 15th day of January, 1866. G On the 19th of December, 1865, Governor Jenkins received a telegram from Wil liam H. Seward, Secretary of State, notifying him that Provisional
1. Acts of 1865-66, pp. 312, 313. 2. Acts of 1865-66, p. 239. 3. House Journal, 1865, pp. 28-31. 4. House Journal, 1863, p. 44. 5. House Journal, 1865, p. 58. 6. House Journal, 1865, p. 89.

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Governor Johnson had been relieved and ordered to turn over to Governor Jenkins all of the papers and property in his possession relating to the office of governor, and tendering the cooperation of the Federal government in "effecting the early restoration of and the permanent prosperity of the State."7

108. The condition of affairs at this time was distressful and alarming in the extreme. Organized gangs of thieves, led by depraved bands of white men, stole stock and committed nightly robberies. The worst elements of the colored population, intoxi cated with their newly-fourMl freedom and stirred by incendiaries from abroad, became insubordinate, vicious and violent. Gamblers and thugs infested the cities, which were scenes of murder, plunder, assassination and riot. The courts were feeble, and in many cases, timid. In the midst of this condition of affairs, the legislature reas sembled on the 15th day of January, 1866.
The matter deemed most important was the proper government of the lately emancipated blacks, and it was considered expedient and proper to deal with them in a different manner from that in which the white people should be dealt with. The convention of 1865 had authorized Provisional Governor Johnson to appoint a committee to prepare a negro code of laws, and Judge Ebenezer Starnes, W. Hope Hull, L. E- Bleckley, and Samuel Barnett, had been appointed to perform that duty. 8 These commissioners had executed their task and presented to the legislature the result of their labors in a "Freedman's Code," which gave the colored people ample and just protection of person and property, but withheld from them political rights. After adopting the main provisions of this code, which did so much to bring about the enactment of the Fourteenth Amendment and the Civil Rights Bill; making appro priations to repair the State road, and to buy artificial limbs for maimed soldiers--thus making a pension system part of the States organic law--and enacting homestead and stay laws, the latter of which was passed over the governor's veto, the legislature adjourned on the 14th day of March,

109. On April 2, 1866, President Andrew Johnson, proclaimed peace restored and the great insurrection at an end, 9 but Congress

7. Confederate Records of Georgia, IV, 446. 8. Journal of the Convention of 1865, p. 174; Confederate vol. IV, p. 321. 9. U. S- Statutes at Large, vol. 14; appendix 1, p. 111.

Re cords,

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was not satisfied with the terms 011 which the President had de termined that the Southern States were restored to their position in the Union and then began the crusade in Congress led by Thaddeus Stevens, which culminated in the passage of the Four teenth Amendment to the Constitution of the United States and its imposition upon the people of the Southern States as a condi tion of the representation of those states in Congress. A resolution was adopted by Congress that the rebellion had deprived the South of civil government, and that it was the duty of Congress lo pro vide them with civil governments; to continue the suspension of the writ of habeas corpus, and to keep soldiers in the South to protect the blacks and the Union citizens. 10
In his message to the General Assembly in January, of that year, Governor Jenldns had called attention to the inconsistencies in volved in the reconstruction plans adopted by the federal powers ; for example, that the ratification of the Thirteenth Amendment by the State of Georgia had been required as a condition of her rcadmissioii into the Union, and that the President had proclaimed the amendment adopted, whereas, if she was out of the Union, her adoption of the amendment was void; and if she was in, her rights were perfect, and she was in, without respect to her adoption of the amendment. 11

110. When the legislature met in November, 1866, the most important question before it was the question whether it would adopt the Fourteenth Amendment to the Constitution of the United States. Governor Jenkins, in his inaugural address, argued strongly against it. 12 A joint committee of the Senate and the House pre sented a report containing the following unanswerable proposi tions :
1. "If Georgia is not a State composing part of the Federal Government known as the Government of the United States, amendments to the Constitution of the United States are not prop erly before this body.
2. "If Georgia is a state composing part of the Federal Govern ment, known as the Government of the United States, then these amendments are not proposed according to the requirements of the

10. Avery, Georgia, 358. 11. House Journal of 1863-66, p. 94; Message of January 16, 1866.
12. House Journal 1866, pp. 7-11.

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Federal Constitution, and are proposed in such a manner as ,to forbid the legislature from discussing the merits of the amend ments without an implied surrender of the rights of the State."
This report concluded with the following resolution:
"Resolved, That the legislature of Georgia declines to ratify the proposed amendment, 'adding a fourteenth article to the Constitu tion of the United States." This resolution received the unanimous vote of the Senate, and every vote of the House save two. 13

111. Upon the refusal of Georgia and of other of the Southern States to ratify the Fourteenth Amendment a bill was introduced in Congress by John Sherman, entitled "an Act to pro vide for the more efficient government of the rebel states," which was passed on the 2nd clay of March, 1867, 14 and on the 23rcl day of the same month an act supplementary to the first act was passed. 15 These were what was known as the "Reconstruction Acts," and were passed over the President's veto. "The first of these acts recited that no legal State governments or adequate pro tection for life existed in the rebel states of Virginia, North Caro lina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and that it was necessary that peace and good order should be enforced in them until loyal and republi can State governments could be legally established; divided the states named into five military districts, and made it the duty of the President to assign to each one an officer of the army, and to detail a sufficient military force to enable him to perform his duties and enforce his authority within his district. It made it the duty of the officer to protect all persons in their rights, to suppress all insurrection, disorder, violence, and to punish or cause to be punished, all disturbers of the peace and criminals, either through the local civil tribunals, or through military commissions, which the act authorized. It provided, further, that when the people of either one of these states had formed a Constitution in conformity with that of the United States, framed by a convention of delegates, elected by male citizens, etc., of twenty-one years old and upwards, "Of whatever race, color or previous condition" who had been residents in it for one year" except such as may be disfranchised

13. House Journal 1866, p. 67, 68; Acts of 1866, p. 216. 14. U. S. Statute at Large, vol. 14, p. 428. 15. U. S. Statutes at Large, vol. 15, p. 2.

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for participation in the rebellion, etc., and when such Constitution should provide, etc., and should be ratified by a majority of the persons voting on the question of ratification who were qualified for electors as delegates, and when such constitution should have "been submitted to Congress for examination and approval, and Congress should have approved the same, and when the State by a vote of its legislature elected under such constitution should have adopted a certain article of amendment named, to the constitution of the United States, and ordaining among other things that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States where they reside," and when such article should have become a part of the Constitution of the United States, then the states respectively should be declared entitled to representation in Congress, and the preceding part of the act become inoperative; and that until they were so admitted any civil governments which might exist in them should be deemed provisional only, and subject to the paramount authority of the United States, at any time to abolish, modify, control or supersede th em.
The latter of the two acts related chiefly to the registration of voters who were to form the new constitutions of the states in question, and which registration by the act could include only those persons who took and subscribed a certain oath set forth in such second act, as that they had not been disfranchised for par ticipation in any rebellion or civil war against the United States, etc. 16
These acts tendered back the Fourteenth Amendment with negro suffrage added and proposed to put them into effect by the power of military coercion. Governor Jenkins went to Washington City and instituted a proceeding in the Supreme Court of the United States to test the constitutionality of these "Reconstruction Acts," The bill adopted, for the purposes of the case, the theory upon which the Federal Government had acted in denominating and dealing with the secession of the Southern States as a rebellion.
"It set forth the existence of the State of Georgia, the com plainant, as one of the states of the Union under the constitution; the Civil War of 1861-1865 in which she was involved; the sur render of the Confederate armies in the latter year, and the sub-

16. Extract from the Statement of the case in State of Georgia v. Stanton, 6 Wallace (U. S.) 50.

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mission to the constitution and laws of the Union; the withdrawal of the military government from Georgia by the President, Commander-in-Chief of the army; and the revival and reorganization of the civil government with his permission; and that the govern ment thus reorganized was in the possession and enjoyment of all the rights and privileges in her several departments--executive, legislative and judicial--belonging to a State in the Union under the Constitution, with the exception of a representation in the Senate and House of Representatives of the United States."
. "It set forth, further, that the intent and design of the acts of Congress, as was apparent on their face and by their terms, was to overthrow and annul this existing State government, and to erect another and a different government in its place, unauthorized by the Constitution and in defiance of its guaranties; and that, in furtherance of this intent and design the defendants (the Secretary of War, the general of the army, and Major General John Pope), acting under order of the President, were about setting in motion a portion of the army to take military occupation of the State, and threatened to subvert her government, and to subject her people to military rule; that the State was wholly inadequate to resist the power and force of the Executive Department of the United States. She therefore insisted that such protection could, and ought to be afforded by a decree, or order of this court in the premises."

The bill then prayed that trie defendants might be restrained;
"1. Erom issuing any order, or doing or permitting any Act or thing within or concerning the State of Georgia, which was or might be directed or required of them, or any of them, by or under the two Acts of Congress.
"2. From causing to be made any registration within the State, as specified and described in the last of the aforesaid Acts.
"3. From administering or causing to be administered within the State, the oath or affirmation prescribed in said Act.
"4. Krom holding or causing to be held within the State, any such election or elections, or causing to be made any returns of any such elections for the purpose of ascertaining the result of the same according to said Act.
"5. Erom holding or causing to be held within the State any such convention as is prescribed therein."

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This bill was filed through some of the most distinguished lawyers m the country, Charles O'Conner, Jeremiah S. Black, Robert J. Brent, Kdgar Cowan, R. J. Walker, appearing for the State of Georgia. Governor Sharkey of Mississippi, had previously made an application to the Supreme Court on behalf of the State of Mississippi for leave to file a bill to restrain Andrew Johnson, as President, from enforcing the "Reconstruction Acts, upon the ground that the Acts were unconstitutional, and that the President in the execution of those acts was merely required to perform a ministerial duty." The Attorney General objected to the filing of this bill on account of the severity of its terms as being "scandalous and impertinent," but the court considered the merits of the bill, in order to decide whether or not the court would entertain it. Governor Sharkey joined with the other counsel above named in filing the bill on behalf of the State of Georgia. After argument the application for leave to file the bill was denied.
The case made by Governor Jenkins was retained for argument, Georgia thus maintaining her historical and characteristic leader
ship in the fight for ''States' Rights." Notable arguments were made by Mr. Stranberry, the Attorney General of the United
States, on behalf of the government, and by Charles O'Conner, on behalf of the State of Georgia, but the case was dismissed, the court holding that the case "calls for a judgment upon a political
question, and will therefore not be entertained by the court." 17

Ilia. Under the Reconstruction Acts, Georgia, Alabama and Florida were constituted the third military district and Major General John Pope was put in command. Under the direction of a military officer in each county a registration of voters was made and 192,235 persons were registered of whom 95,973 were negroes. Thus, negroes were put upon the registration lists and invested with the elective franchise in order to adopt a constitution and choose a legislature to ratify the Fourteenth Amendment which was intended to make them citizens and invest them with the elective franchise--another example of the strange logic of the re construction era.
While all of this was going on, the great campaign was waged in Georgia as to whether the State should acquiesce in the terms and conditions of the Reconstruction Acts. Opposition to such a course was led by Benjamin H. Hill, who proclaimed with sur-

17, State of Ga. v. Stanton, supra.

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passing eloquence, the burning resentment of the people, in his Davis Hall speech, delivered in Atlanta on the 16th day of July, 1867, which was followed by him with his celebrated series of
"Notes on the Situation." 18 On Sept. 19, 1867, General Pope ordered an election to be held
on the 29th, 30th and 31st days of October, for determining whether a constitutional convention should be held and by a sub sequent order the election was directed to be continued on the 1st and 2nd days of November. At this election 106,410 votes were cast, 102,283 of said votes being favorable to the holding of a con vention. Delegates to sit in the convention were also chosen, 33 out of the 166 delegates chosen being negroes, and on the 19th day of November, 1867, General Pope, by General Order No. 89, called the convention to meet in Atlanta, on Monday, the 9th of
December in that year. 19

112. The personnel of the reconstruction convention, which met on the date named in the order convening1 it, was a pitiful contrast with the membership of the bodies which had framed the former constitutions of Georgia and a sad demonstration of the humiliation of a great State, One-sixth of the members were newly emancipated negroes ; 20 all of the members were chosen largely by negro votes, three-fourths of those voting at the election for delegates being negroes, the whites refusing to vote;21 at least one was a criminal, who had been in the penitentiary ; 22 one lived with negroes and was assassinated during the sitting of the con vention, presumably by his white neighbors. 23 A majority of the delegates were obscure men without experience in public affairs, and were despised by the real representative citizenry of Georgia with a refinement of abhorrence so great that the president of the convention said in his opening address that many of them came to the convention from "amongst a people who have spurned and spit upon us." 24 Although Toombs, Stephens, Hill, Jenkins and ITerschel V. Johnson 'were then in the prime of their powers, not
18. L,ife, speeches and writings of Senator Benjamin H. Hill, pp. 730811.
19. Journal of the Convention of 1868, p. 6. 20. Avery's History of Georgia, p. 377. 21. Opinion of McKay, Justice, in White v. Clements, 39 Ga. 251. 22. Journal of the Convention of 1868, pp. 179, 274. 23. Avery's History of Georgia, p. 386. 24. Journal of the Constitution of 1868, p. 17.

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one of them was a member of the convention. However, a few able and patriotic Georgia Democrats "were members of that body, chosen by communities that realized the importance of sending good men. Among the most important of this class were H. V. M. Miller, David Irwin, L, M. Trammell, and J. S. Waddell. Some of the republican leaders of the convention were men of ability, several of whom rose, out of the circumstances of the times, into prominence. Among these -were Rufus B. Bullock, afterwards governor; Benjamin Conley, president of the Senate; Foster Blodgett, Superintendent of the State Road; T. J. Speer, Congress man; J. R. Parrott, judge; IT. K. McKay, judge of the Supreme Court; D. S. Cotting, Secretary of State; A. T. Akerman, Attor ney General in Grant's cabinet; Madison Bell, Comptroller General and Needham L,. Angier, Treasurer.
The convention was organized by the election of J. R. Parrott president and P. M. Sheibley secretary. As soon as the convention had been organized, a resolution was adopted inviting General Pope, General Sibley and all their staff officers and Colonel Hulbert and all of his staff officers to seats on the floor of the conven tion. Another resolution was adopted providing for a committee to notify General Pope that the convention was organized and in viting his presence in the convention at his pleasure. The spirit of the convention was a fawning sycophancy towards the Federal authorities. On the 19th of December, the following resolution was unanimously adopted:
"Resolved, By the people of Georgia in Convention assembled, That the administration of Brevet Major General Pope, com manding the Third Military District, receives the cordial approval of this convention; and we hereby tender to General Pope our hearty thanks for the wisdom, justice and moderation with which he has exercised the vast powers conferred upon him by the au thority of the Congress of the United States." 25
Upon the same date the following resolution -was also adopted:
"Resolved, That as an acknowledgment of the highest apprecia tion, this convention tenders thanks to the United States Govern ment for the unparalleled magnanimity which has been bestowed upon this conquered people, and the great leniency given to a vanquished foe, and for the promotion of harmony, peace and

2S. Journal of the Convention of 1868, p. 33.

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prosperity and an everlasting- Union. This manifestation of grati tude is made under a conviction that it is the voice of the people we have the honor to represent. Furthermore for the philan thropic., humane and beneficiary actions and general protection given to the entire populace (particularly that received from the department known as the FVeeclman's Bureau) we most gratefully acknowledge ; and from the most profound consideration, attribute such magnanimity, generosity and leniency given to this people, as being the great bJessing-s and benefits derived from Republican Government." 26
On the next day General Pope visited the convention and was

113. On the 20th of December an ordinance was adopted appointing- Needham L. Aiigier disbursing officer of the convention and directing the treasurer of the State to pay over to him the sum of $50,000 to defray the expenses of the convention and the pay and mileage of the members and officers. 28 On December 23rd Angier reported that he had presented the ordinance and in structions from General Pope to the treasurer at Milledgeville, and had received from the treasurer the reply : "That holding his office under the constitution of the State of Georgia adopted in 1865, being sworn to perform, its duties according to that Constitution and the laws of the State, by which he was forbidden to pay money out of the treasury except upon warrant of the governor and sanction of the comptroller general, and having entered into heavy bonds for the faithful performance of the duties so prescribed, he was compelled to decline making- the payment ordered by the con vention, and authorized by General Pope." 29 General Pope took no action in the matter. On the 28th of December he was relieved from his command, and Major-General George W. Meade was ap pointed in his stead. On January 7, 1868, General Meade ad dressed a letter to Governor Jenkins, as provisional governor,
26. Journal of the Convention of 1868, p. 68. 27. Journal of the Convention of 1868, p. 73. 28. Journal of the Convention of 1868, p. 73. 29. Journal of the Convention of 1868, pp. 78, 79.

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requesting' him to tlraw his "warrant on the treasurer for .$40,000, urging- Governor Jenkins to comply and citing, as a precedent, the action of the convention of 1865. Governor Jenkins replied that the convention was called under a military law that prescribed a tax to raise funds to pay its expenses; that the fund to pay the expenses of the convention did not come under the purview of the constitutions of Georgia or of the United States which he had sworn to obey, and that he declined to make the payment.30 There upon General Meade issued the following order :

"I. Charles J. Jenkins, Provisional Governor, and John Jones, Provisional Treasurer of the State of Georgia, having declined to respect the instructions of, and failed to cooperate with the MajorGeneral, commanding the Third Military District, are hereby re moved from office.
i( II. By virtue of the authority granted by the supplementary Reconstruction Act of Congress of July 19, 1867, the following named officers are detailed for duty in the District of Georgia: Brevet Brigadier-General Thoams H. Ruger, Col. 33rd Infantry, to be Governor of the State of Georgia; Brevet Captain Charles F. Rockwell, Ordinance Corps, U. S. Army, to be treasurer of the State of Georgia.
"III. The above named officers will proceed without delay to Milledgeville, Georgia, and enter upon the discharge of the duties devolving upon them subject to instructions from these head quarters." 31

Governor Jenkins left the State, carrying away $400,000 of the State's money, which he deposited in New York to pay the State's debt, and also taking the Great Seal of the State, which was car ried to Halifax, Nova Scotia, and kept until his return to Georgia after the State had been restored to its political rights. Upon first leaving Georgia, Governor Jenkins went to Washington City where he filed a bill in the Supreme Court of the United States complaining that Ulysses S. Grant, of Illinois, George W. Meade, of Pennsylvania, Thos. R. Ruger, of Wisconsin and C. F. Rockwell, of "Wisconsin, had illegally seized the State's property and im-

30. Avery's Plistory of Georgia, 378, 379. 31. Journal of the Convention of 1868, p. 131.

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prisoned the State Treasurer and asked an order enjoining said parties from further spoliation.32
Naturally the filing of the above mentioned suit did not please the Georgia Reconstruction Convention, whose members wished to overthrow the existing order and rise from amicl its ruins to posi tions of power in a new regime of their own creating, and on the 14th day of February, 1868, a resolution introduced by Rufus B. Bullock, was adopted by that body, as follows:
""Whereas, some unauthorized person has undertaken to insti tute proceedings in the Supreme Court of the United States in the name of the State of Georgia, versus Generals Grant, Meade, and others, therefore,
"Resolved, by this convention, representing the people and sovereignty of Georgia, that no person has been empowered by the State of Georgia to commence or prosecute any such suit and that the people O'f Georgia as plaintiffs, will not litigate said suit, and demand that it be dismissed from said court.
"And be it further resolved that a copy of this resolution be forwarded by the President to the Military Governor of this State, with the request that he have the seal of the state affixed thereto, and then be forwarded to the Secretary of War."33
The case was of no greater avail than the others of a similar nature, which had previously been denied consideration or dis missed and it is doubtful if the resolutions of the Georgia conven tion had any effect, or were expected to have any, except to impress the Federal authorities with the willingness of the members of the convention to comply with the behests of their masters.

114, On the 9th of March, the convention being about to adjourn, the following resolution was adopted, providing for a submission of the constitution to a vote of the people for ratifica tion, for the election of governor, members of the General Assembly, Representatives to the Congress of the United States, providing the qualifications of voters, etc., to wit:
"Whereas, all the civil officers of the State are only provisional, until the State is represented in Congress ; and

32. State of Georgia v. Grant, 6 Wallace (U. S.) 341. 33. Journal of the Convention of 1868, p. 314.

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"Whereas the interest of Georgia requires that all the civil offices shall be filled by loyal citizens, according to the provisions of the Constitution being framed by this convention, at the earliest practical moment; and for the purpose of avoiding any unnecessary delay or loss of time and useless expense to the State, it is
"Ordained, That an election be held, beginning1 on the 30th day of April 1868, (At such place as may be designated by the Com manding General of the District), for voting on ratification of the Constitution, for the election of Governor, members of the General Assembly, Representatives to the Congress of the United States, and all other officers to be elected as provided in this Constitution; and said election to be kept open from day to day, at the discretion of the General Commanding.
"And at said election on the ratification of the Constitution, and for Governor, members of Congress, members of the General As sembly, and all other civil officers, the qualification for voters shall be the same as prescribed by the Act of Congress, known as the 'Sherrnan Bill/ for voters at the election on the ratification of the Constitution, and at all elections under the provisional Government.
"And Major General Meade is respectfully requested to give the necessary orders to carry into effect the foregoing provisions, and cause due returns to be made and certificates of election to issue by the proper officers. And be it further
"Ordained, That the regulations established by Congress for voting upon the ratification of the constitution, and for voting at elections under the provisional government, shall apply to the elec tion of officers as aforesaid; and the persons so elected or ap pointed shall enter upon the duties of the several offices to which they have been respectively elected, when authorized so to do by Acts of Congress, or the Order of the General Commanding, and shall continue in office until the regiilar succession provided for after the year 1868, so that said officers shall, each of them, hold their offices as though they were elected on Tuesday after the first Monday in November, 1868, or elected or appointed at the General Assembly next thereafter, and until successors are elected and qualified; and the rules for conducting and making- the returns thereof shall be the same as shall be prescribed by the Command ing General for the election and returns on the ratification of the Constitution.
"But this ordinance shall not be construed to apply to the Jus tices of the Peace, who shall be elected at such times as shall be

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provided for by the first General Assembly, until otherwise pro vided by law.
"Upon any voter being challenged, he shall take the following oath:
" 'You do solemnly swear (or affirm) that you have been duly registered agreeably to the Acts of Congress; that you have not prevented, or endeavored to prevent or dissuade, any person from voting at this election; that if the constitution upon which the vote is now being taken is ratified, you will truly and faithfully sup port it. So help you God.' "34
On the llth an ordinance was adopted confirming and readopting the ordinance of the convention of 1865 repealing the ordinance of Secession and the Ordinance ratifying the Constitution of the Confederate States of America and also an ordinance was adopted confirming and readopting the ordinance of the convention of 1865 repudiating the war debt. On the same day the constitution which had been framed and reported was adopted, after which the con vention, having completed its labors, adjourned.35

115. The convention adjourned amid the curses of the peo ple and the campaign which followed upon the question of its adoption and the election of officers under it was the bitterest that was ever waged in Georgia. The Constitution was adopted by a vote of 89,007 to 71,309, and Rufus B. Bullock was chosen governor.se
The legislature elected under this Constitution met on the 4th day of July, 1868. Twenty-eight of its members were negroes.
On June, 1868, Congress had passed an act admitting Georgia to representation in Congress and restoring civil government upon condition that she would ratify the Fourteenth Amendment and give assent to the nullification of the provisions of 17 of article V of the Constitution which granted relief upon suits on certain claims made prior to June 15, 1865, and to assess a tax on such claims after January 1, 1868.37

34. Journal of the Convention of 1868, p. 501. 35. Journal of the Convention of 1868, p. 526. 36. For the military order under which these elections were held, see "General Orders Nos. 39 and 40 by Major Gen'1 Meade;" Jorrnal of the Convention of 1868, pp. 606, 609. 37. U. S. Statutes at Large, vol. 15, p. 73.

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General Meade by his order directed Governor Bullock to effect "such preliminary organization of both houses of the legislature as will enable the same to enter upon the discharge of the duties as signed them by law."38 From the date of its convening until the 22nd day of July was spent in testing the eligibility of its members under the Fourteenth Amendment and in "wrangling over organiza tion. On Wednesday the 22nd of July, 1868, organization was perfected, the Fourteenth Amendment ratified, assent given to the nullification of the provisions in the Constitution as to relief, and Rufus B. Bullock was inaugurated as governor, General Meade attending with his staff, as the real ruler of Georgia.39 The con ditions imposed by Congress having been complied with, an order was issued on the 28th of July, 1868, declaring military rule under the Reconstruction Acts at an end. But the restoration of civil government was not destined to be permanent.40
On the 3rd day of September the House adopted a resolution introduced by Milton A. Candler, expelling the negro members upon the ground that, by the laws in existence at the time of the adoption of the Constitution of 1868, colored persons were ex cluded from office and that the constitution provided for a con tinuance of those laws.41
Upon the meeting of Congress in December of that year, Gov ernor Bullock communicated an address to it declaring that Georgia had not complied with the laws of Congress in her reconstruction, and that there was no "adequate protection for life and property, the maintenance of peace and good order and the free expression of political opinion," and asking congressional assistance. Then a new reconstruction of Georgia began. Charles Surnner intro duced a bill in the United States Senate declaring that Georgia should be reconstructed. On the 24th of February, 1869, Congress proposed the Fifteenth Amendment to the Constitution of the United States. When Congress reassembled on the 4th of March, 1869, it refused to allow the representatives from Georgia to take their seats in that body, and on the 22nd of December, 1869, passed an act requiring Governor Bullock to convene the State legislature with the expelled negroes as members and provided that the legislature should ratify the Fifteenth Amendment before the
38. House Journal, 1868, p. 6. 39. House Journal, 1868, pp. 46, 57. 40. Avery's History of Georgia, 400. 41. House Journal, 1868, pp. 342, 294.

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State should be entitled to representation in Congress, declaring that "the exclusion of any person or persons elected, as aforesaid, and being otherwise qualified, from participating in the proceedings of said Senate or House of Representatives upon the ground of race, color or previous condition of servitude would be illegal and revolutionary and is hereby prohibited."42
Major General Alfred A. Terry was appointed commander of Georgia to carry these new reconstruction measures into effect.
At the June term, 1869, the Supreme Court of Georgia held, in the case of White z>. Clements, McKay delivering the opinion, Brown concurring, and Warner dissenting, that a negro was eligi ble to hold office in Georgia under the Constitution of 186S,43 and when the legislature met on January 10, 1870, the negro members were reseated, and. before the session adjourned the Fifteenth Amendment was ratified.44 On the 15th day of July, 187O, a bill was signed by President Grant declaring "That the State of Georgia having complied with the Reconstruction Acts and the Fourteenth and Fifteenth Amendments to the Constitution of the United States having been ratified in good faith by the legal legis lature of the State, it is hereby declared that the State of Georgia is entitled to representation in the Congress of the United States." This was the end of reconstruction and Georgia--the last of, the seceded states--was finally restored to her civil rights in the Union.45

116. The Constitution of 1868 was a much superior instru ment to what might have been expected to be produced by the body which framed it, especially in view of the temper of the times and the circumstances under which the convention worked. It illus trates the fact that in such an enterprise, a few strong characters with trained minds give direction to the thoughts and control the purposes of others. And this convention, motley as was its mem bership, had some men in it of real and substantial if not of pre eminent ability, such as Alexander T. Akermann, H. K. McKay, David Irwin, John S. Bigby, H. V. M. Miller and L. N. Trammell.
Like the Constitution of 1861 and 1865, this Constitution had a declaration of fundamental principles, and in this declaration or

42. TJ, S. Statutes at Large, vol. 16, p. 59.
43. 39 Ga. 233. 44. Acts of 1870, p. 493. 45. U. S. Statutes at Large, vol. 16, pp. 363, 364.
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Bill of Rights, several principles appeared for the first time in the organic law of the State, the logical product of the times and cir cumstances. Among the most important of these were the pro visions that the "social status of the citizen shall never be the sub ject of legislation;" that "no person shall be molested for his opin ions, or be subject to any civil or political incapacity, or any civil or political advantage in consequence of such opinions;" that no lottery should be authorized or the sale of lottery tickets allowed; that "there shall be no imprisonment for debt;"46 and that "whip ping as a punishment for crime is prohibited." To the provision concerning religious liberty which appeared in the preceding con stitutions, the following saving clause was added: "but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the State;" to the provisions concerning the infliction of cruel and unusual punishments, the following clause was added :" nor shall any person be abused in being arrested, while under arrest, or m prison;" the guaranty of the right to bear arms was restricted by the provision, "but the General Assembly shall have power to prescribe by law the manner in which arms may be borne," and to the provision that a conviction of treason should not work corruption of blood or general forfeiture of estate, the qualifying words were added : "longer than during the life of the person attainted."
Perhaps the most important of the fundamental principles of this
"Declaration" were those found in 33. This section contained
the substance of the Fourteenth Amendment; a negation of the
right of secession and an assertion of the primary allegiance of
the citizen of the State to the government of the United States
and marked the practical triumph of the theory of the relation of

46. With respect to the prohibition of imprisonment for debt, it is related of Judge Logan E. Bleckley that "soon after he was admitted to the bar he -witnessed the imprisonment of a woman for debt This so profoundly moved him that he prepared a bill to exempt -women from arrest for debt, secured its introduction into the General Assem bly, and its enactment into law, thus making him the Georgia pioneer in the movement which gradually expanded until it was declared by the constitution that there should be no imprisonment for debt and this ancient relic was entirely blotted from the laws of Georgia." Extract from the report of Committee to prepare Memorial of Ex Chief Justice Logan Edwin Bleckley, 25 Ga. Bar Rep. 82. See also 16 Ga. Bar Rep. 8.

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the states to the national whole which first found judicial expres sion in the case of Chisholm V. Georgia.
This Constitution contained several other provisions new to the fundamental law of the State. Persons engaging in a duel, or aiders or abettors to a duel, were made inelligible to hold any of fice in the State. The claims of mechanics and laborers were de clared to be entitled to liens upon the property of their employers, and the legislature was required to provide for the summary en forcement of such liens. The right of debtors to the exemption of a homestead from levy and sale, which had theretofore rested upon statutory authority, was made part of the organic law.

117. In the organization and powers of the several depart ments of the government, some important changes were made but, in the main, the Constitutions of 1861 and 1865 were followed.
The Senate consisted of forty-four members elected from that number of senatorial districts, but the terms of its members were increased from two to four years. The House of Representatives consisted of one hundred and seventy-five members elected for terms of two years and apportioned as follows : To the six largest counties, three representatives each; to the thirty-one next largest, two each; and to the remaining" counties one each. The legislature continued to meet annually, the sessions being limited to forty days, unless extended by a two-thirds vote of each branch.
The term of office of the governor was increased to four years, and all restriction on his reelection was removed. He was given power to grant pardons in all cases, before as well as after con viction, except in cases of impeachment.
The judicial powers of the State were vested in a Supreme Court,. Superior Courts, District Courts, Courts of Ordinary, justices of the peace, commissioned notaries public and such other courts as the legislature might establish. The judges of the Supreme, Su perior and District Courts were all made appointive by the governor., by and with the advice and consent of the Senate, and were made removable by the governor on the address of two-thirds of each branch of the General Assembly, or by conviction or impeachment. The terms of the judges of the Supreme Court were fixed at twelve years; of the judges of .the Superior Court at eight years; and of the District Judges, ordinaries, and justices of the peace at four years.
The jurisdiction of the Supreme and Superior Courts was not

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materially changed, but a most important change in the jurisdic tion of the Superior Courts was authorized by the provision that the General Assembly might merge equity jurisdiction into the common-law courts, a provision not carried out during the life of the Constitution of 1868, but repeated in the Constitution of 1877 and finally made effective under it by the Uniform Procedure Act of 1887.
The inferior courts were abolished and district courts were cre ated, one for each senatorial district, for which a judge and. a dis trict attorney were provided, which were required to hold a term in each county not less frequently than once a month. This court was to have such civil jurisdiction as the General Assembly might confer upon it. Its criminal jurisdiction extended to the trial and determination of all offences not punishable with death or imprison ment in the penitentiary, which were to be tried by the judge upon written accusation founded on affidavit and signed by the district attorney, and without a jury, except when demanded by the ac cused, in which case the jury should consist of seven.
It was made the duty of the General Assembly to provide by law for the selection of intelligent and upright persons to serve upon all juries and it was provided that there should be no dis tinction between the classes of persons who should serve upon grand and petit juries. No right of trial by jury was provided in a jus tice court, and no appeal was allowed from a decision of a justice of the peace except in cases where the amount involved exceeded $50, in which case an appeal was allowed to the Superior Court.

118. From the foregoing it is apparent that the Constitu tion of 1868 contained many admirable features ; but an examina tion of other portions of the instrument and a study of the state's history during the years it was in force will disclose that it con tained other features so vicious as to render its practical operation disastrous. These defects were in the financial system created for the State and consisted in its excessive homestead; its provisions for State aid; its permission of cities and towns to become stock holders in railroads and other public improvements; in the right of cities and towns to make exemptions of propert3>- from taxation ; and in the undertaking of a system of unlimited education beyond the financial ability of the State at that time.
When the convention met the people of the State were gener ally impoverished and in debt and this was peculiarly true of that

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class of persons whose votes elected the members of the conven tion. It was not only desirable, but popular to provide some pro tection to the debtor class and some relief from the exactions of creditors. The temporary chairman of the convention, Foster Blodgett, declared in his speech opening the convention, that "Relief must be had." On the next day after the organization of the con vention, Mr. Akermann offered a resolution "in view of the afflicted condition of the people of Georgia," requesting Congress to repeal the special tax on cotton. On the next day Rufus B. Bullock of fered an ordinance which was adopted, which provided that "All
levies, which have been or may be made under execution issued from the courts of this State, shall be suspended until this con vention shall have taken or shall have refused to take final action, on the matter of relief, and that all sales under execution in viola tion of the ordinance shall be null and void and of no effect."
In pursuance of its policy for the relief of debtors, the conven tion incorporated a provision in the Constitution that no court should have jurisdiction to try or determine any suit upon any con tract (except such as were of a certain restricted class named) made before June 1st, 1865, or any contract and renewal of a debt made before that date. A further provision was also incorporated in the Constitution that the General Assembly might assess and col lect a tax of twenty-five per cent upon all debts or causes of action when due on or after January 1st, 1865. Besides these provisions a homestead to consist of real property of the value of two thou sand dollars in specie, and of personal property of the value of one thousand dollars in specie, was allowed to each head of a family or guardian or trustee of a family of minor children. Con gress abridged the first of the above recited provisions as to relief so as to make it applicable only to debts contracted for the price of slaves or the hire thereof, and declared the second provision null and void but left the homestead provision as it was fixed by
the convention. The granting of donations or gratuities was expressly author
ized upon a vote of two-thirds of each house. Incorporated towns and cities were allowed to take stock in railroads or other works of public improvement upon a vote of the qualified voters of the city voting at an election for such purpose, and the General As sembly was authorized to permit the State to grant its aid to works of public improvement by lending its credit to such enterprises.
The General Assembly was directed at its next session after the

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adoption of the Constitution to provide a thorough system of gen eral education to be forever free to all children of the State, the expense of which shall be provided by taxation or otherwise. The office of State School Commissioner was created, arid it was pro vided that there should be established, as soon as practicable, one or more common schools in each school district of the State.

119. One of the most important changes made in the organic law cf the State by the Constitution of 1868 was the introduction of a wholly new rule of property for married women. At common law, if the wife at the time of the marriage was seized of an es tate of inheritance in land, the husband, upon the marriage, be came seized of the freehold jure uxorls, and was entitled to the rents and profits during their joint lives. It was. a freehold estate in the husband, since it must continue during their joint lives (un less in contemplation of law there be a cessation of the coverture) ; and it might be possibly lost during his life, as when there has been a child of the marriage born alive, which might be capable of in heriting the estate, in which event the husband takes the estate absolutely for life as tenant by the curtesy.47 The husband alone could grant or charge their joint lands during their joint lives, and, if tenant by curtesy, during his own life. 48 But he could not alien or encumber it so as to prevent the wife or her heirs after his death, or the termination of the freehold estate, from enjoying it dis charged from his debts or engagements. The husband could indeed convey his interests and the same was liable for his debts, but on bis death or the termination of his freehold estate resulting from anv cause, the property passed to the wife again, free from all acts of his.49
But under the statute law of Georgia as it was of force in Georgia, prior to the act approved December 13, 1866, the rights of the husband in the real estate of his wife were vastly greater than under the common law. By the act of Dec. 23, 17S9, it was

47. 2 Kent's Commentaries (12 Ed.), 130; Coke Litt. 351; Am. & Eng-. Enc. L., 481; Schouler's Domestic Relations (5 Ed.), 89; 1 BHght's Hus band and Wife, 113.
48. Huggins v. Chupp, 103 Ga. 487, 30 S- E. 301. 49. Sperry & Niles v. Haslam, 57 Ga. 412; Hooper -v. Howell et al., 52 Ga. 322; Doe, Prescott & Pace v. Roe, Jones & Perry, 39 Ga. 58; Doe, Shipp et al, v. Roe, "Wing-field, 46 Ga. 593; Rodgers Trustee et al. v, Cunningham, Ex., 51 Ga. 40.

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provided that: "In cases of intermarriage since the 22nd day of February, 1785, the real estate belonging to the wife shall become vested in and pass to the husband in the same manner as personal property doth ; and in case of the death of the husband thereafter, intestate and without will, the said estate shall descend and be come subject to distribution in the same manner as personal prop erty;" 50 and even the earnings of a married woman, not a "'free trader" belonged to her husband;51 however, the marital rights of the husband attached only to such real or personal property as was in the possession of the wife, or came into her possession.52 Hence to prevent the attaching of the marital rights to the husband, it was common for the wife before her marriage to convey her prop erty to a trustee to hold the legal title during- the coverture with the beneficial estate in her, and with such provision as she desired for the disposition of the property at her death, and it was likewise common for persons who desired to convey property to a married woman, and for persons devising property to a married woman, to deed or devise it to a trustee with such provision as to its disposi tion at the death of the wife, or the termination of the coverture or trust, as might be agreed upon.
But a great and radical change was introduced by the Act of 1866, which became part of the organic law of the State by being incorporated into the Constitution of 1868. The Act of 1866, com monly known as the "Married Woman's Act," provided, that "All property of the wife at the time of her marriage, whether real, per sonal, or choses in action, shall be and remain the separate prop erty of the wife, and all property given to, or acquired by the wife during coverture, shall vest m and belong to the wife and shall not be liable for the payment of anv debt, default or contract of the husband." 5 " This provision was continued of force as part of the organic law of the State bv the Constitution of 1877.
Under this new rule, which has been retained in the present Constitution, women remain, after marriage, as effectually sepa rated from men with reference to their ownership of property as they were before marriage, and the husband has as little interest in, or control over, his wife's property, as she has in or over his; indeed less, for she is entitled to be supported out of his, and when
50. Prince's Digest 225; Hotchkiss, Statute Laws, 428. 51. Wood -v. Wilson Sewing- Machine Company. 70 Ga. 104. 52. Arnold v. Lineburgrer, 1.33 Ga. 76, 49 S. E. 412. 53. Urquart ?'. Oliver, 56 Ga. 34G.

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necessary, is recognized by law as his agent to charge it with her support; whereas, he has no power over her property except as she voluntarily consents for him to exercise power over it, and so completely is he divested of power over his wife's property that he cannot assert his wife's rights in any property of hers in his name but such rights must be asserted by her in her own name.04

54. Arnold v. State, 51 Ga. 146; Smith et al. v. Pate et al., 51 Ga. 246; Urquart v. Oliver, 56 Ga. 348,

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CHAPTER XI.
RESTORED SOVEREIGNTY, AND THE CONSTITUTION of- 1877.
120. Theoretically and constructively, reconstruction in Georgia ended on the 12th day of July, 1870, when the Act re admitting the State to representation in Congress was approved by the President of the United States. Actually, it ended with the inauguration of James M. Smith as governor on the 12th day of January, 1872. Governor Bullock determined to continue in power as long as he couJd, and when the legislature met in July, 1870, he sent in a message in which he communicated the fact of the passage of the act admitting Georgia, but contended that 5 of the Re construction Act of 1867 made the actual admission of senators and representatives a condition precedent to the abrogation of mil itary authority, and Congress having adjourned without having admitted the senators and representatives from Georgia, military rule would continue until the reassembling of Congress. 1
While the Constitution of 1868 was in the main a good one, yet it had defects peculiarly favorable to public extravagance and cor ruption and these opportunities were used to their utmost before the reconstruction regime finally fell. Out of the abuses which existed under this Constitution and the wrongs which were per petuated under it, grew much of the spirit and form of the Con stitution of 1877. The legislature of 1869 and 1870 was in ses sion three hundred and twenty-eight days and cost the State nearly one million dollars, the exact amount being $979,055. An exami nation of the Acts of 1868, 1869 and 1870, will show that a very large number of charters were granted to railroads with the pro vision in them that the State would endorse the bonds of the com panies. State aid was thus granted to twenty-eight railroads, pledg ing the State's liability for over thirty millions of dollars. In 1872, the legislature, through committees, made an investigation concern ing the endorsement of these bonds and other financial transactions of the administration of Governor Bullock, with the result that a large number of these bonds were found to be fraudulent and were declared to be null and void. The grossest mismanagement, if not
1. House Journal, 1870, p. 181.

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corruption, was found in the conduct of the business of the State Road. 2
By the Act of 1874 all provisions in the charters of railroad companies providing for the State's endorsement were repealed,3 and, in 1878, an amendment of the Constitution of 1868 was adopted, declaring- that the endorsement of the State upon the bonds of certain railroad companies was illegal and void.4
Under the provisions of the Constitution permitting towns and cities to aid public enterprises and to incur indebtedness, without constitutional limitation, many of the towns and cities of the State became so burdened with debt that the rates of taxation became well nigh ruinous and the tendency was to continue to pile on the burden of debt and thus increase the tax rate.
By the year 1877, the public debt of the State had become eleven million dollars, with only about one-third of the property owned before the war, and with a tax rate eight times as great as before the war, the public revenues were not more than enough to pay the current expenses of the State and the interest on the public debt.
As soon as the rule of the carpet bagger was overthrown and the government passed into the hands of men chosen by the free voli tion of the people of Georgia, an agitation began for a convention to frame a new Constitution. At nearly every session of the leg islature a bill for this purpose was introduced, and finally a bill presented in the legislature of 1877 by Hon. Alien D. Candler was passed submitting the question to a vote of the people."5' The elec tion was held on the first Tuesday in June, 1877, and resulted in the success of the convention movement, 48,181 votes being cast for the convention, and 39,057 against it.

121. The convention met in Atlanta, on the llth day of July, 1877, and was organized by the election of Charles J. Jenkins pres ident and J. C. Nisbet secretary. The personnel of the convention was of the very highest order and it would be hard to name the dozen strongest men. The most commanding personality and the leading spirit of the convention was Robert Toombs. Among the other strong and conspicuous men were the president, Charles J. Jenkins, Judge W. M. Reese, Gen. L,uctus J. Gartrell, Thomas G.

2. Acts 1872, pp. 5, 6, 7, 8. 3. Acts 1874, p. 98. 4. Acts of 1877, p. 24. 5. Acts of 1877, p. 24-

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Lawson, Gen. A. R. Lawton, T. J. Simmons, N". J, Hammond, Judge Sampson W. Harris, Gen. W. T. Wofford, L. N. Trammel! and Pope Barrow, though there were many others "who might be considered worthy to stand in the same rank.
In order to conveniently and efficiently transact the business of the convention, a resolution was adopted for the appointment of thirteen standing committees of nine members each, each congres sional district to have one representative on each of said committees to consider the existing Constitution of this State and to report upon it with such recommendation for revision and amendment as might be deemed necessary and proper. "The titles of these com mittees with the chairman of each were as follows: Committee on the Bill of Rights, James L. Seward, Chairman ; Committee on the Legislative Department, Robert Toornbs, Chairman; Committee on the Executive Department, L. J. Gartrell, Chairman; Committee on the Judicial Department, A. R. Lawton, Chairman; Committee on the Elective Franchise, A. R. Wright, Chairman ; Committee 011 Education, A. H. Hansel, Chairman; Committee on Public Insti tutions, S. W. Harris, Chairman; Committee on Finance, Taxation and the Public Debt, T. J. Simmons, Chairman; Committee on Militia, R. B. Nisbet, Chairman; Committee on Counties and County Officers, James M. Mobley, Chairman; Committee on Homesteads and Exemptions, Pryor L. Mynatt, Chairman; Com mittee on Laws of General Operation in Eorce in This State, Abda Johnson, Chairman; Committee 011 Amendments to the Constitu tion and Miscellaneous Provisions; W. T. Thompson, Chairman. In addition to the foregoing, it was provided that "A committee on the Order, Consistency and Harmony of the Constitution, be ap pointed by the President to consist of two members selected from each of the said thirteen standing committees, to which Final Com mittee of Revision the thirtee_n_^tanding _CoHifflJttees shal! make their reports." Of this committee, Robert Toombs was made chair man. 6

122. One of the first matters to which the convention gave its attention was the protection of the State against further extrav agance, 'the payment of the public debt, and the reestablishment of the public credit. For the accomplishment of this purpose, a policy of the most rigid economy was adopted as to the salaries of the

6. Journal of the Convention of 1877, pp. 17, 30, 41, 54.

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public officials and the strictest limitations were set to the exercise of the right of taxation and. the purpose for which public expendi ture might be made. The purposes of taxation by the State were restricted and expressly enumerated. Provision was made that no debt should be created, except to supply casual deficiencies of rev enue, and for that purpose, only to the amount of two hundred thousand dollars. State aid and the granting" of any donation was forbidden. The amount of debts which counties, municipal corpora tions or political divisions of the State might incur for any purpose was limited in an amount proportioned to the assessed Value of the taxable property therein. Municipal aid, except for charitable pur poses and for the support of schools, was forbidden, and it was provided that the State should not assume the debt of any county, municipal corporation or political division of the State unless in curred for defense in time of war. The increase of the bonded debt of the State was prohibited, and its extinguishment provided for by the creation of an annual sinking fund and by a provision that the proceeds of the sale of all public property should be applied to its payment. The expense of public education was curtailed by the provision that education in the common schools should be "in the elementary branches of an English education only," and by restrict ing State aid to higher education to the support of the State univer sity and to such college or university as might be established for the education of persons of color. The appropriation of money to pay any of the bonds declared to be illegal by the General Assembly, and by the Constitutional Amendment ratified on May 1, 1877, was forbidden, and the General Assembly was prohibited from paying any of the war debts of the State or to authorize the governor or any other State official to cause the State to be made a party to any suit to test the validity of the bonds or other obligations representing such debts.
General Toombs said with reference to the foregoing provision that "he had locked the door of the treasury and given the key to the people."7 But with reference to the small parsimony which was exercised concerning the salaries of public officers he said that the whole finances of the State were not included when the Govern or's salary was spoken of, and that more money was spent in talk ing about it by members of the convention than their children would have to pay in forty years. 8

7. History of Georgia, by Lawton B. Evans, p. 321. 8. Life of Robert Toombs, by Pleasant A. Stovall, p. 340.

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123. Important changes were made in the terms and salaries of the officials of the State and the manner of choosing judges and solicitors, and new and important restraints were laid upon the legislative department.
The term of office of the governor was reduced to two years, and he was made ineligible for reelection after the expiration of his second term for a period of four years. His salary was fixed at three thousand dollars until otherwise provided by a two-thirds vote of both branches of the General Assembly, at which sum it re mained until the year 1904, when it was increased to five thousand dollars. The possibility of the abuse of the pardoning power, such as was made by the reconstruction governors under the Constitu tion of 1868, was removed by limiting the authority of the governor to exercise such power to cases "after conviction," but the power itself, over the cases to which it did apply, was so increased as to permit the governor to grant pardons for all offences except in cases of treason and impeachment.
The terms of the judges of the Supreme and Superior Courts were reduced to six and four years, respectively, and the selection of these judges and the solicitors was changed from the former method of appointment by the governor with the consent of the Senate, to election by the General Assembly. By an amendment ratified at an election held on October 5, 1898, the judges of the Superior Court and the solicitors general were made elective by the people.
Largely on account of the provision for direct appeal from the city courts of the State, first made in the Constitution of 1868 and repeated in the present Constitution, and in consequence of the great increase in the number of such courts, the mass of business in the Supreme Court became so great by the year 1893 that an amend ment was proposed increasing the number of Supreme Court judges to five, but the amendment was defeated on its submission. Finally, the necessity grew so urgent that by an amendment proposed in an act approved on the 16th day of December, 1895, and ratified at an election held on the 7th day of October, 1896, the number of jus tices was increased to six and they were made elective by the people in the same manner as the governor and other State House officers. This amendment was carried into effect by the Act of December 17th, 1896, and the court was reorganized on the 4th

9. Acts of 1896, p. 36.

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day of January, 1897. This increase in the personnel of the Su preme Court afforded only temporary relief, however, and in 1906 the Court of Appeals was created to remove the congestion of busi ness in the Supreme Court. "While the creation of the Court of Appeals has relieved somewhat it has not removed the difficulty, and it is probable that radical changes must, before very long, be again made in the constitution of these courts, or in the manner or grounds of appeal.
The judicial powers of the State were vested in the same courts and officers as under the Constitution of 1868 except that the sys tem of district courts was not continued. There was an effort made to restore the inferior courts as they existed prior to the Constitution of 1868 in such counties as might desire them, but the sentiment for uniformity in judicial tribunals was too strong, and the effort was ineffectual. The method of appointing commissioned notaries public was changed from appointment by the governor to appointment by the judge of the Superior Court upon recommenda tion of the grand jury. Jury trials were provided in justice courts for all amounts involved. A most important provision -with respect to all courts was that the jurisdiction, powers and practice of all courts of the same class should be uniform. The authority to merge equity jurisdiction into the common-law courts, which was first conferred on the General Assembly by the Constitution of 1868, was repeated and ten years later carried into effect by the Act of 1887, commonly known as the "Uniform Procedure Act." 10
The meetings of the General Assembly were made biennial, and the sessions limited to forty days, unless extended by a two-thirds vote of both Houses. The consequences of this extreme limitation of the length of legislative sessions was that extensions were fre quently necessary, and in 1889 the session lasted 140 days. In 189O annual meetings were provided for and the sessions were limited to fifty days -without any provision for extension. By the Act of 19O2 the time of meeting was changed to the fourth Wednesday in June. 11
One of the most important limitations placed upon legislative ac tion was the provision that "no special law should be enacted in any case where provision had been made by general law." This has given prominence to the theory of the classification of subjects mat ter of legislation and the enactment of what are known as "General

10. Acts of 18S7, p. 64. 11. Acts of 1902, p. 66.

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laws of local application," based upon a classification, in many cases, so nearly arbitrary that it amounts to a little more than a subterfuge. The enactment of hasty local legislation, often pro posed by communities upon the impulse of the moment and without due notice to the people to be affected, was guarded against, to some extent but not sufficiently, by the requirement that publica tion, for thirty days, of the intention to ask local legislation should be made in the locality where the legislation was intended to have effect. It would seem that a most salutary additional provision would be that this local publication should be made thirty days be fore the beginning of the session so that the local representative might be fully apprised of the nature of the legislation desired and the wishes of the community in respect to it, before he leaves to attend the session. But the legislature and the people evidently wish expedition rather than deliberation in the enactment of local leg islation, for a provision that all local bills should originate in the House of Representatives and be considered by a special committee and that no bill should be reported except by a two-thirds vote, unless it had been laid before the committee within fifteen days of the organization of the General Assembly, was repealed by the first amendment to the Constitution ratified at an election held on the 5th of October, 1892, and it was provided that "the first and second reading of each local bill and bank and railroad charter, in each House, shall consist in the reading of the title only, unless said bill is ordered to be engrossed,"
The precautions against surprise in the enactment of legislation were extended so as to apply to amendments and repeals, as well as to the passage of original legislation by the provision that no stat ute or section of the code should be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the law to be amended or repealed and the alteration to be made in it should be described, and a more certain and full expression of the legislative mind with respect to all legislation was provided for by the requirement that all laws should receive a majority of the votes of all the members elected to both branches of the General Assembly.

124. The greatest struggle of the convention began when the provision against the passage of any bill "making irrevocable grants of special privileges or immunities" was considered upon review of the Bill of Rights. The contest over this provision was but the

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skirmish of the great battle led by General Toombs over the adop tion of Article IV, defining the nature of the taxing power and asserting its indestructible and inalienable character and providing for the regulation of corporations, and especially railroads, in the matter of freight and passenger tariffs. When the provision re ferred to in the Bill of Rights was under consideration, it was argued that charters were contracts and that to make charters of railroads and other large interests subject to revocation would dis courage investment and prevent the development of the State.
In the case of the Central Railroad Company v. Collins, 12 in which General Toombs was of counsel, the Supreme Court had de cided that the public policy of the State was to encourage fair and just competition and to discourage monopolies, and that any contract by which one road attempted to secure a controlling interest in an other road made with a view to prevent competition was contrary to such policy and \vould he set aside in equity. General Toombs had also been of counsel in the case of Arnold and DuBose u. The Georgia Railroad & Banking Company, 13 in which the right of the shipper to recover for extortion for freight charges was sustained. While, therefore, the public policy of the State was distinctly de fined in the legislation and judicial decisions of the State, yet there was no sufficiently effective means of preventing a violation of this public policy. Several of the western states had put into their constitutions the declaration that railroads were public high ways and embodied in their organic law a definition of their public policy as to government control over such high ways. The debates in the convention upon the adoption of this article disclose that many of the cities and small towns of the State suffered at that time from extortionate freight charges, often the result of pools and combinations and from unjust discriminations, often effec tuated by rebates. Notwithstanding the influence of a great railroad lobby, and the opposition of some of the strongest men in the con vention, General Toombs succeeded in having it written into the organic law of the State that the General Assembly was clothed with the authority and charged with the duty to regulate freight and passenger rates so as to prohibit unjust discriminations and the exaction of other than just and reasonable rates; that their charters were not an abridgment of the power of eminent domain and con ferred no right limiting the exercise of the police power of the State

12. 40 Ga. 582. 13. 50 Ga. 304.

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so far as it might be necessary to prevent the infringement of the equal rights of individuals or the general well being of the State; and that any amendment of an existing charter of a corpora tion or the passage of any special law for its benefit, accepted by it, should operate as a novation of the charter and bring it under the provisions of the Constitution.. In addition to the foregoing, that corporate franchises should be dependent upon tbe will of the State, not only for their creation but for their continued existence, and that the manner of their existence and conduct should be lim ited by the provision that they could not buy stock in other cor porations the effect of which would lessen competition or encourage monopoly; that railroad companies should be forbidden to grant rebates and required to conduct their business under rules and regulations made by the legislature or under its authority. 14 In order to carry into effect the latter provision, the General Assembly by the Act of October 14, 1879, created the Railroad Commission and delegated to it the power to make reasonable and just rates of freight and passenger tariffs, and to make, prescribe and enforce rules and regulations. 15 The constitutionality of this delegation of power was attacked by the railroads in the courts but the law was sustained both by the Supreme Court of Georgia, and by the Su preme Court of the United States. 16 This law has remained of force ever since its first enactment and was without very great amendment until 1907 when the number of commissioners was in creased from three to five and the powers of the commission greatly enlarged. 17

125. Two questions--the amount of the homestead and the location of the capitol--were of such peculiar nature that it was certain that the people^ would take an interest in them distinct from their interest in other parts of the Constitution, and it was uncer tain whether the will of the people on these matters would coincide with their will on the adoption of the Constitution, exclusive of these matters; hence, it was decided to make a separate submission of them.
There was a strong division of sentiment in the State over the

14. For the debates on the subject, see Small's Report, especially pages 378, 641.
15. Acts of 1878-'79, p. 135.
16. Georgia R. R. & Banking Co. v. Smith, 70 Ga. 694, 138 U, S. 174. 17. Acts of 1907, p. 72.
--13

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question whether the homestead should be as large as was provided by the Constitution of 1868 or whether it should be reduced to the amount tentatively fixed by the Constitution of 1877. The ef fects of the war and the panic of 1873 had not been recovered from, and many believed that the public interest demanded that a liberal homestead should be provided as a means of relief from debts created by these great disasters. Those who took the opposite view held that a large homestead would tend to destroy credit. The latter view was sustained by the people by the adoption of the homestead of 1877.

126. The aftergrowth of the Constitution has been important and constant. .From the year 1886 when the first amendment was ratified, some change has been sanctioned at nearly every regular election. Among the most important of these have been those in creasing the classes of pensioners. When General Toombs "locked the door of the treasury," he did not entirely exclude the old sol dier, for by the Constitution, as originally adopted, provision was made "to supply the soldiers who lost a limb or limbs ill the military service of the Confederate States with substantial artificial limbs during life." This provision was inserted in the Constitution by General Toombs, and the people to whom he gave the key have constantly opened the doors of the treasury wider and wider to this honored class of citizens.
In 1886, an amendment was ratified to make suitable provision for those injured in the service. In 1890, provision was authorized for the widows of soldiers who died in the service or from wounds received or disease contracted in the service. In 1894, provision was authorized for those "who by reason of age and poverty are unable to provide a living for themselves." In 1900 the provisions of the last preceding amendment were extended so as to include widows. In 1907, all soldiers were authorized to be put on the pension roll who enlisted in the military service of the Confederate States and were honorably discharged therefrom, and all widows of such soldiers married prior to 1870, provided such soldiers or widows are not worth over fifteen hundred dollars. As a conse quence of this enlargement of the classes of pensioners, the appro priation for pensions has now reached nearly one and a quarter millions of dollars. The same liberal policy has been pursued with reference to common school education until the annual appropria tion to that purpose has reached the great sum of more than two

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and one half millions of dollars. By the amendment proposed in 1903, and ratified on the 5th day of October, 1904, the rate of State taxation was limited to five mills. At this rate the appropria tion to public schools, even when the public revenues were strained to their utmost, was not sufficient, and on the same day when the constitutional limit was placed on the rate of taxation, an amend ment was ratified permitting militia districts and school district to establish and maintain public schools by local taxation. Until 1910 the right of the General Assembly to delegate the po-wer of taxation to counties for education was limited to "instructing children in the elementary branches of an English education only." By an amendment ratified on the 5th day of October, 1910, these limiting words were stricken out. An amendment was proposed by the Gen eral Assembly of 1911, to strike out the same limitation with respect to State taxation for the public schools.
The only other amendment necessary to be mentioned here is the amendment repealing 1 of article 2, and the insertion in lieu of it of what is known as the "Disfranchisement L,aw." This amendment was one of the leading issues of the gubernatorial campaign of 1906, and was advocated by Hoke Smith, the suc cessful candidate in that campaign. It is very similar to the disfranchisement laws adopted by other of the Southern States, but it goes further than most of them in that it contains not only a qualification for voting in an ordinary election but prohibits any person to participate in a primary of any political party or a con vention of any political party who is not a qualified voter.

127. The Constitution of 1877, as it was framed and adopted, was in many respects a masterly document, but it partook too much of the particular epoch "which produced it. It was the product of a reaction against the legislative and administrative abuses of the Reconstruction Era. Its paramount object was to restore the public credit and, in doing this, it confined the legislative power within limits too close to allow it to be the permanent charter of an ambitious and growing State, as is shown by the devices resorted to to avoid the strict terms of the instrument, and by the increasingly frequent amendments of it.
One of the defects of the present Constitution is that it is rather too much legislative in its character, thus too frequently creating the necessity of amendment. This danger was pointed out by the president of the convention in his opening address in "which he

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said: "The fundamental law should be in its nature abiding, seldom subject to change," and warned the convention that "by including- in the fundamental law matters which are proper sub jects of statutory regulation, you may render the assembling of the people in convention too frequent and bring the constitution itself into contempt." General Toombs deprecated the tendency of the convention to legislate upon details and declared : "All this convention has to do is to establish a few fundamental principles and leave the other matters to the legislature and the people, in order to meet the every varying affairs of human life." 18
The method provided for amendment was not so good as that provided in the Constitution of 1798, which required an amendment to receive a two-thirds vote of two successive legislatures, and then be submitted to a vote of the people for final ratification. When a second passage by a newly elected legislature is required, there is a strong probability that the constitutional change will be made an .issue in the election of representatives and that it will receive a more careful and intelligent consideration by the voters than under the plan of the present Constitution "where passage by only one legislature is necessary before submission.
What the nature and form of the State's fundamental law will be at any great distance in the future, it is impossible now to fore see. Modifications of the organic law are growing more and more frequent. The changes in the life and habits of the people of the nation and in the nature of their social and commercial relations, wrought largely by modern invention, have so altered the relations of the State to the other states and to the federal government that this changed relation must, sooner or later, show itself in the organic law of the State and nation, as, indeed, it has already hap pened, in a recent instance, by the assent of the State to the income tax amendment to the Constitution of the United States.
Confidence that Georgia will steer a wise and safe course Jn the uncertain currents of future constitutional change is justified by her course in the past. \Ve have seen with what restlessness the men of early colonial times endured an "imposed" government and illustrated the fact that the only acceptable government to an English speaking race is self-government. We have seen that no

18. Life of Robert Toombs, by Pleasant A, Stovall, p. 339. To the same effect, see the speech of Mr. Tuggle in the convention; Small's Report, 133.

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State bore its part in the struggle for independence with more courage and fortitude, and none entered into the formation of the federal government with more good will. But we have seen that in entering the federal compact, Georgia never intended to merge her separate individuality into a common and undistinguishable mass of nationality. She has at all times exhibited a self-conscious ness of her separate identity as a political body and maintained a stubborn insistence upon her individual rights as such. So, when the federal government attempted to encroach upon what she con sidered her "retained sovereignty," she boldly asserted the doctrine of "States' Rights," and stubbornly maintained that doctrine. But in all controversies over her individual rights a creditable dignity and moderation is to be observed. She did not attempt the folly of nullification, and in approaching the step of secession she did so with a conservative caution. But once the die was cast, she maintained her cause with her full power, and was last of all the states to yield to the conditions of reconstruction.
If she maintains her traditional individuality and conservatism, her position in the family of states will continue important and influential. The present operation of forces which may work sub stantial changes in the fundamental nature of State and national government admonish us anew that "the fundamental principles of free government cannot be too well understood, nor too often recurred to."

PART II

Constitutional Documents.
I. Of English Origin.
MAGNA CHARTA. 1
NINTH YEAR OF HUNRY III, A. D. 1225.
The great Charter made in the Ninth Year of King Henry the Third, and confirmed by King Edward the First, in the fiveand-twentieth year of his reign.
128. Edward, by the grace of God, King of England, Lord of Ireland, and Duke of Guyan, to all archbishops, bishops, etc. We have seen the Great Charter of the Lord Henry, sometimes King of England, our Father of the liberties of England, in these words: Henry, by the grace of God, King of England, Lord of Ireland, Duke of Normandy and Guyan, and earl of Anjou, to all archbishops, bishops, abbotts, priors, earls, barons, sheriffs, pro vosts, officers and to all bailiffs and other our faithful subjects, which shall see this present Charter, greeting, know ye, that we, unto the honor of Almighty God, and for the salvation of the souls of our progenitors and successors, Kings of England, to the advance ment of holy church and amendment of our realm, of our meer and free will, have given and granted to all archbishops, bishops, abbotts, priors, earls, barons, and to all free men of this our realm, these liberties following, to be kept in our kingdom of England forever.
CHAPTER I.
129. First, we have granted to God, and by this our present charter have confirmed, for us, and our heirs forever, that the
1. The text of Magna Charta here given is taken from Hotchkiss Statute Laws of Georgia and State Papers, pp. 5-13, and is not that of the original charter of King John signed at Runnymede in 1215, but is that of the republication by King Henry III, ten years later. It is shorter than the original charter by ten chapters, the subject matter of which is without significance to the present work. A full translation of the original charter may be found in Select Documents of Knglish Consti tutional History (Adams and Stephens; The McMillan Company), p. 42.

130-132] CONSTITUTIONAL DOCUMENTS.

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Church of Kngland shall be free, and shall have all her whole rights and liberties inviolable. (2) We have granted also, and given to all the freemen of our realm, for us and our heirs forever, these liberties underwritten, to have and to hold to them and their heirs, of us and our heirs forever.

CHAPTER II.
130. If any of our earls or barons, or any other which holcleth of us in chief by knights service die, and at the time of his death his heir be of full age, and oweth to us relief, he sball have his inheritance by the old relief; that is to say the heir or heirs of an earl, for a whole earldom, by one hundred pounds ; the heir or heirs of a baron, for an whole barony, by one hundred marks; the heir or heirs of a knight, for one whole knight's fee, one hun dred shillings at the most; and he that hath less, shall give less, according to the old custom of the fees.

CHAPTER III.
131. But if the heir of any such be within age, his lord shall not have the ward of him, nor of his lands, before that he hath takers of him homage. (2) And after that such an heir hath been in ward (when he has come to full age) that is to say to the a^e of one and twenty vears. he shall have his inheritance without relief, and without fine; so that if such an heir, being within age, be made knight, yet nevertheless his land shall remain in the keep ing of his lord, unto the term aforesaid.

CHAPTER IV.
132. The keeper of the lands of the heir, being within age, shall not take of the lands of the heir, ln.it reasonable issues, rea sonable customs, and reasonable services, and that without destruc tion and waste of his goods and his men. (2) And if we commit the custody of any such land to the sheriff, or to any other, which is answerable unto us for the issues of the same land, and he make destruction or waste of those things that he hath in custody, we will take of him amends, and recompense therefor. (3) And the land shall be committed to two lawful and discreet men of that fee, which shall answer unto us for the issues of the same land, or unto him, whom we will assign. (4) And if we give or sell to any

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MAGNA CHARTA.

[ 133-135

man the custody of any such land, and he therein do make destruc tion or waste, he shall lose the same custody, and it shall be as signed to two lawful and discreet men of that fee, which also in like manner shall be answerable to us, as afore is said.

CHAPTER V.
133. The keeper so long as he hath the custody of the land of such an heir., shall keep up the houses, parks, warrens, ponds, mills, and other things pertaining to the same land, with the issues of the said land; and he shall deliver to the heir, when be conietli to his full age, all his land, stored with ploughs and all other things, at least as he received it. All these thing's shall be observed in the custodies of archbishopricks, bishopricks, abbies, priories, churches., and dignities vacant, which appertain to us, except this, that such custody shall not be sold.

CHAPTER VI. 134. Heirs shall be married without disparagement.

CIIAPTI-CR VII.
135. A widow, after the death of her husband, incontinent, and without any difficulty, shall have her marriage, and her in heritance, (2) and shall give nothing for her dower, her marriage, or her inheritance, which her husband and she held the clay of the death of her husband, (3) and she shall tarry in the chief house of her husband by forty days, after the death of her husband, within which clays, her dower shall be assigned her (if it were not as signed her before) or that the house be a castle; (4) and if she depart from the castle, then a competent house shall be forthwith provided for her, in the which she may honestly dwell, until her dower be to her assigned, as it is aforesaid ; and she shall have in the meantime her reasonable estovers of the common; (5) and for her dower, shall be assigned unto her the third part of all the lands of her husband, which were his during coverture, except she were endowed of less at the church door. (6) No widow shall be distrained to marry herself; nevertheless she shall find surety, that she shall not marry without our license and assent (if she hold of us) nor withotit the assent of the L,ord, if she hold of another.

136-14O] CONSTITUTIONAL DOCUMENTS.

[188

CHAPTER VIII.
136. We, or our bailiffs, shall not seize any land or rent for any debt, as long as the present goods and chattels of the debtor suffice to pay the debt, and the debtor, himself, be ready to satisfy therefore. (2) Neither shall the pledges of the debtor be distrained, as long as the principal debtor is sufficient for the pay ment of the debt. (3) And if the principal debtor fail in payment of the debt, having nothing wherewith to pay, or will not pay where he is able, the pledges shall answer for the debt. (4) And if they will, they shall have the lands and rents of the debtor, until they be satisfied of that which they before paid for him, except that the debtor can show himself to be acquitted against the said sureties.

CHAPTER IX.
137. The City of London shall have all the old liberties and customs, which it hath been used to have. Moreover, we will and grant that all other cities, boroughs, towns and the barons of the five ports, and all other ports, shall have their liberties and free customs.
CHAPTER X.
138. No man shall be distrained to do more service for a knight's fee, nor any freehold, than therefor is due.

CHAPTER XI.
139. Common pleas shall not follow our Court, but shall be holden in some place certain.

CHAPTER XII.
140. Assisses of Novel disseisin and of mortdauncester, shall not be taken but in the shires, and after this manner; if we be out of this realm, our chief justicers shall send our justicers through every county once in the years which, with the knights of the shires, shall take the said assisses in those counties; (2) and those things that at the coming of the aforesaid justicers, being sent to take those assisses in the counties, cannot be determined, shall be ended by them in some other place in their circuit; (3) and those things, which for difficulty of some articles cannot be determined by them, shall be referred to our justicers of the bench, and there shall be ended.

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MAGNA CHARTA.

[ 141-146

CHAPTER XIII.
141. Assisses of Darien Presentment shall be always taken before our justicers of the bench, and there shall be determined.

CHAPTER XIV.
142. A free man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault, after the great ness thereof, saving to him his contenement; (2) and a merchant likewise, saving to him his merchandise; (3) and any other's villian, that ours shall be likewise amerced, saving his wainage, if he fall into our mercy; (4) and none of the said amerciaments shall be asserted, but by the oath of honest and lawful men of the vicinage; (5) earls and barons shall not be amerced but by their peers, and after the manner of their offence. (6) No man of the church shall be amerced, after the quantity of his spiritual benefice, but after his lay tenement and after the quantity of his offence.

CHAPTER XV.
143. No town nor freemen shall be distrained to make bridges nor banks, but such as of old time and of right have accus tomed to make them in the time of King Henry our grandfather.

CHAPTER XVI.
144. No banks shall be defended henceforth, but such as were in defence in the time of King Henry our grandfather, by the same places and the same bounds, as they were wont to be in his time.
CHAPTER XVII.
145. No sheriff, constable, escheator, coroner, nor any other of our bailiffs, shall hold pleas of our crown.

CHAPTER XVIII.
146. If any that holdeth of us lay-fee do die, and our sheriff or bailiff do show our letters patents of our summons for debt, which the dead man did owe to us; it shall be lawful to our sheriff or bailiff to attach and inroll all the goods or chattels of the dead, being found in the said fee, to the value of the same debt, by the

147-150] CONSTITUTIONAL DOCUMENTS,

[190

sight and testimony of lawful men, so that nothing thereof shall be taken away, until we be clearly paid off the debt; (2) and the residue shall remain to the executors to perform the testament of the dead; (3) and if nothing be owing unto us, all the chattels shall go to the use of the dead (saving to his wife and children, their reasonable parts).

CHAPTER XIX.
147. No constable nor his bailiffs shall take corn or other chattels of any man, if the man be not of the town where the castle is, but he shall forthwith pay for the same, unless that the will of the seller was to respite the payment; (2) and if he be of the same town, the price shall be paid unto him within forty days.

CHAPTER XX.
148. No constable shall distrain any knight for to give money for keeping of his castle, if he himself will do it in his proper per son, or cause it to be done by another sufficient man, if he may not do it himself for a reasonable cause; (2) and if we do lead, or send him in an army, he shall be free from castle-ward, for the time that he shall be with us in fee, our hosts, for the time which he hath done service in our wars.

CHAPTER XXI.
149. No sheriff nor bailiff of ours, or any other, shall take the horses or carts of any man, to make carriage, except he pay the old price limited, that is to say, for carriage with two horses, ten pence a day. (2) No demesne cart of any spiritual person or knight, or any L,ord, shall be taken by our bailiffs; (3) nor we, nor our bailiffs nor any other, shall take any man's wood for our castles, or other, our necessaries to be done, but by the license of him, whose the wood is.

CHAPTER XXII.
150. We will not hold the lands of them that be convicted of felony but one year and one day, and then those lands shall be de livered to the Lords of the fee.

191 ]

MAGNA CHARTA.

[ 151-156

CHAPTER XXIII.
151. All wears from henceforth, shall be utterly put down by Thames and Midway, and through all England, but only by the sea coasts.

CHAPTER XXIV,
152. The writ that is called prsecipe in capite, shall be from henceforth granted to no person of any freehold whereby any freeman may lose his Court.

CHAPTER XXV.
153. One measure of wine shall be through our realm, and one measure of ale and one measure of corn, that is to say the quarter of London; and one breadth of dyed cloth, russets and haberjects, that is to say two yards within the lists; (2) and it shall fae of weights as it is of measures.

CHAPTER XXVI.
154. Nothing from henceforth shall be given for a writ of inquisition, nor taken of him that prayeth inquisition of life, or of member, but it shall be granted freely, and not denied.

CHAPTER XXVII.
155. If any do hold of us by fee-ferm, or by socage, or burgage, and he holdeth lands of another by knight's service, we will not have the custody of his heir, nor of his land, which is liolden of the fee of another, by reason of that fee-ferm, socage, or burgage. (2) Neither will we have the custody of such feeferm, or socage, or burgagfe, except knight's service be due unto us out of the same fee-ferm. (3) We will not have the custody of the heir, or of any land, by occasion of any petit sergeantry, that any man holdeth of us, by service to pay a knife, an arrow or the like.
-CHAPTER XXVIII.
156. No bailiff from henceforth, shall put any man to his open law, nor to an oath upon his own bare saj'lng, without faith ful witnesses brought in for the same.

157-160] CONSTITUTIONAL .DOCUMENTS._____[192
CHAPTUR XXIX.
157. No freeman shall be taken, or imprisoned, or be dis seised, of his free hold or liberties, or free customs, or be out lawed, or exiled, or any otherwise destroyed ; nor will we not pass upon him, nor condemn him. but by lawful judgment of his peers, or by the law of the land. (2) We will sell to no man, we will not deny or defer to any man either justice or right.
CHAPTER XXX.
158. All merchants, (if they were not openly prohibited be fore) shall have their safe and sure conduct to depart out of England, to come into England, to tarry in, and go' through England, as well by land, as by water; to buy and sell without any manner of evil tolts, by the old and rightful customs except in time of war. (2) And if they be of a land making war against us, and be found in our realm at the beginning of the wars, they shall be attached, without harm of body or goods, until it be known unto us, or our chief justice, how our merchants be intreated there in the land mak ing war against us. (3) And if our merchants be well intreated there, theirs shall be likewise with us.
CHAPTER XXXI.'
159. If any man hold of any eschete, as of the Honor of WalKngford, Nottingham, Boloin, or of any other eschetes, -which be in our hands, and are baronies, and die, his heir shall give none other relief, nor do none other service to us, than he should to the baron, if it were in the baron's hand. (2) And we in the same wise shall hold it as the baron held it; neither shall we have by occasion of any barony or eschete, any eschete or keeping of any of our men, unless he that held the barony eschete otherwise held of us in chief.
CHAPTER XXXII,
160. No freeman from henceforth shall give or sell any more of his land, but so that of the residue of the lands the Lord of the fee, may have the service due to him, which belongeth to the fee.

193 ]

MAGNA CHARTA.

[ 161-165

CHAPTER XXXIII.
. 161. All patrons of abbies, which have the king's charters of England of advowsoii, or have old tenure or possession in the same, shall have the custody of them when, they fall void, as it hath been accustomed, and as it is afore declared.

CHAPTER XXXIV.
162, No man shall be taken or imprisoned upon the appeal of a woman for the death of any other than her husband.

CHAPTER XXXV.
163. No County Court from henceforth shall be holden but from month to month; and where greater time hath been used, there shall be greater: (2) Nor any sheriff, or his bailiff, shall keep his turn in the hundred but twice in the year: and no where but in clue place, and accustomed ; that is to say, once after Easter, and again after the feast of St. Michael. (3) And the view of frank pledge, shall be likewise at the feast of St. Michael without occasion; so that every man may have his liberties, which he had, or used to have, in the time of King Henry, our grandfather, or which he hath purchased since. (4) The view of frank pledge shall be so done, that our peace may be kept; (5) and that the tything be wholly kept as is the custom, (6) and that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his view making in the time of King Plenry our grandfather.
CHAPTER XXXVI.
164. It shall not be lawful from henceforth, for any to give his lands to any religious house, and to take the same lands again to hold of the same house. Nor shall it be lawful to any house of religion to take the lands of any and to lease the same to him of whom he received it. If any from henceforth give his lands to any religious house, and thereupon be convict, the gift shall be utterly void and the land shall accrue to the Lord of the fee.
CHAPTER XXXVII.
165. Escuage from henceforth shall be taken like as it was

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CONSTITUTIONAL DOCUMENTS.

[ 194

wont to be in the time of King Henry our grandfather ; reserving to all archbishops, bishops, abbots, priors, templars, hospitallers, earls, barons, and all persons, as well spiritual as temporal, all their free liberties, and free customs, which they have had in times past. (2) And all these customs and liberties aforesaid, which we have granted to be holdeii within this our realm, as much as appertaineth to us and our heirs, we shall observe; (3) and all men of this our realm, as well spiritual as temporal (as much as in them is) shall observe the same against all persons in likewise. (4) And for this our gift and grant of these liberties, and of other contained in our charter of liberties of our forests, the archbishops, bishops, abbots, priors, earls, barons, knights, freeholders, and other our subjects, have given unto us the fifteenth part of all their movables. (5) And we have granted unto them on the other part,, that neither we nor our heirs shall procure or do anything whereby the liberties in this charter contained, shall be infringed or broken. (6) And if anything be procured by any person contrary to the premises, it shall be had of no force nor effect. These being witnesses: Lord B. archbishop of Canterbury, E. bishop of London, I. bishop of Bathe, P. of Winchester, H. of Lincoln, R. of Salisbury, W. of Rochester, W. of Worcester, I. of Ely, H. of Hereford, R. of Chichester, W. of Exeter, bishops : The abbott of St. Elmonds, the abbott of St. Albans, the Abbott of Bello, the abbott of St. Augusties in Canterbury, the abbott of Evesham, the abbott of Westminster, the abbott of Bourgh St. Peter, the abbott of Reding, the abbott of Abendon, the abbott of Malmsbury, the abbott of Winchcomb, the abbott of Hyde, the abbott of Certesey, the abbott of Sherburn, the abbott of Cerne, the abbott of Abotebirr the abbott of Middleton, the abbott of Celeby, the abbott of Cirencester; H. de Burgh, justice, H. Earl of Chester, and Lincoln W. Earl of Salisbury, W. Earl of Warren, G. deClare, Earl of Gloucester and Hereford, W. de Ferrers, earl of Derby, W. deMandeville, earl of Essex, H. de Bygod, earl of Norfolk, W. Earl of Albemarle, H. Earl of Hereford, I Constable of Chester, R. de Ros, R. Fitzwalter, R. de Vyponte, W. de Bruer, R. de Muntericher, P. Fitzherbert, W. deAubine, F. Gresly, F. de Brus, I. de Monemu, I. Fitzallen H. de Mortimer, W. de Beauchamp, W. de St. John, P. de Mauley, Brian de Lisle, R. de Argenteyn, G. de Balu, and others. Given at Westminster the eleventh day of February, in the ninth year of our reign.

195 ]

MAGNA CHARTA.

[ 166

166. We, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually, and by the tenor of these present do renew the same; willing and granting for us, and our heirs, that this charter, and all and singular his articles, forever shall be steadfastly firmly, and inviolably observed; and if any article in the same charter con tained, yet hitherto, peradventure, hath not been kept, we will, and by authority royal command, from henceforth they be observed. In witness whereof, we have caused these our letters patents to be made, T. Kdward, our son at Westminster, the twelfth day of October, in the twenty-fifth year of our reign.

167-168] CONSTITUTIONAL DOCUMENTS.

[196

PETITION OF RIGHT.
THIRD' YAR OF CHARLES I, A. D. 1627.
The petition exhibited to His Majesty by the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, concerning divers rights and Liberties of the Subjects, "with the King's Royal Answer thereunto in full Parliament.
To the King's most excellent Majesty:
167. J-Tumbly show unto our sovereign Lord, the King the lords spiritual, and temporal, and commons in parliament as sembled that whereas it is declared and enacted, by a statute made in the time of the reign of King Edward the first., commonly called Statutum de Tallagio 11011 Concedonto, that no tallage or aid shall be laid or levied by the King or his heirs in this realm, -without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of the commonality of this realm; (2) and by authority of the parliament holden in the five-and-twentieth year of the reign of King Edward the third, it is declared and enacted that from thenceforth no person should be compelled to make any loans to the King against his will, be cause such loans were against reason and the franchise of the land; (3) and by other laws of this realm it is provided, that none should be charged by any charge or imposition, called a benevolence, nor by such like charge; (4) by which the statutes before mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom, that they.should not be compelled to contribute to any tax, tallage, aid or other like charge not set by com mon consent in parliament.
168. (II) Yet nevertheless, of late divers commissions di rected to sundry commissioners in several counties, with instruc tions, have issued; by means whereof your people have been in divers places assembled, and required to lend certain sums of money unto your majesty, and many of them, upon their refusal so to do, have had an oath administered unto them not warrantable by the laws or statutes of this realm, and have been constrained

197 ]

MAGNA CHARTA,

[ 169-172

to become bound to make appearance and give attendance before your privy council and in other places, and others of them have been therefore imprisoned and fined, and sundry other ways mo lested, and disquieted; (2) and divers other charges have been laid and levied upon your people in several Counties, by lord lieutenants, deputy lieutenants, commissioners for musters, justices of the peace and others, by command or by direction from your Majesty, or your privy council, against the laws and free customs of this realm.

169. (Ill) And whereas also by the statute called the Great Charter of the liberties of Kngland, it is declared and enacted, that no freeman shall be taken or imprisoned, or be disseised of his freehold or liberties, or his free customs, or be outlawed, or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.
170. (IV) And in the eight-and-twentieth year of the reign of King Kdward the third, it was declared and enacted by au thority of parliament, that no man of what estate or condition that he may be, should be taken out of his land or tenements, nor taken nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law.
171. (V) Nevertheless against the tenor of said statutes and other the good laws and statutes of your realm to that end pro vided, divers of your stibjects have of late been imprisoned without any cause showed; (5) and when for deliverance, they were brought before your justices by your Majesty's Writ of Habeas Corpus, there to undergo, and receive as the Court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command, signified by the I_,ords of your privy council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to law.

172. (VI) And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their will have been compelled to re ceive them into their houses, and there to sojourn, against the laws

173-175 ] CONSTITUTIONAL DOCUMENTS.

[ 198

and customs of this realm, and to the great grievance and vexation of the people.

173. (VII) And whereas also by authority of parliament, in the five and twentieth year of the reign of King Edward the third, it is declared and enacted, that no man should be forejudged of life or limb against the form of the great Charter, and the law of the land ; (2) and by the said Great Charter, and other the laws and statutes of this your realm, no man ought to be adjudged to death but by the laws established in this your realm, either by the customs of the same realm or by acts of parliament; (3) and whereas no offender of what kind soever, is exempted from the proceedings to be used, and punishments to be inflicted by the laws and statutes of this your realm, nevertheless of late, time divers commissions under your Majesty's great seal have issued forth, by which certain persons have been assigned and appointed com missioners with power and authority to proceed within the land, according to the justices of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, and by such summary course and order as is agreeable to martial law, and as is used in armies in time of war, to proceed to the trial and condemnation of such offenders, and them to cause to be executed and put to death according to the law martial.

174. (VIII) By pretext whereof some of your Majesty's subjects have been, by some of the said commissioners, put to death when and where, if by the laws and statutes of the land they have deserved death, by the same laws and statutes also they might, and by no other ought to have been judged and executed.

175. (IX) And also sundry grievous offenders, by colour thereof, claiming an exemption, have escaped the punishments due to them by laws and statutes of this your realm, by reason that di vers of your officers and ministers of justice have unjustly refused or foreborne to proceed against such offenders according to the same laws and statutes, upon pretence that the said offenders were punishable, only by martial law, and by authority of such commissions as aforesaid, ( 2 ) which commissions, and all other of like nature, are wholly, and directly contrary, to the said laws and statutes of this your realm.

199 ]

PETITION OF RIGHT.

[ 176-177

176. (X) They do therefore humbly pray your most excel lent Majesty, that no man hereafter be compelled to make or yield, any gift loan, benevolence, tax, or such like charge, without com mon consent by act of parliament; (2) and that none be called to make answer or take such oath, or to give attendance or be con fined or otherwise molested or disquieted concerning the same, or for refusal thereof; (3) and that no freeman in any such manner as before mentioned, be imprisoned or detained; (4) and that your majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burthened in time to come ; (5) and that the aforesaid commissions for proceeding by martial law may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatso ever, to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed, or put to death, contrary to the laws and franchises of this land.

177. (XI) All of which they most humbly pray of your most excellent majesty as their rights and liberties, according to the laws and statutes of this realm; and that your majesty would also vouch-safe to declare, that the awards, doings and proceedings, to the prejudice of your people in any of the premises shall not be drawn hereafter into consequence or example; (2) and that your majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid, all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honor of your majesty and the prosperity of the kingdom.

178-179] THE HABEAS CORPUS ACT.

[ 200

THE HABEAS CORPUS ACT.
STATUTE 31 CHARLES II, en. 2; A. D. 1680.
An Act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas.
178. Whereas great delays have been used by sheriffs, jail ers, and other officers to whose custody any of the king's subjects have been committed for criminal or supposed criminal, in making returns of writs of habeas corpus to them directed, by standing out an alias and pluries habeas corpus, and sometimes more, and by other shifts to avoid their yielding obedience to such writs con trary to their duty and the known laws of the land, whereby many of the king's subjects have been and hereafter may be long de tained in prison, in such cases where by law they are bailable, to their great charges and vexation.
179. For the prevention whereof, and the more speedy re lief of all persons imprisoned for such criminal or supposed crim inal matters ; be it enacted, That whensoever any person or persons shall bring habeas corpus directed unto any sheriff or sheriffs, jailer, minister or other person whatsoever, for any person in his or their custody, and the said writ shall be served upon said officer, or left at the jail or prison with any of the under officers, under keepers, or deputy of the said officers or keepers, that the said officer or officers, his or their under officers, under keepers or deputies, shall, within three days after the service thereof as afore said, (unless the commitment aforesaid were for treason or felony, plainly and specially expressed in the warrant of commit ment), upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the judge or court that awarded the same, and endorsed upon the said writ, not exceeding twelve pence per mile, and upon security given by his own bond to pay the charges of carrying back the prisoner, if he shall be remanded by the court or judge to which he shall be brought according to the true intent of the present act, and that he will not make any escape by the way, make return of such writ, and bring or cause to be brought the body of the party so committed or restrained,

201 ]

THE HABEAS CORPUS ACT.

[ 180

unto or before the Lord Chancellor, or lord keeper of the Great Seal of England for the time being, or the judges or barons of the said court from -whence the said writ shall issue, or unto and before such other person or persons before whom the said writ is made returnable, according to the command thereof; and-shall then like wise certify the true causes of his detainer or imprisonment unless the commitment of the said party be in any place beyond the dis tance of twenty miles from the place or places where such court or person is or shall be residing; and if beyond the distance of twenty miles, and not above one hundred miles, then within the space of ten days, and if beyond the distance of one hundred miles, then within the space of twenty days, after such delivery aforesaid, and not longer.

180. And to the intent that no sheriff, jailer or other officer, may pretend ignorance of the import of any such writ; Be it en acted by the authority aforesaid, That all such writs shall be marked in this manner, per statutum tricessimo primo, Caroli Secundi Regus, and shall be signed by the person that awards the same; and if any person or persons shall be or stand committed or de tained as aforesaid for any crime, unless for felony or treason, plainly expressed in the warrant of commitment, in the vacation time, and out of term, it shall and may be lawful to and for the person or persons so committed or detained (other than persons convicted or in execution by legal process), or anyone on his or their behalf, to appeal or complain to the Lord Chancellor or lord keeper, or any of his Majesty's justices either of the one bench or of the other, or the barons of the exchequer of the degree of the coif; and the said Lord Chancellor, lord keeper, justices, or barons, or any of them, tipon view of the copy or copies of the warrant or warrants of commitna^nt and detainer, or otherwise upon oath made, that such copy or copies were denied to be given by such person or persons in whose custody the prisoner or prison ers is or are detained, are hereby authorized and required, upon request made in writing by such person or persons, or any on his, her, or their behalf, attested and subscribed by two witnesses who were present at the delivery of the same, to award and grant an habeas corpus under the seal of such court whereof he shall then be one of the judges, to be directed to the officer or officers, in. whose custody the party so committed or detained shall be returnable im mediate before the said lord chancellor or lord keeper, or such

181-182 ] CONSTITUTIONAL DOCUMENTS. ____[202
justice, baron, or any other justice or baron of the degree of the coif, of any of the said courts ; and upon service thereof as afore said, the officer or officers, his or their under officer or under officers, under keeper or under keepers, or their deputy, in whose custody the party is so committed or detained, shall, within the time respectively before limited, bring- such prisoner or prisoners, before the said lord chancellor or lord keeper; or such justices, barons, or one of them,, before whom the said writ is made re turnable, and in case of his absence before any other of them, with the return of such writ, and the true causes of the commit ment and detainer ; and thereupon, within two days after the party shall be brought before them, the said lord chancellor, or lord keeper, or such justice or baron, before whom the prisoner shall be brought as aforesaid, shall discharge the said prisoner from his imprisonment, taking his or their recognizance, with one or more surety or sureties in any sum, according to their discretions, hav ing regard to the quality of the prisoner and nature of the offence, for his or their appearance in the court of king's bench the term following, or at the next assizes, sessions or general jail delivery of and for such county, city or place, where the commitment was, or "where the offence was committed, or in such other court where the said offence is properly cognizable, as the case shall require, and then shall certify the said writ, with the return thereof, and the said recognizance or recognizances into the said court where such appearance is to be made; unless it shall appear unto the said lord chancellor or lord keeper, or justice or justices, or baron or barons, that the party so committed is detained upon a legal process, order, or warrant, out of some court that hath jurisdic tion of criminal matters, or by some warrant signed and sealed with the hand and seal of any of the said justices or barons, or some justice or justices of the peace, for such matters or offences, for the which by the law the prisoner is not bailable.
181. Provided always, and be it enacted, That if any person shall have wilfully neglected, by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, such person so wilfully neglecting shall not have any habeas corpus to be granted in vacation time in pursuance of this act.
182. If any officer or officers, his or their under officer or under officers, under keeper, or under keepers, or deputy, shall

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neglect or refuse to make the returns aforesaid, or to bring the body or bodies of the prisoner or prisoners according to the com mand of the said writ within the respective time aforesaid, or upon demand made by the prisoner, or person in his behaH, shall refuse to deliver, or within the space of six hours after demand shall not deliver to the person so demanding a true copy of the warrant or warrants of commitment and detainer of such prisoner, which he and they are hereby required to deliver accordingly; and every the head jailers and keepers of such prisons, and such other person in whose custody the prisoner shall be detained, shall for the first offence forfeit to the prisoner or party grieved the sum of one hundred pounds, and for the second offence the sum of two hun dred pounds, and shall and is hereby made incapable to hold or execute his said office; the said penalties to be recovered by the prisoner or party grieved, his executors, or administrators, against such offender, his executor or administrators, by any action of debt, suit, bill, plaint or information, in any of the king's court at Westminster, wherein no essoine, protection, privilege, injunction, wages of law, or stay of prosecution, by non vult ulterius prosequi or otherwise, shall be admitted or allowed, or any more than one imparlance; and any recovery or judgment at the suit of any party grieved shall be a sufficient conviction for the first offence; and any after recovery, or judgment at the suit of a party grieved for any offence after the first judgment, shall be a sufficient conviction to bring- the officers or person within the said penalty for the sec ond offence.

183. And for the prevention of unjust vexation, by reiter ated commitments for the same offence; Be it enacted, etc., That no person or persons which shall be delivered or set at large upon any habeas corpus, shall at any time hereafter be again imprisoned or committed for the same offence by any person or persons what soever other than by the legal order and process of such court, wherein he or they shall be bound by recognizance to appear, or other court having jurisdiction of the cause; and if any other person or persons, shall knowingly, contrary to this act, recommit, or imprison, or knowingly procure, or cause to be recommitted or imprisoned, for the same offence or pretended offence, any person or persons delivered or set at large as aforesaid, or be knowingly aiding or assisting therein, then he, or they shall forfeit to the prisoner or party grieved the sum of five hundred pounds; any

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colourable pretence or variation in the warrant or -warrants of commitment notwithstanding, to be recovered as aforesaid.

184. Provided always, and be it further enacted, That if any person or persons shall be committed for high treason or felony, plainly and specially expressed in the warrant of commitment, upon his prayer or petition in open court the first week of the term, or first day of the sessions of oyer and terminer and general jail delivery, to be brought to his trial shall not be indicted, some time in the next term, sessions of oyer and terminer or general jail delivery, after such commitment; it shall and may be lawful to and for the judges of the court of king's bench and justices of oyer and terminer or general jail delivery, and they are hereby re quired, upon motion to them made in open court the last day of the term, sessions or jail delivery, either by the prisoner or anyone in his behalf, to set at liberty upon bail, unless it appear to the judges and justices, upon oath made, that the witnesses for the king1 could not be produced the same term, sessions or general jail delivery; and if any person or persons committed as aforesaid, upon his prayer or petition in open court the first week of the term or first day of the sessions of oyer and terminer and general jail delivery, to be brought to his trial, shall not be indicted and tried the second term, sessions of oyer and terminer or general jail delivery, after his commitment, or upon his trial shall be acquitted, he shall be dis charged from his imprisonment.

185. Provided always, that nothing in this act shall extend to discharge out of prison any person charged in debt 01* other actions or with process in any civil cause, but that after he shall be discharged of his imprisonment for such his criminal offence, he shall be kept in custody according to law for such other suit.
186. Provided always, and be it enacted, etc., That if any person or persons, subjects of this realm, shall be committed to any prison, or in custody of any officer or officers whatsoever, for any criminal or supposed criminal matter, that the said person shall not be removed from the said prison and custody into the custody of any other officer or officers, unless it be by habeas corpus or some other legal writ; or where the prisoner is delivered to the constable or other inferior officer to carry such prisoner to some common jail; or where any person is sent by order of any judge

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of assize or justice of the peace, to any common work-house, or house of correction; or where the prisoner is removed from one prison or place to another within the same county, in order to his or her trial or discharge in due course of law ; or in case of sudden fire, or infection, or other necessity; and if any person or persons shall, after such commitment aforesaid, make out and sign, or countersign any warrant or warrants for such removals aforesaid, contrary to this act, as well he that makes or signs or countersigns such warrant or warrants, as the officer or officers that obey or execute the same, shall suffer and incur the pains and forfeitures in this act before mentioned, both for the first and second offence respectively, to be recovered in manner aforesaid by the party grieved.

any of the courts aforesaid, in vacation time, upon view of the copy or copies of the warrant or warrants of commitment or de tainer, or upon oath made that such copy or copies were denied as aforesaid, shall deny any writ of habeas corpus by this act re quired to be granted, being moved for as aforesaid, they shall severally forfeit to the prisoner or party grieved, the sum of five hundred pounds, to be recovered in manner aforesaid.
188. An habeas corpus according to the true intent and meaning of this act, may be directed and run into any county palatine, the cinque ports, or other privileged places, within this kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the islands of Jersey or Guernsey, any law or usage to the contrary notwithstanding.
189, And for preventing illegal imprisonments in prisons beyond the seas, Be it further enacted, etc., That no subject of this realm that now is, or hereafter shall be a resident or inhabitant of the kingdom of England, Dominion of "Wales, or town of Ber wick upon Tweed, shall or may be sent prisoner into Scotland,

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Ireland, Jersey Guernsey, Tangier, or into parts, garrisons, islands or places beyond the seas, which are or at any time hereafter shall be within or without the dominions of his majesty, his heirs or successors ; and that every such imprisonment is hereby enacted and adjudged to be illegal; and that if any of the said subjects now is or hereafter shall be so imprisoned, every such person and persons so imprisoned, shall and may, for every such imprison ment maintain by virtue of this act an action or actions of false imprisonment in any of his majesty's courts of record, against the person or persons by whom he or she shall be so committed, detained, imprisoned, sent prisoner, or transported, contrary to the true meaning of this act; and against all or any person or per sons that shall frame, contrive, write, seal or countersign any war rant or writing for such commitment, detainer, imprisonment, or transportation, or shall be advising, aiding, or assisting in the same, or any of them; and the plaintiff in every such action shall obtain judgment to recover his treble costs, besides damages, -which damages so to be given, shall not be less than five hundred pounds ; in which action no delay, stay or stop of proceeding by rule, order, or command, nor no injunction, protection or privilege whatsoever, nor any more than one imparlance shall be allowed, excepting such rule of the court wherein the action shall depend, made in open court, as shall be thought in justice necessary, for special cause to be expressed in the said rule, and the person or persons who shall knowingly frame, contrive, write, seal or countersign any war rant for such commitment, detainer or transportation, or shall so commit, detain, imprison, or transport any person or persons con trary to this act, or be any ways advising, aiding, or assisting therein, being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within the said realm of England, dominion of Wales, or town of Berwick upon Tweed, or any of the islands, territories or dominions thereunto belonging; and shall incur and sustain the pains, penalties and for feitures limited, ordained, and provided in and by the statute of provision and prse munire made in the 16th year of King Richard the second; and be incapable of any pardon from the king, his heirs or successors, of the said forfeitures, losses, or disabilities, or any of them.

190. Provided always, That nothing in this act shall extend to give benefit to any person who shall by contract in writing agree

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with any merchant or owner of any plantation, or other person whatsoever to be transported to any parts beyond the seas, and receive earnest upon such agreement, although that afterwards such person shall renounce such contract.

191. Provided always, and be it enacted, That if any person or persons lawfully convicted of any felony, shall in open court pray to be transported beyond the seas, and the court shall think fit to leave him or them in prison for that purpose, such person or persons may be transported to any parts beyond the seas; this act or anything therein contained, to the contrary notwithstanding.

192. Fixes the commencement of the operation of the act at the first day of June, 1769.

193, Provided also, That if any person or persons at any time resident in this realm, shall have committed any capital of fence in Scotland or Ireland, or any of the islands or foreign plantations of the king-, his heirs or successors, where he or she ought to be tried for such offence, such person or persons may be sent to such place, there to receive such trial, in such manner as the same might have been used before the making1 of this act, any thing herein contained to the contrary notwithstanding.

194. Provided also, and be it enacted, That no person or persons shall be sued, impleaded, molested, or troubled for any offence against this act, unless the party offending be sued or im pleaded for the same within two years at the most after such time wherein the offence shall be committed, in case the party grieved shall not be then in prison, and if he shall be in prison, then within the space of two years after the decease of the person imprisoned, or his or her delivery out of prison, which shall first happen.

195. And to the intent no person may avoid his trial at the assizes or general jail delivery, by procuring his removal before the assizes, at such time as he cannot be brought back to receive his trial there; Be it enacted, That after the assizes proclaimed for that county where the prisoner is detained, no person shall be removed from the common jail upon any habeas corpus granted in pursuance of this act, but upon any such habeas corpus snail

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be brought before the judge of assize in open court, who is there upon to do, -what to justice shall appertain.

196. Provided nevertheless, That after the assizes are ended, any person or persons detained, may have his or her habeas corpus according to the direction and intention of this act.

197. If any information, suit or action shall be brought or exhibited against any person or persons for any offence committed or to be committed against the form of this law, it shall be lawful for such defendants to plead the general issue, that they are not guilty, or that they owe nothing, and to give such special matter in evidence to the jury that shall try the same, which matter being pleaded had been good and sufficient matter in law to have dis charged the said defendant or defendants against the said informa tion, suit, or action, and the said matter shall be then as available to him or them, to all intents or purposes, as if he or they had sufficiently pleaded, set forth, or alleged the same matter in bar or discharge of said information, suit or action.

198. And because many times persons charged with petty treason or felony, or as accessaries thereunto, are committed upon suspicion only, whereupon they are bailable, or not, according as the circumstances making out that suspicion, are more or less weighty, which are best known to the justices of the peace that com mitted the persons, and have the examinations before them, or to other justices of the peace in the county; Be it therefore enacted, that where any person shall appear to be committed by any judge or justice of the peace, and charged as accessary before the fact, to any petty treason or felony; or upon suspicion thereof, or with suspicion of petty treason or felony, which petty treason or felony shall be plainly and specially expressed in the warrant of com mitment, that such person shall not be removed or bailed by virtue of this act, or in any other manner than they might have been be fore the making of this act.

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BILL OF RIGHTS.

[ 199-204

BILL OF RIGHTS.

FIRST YEAR OF WILLIAM AND MARY, A. E>. 16S9.

An act Declaring the Rights and Liberties of the Subject, and settling the succession of the Crown.

199. Whereas the lords spiritual and temporal, and com mons, assembled at Westminster, lawfully, fully and freely repre senting, all the estates of the people of the realm, did upon the thirteenth day of February in the year of our Lord, one thousand six hundred and eighty-eight, present unto their majesties, then called and known by the names and styles of William and Mary, Prince and Princess of Orange, being present in their proper per sons, a certain declaration in writing, made by the said lords and commons, in the words following, namely:
Whereas the late King James the second, by the assistance of divers evil counsellors and judges and ministers, employed by him, did endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom.

200. (I) By assuming and exercising a power of dispens ing with and suspending of laws, and the execution of laws, without consent of parliament.

201. (II) By committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring1 to the said assumed power.

202. (Ill) By issuing and causing to be executed a com mission under the great seal for erecting a court called the court of commissioners for ecclesiastical causes.

203. (IV) By levying money for and to the use of the crown, by pretence of prerogative, for other time and in other manner, than the same was granted by parliament.

204. (V) By raising and keeping a standing army within the kingdom in time of peace, without consent of parliament, and quartering soldiers contrary to law.

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205. (VI) By causing several good subjects, being protestants, to be disarmed, at the same time when papists, were both armed and employed contrary to law.

206. (VII) By violating the freedom of election of mem bers to serve in parliament.

207. (VIII) By prosecutions in the court of King's bench, for matters and cause cognizable only in parliament, and by divers other arbitrary and illegal courses.

208. (IX) And whereas of late years, partial, corrupt, and unqualified persons have been returned and served on juries in trial and particularly divers juries in trials for high treason, which were not freeholders.

209. (X) And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.

210. (XI) And excessive fines have been imposed; and il legal and cruel punishments inflicted.

211. (XII) And several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons upon whom the same were to be levied.
All which are utterly and directly contrary to the known laws and statutes and freedom of this realm.
And whereas the said late King James the Second, having abdicated the government, and the throne being thereby vacant, his highness the Prince of Orange (whom it have pleased Al mighty God to make the glorious instrument o'f delivering this kingdom from popery and arbitrary power) did (by the advice of the lords spiritual and temporal, and divers principal persons of the commons) caused letters to be written to the lords spiritual and temporal, being protestants; and other letters to the counties, cities, universities, boroughs, and cinque-ports, for the choosing of such persons to represent them, as were of right to be sent to parliament, to meet and sit at Westminster, upon the two and twentieth day of January, in the year one thousand six hundred and eighty-eight, in order to such an establishment, as that their religion,

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laws and liberties, might not again be in danger of being subverted; upon which letters, elections having been accordingly made.
And thereupon the said lords spiritual and temporal, and com mons pursuant to their respective letters and elections, being now assembled in a free and full representative of this nation taking into their most serious consideration the best means for attaining the ends aforesaid; do in the first place (as their ancestors in like case have usually done) for the vindicating- and asserting their an cient rights and liberties, declare:

212. (I) That the pretended power of suspending of laws or the execution of laws, by regal authority, without consent of parliament is illegal.

213. (II) That the pretended power of dispensing with laws, or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal.

214. (Ill) That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature, are illegal and pernicious.

215. (IV) That levying money for, and to the use of the crown, by pretence of prerogative, without grant of parliament for longer time, or in other manner, than the same is or shall be granted, is illegal.

216. (V) That it is the right of subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal.

217. (VI) That the raising or keeping a standing army within the kingdom, in time of peace, unless it be with consent of the parliament, is against law.

218. (VII) That the subjects which are protcstants may have arms for their defence, suitable to their conditions, and as allowed by law,

219. (VIII) That election of members of parliament ought to be free.

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220. (IX) That the freedom of speech, and debates or pro ceeding's in parliament, ought not to be impeached or questioned in any court or place out of parliament.

221. (X) That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments in flicted.

222. (XI) That jurors ought to be duly impanneled and re turned, and jurors which pass upon men in trials for high treason ought to be freeholders.

223. (XII) That all grants and promises of fines and for feitures of particular persons before conviction, are illegal and void.

224. (XIII) And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently.
And they do claim, demand and insist, upon all and singular the premises, as their undoubted rights and liberties, and that no dec larations, judgments, doings or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example.

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CHARTER OF THE PROVINCE. [ 225-226

CHARTER OF THE PROVINCE OF GEORGIA.
FIFTH YSAR GEORGE II, A. D. 1732.
225. George, the second, by the grace of God, of Great Brit ain, France, and Ireland, king, defender of the faith, and so forth, to all to whom these presents shall come, greeting:
226. Whereas we are credibly informed, that many of our poor subjects are, through misfortunes and want of employment, reduced to great necessity, in so much as by their labor they are not able to provide a maintenance for themselves and families ; and if they had means to defray their charges and passage, and other expenses incident to new settlements, they would be glad to settle in any of our provinces of America; whereas by cultivating the lands at present waste and desolate, they might not only gain a comfortable subsistence, for themselves and families, but also strengthen our colonies and increase the trade, navigation and wealth of these our realms. And whereas our provinces in North America have been frequently ravaged by Indian enemies, more es pecially that of South Carolina, which in the late war by the neigh boring savages, was laid waste by fire and sword, and great numbers of English inhabitants miserably massacred, and our loving subjects who now inhabit them, by reason of the smallness of their numbers, will, in case of a new war, be exposed to the late calamities, inas much as their whole southern frontier contintieth unsettled, and lieth open to the savages. And whereas we think it highly becom ing our crown and royal dignity, to protect all of our loving subjects, be they ever so distant from us, to extend our fatherly compassion even to the meanest and most infatuated of our people, to relieve the wants of our above mentioned poor subjects; and that it will be highly conducive for accomplishing those ends, that a regular colony of the said poor people be settled and established in the southern territories of Carolina. And whereas we have been well assured, that if we will be graciously pleased to erect and settle a corporation, for the receiving, managing and disposing of the con tributions of our loving subjects ; divers persons would be induced to contribute to the purposes aforesaid.

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g 227. Know ye, therefore, that we have, for the consideration aforesaid, and for the better and more orderly carrying 011 of the said good purposes of our special grace, certain knowledge and mere motion, willed, ordained, constituted and appointed, and by these presents, for us, our heirs and successors, do will, ordain,

orpe, eorge eacoe, omas ower, oer oore, oer Hucks, Roger Holland, Williams Sloper, Frances Eyles, John Laroche, James Vernoii, Williams Beletha, Ksqrs., A. M.; John Burton, B. D., Samuel Smith, A. M., Richard Buncly, A. M., Ar thur Bedford, A. M., Adam Anclerson, and Thomas Corarie, gents, and such other persons as shad be elected in the manner herein after mentioned, and their successors to be elected in the manner hereinafter directed, be, and shall be, one body politic and corporate in deed, and in name, by the name of The Trustees for establishing the colony of Georgia in America, and them and their successors by the same name, we do, by these presents, for us and our heirs and successors, really and fully make, ordain, constitute and declare, to be one body politic in deed and in name, forever; and that by the same name, they and their successors, shall, and may have perpetual succession; And. that they and their successors by that name, shall and may forever, hereafter, be persons able, and capable in law, to purchase, have, take, receive and enjoy, to them and their succes sors, any manors, messuages, lands, tenements, rents aclvowsons, liberties, privileges, jurisdictions, franchises, and other heredita ments whatsoever, lying and being in Great Britain, or any part thereof, of whatsoever nature, kind or quality, or value they be, in fee and in perpetuity, not exceeding the yearly value of one thous and pounds, beyond reprises ; also estates for lives, and for years, and for all other manner of goods, chattels and things -whatsoever they be, for the better settling and supporting, and maintaining the said colony, and other uses aforesaid ; and to give, grant, let and demise the said manors, messuages, lands, tenements, hereditaments, goods, chattels, and things whatsoever aforesaid, by lease or leases, for term of years, in possession at the time of granting thereof, and not in reversion, not exceeding the term of thirty-one years, from the time of granting thereof, on which, in case no fine be taken, shall be reserved the full and in case a fine to taken, shall be reserved, at least a moiety of the value

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that the same shall reasonably and bona fide be worth at the time of such demise; And that they, and their successors, by the name aforesaid, shall, and may forever, hereafter be persons ably capable in the law, to purchase, have, take, receive and enjoy, to them and their successors, any lands, territories, possessions, tenements, jurisdictions, franchises, and hereditaments -whatsoever, lying and being in America, of what quantity, quality or value what soever they be, for the better settling, and supporting, and maintain ing the said colony; and that by the name aforesaid, they shall and may be able, to sue and be sued, plead and be impleaded, answer and be answered unto, defend and be defended in all courts and places whatsoever, and before whatsoever judges, justices, and other officers of us, our heirs and successors in all and singular actions, plaints, pleas, matters, suits and demands, of what kind, nature or quality soever they be, and to act and to do, all matters and things in as ample a manner and form as any other our liege subjects of this realm of great Britain ; And that they and their successors, forever hereafter, shall and may have a common seal, to serve for the causes and business of them and their successors ; and that it shall and may be lawful for them and their successors, to change, break, alter and make new the said seal, from time to time, and at their pleasure, and as they shall think best. And we do further grant for us, our heirs, and successors, that said corporation, and the common council of the said corporation, hereinafter by us appointed, may from time to time, and at all times, meet about their affairs, when and where they please, and transact and carry on the business of the said corporation.

228. And for the better execution of the purposes aforesaid, we do, by these presents, for us, our heirs and successors, further grant that they and their heirs and successors forever, may upon the third Tuesday, in the month of March, yearly, meet at some convenient place to be appointed by the said corporation, or a major part of them who shall be present at any meeting of the said cor poration, to be had for the appointing of the said place, and that they, or two thirds of them that may be present at such yearly meeting, and at no other meeting of the said corporation, between the hours of ten in the morning and four in the afternoon of the same clay, choose and elect such person or persons to be members of the said corporation, as they shall think beneficial to the good de signs of the said corporation. And our further will and pleasure is,

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that if it should happen, that any persons hereafter by us appointed, as the common council of the said corporation, or any other persons to be elected or admitted members, of the said common council in the manner hereinafter directed, shall die, the common council shall be increased to twenty-four; and that the same assembly at which such additional members of the said corporation shall be chosen, there shall likewise be elected, in the manner hereinbefore directed for the election of common council-men, nine persons to be the said common council-men, and to make up the number of twenty-four.

229. And our further will and pleasure is, that our trusty and well beloved Edward Digby, Esqr., shall be the first chairman of the common council of the corporation; and that that said lord vis count Percival shall be, and continue president of the said corpora tion, respectively, until the meeting which shall be had next and immediately after the first meeting of the said corporation, or of the common council of the said corporation respectively, and no longer; at "which said second meeting and every other subsequent and future meeting of the said corporation, or of the common coun cil of the said corporation respectively, in order to preserve an in different relation of the several offices of president of the corpora tion, and of chairman of the common council of the said corporation we do direct and ordain, that all and every the person and per sons, members of the said common council for the time being, and no other, being president at such meetings, shall severally and re spectively in their turns, preside at the meetings, which shall from time to time be held of the said corporation, or of the common coun cil of the said corporation respectively; and in case any doubt or question shall at any time arise, touching or concerning the right of any member of the said common council to preside at any meeting of the said corporation, or at the common council of the said cor poration, the same shall respectively be determined by the major part of the said corporation respectively, who shall be present at such meeting-. Provided always that no member of the said com mon council having served in the offices of president of the said corporation, or of chairman of the common council of the said cor poration, shall be capable of being, or of serving as president or chairman at any meeting of the said corporation or common council of the said corporation next and ensuing that in which he so served as president of the said corporation, or chairman of the said com-

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mon council of the said corporation, respectively, unless it shall so happen that at any such meeting of the said corporation, there shall not be any other member of the said common council present.

230. And our will and pleasure is, that at all and every of the meetings of the said corporation, or of the common council of the said corporation, the president, or chairman, for the time being, shall have a voice, and shall vote, and shall act as a member of the said corporation, at such a meeting1, and in such cases as an equality of votes, the said president or chairman for the time be ing shall have a casting vote. And our further will and pleasure is, that no president of the said corporation, or members of the said common council or corporation, by us by these presents ap pointed, or here after from time to time to be elected and appointed in manner aforesaid, shall have, take, or receive, directly, or in directly, any salary, fee, perquisite, benefit or profit whatsoever for or by reason of his or their serving the said corporation, as president, chairmen, or common councilmen, or as being a member of the said corporation. And our will and pleasure is, that said hereinbefore, appointed president, chairman, or common councilmen, and before he and they act respectively as such, shall sever ally take an oath for the faithful and due execution of their trust, to be administered to the president by the chief baron of our court of exchequer, for the time being, and by the president of the said corporation to the rest of the common council, who are hereby au thorized severally and respectively to administer the same. And our will and pleasure is that all and every person and persons, who shall have in his or their own name or names, or in the name or names of any person or persons in trust for him or them, or for his or their benefit, place, office, or employment of profit, under the said corporation, shall be incapable of being elected a member of the said corporation, and during such time as he shall be con tinued a member thereof, if he shall, in his own name or in the name of any person or persons, in trust for him, or for his benefit, have, hold, or exercise, accept, possess or enjoy, any ofKce, place or employment of profit, under the said corporation, or under the common council of the said corporation, such member, shall, from the time of his having, holding, exercising, possessing, and enjoy ing such office, place and employment of profit, cease to be a mem ber of the said corporation.

231-232 ] CONSTITUTIONAL DOCUMENTS. ___ [ 218
231. And we do for us, our heirs and successors, ordain and declare, that the major part of such of them as shall be present at any meeting of the said corporation, convened and assembled for that purpose, by a convenient notice thereof, shall have power from time to time, hereafter to authorize and appoint such persons as they shall think fit to take subscriptions, and to gather and collect such money as shall be by any person or persons contributed for the purposes aforesaid ; and shall and may revoke and make void such authorities and appointments, as often as they shall see cause so to do. And we do hereby, for us, our heirs and successors, or dain and direct, that the said corporation every year lay an account in writing before the chancellor, speaker or commissioners for the custody of the great seal of Great Britain of us, our heirs and suc cessors ; and the chief justice of the court of common pleas, and the chief of the exchequer of our heirs and successors for the time being, or any two of them, of all moneys and effects by them re ceived or expended, for the carrying on the good purposes afore said.
232. And we do hereby for us, our heirs and successors, give and grant unto the said corporation, and their successors, full power and authority to constitute ordain and make such and so many bylaws, institutions, orders and ordinances, as to them, or the greater part of them, at their general meeting for that purpose, shall deem necessary and convenient for the well ordaining and governing of the said corporation; and the said bylaws, constitu tions, orders and ordinances, or any of them to alter, and annul, as they, or the major part shall see requisite: and in and by such by-laws, rules, orders and ordinances, to sell, impose and inflict, reasonable pains and penalties upon any offender or offenders, who shall transgress, break or violate the said by-laws, constitutions, or ders and ordinances, so made as aforesaid, and to mitigate the same as they, or the major part of them present, shall think convenient; which said pains and penalties, shall and may be levied, sued for, taken, retained and recovered by the said corporation and their successors, by their officers and servants, from time to time, to be appointed for that purpose, by action of debt, or by any other lawful ways or means, to the use and behoof of the said corporation and their successors, all and singular: which by-laws, constitutions, orders and ordinances, pains and penalties, from time to time so made and imposed, shall be reasonable, and not contrary or repug-

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nant to the laws or statutes of this our realm; and that such by laws, constitutions, and ordinances., pains and penalties, from time to time, to be made and imposed, and any repeal or alteration thereof, or any of them may be likewise agreed to or established and confirmed by the said general meeting of the said corporation, to be held and kept next after the same shall be respectively made.

233. And whereas the said corporation intend to settle a colony, and to make an habitation and plantation on that part of our province of South Carolina in America, hereinafter described, know ye, that we greatly desiring the happy success of the said corporation, for their further encouragement in accomplishing" so excellent a work, have, of our aforesaid grace, certain knowledge and mere motion, given and granted, by these presents, for us, our heirs and successors, do give and grant to the said corporations and their successors, under the reservation limitations and declaration, hereafter expressed, seven undivided parts, the whole in eight equal parts to be divided, of all those lands, country and territories, situ ate, lying and being in that part of South Carolina, in America, which lies from the most northern part of a stream, or river there, commonly called the Savannah, all along the sea coast to the south ward, to the southern stream of another great water, or river called the Alatamaha, and westwardly from the heads of the said rivers respectively, in direct lines to the south seas; and all that share circuit and precinct of land, within the said boundaries, with the islands on the sea, lying opposite to the eastern coast of the said lands, within twenty leagues of the same; which are not in habited already, or settled by any authority derived from the crown of Great Britain, together with all the soils, grounds, havens, ports, gulfs and bays, mines, as well royal mines of gold and silver, as other minerals, precious stones, quarries, woods, rivers, waters, fish ings, as well royal fishing's of whale and sturgeon as other fishings, pearls, commodities, jurisdictions, royalties, franchises, privileges, and preeminences, within the said frontiers, and the precincts thereof and thereunto, in any sort belonging and appertaining, and which we, by our letters patent, may or can grant, and in as ample manner and sort as we may, or any our royal progenitors have hitherto granted to any company, body politic or corporate, or to any ad venturer or adventurers, undertaker or undertakers, of any dis coveries, plantation or traffic, of, in, or into any foreign port what soever and in as legal and ample manner as if the same were herein

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particularly mentioned and expressed, to have, hold, possess and enjoy, the said seven undivided parts, the -whole into eight equal parts to be divided as aforesaid, of all and singular the lands, countries and territories, with all and singular other the premises herein before, by these presents, granted or mentioned, or in
tended to be granted to them, the said corporation, and their suc cessors forever, for the better support of the said colony, to be holden of us, our heirs and successors, as of our Honorable ----------, of Hampton court, of otir courts of Middlesex in free and common soccage, and not in capjte yielding and paying therefor, to us, our heirs and successors, yearly, for ever, the sum of eleven shillings for every hundred acres of the said lands, which the said corporation shall grant, demise, plant or settle; the said payment not to com mence or to be made, until ten years after such grant, demise, plant
ing or settlement; and to be answered and paid to us, our heirs and successors, in such manner, and in such species of money, or notes, as shall be current in payment, by proclamation from time to time, in our said province of South Carolina. All which lands, countries, territories and premises, hereby granted or mentioned, and in
tended to be granted, \ve do, by these presents, make, erect and create one independent and separate province, by the name o f Georgia, by which name, we will the same henceforth be called. And that all and every person or persons, who shall at any time hereinafter inhabit or reside within our said province, shall be, and are hereby declared to be, free, and shall not be subject to be bound to obey any laws, orders statutes and constitutions, which have been heretofore made, ordered or enacted by, for, or as the laws, orders, statutes or constitutions of our said province of South Carolina (save and except only the command of the militia), of our said province of Georgia, to our governor for the time being of South Carolina, in manner hereafter declared ; but shall be sub ject to, and bound to obey such laws, orders, statutes and constitu
tions, as shall from time to time be made, ordered and enacted, for the better government of the said province of Georgia, in the man
ner heretofore declared.

234. And we do hereby for our heirs and successors, ordain, will and establish, that for and during- the term of twenty-one years, to commence from the date of these our lettes patents, the said corporation assembled for that purpose, shall and may form and prepare, laws, statutes and ordinances, fit and necessary for,

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and concerning the government of the said colony, and. not repug nant to the laws and statutes of England; and the same shall and may present under their common seal to us, our heirs and suc cessors, in our or their privy council, for our or their approbation or disallowance; and the said laws, statutes, and ordinances, being approved of by us, our heirs and successors, in our, or their privy council, shall from thenceforth be in full force and virtue within our said province of Georgia. And for as much as the good and prosperous success of the said colony cannot hut chiefly depend, next under the blessing of God, and the support of our royal au thority, upon the provident and good direction, of the whole enter prise, and that it will be too great a burthen upon all the members of the said, corporation to be convened so often as may be requisite, to hold meetings for the settling, supporting, ordering and main taining the said colony, therefore, we do will, ordain and establish, that the said common council for the time being of the said corpo ration, being assembled for that purpose, or the major part of them, shall from time to time, and at all times hereafter, have full power and authority to dispose of, extend and apply all moneys and ef fects belonging to the said corporation in such manner and ways, and by such expenses as they shall think best to conduce to the carrying on and effecting the good purposes herein mentioned and intended: And also shall have full power in the name and on ac count of the said corporation, and with and under their common seal, to enter under any covenants or contracts for carrying on and effecting the purposes aforesaid. And our further will and pleasure is that the said common council for the time being, or the major part of such common council, which shall be present and as sembled for that purpose, from time to time, and at all times here after, shall and may nominate, constitute and appoint a treasurer or treasurers, secretary or secretaries, and such other officers, min isters and servants of the said corporation, as to them, or the major part of them as shall be present, shall seem proper or requisite for the good management of their affairs; and at their will and pleasure to displace, remove and put out such treasurer or treasurers, secretary or secretaries, and all such other officers, ministers and servants, as often as they shall think fit so to do, and others in the room, office, place or station of him, or them so dis placed, removed or put out, to nominate, constitute and appoint; and shall and may determine and appoint such reasonable salaries, perquisites and other rewards for their labor, or service of such offi-

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cers, servants and persons as to the said common council shall seem meet; and all such officers, servants and persons shall, before the acting in their respective offices, take an oath, to be to them ad ministered by the chairman for the time being of the said common council of the said corporation, "who is hereby authorized to admin ister the same, for the faithful and due execution of their respective offices and places. And our will and pleasure is that all such per sons and persons, who shall from time to time be appointed or chosen treasurer or treasurers, secretary or secretaries of the said corpora tion, in manner hereinafter directed, shall during1 such times as they shall serve in the said offices respectively, be incapable of being a member of the said corporation. In case any member shall die, or shall by writing under his or their hands respectively resign his or their office or offices of common councilman, or common councilmen ; the said corporation or the major part of such of them as shall be present, shall or may at such meeting on the said third Tuesday in March, yearly, in manner as aforesaid, next after such death or resignation, and at no other meeting of the said corpora tion, into the room of such person or persons, so dead or so resign ing, elect and choose one or more such person or persons, being members of the said corporation, as to them shall seem meet; and our will is, that all and every person or persons, which shall from time to time, hereafter be elected as common councilmen of the said corporation as aforesaid, do and shall, before he or they act, as common councilmen of the said corporation, take an oath for the faithful and due execution of their office; which oath the presi dent of the said corporation for the time being, is hereby authorized and required to administer to such person or persons elected as aforesaid. And our will and pleasure is that the first president of the said corporation is and shall be our trusty and well beloved, the said John, lord viscount Percival; and that the said president shall, within thirty days after the passing of this charter, cause a summons to issue to the several members of the said corporation, herein particularly named, to meet at such time and place as he shall appoint, to consult about and transact the business of the said corporation. And our will and pleasure is, and we, by these presents, for us, our heirs and successors, grant, ordain and direct, that the common council of this corporation shall consist of fifteen in number; and we do, by these presents nominate, constitute and appoint our right trusty and well beloved John, lord viscount Percival, our trusty and well beloved Edward Digby, George Car-

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penter, James Oglethorpe, George Heathcote, Thomas Laroche, James Vernon, William Beletha, Esqrs., and Stephen Hales, M. A., to be the common council of the said corporation, to continue in said office during their good behaviour.

235. And whereas it is our royal intention, that the members of the said corporation should be increased by election, as soon as conveniently may be, to a greater number than is hereby nominated: Our further will and pleasure is, and we do hereby, for us, our heirs and successors, ordain and direct, that the number of the members shall not increase so as to exceed twenty-four. And we do further, of our special grace, certain knowledge, and mere mo tion for us, our heirs and successors, grant, by these presents to the said corporation, and their successors, that it shall be lawful for them and their officers or agents, at all times hereafter to transport and convey out of the realm of Great Britain, or any other our dominions, into the said province of Georgia, to be there settled; and so many of our loving- subjects, or any foreigners that are will ing to become our subjects and live under our allegiance in the said colony, as shall be willing to go to inhabit, or reside there, with sufficient shipping, armour, weapons, powder, shot, ordinance, munition, victuals, merchandise and wares, as are esteemed by the wild people, clothing, implements, furniture, cattle, horses, mares, and all other things necessary for the colony, and for the use, and defence and trade with the people there, and in passing and re turning to and from the same. Also we do for ourselves and suc cessors, N declare by these presents, that all and every the said persons which shall happen to be born in the said province, and every of their children and posterity, shall have and enjoy, all liber ties, franchises, and immunities of free denizens and natural born subjects, within any of our dominions, to all intents and purposes, as if abiding and born within this, our kingdom of Great Britain, or any other dominion. And for the greater care and encourage ment of our loving subjects and such others as shall come to inhabit in our said colony, we do, by these presents, for us, our heirs and successors, grant, establish, and ordain, that forever hereafter, there shall be a liberty of conscience allowed in the worship of God, to all persons inhabiting, or which shall inhabit, or be resident within our said province, and that all such persons, except papists, shall have a free exercise of religion, so they be contented with the quiet and peaceable enjoyment of the same, not giving offence or scandal to the government.

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236. And our further will and pleasure is, and we do hereby for us, our heirs and successors, declare and grant that it shall and may be lawful, for the said common council, or major part of them, assembled for that purpose, in the name of the corporation, and under the common seal to distribute, convey, assign and set over, such particular portions of lands, tenements and hereditaments, by these presents granted to the said corporation, unto such our loving subjects, natural born denizens or others that shall be willing to be come our subjects, and live under our allegiance in the said colony, upon such terms and for such estates, and upon such rents reserva tions and conditions, as the same may be lawfully granted, and as to the said common council, or the major part of them so present, shall seem fit and proper. Provided always that no grants shall be made of any parts of the said lands unto any persons, being a member of the said corporation, or to any other person in trust for the benefit of any member of the said corporation, and that no person having any estate or interest in law or equity, in any parts of the said lands, shall be capable of being a member of said cor poration, during the continuance of such estate or interest. Pro vided also that no greater quantity of lands be granted, either en tirely, or in parcels, to, or for the use, or in trust for any one per son, than five hundred acres : and that all grants made contrary to the true intent and meaning hereof, shall be absolutely null and void. And we do hereby grant and ordain, that such person or per sons for the time being as shall be thereunto appointed by the said corporation, shall, and may at all times, and from time to time here after, have full power and authority to administer and give the oaths, appointed by an act of parliament, made in the first year of the reign of our late royal father, to be taken instead of the oaths of allegiance and supremacy; and also the oath of abjuration, to all and every person and persons, which shall at any time be in habiting1 or residing within our said colony: and in like cases to administer the solemn affirmation to any of the persons commonly called Quakers, in such manner as by the laws of our Great Britain, the same may be administered. And we do of our further grace, certain knowledge, and mere motion, grant, establish and ordain, for us, our heirs and successors, that the said corporation and their successors shall have full power and authority, for and during the term of twenty-one years, to commence from the date of these our letters patent, to erect and constitute judicatures, and courts of record, or other courts to be held in the name of us, our heirs and

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successors, for hearing and determining all manner of crimes, of fences, pleas, processes, plaints, actions, matters, causes and things whatsoever, arising or happening within the said provinces of Georgia, or between persons of Georgia, whether the same be criminal or civil, and whether the said crimes be capital or not capital, and whether the said pleas be real, personal or mixed: and for awarding and making out executions thereupon, to which courts and judicatures, we do hereby, for us, our heirs, and successors, give and grant full power and authority, from time to time to ad minister oaths for the discovery of truth, in any matter in contro versy, or depending before them, or the solemn affirmation, to any of the persons commonly called quakers, in such manner, as by the laws of our realm of Great Britain, the same may be administered. And our further will and pleasure is, that the said corporation and their successors, do from time to time, and at all times, hereafter, register, or cause to be registered, all such leases, grants, plantings, conveyances, settlements, and improvements whatsoever, as shall at any time be made hereafter by or in the name of the said corpo ration, of any lands, tenements, or hereditaments, within the said province; and shall yearly send and transmit, or cause to be sent and transmitted, authentic accounts of such leases, grants, con veyances, settlements and improvements respectively, into the auditor of the plantations for the time being, of our said provinces of South Carolina ; To whom we do hereby grant full power and au thority from time to time, as often as need shall require, to inspect and survey such of the said lands and premises, as shall be demised, granted and settled as aforesaid: which said survey and inspection, we do hereby declare to be intended to ascertain the quit-rents which shall from time to time become due to us, our heirs and suc cessors, according to the reservation hereinbefore mentioned, and for no other purposes, whatsoever; hereby for us, our heirs and successors, strictly enjoining and commanding, that neither our or their surveyor, or any person whatsoever, under the pretext and colour of making the said survey or inspection, shall take demand or receive, any gratuity, fee or reward, of or from any person or persons, inhabiting in the said colony, or from the said corporation, or common council of the same, on the pain of forfeiture of the said office or affairs, and incurring our highest displeasure. Pro viding always, and our further will and pleasure is, that all leases, grants, and conveyances to be made by, or in the name of the said corporation, of any lands within the said province, or a memorial
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containing the substance and effect thereof, shall be registered with the auditor of the said plantation of us, our heirs and successors, within the space of one year, to be computed from the date thereof, otherwise the same shall be void. And our further will and pleasure is, that the rents, issues and other profits, which at any time here after shall come to the said corporation, (shall be so managed and directed as the said corporation) or the major part of them, which shall be present at any meeting for that purpose, assembled, shall think, will most improve and enlarge the said colony, and best answer the good purpose hereinbefore mentioned, and for defray ing all other charges about the same. And our will and pleasure is that the said corporation and their successors, shall from time to time, give into one of the principal secretaries of the state, and to the commissioners of trade and plantations, accounts of the progress of said colony.

237. And our will and pleasure is, that no act done at any meeting of the said common council of the said corporation, shall be effective and valid, unless eight members at the least of the said common council, including the member who shall serve as chairman at the said meeting be present, and the major part of them consenting thereto. And our will and pleasure is, that the common council of the said corporation for the time being, or the major part of them who shall be present, being assembled for that pur pose, shall from time to time, for and during, and unto the full end and expiration of twenty-one years, to commence from the elate of these our letters patent, have full power and authority to nominate, make constitute and commission, ordain and appoint by such name or names, style or styles, as to them shall seem meet and fitting, all and singular, such governors, judges, magistrates, ministers and officers, civil and military, both by sea and land, within the said dis tricts, as shall by them be thought fit and needful to be made or used for the said government of the said colony; save always and except such offices only as shall by us, our heirs and successors, be from time to time constituted and appointed, for the managing, and collecting and receiving such revenues, as from time to time arise within the said province of Georgia, and become due to us, our heirs and successors. Provided always, and it is our will and pleasure, that every governor of the said province of Georgia to be appointed by the common council of the said corporation, before he shall enter upon or execute the said office of governor, shall be

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approved by us, our heirs or successors, and shall take such oaths, and shall qualify himself in such manner in all respects, as any gov ernor or commander in chief of any of our colonies or plantations in America, are by law required to do, and shall give good and sufficient security for observing the several acts of parliament re lating to trade and navigation, and to observe and obey all instruc tions that shall be sent to him by us, our heirs and successors, or any acting under our or their authority, pursuant to the said acts or, any of them. And we do by these presents, for us, our heirs and successors, will, grant, and ordain that the said corporation and their successors shhll have full power for and during, and until the full end and term of twenty-one years, to commence from the date of these our letters patent, by any commander or other officer or officers, by them for that purpose from time to time appointed, to train, and instruct, exercise and govern a militia, for the special defence and safety of our said colony, to assemble in martial array the inhabitants of the said colony, and to lead and to conduct them, and with them, to encounter, expulse, repel, resist and pursue by force of arms as well by sea as land, within or without the limits of our said colony, and also to kill, slay and destroy and conquer by all fighting ways, enterprises and means whatsoever, all and every such person or persons, as shall at any time hereafter, in any hostile manner, attempt or enterprise the destruction, invasion, detriment, or annoyance of our said colony; and to use and exercise the martial law in time of actual war and invasion or rebellion, in such cases where by law, the same may be used or exercised; and also from time to time to erect forts, and fortify any place or places within our said colony, and the same to furnish with all necessary ammu nition, provisions, and stores of war, for offence and defence, and to commit from time to time the custody or government of same, to such person or persons, as to them shall seem meet: and the said forts or fortification to demolish at their pleasure, and to take and surprise by all ways and means, all and every such person or persons, with their ships, arms, ammunition and other goods, as shall in an hostile manner invade, or attempt the invading, conquer ing, or annoying of our said colony. And our will and pleasure is, and we do hereby for us, our heirs and successors, declare or grant, that the governor and commander-in-chief of the province of South Carolina, of us, our heirs, and successors, for the time being, shall at all times hereafter, have the chief command of the militia of our said province hereby erected and established; and that such

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militia shall observe and obey all orders, and directions that shall from time to time be given or sent to them by the said governor or commander-in-chief; anything in these presents before contained to the contrary hereof, in any wise notwithstanding. And of our more special grace, certain knowledge, and mere motion, we have given and granted, and by these presents for us, our heirs and suc cessors, do give, and grant unto the said corporation, and their successors, full power and authority to import and export their goods, at and from any port or ports that shall be appointed by us, our heirs and successors, within the said province of Georgia for that purpose, without being obliged to touch at any other port in South Carolina. And we do, by these presents, for us, our heirs and successors, will and declare that from and after the termination of the said term of twenty-one years, such form of government and method of making laws, statutes and ordinances, for the better governing and ordering the said province of Georgia, and the in habitants thereof, shall be established and observed within the same, as we, our heirs and successors, shall hereafter ordain and appoint, and shall be agreeable to law ; and that from and after the determi nation of the said term of twenty-one years, the governor of our said province of Georgia, and all officers civil and military, within the same shall from time to time be nominated and constituted and appointed by us, our heirs and successors. And lastly we do hereby, for us, our heirs and successors, grant unto the said cor poration, and their successors, that these our letters patent, or the enrollments or exemplifications thereof, shall be in and by all things good, firm, valid, sufficient, and effectual in the law, according to the true intent and meaning thereof, and shall be taken, construed and adjudged in all courts and elsewhere in the most favorable and beneficial sense, and for the best advantage of the said corpora tion and their successors: and any omission, imperfection, defect, matter or cause, or thing whatsoever, to the contrary, in any wise notwithstanding. In witness we have caused these our letters to be made patent: witness ourself at Westminster, the ninth day of June, One Thousand seven hundred and thirty-two, in the fifth year of our reign.
By writ of Privy seal,
COOKS.

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CONSTITUTION OF 1777.
(Watkins5 Digest of the Laws of Georgia, pp. 8-16.)
238. Whereas the conduct of the Legislature of Great Britain for many years past has been so oppressive on the people of America that of late years they have plainly declared and as serted a right to raise taxes upon the people of America, and to make laws to bind them in all cases -whatsoever, without their con sent ; which conduct being repugnant to the common rights of man kind, hath obliged the Americans, as freemen, to oppose such oppressive measures, and to assert the rights and privileges they are entitled to by the laws of nature and reason; and accordingly it hath been done by the general consent of all the people of the States of New Hampshire, Massachusetts Bay, Rhode Island, Con necticut, New York, New Jersey, Pennsylvania, the counties of New Castle, Kent, and Sussex on Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, given by their representatives met together in general Congress, in the city of Philadelphia;
And whereas it hath been recommended by the said Congress, on the fifteenth of May last, to the respective assembles and con ventions of the United States, where no government, sufficient to the exigencies of their affairs, hath been hitherto established, to adopt such government as may, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general;
And whereas the independence of the United States of America has been also declared, on the fourth day of July, one thousand seven hundred and seventy-six, by the said honorable Congress, and all political connection between them and the Crown of Great Britain is in consequence thereof dissolved;
We, therefore, the representatives of the people, from whom all power originates, and for whose benefit all government is in tended, by virtue of the power delegated to us, do ordain and de clare, and it is hereby ordained and declared, that the following rules and regulations be adopted for the future government of this State:
239. Article I. The legislative, executive, and judiciary de-

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partments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.
Cooper v. Telfair, 4 Dallas (U. S.) 14.

240. Art. II. The legislature of this State shall be com posed of the representatives of the people, as is hereinafter pointed out; and the representatives shall be elected yearly, on the first Tuesday in December; and the representatives so elected shall meet the first Tuesday in January following, at Savannah, or any other place or places where the house of assembly for the time being shall direct.
On the first day of the meeting of the representatives so cViosen they shall proceed to the choice of a governor, who shall be styled . "honorable;" and of an executive council, by ballot out of their own body, viz :' two from each county, except those counties which are not yet entitled to send ten members. One of each county shall always attend, where the governor resides, by monthly rotation, unless the members of each county agree for a longer or shorter period. This is not intended to exclude either member attending. The remaining number of representatives shall be called the house of assembly; and the majority of the members of the said house shall have power to proceed on business.

241. Art. III. It shall be an unalterable rule that the house of assembly shall expire and be at an end, yearly and every year, on the day preceding the day of election mentioned in the fore going rule.

242. Art. IV. The representation shall be divided in the following manner : ten members from each county, as is hereinafter directed, except the county of Liberty, which contains three parishes, and that shall be allowed fourteen.
The ceded lands north of Ogechee shall be one county, and known by the name of Wilkes.
The Parish of Saint Paul shall be another county, and known by the name of Richmond.
The Parish of Saint George shall be another county, and known by the name of Burke.
The Parish of Saint Matthew, and the upper part of Saint Philip, above Canouchee, shall be another county, and known by the name of Efnngham.

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The Parish of Christ Church, and the lower part of Saint Philip, below Canouchee, shall be another county, and known by the name of Chatham.
The Parishes of Saint John, Saint Andrew, and Saint James shall be another county, and known by the name of Liberty.
The Parishes of Saint David and Saint Patrick shall be another county, and known by the name of Glynn.
The Parishes of Saint Thomas and Saint Mary shall be another county, and known by the name of Camclen.
The port and town of Savannah shall be allowed four members to represent their trade.
The port and town of Sunbury shall be allowed two members to represent their trade.

243. Art. V. The two counties of Glynn and Camclen shall have one representative each, and also they, and all other counties that may hereafter be laid out by the house of assembly, shall be under the following regulations, viz : at their first institution each county .shall have one member, provided the inhabitants of the said county shall have ten electors; and if thirty, they shall have two; if forty, three; if fifty, four; if eighty, six; if a hundred and upward, ten; at which time two executive councillors shall be chosen from them, as is directed for the other counties.

244. Art. VI. The representatives shall be chosen out of the residents in each count}', who shall have resided at least twelve months in this State, and three months in the county where they shall be elected ; except the freeholders of the counties of Glynn and Camdcn, who are in a state of alarm, and who shall have the liberty of choosing one member each, as specified in the articles of this constitution, in any other county, until they have residents suffi cient to qualify them for more; and they shall be of the Protestant religion, and of the age of twenty-one years, and shall be possessed in their own right of two hundred and fifty acres of land, or some property to the amount of two hundred and fifty pounds.

245. Art. VII. The house of assembly shall have power to make such laws and regulations as may be conducive to the good order and wcllbeing of the State ; provided such laws and regula tions be not repugnant to the true intent and meaning of any rule or regulation contained in this constitution.

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[ 232

The house of assembly shall also have power to repeal all laws .nd ordinances they find injurious to the people; and the house

ime or times within the year. Cooper v. Telfair, 4 Dallas (U, S.) 14.
246. Art. VIII. All laws and ordinances shall be three times read, and each reading shall be on different and separate days, ex cept in cases of great necessity and danger; and all laws and ordi nances shall be sent to the executive council after the second reading, for their perusal and advice.
247. Art. IX. All male white inhabitants, of the age of twenty-one-years, and possessed in his own right of ten pounds value, and liable to pay tax in this State, or being of any mechanic trade, and shall have been resident six months in this State, shall have a right to vote at all elections for representatives, or any other officers, herein agreed to be chosen by the people at large; and every person having a right to vote at any election shall vote by ballot personally.
248. Art. X. No officer whatever shall serve any process, or give any other hindrances to any person entitled to vote, either in going to the place of election, or during the time of the said elec tion, or on their returning home from such election; nor shall any military officer, or soldier, appear at any election in a military char acter to the intent that all elections may be free and open.
249. Art, XI. No person shall be entitled to more than one vote, which shall be given in the county where such person resides, except as before excepted; nor shall any person who holds any title of nobility be entitled to a vote, or be capable of serving as a rep resentative, or hold any post of honor, profit, or trust in this State, whilst such person claims his title of nobility; but if the person shall give up such distinction, in the manner as may be directed by any future legislation, then, and in such case, he shall be entitled to a vote, and represent, as before directed, and enjoy all the other ben efits of a free citizen.

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CONSTITUTION OF 1777.

[ 250-254

250. Art. XII. Every person absenting himself from an elec tion, and shall neglect to give in his or their ballot at such election, shall be subject to a penalty not exceeding five pounds; the mode of recovery, and also the appropriation thereof, to be pointed out and directed by act of the legislature: Provided, nevertheless, That a reasonable excuse shall be admitted.

251. Art. XIII. The manner of electing representatives shall be by ballot, and shall be taken by two or more justices of the peace in each county, who shall provide a convenient box for receiving the said ballots: and, on closing the poll, the ballots shall be com pared in public with the list of votes that have been taken, and the majority immediately declared; a certificate of the same being given to the persons elected, and also a certificate returned to the house of representatives.

252. Art. XIV. Every person entitled to vote shall take the following oath or affirmation, if required, viz:
"I, A B, do voluntarily and solemnly swear (or affirm, as the case may be) that I do owe true allegiance to this State, and will sup port the constitution thereof; so help me God."

253. Art. XV. Any five of the representatives elected, as before directed, being' met, shall have power to administer the fol lowing oath to each other; and they, or any other member, being so sworn, shall, in the house, administer the oath to all other mem bers that attend, in order to qualify them to take their seats, viz:
"I, A B, do solemnly swear that I will bear true allegiance to the State of Georgia, and will truly perform the trusts reposed in me; and that I will execute the same to the best of my knowledge, for the benefit of the State, and the support of the Constitution thereof, and that I have obtained my election without fraud or bribe whatever; so help me God."

254. Art. XVI. The continental delegates shall be appointed annually by ballot, and shall have a right to sit, debate, and vote in the house of assembly, and be deemed a part thereof, subject, however, to the regulations contained in the twelfth article of the Confederation of the United States.

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255. Art. XVII. No person bearing any post of profit tinder this State, or any person bearing any military commission under this or any other State or States, except officers of the militia, shall be elected a representative. And if any representative shall be ap pointed to any place of profit or military commission, which he shall accept, his seat shall immediately become vacant, and he shall be incapable of reelection whilst holding such office.
By this article it is not to be understood that the office of a justice of the peace is a post of profit.

256. Art. XVIII. No person shall hold more than one office of profit under this State at one and the same time.

257. Art. XIX. The governor shall, with the advice of the executive council, exercise the executive powers of government, according to the laws of this State and the constitution thereof, save only in the case of pardons and remission of fines, "which he shall in no instance grant; but he made reprieve a criminal, or sus pend a fine, until the meeting of the assembly, who may determine therein as they shall judge fit.

258. Art. XX. The governor, with the advice of the executive council, shall have power to call the house of assembly together, upon any emergency, before the time which they stand adjourned to.

259. Art. XXI. The governor, with the advice of the execu tive council, shall fill up all intermediate vacancies that shall happen in office till the next general election ; and all commissions, civil and military, shall be issued by the governor, under his hand and the great seal of the State.

260. Art. XXII. The governor may preside in the executive council at all times, except when they are taking into consideration and perusing the laws and ordinances offered to them, by the house of assembly.

261. Art. XXIII. The governor shall be chosen annually by ballot, and shall not be eligible to the said office for more than one year out of tliree, nor shall lie hold any military commission under any other State or States.
The governor shall reside at such place as the house of assembly for the lime being shall appoint.

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CONSTITUTION OF 1777.

[ 262-265

262. Art. XXIV. The governor's oath:--
"I, A B, electee! governor of the State of Georgia, by the rep resentatives thereof, do solemnly promise and swear that I will, during the term of my appointment, to the best of my skill and judg ment, execute the said office faithfully and conscientiously, accord ing to law, without favor, affection, or partiality; that I will, to the titmost of my power, support, maintain, and defend the State of Georgia, and the constitution of the same; and use my utmost endeavors to protect the people thereof in the secure enjoyment of all their rights, franchises, and privileges; and that the laws and ordinances of the State be duly observed, and that law and justice in mercy be executed in all judgments. And I do further solemnly promise and swear that I will peaceably and quietly resign the gov ernment to "which I have been elected at the period to which my continuance in the said office is limited by the constitution. And, lastly, I do solemnly swear that I have not accepted of the govern ment whereunto I am elected contrary to the articles of this con stitution; so help me God."
This oath is to be administered to him by the speaker of the assembly.
The same oath to be administered by the speaker to the president of the council.
No person shall be eligible to the office of governor who has not resided three years in this State.

263, Art. XXV. The executive council shall meet the day after their election, and proceed to the choice of a president out of their own body; they shall have power to appoint their own offi cers and settle their own rules of proceedings.
The council shall always vote by counties, and not individually.

264. Art. XXVI. Every councillor, being present, shall have power of entering his protest against any measures in council he has not consented to, provided he does it in three days.

265. Art. XXVII. During the sitting- of the assembly the whole of the executive council shall attend, unless prevented by sickness, or some other urgent necessity ; and, in that case, a ma jority of the council shall make a board to examine the laws and ordinances sent them, by the house of assembly; and all laws and

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[236

ordinances sent to the council shall be returned in five days after, with their remarks thereon.

266. Art. XXVIII. A committee from the council, sent with any proposed amendments to any law or ordinance, shall deliver their reasons for such proposed amendments, sitting and covered; the whole house at that time, except the speaker, uncovered.

267. Art. XXIX. The president of the executive council, in the absence or sickness of the governor, shall exercise all the powers of the governor.

268. Art. XXX. When any affair that requires secrecy shall be laid before the governor and the executive council, it shall be the duty of the governor, and he is hereby obliged, to administer the following oath, viz :
"I, A B, do solemnly swear that any business that shall be at this time communicated to the council I will not, in any manner what ever, either by speaking, writing, or otherwise, reveal the same to any person whatever, until leave given by the council, or when called upon by the house of assembly; and all this I swear without any reservation whatever; so help me God."
And the same oath shall be administered to the secretary and other officers necessary to carry the business into execution.

269. Art. XXXI. The executive power shall exist till re newed as pointed out by the rules of this constitution.

270. Art. XXXII. In all transactions between the legislative and executive bodies the same shall be communicated by message, to be delivered from the legislative body to the governor or ex ecutive council by a committee, and from the governor to the house of assembly by the secretary of the council, and from the executive council by a committee of the said council.

271. Art. XXXIII. The governor for the time being shall be captain-general, and commander-in-chief over all the militia, and other military and naval forces belonging to this State.

272. Art. XXXIV. All militia commissions shall specify that the person commissioned shall continue during good behavior.

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CONSTITUTION OF 1777.

[ 273-278

273. Art. XXXV. Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they be come too numerous for one battalion, they shall be formed into more., by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into dependent companies.

274. Art. XXXVI. There shall be established in each county a court, to be called a superior court, to be held twice in each year.

On the first Tuesday in March, in the county of Chatham. The second Tuesday in March, in the county of Effingham. The third Tuesday in March, in the county of Burke. The fourth Tuesday in March, in the county of Richmond. The next Tuesday in the county of Wilkes. The Tuesday fortnight, in the county of Liberty. The next Tuesday in the county of Glynn, The next Tuesday, in the county of Camden. The like courts to commence in October and continue as above.

275. Art. XXXVII. All causes and matters of dispute, be tween any parties residing in the same county, to be tried within the county.

276. Art. XXXVIII. All matters in dispute between con tending parties residing in different counties shall be tried in the county where the defendant resides, except in cases of real estate, which shall be tried in the county where such real estate lies.

277. Art. XXXIX. All matters of breach of the peace, fel ony, murder, and treason against the State to be tried in the county where the same was committed. All matters of dispute, both civil and criminal, in any county where there is not a suffi cient number of inhabitants to form a court, shall be tried in the next adjacent county where a court is held.
Cooper v. Telfair, Dallas (U. S.) 14.

278. Art. XL. All causes, of what nature soever, shall be tried in the supreme court, except as hereafter mentioned; which court shall consist of the chief-justice, and three or more of the

279-282] CONSTITUTIONAL DOCUMENTS.

[238

justices residing in the county. In case of the absence of the chief-justice, the senior justice on the bench shall act as chiefjustice, with the clerk of the county, attorney for the State, sheriff, coroner, constable, and the jurors; and in case of the absence of any of the aforementioned officers, the justices to appoint others in their room pro tempore. And if any plaintiff or defendant in civil causes shall be dissatisfied with the determination of the jury, then, in that case, they shall be at liberty, within three days, to enter an appeal from that verdict, and demand a new trial by a special jury, to be nominated as follows, viz: each party, plaintiff and defendant, shall choose six, six more names shall be taken in differently out of the box provided for that purpose, the whole eighteen to be summoned, and their names to be put together into the box, and the first twelve that are drawn out, being present, shall be the special jury to try the cause, arid from which there shall be no appeal.

279. Art. XLI. The jury shall be judges of law, as well as of fact, and shall not be allowed to bring in a special verdict; but if all or any of the jury have any doubts concerning points of law, they shall apply to the bench, who shall each of them in rotation give their opinion.

g 280. Art. XLJI. The jury shall be sworn to bring in a ver dict according to law, and the opinion they entertain of the evidence; provided it he not repugnant to the rules and regulations contained in this constitution.

281. Art. XLJII. The special jury shall be sworn to bring in a verdict according to law, and the opinion they entertain of the evidence; provided it be not repugnant to justice, equity, and conscience, and the rules and regulations contained in this consti tution, of which they shall judge.

282. Art. XLJV. Captures, both by sea and land, to be tried in the county where such shall be carried in ; a special court to he called by the chief-justice, or in his absence by the then senior justice in the said county, upon application of the captors or claim ants, which cause shall be determined within the space of ten days. The mode of proceeding and appeal shall be the same as in the su perior courts, unless after the second trial, an appeal is made to

239]

CONSTITUTION OF 1777.

[ 283-291

the Continental Congress; and the distance of time between the first and second trial shall not exceed fourteen days ; and all mari time causes to be tried in like manner.

283. Art. XL/V. No grand jury shall consist of less than eighteen, and twelve may find a bill.

284. Art. XL,VI. That the court of conscience be continued as heretofore practiced, and that the jurisdiction thereof be ex tended to try causes not amounting to more than ten pounds.

285. Art. XL, VIJ. All executions exceeding five pounds, except in the case of a court-merchant, shall be stayed until the first Monday in March; provided security be given for debt and costs.
286. Art, XLVIII. AH the costs attending any action in the superior court shall not exceed the sum of three pounds, and that no cause be allowed to depend in the superior court longer than two terms.
287. Art. XLJX. Every officer of the State shall be liable to be called to account by the house of assembly.

288. Art. L. Every county shall keep the public records belonging to the same, and authenticated copies of the several records now in the possession of this State shall be made out and deposited in that county to which they belong.

289. Art. LI. Estates shall not be entailed; and when a person dies intestate, his or her estate shall be divided equally among their children ; the widow shall have a child's share, or her dower, at her option; all other intestates (estates to be divided according to the act of distribution) made in the reign of Charles the Second, unless otherwise altered by any future act of the legislature.
290. Art. LII. A register of probates shall be appointed by the legislature in every county, for proving wills and granting letters of administration.
291. Art. LIII. All civil officers in each county shall be annually elected on the day of the general election, except justices

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[ 240

of the peace and registers of probates, who shall be appointed by the house of assembly.

292, Art. LIV. Schools shall be erected in each county, and supported at the general expense of the State, as the legislature shall hereafter point out.

293, Art. L,V. A court-house and jail shall be erected at the public expense in each county, where the present convention or the future legislature shall point out and direct.

294. Art. L/VI. All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State; and shall not, unless by consent, sup port any teacher or teachers except those of their own profession.

295. Art. I_VII. The great seal of this State shall have the following device : on one side of a scroll, whereon shall be en graved "The Constitution of the State of Georgia ;" and the motto "Pro bono publico." On the other side, an elegant house, and other buildings, fields of corn, and meadows covered with sheep and cattle ; a river running through the same, with a ship under full sail, and the motto, "Deus nobis haec otia fecit."

296. Art. LVIII. No person shall be allowed to plead in the courts of law in this State, except those who are authorized so to do by the house of assembly; and if any person so authorized shall be found guilty of malpractice before the house of assembly, they shall have power to suspend them. This is not intended to exclude any person from that inherent privilege of every freeman, the liberty to plead his own cause.

297. Art. IvIX. Excessive fines shall not be levied, nor excessive bail demanded.

298. Art. LX. The principles of the habeas-corpus act shall be a part of this constitution.

299, Art. L,XI. Freedom of the press and trial by jury to remain inviolate forever.
Cooper i). Telfair, 4 Dallas (U. $.) 14.

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CONSTITUTION OF 1777. [ 300-301

300. Art. IvXII. No clergyman of any denomination shall be allowed a seat in the legislature.

301. Art. LXIII. No alteration shall be made in this con stitution -without petitions from a majority of the counties, and the petitions from each county to be signed by a majority of voters in each county within this State; at which time the assembly shall order a convention to be called for that purpose, specifying the al terations to be made, according to the petitions preferred to the as sembly by the majority of the counties as aforesaid.
--IG

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[242

CONSTITUTION OF 1789.
(Watkins' Digest of the Laws of Georgia, pp. 25-31.)
\Ve, the underwritten delegates from the people, in convention met, do declare that the following articles shall form the constitu tion for the government of this State; and, by virtue of the powers in us vested for that purpose, do hereby ratify and confirm the same.
ARTICI^S I.
302. Section 1. The legislative power shall be vested in two separate and distinct branches, to wit, a senate and house of repre sentatives, to be styled "The General Assembly."
303. Sec. 2. The senate shall be elected on the first Monday in October in every third year, until such day of election be altered by law ; and shall be composed of one member from each county, chosen by the electors thereof, and shall continue for the term of three years.
304. Sec. 3, No person shall be a member of the Senate who shall not have attained to the age of twenty-eight years, and who shall not have been nine years an inhabitant of the United States, and three years a citizen of this State; and shall be an in habitant of that county for which he shall be elected, and have re sided therein six months immediately preceding his election, and shall be possessed in his own right of two hundred and fifty acres of land, or some property to the amount of two hundred and fifty pounds.
305. Sec. 4. The senate shall elect, by ballot, a president out of their own body.
306. Sec. 5. The senate shall have solely the power to try all impeachments.
307. Sec. 6. The election of members for the house of representatives shall be annual, on the first Monday in October, until such day of election be altered by law, and shall be composed

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CONSTITUTION OF 1789.

[ 3G8-314

of members from each county, in the following proportions : Camden, two; Glynn, two; Liberty, four; Chatham, five; Effingham, two; Burke, four; Richmond, four; Wilkes, five; Washington, two; Green, two ; and Franklin, two.

308. Sec. 7. No person shall be a member of the House of representatives who shall not have attained to the age of twentyone years, and have been seven years a citizen of the United States, and two years an inhabitant of this State; and shall be an inhab itant of that county for which he shall be elected, and have re sided therein three months immediately preceding his election; and shall be possessed in his own right of two hundred acres of land, or other property to the amount of one hundred and fifty pounds.

309. Sec. 8. The house of representatives shall choose their speaker and other officers.

310. Sec. 9. They shall have solely the power to impeach all persons who have been or may be in office.

311. Sec. 10. No person holding a military commission, or office of profit, under this or the United States, or either of them, (except justices of the peace and officers of the militia,) shall be allowed to take his seat as a member of either branch of the Gen eral Assembly; nor shall any senator or representative be elected to any office of profit which shall be created during his appointment.

312. Sec. 11. The meeting of the General Assembly shall1 be annual, on the first Monday in November, until such day of meeting be altered by law.

313. Sec. 12. One-third of the members of each branch shall have power to proceed to business ; but a smaller number may adjourn from day to day, and compel the attendance of their mem bers in such manner as each house may prescribe.

g 314. Sec. 13. Each house shall be judges of the elections, returns, and qualifications of its own members, with powers to ex pel or punish for disorderly behavior.

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[244

315. Sec. 14. No senator or representative shall be liable to be arrested during his attendance on the general assembly or for a reasonable time in going thereto or returning home, except it be for treason, felony or breach of the peace; nor shall any member be liable to answer for anything spoken in debate in either house, in any court or place elsewhere.

316. Sec. 15. The members of the senate and house of representatives shall take the following oath or affirmation : "I, AB, do solemnly swear (or affirm, as the case may be) that I have not obtained my election by bribery, or other unlawful means;, and that I "will give my vote on all questions that may come before me, as a senator, (or representative,) in such manner as, in my judgment will best promote the good of this State; and that I will bear true faith and allegiance to the same, and to the utmost of my power observe, support, and defend the constitution thereof."
317. Sec. 16. The General Assembly shall have power to make all laws and ordinances which they shall deem necessary and proper for the good of the State, which shall not be repugnant to this constitution.

318. Sec. 17. They shall have power to alter the boundaries of the present counties, and to lay off new ones, as well out of the counties already laid off, as out of the other territory belonging to the State. When a new county or counties shall be laid off, out of any of the present county or counties, such new county or coun ties shall have their representation apportioned out of the number of representatives of the county or counties out of which it or they shall be laid out; and when any new county shall be laid off in the vacant territory belonging to the State, such county shall have a number of representatives, not exceeding three, to be regulated and determined by the General Assembly. And no money shall be drawn out of the treasury, or from the public funds of this State, except by appropriations made by law.
319. Sec. 18. No clergyman of any denomination shall be a member of the General Assembly.

ARTICIvTj II.
320. Section 1. The executive power shall be vested in a gov-

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CONSTITUTION OF 1789.

[ 321-324

ernor, "who shall hold his office during the term of two years, and shall be elected in the following" manner:

321, Sec. 2. The house of representatives shall, on the sec ond day of their making a house, in the first, and in every second year thereafter, vote by ballot for three persons ; and shall make a list containing the names of the persons voted for, and of the number of votes for each person; which list the speaker shall sign in the presence of the house, and deliver it in person to the senate; and the senate shall, on the same day, proceed, by ballot, to elect one of the three persons having the highest number of votes; and the person having a majority of the votes of the senators present shall be the governor.

322. Sec. 3. No person shall be eligible to the office of gov ernor who shall not have been a citizen of the United States twelve years, and an inhabitant of this State six years, and who hath not attained to the age of thirty years, and who does not possess five hundred acres of land, in his own right, within this State, and other species of property to the amount of one thousand pounds sterling.

323. Sec. 4. In case of the death, resignation, or disability of the governor, the president of the senate shall exercise the executive powers of government until such disability be removed, or until the next meeting of the General Assembly.

324. Sec. 5. The governor shall, at stated times, receive for his service a compensation which shall neither be increased nor diminished during the period for which he shall be elected ; neither shall he receive, within that period, any other emolument from the United States, or any of them, or from any foreign power. Before he enters on the execution of his office he shall take the following oath or affirmation: "I do solemnly swear (or affirm, as the case may be) that I will faithfully ex'ecute the office of governor of the State of Georgia, and will, to the best of my abilities, preserve, protect, and defend the said State, and cause justice to be executed in mercy therein, according to the constitution and law of the same."

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[246

325. Sec. 6. He shall be commander-m-chief in and over the State of Georgia, and of the militia thereof.

326. Sec. 7. He shall have power to grant reprieves for of fences against the State, except in cases of impeachment, and to grant pardons, in all cases after conviction, except for treason or murder, in which cases he may respite the execution, and make a report thereof to the next General Assembly, by whom a pardon may be granted.

327. Sec. 8. He shall issue writs of election to fill up vacancies that happen in the senate or house of representatives, and shall have power to convene the General Assembly on extra ordinary occasions, and shall give them, from time to time, in formation of the state of the republic, and recommend to their consideration such measures as he may deem necessary and ex pedient.

328. Sec. 9. In case of a disagreement between the senate and house of representatives, with respect to the time to which the General Assembly shall adjourn, he may adjourn them to such time as he may think proper.

329. Sec. 10. He shall have the revision of all bills passed by both houses, before the same shall become laws ; but two-thirds of both houses may pass a law, notwithstanding his dissent, and, if any bill should not be returned by the governor within five days after it hath been presented to him, the same shall be a law, unless the General Assembly, by their adjournment, shall prevent its re turn.

330. Sec. 11. The great seal of the State shall be deposited in the office of the secretary, and it shall not be affixed to any in strument of writing without it be by order of the governor or General Assembly; and the General Assembly may direct the great seal to be altered.
ARTICLE III.
331. Section 1. A superior court shall be held in each county twice in every year; in which shall be tried, and brought to final decision, all causes, civil and criminal, except such as may be sub-

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CONSTITUTION OF 1789.

[ 332-337

ject to a Federal court, and such as may, by law, be referred to inferior jurisdiction.

332. Sec. 2. The General Assembly shall point out the mode of correcting errors and appeals, which shall extend so far as to empower the judges to direct a new trial by 5 ury within the county where the action originated, and which shall be final.

333. Sec. 3. Courts-merchant shall be held as heretofore, subject to such regulations as the General Assembly may by law direct,

334. Sec. 4. All causes shall be tried in the county where the defendant resides except in cases of real estate, which shall be tried in the county where the estate lies, and in criminal cases which shall be tried in the county where the crime shall be com mitted.

335, Sec. 5. The judges of the superior court and attorney general shall have a competent salary established by law, which shall not be increased nor diminished during their continuance in office, and shall hold their commission during the term of three years.
ARTICLE IV.
336. Section 1. The electors of the members of both branches of the General Assembly shall be citizens and inhabitants of this State, and shall have attained to the age of twenty-one years, and have paid tax for the year preceding the election, and shall have resided six months within the county.

337. Sec. 2. All elections shall be by ballot, and the house of representatives, in all appointments of State officers, shall vote for three persons ; and a list of the three persons having the highest number of votes shall be signed by the speaker, and sent to the Senate, which shall from such Hst determine, by a majority of their votes, the officer elected, except militia officers and the secretaries of the governor, who shall be appointed by the governor alone, under such regulations and restrictions as the General As sembly may prescribe. The General Assembly may vest the ap pointment of inferior officers in the governor, the courts of justice, or in such other manner as they may by law establish.

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[ 248

338. Set. 3. Freedom of the press and trial by jury shall remain inviolate.

339. Sec. 4. All persons shall be entitled to the benefit of the writ-of habeas corpus.

340. Sec. 5. All persons shall have the free exercise of religion, without being obliged to contribute to the support of any religious profession but their own.

341. Sec. 6. Estates shall not be entailed; and when a per son dies intestate, leaving a wife and children, the wife shall have a child's share, or her dower, at her option; if there be no wife, the estate shall be equally divided among the children and their legal representatives of the first degree. The distribution of all other intestate estates may be regulated by law.

342. Sec. 7. At the general election for members of as sembly, in the year one thousand seven hundred and ninety-four, the electors in each county shall elect three persons to represent them in a convention, for the purpose of taking into consideration the alterations necessary to be made in this constitution, who shall meet at such time and place as the General Assembly may appoint; and if two-thirds of the whole number shall meet and concur, they shall proceed to agree on such alterations and amendments as they think proper, Provided, That after two-thirds shall have concurred to proceed to alterations and amendments, a majority shall de termine on the particulars of such alterations and amendments.

343. Sec. 8. This constitution shall take effect, and be in full force, on the first Monday in October next, after the adoption of the same; and the executive shall be authorized to alter the time for the sitting of the superior courts, so that the same may not

interfere with the annual elections in the respective counties, or the meeting of the first General Assembly.

Done at Augusta, in convention, the sixth day of May, in the

year of our Lord one thousand seven hundred and eighty-nine and
in the year of the Sovereignty and Independence of the United States the thirteenth.

D. Longstreet, Secretary.

Wm. Gibbons, President.

249 ]

. CONSTITUTION OF 1789.

[ 344-349

AMENDMENTS TO THE CONSTITUTION of 1789.

(Adopted May 16, 1795, by a convention -which met at Louisville on the ------ day of May.)

344. Article I. The senate shall be elected annually on the first Monday in November until^ such day of election be altered by law; and shall be composed of one member from each county, to be chosen by the electors thereof.

345. Art. II. All elections to be made by the General As sembly, shall be by joint ballot of the senate and house of represen t' alives.

346. Art. III. The election of members of the house of repreisseennttaatives shall be annual on the first Monday in November;

347. Art, IV. At the general election for members of assem bly in the year 1797, the electors of the present counties shall elect three persons to represent them in a convention for the purpose of taking into consideration the further alterations and amend ments necessary to be made in the constitution, who shall meet at the town of Louisville the second Tuesday in May thereafter; a majority of the said convention shall have power to proceed to, and agree on, such alterations and amendments as they may think proper.
348. Art. V. The meeting of the General Assembly shall be annual on the second Tuesday in January, a majority of whom shall have power to proceed to business.
349. Art. VI. That Louisville be the permanent seat of government; and that the governor, secretary of State, the treasurer, the auditor, and the surveyor-general, remove their offices

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[ 250

thereto as soon as may be convenient, previously to the next meet ing of the General Assembly.

350. Art. VII. Article of constituted rights annexed to the constitution as amended.

351. Art. VIII. AH powers not delegated by the constitu tion, as amended, are retained by the people.

251 ]

CONSTITUTION OF 1798.

[ 352-356

CONSTITUTION OF 1798.
(Watkins' Digest of the Laws of Georgia, pp. 31-43.)
ARTICLE I.
352. Section 1. The legislative, executive, and judiciary de partments of government shall be distinct, and each department shall be confined to a separate body of magistracy; and no person or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, ex cept in the instances herein expressly permitted.
353. Sec. 2. The legislative power shall be vested in two separate and distinct branches, to-wit: A senate and house of representatives, to be styled "The General Assembly."
354. Sec. 3. The senate shall be elected annually, on the first Monday in November, until such day of election be altered by law; and shall be composed of one member from each county, to be chosen by the electors thereof.
355. Sec. 4. No person shall be a senator who shall not have attained to the age of twenty-five years, and have been nine years a citizen of the United States, and three years an inhabitant of this State, and shall have usually resided within the county for which he shall be returned, at least one year immediately preced ing his election, (except persons who may have been absent on public business of this State or of the United States,) and is and shall have been possessed, in his own right, of a settled freehold estate of the value of five hundred dollars, or taxable property to the amount of one thousand dollars, within the county, for one year preceding his election, and whose estate shall, on a reasonable estimation, be fully competent to the discharge of his just debts over and above that sum.
356, Sec. 5. The senate shall elect, by, ballot, a president of their own body.

357-359] CONSTITUTIONAL DOCUMENTS.

[252

357. Sec. 6. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation; and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold and enjoy any office of honor, trust, or profit within this State; but the party convicted shall, nevertheless, be subject to indictment, trial, judgment, and punish ment according to law.

358. Sec. 7. The house of representatives shall be com posed of members from all the counties which now are, or here after may be, included within this State, according to their respective numbers of free white persons, and including threefifths of all the people of color. The actual enumeration shall be made within two years, and within every subsequent term of seven years thereafter, at such time and in such manner as this conven tion may direct. Each county containing three thousand persons, agreeably to the foregoing plan of enumeration, shall be entitled to two members; seven thousand to three members; and twelve thousand, to four members; but each county shall have at least one and not more than four members. The representatives shall be chosen annually, on the first Monday in November, until such day of election be altered by law. Until the aforesaid enumeration shall be made, the several counties shall be entitled to the follow ing number of representatives, respectively: Camden, two; Glynn, two; Liberty, three; M'lntosh, two; Bryan, one; Chatham, four; Effinghatn, two: Scriven, two; Montgomery, two; Burke, three; Bullock, one; Jefferson, three; Lincoln, two; Klbert, three; Jack son, two; Richmond, three; Wilkes, four; Columbia, three; War ren, three; Washington, three; Hancock, three ; Oglethorpe, three ; and Franklin, two.

359. Sec. 8. No person shall be a representative who shall not have attained to the age of twenty-one years, and have been seven years a citizen of the United States, three years an inhabitant of this State, and have usually resided in the county m which he shall be chosen one year immediately preceding his election, (un less he shall have been absent on public business of this State or of the United States,) and shall be possessed in his own right of a settled freehold property of the value of two hundred and fifty

253 ]

CONSTITUTION OF 1798.

[ 360-364

dollars, or of taxable property to the amount of five hundred dollars within the county, or one year preceding his election, and whose estate shall, on a reasonable estimation, be competent to the discharge of his just debts, over and above that sum.

360. Sec. 9. The house of representatives shall choose their speaker and. other officers.

361. Sec. 10. They shall have solely the power to impeach all persons who have been or may be in office.

362. Sec. 11. No persons holding any military commission or other appointment, having any emolument annexed thereto, under this State or the United States, or either of them, except justices of the inferior court, justices of the peace, and officers of the militia, nor any person who has had charge of public moneys belonging to the State, unaccounted for and unpaid, or who has not paid all legal taxes or contributions to the government required of him, shall have a seat in either branch of the General Assembly; nor shall any senator or representative be elected to any office or appointment by the legislature, having any emoluments or com pensation annexed thereto, during the time for which he shall have been elected, with the above exception, unless he shall decline ac cepting his seat, by notice to the executive within twenty days after he shall have been elected; nor shall any member, after hav ing taken his seat, be eligible to any of the aforesaid offices or ap pointments during the time for which he shall have been elected.

363. Sec. 12. The meeting of the General Assembly shall be annually, on the second Tuesday in January, until such day of meeting be altered by law; a majority of each branch shall be au thorized to proceed to business; but a smaller number may adjourn from day to day, and compel the attendance of their members in such manner as each house may prescribe.

364. Sec. 13. Kach house shall be the judges of the election returns, and qualifications of its own members; with powers to expel or punish, by censuring, fining, and imprisoning, or either, for disorderly behavior; and may expel any person convicted of any felonious or infamous offence; each house may punish by im prisonment, during session, any person, not a member, who shall

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[ 254

be guilty of disrespect by any disorderly or contemptuous behavior in its presence, or who, during session, shall threaten harm to the body or estate of any member, for anything said or done in either house, or who shall assault or arrest any witness in going to or returning therefrom, or who shall rescue any person arrested by order of either house.

365. Sec. 14. No senator or representative shall be liable to be arrested during his attendance on the General Assembly, or for ten days previous to its sitting, or for ten days after the rising thereof except for treason, felony, or breach of the peace; nor shall any member be liable to answer for anything spoken in debate in either house, in any court or place elsewhere; but shall neverthe less be bound to answer for perjury, bribery, or corruption.

366, Sec. 15. Each house shall keep a journal of its pro ceedings, and publish them immediately after their adjournment; and the yeas and nays of the members on any question shall, at the desire of any two members, be entered on the journals.

367. Sec. 16. All bills for raising revenue or appropriating moneys shall originate in the house of representatives, but the Senate shall propose or concur with amendments, as in other bills.

368. Sec. 17. Every bill shall be read three times and on three separate days, in each branch of the General Assembly, be fore it shall pass, unless in cases of actual invasion or insurrection ; nor shall any law or ordinance pass, containing any matter differ ent from what is expressed in the title thereof; and all acts shall be signed by the president in the Senate, and speaker in the house of representatives. No bill or ordinance which shall have been re jected by either house shall be brought in again during- the session, under the same or any other title, without the consent of twothirds of each branch.

369. Sec. 18. Each senator and representative, before he be permitted to take his seat, shall take an oath, or make affirmation, that he hath not practiced any unlawful means, either directly or indirectly, to procure his election; and every person shall be dis qualified from serving as a senator or representative for the term for which he shall have been elected, who shall be convicted of

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CONSTITUTION OF 1798. [ 370-374

having given or offered any -.bribe or treat, or canvassed for such election; and every candidate employing like means, and not elected, shall, on conviction, be Ineligible to hold a seat m either house, or to hold any office of honor or profit for the term of one year, and to such other disabilities or penalties as may be prescribed by law.

370. Sec. 19. Every member of the Senate or house of representatives shall, before he takes his seat, take the following oath or affirmation, to wit: "I, A. B., do solemnly swear (or affirm, as the case may be) that I have not obtained my election by bribery, treats, canvassing, or other undue or unlawful means, used by my self, or others by my desire or approbation, for that purpose; that I consider myself constitutionally qualified as a senator, (or repre sentative) and that, on all questions and measures which may come before me, I will give my vote and so conduct myself as may, in my judgment appear most conducive to the interest and prosperity of this State; and that I will bear true faith and allegiance to the same; and to the utmost of rny power and ability observe, conform to, support, and defend the constitution thereof."

371. Sec. 20. No person who hath been or may be con victed of felony before any court of this State, or any of the United States, shall be eligible to any office or appointment of honor, profit, or trust within this State.

372. Sec. 21. Neither house during the session of the Gen eral Assembly shall, without the consent of the other, adjourn for more than three days, nor to any other place than that at which the two branches shall be sitting; and in case of disagreement between the Senate and the house of representatives, with respect to their adjournment, the governor may adjourn them.

373. Sec. 22. The General Assembly shall have power to make all laws and ordinances which they shall deem necessary and proper for the good of the State, which shall not be repugnant to this constitution.

374. Sec. 23. They shall have power to alter the boundaries of the present counties, and to lay off new ones, as well out of the counties alreacty laid off as out of the other territory belonging to

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CONSTITUTIONAL, DOCUMENTS.

[ 256

the State; but the property of the soil, in a free government, being one of the essential rights of a free people, it is necessary, in order to avoid disputes, that the limits of this State should be ascertained with precision and exactness; and this convention, composed of the immediate representatives of the people, chosen by them to as sert their rights to revise the powers given by them to the govern ment, and from whose will all ruling authority of right flows, doth assert and declare the boundaries of this State shall be as follows, that is to say: The limits, boundaries, jurisdictions, and authority of the State of Georgia do, and did, and of right ought to, extend from the sea or mouth of the river Savannah, along the northern branch or stream thereof, to the fork or confluence of the rivers now called Tugalo and Keowee, and from thence along the most northern branch or stream of the said river Tugalo, till it intersect the northern boundary line of South Carolina, if the said branch or stream of Tugalo extends so far north, reserving all the islands in the said rivers Savannah and Tugalo to Georgia; but, if the head spring or source of any branch or stream of the said river Tugalo does not extend to the north boundary line of South Carolina, then a west Hne to the Mississippi, to be drawn from the head spring or source of the said branch or stream of Tugalo River, which ex tends to the highest northern latitude; thence, down the middle of the said river Mississippi, until it shall intersect the northern most part of the thirty-first degree of north latitude; south, by a line drawn due east from the termination of the line last mentioned, in the latitude of thirty-one degrees north of the equator, to the middle of the river Apalachicola, or Chatahoochee; thence, along the middle thereof, to its junction with Flint River; thence straight to the head of Saint Mary's River; and thence, along the middle of Saint Mary's River, to the Atlantic Ocean, and from thence to the mouth or inlet of Savannah River, the place of beginning; in cluding and comprehending all the lands and waters within the said limits, boundaries, and jurisdictional rights; and also all the islands within twenty leagues of the sea-coast. And this conven tion doth further declare and assert that all the territory without the present temporary line, and within the limits aforesaid, is now, of right, the property of the free citizens of this State, and held by them in sovereignty, inalienable but by their consent: Provided, nevertheless, That nothing herein contained shall be construed so as to prevent a sale to, or contract with, the United States, by the legislature of this State, of and for all or any part of the western

257 ]

CONSTITUTION OF 1798.

[ 375

territory of this State lying westward of the river Chatahoochee, on such terms as may be beneficial to both parties; and may pro cure an extension of settlement and extinguishment of Indian claims in and to the vacant territory of this State to the east and north of the said river Chatahoochee, to which territory such power of contract or sale, by the legislature, shall not extend; And provided also, The legislature may give its consent to the establish ment of one or more governments westward thereof; but monopo lies of land by individuals being1 contrary to the spirit of our free government, no sale of territory of this State, or any part thereof, shall take place to individuals or private companies, unless a county or counties shall have been first laid off, including such ter ritory, and the Indian rights shall have been extinguished thereto.

375. Sec. 24. The foregoing section of this article having de clared the common rights of the free citizens of this State in and to all the territory without the present temporary boundarj^-line and within the limits of this State thereby defined, by which the contemplated purchases of certain companies of a considerable portion thereof are become constitutionally void, and justice and good faith require that the State should not detain a consideration for a contract which has failed, the legislature, at their next ses sion, shall make provision by law for returning to any person or persons who has or have bona fide deposited moneys for such pur poses in the treasury of this State : Provided, That the same shall not have been drawn therefrom in terms of the act passed the thirteenth day of February, one thousand seven hundred and ninety-six, commonly called the rescinding act, or the appropria tion laws of the years one thousand seven hundred and ninety-six and one thousand seven hundred and ninety-seven; nor shall the moneys paid for such purchases ever be deemed a part of the funds of this State, or be liable to appropriation as such; but until such moneys be drawn from the treasury, they shall be considered altogether at the risk of the persons who have deposited the same. No money shall be drawn out of the treasury or from the public funds of this State, except by appropriation made by law; and a regular statement and account of the receipts and expenditures of all public moneys shall be published from time to time. No vote, resolution, law, or order shall pass the general assembly granting a donation or gratuity in favor of any person whatever but by tht?. concurrence of two-thirds of the general assembly.
--17

376-377 ] CONSTITUTIONAL DOCUMENTS.

[ 258

376. Sec. 25. It shall be the duty of the justices of the in ferior court, or any three of them, in each county respectively, within sixty days after the adjournment of this convention, to ap point one or more fit persons in each county, not exceeding one for each battalion district, whose duty it shall be to take a full and ac curate census or enumeration of all free white persons and people of color residing therein, distinguishing, in separate columns, the free white persons from persons of color, and return the same to the clerks of the superior courts of the several counties, certified under their hands, on or before the first clay of December next; the person so appointed being first severally sworn before the said justices, or either of them, duly and faithfully to perform the trust reposed in them; and it shall be the duty of the said clerks to trans mit all such returns, under seal, directed to the speaker of the house of representatives, at the first session of the legislature thereafter. And it shall be the duty of the general assembly, at their said first session, to apportion the members of the house of representatives among the several counties, agreeably to the plans prescribed by this constitution, and to provide an adequate compen sation for the taking of the said census. Kvery person whose usual place of abode shall be in any family on the first Monday in July next shall be returned as of such family; and every person oc casionally absent at the time of taking the enumeration as belonging to that place in "which he usually resides. The general assembly shall, by law, direct the manner of taking such census or enumera tion, -within every subsequent term of seven j^ears, in conformity to this constitution. And it is declared to be the duty of all officers, civil and military, throughout the State, to be aiding and assisting in the true and faithful execution thereof. In case the justices of the inferior courts should fail to make such appointments or if there should not be a sufficient number of such justices in any county, then the justices of the peace, or any three of them, shall have and exercise like powers and authority respecting the said census, and if the census or enumeration of any county shall not be so taken and returned; then, and in that case, the general as sembly shall apportion the representation of such county according to the best evidence in their power, relative to its population.

ARTICXU II.
377. Section 1. The executive power shall be vested in a gov ernor, who shall hold his office during the term of two years, and

259 ]

CONSTITUTION OF 1798.

[ 378-383

until such time as a successor shall be chosen and qualified. He shall have a competent salary, established by law, which shall not be increased or diminished during the period for which he shall have been elected; neither shall he receive, within that period, any other emolument from the United States, or either of them, or from any foreign power.

378. Sec. 2. The governor shall be elected by the general assembly, at their second annual session after the rising of this convention, and at every second annual session thereafter, on the second day after the two houses shall be organized and competent to proceed to business.

379. Sec. 3. No person shall be eligible to the office of governor who shall not have been a citizen of the United States twelve years, and an inhabitant of this State six years, and who hath not attained to the age of thirty years, and who does not possess five hundred acres of land, in his own right, within this State, and other property to the amount of four thousand dollars, and whose estate shall not, on a reasonable estimation, be compe tent to the discharge of his debts, over and ahove that stim.

380. Sec. 4. In case of the death, resignation, or disability of the governor, the president of the senate shall exercise the executive powers of government until such disability be removed, or until the next meeting of the general assembly.

381. Sec. 5. The governor shall, before he enters on the duties of his office, take the following oath or affirmation : "I do solemnly swear (or affirm, as the case may be) that I will faith fully execute the office of governor of the State of Georgia; and will, to the best of my abilities, preserve, protect, and defend the said State, and cause justice to be executed in mercy therein, ac cording to the constitution and laws thereof."

382. Sec. 6. He shall be commander-in-chief of the army and navy of this State, and of the militia thereof.

383. Sec. 7. He shall have power to grant reprieves for of fences against the State, except in cases of impeachment, and to grant pardons or to remit any part of a sentence, in all cases after

384-388] CONSTITUTIONAL DOCUMENTS.

[260

conviction, except for treason or murder, in which cases he may respite the execution, and make report thereof to the next general assembly, by whom a pardon may be granted.

384. Sec. 8. He shall issue writs of election to fill up all vacancies that happen in the senate or house of representatives; and shall have power to convene the general assembly on extra ordinary occasions; and shall give them, from time to time, in formation of the state of the republic, and recommend to their consideration such measures as he may deem necessary and ex pedient.

385. Sec. 9. When any office shall become vacant by death, resignation, or otherwise, the governor shall have the power to fill such vacancy; and persons so appointed shall continue in office until a successor is appointed, agreeable to the mode pointed out by this constitution or by the legislature.

386. Sec. 10. He shall have the revision of all bills passed by both houses before the same shall become laws ; but two-thirds of both houses may pass a law notwithstanding his dissent; and if any bill should not be returned by the governor within five days after it hath been presented to him, the same shall be a law, unless the general assembly, by their adjournment, shall prevent its re turn.

387. Sec. 11. Kvery vote, resolution, or order, to which the concurrence of both houses may be necessary, except on a ques tion of adjournment, shall be presented to the governor; and, be fore it shall take effect, be approved by him; or, being disapproved, may be repassed by two-thirds of both houses, according" to the rules and limitations prescribed in case of a bill.

388. Sec. 12. There shall be a secretary of the State, a treasurer, and a surveyor-general, appointed in the same manner and at the same session of the legislature, and they shall hold their offices for the like period as the governor, and shall have a compe tent salary, including such emoluments as may be established by law, which shall not be increased or diminished during the period for which they shall have been elected.

261 ]

CONSTITUTION OF 1798.

[ 389-391

389. Sec. 13. The great seal of the State shall be deposited
in the office of the secretary of state, and shall not be affixed to n in

390. Sec. 14. The governor shall have power to appoint his own secretaries.
ARTICLE HI-
391. Section 1, The judicial power of this State shall be vested in a superior court, and in such inferior jurisdictions as the legislature shall, from time to time, ordain and establish. The judges of the superior court shall be elected for the term of three years, removable by the governor, on the address of two-thirds of both houses for that purpose, or by impeachment and convic tion thereon. The superior court shall have exclusive and final jurisdiction in all criminal cases which shall be tried in the county wherein the crime was committed and in all cases respecting titles to land, "which shall be tried in the county where the land lies ; and shall have power to correct errors in inferior judicatories by writs of certiorari, as well as errors in the superior courts, and to order new trials on proper and legal grounds : Provided, That such new trials shall be determined, and such errors corrected, in the su perior court of the county in which such action originated. And the said court shall have appellate jurisdiction in such other cases as the legislature may by law direct, which shall in no case tend to remove the cause from the county in which the action originated; and the judges thereof, in all cases of application for new trials, or correction of errors, shall enter their opinions on the minutes of the court. The inferior courts shall have cognizance of all other civil cases, which shall be tried in the county wherein the defend ant resides, except in cases of joint obligors, residing in different counties, which may be commenced in either county, and a copy of the petition and process, served on the party or parties residing out of the county in which the suit may be commenced, shall be deemed sufficient service, under such rules and regulations as the legislature may direct ; but the legislature may, by law, to which two-thirds of each branch shall concur, give concurrent jurisdic tion to the superior courts- The superior and inferior courts shall

392-395 ] CONSTITUTIONAL DOCUMENTS.

[262

sit in each county twice in every year, at such stated times as the legislature shall appoint.

392. Sec. 2. The judges shall have salaries adequate to their services, established by law, which shall not be increased or diminished during" their continuance in office; but shall not receive anv other perquisites or emoluments whatever, from parties or others, on account of any duty required of them.

393. Sec. 3. There shall be a State's attorney and solicitors appointed by the legislature, and commissioned by the governor, who shall hold their offices for the term of three years, unless re moved by sentence on impeachment, or by the governor on the ad dress of two-thirds of each branch of the general assembly. They shall have salaries adequate to their services established by law, which shall not be increased or diminished during1 their continuance in office.

394. Sec. 4. Justices of the inferior courts shall be ap pointed by the general assembly, and be commissioned by the governor, and shall hold their commissions during good be havior, or as long as they respectively reside in the county for which they shall be appointed, unless removed by sentence on im peachment, or by the governor, on the address of two-thirds of each branch of the general assembly. They may be compensated for their services in such manner as the legislature may by law direct.

395. Sec. 5. The justices of the peace shall be nominated by the inferior courts of the several counties, and commissioned by the governor; and there shall he two justices of the peace in each captain's district, either or both of whom shall have power to try all cases of a civil nature within their district, where the debt or litigated demand does not exceed thirty dollars, m such manner as the legislature may by law direct. They shall hold their ap pointments during good behavior, or until they shall be removed by conviction on indictment fn the superior court, for malpractice in office, or for any felonious or infamous crime, or by the gov ernor on the address of two-thirds of each branch of the legis lature.

263 ]

CONSTITUTION OF 1798.

[ 396-401

396. Sec. 6. The powers of a court of ordinary, or register of probates, shall be invested in the inferior courts of each county, from whose decision there may be an appeal to the superior court, under such restrictions and regulations as the general assembly may by law direct; but the inferior court shall have power to vest the care of the records, and other proceedings therein, in the clerk, or such other person as they may appoint, and any one or more justices of the said court, with such clerk or other person, may issue citations and grant temporary letters, in time of vacation, to hold until the next meeting of the said court; and such clerk or other person may grant marriage-licenses.

397. Sec. 7. The judges of the superior courts, or any one of them, shall have power to issue writs of mandamus, prohibition, scire facias, and all other writs which may be necessary for carry ing their powers fully into effect.

398. Sec. 8. Within five years after the adoption of this constitution, the body of our laws, civil and criminal, shall be re vised, digested, and arranged under proper heads, and promul gated in such manner as the legislature may direct; and no person shall be debarred from advocating' or defending1 his cause before any court or tribunal, either by himself or counsel, or both,

399. Sec. 9. Divorces shall not be granted by the legisla ture until the parties shall have had a fair trial before the su perior court, and a verdict shall have been obtained authorizing a divorce upon legal principles. And in such cases two-thirds of each branch of the legislature may pass acts of divorce accord ingly.

400. Sec. 10. The clerks of the superior and inferior courts shall be appointed m such manner as the legislature may by law direct; shall be commissioned by the governor, and shall continue in office during good behavior.

401. Sec. 11. Sheriffs shall be appointed in such manner as the general assembly may by law direct, and shall hold their ap pointments for the term of two years, unless sooner removed by sentence on impeachment, or by the governor on the address of two-thirds of the justices of the inferior court and of the peace

402-404 ] CONSTITUTIONAL, DOCUMENTS.

[ 264

in the county; but no person shall be twice elected sheriff within any term of four years ; and no county officer after the next elec tion shall be chosen at the time of electing a senator or repre sentative.
ARTICLE IV.
402. Section 1. The electors of members of the general as sembly shall be citizens and inhabitants of this State, and shall have attained the age of twenty-one years, and have paid all taxes which may have been required of them, and which they may have had an opportunity of paying, agreeably to law, for the year pre ceding the election, and shall have resided six months within the county: Provided, That in case of an invasion, and the inhabitants shall be driven from any county, so as to prevent an election therein, such refugee inhabitants, being a majority of the voters of such county, may meet under the direction of any three justices of the peace thereof, in the nearest county, not in a state of alarm, and proceed to an election, without having paid such tax so re quired of electors; and the persons elected thereat shall be entitled to their seats.

403, Sec. 2. All elections by the general assembly shall be by joint ballot of both branches of the legislature; and when the senate and house of representatives unite for the purpose of elect ing, they shall meet in the representative chamber, and the presi dent of the senate shall in such cases preside, receive the ballots, and declare the person or persons elected. In all elections by the people the electors shall vote viva voce until the legislature shall otherwise direct.

404. Sec. 3. The general officers of the militia shall be elected by the general assembly, and shall be commissioned by the governor. All other officers of the militia shall be elected in such manner as the legislature may direct, and shall be commissioned by the governor; and all militia officers now in commission, and those which may be hereafter commissioned, shall hold their com missions during their usual residence within the division, brigade, regiment, battalion, or company to which they belong, unless re moved by sentence of a court-martial, or by the governor, on the address of two-thirds of each branch of the general assembly.

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CONSTITUTION OF 1798.

[ 405-411

405. Sec, 4. All persons appointed by the legislature to fill vacancies shall continue in office only so long as to complete the time for which their predecessors were appointed.

406. Sec. 5. Freedom of the press, and trial by jury, as here tofore used in this State, shall remain inviolate; and no ex post facto law shall be passed.

407. Sec. 6. No person who heretofore hath been, or here after may be, a collector, or holder of public moneys, shall be eligible to any office in this State until such person shall have ac counted for and paid into the treasury all sums for which he may be accountable or liable.

408. Sec. 7. The person of a debtor, where there is not a

by law
409. Sec. 8. Convictions on impeachments which have been heretofore taken place are hereby released, and persons lying under such convictions restored to citizenship.
410. Sec. 9. The writ of habeas corpus shall not be sus pended, unless when in case of rebellion or invasion the public safety may require it.
411. Sec. 10. No person within this State shall, upon any preterfbe, be deprived of the inestimable privilege of worshipping God in a manner agreeable to his own conscience, nor be com pelled to attend any place of worship contrary to his own faith and judgment; nor shall he ever be obliged to pay tithes, taxes, or any other rate, for the building or repairing any place of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or hath voluntarily engaged to do. No one religious society shall ever be established in this State, in preference to another; nor shall any person be denied the en joyment of any civil right merely on account of his religious principles.

412-416] CONSTITUTIONAL DOCUMENTS.

[266

412. Sec. 11. There shall be no future importation of slaves into this State, from Africa or any foreign place, after the first clay of October next. The legislature shall have no power to pass laws for the emancipation of slaves without the consent of each of the respective owners, previous to such emancipation. They shall have no power to prevent emigrants from either of the United States to this State from bringing with them such persons as may be deemed slaves by the laws of any one of the United States.

413. Sec. 12. Any person who shall maliciously dismember or deprive a slave of life shall suffer such punishment as would be inflicted in case the like offence had been committed on a free white person, and on the like proof, except in case of insurrection by such slave, and unless such death should happen by accident in giving such slave moderate correction.

414. Sec. 13. The arts and sciences shall be promoted, in one or more seminaries of learning; and the legislature shall, as soon as conveniently may be, give such further donations and privileges to those already established as may be necessary to se cure the objects of their institution; and it shall be the duty of the general assembly, at their next session, to provide effectual measures for the improvement and permanent security of the funds and en dowments of such institutions.

415. Sec. 14. All civil officers shall continue in the exercise of the duties of their several offices during the periods for which they were appointed, or until they shall be superseded by appoint ments made in conformity to this constitution; and all laws now in force shall continue to operate, so far as they are compatible with this constitution, until repealed; and it shall be the duty of the general assembly to pass all necessary laws and regulations for carrying this constitution into full effect.

416. Sec. 15. No part of this constitution shall be altered unless a bill for that purpose, specifying the alterations intended to be made, shall have been read three times in the house of repre sentatives, and three times in the senate, on three several clays m each house, and agreed to by two-thirds of each house respectively; and when any such bill shall be passed in manner aforesaid, the

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[ 417-418

same shall be published at least six months previous to the next ensuing annual election for members of the general assembly; and if such alterations, or any of them, so proposed, shall be agreed to in their first session thereafter, by two-thirds of each branch of the general assembly, after the same shall have been read three times, on three separate days, in each respective house, then, and not otherwise, the same shall become a part of this constitution.

'We the underwritten delegates of the people of the State of Georgia, chosen and authorized by them to revise, alter or amend the powers and principles of their government, do declare, ordain, and ratify the several articles and sections contained in the six pages hereunto prefixed, as the constitution of this State; and the same shall be in operation from the date hereof.
In testimony whereof we, and each of us, respectively, have hereunto set our hands, at Louisville, the seat of government, this thirteenth day of May, in the year of our Lord one thousand seven hundred and ninety-eight, and in the twenty-second year of the Independence of the United States of America; and have caused the great seal of the State to be affixed thereto.
Article 4, Section 11, and the first line, the following words be ing interlined, to wit: "after the first day of October next."
Jared Irwin, President.
James M. Simmons, Secretary.

AMT^NDMT-CICTS OF THE CONSTITUTION 01* 1798.
417. By an amendment proposed in an Act assented to on the 7fh day of December, 1807, confirmed by an act assented to on the 16th clay of December, 1808, the tenth section of the third article was changed to read as follows :--
"That the clerks of the Superior and Inferior Courts shall be elected on the same day as pointed out by law for the election of other county officers."
Acts of 1807, p. 93; Acts of 1808, p. 121; Clayton's Digest, pp. 402-515.
418. By an amendment proposed in an Act assented to on the 15th day of December, 1810, and ratified by an Act assented to on the 13th day of December, 1811, the first section of the third Article was amended to read as follows :

419 ]

CONSTITUTIONAL DOCUMENTS.

[ 268

"That the judicial powers of this State shall be vested in a Su perior, Inferior, and Justices Courts, and in such other courts as the legislature shall, from time to time, ordain and establish. The judges of the Superior Court shall be elected for a term of three years, removable by the Governor on the address of two thirds of both branches of the General Assembly for that purpose, or by impeachment and conviction thereon. The Superior Courts shall have exclusive and final jurisdiction in all criminal cases (except as relates to people of color and fines for neglect of duty and for contempt of court, for violations against road laws, and for ob structing water courses, which shall be vested in such judicature or tribunal as shall or may have been pointed out by law, which shall be tried in the county where the crime was committed; and in all cases respecting titles to land, which shall be tried in the county where the land lies; and also concurrent jurisdiction in all other civil cases, and shall have power to correct errors in Inferior Judicatures by writ of certiorari, as well as errors in the Superior Courts, and order new trials on proper and legal grounds; pro vided, that such new trials shall be determined, and such errors corrected in the Superior Court in the county in which such action originated. And the said court shall have appellate jurisdiction in all other cases as are, or may be, pointed out by law, which shall in no case tend to remove the cause from the county in which the action originated ; and the judges thereof in all cases of application for new trial or correction of errors shall enter their opinions on the minutes of the court.
"The Inferior Courts shall also have concurrent jurisdiction in all civil cases (except in cases respecting titles to land) which shall be tried in the county where the defendant resides, and in case of joint obligors, or joint promissors residing in different counties, the same may be brought in either county, and a copy of the petition and process served on the party residing out of the county in which the suit may be commenced, shall be deemed sufficient service, un der such rules and regulations as the legislature have or may direct.
"The Superior and Inferior Courts shall sit in each county twice in every year, at such stated times as have or may be appointed by the legislature."
Acts of 1810, p. 136; Acts of 1811, p. 23.

419. By an amendment proposed in an Act passed in 1811, and confirmed by an Act passed in 1812, the fourth and fifth sec-

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[419

tions of the third article "were repealed and the following adopted in Heu thereof:
"That the justices of the inferior courts shall be elected on the third Tuesday in October, 1813, and on the third Tuesday in Oc tober, in every fourth year thereafter, by the electors entitled to vote for members of the General Assembly, which election shall be held and conducted in the same manner as pointed out by law for the election of clerks and sheriffs and the persons so elected shall be commissioned by the Governor and continue in office for the term of four years, unless removed by impeachment for mal practice in office, or by the Governor, on the address of two-thirds of both branches of the General Assembly; they may be com pensated for their services in such manner as the legislature may by law direct; and there shall be five justices in each county, who shall hold their offices until their successors are elected and quali fied, and when any vacancy shall happen by death, resignation, or otherwise, of any justice of the inferior court, or justices of the peace, to give at least twenty days' notice by advertisement, at three of the most public places in the county, previous to the elec tion, to fill such vacancy; which election shall be held in the same manner as is by this section before expressed.
"There shall be two justices of the peace in each captain's dis trict, in the several counties of this State, either or both of whom shall have power to try all cases of a civil nature within their dis trict, where the debt or liquidated demand does not exceed thirty dollars in such manner as the legislature may by law direct, they shall be elected on the first Saturday in January, 1813, and on the first Saturday in January, in every fourth year thereafter, by the citizens of the district to which they respectively belong, entitled to vote for members of the General Assembly; which election shall be superintended by three freeholders of the district, whose duty it shall be to take the following oath; to be administered by the captain or commanding officer of said district, to-wit: 'I, A. B. do solemnly swear, that I will, to the best of my abilities, super intend the election of justices of the peace for this district, so help me God/ and they shall transmit a return of said election, within twenty days, to his excellency the Governor, who is hereby au thorized to commission the persons so elected accordingly; and they shall hold their appointments during the term of four years, and until their successors are elected and qualified, unless they

420]

CONSTITUTIONAL DOCUMENTS.

[270

shall be removed by conviction on indictment in the superior court for malpractice in office, or for any felonious or infamous crime, or by the Governor on the address of two-thirds of each branch of the legislature. And when any vacancy shall happen by death, resignation, or otherwise of any justice of the peace between the time of such election and the expiration of the time for which such justice or justices were elected, it shall be the duty of two of the justices of the peace, in any of the adjoining districts where such vacancy or vacancies may happen, to advertise in three of the most public places in the district, where such vacancy or vacancies may happen, the time of holding an election for the purpose of filling such vacancy or vacancies, and give at least fifteen days notice of the time and place where such election shall be held, which shall be in the district where such vacancy or vacancies shall have hap pened; and it shall be the duty of the said justices to superintend such election and certify the same, under their hands to his ex cellency the Governor, who shall within ten days after receiving the same, commission the person having the highest number of votes, provided the same is not contested."
Acts of 1811, p. 128; Acts of 1812, p. 125; Lamar's Digest, 171. (There is no indication in the published acts that either of the acts containing this amendment received the executive assent, due no doubt to the fact that a resolution was passed by the legisla ture, at its session in 1811, that the Governor having no control over constitutional questions, his assent was not necessary to any bill proposing alterations in the Constitution or m any other bill when a two thirds vote of both houses was required. Acts of 1811, p. 208.)

420. 13y an amendment proposed in an Act assented to on the 19th clay of December, 1817, and confirmed by an Act assented to on the 15th day of December, 1818, the fourth section "of the second article of the Constitution was amended so as to read as follows :
"In case of death, resignation or disability of the Governor, the president of the Senate, or the last acting president of the senate, shall exercise the executive powers of the government until such disability be removed, in the election and qualification of a Gov ernor by the General Assembly; and in case of the death, resigna tion or disability of the president of the senate, or of the last acting

271 ]

CONSTITUTION OF 1798.

[ 421

Acts of 1817, pp. 74, 75; Acts of 1818, p. 212; Lamar's Di gest, p. 174.
421. By an amendment proposed in an Act assented to on the 15th day of December, 1817, and confirmed by an Act assented to on the 19th day of December, 1818, the first section of the third article was amended so as to read as follows ;
"That the judicial powers of this State shall be vested in a Supe rior, Inferior and justices courts, and such other courts as the legis lature shall from time to time ordain arnHd e-^st"ai-btl-i-sih-. TTMh-.e~ j;u.,Ad,~g^eCs- o^ff the Superior Courts shall be elected

be or may have been pointed

: determined, and sucii errors corrected, in me superior ^ourt oi e county in which such action originated ; and the said court shal!

422-423 ] CONSTITUTIONAL, DOCUMENTS.

[ 272

have appellate jurisdiction in such other cases as are or may be pointed out by law, which shall in no case tend to move the cause from the county in which the action originated; and the judges thereof, in all cases of application for new trials or correction of errors, shall enter their opinion on the minutes of the court. The Inferior Courts shall also have concurrent jurisdiction in all civil cases (except in cases respecting titles to lands) which shall be tried in the county where the defendant resides; and in case of joint obligors and joint promissors, residing in different counties, the same may be brought in either county, and a copy of the peti tion and process served on the party residing out of the county in which the suit may be commenced shall be deemed sufficient service, under such rules and regulations as the legislature have or may direct. The Superior and Inferior Courts shall sit in each county twice in every year, at such stated times as have or may be ap pointed by the legislature."
Acts of 1817, pp. 28, 29, 30; Acts of 1818, pp. 213, 214, 215, 216; Lamar's Digest, p. 175.

422. By an amendment proposed in an Act assented to on the 19th day of December, 1818, and confirmed in an Act assented to on the 23rd day of November, 1819, the second and third sec tions of the Act passed in 1811 and 1812 entitled "An act to amend the fourth and fifth sections of the third article of the Constitution of this State, which were adopted in lieu of the fourth and fifth sections of the third article of the Constitution were repealed and the following adopted in lieu thereof:
"That the justices of the Inferior Court shall be elected by the persons entitled to vote for members of the legislature, in such manner as the legislature may by law direct.
"That the justices of the peace throughout this State shall be elected by the persons residing in their respective districts entitled to vote for members of the General Assembly, under such rules and regulations as the legislature may by law direct."
Acts of 1818, pp. 100, 101, 102; Acts of 1819, pp. 134-137; L/amar's Digest, p. 177.

423. By an amendment proposed in an act assented to on December 17, 1823, confirmed by an act assented to December 17,

273 ]

CONSTITUTION OF 1798.________[ 424

1824, section second of article second was amended by adopting the following in lieu of said section :
"That the Governor shall be elected by persons qualified to vote for members of the General Assembly, on the first Monday in October in the year of our Lord one thousand eight hundred and twenty five, and on the first Monday in October, in every second year thereafter, until such time be altered by law, which election shall be held at the place of holding general elections in the several counties of this State, in the same manner as is prescribed for the election of members of the General Assembly. The returns of every election for Governor shall be sealed up by the presiding justices, separately from other returns, and directed to the Presi dent of the Senate, and the speaker of the House of Representa tives, and transmitted to his excellency the Governor or the person exercising the duties of the Governor for the time being who shall without opening said returns, cause the same to be laid before the Senate on the day after the two houses have been organized, and they shall be transmitted by the Senate to the House of Repre sentatives. The members of each branch of the General Assembly shall convene in the Representative Chamber, and the President of the Senate, and the Speaker of the House of Representatives shall open and publish the returns in presence of the General Assembly, and the person having the majority of the whole number of votes given in shall be duly declared duly elected Governor of this State; but if no person have such majority then from the persons having the two highest number of votes who shall be in life, and shall not decline an election at the time appointed for the legislature to elect, the General Assembly shall elect immediately a Governor by joint ballot; and in all cases of election of a Governor by the General Assembly, a majority of the votes of the members present shall be necessary for a choice. Contested elections shall be determined by both houses of the General Assembly, in such manner as shall be prescribed by law."
Acts of 1823, p. 39; Acts of 1824, p. 40; Dawson's compilation, p. 116.
424. By an amendment proposed in an Act passed in 1832 and ratified by an act passed in 1833,* the ninth section of the third Article was amended to read as follows:

1. See note to 419. --18

425-427 ] CONSTITUTIONAL DOCUMENTS.

[ 274

"Divorces shall be final and conclusive when the parties shall have obtained two concurrent verdicts of two special juries au thorizing a divorce upon legal principles."
Acts of 1832, p. 41; Acts of 1833, p. 47.

425. By an amendment proposed in an Act assented to on the ------ day of December, 1834, and confirmed by an Act assented to on December 19, 1835, the fourth section of the first article was amended so as to read as follows:
"No person shall be a senator who shall not have attained to the age of twenty-five years, and shall have been nine years a citizen of the United States, and three years an inhabitant of this State; and shall have usually resided within the county for which he shall be returned, at least one year immediately preceding his election, except persons who may have been absent on lawful busi ness of this or the United States."

426. And by the same Acts, the eighth section of said article was amended to read as follows:
"No person shall be a representative who shall not have attained to the age of twenty-one years, and have been a citizen of the United States seven years, and three years an inhabitant of this State; and have usually resided in the county in which he shall be chosen, one year immediately preceding his election, unless he shall have been absent on the public business of this State or of the United States."
Acts of 1834, p. 69; Acts of 1835, p. 52.

427. By an amendment proposed in an Act assented to on December, 1834, and confirmed by an Act assented to on the 22nd day of December, 1835, the first section of the third Article was amended by repealing a part of said section and adopting the fol lowing in lieu, thereof:
"The judicial powers of this State shall be vested in a Supreme Court for the correction of errors, a Superior, Inferior, and Jus tices' Courts, and in such other courts as the legislature shall from time to time ordain and establish. The Supreme Court shall con sist of three judges, who shall be elected by the legislature for

275 ]

CONSTITUTION OF 1798.

[ 427

such terms of years as shall be prescribed by law and continue in office until their successors shall be elected and qualified, removable by the Governor on the address of two-thirds of both branches of the General Assembly, or by impeachment and conviction thereon. The said court shall have no original jurisdiction, but shall be a court for the trial and correction of errors in law and equity from the superior courts of the several circuits; and shall sit at least once a year at a time to be prescribed by law, in each of five judicial circuits to be hereafter laid off and designated by the legis lature for that purpose, at the most central point in each Judicial District, or at such other in each district as shall by the General Assembly be ordained for the trial and determination of writs of error from the several Superior Courts included in such Judicial Districts. And the said court shall at each session in each district dispose of and finally determine each and every case on the docket of such court at the first term after such writ of error brought; and, in case the plaintiff in error in any such case shall not be prepared at such first term of said court after error brought to prosecute the same, unless precluded by some providential cause from such prosecution, it shall be stricken from the docket, and the judgment below shall stand affirmed. The Judges of the Su perior Courts shall be elected for the term of four years and shall continue in office until their successors shall be elected and quali fied; removable by the Governor on the address of two-thirds of both branches of the General Assembly for that purpose, or by impeachment and conviction thereon. The Superior Court shall have exclusive jurisdiction in all criminal cases (except as relates to people of color, and fines for neglect of duty and for contempt of court, for violations against road laws, and for obstructing water courses, which shall be vested in such judicature or tribunal as shall be or may have been pointed out by law, and except in all other minor offences committed by free white persons, and which do not subject the offender or offenders to loss of life, limb, or member, or to confinement in the penitentiary; in all such cases, corporation courts, such as now exist, or may hereafter be consti tuted in any incorporated city, being a sea port town and a port of entry, may be vested with jurisdiction, under such rules and regu lations as the legislature may hereafter by law direct), which shall be tried in the county where the crime was committed ; and in all cases respecting titles to land, which shall be tried in the county where the land lies, and also concurrent jurisdiction in all other

428-429 ] CONSTITUTIONAL DOCUMENTS.

[ 276

civil cases, and shall have power to correct errors in inferior judicatories, by writ of certiorari, and to grant new trials in said superior courts on proper and legal grounds ; and in all cases where a new trial, shall be so allowed, the judge allowing the same shall enter on the minutes of said court his reasons for the same, and the said superior courts shall have appellate jurisdiction in such other cases as may be pointed out by law, in cases arising in in ferior judicatories, which shall in no case tend to remove the cause from the county in which the action originated."
Acts of 1834, p. 66; Acts of 3835, p. 49.

4:28. By an amendment proposed in an Act assented to 011 December 23, 1840, and confirmed by an Act assented to on No vember 26, 1841, the third, seventh, and twelfth sections of the first article and the third section of the third article, and the fifteenth section, of the fourth article, were amended, making the following changes, not to go into effect until the year 1843 :
(1) In the third section of the first article: "The election of the senate shall he biennially."
(2) In the seventh section of the first article: "The repre sentatives shall be chosen biennially."
(3) In the twelfth section of the first article: "The meeting of the General Assembly shall be biennial."
(4) In the third section of the third article : "There shall be a State's Attorney and Solicitors appointed by the legislature, and commissioned by the Governor, "who shall hold their offices for the term of four years, or until their successors shall be elected and qualified, unless removed by sentence or impeachment, or by the Governor upon the address of two thirds of each branch of the General Assembly."
(5) In the fifteenth section of the fourth article: "And when any such bill shall be passed in the manner aforesaid, the same shall be published at least six months previous to the next ensuing elec tion for members of the General Assembly."
Acts of 1840, p. 33; Acts of 1841, p. 61.

429, By an amendment proposed in an Act assented to on the 27th day of December, 1842, and confirmed in an Act assented to on the 5th clay of December, 1843, the third and seventh sec-

277 ]

CONSTITUTION OF 1798.

[ 430-431

tions of the first article were amended in the following particulars, to-wit:
(a) "In lieu of the third section of the first article the senate shall be elected biennially on the first Monday in October and shall consist of forty seven members, and shall be composed of one member from each senatorial district, which district shall be com posed of two contiguous counties, not including the county with the largest representative population which shall constitute a separate district; which district shall be arranged and organized by the General Assembly, at the session, when this shall be adopted, and if any new county shall be hereafter formed, it shall be annexed to one of the districts from which it was taken.
(b) "And in lieu of the seventh section of the first article of the Constitution, the following shall be adopted; the House of Representatives shall be composed of one hundred and thirty mem bers ; each county shall have one representative, and no county shall have more than two representatives; thirty-seven counties having the greatest population, counting all free white persons, and three fifths of the people of color, shall have two representatives; the said apportionment shall be made by the General Assembly, at the session at which this section shall be adopted as an alternation of the Constitution, by an Act to be introduced after the adoption thereof, and a new apportionment shall be made at the session next after each future enumeration of the inhabitants of this State, made under the Constitution and laws thereof, but at no other time."
Acts of 1842, p. 56; Acts of 1843, p. 15.

430. By an amendment proposed in an Act assented to on the 26th day of December, 1842, and confirmed in an Act assented to on the 8th day of December, 1843, the third section of the fourth article was amended so as to provide that "it shall and may be law ful for all major generals, and brigadier generals to be elected by the respective divisions and brigades; and all persons subject to military duty shall be entitled to vote for the same only."
Acts of 1842, p. 57; Acts of 1843, p. 16.

431. By an amendment proposed in an Act assented to on the 28th day of December, 1842, and assented to in an Act assented

432-434] CONSTITUTIONAL, DOCUMENTS.

[278

to on the 22nd day of December, 1843, the first section of the third article was amended, so as that the following should form a part of said section, to-wit:
"And in case of a maker and indorser or indorsers of promissory notes residing in different counties in this state, the same may be sued in the county where the maker resides and a copy of the pe tition and process served on the indorser or indorsers residing out of the county, in which the suit may be commenced, shall be deemed sufficient service under the same rules and regulations as the legis lature have or may direct, in the case of joint obligors and joint promissors."
Acts of 1842, p. 58; Acts of 1843, p. 19.

432. By an amendment proposed in an Act approved on the 26th day of December, 1845, and confirmed by an Act approved on the 30th clay of December, 1847, the third section of the second article was amended by the adoption of the following in lieu of said section :
"No person shall be eligible to the office of Governor who shall not have been a citizen of the United States twelve years, and an inhabitant of this State six years, and who hath not attained the age of thirty years."
Acts of 1845, p. 17; Acts of 1847, p. 63.

433. By an amendment proposed in an Act approved December 28, 1847, and confirmed by an Act approved on Decem ber 22, 1849, the ninth section of the third article was amended so as to adopt the following in lieu of said section, to-wit:
"Divorces shall be final and conclusive when the parties have ob tained the concurrent verdict of two special juries authorizing a Divorce upon such legal principles as the General Assembly may by law prescribe."
Acts of 1847, p. 63; Acts of 1849, p. 419.

434. By an act passed February 5, 1850, and repassed January 19, 1852, the 3rd section of the 1st Article was amended by the adoption of the following in lieu of so much of said section as relates to the senate:

279]

CONSTITUTION OF 1798.

[ 435-436

"The Senate shall be composed, of one Senator from each county, chosen biennially by the electors thereof, on the first Monday in October, until the day of election is altered by law."
Acts of 1849-50, pp. 119, 120; Acts of 1851-52, p. 48.

435. By an act passed on February 26th, 1850, and repassed November 26, 1851, the first paragraph of the 7th section of the 1st Article, was amended by adopting in lieu thereof the following".
"The House of Representatives shall be as follows: Each county shall have one representative, and no county shall have more than two Representatives ; thirty seven counties having the greatest population counting all free white persons and three fifths of the people of color, shall have two representatives. The said appor tionment shall be made by the General Assembly at the session next after each future enumeration of the inhabitants of this State made under the Constitution and laws thereof, but at no other time."
Acts of 1849-50, p. 121 ; Acts of 1851-52, p. 48.

436. By an Act passed on February 22, 1850, and repassed on December 5, 1851, the 6th Section of the 3rd Article was amended by adopting the following in lieu thereof :
"The powers of a court of Ordinary or Register of Probates shall be vested in an Ordinary for each county, from whose de cisions there may be an appeal to the Superior Court, under such restrictions and regulations as may be or may have been prescribed by law. The said Ordinary shall be ex officio Clerk of said Court, and may appoint a deputy clerk. The Ordinary as Clerk, or his Deputy, may issue citations and grant temporary letters of adminis tration, to hold until permanent letters are granted; and said ordi nary, as Clerk, or his deputy may grant marriage licenses. The Ordinaries in and for their respective counties shall be elected as other county officers are. On the first Monday in January, 1852, and every fourth year thereafter, and shall be commissioned by the Governor for the term of four years; in case of a vacancy in said office of ordinary, from any cause the same shall be filled by election as is provided in relation to other county officers, and until the same is filled, the Clerk of the Superior Court for the time be ing shall act as Clerk of the Court of Ordinary."
Acts of 1849-50, pp. 117, 118; Acts of 1851-52, p. 49.

437-439 ] CONSTITUTIONAL DOCUMENTS.______[280
437. By an Act approved on the 7th day of February, 1854, and repassed on December 12, 1855, the 3rd Section of the 3rd Article of the Constitution was amended as follows :
(1) By striking out the words "appointed by the legislature," and inserting in lieu thereof the following words: "Elected by the persons entitled to vote for the members of the Legislature at such times, and in such manner as the legislature shall or may by law direct."
(2) By adding to the first Article as an additional section, the following: "The legislature shall have no power to grant cor porate powers and privileges, except to Banking, Telegraph and Railroad Companies, nor to change names, nor to legitimate per sons, nor to make or change precincts, nor to establish bridges or ferries, but shall by law prescribe the manner in which said power shall be exercised by the Superior or Inferior Courts, and the privileges to be enjoyed."
Acts of 1853-54, p. 24; Acts of 1855-56, p. 105.
438. By an Act approved on the 13th day of Febrxiary, 1854, and again on the 11th day of December, 1855, the 1st section of the 3rd Article was amended by striking out the words "being a Seaport Town and port of entry."
Acts of 1853-54, p. 25; Acts of 1855-56, p. 106.
439. By an Act passed on the ------ day of March, 1856, and repassed on the 21st day of November, 1857, the 12th section of the 1st Article was amended by adopting the following in lieu thereof:
"The meeting of the General Assembly shall be annual, and on the first Wednesday in November, until such d.ay of meeting shall be altered by law. A majority of each branch shall be authorized to proceed to business; but a smaller number may adjourn from day to day, and compel the attendance of their members in such manner as each house shall prescribe, but no session of the General Assembly shall continue for more than forty days, unless the same shall be done by a vote of two-thirds of both branches of the Gen eral Assembly, the vote to be taken by yeas and nays."
Acts of 1857, p. 31.

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CONSTITUTION OF 1861.

[ 440-446

CONSTITUTION OF 1861.
ARTICLE I.
Declaration of Fundamental Principles.
440. 1. The fundamental principles of Free Government cannot be too well understood, nor too often recurred to.
441. 2. God has ordained that men shall live under govern ment; but as the forms and administration of civil government are in human, and therefore, fallible hands, they may be altered, or modified whenever the safety or happiness of the governed requires it. No government should be changed for light or transient causes; nor unless upon reasonable assurance that a better will be established.
442. 3. Protection to person and property is the duty of Government; and a Government which knowingly and persistently denies, or withholds from the governed such protection, when within its power, releases from the obligation of obedience.
443. 4. No citizen shall be deprived of life, liberty or prop erty, except by due process of law; and of life or liberty, only by the judgment of his peers.
444. 5. The writ of "Habeas Corpus" shall not be suspended unless in case of rebellion or invasion, the public safety may re quire it.
445. 6. The right of the people to keep and bear arms shall not be infringed.
446. 7. No religious test shall be required for the tenure of any office; and no religion shall be established by law; and no citizen shall be deprived of any right or privilege by reason of his religious belief.

447-456 ] CONSTITUTIONAL DOCUMENTS.

[ 282

447. 8. Freedom of thought and opinion, freedom of speech, and freedom of the press, are inherent elements of political liberty. But while every citizen may freely speak, write and print, on any subject, he shall be responsible for the abuse of the liberty.

448. 9. The right of the people to appeal to the courts; to petition Government on all matters of legitimate cognizance; and peaceably to assemble for the consideration of any matter of public concern--shall never be impaired.

449. 10. For every right, there should be provided a remedy; and every citizen ought to obtain justice without purchase, without denial, and without delay--conformably to the laws of the land.

450. 11, Every person charged with an offence against the laws of the State shall have the privilege and benefit of counsel.
Shall be furnished, on demand, with a copy of the accusation, and with a list of the witnesses against him:
Shall have a compulsory process to obtain the attendance of his own witnesses :
Shall be confronted with the witnesses testifying against him;
and
Shall have a public and speedy trial by an impartial jury.

451. 12. No person shall be put in jeopardy of life or liberty more than once for the same offence.

452. 13. No conviction shall work corruption of blood, or general forfeiture of estate.

453. 14. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted,

454. 15. The powers of the courts to punish for contempt shall be limited by Legislative Acts.

455. 16. A faithful execution of the laws is essential to good order ; and good order in society is essential to liberty.

456. 17. Legislative Acts in violation of the fundamental law are void; and the Judiciary shall so declare them.

283 ]

CONSTITUTION OF 1861.

[ 457-465

457. 18. Ex post facto laws, and laws impairing the obliga tion of contracts, and retroactive legislation injuriously affecting the right of the citizen, are prohibited.

458. 19. Laws should have a general operation; and no general law shall be varied in a particular case by special Legisla tion ; except with consent of all persons to be affected thereby.

459. 20. The right of taxation can be granted only by the people; and shall be exercised only to raise revenue for the support of Government, to pay the public debt; to provide for the common defence, and for such other purposes as are specified in the grant of powers.

460. 21. In cases of necessity, private ways may be granted upon just compensation being first paid; and with this exception, private property shall not be taken except for public use; and then, only upon just compensation; such compensation, except in cases of pressing necessity, to be first provided and paid.

461. 22. The right of the people to be secure in their per sons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place or places to be searched, and the persons and things to be seized.

462. 23, Martial law shall not be declared, except in cases of extreme necessity.

463. 24. Large standing armies, in time of peace, are danger ous to liberty.

464. 25. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner prescribed by law.

465. 26. The person of a debtor shall not be detained in prison after delivering bona fide all his estate for the use of his creditors.

466-472 ] CONSTITUTIONAL DOCUMENTS.

[ 284

466. 27. The enumeration of rights herein contained shall not be construed to deny to the people any inherent rights which they have hitherto enjoyed.

467. 28. This declaration is a part of this Constitution, and shall never be violated on any pretence whatever.

ARTICLE II.
Section i.
468. 1. The Legislative, Executive and Judicial depart ments, shall be distinct; and each department shall be confided to a separate body of magistracy. No person or collection of person being of one department, shall exercise any power properly at tached to either of the others; except in cases herein expressly pro vided.
469. 2. The Legislative power shall be vested in a General Assembly, which shall consist of a Senate and House of Repre sentatives.

470. 3. The meeting of the General Assembly shall be an nual, and on the first Wednesday in November, until such day of meeting shall be altered by law. A majority of each House shall constitute a quorum to transact business; but a smaller number may adjourn from day to day, and compel the attendance of their members in such manner as each House shall prescribe. No ses sion of the General Assembly shall continue for more than forty days, unless the same shall be done by a vote of two-thirds of each branch thereof.
471. 4. The compensation of the members and officers of the General Assembly shall be fixed by law, at the first session subsequent to the adoption of this Constitution : and the same shall not be increased so as to affect the compensation of the members or officers of the Assembly by which the increase is adopted.

472. 5. No person holding any military commission or other appointment, having any emolument or compensation annexed thereto, under this State or the Confederate States, or either of them, (except Justices of the Inferior Court, Justices of the Peace

285 ]

CONSTITUTION OF 1861.

[ 473-478

and officers of the militia,) nor any defaulter for public money, or for legal taxes required of him, shall have a seat in either branch of tiie General Assembly; nor shall any Senator or Representative, after his qualification as such, be elected to any office or appoint ment by the General Assembly having any emoluments or compen sation annexed thereto, during- the time for which he shall have been elected.

473. 6. No person convicted of any felony before any Court of this State, or of the Confederate States, shall be eligible to any office or appointment of honor, profit or trust, within this State.

474. 7. No person who is a collector or holder of public money, shall be eligible to any office in this State, until the same is accounted for and paid into the Treasury.

Section 2.
475. 1. The Senate shall consist of forty-four members, one to be chosen from each senatorial district, which district shall be composed of three contiguous counties. If a new county is es tablished it shall be added to a district which it adjoins until there shall be another arrangement of the senatorial districts. The senatorial districts shall not be changed except when a new census shall have been taken.

476. 2. No person shall be a Senator who shall not have at tained to the age of twenty-five years, and be a citizen of the Con federate States, and have been for three years an inhabitant of this State, and for one year a resident of the district from which he is chosen.

477. 3. The presiding officer shall be styled the President of the Senate, and shall be elected viva voce from their own body.

478. 4. The Senate shall have the sole power to try all im peachments. When sitting for that purpose, they shall be on oath or affirmation; and no person shall be convicted without the con currence of two-thirds of the members present. Judgment, in cases of impeachment, shall not extend further than removal from office and disqualification to hold and enjoy anv office of honor,

479-485 ] CONSTITUTIONAL DOCUMENTS.

[ 286

profit or trust within this State; but the convicted shall, never theless, be liable and subject to indictment, trial, judgment and punishment according to law.

Section 3.
479. 1. The House of Representatives shall be composed as follows: The thirty-seven counties having the largest repre sentative population shall have two Representatives each. Every other county shall have one Representative. The designation of the counties having two Representatives shall be made by the General Assembly immediately after the taking of each census.

480. 2. No person shall be a Representative who shall not have attained to the age of twenty-one years, and be a citizen of the Confederate States, and have been for three years an in habitant of this State, and for one year a resident of the county which he represents.

481. 3. The presiding officer of the House of Representatives shall be styled the Speaker, and shall be elected viva voce from their own body.

482. 4. They shall have the sole power to impeach all per sons who have been or may be in office.

483. 5. All bills for raising revenue, or appropriating money, shall originate in the House of Representatives; but the Senate may propose or concur in amendments, as in other bills.

Section 4.
484. 1. Each house shall be the judge of the election, re turns, and qualifications of its own members; and shall have power to punish them for disorderly behavior or misconduct, by censure, fine, imprisonment or expulsion; but no member shall be expelled except by a vote of two-thirds of the House from which he is ex pelled.

485. 2. Each House may punish, by imprisonment not ex tending beyond the session, any person not a member, who shall be guilty of a contempt, by any disorderly behavior in its presence; or

287]

CONSTITUTION OF 1861.

[486-491

who, during the session, shall threaten injury to the person or estate of any member, for anything said or done in either House; or who shall assault any member therefor; or who shall assault or arrest any witness going1 to or returning therefrom; or who shall rescue, or attempt to rescue, any person arrested by order of either House.

486. 3. The members of both Houses shall be free from ar rest, during their attendance on the General Assembly, and in going to and returning therefrom, except for treason, felony, or breach of the peace. And no member shall be liable to answer, in any other place, for anything spoken in debate in either House.

g 487. 4. Each House shall keep a journal of its proceedings, and publish them immediately after Its adjournment. The yeas and nays of the members on any question, shall, at the desire of one-fifth of the members present, be entered on the journals. The original journals shall be preserved (after publication) in the office of the Secretary of State; but there shall be no other record thereof.

488. 5. Every bill, before it shall pass, shall be read three times and on three separate and distinct days in each House, unless in cases of actual invasion or insurrection. Nor shall any law or ordinance pass which refers to more than one subject matter, or contains matter different from "what is expressed in the title thereof.

489. 6. AH Acts shall be signed by the President of the Senate and the Speaker of the House of Representatives; and no bill, or ordinance, or resolution intended to have the effect of law which shall have been rejected by either House, shall be again proposed under the same or any other title, without the consent of two-thirds of the House by which the same was rejected.

490. 7. Neither House shall adjourn for more than three days, nor to any other place, without the consent of the other; and in case of disagreement between the two Houses, on a question of adjournment, the Governor may adjourn them.

491. 8. Every Senator and Representative, before taking his seat, ss'hall take an oath or affirmation to support the Constitution

492-498 ] CONSTITUTIONAL DOCUMENTS.

[ 288

of the Confederate States and of this State; and also, that he hath not practiced any unlawful means, either directly or indirectly, to procure his election. And every person convicted of having given or offered a bribe, shall be disqualified from serving as a member of either House for the term for which he was elected.

492. 9. Whenever this Constitution requires an Act to be passed by two-thirds of both Houses, the yeas and nays on the passage thereof shall be entered on the journals of each.

Section 5.
493. 1. The General Assembly shall have power to make all laws and ordinances, consistent with this Constitution and not repugnant to the Constitution of the Confederate States, which they shall deem necessary and proper for the welfare of the State.

494. 2. They may alter the boundaries of counties, and lay off and establish new counties; but every bill to establish a new county shall be passed by at least two-thirds of the members present in each branch of the General Assembly.

495. 3. They shall provide for the taking of a census or enumeration of the people of this State, at regular decades of years, commencing at such times as they may prescribe.

496. 4. The General Assembly shall have power to appropri ate money for the promotion of learning and science, and to provide for the education of the people.

497. 5. The General Assembly shall have power by a vote of two-thirds of each branch, to grant pardons hi cases of final con viction for treason, and to pardon or commute in cases of final conviction for murder.

Section 6.
498. 1. The General Assembly shall have no power to grant corporate powers and privileges to private companies, except to banking, insurance, railroad, canal, plank road, navigation, mining, express, lumber, and telegraph companies; nor to make or change election precincts; nor to establish bridges and ferries; nor to

289]

CONSTITUTION OF 1861.

[ 499-505

change names, or legitimate children; but shall by law prescribe the manner in "which such power shall be exercised by the Courts. But no bank charter shall be granted or extended, and no Act passed authorizing the suspension of specie payment by any chartered bank, except by a vote of two-thirds of each branch of the General Assembly.

499. 2. No money shall be drawn from the Treasury of this State, except by appropriation made by law; and a regular state ment and account of the receipt and expenditure of all public money shall be published from time to time.

500. 3. No vote, resolution, law or order shall pass, grant ing a donation or gratuity in favor of any person, except by the concurrence of two-thirds of the General Assembly.

501. 4. No law shall be passed by which a citizen shall be compelled, directly or indirectly, to become a stockholder in, or contribute to a railroad or other work of internal improvement, without his consent; except the inhabitants of a corporate town or city. This provision shall not be construed to deny the power of taxation for the purpose of making levees or dams to prevent the overflow of rivers.
Section f.
502. 1. The importation or introduction of negroes from any foreign country, other than the slave-holding States or Terri tories of the United States of America, is forever prohibited.

503. 2. The General Assembly may prohibit the introduction of negroes from any State ; but they shall have no power to prevent immigrants from bringing their slaves with them.
504. 3. The General Assembly shall have no power to pass laws for the emancipation of slaves.
505. 4. Any person who shall maliciously kill or maim a slave, shall suffer such .punishment as -would be inflicted in case the like offence had been committed on a free white person.
--19

506-507 ] CONSTITUTIONAL DOCUMENTS.

[ 290

ARTICLE III.
Section I.
506. 1. The executive power shall be vested in a'Governor, who shall hold his office during the term of two years, and until such time as a successor shall be chosen and qualified. He shall have a competent salary fixed by law, which shall not be increased or diminished during the period for "which he shall have been elected; neither shall he receive, within that period, any other emolument from the Confederate States, or either of them, or from any foreign power.

507. 2. The Governor shall be elected by the persons quali fied to vote for members of the General Assembly, on the first Wednesday in October, in the year of our Lord 1861 ; and on the first Wednesday in October in every second year thereafter, until such time be altered by law; which election shall be held at the places of holding general elections, in the several counties of this State, in the manner prescribed for the election of members of the General Assembly. The returns for every election of Governor shall be sealed up by the managers, separately from other returns, and directed to the President of the Senate and Speaker of the House of Representatives; and transmitted to the Governor, or the person exercising the duties of Governor for the time being; who shall, without opening the said returns, cause the same to be laid before the Senate, on the day after the two houses shall have been organized; and they shall be transmitted by the State to the House of Representatives. The members of each branch of the General Assembly shall convene in the Representative Chamber, and the President of the Senate, and the Speaker of the House of Representatives, shall open and publish the returns in presence of the General Assembly; and the person having the majority of the whole number of votes given in, shall be declared duly elected Governor of this State; but if no person have such majoritv, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time ap pointed for the Legislature to elect, the General Assembly shall immediately elect a Governor viva voce ; and in all cases of election of a Governor by the General Assemblv, a majority of the votes of the members present shall be necessary for a choice. Contested

291 ]

CONSTITUTION OF 1861.

[ 508-513

elections shall be determined by both Houses of the General As sembly, in such manner as shall be prescribed by law.

508. 3. No person shall be eligible to the office of Governor who shall not have been a citizen of the Confederate States twelve years, and an inhabitant of this State six years, and who hath not attained the age of thirty years.

509. 4. In case of death, resignation, or disability of the Governor, the President of the Senate shall exercise the executive powers of the government until such disability be removed, or a successor is elected and qualified. And in case of the death, resig nation, or disability of the President of the Senate, the Speaker of the House of Representatives shall exercise the executive power of the government until the removal of the disability or the election and qualification of a Governor.

510. 5. The Governor shall, before he enters on the duties of his office, take the following oath or affirmation : "I do solemnly swear or affirm (as the case may be), that I will faithfully execute the office of Governor of the State of Georgia; and will, to the best of my abilities, preserve, protect and defend the constitution thereof."

511. 1. The Governor shall be Commander-in-Cbief of the army and navy of this State, and of the militia thereof.
512. 2. He shall have power to grant reprieves for offences against the State, except in cases of impeachment, and to grant pardons, or to remit any part of a sentence, in all cases after con viction, except for treason or murder, in which cases he may respite the execution, and make report thereof to the next Gen eral Assembly.
513. 3. He shall issue writs of elections to fill vacancies that happen m the Senate or House of Representatives, and shall have power to convene the General Assembly on extraordinary oc casions ; and shall give them, from time to time, information of the state of the republic, and recommend to their consideration such measures as he may deem necessary and expedient.

514-519] CONSTITUTIONAL DOCUMENTS.

[292

514. 4. When any office shall become vacant by death, resig nation, or otherwise, the Governor shall have power to fill such vacancy unless otherwise provided by law; and persons so ap pointed shall continue in office until a successor is appointed agreeably to the mode pointed out by this Constitution, or by law in pursuance thereof.

515. 5. A person rejected by the Senate shall not be reappointed by the Governor to the same office during the same session or the recess thereafter.

516. 6. The Governor shall have the revision of all bills passed by both Houses, before the same shall become laws, but two-thirds of each. House may pass a law notwithstanding his dissent; and if any bill should not be returned by the Governor within five clays (Sundays excepted) after it has been presented to him, the same shall be a law, unless the General Assembly, by their adjournment, shall prevent its return. He may approve any ap propriation and disapprove any other appropriation in the same bill, and the latter shall not be effectual unless passed by two-thirds of each House.

517. 7. Every vote, resolution, or order, to which the concur rence of both Houses may be necessary, except on a question of election or adjournment, shall be presented to the Governor; and before it shall take effect, be approved by him, or being disapproved, shall be re-passed by two-thirds of each House, according to the rules and limitations prescribed in case of a bill.

518. 8. There shall be a Secretary of State, a Comptroller General, a Treasurer, and Surveyor-General, elected by the General Assembly, and they shall hold their offices for the like period as the Governor, and shall have a competent salary, which shall not be increased or diminished, during the period for which they shall have been elected. The General Assembly may at any time con solidate any two of these offices, and require all the duties to be discharged by one officer.

519. 9. The great seal of the State shall be deposited in the office of the Secretary of State, and shall not be affixed to any in strument of writing, but by order of the Governor or General

293 ]

CONSTITUTION OF 1861.

[ 52G-524

Assembly; and the General Assembly shall, at their first session, after the rising of this convention, by law cause the great seal to be altered.

520. 10. The Governor shall have power to appoint his own Secretaries, not exceeding two in number.

ARTICLE IV.
Section i.
521. 1. The Judicial powers of this State shall be vested in a Supreme Court for the correction of errors, a Superior, Inferior, Ordinary and Justices' Courts, and in such other courts as have been or may be established by law.

522. 2. The Supreme Court shall consist of three Judges, who shall be appointed by the Governor with the advice and con sent of two-thirds of the Senate, for such term of years as shall be prescribed by law, and shall continue in office until their suc cessors shall be appointed and qualified, removable by the Gov ernor on the address of two-thirds of each branch of the General Assembly, or by impeachment and conviction thereon.

523. 3. The said court shall have no original jurisdiction but shall be a court alone for the trial and correction of errors in law and equity from the Superior Courts of the several circuits, and shall sit at least once a year, at a time prescribed by law, in each of one or more judicial districts, designated by the General As sembly for that purpose, at such point in each district as shall by the General Assembly be ordained, for the trial and determination of writs of error from the several Superior Courts included in such judicial districts.

524. 4. The said Court shall dispose of and finally determine every case on the docket of such Court at the first or second term after such writ of error brought; and in case the plaintiff in error shall not be prepared at the first term of such Court after error brought, to prosecute the case, unless precluded by some providen tial cause from such prosecution, it shall be stricken from the docket, and the judgment below shall stand affirmed.

525-530 ] CONSTITUTIONAL DOCUMENTS.

[ 294

Section 2.
525. 1. The Judges of the Superior Courts shall be ap pointed in the same manner as Judges of the Supreme Court from the circuits in which they are to serve, for the term of four years, and shall continue m office until their successors shall be appointed and qualified, removable by the Governor on the address of twothirds of each branch of the General Assembly, or by Impeachment and conviction thereon.

526. 2. The Superior Court shall have exclusive jurisdiction in all cases of divorce, both total and partial; but no total divorce shall be granted, except on the concurrent verdicts of two special juries. In each divorce case, the Court shall regulate the rights and disabilities of the parties.

527. 3. The Superior Court shall also have exclusive jurisdic tion in all criminal cases, except as relates to people of color, fines for neglect of duty, contempts of Court; violations of road laws, and obstructions of water courses, jurisdiction of which shall be vested in such judicature or tribunal as shall be or may have been pointed out by law; and except in all other minor offences committed by free white persons, and which do not subject the offender or of fenders to loss of life, limb or member, or to confinement in the penitentiary; in all such cases, Corporation Courts, such as now exist, or may hereafter be constituted, in any incorporated city, or town, may be vested with jurisdiction, under such rules and regulations as the Legislature may hereafter by law direct.

528. 4. All criminal cases shall be tried in the county where the crime was committed, except in cases where a jury cannot be obtained.

529. 5. The Superior Court shall have exclusive jurisdic tion in all cases respecting titles to land, which shall be tried in the county where the land lies. And also in all equity causes which shall be tried in the county where one or more of the defendants reside, against whom substantial relief is prayed.

530. 6. It shall have appellate jurisdiction in all such cases as may be provided by law.

295 ]

CONSTITUTION OF 1861.

[ 531-538

531= 7. It shall have power to correct errors in inferior judicatories by writ of certiorari, and to grant new trials in the Superior Court on proper and legal grounds.

532. 8. It shall have power to issue writs of mandamus, prohibition, scire facias, and all other writs which may be neces sary for carrying its powers fully into effect.

533. 9. The Superior and Inferior Courts shall have con current jurisdiction in all other civil causes ; which shall be tried in the county where the defendant resides.

534. 10. In cases of joint obligors, or joint promisors or copartners, or joint trespassers residing in different counties, the suit may be brought in either county,

535. 11. In case of a maker and inclorser or indorsers of promissory notes residing in different counties in this State, the same may be sued in the county where the maker resides.

536. 12. The Superior and Inferior Courts shall sit in each county twice in every year, at such stated times as have been or may be appointed by the General Assembly.

Section j.
537. 1. The judges shall have salaries adequate to their services fixed by law, which shall not be diminished during their continuance in office; but shall not receive any other perquisites or emoluments whatever, from parties or others, on account of any duty required of them.

538. 2. There shall be a State's Attorney and Solicitors ap pointed in the same manner as the Judges of the Supreme Court and commissioned by the Governor; who shall hold their offices for the term of four years, or until their successors shall be appointed and qualified, unless removed by sentences on impeachment, or by the Governor, on the address of two-thirds of each branch of the General Assembly. They shall have salaries adequate to their services fixed by law, which shall not be diminished during their continuance in office.

539-543] CONSTITUTIONAIv DOCUMENTS.

[296

539. 3. The Justices of the Inferior Courts shall be elected in each county by the persons entitled to vote for members of the General Assembly.

540. 4. The Justices of the Peace shall be elected in each district by the persons entitled to vote for members of the General Assembly.

541. 5. The powers of a Court of Ordinary and of Probate shall be vested in an Ordinary for each county, from whose de cisions there may be an appeal to the Superior Court, under regulations prescribed by law. The ordinary shall be ex officio clerk of said Court, and may appoint a deputy-clerk. The ordi nary, as clerk, or his deputy, may issue citations and grant tempo rary letters of administration, to hold until permanent letters are granted; and said ordinary, as clerk, or his deputy, may grant mar riage licenses. The ordinaries in and for the respective counties shall be elected, as other county officers are, on the first Wednesday in January, 1864, and every fourth year thereafter, and shall be commissioned by the Governor for the term of four years. In case of any vacancy of said office of ordinary, from any cause, the same shall be filled by election, as is provided in relation to other county officers, and until the same is filled, the clerk of the Superior Court for the time being shall act as clerk of said Court of Ordinary.

ARTICLE V.
542. 1. The electors of members of the General Assembly shall be free white male citizens of this State; and shall have at tained the age of twenty-one years; and have paid all taxes which

county.
543. 2. All elections, by the General Assembly, shall be viva voce and when the Senate and House of Representatives unite for the purpose of electing, they shall meet in the Representative chamber, and the President of the Senate shall in such case pre side, and declare the person or persons elected.

297 ]

CONSTITUTION OF 1861. [ 544-548

544. 3. In all elections by the people, the electors shall vote by ballot, until the General Assembly shall otherwise direct.

545. 4. All civil officers shall continue in the exercise of the duties of their several offices, during the periods for which they were appointed, or until they shall be superseded by appointments made in conformity with this Constitution; and all laws now in force shall continue to operate, so far as they are compatible with this Constitution, until they shall expire, be altered or repealed; and it shall be the duty of the General Assembly to pass all neces sary laws and regulations for carrying this Constitution into full effect.

546. 5. All militia and county officers shall be elected by the people in such manner as the General Assembly may by law direct.

547. 6. This Constitution shall be amended only by a Con vention of the people called for that purpose.

548. 7. This Constitution shall not take effect until the same is ratified by the people. And to this end, there shall he an election held at all the places of public election in this State, on the first Tuesday in July, 1861, -when all the citizens of this State entitled to vote for Governor, shall cast their ballots either for "Ratifica tion" or "No Ratification." The election shall be conducted in the same manner as general elections, and the return shall be made to the Governor. If a majority of the votes cast shall be for Ratifi cation, the Governor shall by proclamation, declare this Constitu tion adopted by the people. But if for No Ratification, that fact shall be proclaimed by the Governor, and this Constitution shall have no effect whatever.
Done in Convention of the Delegates of the people of the State of Georgia, at Savannah, on the 23rd of March, in the year of our Lord, eighteen hundred and sixty-one.

549-554] CONSTITUTIONAL DOCUMENTS.

[298

CONSTITUTION OF 1865.
Preamble.
^^e., the people of the State of Georgia, In order to form a per manent Government, establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity, acknowledging and invoking the guidance of Almighty Gocl, the author of all good government, do ordain and establish this Con stitution for the State of Georgia.
ARTICLE I. Declaration of Rights. 549. 1, Protection to person and property is the duty of government.
550. 2, No person shall be deprived of life, liberty, or prop erty, except by due process of law.
551. 3, The writ of Habeas Corpus shall not be suspended, unless, in case of rebellion or invasion, the public safety may re quire it.
552. 4. A well regulated militia, being necessary to the se curity of a free State, the right of the people to keep and bear arms shall not be infringed.
553. S. Perfect freedom of religious sentiment be and the same is hereby secured, and no inhabitant of said State shall ever be molested in person or property, nor prohibited from holding any public office or trust on account of his religious opinions.
554. 6. Freedom of speech, and freedom of the press, are in herent elements of political liberty. Hut while every citizen may freely speak or write, or print on any subject, he shall be respon sible for the abuse of the liberty.

299 ]

CONSTITUTION OF 1865.

[ 555-563

555. 7. The right of the people to appeal to the Courts, to petition government on all matters of legitimate cognizance, and peaceably to assemble for the consideration of any matter of public concern, shall never be impaired.

556. 8. Every person charged with an ofrense against the laws of the State, shall have the privilege and benefit of counsel; shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded; shall have compulsory process to obtain the attendance of his own witnesses; shall be confronted with the -witnesses testi fying against him, and shall have a public and speedy trial by an impartial jury, as heretofore practiced in Georgia.

557. 9. No person shall be put in jeopardy of life or liberty more than once for the same ofrense, save on his or her own mo tion for a new trial after conviction, or in case of mistrial.

558. 10. No conviction shall work corruption of blood or general forfeiture of estate.

559. 11. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
560. 12. The power of the Courts to punish for contempts shall be limited by legislative acts.

561. 13. Legislative Acts in violation of the Constitution are void, and the Judiciary shall so declare them.

562. 14. Ex post facto laws, laws impairing the obligation of contracts, and retroactive laws injuriously affecting any right of the citizen, are prohibited.

563. 15. Laws should have a general operation, and no gen eral law affecting private rights shall be varied Jn a particular case by special legislation, except with the free consent, in writing, of all persons to be affected thereby; and no person being under a legal disability to contract, is capable of such free consent.

564-568] CONSTITUTIONAL, DOCUMENTS-_____[300
564. 16. The power of taxation over the whole State shall be exercised by the General Assembly only to raise revenue for the support of government, to pay the public debt, to provide for the common defense, and for such other purposes as the General As sembly may be specially required or empowered to accomplish by this Constitution. But the General Assembly may, by statute, grant the power of taxation for designated purposes, with such limita tions as they may deem expedient, to County authorities and mu nicipal corporations, to be exercised within their several territorial limits,
565. 17. In cases of necessity, private ways may be granted upon just compensation being first paid; and, with this exception, private property shall not be taken, save for public use, and then only on just compensation to be first provided and paid, unless there be a pressing, unforeseen necessity; in which event the Gen eral Assembly shall make early provision for such compensation.
566. 18. The right of the people to be secure in their per sons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place or places to be searched, and the persons and things to be seized.
567. 19. The person of a debtor shall not be detained in prison, after delivery, for the benefit of his creditors of all his estate not expressly exempted by law from levy and sale.
568. 20. The Government of the United States having, as a war measure, proclaimed all slaves held or owned in this State, emancipated from slavery, and having carried that proclamation into full practical effect, there shall henceforth be, within the State of Georgia, neither slavery nor involuntary servitude, save as a punishment for crime, after legal conviction thereof; provided, this acquiescence in the action of the Government of the United States is not intended to operate as a relinquishment, waiver, or estoppel of such claim for compensation of loss sustained by reason of the emancipation of his slaves, as any citizen of Georgia may hereafter make upon the justice and magnanimity of that Government.

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[ 569-573

569. 21. The enumeration of rights herein contained is a part of this Constitution, but shall not be construed to deny to the people any inherent rights which they have hitherto enjoyed.

ARTICLE II.
Legislative Department.
SECTION I.
570. 1. The Legislative, Executive, and Judicial Departments shall be distinct, and each department shall be confided to a sep arate body of magistracy. No person, or collection of persons, being- of one department, shall exercise any power properly at tached to either of the others, except in cases herein expressly pro vided.
571. 2. The Legislative power shall be vested in a General Assembly, which shall consist of a Senate and House of Repre sentatives, the members whereof shall be elected, and returns of the election made, in the manner now prescribed by law (until changed by the General Assembly), on the 15th day of November, in the present year, and biennially thereafter, on the first Wed nesday of October, to serve until their successors shall be elected; but the General Assembly may, by law, change the day of election.

572. 3. The first meeting of the General Assembly, under this Constitution, shall be on the first Monday in December next, after which it shall meet annually on the first Tuesday in Novem ber, or on such other day as the General Assembly may prescribe. A majority of each House, shall constitute a quorum to transact business, but a smaller number may adjourn from day to day and compel the attendance of its absent members, as each House may provide. No session of the General Assembly, after the first above mentioned, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof.

573. 4. No person holding any military commission, or other appointment, having- any emolument or compensation annexed thereto, under this State, or tbe United States, or either of them (except Justices of the Inferior Court, Justices of the Peace, and officers of the militia), nor any defaulter for public money, or for

574-576] CONSTITUTIONAL DOCUMENTS.

[302

any legal taxes required of him, shall have a seat in either branch of the General Assembly; nor shall any Senator or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, with tbie advice and consent of twothirds of the Senate, to any office or appointment, having any emolument or compensation annexed thereto, during the time for which he shall have been elected,

574. 5. No person convicted of any felony before any Court of this State, or of the United States, shall be eligible to any office, or appointment of honor, profit, or trust, within this State, until he shall have been pardoned.

575, 6. No person who is a collector or holder of public money, shall be eligible to any office in this State, until the same is accounted for and paid into the treasury.

SECTION- II.
576. 1. There shall be forty-four Senatorial Districts in the State of Georgia, each composed of three contiguous Counties, from each of which Districts one Senator shall be chosen, until otherwise arranged, as hereinafter provided.
The said Districts shall be constituted of Counties as follows:
The First District of Chatham, Bryan, and Emngham. The Second District of Liberty, Tatnall, and Mclntosh. The Third District of Wayne, Pierce, and Appling. The Fourth District of Glynn, Camden, and Charlton. The Fifth District of Coffee, Ware, and Clinch. The Sixth District of Echols, Eowndes, and Berrien. The Seventh District of Brooks, Thomas, and Colquit. The Eighth District of Decatur, Mitchell, and Miller. The Ninth District of Early, Calhoun, and Baker. The Tenth District of Dougherty, Lee, and Worth. The Eleventh District of Clay, Randolph, and Terrell. The Twelfth District of Stewart, Webster, and Quitman. The Thirteenth District of Sumter, Schley, and Macon. The Fourteenth District of Dooly, Wilcox, and Pulaskl. The Fifteenth District of Montgomery, Telfair, and Irwin. The Sixteenth District of Laurens, Johnson, and Emarmel. The Seventeenth District of Bullock, Scriven, and Burke.

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[ 577

The Eighteenth District of Richmond, Glasscock, and Jefferson. The Nineteenth District of Taliaferro, Warren, and Greene. The Twentieth District of Baldwin, Hancock, and Washington. The Twenty-first District of Twiggs, Wilkinson, and Jones. The Twenty-second District of Bibb, Monroe, and Pike. The Twenty-third District of Houston, Crawford, and Taylor. The Twenty-fourth District of Marion, Chattahooche, and Muscogee. The Twenty-fifth District of Harris, Upson, and Talbot. The Twenty-sixth District of Spalding, Butts, and Fayette. The Twenty-seventh District of Newton, Walton, and Clark. The Twenty-eighth District of Jasper, Putnam, and Morgan. The Twenty-ninth District of Wilkes, Lincoln, and Columbia. The Thirtieth District of Oglethorpe, Madison, and Elbert. The Thirty-first District of Hart, Franklin, and Habersham. The Thirty-second District of White, L/umpkin, and Dawson. The Thirty-third District of Hall, Banks, and Jackson. The Thirty-fourth District of Gwinnett, DeKalb, and Henry. The Thirty-fifth District of Clayton, Fulton, and Cobb. The Thirty-sixth District of Meriwether, Coweta, and Camp bell. The Thirty-seventh District of Troup, Heard, and Carroll. The Thirty-eighth District of Haralson, Polk, and Paulding. The Thirty-ninth District of Cherokee, Milton, and Forsyth. The Fortieth District of Union, Towns, and Rabun. The Forty-first District of Fannin, Gilmer, and Pickeiis. The Forty-second District of Bartow, Floyd, and Chattooga. The Forty-third District of Murray, Whitfield, and Gordon. The Forty-fourth District of Walker, Dade, and Catoosa.

If a new county shall be established, it shall be added to a Dis trict which it adjoins. The Senatorial Districts may be changed by the General Assembly, but only at the first session after the taking of each new census by the United States Government, and their number shall never be increased.

577. 2. No person shall be a Senator who shall not have at tained to the ag-e of twenty-five years and be a citizen of the United States, and have been for three years an inhabitant of this State, and for one year a resident of the District from which he is chosen.

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[ 304

578. 3. The Presiding officer shall be styled the President of the Senate, and shall be elected viva voce from their own body.

579. 4. The Senate shall have the sole power to try all im peachments. When sitting for that purpose, they shall be on oath or affirmation, and no person shall be convicted without the con currence of two-thirds of the members present. Judgment, in cases of impeachment, shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, profit, or trust, within this State; but the party convicted shall, neverthe less, be liable and subject to indictment, trial, judgment, and pun ishment, according to law.

SECTION III.
580. 1. The House of Representatives shall be composed as follows: The thirty-seven counties having the largest representative population shall have two Representatives each; every other county shall have one Representative. The designation of the Counties having two Representatives shall be made by the General Assembly immediately after the taking of each census.

581. 2, No person shall be a Representative who shall not have attained to the age of twenty-one years, and be a citizen of the United States, and have been for three years an inhabitant of this State, and for one year a resident of the County which he represents.

582. 3. The presiding officer of the House of Representa tives shall be styled the Speaker; and shall be elected viva voce from their own body.

583. 4. They shall have the sole power to impeach all per sons who have been or may be in office.

584. 5. All bills for raising revenue or appropriating money, shall originate in the House of Representatives, but the Senate may propose or concur in amendments, as in other bills.

SECTION IV.
585. 1. Each House shall be the judge of the election re turns and qualifications of its own members, and shall have power

305]

CONSTITUTION OF 1865.

[ 586-590

to punish them for disorderly behavior or misconduct, by censure, fine, imprisonment, or expulsion, but no member shall be expelled except by a vote of two-thirds of the House from which he is ex pelled.

586. 2. Each House may punish, by imprisonment not ex tending beyond the session, any person not a member, "who shall be guilty of a contempt by any disorderly behavior in its presence; or who, during the session, shall threaten injury to the person or estate of any member, for any thing said or done in either House; or who shall assault any member therefor; or who shall assault or arrest any witness going to or returning therefrom; or who shall rescue, or attempt to rescue, any person arrested by order of either House.

587. 3. The members of both Houses shall be free from ar rest during their attendance on the General Assembly, and in going to and returning therefrom, except for treason, felony, or breach of the peace. And no member shall be liable to answer in any other place, for anything spoken in debate in either House.

588. 4. Each House shall keep a journal of its proceedings, and publish them immediately after its adjournment. The yeas and nays of the members on any question, shall, at the desire of one-fifth of the members present, be entered on the journals. The original journals shall be preserved (after publication) in the office of the Secretary of State, but there shall be no other record thereof.

589. 5. Every bill, before it shall pass, shall be read three times, and on three separate and distinct days, in each House, un less in cases of actual invasion or insurrection. Nor shall any law or ordinance pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.

590. 6. All acts shall be signed by the President of the Sen ate and the Speaker of the House of Representatives, and no bill,' ordinance, or resolution, intended to have the effect of law, which shall have been rejected by either House, shall be again proposed under the same or any other title, without the consent of twothirds of the House by which the same was rejected.

591-598 ] CONSTITUTIONAL DOCUMENTS.

[ 306

591. 7. Neither House shall adj ourn for more than three days, nor to any other place, without the consent of the other, and in case of disagreement between the two Houses, on a question of adjournment, the Governor may adjourn them.

592. 8. Every Senator and Representative, before taking his seat, shall take an oath or affirmation to support the Constitution of the United States and of this State, and also that he hath not practiced any unlawful means, either directly or indirectly, to pro cure his election. And every person convicted of having given or offered a bribe, shall be disqualified from serving as a member of either House for the term for which he was elected.

593. 9. Whenever this Constitution requires an act to be passed by two-thirds of both Houses, the yeas and nays on the passage thereof, shall be entered on the journals of each.
SECTION V.
594. 1. The General Assembly shall have power to make all laws and ordinances consistent with this Constitution, and not re pugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.

595. 2. They may alter the boundaries of Counties, and lay off and establish new Counties, but every bill to establish a new county shall be passed by at least two-thirds of the members pres ent, in each branch of the General Assembly.

596. 3. The General Assembly shall have power to appro priate money for the promotion of learning and science, and to pro vide for the education of the people, and shall provide for the early resumption of the regular exercises of the University of Georgia, by the adequate endowment of the same.

597. 4. The General Assembly shall have power, by a vote of two-thirds of each branch, to grant pardons in cases of final convic tion for treason, and to pardon or commute after final conviction in capital cases.

598. 5. It shall be the duty of the General Assembly at its next session, and thereafter as the public "welfare may require, to

307]

CONSTITUTION OF 1865.

[599-602

provide by law for the government of free persons of color, or the protection and security of their persons and property, guarding them and the State against any evil that may arise from their sudden emancipation, and prescribing in what cases their testimony shall be admitted in the Courts ; for the regulation of their transactions with citizens; for the legalizing of their existing, and the contracting and solemnization of their future marital relations, and connected there with their rights of inheritance and testamentary capacity; and for the regulation or prohibition of their immigration into this State from other States of the Union, or elsewhere. And further, it shall be the duty of the General Assembly to confer jurisdiction upon Courts now existing, or to create County Courts with jurisdiction in criminal cases excepted from the exclusive jurisdiction of the Superior Court, and in civil cases whereto free persons of color may be parties.

SECTION VI.
599. 1. The General Assembly shall have no power to grant corporate powers and privileges to private companies, except to banking, insurance, railroad, canal, plank road, navigation, mining, express, lumber, manufacturing, and telegraph companies; nor to make or change election precincts; nor to establish bridges and fer ries ; nor to change names, or legitimate children; but shall, by law, prescribe the manner in which such power shall be ex ercised by the Courts. But no bank charter shall be granted or extended, and no act passed, authorizing the suspension of specie payment by any chartered bank, except by a vote of two-thirds of each branch of the General Assembly.

600. 2. No money shall be drawn from the Treasury of thi^ State, except by appropriation made by law; and a regular state ment and account of the receipt and expenditures of all public money shall be published from time to time.

601. 3. No vote, resolution, law, or order, shall pass, grant ing a donation or gratuity in favor of any person, except by the con currence of two-thirds of the General Assembly.

602. 4. No law shall be passed by which a citizen shall be compelled, directly or indirectly, to become a stockholder in, or con tribute to a railroad, or other work of internal improvement, with-

603-604 ] CONSTITUTIONAL DOCUMENTS.

[ 308

out his consent, except the inhabitants of a corporate town or city. This provision shall not be construed to deny the power of taxation for the purpose of making levees or dams to prevent the overflow of rivers.

ARTICI,:^ III,
Executive Department.
SECTION I.
603. 1. The Executive power shall be vested in a Governor, the first of whom, under this Constitution, shall hold the office from the time of his inauguration, as by law provided, until the election and qualification o his successor. Each Governor subsequently elected shall hold the office for two years, and until his successor shall be elected and qualified, and shall not be eligible to re-election, after the expiration of a second term, for the period of four years. He shall have a competent salary, which shall not be increased nor diminished during the time for which he shall have been elected; neither shall he receive, within that time, any other emoluments from the United States, or either of them, nor from any foreign power.

604. 2. The Governor shall be elected by the persons qualified to vote for members of the General Assembly, on the fifteenth day of November, in the year eighteen hundred and sixty-five, and bien nially thereafter, on the first \Vednesday of October, until such time be altered by law, which election shall be held at the places of hold ing general elections in the several Counties of this State, in the manner prescribed for the election of members of the General As sembly. The returns for every election of Governor shall be sealed up by the managers, separately from other returns, and directed to the President of the Senate and Speaker of the House of Repre sentatives, and transmitted to the Governor, or the person exercis ing the duties of Governor for the time being, who shall, without opening the said returns, cause the same to be laid before the Sen ate on the day after the two houses shall have been organized; and they shall be transmitted by the Senate to the House of Represent atives. The members of each branch of the General Assembly shall convene in the Representative Chamber, and the President of the Senate and the Speaker of the House of Representatives shall open and publish the returns in presence of the General Assembly; and

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CONSTITUTION OF 1865-

[ 605-609

the person having the majority of the whole number of votes given in shall be declared duly elected Governor of this State; but if no person have such majority, then from the two persons having the highest number of votes., who shall be in life, and shall not de cline an election at the time appointed for the Legislature to elect, the General Assembly shall immediately elect a Governor viva voce ; and in all cases of election of a Governor by the General Assembly, a majority of the votes of the members present shall be necessary for a choice. Contested elections shall be determined by both houses of the General Assembly, in such manner as shall be pre scribed by law.

605. 3. No person shall be eligible to the office of Governor who shall not have been a citizen of the United States twelve years, and an inhabitant of this State six years, and who hath not attained the age of thirty years.

606. 4. In case of the death, resignation, or disability of the Governor, the President of the Senate shall exercise the Hxecutive powers of the government until such disability be removed, or a successor is elected and qualified. And in case of the death, resig nation, or disability of the President of the Senate, the Speaker of the House of Representatives shall exercise the Executive power of the government until the removal of the disability or the election and qualification of a governor.

607. 5. The Governor shall, before he enters on the duties of his office, take the following oath or affirmation : "I do solemnly swear, (or affirm, as the case may be,) that I will faithfully execute the office of Governor of the State of Georgia, and will, to the best of my abilities, preserve, protect, and defend the Constitution thereof, and (of) the Constitution of the United States of America."
SECTION II.
608. 1. The Governor shall be Commander-hi-Chief of the army and navy of this State, and of the militia thereof.

609. 2, I-Te shall have power to grant reprieves for offenses against the State, except in cases of impeachment, and to grant par dons, or to remit any part of a sentence, in all cases after convic-

610-614] CONSTITUTIONAL DOCUMENTS.

[310

tion, except for treason, murder, or other capital offenses, in which cases he may respite the execution, and make report thereof to the next General Assembly.

610. 3. He shall issue writs of election to fill vacancies that happen in the Senate or House of Representatives, and shall have power to convene the General Assembly on extraordinary occasions, and shall give them, from time to time, information of the state of the republic, and recommend to their consideration such measures as he may deem necessary and expedient.

611. 4. When any office shall become vacant by death, resig nation, or otherwise, the Governor shall have power to fill such va cancy unless otherwise provided for by law, and persons so ap pointed shall continue in office until a successor is appointed agree ably to the mode pointed out by this Constitution, or by law in pursuance thereof.

612. 5. A person once rejected by the Senate shall not be reappointed by the Governor to the same office during the same ses sion or the recess thereafter.

613. 6. The Governor shall have the revision of all bills passed by both Houses, before the same shall become laws, but two-thirds of each House may pass a law notwithstanding his dis sent ; and if any bill should not be returned by the Governor within five days (Sundays excepted) after it has been presented to him, the same shall be a law, unless the General Assembly, by their adjourn ment, shall prevent its return. He may approve any appropriation and disapprove any other appropriation in the same bill, and the latter shall not be effectual unless passed by two-thirds of each House.

614. 7. Every vote, resolution, or order, to which the con currence of both Houses may be necessary, except on a question of election or adjournment, shall be presented to the Governor, and before it shall take effect, be approved by him, or being disapproved, shall be repassed by two-thirds of each House, according to the rules and limitations prescribed in case of a bill.

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CONSTITUTION OF 1865-

[615-620

615. 8. There shall be a Secretary of State, a Comptroller General, a Treasurer, and Surveyor General, elected by the General Assembly, and they shall hold their offices for the like period as the Governor, and shall have a competent salary, which shall not be increased or diminished during the period for -which they shall have been elected. The General Assembly may at any time consolidate any two of these offices, and require all the duties to be discharged by one officer.

616. 9. The Great Seal of the State shall be deposited in the office of the Secretary of State, and shall not be affixed to any in strument of writing, but by order of the Governor or General As sembly, and that used previously to the year 1861, shall be the Great Seal of the State.

617. 1O. The Governor shall have power to appoint his own secretaries, not exceeding two in number.

Judicial Department.
SECTION I.
618. 1. The Judicial powers of this State shall be vested in a Supreme Court for the correction of errors, a Superior, Inferior, Ordinary, and Justices' Courts, and in such other Courts as have been, or may be, established by law.
619. 2. The Supreme Court shall consist of three judges, who shall be elected by the General Assembly, for such term of years--not less than six--as shall be prescribed by law, and shall continue in office until their successors shall be elected and qiialified, removable by the Governor on the address of two- thirds of each branch of the General Assembly, or by impeachment and conviction thereon.
620. 3. The said Court shall have no original jurisdiction, but shall be a Court alone for the trial and correction of errors in law and equity from the Superior Courts of the several Circuits, and from the City Courts of the Cities of Savannah and Augusta, and such other like Courts as may hereafter be established in other

621-624] CONSTITUTIONAL DOCUMENTS.

[312

cities, and shall sit "at the Seat of Government" at such time or times in each year, as the General Assembly shall prescribe, for the trial and determination of writs of error from said Courts.

621. 4. The said Court shall dispose of and finally determine every case on the docket of such Court, at the first or second term after such writ of error brought; and in case the plaintiff in error shall not be prepared at the first term of such Court, after error brought, to prosecute the case, unless precluded by some providen tial cause from such prosecution, it shall be stricken from the docket and the judgment below affirmed. And in any case that rnay occur, the Court may, in its discretion, withhold its judgment until the term next after the argument thereon.

SECTION II.
622. 1. The Judges of the Superior Courts shall be elected on the first Wednesday in January, until the Legislature shall other wise direct, immediately before the expiration of the term for which they or either of them may have been appointed or elected, from tthee Circcuuitts in wwhcich ttheeyy are to serve, by a m maorrty vootee of t_h_ee people of the Circuit qualified to vote for members of the General Assembly, for the term of four years--vacancies to be filled as is

removae y te overnor on te aress o two-trs o eac branch of the General Assembly, or by impeachment and convic tion thereon.
623. 2. The Superior Court shall have exclusive jurisdiction in all cases of divorce, both total and partial; but no total divorce shall be granted except on the concurrent verdicts of two special juries. In each divorce case, the Court shall regulate the rights and disabilities of the parties.
624. 3. The Superior Courts shall also have exclusive juris diction in all criminal cases, except such as relate to fines for neg lect of duty, contempts of Court, violation of road laws, obstructions of water courses, and in all other minor ofFenses which do not sub ject the offender or offenders to loss of life, limb, or member, or to confinement in the penitentiary; jurisdiction of all such cases shall

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CONSTITUTION OF 1865.

[ 625-632

be vested in such County or Corporation Courts, or such other Courts, judicatures., or tribunals as now exist, or may hereafter be constituted, under such rules and regulations as the Legislature may have directed, or may hereafter by law direct.

625. 4. All criminal cases shall be tried in the County where the crime was committed, except in cases where a jury cannot be obtained.
626. 5. The Superior Court shall have exclusive jurisdiction in all cases respecting titles to land, which shall be tried in the county where the land lies ; and also in all equity causes which shall be tried in the County where one or more of the defendants reside, against whom substantial relief is prayed.

627. 6. It shall have appellate jurisdiction in all such cases as may be provided by law.

628. 7. It shall have power to correct errors in inferior judicatories by writ of certiorari, and to grant new trials in the Su perior Courts on proper and legal grounds.

629. 8. It shall have power to issue writs of mandamus, pro hibition, scire facias, and all other writs which may be necessary for carrying its powers fully into effect.

630. 9. The Superior Court shall have jurisdiction in all other civil cases, and in them the General Assembly may give concurrent jurisdiction to the Inferior Court, or such other County Court as they may hereafter create, which cases shall be tried in the County where the defendant resides.

631. 10. In case of joint obligors, or joint promisors or copartners, or joint trespassers residing in different Counties, the suit may be brought in either County.

632. 11. In case of a maker and indorser or indorsers of promissory notes residing in different Counties in this State, the same may be sued in the County where the maker resides.

633-638 ] CONSTITUTIONAL DOCUMENTS.

[314

633. 12. The Superior Court shall sit in each County not less than twice in every year, at such stated times as have been or may be appointed by the General Assembly, and the Inferior and County Courts at such times as the General Assembly may direct.

SECTION III.
634. 1. The Judges shall have salaries adequate to their serv ices fixed by law, which shall not be diminished nor increased during their continuance in office, but shall not receive any other perqui sites or emoluments whatever, from parties or others, on account of any duty required of them.

635. 2. There shall be a State's Attorney and Solicitors, elected in the same manner as the Judges of the Superior Court, and commissioned by the Governor, who shall hold their offices for the term of four years, or until their successors shall be appointed and qualified, unless removed by sentence on impeachment, or by the Governor, on the address of two-thirds of each branch of the General Assembly. They shall have salaries adequate to their serv ices fixed by law, which shall not be increased or diminished during their continuance in office.

636. 3. The Justice or Justices of the Inferior Court, and the Judges of such other County Courts as may by law be created shall be elected in each County by the persons entitled to vote for mem bers of the General Assembly.

637. 4. The Justices of the Peace shall be elected in each district by the persons entitled to vote for members of the General Assembly.

638. 5. The powers of a Court of Ordinary and Probate, shall be vested in an Ordinary for each County, from whose de cision there may be an appeal to the Superior Court, under regula tions prescribed by law. The Ordinary shall be, ex officio, Clerk of said Court, and may appoint a deputy Clerk. The Ordinary, as Clerk, or his deputy, may issue citations, and grant temporary letters of administration, to hold until permanent letters are granted, and said Ordinary, as Clerk, or his deputy, may grant marriage licenses. The Ordinaries in and for the respective

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CONSTITUTION OF 1865.

[ 639-642

Counties shall be elected, as other County officers are, on the first Wednesday in January, 1868, and every fourth year thereafter, and shall be commissioned by the Governor for the term of four years. In case of any vacancy of said office of Ordinary, from any cause, the same shall be filled by election., as is provided in relation to other County officers, and until the same is filled, the Clerk of the Superior Court for the time being, shall act as Clerk of said Court of Ordinary.

ARTICLE V.
Miscellaneous Provisions.
SECTION I.
639. 1. The electors of members of the General Assembly shall be free white male citizens of this State, and shall have at tained the age of twenty-one years, and have paid all taxes which may have been required of them, and which they have had an opportunity of paying agreeably to law, for the year preceding the election, shall be citizens of the United States, and shall have resided six months either in the district or county, and two years within this State, and no person not qualified to vote for members of the General Assembly shall hold any office in this State.
640. 2. All elections by the General Assembly shall be viva voce, and the vote shall always appear on the Journal of the House of Representatives, and where the Senate and House of Repre sentatives unite for the purpose of electing, they shall meet in the Representative Chamber, and the President of the Senate shall, in such cases, preside and declare the person or persons elected.
641. 3. In all elections by the people, the electors shall vote by ballot until the General Assembly shall otherwise direct.
642. 4. All civil officers heretofore commissioned by the Governor, or who have been duly appointed, or elected, since the first day of January last, but who have not received their commis sions, and who have not resigned, nor been removed from office and whose terms of office shall not have expired, shall continue in the exercise of the duties of their respective offices during the periods for which they were duly appointed or duly elected as

643-644 ] CONSTITUTIONAL DOCUMENTS.

[ 316

aforesaid, and commissioned, and until their successors shall be appointed under the provisions of this Constitution, unless removed from office as herein provided,

643. 5. The laws of general operation now of force in this State, are--1st, as the supreme law, the Constitution of the United States, the laws of the United States in pursuance thereof, and all treaties made under the authority of the United States; 2d, as next in authority thereto, this Constitution ; 3d, in subordination to the foregoing, all laws declared of force by an act of the General Assembly of this State, assented to December 19th, A. D. eighteen hundred and sixty, entitled "An act to approve, adopt, and make of force in the State of Georgia, a revised code of laws, prepared iincler the direction and by authority of the General Assembly thereof, and for other purposes therewith connected," an act of the General Assembly aforesaid, assented to December 16th, A. D. eighteen hundred and sixty-one, amendatory to the foregoing, and an act of the General Assembly, aforesaid, assented to December 33th, A. D. eighteen hundred and sixty-two, entitled "An act to settle the conflicts between the Code and the legislation of this General Assembly;" also, all acts of the General Assembly afore said, passed since the date last written, altering, amending, repeal ing, or adding to any portion of law hereinbefore mentioned (the latter enactment having preference in case of conflict) ; and also, so much of the common and statute law of Kngland, and of the statute law of this State, of force in Georgia in the year eighteen hundred and sixty, as is not expressly superseded, by, nor incon sistent with said Code, though not embodied therein, except so much of the law" aforesaid as may violate the supreme law, herein recognized, or may conflict with this Constitution, and except to so much thereof as refers to persons held in slavery, which excepted laws shall henceforth be inoperative and void and any future General Assembly of this State shall be competent to alter, amend, or repeal any portion of the law declared to be of force in this Third Specification of the fifth Clause of this Fifth Article. If in any statute law herein declared, of force, the word "Confederate" occurs before the word States, such law is hereby amended by substituting the word "United" for the word "Confederate."

644. 6. Local and private statutes heretofore passed, in tended for the benefit of Counties, cities, towns, corporations, and

317 ]

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[ 645-649

private persons, not inconsistent with the supreme law, nor with this Constitution, and which have neither expired by their own limitations nor have been repealed, shall have the force of Statute law subject to judicial decision, as to their validity when enacted, and to any limitations imposed by their own terms.

645. 7. All judgments, decrees, orders, and other proceed ings of the several Courts of this State heretofore made, within the limits of their several jurisdictions, are hereby ratified and af firmed, subject only to past or future reversal by motion for new trial, appeal, bill of review, or other proceeding, in conformity with the law of force when they were made.

646. 8. All rights, privileges and immunities -which may have vested in, or accrued to any person or persons, in his, her, or their own right, or in any fiduciary capacity, under and in virtue of any act of the General Assembly, or any judgment, decree, or order, or other proceeding of any Court of competent jurisdiction in this State, since the first day of January, A. D. eighteen hundred and sixty-one, shall be held inviolate by all Courts before which they may be brought in question, unless attacked for fraud.

647. 9. The marriage relation between white persons and persons of African descent, is forever prohibited, and such mar riage shall be null and void; and it shall be the duty of the General Assembly to enact laws for the punishment of any officer who shall knowingly issue a license for the celebration of such marriage, and any officer or minister of the gospel who shall marry such persons together.

648. 10. All militia and County officers shall be elected by the people, under such regulations as have been or may be pre scribed by law.

649. 11. This Constitution shall be altered or amended only by a convention of the people, called for that purpose by act of the General A ssembly.
Herschel V. Johnson, President. Signed Nov. 7th, 1865. Attest: J. D. Waddell, Secretary.

650-654 ] CONSTITUTIONAL DOCUMENTS.

[ 318

CONSTITUTION OF 1868.
Preamble.
We, the people of Georgia, in order to form a permanent gov ernment, establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity, acknowledg ing and invoking the guidance of Almighty God, the author of all good government, do ordain and establish this constitution for the State of Georgia:
A&TICI& I.
Declaration of Fundamental Principles.
650. Section 1. Protection to person and property is the paramount duty of government, and shall be impartial and com plete.
651. Sec. 2. All persons born or naturalized in the United States, and resident in this State, are hereby declared citizens of this State, and no laws shall be made or enforced which shall abridge the privileges or immunities of citizens of the United States, or of this State, or deny to any person within its jurisdic tion the equal protection of its laws. And it shall be the duty of the General Assembly, by appropriate legislation, to protect every person in the due enjoyment of the rights, privileges, and immuni ties guaranteed in this section.
652. Sec. 3. No person shall be deprived of life, liberty, or property, except by due process of law.
653. Sec. 4. There shall be within the State of Georgia neither slavery nor involuntary servitude, save as a punishment for crime after legal conviction thereof.
654. Sec. 5. The right of the people to appeal to the courts, to petition government on all matters, and peaceably to assemble for the consideration of any matter, shall never be impaired.

'319]

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[ 655-661

655. Sec. 6. Perfect freedom of religious sentiment shall be, and the same is hereby secured, and no inhabitant of this State shall ever be molested in person or property, or prohibited from holding any public office or trust, on account of his religious opinions; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the people.

656. Sec. 7. Every person charged with an offense against the laws shall have the privilege and benefit of counsel, shall be furnished, on demand, with a copy of the accusation and a list of the witnesses on whose testimony the charge against him is founded, shall have compulsory process to obtain the attendance of his own witnesses, shall be confronted with the witnesses testify ing against him, and shall have a public and speedy trial by an im partial jury.

657. Sec. 8. No person shall be put in jeopardy of life or liberty more than once for the same offence, save on his or her own motion for a new trial after conviction, or in case of mistrial.

658. Sec. 9. Freedom of speech and freedom of the press are inherent elements of political liberty. But while every citizen may freely speak, or write, or print on any subject, he shall be re sponsible for the abuse of the liberty.

659. Sec. 10. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place or places to be searched, and the person or things to be seized.

660. Sec. 11. The social status of the citizen shall never be the subject of legislation.

661. Sec. 12. No person shall be molested for his opinions, or be subject to any civil or political incapacity, or acquire any civil or political advantage in consequence of such opinions.

662-673 ] CONSTITUTIONAL DOCUMENTS.

[320

662. Sec. 13. The writ of habeas corpus shall not be sus pended unless, in case of rebellion or invasion, the public safety may require it.

663. Sec. 14. A well-regulated militia being necessary to the security of a free people, the right of the people to keep and bear arms shall not be infringed; but the general assembly shall have power to prescribe by law the manner in which arms may be borne.

664. Sec. 15. The punishment of all frauds shall be pro vided by law.

665. Sec. 16. Hxcessive bail shall not be required, nor ex cessive fines imposed, nor cruel and unusual punishments inflicted, nor shall any person be abused in being arrested, whilst under arrest, or in prison.

666. Sec. 17. The power of the courts to punish for con tempt shall be limited by legislative acts.

667. Sec. 18. There shall be no imprisonment for debt.

668. Sec. 19. In all prosecutions or indictments for libel the truth may be given in evidence, and the jury shall have the right to determine the law and the facts.

669. Sec. 20. Private ways may be granted upon just com pensation being paid by the applicant.

670. Sec. 21. All penalties shall be proportioned to the nature of the offense.

671. Sec. 22. Whipping, as a punishment for crime, is pro hibited.

672. Sec. 23. No lottery shall be authorized, or sale of lot tery-ticket allowed, in this State, and adequate penalties for such sale shall be provided by law.

673. Sec. 24. No conviction shall work corruption of blood, and no conviction of treason shall work a general forfeiture of estate longer than during the life of the person attained.

321 ]

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[ 674-681

674. Sec. 25. Treason against the State of Georgia shall consist only in levying war against the State, or the United States, or adhering to the enemies thereof, giving them aid and comfort; and no person shall be convicted of treason except on the testi mony of two witnesses to the same overt act, or his own confes sion in open court.

675. Sec. 26. Laws shall have a general operation, and no general law, affecting private rights, shall be varied, in any par ticular case, by special legislation, except with the free consent, in writing, of all persons to be affected thereby; and no person under legal disability to contract is capable of such free consent.

676. Sec. 27. The power of taxation over the whole State shall be exercised by the general assembly only to raise revenue for the support of government, to pay the public debt, to provide a general school-fund, for common defence and for public im provement ; and taxation on property shall be ad valorem only, and uniform on all species of property taxed.

677. Sec. 28. The general assembly may grant the power of taxation to county authorities and municipal corporations, to be exercised within their several territorial limits.

678. Sec. 29. No poll-tax shall be levied except for educa tional purposes and such tax shall not exceed one dollar annually on each poll.

679. Sec. 30. Mechanics and laborers shall have liens upon the property of their employers for labor performed or material furnished, and the legislature shall provide for the summary en forcement of the same.

680. Sec. 31. The legislative, executive, and judicial depart ments shall be distinct; and each department shall be confided to a separate body of magistracy. No person, or collection of persons, being of one department, shall exercise any power properly at tached to either of the others, except in cases herein expressly provided.

681. Sec. 32. Legislative acts in violation of this constitu--21

682-684] CONSTITUTIONAL DOCUMENTS.

[322

tion, or the Constitution of the United States, are void, and the judiciary shall so declare them.

682. Sec. 33. The State of Georgia shall ever remain a member of the American Union; the people thereof are a part of the American nation; every citizen thereof owes paramount al legiance to the Constitution and Government of the United States, and no law or ordinance of this State, in contravention or subver sion thereof, shall ever have any binding force.

ARTICLE II.
Franchise and Elections.
683. Section 1. In all elections by the people the electors shall vote by ballot.

684. Sec. 2. Every male person born in the United States, and every male person who has been naturalized, or who has legally declared his intention to become a citizen of the United States, twenty-one years old or upward, who shall have resided in this State six months next preceding the election, and shall have resided thirty days in the county in "which he offers to vote, and shall have paid all taxes which may have been required of him, and which he may have had an opportunity of paying, agreeably to law, for the year next preceding the election (except as hereinafter provided), shall be deemed an elector; and every male citizen of the United States, of the age aforesaid (except as hereinafter pro vided), who may be a resident of the State at the time of the adoption of this constitution shall be deemed, an elector, and shall have all the rights of an elector, as aforesaid : Provided, That no soldier, sailor, or marine in the military or naval service of the United States shall acquire the rights of an elector by reason of being stationed on duty in this State; and no person shall vote who, if challenged, shall refuse to take the following oath:
"I do swear that I have not given or received, nor do I expect to give or receive, any money, treat, or other thing of value, by which my vote, or any vote, is affected, or expected to be affected at this election, nor have I given or promised any reward, or made any threat, by which to prevent any person from voting at this election."

323 ]

CONSTITUTION OF 1868.

[ 685-692

685. Sec. 3. No person convicted of felony or larceny be fore any court of this State, or of or in the United States, shall be eligible to any office or appointment of honor or trust within this State, unless he shall have been pardoned.

686. Sec. 4. No person who is the holder of any public moneys shall be eligible to any office in this State until the same is accounted for and paid into the treasury.

687. Sec. 5. No person who, after the adoption of this con stitution, being a resident of this State, shall engage hi a duel m this State, or elsewhere, or shall send or accept a challenge, or be aider or abetter to such duel, shall vote or hold office in this State, and every such person shall also be subject to such punishment as the law may prescribe.

688. Sec. 6. The general assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote, or hold office : 1st. Those who shall have been convicted of treason, embezzle ment of public funds, malfeasance in office, crime punishable by law with imprisonment in the penitentiary, or bribery; 2d. Idiots or insane persons.

689. Sec. 7. Klectors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest for five days before an election, during the election, and two days subse quent thereto.

690. Sec. 8. The sale of intoxicating liquors on days of election is prohibited.

691. Sec. 9. Returns of election for all civil officers elected by the people, who are to be commissioned by the governor, and also for the members of the general assembly, shall be made to the secretary of state, unless otherwise provided by law.

692. Sec. 10. The general assembly shall enact all laws giving adequate protection to electors before, during, and subse quent to elections.

693-697 ] CONSTITUTIONAL DOCUMENTS.

[ 324

693. Sec. 11. The election of governor, members of Con gress, and of the general assembly, after the year 1868, shall com mence on the Tuesday after the first Monday in November, unless otherwise provided by law.

ARTICLE III.
Legislative Department.
694. Section 1. One. The legislative power shall be vested in a general assembly, which shall consist of a senate and house of representatives, and, until, otherwise directed, the members thereof, after the first election, shall be elected, and the returns of the election made, as now prescribed by law.

695. Two. The members of the senate sball be elected for four years, except that the members elected at the first election from the twenty-two senatorial districts numbered in this consti tution \vith odd numbers, shall only hold their office for two years. The members of the house of representatives shall be elected for two years. The election for members of the general assembly shall begin on Tuesday after the first Monday in November of every second year, except the first election, which shall be within sixty days after the adjournment of this convention; but the gen eral assembly may by law change the time of election, and the members shall hold until their successors are elected and qualified.

696. Three. The first meeting of the general assembly shall be within ninety days after the adjournment of this convention, after which it shall meet annually on the second Wednesday in January, or on such other day as the general assembly may pre scribe. A majority of each house shall constitute a quorum to transact business : but a smaller number may adjourn from day to day, and compel the presence of its absent members as each house may provide. No session of the general assembly after the second under this constitution, shall continue longer than forty days, un less prolonged by a vote of two-thirds of each branch thereof.

697. Kour. No person holding a military commission, or other appointment or offices, having any emolument or compensa tion annexed thereto, under this State or the United States, or either of them, except justices of the peace and officers of the

325]

CONSTITUTION OF 1868.

[698-699

militia, nor any defaulter for public money, or for any legal taxes required of him, shall have a seat in either house; nor shall any senator or representative, .after his qualification as such, be elected by the general assembly, or appointed by the governor, either with or without the advice and consent of the senate, to any office or ap pointment, having any emolument annexed thereto, during the time for which he shall have been elected.

698. Five. The seat of a member of either house shall be vacated on his removal from the district from which he was elected.

699. Sec. 2. One. There shall be forty-four senatorial dis tricts in this State, composed each of three contiguous counties, from each of which districts one senator shall be chosen. Until otherwise arranged, as hereinafter provided, the said districts shall be constituted as follows :--
The first district, of Chatham, Bryan, and Effingham. The second district, of Liberty, Tatnall, and Mclntosh. The Third district, of Wayne, Pierce, and Appling. The fourth district, of Glynn, Camden, and Charlton. The fifth district, of Coffee, Ware, and Clinch. The sixth district, of Kchols, I_,owndes, and Berrien. The seventh district, of Brooks, Thomas, and Colquitt. The eighth district, of Decatur, Mitchell, and Miller. The ninth district, of Early, Calhoun, and Baker. The tenth district, of Dougherty, L,ee, and AVorth. The eleventh district, of Clay, Randolph, and Terrell. The twelfth district, of Stewart, Webster, and Quitman. The thirteenth district, of Sumter, Schley, and Macon. The fourteenth district, of Dooly, Wilcox, and Pulaski. The fifteenth district, of Montgomery, Telfair, and Irwin. The sixteenth district, of Laurens, Johnson, and Emanuel. The seventeenth district, of Bullock, Scriven, and Burke. The eighteenth district, of Richmond, Glasscock, and Jefferson. The nineteenth district, of Taliaferro, Warren, and Greene. The twentieth district, of Baldwin, Hancock, and Washington. The twenty-first district, of Twiggs, AVilkinson, and Jones. The twenty-second district, of Bibb, Monroe, and Pike. The twenty-third district, of Houston, Crawford, and Taylor.

700-702 ] CONSTITUTIONAL DOCUMENTS.

[ 326

The twenty-fourth district, of Marion, Chattahoochee, and Muscogee.
The twenty-fifth district, of Harris, Upson, and Talbot. The twenty-sixth district, of Spalding, Butts, and Fayctte, The twenty-seventh district, of Newton, Walton, and Clarke. The twenty-eighth district, of Jasper, Putnam, and Morgan. The twenty-ninth district, of Wilkes, Lincoln, and Columbia. The thirtieth district, of Oglethorpe, Madison, and Klhert. The thirty-first district, of Hart, Franklin, and Habersham. The thirty-second district, of White, Lumpkin, and Dawson. The thirty-third district, of Hall, Banks, and Jackson. The thirty-fourth district, of Gwinnett, DeKalb, and Henry. The thirty-fifth district, of Clayton, Fulton, and Cobb. The thirty-sixth district, of Meriwether, Coweta, and Campbell. The thirty-seventh district, of Tronp, Heard, and Carroll. The thirty-eighth district, of Haralson, Polk, and Paulding. The thirty-ninth district, of Cherokee. Milton, and Forsyth. The fortieth district, of Union, Towns, and Rabun. The forty-first district, of Fannin, Gilmer, and Pickens. The forty-second district, of Bartow, Floyd, and Chattooga. The forty-third district, of Murray, Whitfield, and Gordon. The forty-fourth district, of Walker, Dade, and Catoosa.
If a new county be established it shall be added to a district which it adjoins, and from whicb the larger portion of its territory is taken. The senatorial districts may be changed b}*- the general assembly, but only at the first session after the publication of each census by the United States Government, and their number shall not be increased.

700. Two. The senators shall be citizens of the United States, who have attained the age of twenty-five years, and who, after the first election under this constitution, shall have been citi zens of this State for two years, and for one year resident of the district from which elected.

701. Three. The presiding officer of the senate shall be styled the president of the senate, and shall be elected, viva voce from the senators.

702. Four. The senate shall have the sole power to try im peachments. When sitting for that purpose the members shall be

327 ]

CONSTITUTION OF 1868.

[ 703-707

011 oath or affirmation, and shall be presided over by one of the judges of the supreme court, selected for that purpose by a viva voce vote of the senate; and no person shall be convicted without the concurrence of two-thirds of the members present. Judgments in cases of impeachment shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit within this State; but the party convicted, shall, nevertheless, be liable and subject to indictment, trial, judg ment, and punishment according to law.

703. Sec. 3. One. The house of representatives shall con sist of one hundred and seventy-five representatives, apportioned as follows :--to the six largest counties, to wit, Chatham, Richmond, Fulton, Bibb, Houston, and Burke, three representatives each; to the thirty-One next largest, to wit, Bartow, Columbia, Cobb, Coweta, Clarke, Decatur, Dougherty, Floyd, Gwinnett, Greene, Hancock, Harris, Jefferson, Lee, Muscogee, Monroe, Meriwether, Morgan, Macon, Newton, Oglethorpe, Pulaski, Randolph, Sumter, Stewart, Troup, Thomas, Talbot, "Washington, Wilkes, and War ren, two representatives each; and to the remaining ninety-five counties, one representative each.

704. Two. The above apportionment may be changed by the General Assembly after each census by the United States Gov ernment, but in no event shall the aggregate number of repre sentatives be increased.

705. Three. The representatives shall be citizens of the United States who have attained the age of twenty-one years, and who, after the first election under this constitution, shall have been citizens of this State for one year, and for six months resident of the counties from which elected.

706. Four. The presiding officer of the house of repre sentatives shall be styled the speaker of the house of representatives, and shall be elected viva voce from the body.

707. Five. The house of representatives shall have the sole power to impeach all persons who shall have been or may be in office.

708-714 ] CONSTITUTIONAL DOCUMENTS.

[ 328

708. Six, All bills for raising revenue, or appropriating money, shall originate in the house of representatives, but the senate may propose or concur in amendments, as in other bills.

709. Sec. 4. One. Each house shall be the judge of the election, returns, and qualifications of its merfibers, and shall have power to punish them for disorderly behavior, or misconduct by censure, fine, imprisonment, or expulsion; but no member shall be expelled, except by a vote of two-thirds of the house from which he is expelled.

710. Two. Each house may punish, by imprisonment, not extending beyond the session, any person, not a member, who shall be guilty of a contempt by any disorderly behavior in its presence, or who, during the session, shall threaten injury, to the person or estate of any members for anything said or done in either house, or who shall assault any member going to or returning therefrom, or who shall rescue or attempt to rescue any person arrested by order of either house.

711, Three. The members of both houses shall be free from arrest during their attendance on the general assembly, and in go ing to or returning therefrom, except for treason, felony, larceny, or breach of the peace; and no member shall be liable to answer in any other place for anything spoken in debate in either house.

712. Four. Each house shall keep a journal of its proceed ings, and publish it immediately after its adjournment. The yeas and nays of the members on any question shall, at the desire of one-fifth of the members present, be entered on the journal. The original journal shall be preserved, after publication, in the office of the secretary of State, but there shall be no other record thereof.

713. Five, Every bill, before it shall pass, shall be read three times, and on three separate days, in each house, unless, in cases of actual invasion or insurrection. Nor shall any law or ordinance pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.

714. Six. All acts shall be signed by the president of the senate and the speaker o f the house of representatives; and no

329]

CONSTITUTION OF 1868.

[715-719

bill, ordinance or resolution, intended to have the effect of a law which shall have been rejected by either house, shall be again pro posed during the same session, under the same or any other title, without the consent of two-thirds of the house by which the same was rejected.

715. Seven. Neither house shall adjourn for more than three days, nor to any other place, without the consent of the other; and in case of disagreement between the two houses on a question of adjournment, the governor may adjourn either or both of them.

716. Eight. The officers of the two houses, other than the president and speaker, shall be secretary of the senate, and clerk of the house, and an assistant for each; a journalizing clerk, two en grossing and two enrolling clerks for each house, and the number shall not be increased except by a vote of the house. And their pay, as well as their pay and mileage of the members, shall be fixed by law.

717. Nine. Whenever the constitution requires a vote of two-thirds of either or both houses for the passing of an act or resolution, the yeas and nays on the passage thereof shall be en tered on the journal and all votes on confirmations, or refusals to confirm nominations to office by the governor, shall be by yeas and nays, and the yeas and nays shall be recorded on the journal.

718. Ten. Every senator, or representative, before taking his seat, shall take an oath, or affirmation, to support the Constitu tion of the United States, and of this State; that he has not prac ticed any Unlawful means, directly or indirectly, to procure his election, and that he has not given, or offered, or promised, or caused to be given, or offered, or promised, to any person, any money, treat, or thing of value, with intent to affect any vote, or to prevent any person voting at the election at which he was elected.

719. Sec. 5. One. The General Assembly shall have power to make all laws and ordinances, consistent -with this constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.

719a-724] CONSTITUTIONAL DOCUMENTS.

[330

719a. Two. The general assembly may alter the boundaries of, or lay off and establish new counties, or abolish counties, attach ing the territory thereof to contiguous counties ; but no new county shall be established except by a vote of two-thirds of each house; nor shall any county be abolished except by a vote of two-thirds of each house, and after the qualified voters of the county shall, at an election held for the purpose, so decide.

720. Sec. 6. One. No money shall be drawn from the treasury except by appropriation made by law; and a regular state ment and account of the receipt and expenditure of all public money shall be published from time to time, and, a^so, with the laws passed by each session of the General Assembly.

721. Two. No vote, resolution, law, or order, shall pass, granting a donation, or gratuity, in favor of any person, except by the concurrence of two-thirds of each branch of the General As sembly, nor, by any vote, to a sectarian, corporation or association.

722. Three. 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 in the code, but the amending or repealing act shall dis tinctly and fully describe the Taw to be amended, or repealed, as well as the alteration to be made; but this clause shall be construed as directory only to the general assembly.

723. Four. No law shall be passed by which a citizen shall be compelled against his consent, directly or indirectly, to become a stockholder in, or contribute to, any railroad or work of public improvement, except in the case of the inhabitants of a corporate town or city. In such cases, the general assembly may permit the corporate authorities to take such stock, or make such contribu tion, or engage in such work, after a majority of the qualified voters of such town or city, voting at an election held for the purpose, shall have voted in favor of the same; but not otherwise.

724. Five. The General Assembly shall have no power to grant corporate powers and privileges to private companies, except to banking, insurance, railroad, canal, navigation, mining, express, lumber, manufacturing, and telegraph companies; nor to make or change, election precincts; nor to establish bridges or ferries; nor

331 ]

CONSTITUTION OF 1868.

[ 725-726

to change names or legitimate children; but it shall prescribe, by law, the manner in which such powers shall be exercised by the courts. But no charter for any bank shall be granted or extended, and no act passed authorizing the suspension of specie payments by any bank, except by a vote of two-thirds of the general assembly. The General Assembly shall pass no law making the State a stock holder in any corporate company; nor shall the credit of the state be granted or loaned to aid any company without a provision that the whole property of the company shall be bound for the security of the State, prior to any other debt or lien, except to laborers; nor to any company in which there is not already an equal amount invested by private persons; nor for any other object than a work of public improvements. No provision in this constitution for a two-thirds vote of both houses of the General Assembly shall be construed to waive the necessity for the signature of the governor, as in any other cases, except in the case of the two-thirds vote required to override the vote.
Jones v. Habersham, 107 U. S. 174.

ARTICLE IV. Executive Department.

fied. He sunn uuve a competent siiiciry, csLciLuiMieu. uy iciw, wnicii shall not be increased or diminished during the period for which he shall have been elected; nor shall he receive within that period any other emolument from the United States, or either of them, or from any foreign power.
726. Two. After the first election, the governor shall be elected quadrennially., by the persons qualified to vote for mem bers of the general assembly, on the Tuesday after the first Mon day in November, until such time be altered by law, which election shall be held at the places of holding general elections in the sev eral counties of this State, in the same manner as is prescribed for the election of members of the general assembly. The returns for every election of governor, after the first, shall be sealed up by the managers, separately from other returns, and directed to the president of the senate and speaker of the house of repre-

727-729] CONSTITUTIONAL DOCUMENTS.

[332

sentatives, and transmitted to his excellency the governor, or the person exercising the duties of governor for the time being, who shall, without opening the said returns, cause the same to be laid before the senate on the day after the two houses shall have been organized; and they shall be transmitted by the senate to the house of representatives. The members of each branch of the general assembly shall convene in the representative hall, and the presi dent of the senate and the speaker of the house of representatives shall open and publish the returns in the presence of the general assembly; and the person having" the majority of the whole number of votes given shall be declared duly elected governor of this State; but if no person have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the legislature to elect, the general assembly shall immediately elect a governor viva voce ; and in all cases of election of a governor by the general assembly a majority of the votes of the members present shall be necessary for a choice. Contested elections shall be determined by both houses of the general assembly in such manner as shall be prescribed by law.

727. Three. No person shall be eligible to the office of gov ernor who shall not have been a citizen of the United States fifteen years, and a citizen of this State six years, and who shall not have attained the age of thirty years.

728. Four. In case of the death, resignation, or disability of the governor, the president of the senate shall exercise the executive powers of the government until such disability be re moved or a successor is elected and qualified. And in case of the death, resignation, or disability of the president of the senate, the speaker of the house of representatives shall exercise the executive powers of the government until the removal of the disability or the election and qualification of a governor. The general assembly shall have power to provide by law for filling uiiexpired terms by a special election.

729. Five. The governor shall, before he enters on the duties of his office, take the following oath or affirmation: "I do solemnly swear (or affirm, as the case may be) that I will faithfully execute the office of governor of the State of Georgia, and will,

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to the best of my ability preserve, protect, and defend, the Consti tution thereof, and the Constitution of the United States of America.

730. Sec. 2. One. The governor shall be commander-inchief of tlie army and navy of this State, and of the militia thereof.

731. Two. He shall have power to grant reprieves and pardons, to commute penalties, and to remit any part of a sentence for offences against the State, except in cases of impeachment.

732. Three. He shall issue writs of election to fill all vacancies that happen in the senate of house of representatives, and shall have power to convoke the general assembly oil extra ordinary occasions, and shall give them, from time to time, in formation of the state of commonwealth, and recommend to their consideration such measures as he may deem necessary and ex pedient.

733. Four. When an office shall become vacant by death, resignation, or otherwise, the governor shall have power to fill such vacancy, unless otherwise provided by law; and persons so ap pointed shall continue In office until a successor Is appointed, agreeably to the mode pointed out by this constitution or by law, in pursuance thereof.

734. Five. A person once rejected by the senate shall not be reappointed by the governor to the same office during the same session, or the recess thereafter.

735. Six. The governor shall have the revision of all bills passed by both houses before the same shall become laws, but two-thirds of each house may pass a law, notwithstanding his dis sent, and If any bill should not be returned by the governor within five days (Sunday excepted) after it has been presented to him, the same shall be a law, unless the general assembly, by their ad journment, shall prevent its return. He may approve any ap propriation and disapprove any other appropriation in the same bill, and the latter shall not be effectual unless passed by two-thirds of each house.

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736. Seven. Every vote, resolution, or order, to -which the concurrence of both houses may be necessary, except on a ques tion of election or adjournment, shall be presented to the governor, and before it shall take effect be approved by him, or, being dis approved, shall be repassed by two-thirds of each house, according to the rules and. limitations prescribed in case of a bill.

737. Eight. There shall be a secretary of state, a comp troller general, a treasurer, and surveyor-general, elected by the general assembly and they shall hold their offices for the like period as the governor, and shall have competent salary, which shall not be increased or diminished during the period for which they shall have been elected. The general assembly may, at any time, con solidate any two of these offices, and require all the duties to be discharged by one officer.
738. Nine. The great seal of the State shall be deposited in the office of the secretary of state, and shall not be affixed to any instrument of writing but by order of the governor, or general assembly; and that now in use shall be the great seal of the State until otherwise provided by law.

739. Ten. The governor shall have power to appoint his own secretaries, not exceeding two in number, unless more shall be authorized by the general assembly.

ARTICLE V.
Judicial Department.
740. Section 1. One. The judicial powers of this State shall be vested in a supreme court, superior courts, courts of ordinary, justices of the peace, commissioned notaries public, and such other courts as have been or may be established by law.

741. Sec. 2. One. The supreme court shall consist of three judges, two of whom shall constitute a quorum. 'When a majority of the judges are disqualified from deciding any case, by interest or otherwise, the governor shall designate certain judges of the superior courts to sit in their stead. At the first appointment of judges of the supreme court under this constitution, one shall be appointed for four years, one for eight years, and one for twelve

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[ 742-746

years; but all subsequent appointments, except to fill unexpired terms, shall be for the term of twelve years.

742. Two. The supreme court shall have no original juris diction, but shall be a court alone for the trial and correction of errors from the superior courts and from the city courts of Sa vannah and Augusta, and such other like courts as may be here after established in other cities ; and shall sit at the seat of govern ment at such time in each year as shall be prescribed by law, for the trial and determination of writs of error from said superior and city courts. The days on -which the cases from the several circuits and city courts shall be taken up by the court shall be fixed by law.

743. Three. The supreme court shall dispose of every case at the first or second term after such writ of error is brought; and in case the plaintiff in error shall not be prepared at the first term to prosecute the case, unless prevented by providential cause it shall be stricken from the docket, and the judgment below shall stand affirmed. In any case the court may, in its discretion, withhold its judgment until the next term after the same is argued.

744. Four. When only two judges sit in any case, and they disagree, the judgment below shall stand affirmed.

745. Sec. 3. One. There shall be a judge of the superior courts for each judicial circuit. He may act in other circuits when authorized by law. At the first appointment of such judges under this constitution, one-half of the number (as near as may be) shall be appointed for four years and the other half for eight years ; but all subsequent appointments, except to fill unexpired terms, shall be for the term of eight years.

746. Two. The superior courts shall have exclusive juris diction in cases of divorce; in criminal cases, where the offender is subjected to loss of life or confinement in the penitentiary; in cases respecting titles to land and equity cases, except as herein after provided; but the general assembly shall have power to merge the common law and equity jurisdiction of said courts. Said courts shall have jurisdiction in all other civil cases, except as

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hereinafter provided. They shall have appellate jurisdiction in all such cases as may be provided by law; they shall have power to correct errors in inferior judicatories, by writ of certiorari, which shall only issue on the sanction of the judge; and to issue writs of mandamus, prohibition, scire facias, and all other -writs that may be necessary for carrying their powers fully into effect, and shall have such other powers as shall be conferred on them by law.

747. Three. There shall be no appeal from one jury in the superior courts to another, but the court may grant new trials on legal grounds. The court shall render judgment without the ver dict of a jury in all civil cases founded on contracts, -where an issuable defence is not filed on oath.

748. Four. The superior courts shall sit in each county not less than twice in each year, at such times as have been or may be appointed by law.

749. Sec. 4. One. Until the general assembly shall other wise direct, there shall be a district judge and a district attorney for each senatorial district in this State.

750. Two. The district judge shall have jurisdiction to hear and determine all offences not punishable with death or imprison ment in the penitentiary; and it shall be the duty of the district attorney to represent the State in all cases before the district judge.

751. Three. The district judge shall sit at stated times, not less then once in each month in each county in his district for the trial of offences, and at such other times as the general assembly may direct.

752. Four. Offences shall be tried before the district judge on a written accusation founded on affidavit; said accusation shall plainly set forth the offence charged, and shall contain the name of the accuser and be signed by the district attorney.

753. Five. There shall be no jury-trial before the district judge except when demanded by the accused, in which case the jury shall consist of seven.

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754. Six. Such civil jurisdiction may be conferred on the district judges as the General Assembly may direct.

755. Seventh. The district judges and attorneys shall hold their offices for a period of four years, and shall receive for their services such stated compensation in their respective districts as may be provided by law, but in no event shall their compensation be in anywise dependent on fines, forfeitures, or costs.

756. Sec. 5. One. The powers of a court of ordinary and of probate shall be vested in* an ordinary for each county, from whose decision there may be an appeal to the superior court, under regulations prescribed by law.

757. Two. The courts of ordinary shall have such powers in relation to roads, bridges, ferries, public buildings, paupers, county officers, county funds and taxes, and other matters, as shall be conferred on them by law.

758. Three. The ordinary shall hold his office for the term of four years, and until his successor is elected and qualified.

759. Sec. 6. One. There shall be in each district one justice of the peace, -whose official term, except when elected to fill an unexpired term, shall be four years.

760. Two. The justices of the peace shall have jurisdiction, except as hereinafter provided, in all civil cases where the principal sum claimed does not exceed one hundred dollars, and may sit at any time for the trial of such cases; but in cases where the sum is more than fifty dollars, there may be an appeal to the superior court, under such regulations as may be prescribed by law.

761. Three. There shall be no appeal to a jury from the decision of a justice of the peace, except as provided in the fore going paragraph.

762. Four. Notaries public may be appointed and commis sioned by the governor, not to exceed one for each militia district, for a term of four years, and shall be ex-officio justices of the peace.

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763. Sec. 7. One. There shall be an attorney-general of the State, whose official term, except when appointed to fill an unexpired term, shall be four years.

764. Two. It shall be the duty of the attorney-general to act as the legal adviser of the executive department, to represent the State in all civil and criminal cases in the supreme and superior courts when required by the governor, and to perform such other services as shall be required of him by law.

765. Sec. 8. One. There shall be a solicitor-general for each judicial circuit, whose official term, except when appointed to fill an unexpired term, shall be four years.

766. Two. It shall be the duty of the solicitor-general to represent the State in all cases in the superior courts of his cir cuit, and in all cases taken up from his circuit to the supreme court, and to perform such other services as shall be required of him by law.

767. Sec. 9. One. The judges of the supreme and the su perior courts, the attorney-general, solicitors-general, and the dis trict judges and attorneys, shall be appointed by the governor, with the advice and consent of the senate, and shall be removable by the governor on the address of two-thirds of each branch of the gen eral assembly, or by impeachment and conviction thereon.

768. Two. Justices of the peace shall be elected by the legal voters in their respective districts, and shall be commissioned by the governor. They shall be removable on conviction for mal practice in office.

769. Sec. 10. One. The judges of the supreme and su perior courts and the attorney and solicitors-general shall have, out of the State treasury, adequate and honorable salaries on the specie basis, which shall not be increased or diminished during their continuance in office. The District judges and district at torneys shall receive out of the treasuries of the several counties of their districts, adequate compensation, on the specie basis, -which shall not be increased or diminished during their term of office; but said judges shall not receive any other perquisites or emolu-

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ments whatever from parties or others on account of any duty required of them.

770. Two. The general assembly shall provide for the equi table apportionment of the compensation of the district judges and attorneys between the counties composing1 their districts, and shall require the moneys arising from fines and forfeitures in the dis trict courts to be paid into the treasuries thereof.
%
771. Three. No person shall be judge of the supreme or superior courts, or attorney-general, unless at the time of his ap pointment he shall have attained the age of thirty years, and shall have been a citizen of this State three years, and have practiced law for seven years.

772. Sec. 11. One. No total divorce shall be granted ex cept on the concurrent verdicts of two juries. When a divorce is granted, the jury rendering the final verdict shall determine the rights and disabilities of the parties, subject to the revision of the court.

773. Sec. 12. One. Divorce cases shall be tried in the county where the defendant resides, if a resident of this State.

774. Two. Criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts when the presiding judge is satisfied that an impartial jury cannot be obtained in such county.

775. Three. Cases respecting titles to land shall be tried in the county where the land lies, except where a single tract is di vided by a county line, in which case the superior court of either county shall have jurisdiction.

776. Four. Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.

777. Five. Suits against joint obligors, joint promisors, co partners, or joint trespassers, residing in different counties, may be tried in either county.

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778. Six. Suits against the maker and indorser of promis sory notes, or of her like instruments, residing in different coun ties, shall be tried in the county where the maker resides.

77 9. Seven. All other cases shall be tried in the county where the defendant resides.

780. Sec. 13. One. The right of trial by jury, except where it is otherwise provided in this constitution, shall remain inviolate.

781. Two. The General Assembly shall provide by law for the selection of upright and intelligent persons to serve as jurors. There shall be no distinction between the classes of persons who compose grand and petit juries. Jurors shall receive adequate com pensation for their services, to be prescribed by law.

782. Sec. 14. One. The courts heretofore existing in this State styled inferior courts are abolished, and their unfinished business, and the duties of the justices thereof, are transferred to such tribunals as the general assembly may designate.

783. Sec. 15. One. The general assembly shall have power to provide for the creation of county commissioners in such coun ties as may require them, and to define their duties.

784. Sec. 16. One. All courts not specially mentioned by name in the first section of this article may be abolished in any county, at the discretion of the general assembly, and the county courts now existing in Georgia are hereby abolished,

785. Sec. 17. One. No court or officer shall have, nor shall the general assembly give, jurisdiction or authority to try or give judgment on or enforce any debt, the consideration of which was a slave or slaves, or the hire thereof.
White v. Hart, 13 Wallace, U. S., 676.

786. Two. All contracts made and not executed during the late rebellion, with the intention and for the purpose of aiding and encouraging said rebellion, or wThere it was the purpose and in tention of any one of the parties to such contract to aid or en courage such rebellion, and that fact was known to the other party,

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whether said contract was made by any person or corporation -with the State or Confederate States, or by a corporation with a natural person, or between two or more natural persons, are hereby de clared to have been and to be illegal, and all bonds, deeds, promis sory notes, bills, or other evidences of debt, made or executed by the parties to such contract or either of them, in connection with such illegal contract, or as the consideration therefor or in further ance thereof, are hereby declared null and void, and shall be so held in all courts in this State when attempt shall be made to en force any such contract or give validity to any such obligation or evidence of debt. And in all cases when the defendant or any one interested in the event of the suit will make a plea, supported by his or her affidavit, that he or she has reason to believe that the obligation or evidence of indebtedness upon which the suit is predicated, or some part thereof, has been given or used for the illegal purpose aforesaid, the burden of proof shall be upon the plaintiff to satisfy the court and jury that the bond, deed, note, bill, or other evidence, of indebtedness upon which said suit is brought, is or are not, nor is any part thereof, founded upon or in any way connected with any such illegal- contract, and has not been used in aid of the rebellion, and the date of such bond, deed, note, bill, or other evidence of indebtedness, shall not be evidence that it has or has not, since its date, been issued, transferred, or used in aid of the rebellion.

ARTICLE VI. Education.

the expense of which shall be provided for by taxation or other wise.
788. Two. The office of State school commissioner is hereby created. He shall be appointed by the governor with the consent of the senate, and shall hold his office for the same term as the governor. The general assembly shall provide for the said com missioner a competent salary and necessary clerks. He shall keep his office at the seat of government.

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789. Three. The poll-tax allowed by this constitution, any educational fund now belonging to this State, except the endow ment of and debt due to the State university, or that may hereafter be obtained in any way, a special tax on shows and exhibitions, and on the sale of spirituous and malt liquors, which the general assembly is hereby authorized to assess, and the proceeds from the commutation for militia service, are hereby set apart and de voted to the support of common schools. And if the provisions herein made shall, at any time, prove insufficient, the general as sembly shall have power to levy such general tax upon the prop erty of the State as may be necessary for the support of said schoolsystem. And there shall be established, as soon as practicable, one or more common schools in each school-district in this State.

ARTICI^IS VII.
Homestead and Exewiption.
790. Sec. 1. One. Each head of a family, or guardian, or trustee of a family of minor children, shall be entitled to a home stead of realty to the value of $2,000.00 in specie, and personal property to the value of SI,000.00 in specie, both to be valued at the time they are set apart. And no court or ministerial officer in this State shall ever have jurisdiction or authority to enforce any judgment, decree, or execution against said property so set apart, including such improvements as may be made thereon, from time to time, except for taxes, money borrowed and expended in the improvement of the homestead, or for the purchase-money of the same, and for labor done thereon, or material furnished therefor, or removal of encumbrances thereon. And it shall be the duty of the general assembly, as early as practicable, to provide, by law, for the setting apart and valuation of said property, and to enact laws for the full and complete protection and security of the same to the sole use and benefit of said families as aforesaid.
Gunn v. Barry, 15 Wallace (U. S-), 610.
791. Two. All property of the wife, in her possession at the time of her marriage, and all property given to, inherited, or ac quired by her, shall remain her separate property, and not liable for the debts of her husband.

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ARTICLE VIII.
Militia.
792. Sec. 1. The militia shall consist of all able-bodied male persons between the ages of eighteen and forty-five years, except such as may be exempted by the laws of the United States or this State; and shall be organized, officered, armed, equipped, and trained in such manner as may be provided by law; subject to the paramount authority of Congress over this subject.

793. Sec. 2. Volunteer companies of cavalry, infantry, or artillery may be formed in such manner, and with such restrictions, as may be provided by law.

794. Sec. 3. No person conscientiously opposed to bearing arms shall be compelled to do militia duty, 'but such person shall pay an equivalent for exemption; the amount to be prescribed by law and appropriated to the common-school fund.

ARTICLE IX.
County Officers.
795. One. The county officers recognized as existing by the laws of this State, and not abolished by this constitution, shall, where not otherwise provided for in this constitution, be elected by the qualified voters of their respective counties or districts, and shall hold their office for two years. They shall be removable on conviction for malpractice in office, or on the address of two-thirds of the senate.
ARTICLE X.
Seat of Government.
796. One. The seat of government of this State, from and after the date of the ratification of this constitution, shall be in the city of Atlanta, and the general assembly shall provide for the erection of a new capitol, and such other buildings as the public welfare may require.

797. Two. The general assembly shall have power to provide for the temporary removal of the seal of government in case of invasion, pestilence, or other emergency.

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ARTICLE XI.
The Laws of General Operation in Force in This State Are:
798. One, As the supreme law, the Constitution of the United States, the laws of the United States m pvirsuance thereof, and all treaties made under the authority of the United States.

799. Two. As next in authority thereto, this constitution.

800. Three. In subordination to the foregoing, all acts passed by any legislative body, sitting in this State as such, since the 19th day of January, 1861, including that body of laws known as the code of Georgia, and the acts amendatory thereof, or passed, since that time, -which said code and acts are embodied in the printed book known as "Ir win's Code;" and also so much of the common and statute laws of England, and of the statute laws of Georgia, as were in force in this State on the 19th day of December, 1860, as are not superseded by said Code, though not embodied therein, except so much of the several statutes, code, and laws as may be inconsistent with the supreme law herein recognized, or may have been passed in aid of the late rebellion against the United States, or may be obsolete, or may refer to persons held in slavery, which excepted laws are inoperative and void; and any future general assembly shall be competent to alter or repeal (if not herein pro hibited) any portion of the laws declared to be of force in this third specification of this clause of this article; and if in any of said laws herein declared of force the word "Confederate" occurs before the word "States," such law is hereby amended by sub stituting the word "United" for the word "Confederate."

801. Four. Local and private acts passed for the benefit of counties, cities, towns, corporations, and private persons, not in consistent with the supreme law, nor with this constitution, and which have not expired or been repealed, shall have the force of statute law, subject to judicial decision as to their validity when passed, and to any limitation imposed by their own terms.

802. Five. All rights, privileges, and immunities which may have vested 111, or accrued to, any person or persons, or corpora tions, in his, her, or their right, or in any fiduciary capacity, under any act of any legislative body sitting in this State as such, or of

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[ 803-804

any decree, judgment, or order of any court, sitting in this St under the laws then of force and operation therein, and recogni

lid by, or according to, this constitution.
803. Six. The records, dockets, books, papers, and proceed ings of any court or office existing in this State by the laws thereof on the 19th of January, 1861, or purporting to exist by said laws, and recognized and generally obeyed by the people, as such, since the said time, and before the several courts and officers provided for by this constitution shall have gone into actual operation, shall be transferred to the several courts and offices of the same ranie or functions by this constitution provided for, and shall have force and be executed, perfected, and performed therein, and thereby, as follows, and not otherwise, to wit:
804. Final judgments, decrees, proceedings, and acts fully executed and performed, or not requiring performance or execu tion, shall have full force and effect as though no interruption had taken place in the legal succession of said courts and offices, ex cept as herein otherwise provided. Proceedings not final, and judg ments and decrees not fully executed or performed, shall proceed and be performed in such cases, and such cases only, as this con stitution, or the laws made in pursuance thereof, confer jurisdic tion and authority over the causes of actions on which said cases, judgments, decrees, or proceedings, civil or criminal, are founded : Provided, That all said judgments, decrees, and proceedings shall be subject to be set aside, or reversed, or vacated by proceedings in the several courts having custody of the records, as though they were the judgments of said courts, and shall be subject always to be explained as to the meaning of the word dollar or dollars, as used in the same, and no motion for a new trial, bill or review, or other proceeding, to vacate any judgment, order, or decree, made since the 19th of January, 1861, by any of said courts, for fraud, illegality, or error of laws, shall be denied, by reason of the same not having been moved in time; provided said motion or applica tion is made in twelve months from the adoption of this consti tution.

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805. Seven. The books, papers, and proceedings of the in ferior courts shall be transferred to, and remain in, the control of the ordinaries, who shall perform the duties of said courts until otherwise provided by law. The books, papers, and proceedings of the county courts, and the unfinished business thereof, shall be transferred to the superior courts, and the same shall be finished and performed by the said superior courts and the officers thereof, in such cases, and in such cases only, as the said courts are, by this constitution or the laws made in pursuance thereof, granted jurisdiction over the subject matter or debts on which said cases and judgments, civil or criminal, are founded.

806. Eight. The cases pending and the judgments had and made in the city courts of Savannah and Augusta, and in the va rious justices' courts in this State, shall be finished and the judg ments performed by the city courts, and officers and justices provided by this constitution in such cases, and such only, as by this constitution jurisdiction is given to said courts and officers over the causes of action on which they are founded.

807. Nine. The judgments and proceedings of courts and acts of officers within their jurisdiction, as provided by law, shall be valid notwithstanding the judges of said courts or the said offi cers were appointed by the military authorities of the United States, and any of said judgments, or acts, or proceedings made or done under or by virtue of, or in accordance with, the orders of said military authorities, duly made, are as valid as if done under a law of this State.

808. Ten. These several acts of confirmation shall not be construed to divest any vested right, nor to make any criminal other-wise not criminal, but they shall be construed as acts of peace and to prevent injustice: Provided, That nothing in this consti tution shall be so construed as to make valid any acts done by, or before any such de facto officer, which would, by legalizing such acts, render that criminal which was not criminal when done, or cause any act not legally criminal when done to become criminal by giving validity to such act after it was done; but all such acts shall be held by the courts to be null and void.

809. Kleven. Should this Constitution be ratified by the peo ple, and Congress accept the same with any qualifications or condi-

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[ 810-812

tions, the government herein provided for, and the officers, elected shall nevertheless exist and continue in the exercise of their several functions, as the government of this State, so far as the same may be consistent with the action of the United States in the premises.

810. Twelve. The ordinances of this convention on the sub ject of the first election, and the first General Assembly, shall have the force of laws, until they expire by their own limitations, and all other ordinances of a mere legislative character shall have the force of laws, until otherwise provided by the General Assembly.

ARTICLE XII.
Amendments to the Constitution.
811. One. This constitution may be amended by a twothirds vote of two successive legislatures, and by a submission of the amendment to the qualified voter for final ratification. But the General Assembly shall not call a convention of the people in the election of delegates to which any person qualified to vote by this constitution shall be disqualified. And the representation in said convention shall be based on population. Nor shall the right of suffrage ever be taken from any person qualified by this con stitution to vote.
Josiah R. Parrott, President. P. M. Sheibley, Secretary.

812. The act of Congress, approved June 25, 1S68, admitting the State of Georgia to representation in Congress, amended and abridged the first subdivision of section seventeen of article five, which in the original constitution read as follows :

Sec. 17. One. No court in this state shall have jurisdiction to try or determine any suit against any resident of this State upon any contract or agreement made or implied, or upon any contract made in renewal of any debt existing prior to the 1st day of June, 1865; nor shall any court or ministerial officer of this State have authority to enforce any judgment, execution, or decree rendered or issued upon any contract or agreement made or implied, or upon any contract in renewal of a debt existing prior to the 1st day of June, 1865, except in the following cases:
"1. In suits against trustees, where the trust property is in the

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hands of the trustee, or has been invested by him in other specie effects now in his hands, and in suits by the vendor of real estate against the vendee, where not more than one-third of the purchasemoney has been paid, and the vendee is in possession of the land or specific effects for which he has sold it, and he refuses to de liver the land or said effects to the vendor. In such cases the courts and officers may entertain jurisdiction and enforce judg ments against said trust-property or land or effects.
"2. In suits for the benefit of minors by trustees appointed be fore the 1st day of June, 1865.
"3. In suits against corporations m their corporate capacity, but not so as to enforce the debt against the stockholders or officers thereof in their individual capacity.
"4. In suits by charitable or literary institutions for money loaned, property (other than slaves) sold, or services rendered, by such institutions.
"5. In suits on debts due for mechanical or manual labor when the suit is by the mechanic or laborer.
"6. In cases when the debt is set up by way of defence, and the debt set up exceeds any debt due by defendant to plaintiff of which the courts are denied jurisdiction.
"7. In all other cases in which the General Assembly shall, by law, give the said courts and officers jurisdiction: Provided, That no court or officer shall have, nor shall the General Assembly give, ju risdiction or authority to try or give judgment on or enforce any debt, the consideration of which was a slave or slaves, or the hire thereof."

813. The Act of Congress approved June 25, 1868, admitting the State of Georgia, to representation in Congress, declared null and void a third subdivision of section seventeen of the fifth ar ticle, which in the original constitution read as follows :
"Three. It shall be in the power of the General Assembly to assess and collect upon all debts, judgments, or causes of action when due, founded on any contract made or implied before the 1st day of June, 1865, in the hands of any one in his own right, or as trustee, agent, or attorney of another, on or after the 1st day of January, 1868, a tax of not exceeding twenty-five per cent., to be paid by the creditor on pain of the forfeiture of the debt, but chargeable by

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him as to one-half thereof against the debtor, and collectible with the debt: Provided, That this tax shall not be collected if the debt or cause of action be abandoned or settled without legal process, or, if in judgment, be settled -without levy arid sale: And provided fur ther, That this tax shall not be levied so long as the courts of this State shall not have jurisdiction of such debts or causes of action."

814. By an amendment proposed in an Act approved on the 25th day of February, 1875, and in an act approved on the 27th day of February, 1877, and ratified by the people at an election held on the 1st day of May, 1877, the sixth section of the third article, was amended by adding thereto a clause, as follows :
"Neither the General Assembly nor any other authority or officer of this State, shall ever have power to pay or recognize as legal, or in any sense valid or binding upon the State, any direct bonds, gold bonds, or currency bonds, or the State's alleged guaranty or indorse ment of any railroad bonds, or any other bonds, guaranties or in dorsements heretofore declared to be illegal, fraudulent or void, by act or resolution of the Legislature of the State, or that may be declared illegal, fraudulent or void by act or resolution of the Leg islature originating this amendment, viz: the State gold bonds is sued under the act of October 17, 1870, in aid of the Brunswick and Albany Railroad Company; the currency bonds issued under the act of August 27, 1870; the quarterly gold bonds issued under the act of September 15, 1870, which are enumerated in the act of August 23, 1872; the indorsement of the State upon the bonds of the Brunswick and Albany Railroad Company, made under the act of March IS, 1869; the indorsement of the State upon the bonds of Cartersville and'Van AVert Railroad Company, and of the Cherokee Railroad Company; the indorsement of the State upon the bonds of the Bainbridge, Cuthbert and Columbus Railroad Company; and all other bonds, guaranties, or indorsements, declared illegal, fraudu lent, or void, as herein provided. Nor shall any General Assembly ever have power to provide for the rcindorsement of such railroad bonds, or to place the State's guaranty upon the same, or to provide for the indorsement or guaranty by the State of any new bonds issued in lieu of, or to pay off, or retire such railroad bonds by any railroad company, or to issue bonds of the State to such railroad companies or persons in payment, or in lieu of such in dorsed bonds, or other bonds herein declared illegal; or to lend the

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aid of the State by any act, resolution, or 3

[ 350

of the bonds, or indorsement

iuuiic_y it<_i v CU.HJCU., ui iwidiiiici-i. MJ iiltai vv ee buececnn atiud.vVaciniJc.cec(d, on the ds, indorsements or guaranties herein declared invalid, .cts of 1875, p. 28: Acts of 1877, p. 24.

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[ 815-819

CONSTITUTION OF 1877.
Preamble.
To perpetuate the principles of free government, insure justice to all, preserve peace, promote the interest and happiness of the cit izen, and transmit to posterity the enjoyment of liberty we, the people of Georgia, relying upon the protection and guidance of Al mighty God, do ordain and establish this Constitution.
ARTICLE I.
Bill of Rights.
SUCTION I.
815. Paragraph I. Origin and foundation of Government.-- All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public officers are the trustees and servants of the people, and at all times amenable to them.
816. Par. II. Protection the duty of government.--Protec tion to person and property is the paramount duty of government, and shall be impartial and complete.
817. Par. III. Life, liberty and property.--No person shall be deprived of life, liberty, or property, except by due process of law.
818. Par. IV. Right to the Courts.--No person shall be de prived of the right to prosecute or defend his own cause in any of the Courts of this State, in person, by attorney, or both.
819. Par. V. Benefit of Counsel, accusation, list of wit nesses, compulsory process and trial.--Kvery person charged with an offense against the laws of this State shall have the privilege and benefit of counsel; shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded; shall have compulsory process to ob-

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[ 352

tain the testimony of his own witnesses; shall be confronted with the witnesses testifying against him, and shall have a public and speedy trial by an impartial jury.

820. Par. VI. Crimination of self not compelled.--No per son shall be compelled to give testimony tending in any manner to criminate himself.
821. Par. VII. Banishment., whipping.--Neither banishment beyond the limits of the State, nor whipping, as a punishment for crime, shall be allowed.
822. Par. VIII. Jeopardy of life, etc., more than once, for bidden.---No person shall be put in jeopardy of life, or liberty, more than once for the same ofrense, save on his, or her, own motion for a new trial after conviction, or in case of mistrial.
823. Par. IX. Bail, fines, punishments, arrests. --Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; nor shall any person be abused in being arrested, while under arrest, or in prison.
824. Par. X. Costs. --No person shall be compelled to pay costs, except after conviction on final trial.
825. Par. XI. Habeas Corpus.--The writ of habeas corpus shall not be suspended.
826. Par. XII. Freedom of conscience,--All men have the natural and inalienable right to worship God, each according to the dictates of his own conscience, and no human authority should, in any case, control or interfere with such right of conscience.

827. Par. XIII. Religious opinions, etc.--No inhabitants of this State shall be molested in person or property, or prohibited from holding1 any public office or trust, on account of his religious opinions; but the right of liberty of conscience shall not be so con strued as to excuse acts of licentiousness, or justify practices incon sistent with the peace and safety of the State.

828. Par. XIV. Appropriation to sects forbidden.--No money shall ever be taken from the public treasury, directly or in-

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[ 829-837

directly in aid of any church, sect, or denomination of religionists, or of any sectarian institution.

829. Par. XV. Liberty of speech guaranteed.--No law shall ever be passed to curtail, or restrain, the liberty of speech, or of the press; any person may speak, write and publish his sentiments, on all subjects, being responsible for the1 abuse of that liberty.

830. Par. XVI. Searches and -warrants.--The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated; and no

831. Par. XVII. Slavery.--There shall be within the State of Georgia neither slavery or involuntary servitude, save as a pun ishment for crime after legal conviction thereof.
832. Par. XVIII. Status of the citizen.--The social status of the citizen shall never be the subject of legislation.
833. Par. XIX. Civil authority superior to military.--The civil authority shall be superior to the military, and no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, except by the civil magistrate, in such manner as may be provided by law.
834. Par. XX. Contempts.--The power of the Courts to punish for contempts shall be limited by legislative acts.
835. Par. XXI. Imprisonment for debt.--There shall be no imprisonment for debt.
836. Par. XXII. Arms.--The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.
837. Par. XXIII. Legislative, judicial and executive sepa rate.--The legislative, judicial and executive powers shall forever
--23

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[ 354

remain separate and distinct, and no person discharging the duties of one, shall at the same time exercise the functions of either of the others, except as herein provided.

838. Par. XXIV. Right to assemble and petition.--The peo ple have the right to assemble peaceably for their common good, and to apply to those vested with the powers of government for re dress of grievances, by petition or remonstrance.

839- Par. XXV. Citizens, protection of.--All citizens of the United States, resident in this State, are hereby declared citizens of this State; and it shall be the duty of the General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privileges and immunities due to such citizenship.

SECTION II.
840. Paragraph I. Libel; jury in criminal trials.--In all prosecutions or indictments for libel, the truth may be given in evi dence; and the jury in all criminal cases shall be the judges of the law and the facts. The power of the Judges to grant new trials in case of conviction is preserved.
841. Par. II. Treason.--Treason against the State of Georgia shall consist in levying war against her, adhering to her enemies, giving them aid and comfort. No person shall be convicted of treason, except on the testimony of two witnesses to the same overt act, or confession in open Court.
842. Par. III. Conviction.--No conviction shall work cor ruption of blood, or forfeiture of estate.
843. Par. IV. Lotteries.--All lotteries, and the sale of lot tery tickets, are hereby prohibited; and this prohibition shall be enforced by penal laws.
844. Par. V. Lobbying.--Lobbying is declared to be a crime, and the General Assembly shall enforce this provision by suitable penalties.
845. Par. VI. Fraud; property concealment.--The General Assembly shall have the power to provide for the punishment of

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CONSTITUTION OK 1877.

[ 846-851

fraud; and shall provide, by law, for reaching property of the debtor concealed from the creditor.

SECTION III.
846, Paragraph I. Private -ways; just compensation.--In cases of necessity, private ways may be granted upon just compen sation being first paid by the applicant. Private property shall not be taken, or damaged, for public purposes, without just and ade quate compensation being first paid.

847. Par. II. Attainder; ex-post facto and retroactive law\s, etc.--No bill of attainder, ex post facto law, retroactive law, or law impairing the obligation of contracts, or making irrevocable grants of special privileges or immunities, shall be passed.

848. Par. III. Revocation of grants.----No grant of special privileges or immunities shall be revoked, except in such manner as to work no injustice to the corporators or creditors of the incor poration.
SECTION IV.
849. Paragraph I. General lazvs., and ho'w varied.--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. No general law affect ing private rights shall be varied in any particular case, by special legislation, except with the free consent, in writing, of all persons to be affected thereby ; and no person under legal disability to con tracts is capable of such consent.

850. Par. II. What Acts void.--Legislative Acts in viola tion of this Constitution, or the Constitution of the United States are void, and the Judiciary shall so declare them.

SECTION V.
851. Paragraph I. State rights.--The people of this State have the inherent, sole and exclusive right of regulating their in ternal government, and the police thereof, and of altering and abol ishing their Constitution whenever it may be necessary to their safety and happiness.

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[ 356

852. Par. II. Enumeration of rights not deivy others.--The enumeration of rights herein contained as a part of this Constitu tion, shall not be construed to deny to the people any inherent rights which they may have hitherto enjoyed.

ARTICLE II. Elective Franchise.
SECTION I. 853. Paragraph I. Ballot.-- In all elections by the people the electors shall vote by ballot.

854. Par. II. Hlectors, and oath of. --Every male citizen of the United States (except as hereinafter provided), twenty-one years of age, who shall have resided in this State one year next preceding the election, and shall have resided six months in the county in which he offers to vote, and shall have paid all taxes which may hereafter be required of him, and which he may have had an opportunity of paying, agreeably to law, except for the year of the election, shall be deemed an elector: Provided, that no soldier, sailor or marine in the military or naval service of the United States, shall acquire the rights of an elector by reason of being stationed on duty in this State; and no person shall vote who, if challenged, shall refuse to take the following oath, or af firmation: "I do swear (or affirm) that I am twenty-one years of age, have resided in this State one year, and in this county six months, next preceding this election. I have paid all taxes which, since the adoption of the present Constitution of this State, have been required of me previous to this year, and which I have had an opportunity to pay, and I have not voted at this election."

SECTION II.
855. Paragraph I. Registration; who disfranchised.--The General Assembly may provide, from time to time, for the regis tration of all electors, but the following classes of persons shall not he permitted to register, vote or hold, any office, or appointment of honor or trust in this State, to-wit: 1st. Those who - shall have been convicted, in any Court of competent jurisdiction, of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpi-

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CONSTITUTION OF 1877.

[ 856-860

tude, punishable by the laws of this State with imprisonment in the penitentiary, unless such person shall have been pardoned. 2nd. Idiots and insane persons.

SECTION III.
856. Paragraph I. Privilege of electors. --Klectors shall in all cases except for treason, felony, larceny and breach of the peace, be privileged from arrest during their attendance on elec tions, and in going to and returning from the same.

SECTION IV.
857. Paragraph I. Holder of public funds.--No person who is the holder of any public money, contrary to law, shall be eligible to any office in this State until the same is accounted for and paid into the treasury.

858. Par. II. Duelling.--No person who, after adoption of this Constitution, being a resident of this State, shall have been convicted of fighting a duel in this State, or convicted of sending or accepting a challenge, or convicted of aiding or abetting such duel, shall hold office in this State, unless he shall have been par doned; and every such person shall, also, be subject to such punish ment as may be prescribed by law.

SECTION V.
859. Paragraph I. Sale of liquors on election days.--The General Assembly shall, by law, forbid the sale, distribution, or furnishing- of intoxicating drinks within two miles of election precincts on days of election--State, county or municipal--and prescribe punishment for any violation of the same.

SECTION VI.
860. Paragraph I. Election returns. --Returns of election for all civil officers elected by the people, who are to be commissioned by the Governor, and, also for the members of the General As sembly, shall be made to the Secretary of State, unless otherwise provided by law.

861-864 ] CONSTITUTIONAL DOCUMENTS.

[ 358

ARTICLE; III.
Legislative Department.
SECTION I. 861. Paragraph I. Legislative pozwer.--The legislative power of the State shall be vested in a General Assembly which shall con sist of a Senate and House of Representatives.

SECTION II.
862. Paragraph I. N-umbcr of Senators, etc.--The Senate shall consist of forty-four members. There shall be forty-four Senatorial districts, as now arranged by counties. Each district shall have one Senator.

862a, Paragraph II. (This paragraph consists of a list of the senatorial districts which are composed as in the Constitution of 1868 except that Dodge is added to the fourteenth district; that Oconee and Rockdale are added to the twenty-seventh district; that McDtifHe is added to the twenty-ninth district and that Douglas is added to the thirty-sixth district.)

863. Par. III. Districts, changed, how.--The General As sembly may change these districts after each census of the United States : Provided, neither the number of districts nor the number of Senators from each district shall be increased.

SECTION" III.
864. Paragraph I. Number of Representatives.--The House of Representatives, shall consist of one hundred and seventy-five Representatives, apportioned among the several counties as fol lows:--to-wit: To the six cotmties having the largest population, viz : Chatham, Richmond, Burke, Houston, Bibb and Fulton, three Representatives, each; to the twenty-six counties having the next largest population, viz: Barto\v, Coweta, Decatur, Floycl, Greene, Gwinnett, Harris, Jefferson, Meriwether, Monroe, Muscogee, New ton, Stewart, Sumter, Thomas, Troup, Washington, Hancock, Carroll, Cobb, Jackson, Dougherty, Oglethorpe, IVIacon, Talbot, and Wilkes, two Representatives, each ; and to the remaining one hun dred and five counties, one Representative, each.

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CONSTITUTION OF 1877.

[ 865-S7O

865. Par. II. Changed, ho-w.--The above apportionment shall be changed by the General Assembly at its first session after each census taken by the United States Government, so as to give the six counties having the largest population three Representatives, each ; and to the twenty-six counties having- the next largest popu lation two Representatives, each ; but in no event shall the aggre gate number of Representatives be increased.

SECTION IV.
866. Paragraph I. Term of members.--The members of the General Assembly shall be elected for two years, and shall serve until their successors are elected.

867. Par. IT. Election, when.----The first election for member of the General Assembly, under this Constitution, shall take place on the first Wednesday in December, 1877; the second election for the same shall be held on the first \Veclnesday in October, 1880, and subsequent elections biennially, on that day, until the day of elections is changed by law.

868. Par. III. Meeting of the General Assembly.--The first meeting of the General Assembly, after the ratification of this Constitution, shall be on the first \Vednesday in November, 1878, and biennially thereafter, on the same day, until the clay shall be changed by law. But nothing herein contained shall be construed to prevent the Governor from calling an. extra session of the Gen eral Assembly before the first Wednesday in November, 1878, if in his opinion, the public good shall require it.

869. Par. IV. Qu-omm.--A majority of each House shall constitute a quorum to transact business; but a smaller number may adjourn from day to day and compel the presence of its absent members, as each House may provide.

870. Par. V. Oath of members.--Each Senator and Repre sentative, before taking his seat, shall take the following oath, or affirmation, to-wit: "I will support the Constitution of this State and of the United States; and on all questions and measures which may come before me, I will so conduct myself as will, in my judg ment, be most conducive to the interests and prosperity of this State."

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[ 360

871. Par. VI. Sessions, forty days.--No session of the Gen eral Assembly shall continue longer than forty days, unless by a two-thirds' vote of the whole number of each House.

872. Par. VII. Eligibility; appointments forbidden.--No person holding a military commission, or other appointment or office, having any emolument or compensation annexed thereto, under this State, or the United States, or either of them, except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him, shall have a seat in either house; nor shall any Senator or Repre sentative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected.

873. Par. VIII. Removal vacates.--The seat of a member of either House shall be vacated on his removal from the district or county from which he was elected.

SECTION V.
874. Paragraph I. Qualifications of Senators.--The Sena tors shall be citizens of the United States, who shall have attained the age of twenty-five years, and who shall have been citizens of this State for four years, and for one year residents o f the district from which elected.
875. Par. II. President.--The presiding officer of the Sen ate shall be styled the President of the Senate, and shall be elected viva voce from the Senators.
876. Par. III. Impeachments.--The Senate shall have the sole power to try impeachments.
877. Par. IV. Trial of impeachments.--When sitting for that purpose, the members shall be on oath, or affirmation, and shall be presided over by the Chief Justice, or the presiding Justice of the Supreme Court. Should the Chief Justice, be disqualified, the Sen ate shall select the Judge of the Supreme Court to preside. No

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CONSTITUTION OF 1877.

[ 878-883

person shall be convicted without the concurrence of two-thirds of the members present.

878. Par. V. Judgments in impeachments.--Judgments, in cases of impeachments, shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit, within this State; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment, according to law.

SECTION VI.
879. Paragraph I. Qualifications of Representatives.--The Representatives shall be citizens of the United States who1 have attained the age of twenty-one years, and who shall have been citi zens of this State for two years, and for one year residents of the counties from which elected.
880. Par. II. Speaker.--The presiding officer of the House of Representatives shall be styled the Speaker of the House of Repre sentatives, and shall be elected viva voce from the body.

881. Par. III. Power to impeach.--The House of Repre sentatives shall have the sole power to impeach all persons who shall have been, or may be, in office.

SUCTION VII.
882. Paragraph I. Elections, returns, etc.; disorderly con duct.--Each House shall be the judge of the election, returns, and qualifications of its members, and shall have the power to punish them for disorderly behavior, or misconduct, by censure, fine, im prisonment, or expulsion ; but no member shall be expelled, except by a vote of two-thirds of the House to which he belongs.

883. Par. II. Contempts, how punished.--Kach House may punish by imprisonment, not extending beyond the session, any person, not a member, who shall be guilty of a contempt, by any disorderly behavior in its presence, or who shall rescue, or attempt to rescue, any person arrested by order of either House.

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[362

884. Par. III. Privilege of members.--The members of both Houses shall be free from arrest during their attendance on the General Assembly, and in going thereto or returning therefrom, except for treason, felony, larceny, or breach of the peace; and no member shall be liable to answer in any other place for anything spoken in debate in either House.

885. Par. IV. Journals.--Each House shall keep a journal of its proceedings, and publish it immediately after its adjournment.

886. Par. V. Where kept.--The original journal shall be preserved, after publication, in the office of the Secretary of State, but there shall be no other record thereof.

887. Par. VI. Yeas and nays, when taken.--The yeas and nays on any question shall, at the desire of one-fifth of the mem bers present, be entered on the journal.

888. Par. VII. Bills to be read.--Every bill, before it shall pass, shall be read three times, and on three separate days, in each House, unless in cases of actual invasion or insurrection.

889. Par. VIII. 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.

890. Par. IX. General appropriation bill.--The general ap propriation bill shall embrace nothing except appropriations fixed by previous laws, the ordinary expenses of the Executive, Legis lative and Judicial Departments of the Government, payment of the public debt and interest thereon, and the support of the public institutions and educational interests of the State. All other ap propriations shall be made by separate bills, each embracing but one subject.

891. Par. X. Bills for revenue.--AH bills for raising reve nue, or appropriating money, shall originate in the House of Rep resentatives, but the Senate may propose or concur in amendments as in other bills.

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CONSTITUTION OK 1877.

[ 892-897

892. Par. XI. Pitblic -money, ho-w drawn,--No money shall be drawn from the treasury except by appropriation made by law, and a regular statement and account of the receipt and expenditure of all public money shall be published every three months, and, also, with the laws passed by each session of the General Assembly.

893. Par. XII. Bills appropriating money.--No bill or reso lution appropriating money shall become a law, unless, upon its passage, the yeas and nays, in each House, are recorded.

894. Par. XIII. Acts signed, rejected bill.--All Acts shall be signed by the President of the Senate and the Speaker of the House of Representatives, and no bill, ordinance or resolution, in tended to have the effect of a law, which shall have been rejected by either House, shall be again proposed during the same session, under the same or any other title, without the consent of two-thirds of the House by which the same was rejected.

895. Par. XIV. Majority of members to pass bill.--No bill shall become a law unless it shall receive a majority of the votes of all the members elected to each House of the General Assembly and it shall, in every instance, so appear on the journal.

896. Par. XV. Local bills. --All special or local bills shall originate in the House of Representatives. The Speaker of the House of Representatives shall, within five days from the organi zation of the General Assembly, appoint a committee, consisting of one from each Congressional District, whose duty it shall be to consider, and consolidate all special and local bills, on the same subject, and report the same to the House; and no special or local bills shall be read or considered by the House until the same has been reported by said committee, unless by a two-thirds' vote. And no bills shall be considered or reported to the House, by said committee, unless the same shall have been laid before it within fifteen days after the organization of the General Assembly, except by a two-thirds' vote.

897. Par. XVI. Notice of intention to ask local legislation necessary, --No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter, or thing to be affected, may be situated,

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[ 364

which notice shall be given at 3east thirtv clays prior to the intro duction of such bill into the General Assembly, and in the manner to he prescribed by law. The evidence of such notice having been published, shall be exhibited in the General Assembly before such Act shall be passed.

898. Par. XVII. 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 dis tinctly describe the law to be amended or repealed, as well as the alteration to be made.

899. Par. XVIII. Corporations.--The General Assembly shall have no power to grant corporate powers and privileges to private companies, except banking, insurance, railroad, canal, navi gation, express and telegraph companies; nor to make or change election precincts ; nor to establish bridges or ferries ; nor to change names of legitimate children; but it shall prescribe by law the manner in which such powers shall be exercised by the Courts.

900. Par. XIX. Recognizances.--The General Assembly shall have no power to relieve principals or securities upon for feited recognizances, from the pavment thereof, either before or after judgment thereon, unless the principal in the recognizance shall have been apprehended and placed in the custody of the proper officer.

901, Par. XX. Street railways.--The General Assembly shall not authorize the construction of any street passenger railway within the limits of any incorporated town or city, without the consent of the corporate authorities.

902. Par. XXI. Yeas and navs to be entered, "when.~--"When ever the Constittition requires a vote of two-thirds of either or both Houses for the passing of an Act or resolution, the yeas and nays on the passage thereof shall be entered on the journal.

903. Par. XXII. Powers of the Legislature.--The General Assembly shall have power to make all laws and ordinances con sistent with this Constitution, and not repugnant to the Constltu-

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CONSTITUTION OF 1877.

tiori of the United States, which they .shall deem necessary and proper for the welfare of the State.

904. Par. XXIII. Signature of Governor, ---No provision in this Constitution, for a two-thirds' vote of both houses of the Gen eral Assembly, shall be construed to waive the necessity for the signature of the Governor, as in any other case, except in the case of the two-thirds' vote required to override the veto, and in case of prolongation of a session of the General Assembly.

905. Par. XXIV. Adjournments. --Neither House shall ad journ for more than three clays, or to any other place, without the consent of the other ; and m case of a disagreement between the two Houses on a question of adjournment, the Governor may ad journ either or both of them.

SECTION VIII.
906. Paragraph I. Secretary c.;id clerk. --The officers of the two Houses, other than the President and Speaker, shall be a Secretary of the Senate and Clerk of the House of Representatives, and such assistants as they may appoint; but the clerical expenses of the Senate shall not exceed sixty dollars per day; for each session, nor those of the Mouse of Representatives seventy dollars per day, for each session. The Secretary of the Senate and Clerk of the ITouse of Representatives shall be required to give bond and security for the faithful discharge of their respective duties.

SECTION IX.
907. Paragraph I. The per diem of members of the Gen eral Assembly shall not exceed four dollars ; and mileage shall not exceed ten cents for each mile traveled, by the nearest practicable route, in going to, and returning from, the Capitol; but the Presi dent of the Senate and the Speaker of the House of Repre sentatives shall each receive not exceeding seven dollars per day.
SECTION X.
908. Paragraph I. All elections by the General Assembly shall be viva voce, and the vote shall appear on the journal of the House of Representatives. When the Senate and the House of

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[ 366

Representatives unite for the purpose of elections, they shall meet in the Representative Hall, and the President of the Senate shall, in such case, preside and declare the result.

SECTION XI.
909. Paragraph I. Wife's estate. --All property of the wife at the time of her marriage, and all property given to, inherited, or acquired by her, shall remain her separate property, and not be liable for the debts of her husband.

SECTION XII.
910. Paragraph I. Non-resident insurance companies.--All life insurance companies now doing business in this State, or which may desire to establish agencies and do business in the State of Georgia, chartered by other States of the Union, or foreign States, shall show that they have deposited with the Comptroller-General of the State in which they are chartered, or of this State, the In surance Commissioner, or such other officer as may be authorized to receive it, not less than one hundred thousand dollars, in such securities as may be deemed by such officer equivalent to cash, subject to his order, as a guarantee fund for the security of policy holders.

911. Par. II. License by Comptroller.--When such showing is made to the Comptroller-General of the State of Georgia by a proper certificate from, the State-official having charge of the funds so deposited, the Comptroller-General of the State of Georgia is authorized to issue to the company making such showing, a license to do business in the State, upon paying the fees required by law.

912. Par. III. Resident insurance companies. --All life in surance companies chartered by the State of Georgia, or which may hereafter be chartered by the State, shall, before doing busi ness, deposit -with the Comptroller-General of the State of Georgia, or with some strong corporation, which may be approved by said Comptroller-General, one hundred thousand dollars, in such securi ties as may be deemed by him equivalent to cash, to be subject to his order, as a guarantee fund for the security of the policy holders of the company making such deposit, all interests and dividends arising from such securities to be paid, when due, to the

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[ 913-916

company so depositing". Any such securities as may be needed or desired by the company may be taken from said Department at any time by replacing" them with other securities equally acceptable to the Comptroller-General, whose certificate for the same shall be furnished to the company.

913. Par. IV. General Assembly to enact laws for people's protection, etc.--The General Assembly shall, from time to time, enact laws to compel all fire insurance companies doing business in this State, whether chartered by this State or otherwise, to deposit reasonable securities with the Treasurer of the State, to secure the people against loss by the operations of said companies.

914. Par. V. Reports by insurance companies.--The Gen eral Assembly shall compel all insurance companies in this State, or doing business therein, under proper penalties, to make semi annual reports to the Governor, and print the same at their own expense, for the information and protection of the people.
ARTICLE IV.
Powers of the General Assembly Over Taxation, Etc.
SECTION I.
915. Paragraph I. Taxation, a sovereign right.--The right of taxation is a sovereign right, inalienable, indestructible, is the life of the State, and rightfully belongs to the people in all Republican governments, and neither the General Assembly, nor any, nor all other departments, of the Government established by this Consti tution, shall ever have the authority to irrevocably give, grant, limit, or restrain this right; and all laws, grants, contracts, and all other acts whatsoever, by said Government, or any department thereof, to effect any of these purposes, shall be and are hereby, declared to be null and void, for every purpose whatsoever; and said right of taxation shall always be under the complete control of, and revocable by the State, notwithstanding any gift, grant, or contract whatsoever by the General Assembly.

SECTION II.
916. Paragraph I. Railroad tariffs.~--The power and au thority of regulating railroad freights, and passenger tariffs, pre-

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f 368

venting unjust discriminations and requiring reasonable and just rates of freight and passenger tariffs, are hereby conferred upon the General Assembly, whose duty it shall be to pass laws, from time to time, to regulate freight and passenger tariffs, to prohibit unjust discriminations on the various railroads of this State, and to prohibit said roads from charging other than just and reasona ble rates, and enforce the same by adequate penalties.
Atchison, Topeka and Santa Fe R. R. Co. v. Denver and New Orleans R. R. Co., 110 U. S- 667, 679; Ga. R. R. and Banking Co. v. Smith, 128 U. S. 174.

917. Par. II. Riffht of eminent domain; police power.--The exercise of the right of eminent domain shall never be abridged, nor so construed as to prevent the General Assembly from taking the property and franchises of incorporated companies, and sub jecting them to public use, the same as property of individuals ; and the exercise of the police power of the State shall never be abridged, nor so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals, or the general well-being of the State.

918. Par. III. Charters revived or amended become subject to this Constitution.--The General Assembly shall not remit the for feiture of the charter of any corporation, now existing, nor alter or amend the same, nor pass any other general or special law for the benefit of said corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the pro visions of this Constitution; and every amendment of any charter of any corporation in this State, or any special law for its benefit, accepted thereby, shall operate as a novation of said charter and shall bring the same under the provisions of this Constitution: Provided, that this section shall not extend to any amendment for the purpose of allowing any existing road to take stock in or aid in the building o any branch road,

919. Par. IV. Buying stock, etc., in other corporations; competition.--The General Assembly of this State shall have no power to authorize any corporation to buy shares, or stock, in any other corporation in this State, or elsewhere, or to make any con tract, or agreement whatever, with any such corporation, which may have the effect or be intended to have the effect, to defeat

369 ]

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[ 920-924

or lessen competition In their respective businesses, or to encourage monopoly; and all such contracts and agreements shall be illegal and void.

920, Par. V. Rebates.--No railroad company shall give, or pay, any rebate, or bonus in the nature thereof, directly or indi rectly, or do any act to mislead or deceive the public as to the real rates charged or received for freights or passage; and any such payments shall be illegal and void, and these prohibitions shall be enforced by suitable penalties.

921. Par. VI. Obligations of contracts preserved,--No pro vision of this Article shall be deemed, held, or taken to Impair the obligation of any contract heretofore made by the State of Georgia.

922. Par. VII. General Assembly to enforce.--The General Assembly shall enforce the provisions of this Article by appro priate legislation.

ARTICLE V.
Executive Department.
SECTION I.
923. Paragraph I. Executive department.--The officers of the executive department shall consist of a Governor, Secretary of State, Comptroller-General and Treasurer.

924. Par. II. Governor; term of office, salary, etc.--The executive power shall be vested in a Governor, who shall hold his office during the term of two years, and until his successor shall be chosen and qualified. He shall not be eligible to re-election, after the expiration of a second term, for the period of four years. He shall have a salary of three thousand dollars per annum (until otherwise provided by a law passed by a two-thirds' vote of both branches of the General Assembly), which shall not be increased or diminished during the period for which he shall have been elected ; nor shall he receive, within that time, any other emolument from the United States, or either of them, or from any foreign power.
--24

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[370

But this reduction of salary shall not apply to tlie present term of the present Governor.

925. Par. III. Election for Governor.--The first election for Governor, under this Constitution, shall be held on the first Wednesday in October, 1880, and the Governor-elect shall be in stalled in office at the next session of the General Assembly. An election shall take place biennially thereafter, on said day, until an other date be fixed by the General Assembly. Said election shall be held at the places of holding general elections in the several counties of this State, in the manner prescribed for the election of members of the General Assembly, and the electors shall be the same.

926. Par. IV. Returns of elections.--The returns of every election of Governor shall be sealed up by the managers, separately from other returns, and directed to the President of the Senate and Speaker of the House of Representatives, and transmitted to the Secretary of State, who shall, without opening said returns, cause the same to be laid before the Senate on the day after the two Houses shall have been organized, and they shall be transmitted by the Senate to the House of Representatives.

927. Par. V. How published.--The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Rep resentatives shall open and publish the returns in the presence and under the direction of the General Assembly ; and the person hav ing the majority of the whole number of votes, shall be declared duly elected Governor of this State, but if no person shall have such majority, then from the two persons having the highest num ber of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the Gen eral Assembly shall, immediately, elect a Governor Viva Voce ; and in all cases of election of a Governor by the General Assembly a majority of the members present shall be necessary to a choice.

928. Par. VI. Contested elections.--Contested elections shall be determined by both Houses of the General Assembly, in such manner as shall be prescribed by L,aw.

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CONSTITUTION OF 1877.

[ 929-934

929. Par. VII. Qualifications of Governor.--No person shall be eligible to the office of Governor who shall not have been a citi zen of the United States fifteen years, and a citizen of the State six years, and who shall not have attained the age of thirty y

930. Par. VIII. Death, resignation or disability of Governor. -- In case of the death, resignation, or disability of the Governor, the President of the Senate shall exercise the executive powers of the government until such disability be removed, or a successor is elected and qualified. And in case of the death, resignation, or dis ability of the President of the Senate, the Speaker of the House of Representatives shall exercise the executive powers of the gov ernment until the removal of the disability, or the election and qualification of a Governor.

931. Par. IX. Unexpired terms.--The General Assembly shall have power to provide by law, for filling unexpired terms by special elections.

932. Par. X. Oath of office.--The Governor shall, before he enters on the duties of his office, take the following oath of affirma tion : "I do solemnly swear (or affirm as the case may be) that I will faithfully execute the office of Governor of the State of Georgia, and will, to the best of my ability, preserve, protect and defend the Constitution thereof, and the Constitution of the United States of America."

933. Par. XI. Commander-in-Chief.--The Governor shall be Commander-in-Chief of the army and navy of this State, and of the militia thereof.

934. Par. XII. Reprieves and pardons.--He shall have the power to grant reprieves and pardons, to commute penalties, re move disabilities imposed by law, and to remit any part of a sen tence for offenses against the State, after conviction, except in cases of treason and impeachment, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason he may suspend the execu tion of the sentence and report the case to the General Assembly at the next meeting thereof, when the General Assembly shall either pardon, commute the sentence, direct its execution, or grant

' 372
a further reprieve; he shall at each session of the General Assembly communicate to that body each case of reprieve, pardon or com mutation granted, stating the name of the convict, the offense for which he was convicted, the sentence arid its date, the date of the reprieve, pardon or commutation, and the reasons for granting the same. He shall take care that the laws are faithfully executed, and shall be a conservator of the peace throughout the State.
935. Par. XIII. Writs of elections, called session of the Legislature.----He shall issue writs of election to fill all vacancies that may happen in the Senate or "Mouse of Representatives, and shall give the General Assembly from time to time, information of the state of the Commonwealth, and recommending to their considera tion such measures as lie may deem necessary or expedient. He shall have power to convoke the General Assembly on extraordinary occasions, hut no law shall be enacted at called sessions of the Gen eral Assembly except such as shall relate to the object stated in his proclamation convening them.
936. Par. XIV. Pilling -vacancies. ---When any office shall be come vacant, by death, resignation, or otherwise, the Governor shall have power to fill such vacancy, unless otherwise provided by law ; and persons so appointed shall continue in office until a successor is commissioned, agreeably to the mode pointed out by this Constitu tion, or by law in pursuance thereof.
937. Par. XV. Appointments rejected.--A person once re jected by the Senate shall not be re-appointed by the Governor to the same office during the same session, or the recess thereafter.
938. Par. XVT. Governor's veto.--The Governor shall have the revision of all bills passed by the General Assembly, before the same shall become laws, but two-thirds of each House may pass a law. notwithstanding his dissent; and if an}f bill should not be re turned by the Governor within five days (Sunday exceptcd) after it has been presented to him, the same shall be a law; unless the General Assembly, by their adjournment, shall prevent its return. He may approve any appropriation, and disapprove any other ap propriation, ir\ the same bill, and the latter shall not be effectual unless passed by two-thirds of each House.

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CONSTITUTION OK 1877.

[ 939-943

939, Par. XVII. Governor wiust approve.--Every vote, reso lution, or order, to which the concurrence of both Houses may be necessary, except on a question of election, or adjournment, shall be presented to the Governor, and before it shall take effect, be ap proved by him, or, being disapproved, shall be repassed by twothirds of each I-Iouse.

940. Par. XV11I. Information from- Different Officers; Treasurer and Comptroller,---He may require information, in 'writ ing from the officers in the executive department on any subject relating to the duties of their respective offices. It shall be the duty of the Governor, quarterly, and oftener if he deems it expedient, to examine, under oath, the Treasurer and Comptroller-General of the State on all matters pertaining to their respective offices, and to in spect and review their books and accounts. The General Assembly shall have authority to provide by law for the suspension of either of said officers from the discharge of the duties of bis office, and, also for the appointment of a suitable person to discharge the duties of the same.

941. Par. XIX. Secretaries.--The Governor shall have power to appoint his own secretaries, not exceeding two in number, and to provide such other clerical force as maj' be required in his office, but the total cost for secretaries and clerical force in his office shall not exceed six thousand dollars per annum.

SECTION II.
942. Paragraph I. Secretary of State, Comptroller and Treasurer, how elected.--The Secretary of State, Comptroller-Gen eral and Treasurer shall be elected by the persons qualified to vote for members of the General Assembly, at the same time and in the same manner as the Governor. The provisions of the Constitution as to the transmission of the returns of elections, counting the vote, declaring the result, deciding when there is no election, and when there is a contested election, applicable to the election of Governor, shall apply to the election of Secretary of State, Comptroller-Gen eral and Treasurer; they shall be commissioned by the Governor and hold their offices for the same time as the Governor.
943, Par. II. Treasurer's salary.--The salary of the Treas urer shall not exceed two thousand dollars per annum. The clerical

944-949 ] CONSTITUTIONAL DOCUMENTS.

[374

expenses of his department shall not exceed sixteen hundred dol lars per annum.

944. Par. III. Salary of Secretary of State.--The salary of the Secretary of State shall not exceed two thousand dollars per annum, and the clerical expenses of his department shall not ex ceed one thousand dollars per annum.

945. Par. IV. Comptroller-General's Salary.--The salary of the Comptroller-General shall not exceed two thousand dollars per annum. The clerical expenses of his department, including the in surance department and wild land clerk, shall not exceed four thousand dollars per annum; and without said clerk, it shall not ex ceed three thousand dollars per annum.

946. Par. V, Profit from, use of public money.--The Treas urer shall not be allowed, directly or indirectly, to receive any fee, interest or reward from any person, bank or corporation for the deposit or use, in any manner, of the public funds ; and the General Assembly shall enforce this provision by suitable penalties.

947. Par. VI. Qualifications.--No person shall be eligible to the office of Secretary of State, Comptroller-General, or Treasurer, unless he shall have been a citizen of the United States for ten years, and shall have resided in this State for six years next pre ceding bis election, and shall be twenty-five years of age, when elected. All of said officers shall give bond and security, under regulations to be prescribed by law, for the faithful discharge of their duties.

948. Par. VII. Pees and perquisites denied.---The Secretary of State, the Comptroller-General, and the Treasurer, shall not be allowed any fee, perquisite, or compensation, other than their salaries, as prescribed by law, except their necessary expenses when absent from the seat of government on business for the State.

SECTION III.
949. Paragraph I. Great Seal.--The Great Seal of the State shall be deposited in the office of the Secretary of State, and shall not be affixed to any instrument of writing except by order of the

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CONSTITUTION OF 1877.

[ 950-954

Governor, or General Assembly, and that now in use shall be the Great Seal of the State until otherwise provided by law.

Judiciary.
SECTION I.
950. Paragraph I. Courts enumerated.--The judicial powers of this State shall be vested in a Supreme Court, Superior Courts, Courts of Ordinary, Justices of the Peace, commissioned Notaries Public, and such other Courts as have been or may be established by law.
SECTION II.
951. Paragraph I. Supreme Court Judges.--The Supreme Court shall consist of a Chief Justice and two Associate Justices. A majority of the Court shall constitute a quorum.
952. Par. II. Governor to designate Judges to preside, when.--When one or more of the Judges are disqualified from de ciding any case, by interest or otherwise, the Governor shall desig nate a Judge, or Judges, of the Superior Courts to preside in said case.
953. Par. III. Bond holding Judge disqualified, when.--No Judge of any Court shall preside in any case where the validity of any bond--Federal, State, corporation or municipal--is involved, who holds in his own right, or as the representative of others, any material interest in the class of bonds upon which the question to be decided arises.
954. Par. IV. Terms of office.--The Chief Justices and AsSOCciate Justices shall hold their offices for six years, and until their successors are qualified. A successor to the incumbent whose term will soonest expire, shall be elected by the General Assembly in 1880; a successor to the incumbent whose term of office is next in duration, shall be elected by the General Assembly in 1882; and a successor to the third incumbent shall be elected by the General Assembly in 1884; but appointments to fill vacancies shall only be for the unexpired term, or until such vacancies are filled by elec tions, agreeably to the mode pointed out by this Constitution.

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955. Par. V. Jurisdiction.--The Supreme Court shall have no original jurisdiction, but shall be a Court alone for the trial and correction of errors from the Superior Courts, and from the City Courts of Atlanta and Savannah, and such other like Courts as may be hereafter established in other cities ; and shall sit at the seat of government, at such times in each year as shall be prescribed by law, for the trial and determination of writs of error from said Su perior and City Courts.

956. Par. VI. Cases, hoiw disposed of.--The Supreme Court shall dispose of every case at the first or second term after such writ of error is brought; and in case the plaintiff in error shall not be prepared at the first term to prosecute the case--unless pre vented by providential cause--it shall be stricken from the docket, and the judgment below shall stand affirmed.
Alien v. Georgia, 166 U. S. 138.

957. Par. VII. Judgments may be 'withheld. --In any case the Court may, in its discretion, withhold its judgment until the next term after the same is argued.

SUCTION III.
958. Paragraph I. Terms, etc., of Superior Court J^ldges.-- There shall be a Judge of the Superior Courts for each Judicial Circuit, whose term of office shall be four years, and until his suc cessor is qualified. He may act in other circuits when authorized by law.
959, Par. II. Elections, when to be made.--The successors to the present incumbents shall be elected by the General Assembly as follows : To the half (as near as may be) whose commissions are the oldest, in the }'ear 1878; and to the other in the year 1880. All subsequent elections shall be at the session of the General As sembly next preceding the expiration of the terms of incumbents, except elections to fill vacancies. The day of election may be fixed by the General Assembly.

960. Par. III. Terms begin, when.--The terms of the Judges, to be elected under the Constitution (except to fill vacancies) shall begin on the first day of January, after their elections. But, if the

377]

CONSTITUTION OF 1877.

[ 961-967

time for the meeting of the General Assembly shall be changed, the General Assembly may change the time when the terms of Judges thereafter elected shall begin.

SECTION IV.
961. Paragraph I. Exclusive jurisdiction.--The Superior Court shall have exclusive jurisdiction in cases of divorce ; in crim inal cases where the offender is subjected to loss of life, or con finement in the penitentiary ; in cases respecting titles to land, and equity cases.

962. Par. II. Equity may be merged in common law Courts. --The General Assembly may confer upon the Courts of common law, all the powers heretofore exercised by Courts of equity in this State.

963. Par. III. General jurisdiction.-- Said Courts shall have jurisdiction in all civil cases, except as hereinafter provided.
964. Par. IV. Appellate jurisdiction.~They shall have ap pellate jurisdiction in all such cases as may be provided by law.
965. Par. V. Certiorari, mandamus, etc.--They shall have power to correct errors in inferior judicatories, by "writ of certiorari, which shall only issue on the sanction of the Judge ; and the said Courts and the judges thereof shall have power to issue writs o f mandamus, prohibition. scire facias, and all other writs that may be necessary for carrying their powers fully into effect, and shall have such other powers as are or may be conferred on them by law.

966. Par. VI. Appeal from one jury to another.--The Gen eral Assembly may provide for an appeal from one jury, in the Superior and City Courts, to another, and the said Courts may grant new trials on legal grounds.

967. Par. VII. Judgment by the court. --The Court shall render judgment without the verdict of a jury, in all civil cases founded on unconditional contracts in writing, where an issuable defense is not filed under oath or affirmation.

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[ 378

968, Par. VIII. Sessions.--The Superior Courts shall sit in each county not less than twice in each year, at such times as have been or may be appointed by law.

969. Par. IX. Presiding Judge disqualified.--The General Assembly may provide by law for the appointment of some proper person to preside in cases where the presiding Judge is, from any cause, disqualified.
SUCTION V.
970. Paragraph I. Judges of Superior and City Courts tnay alternate, luhen.--In any county within which there :s, or hereafter may be, a City Court, the Judge of said Court, and of the Superior Court, may preside in the Courts of each other in cases where the Judge of either Court is disqualified to preside.

SECTION VI.
971. Paragraph I. Ordinary, appeals from.--The powers of a Court of Ordinary, and of probate, shall be vested in an Ordinary for each county, from whose decision there may be an appeal (or, by consent of parties, without a decision), to the Superior Court, under regulations prescribed by law.

972. Par. II. Powers.--The Courts of Ordinary shall have such powers in relation to roads, bridges, ferries, public buildings, paupers, County officers, county funds, county taxes, and other county matters as may be conferred on them by law.

973. Par. III. Term of Office.--The Ordinary shall hold his office for the term of four years, and until his successor is elected and qualified.
SECTION VII.
974. Paragraph I. Justices, number and term.--There shall be in each militia district one Justice of the Peace, whose official term except when elected to fill an unexpired term, shall be four years.

975, Par. II. Jurisdiction.--Justices of the Peace shall have jurisdiction in all civil cases, arising ex contractu, and in cases of

379 ]

CONSTITUTION OF 1877.

[ 976-980

injuries or damages to personal property, when the principal sum does not exceed one hundred dollars, and shall sit monthly at fixed times and places ; but in all cases there may be an appeal to a jury in said Court, or an appeal to the Superior Court, under such regu lations as may be prescribed by law.

976. Par. III. Elections and commissions.--Justices of the Peace shall be elected by the legal voters in their respective dis tricts, and shall be commissioned by the Governor. They shall be removable on conviction for malpractice in office.

SECTION VIII.
977. Paragraph I. Notaries Publicf hoiu appointed, etc.-- Commissioned Notaries Public, not to exceed one for each militia district, may be appointed by the Judge of Superior Courts in their respective circuits, upon recommendations of the grand juries of the several counties. They shall be commissioned by the Governor for the term of four years, and shall be ex omcio Justices of the Peace, arid shall be removable on conviction for malpractice in office.
SECTION IX.
978. Paragraph I. Uniformity provided for. --The jurisdic tion, powers, proceedings and practice of all Courts or officers in vested with judicial powers (except City Courts), of the same grade or class, so far as regulated by law, and the force and effect of the process, judgment and decree, by such Courts, severally, shall be uniform. This uniformity must be established by the General As sembly.
SUCTION X.
979. Paragraph I. Attorney-General; election.--There shall be an Attorney-General of this State, who shall be elected by the people at the same time, for the same term and in the same manner as the Governor.
980. Par, II. Duties.--It shall be the duty of the AttorneyGeneral to act as the legal adviser of the Executive Department, to represent the State in the Supreme Court in all capital felonies ; and in all civil and criminal cases in any Court when required by

981-984] CONSTITUTIONAL DOCUMENTS.

[380

the Governor, and to perform such other services as shall be re quired of him by law.
SECTION XI.
981. Paragraph I. Solicitor-General, term.--There shall be a Solicitor-General for each judicial circuit, whose official term, ex cept "when commissioned to fill an unexpired term, shall be four years.

982. Par. II. Duties.-- It shall be the duty of the SolicitorGeneral to represent the State in all cases in the Superior Courts of his circuit, and in all cases taken up from his circuit to the Su preme Court, and to perform such other services as shall be required of him by law.
SSCTIO^ XII.
983. Paragraph I. Judges elected by General Assembly; vacancies.--The Judges of the Supreme and Superior Courts, and Solicitors-General, shall be elected by the General Assembly, in joint session, on such day or days as shall be fixed by joint resolu tion of both Houses. At the session of the General Assembly which is held next before the expiration of the terms of the present in cumbents, as provided in this Constitution, their successors shall be chosen; and the same shall apply to the election of those who shall succeed them. Vacancies occasioned by death, resignation or other cause, shall be filled by appointment of the Governor, until the General Assembly shall convene, when an election shall be held to fill the unexpired portion of the vacant terms.
SKCTION XIII.
984. Paragraph I. Salaries of Judges, etc.--The Judges of the Supreme Court shall have, out of the treasury of the State, salaries not to exceed three thousand dollars per annum; the Judges of the Superior Courts shall have salaries not to exceed two thousand dollars per annum; the Attorney-General shall have a salary not to exceed two thousand dollars per annum; and the Solicitors-General shall each have salaries not to exceed two hundred and fifty dollars per annum; but the Attorney-General shall not have any fee or perquisite in any cases arising after the adoption of this Constitution; but the provisions of this section shall not affect the salaries of those now in office.

381 ]

CONSTITUTION OF 1877.

985. Paragraph II. Hozv salaries may be changed.---The General Assembly may, at any time, by a two-thirds' vote of each branch, prescribe other and different salaries for any, or all, of the above officers, but no such change shall affect the officers then in commission.

SECTION XIV.
986. Paragraph I. Qualifications.--No person shall be Judge of the Supreme or Superior Courts, or Attorney-General, unless, at the time of his election, he shall have attained the age of thirty years, and shall have been a citizen of the State three years, and have practiced law for seven years; and no person shall be hereafter elected Solicitor-General, unless, at the time of his election, he shall have attained twenty-five years of age. shall have been a citizen of the State for three years, and shall have practiced law for three years next preceding his election.

SUCTION XV.
987. Paragraph I. Divorce.-- No total divorce shall be granted, except on the concurrent verdicts of two juries at different terms of the Court.

988. Par. II. .Last jury determines disabilities.--When a di vorce is granted, the jury rendering the final verdict shall determine the rights and disabilities of the parties.

SECTION XVI.
989. Paragraph I. Divorce cases, inhere brought.--Divorce cases shall be brought in the county where the defendant resides, jf a resident of this State; if the defendant be not a resident of this State, then in the county in which the plaintiff resides.

990. Par. II. L,and titles, where tried.-- Cases respecting titles to land shall be tried in the county where the land lies, ex cept where a single tract is divided by a county line, in which case the Superior Court in either county shall have jurisdiction.

991. Par. III. Bqitity cases.--ISquity cases shall be tried in the county where a defendant resides against whom substantial re lief is prayed.

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[ 382

992. Par. IV. Suits against joint obligors, etc.--Suits against joint obligors, joint promisors, copartners, or joint tres passers, residing in different counties, may be tried in either county.

993. Par. V. Suits against -maker and indorscr, etc.--Suits against the maker and mdorser of promissory notes, or drawer, ac ceptor and indorser of foreign or inland bills of exchange, or like instruments, residing m different counties, shall be brought in the county where the maker or acceptor resides.

994. Par. VI. All other cases.--All other civil cases shall be tried in the county "where the defendant resides, and all criminal cases shall be tried in the cotinty where the crime was committed, except cases in the Superior Court, where the Judge is satisfied that an impartial jury cannot be obtained in such county.

SECTION XVII.
995. Paragraph I. Power to change venue.--The power to change the venue in civil and criminal cases shall be vested in the Superior Cottrts, to be exercised in such manner as has been, or shall be, provided by law.

SECTION XVIII.
996. Paragraph I. Trial by jury.--The right of trial by jury, except where it is otherwise provided in this Constitution, shall re main inviolate, but the General Assembly may prescribe any num ber, not less than five, to constitute a trial or traverse jury in Courts other than the Superior and City Courts.

997. Par. II. Selection of Jurors.--The General Assembly shall provide by law for the selection of the most experienced, in telligent and upright men to serve as grand jurors, and intelligent and upright men to serve as traverse jurors. Nevertheless, the grand jurors shall be competent to serve as traverse jurors.

998. Par. III. Compensation of jurors.--It shall be the duty of the General Assembly, by general lav/, to prescribe the manner of fixing compensation of jurors in all counties m this State.

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CONSTITUTION OF 1877.

[ 999-1002

SECTION XIX.
999. Paragraph I. Power to create county commissioners.-- The General Assembly shall have power to provide for the crea tion of county commissioners in such counties as may require them, and to define their duties.

SECTION XX.
1000. Paragraph I. Power to abolish courts.--All courts not specially mentioned by name in the first section of this Article, may be abolished in any county, at the discretion of the General Assembly.

SECTION XXI.
1001. Paragraph I. Costs -in Supreme Court.--The costs in the Supreme Court shall not exceed ten dollars, until otherwise provided by law. Plaintiffs in error shall not be required to pay costs in said Court when the usual pauper oath is filed in the Court below.

ARTICLE VII.
Finance, Taxation and Public Debt.
SECTION T.
1002. Paragraph I. Taxation, how and for what purposes exercised.--The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only:
For the support of the State government and the public institu tions.
For educational purposes, in instructing children in the ele mentary branches of an English education only.
To pay the interest on the public debt. To pay the principal of the public debt. To suppress insurrection, to repel invasion, and defend the State in time of war. To supply the soldiers who lost a limb, or limbs, in the military service of the Confederate States, with substantial artificial limbs during life.

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[ 384

SECTION II.
1003. Paragraph I. Must be uniform, etc.; dogs.--All taxa tion shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and col lected under general laws. The General Assembly may, however impose a tax upon such, domestic animals as, from their nature and habits, are destructive of other property.

1004. Far. II. Exemptions.--The General Assembly may, by law, exempt from taxation, all public property, places or religious worship or burial; all institutions of purely public charity; all build ings erected for and used as a college, incorporated academy, or other seminary of learning; the real and personal estate of any public library, and that of any other literary association, used by or connected with such library; all books and philosophical ap paratus ; and all painting and statuary of any company or associa tion, kept in a public hall, and not held as merchandise, or for purpose of sale or gain; Provided, the property so exempted be not used for purposes of private or corporate profit or income.

1005. Far. III. Pott tax.--No poll tax shall be levied except for educational purposes, and such tax shall not exceed one dollar annually, upon each poll.

1006. Par. IV. Laws exempting property void.--All laws exempting property from taxation, other than the property herein enumerated, shall be void.

1007. Par. V. Tax on corporations. The power to tax cor porations and corporate property, shall not be surrendered or sus pended by any contract or grant to which the State shall be a party.

SECTION III.
1008. Paragraph. I. Debts, for what contracted.--No debts shall be contracted by or on behalf of the State, except to supply casual deficiencies of revenue, to repel invasion, suppress insur rection, and defend the State in time of war, or to pay the existing public debt; but the debt created to supply deficiencies in revenue shall not exceed, in the aggregate, two hundred thousand dollars.

385 ]

CONSTITUTION OF 1877. [ 1009-1013

SECTION IV.
1009. Paragraph I. Form of laws to borrow 'money.--All laws authorizing the borrowing of money by or on behalf of the State, shall specify the purposes for which the money is to be used, and the money so obtained shall be used for the purpose specified, and for no other.

SECTION V.
1010. Paragraph I. State aid forbidden.--The credit of the State shall not be pledged or loaned to any individual, company, corporation or association, and the State shall not become a joint owner or stockholder in any company, association or corporation.

SECTION VI.
1011. Paragraph I. Restrictions on counties and cities.-- The General Assembly shall not authorize any county, municipal corporation, or political division of this State, to become a stock holder in any company, corporation, or association, or to appropriate money for, or to loan its credit to, any corporation, company, associa tion, institution, or individual, except for purely charitable purposes. This restriction shall not operate to prevent the support of schools by municipal corporations within their respective limits: Provided, that if any municipal corporation shall offer to the State any prop erty for locating or building a capitol and the State accepts such offer, the corporation may comply with such offer.
1012. Par. II. Taxing power of counties limited.--The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except for educational pur poses in instructing children in the elementary branches of an Eng lish Education only; to build and repair the public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners, and for litigation, quarantine, roads and expenses of Courts; to support paupers and pay debts heretofore existing.

SECTION VII.
1013. Paragraph I. Debts of counties and cities not to ex ceed seven per cent.--The debt hereafter incurred by any county,

1014-1016 ] CONSTITUTIONAL, DOCUMENTS.

[ 386

municipal corporation, or political division of this State, except as in this Constitution provided for, shall not exceed seven per centum of the assessed value of all the taxable property therein, and no such county municipalities, or division, shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the as sessed value of taxable property therein, without the assent of twothirds of the qualified voters thereof, at an election for that pur pose, to be held as may be prescribed by law; but any city, the debt of which does not exceed seven per centum of the assessed value of the taxable property at the time of the adoption of this Consti tution, may be authorized by law to increase, at any time, the amount of said debt, three per centum upon such assessed valuation.

1014. Par. II. County and city bonds, ho-w paid.---Any county, municipal corporation, or political division of this State, which shall incur any bonded indebtedness under the provisions of this Constitution, shall, at or before the time of so doing, provide for the assessment and collection of an annual tax, sufficient in amount to pay the principal and interest of said debt within thirty years from the elate of the incurring of said indebtedness.

SECTION VIII.
1015. Paragraph I, Assumption of debts forbidden.--The State shall not assume the debt, nor any part thereof, of any county, municipal corporation, or political division of the State, unless such debt shall be contracted to enable the State to repel invasion, sup press insurrection, or defend itself in time of war.
SECTION IX.
1016. Paragraph I. Profit on public money.--The receiving, directly or indirectly, by any officer of the State or county, or mem ber or officer of the General Assembly, of any interests, profits or perquisites arising from the use or loan of public funds in his hands, or moneys to be raised through his agency for State or county purposes, shall be deemed a felony, and punishable as may be prescribed by law, a part of which punishment shall be a disquali fication from holding office.

387 ]

CONSTITUTION OF 1877. [ 1017-1020

SECTION X.
1017. Paragraph I. City debts; hoiv incurred.--Municipal corporations shall not incur any debt until provision therefor shall have been made by the municipal government.

SECTION XI.
1018. Paragraph I. Certain bonds shall not be paid.--The General Assembly shall have no authority to appropriate money either directly or indirectly, to pay the whole, or any part, of the principal or interest of the bonds or other obligations, which have been pronounced illegal, null and void, by the General Assembly, and the constitutional amendments ratified by a vote of the people on the first day of May, 1877; nor shall the General Assembly have authority to pay any of the obligations created by the State under laws passed during the late war between the States, nor any of the bonds, notes or obligations made and entered into during the exist ence of said war, the time for the payment of which was fixed after the ratification of a treaty of peace between the United States and the Confederate States; nor shall the General Assembly pass any law, or the Governor, or other State official, enter into any contract or agreement, whereby the State shall be made a party to any suit in any Court of this State, or of the United States, in stituted to test the validity of any such bonds or obligations.

SECTION XII.
1019. Paragraph I. Bonded debt not to increase.--The bonded debt of the State shall never be increased, except to repel invasion, suppress insurrection, or defend the State in time of war.
SECTION XIII.
1020. Paragraph I. State's property may be sold to pay bonded debt.--The proceeds of the sale of the Western and Atlantic, Macon and Brunswick, or other railroads, held by the State, and any other property owned by the State, whenever the General Assembly may authorize the sale of the whole, or any part thereof, shall be applied to the payment of the bonded debt of the State, and shall not be used for any other purpose whatever, so long as the State has any existing bonded debt: Provided, that the proceeds of the sale of the Western & Atlantic railroad shall be

1021-1024 ] CONSTITUTIONAL DOCUMENTS.

[ 388

applied to the payment of the bonds for which said railroad has been mortgaged, in preference to all other bonds.

SECTION XIV.
1021. Paragraph I. Sinking fund.--The General Assembly shall raise, by taxation, each year, in addition to the sum required to pay the public expenses and interest on the public debt, the sum of one hundred thousand dollars, which shall be held as a sinking fund, to pay off and retire the bonds of the State which have not yet matured, and shall be applied to no other purposes whatever. If the bonds cannot at any time be purchased at or below par, then the sinking fund, herein provided for, may be loaned by the Gov ernor and Treasurer of the State: Provided, the security which shall be demanded for said loan shall consist only of the valid bonds of the State; but this section shall not take effect until the eight per cent, currency bonds, issued under the Act of February the 19th, 1873, shall have been paid.

SECTION XV.
1022. Paragraph I. Quarterly reports of Comptroller and Treasurer.--The Comptroller-General and Treasurer shall each make to the Governor a quarterly report of the financial condition of the State, which report shall include a statement of the assets, liabili ties and income of the State, and expenditures therefor, for the three months preceding; and it shall be the duty of the Governor to care fully examine the same by himself, or through competent persons connected with his department, and cause an abstract thereof to be published for the information of the people, which abstract shall be indorsed by him as having been examined.

SECTION XVI.
1023. Paragraph I. Donations forbidden.--The General Assembly shall not by vote, resolution, or order, grant any donation, or gratuity, in favor of any person, corporation, or association.

1024. Par. II. .rtra compensation forbidden.--The Gen eral Assembly shall not grant or authorize extra compensation to any public officer, agent, or contractor, after the service has been rendered, or the contract entered into.

389]

CONSTITUTION OF 1877. [ 1025-1028

SECTION XVII.
1025. Paragraph I. Public printing.--The office of the State printer shall cease with the expiration of the term of the present incumbent, and the General Assembly shall provide, by law, for letting the public printing to the lowest responsible bidder, or bidders, who shall give adequate and satisfactory security for the faithful performance thereof. No member of the General As sembly, or other public officer, shall be interested, either directly or indirectly, in any stich contract.

ARTICLE VIII.
Education.
SECTION I.
1026. Paragraph I. Common schools.--There shall be a thorough system of common schools for the education of children in the elementary branches of an English education only, as nearly uniform as practicable, the expense of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races.
Gumming v. Board of Education. 175 U. S. 528.

SECTION II.
1027. Paragraph I. State School Commissioner.--There shall be a State School Commissioner, appointed by the Governor, and confirmed by the Senate, whose term of office shall be two years, and until his successor is appointed and qualified. His office shall be at the seat of government, and he shall be paid a salary not to ex ceed two thousand dollars per annum. The General Assembly may substitute for the State .School Commissioner such officer, or offi cers, as may be deemed necessary to perfect the system of public education.

SECTION III.
1028. Paragraph I. School fund.--The poll tax, any educa tional fund now belonging to the State (except the endowment of, and debt due to, the University of Georgia), a special tax on shows and exhibitions, and on the sale of spirituous and malt

1029-1O31 ] CONSTITUTIONAL DOCUMENTS.

[ 39O

liquors, which the General Assembly is hereby authorized to assess, and the proceeds of any commutation tax for military service, and all taxes that may be assessed on such domestic animals as, from their nature and habits, are destructive to other property, are hereby set apart and devoted for the support of common schools.

SECTION IV.
1029. Paragraph I. Counties and cities may tax for public schools.--Authority may be granted to counties, upon the recom mendation of two grand juries, and to municipal corporations, upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits, by local taxation; but no such local laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county or municipal corporation, and approved by a two-thirds' vote of per sons qualified to vote at such election; and the General Assembly may prescribe who shall vote on such questions.

SECTION V.
1030. Paragraph I. Local schools not affected.--Existing local school systems shall not be affected by this Constitution. Nothing contained in section first of this Article shall be construed to deprive schools in this State, not common schools, from partici pating in the educational fund of the State, as to all pupils therein taught in the elementary branches of an English education.

SECTION VI.
1031. Paragraph I. State University.--The trustees of the University of Georgia may accept bequests, donations and grants of land, or other property, for the use of said university. In addi tion to the payment of the annual interest on the debt due by the State to the university, the General Assembly may, from time to time, make such donations thereto as the condition of the treasury will authorize. And the General Assembly may also, from time to time, make such appropriations of money as the condition of the treasury will authorize to any college or university (not exceeding one in number) now established, or hereafter to be established, in this State for the education of persons of color.

391 ]

CONSTITUTION OB" 1877. [ 1032-1035

ARTICLE IX.
Homestead and Exemptions.
SECTION I.
1032. Paragraph I. Home-stead and exemption.--There shall be exempt from levy and sale, by virtue of any process what ever under the laws of this State, except as hereinafter excepted of the property of every head of a family, or guardian, or trustee of a family of minor children, or every aged or infirm person, or person having the care and support of dependent females of any age, who is not the head of a family, realty or personalty, or both, to the value in the aggregate of sixteen hundred dollars.
Lockwood v. Exchange Bank, 190 U. S. 294.

SECTION II.
1033. Paragraph I. Protection guaranteed.--No Court or ministerial officer in this State shall ever have jurisdiction or au thority to enforce any judgment, execution, or decree, against the property set apart for such purpose, including such improvements as may be made thereon from time to time, except for taxes for the purchase money of the same for labor done thereon, for material furnished therefor, or for the removal of incumbrances thereon.

SECTION III.
1034. Paragraph I. May be waived, how far; how sold.-- The debtor shall have power to waive or renounce in writing his right to the benefit of the exemption provided for in this Article, ex cept as to wearing apparel, and not exceeding three hundred dollars worth of household and kitchen furniture, and provisions, to be selected by himself and his wife, if any, and he shall not, after it is set apart, alienate or encumber the property, so exempted, but it may be sold by the debtor, and his wife, if any, jointly, with the sanction of the Judge of the Superior Court of the county, where the debtor resides or the land is situated, the proceeds to be rein vested upon the same uses.
Lockwood -v. Exchange Bank. 190 U. S. 294.

SECTION IV.
1035. Paragraph I. Setting a.part short homestead.--The General Assembly shall provide, by law, as early as practicable, for

1036-1039] CONSTITUTIONAL DOCUMENTS.

[392

the setting apart and valuation of said property. But nothing in this Article shall be construed to affect or repeal the existing laws for exemption of property from sale, contained in the present Code of this State, in paragraphs 2040 to 2049, inclusive, and the Acts amendatory thereto. It may be optional with the applicant to take either, but not both, of such exemptions.

SECTION V.
1036. Paragraph I. Short homestead may be 'waived.---The debtor shall have authority to waive or renounce in writing his right to the benefit of the exemption provided for in section four, except as is excepted in section three of this Article.

SECTION VI.
1037. Paragraph I. Supplemental homestead.--The appli cant shall, at any time, have the right to supplement his exemption by adding to an amount already set apart which is less than the whole amount of exemption herein allowed, a sufficiency to make his ex emption equal to the whole amount.

SECTION VII.
1038. Paragraph I. Homesteads heretofore set apart. -- Homesteads and exemptions of personal property which have been heretofore set apart by virtue of the provisions of the existing Con stitution of this State, and in accordance with the laws for the en forcement thereof, or -which may be hereafter so set apart, at any time, shall be and remain valid as against all debts and liabilities existing at the time of the adoption of this Constitution, to the same extent that they would have been had said existing Constitu tion not been revised.
SECTION VIII.
1039. Paragraph I. Vested rights protected.--Rights which have become vested under previously existing laws shall not be affected by anything herein contained. In all cases in which home steads have been set apart under the Constitution of 1868, and the laws made in pursuance thereof, and a bona fide sale of such prop erty has been subsequently made, and the full purchase price thereof has been paid, all right of exemption in such property by reason

393 ]

CONSTITUTION OF 1877. [ 1040-1044

of its having been so set apart, shall cease in so far as it affects the right of the purchaser. In all such cases where a part only of the purchase price has been paid, such transaction shall be governed by the laws now of force in this State, in so far as they affect the rights of the purchaser, as though said property had not been set apart.
SECTION IX.
1040. Paragraph I. Sale and reinvestment of homestead.-- Parties who have taken a homestead of realty under the Constitu tion of eighteen hundred and sixty-eight shall have the right to sell said homestead and reinvest the same, by order of the Judge of the Superior Courts of this State.

ARTICLE X.
Militia.
SECTION I.
1041. Paragraph I. Organisation of militia.--A well regu lated militia being essential to the peace and security of the State, the General Assembly shall have authority to provide by law how the militia of this State shall be organized, officered, trained, armed and equipped; and of whom it shall consist.
1042. Par. II. Volunteers.--The General Assembly shall have power to authorize the formation of volunteer companies, and to provide for their organization into battalions, regiments, brigades, divisions and corps, with such restrictions as may be prescribed by law, and shall have authority to arm and equip the same.

1043. Par. III. Pay of militia.--The officers and men of the militia and volunteer forces shall not be entitled to receive any pay, rations, or emoluments, when not in active service by authority of the State.
ARTICLE XI.
Counties and County Officers.
SECTION I.
1044. Paragraph I. Counties are corporate bodies.---Hach county shall be a body corporate, with such powers and limitations

1045-1050] CONSTITUTIONAL, DOCUMENTS.

[394

as may be prescribed by law. All suits by or against a county, shall be in the name thereof; and the metes and bounds of the several counties shall remain as now prescribed by law, unless changed as hereinafter provided.

1045. Par. II. Neva counties not allowed.--No new county shall be created.

1046. Par. III. Change of county lines.--County lines shall not be changed, unless under the operation of a general law for that purpose.

1047. Par. IV. Chan-ge of county sites.--No county site shall be changed or removed, except by a two-thirds' vote of the qualified voters of the county, voting at an election held for that pur pose, and a two-thirds' vote of the General Assembly.

1048. Par. V. Dissolution of counties.--Any county may be dissolved and merged with contiguous counties, by a two-thirds' vote of the qualified electors of such county, voting at an election held for that purpose.
SECTION II.
1049. Paragraph I. County officers.--The county officers shall be elected by the qualified voters of their respective coun ties, or districts, and shall hold their offices for two years. They shall be removed on conviction for malpractice in office, and no person shall be eligible to any of the offices referred to in this para graph, unless he shall have been a resident of the county for two years, and is a qualified voter.

SECTION III.
1050. Paragraph I. County officers to be uniform.--What ever tribunal, or officers, may hereafter be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction and remedies, except that the General Assembly may provide for the appointment of commissioners of roads and revenue in any county.

395 ]

CONSTITUTION OF 1877. [ 1051-1056

SECTION IV.
1051. Paragraph I. Capital in A tlanta.--The City of Atlanta shall be the Capital of the State, until changed by the same authority, and in the same way, that is provided for the alteration of this Constitution.

ARTICLE XII.
The Laws of General Operation in Force in This State.
SECTION I.
1052. Paragraph I. Supreme law, "what is.--The laws of general operation in this State are, first, as the supreme law: The Constitution of the United States, the laws of the United States in . pursuance thereof, and all treaties made under the authority of the United States.

1053. Par. II, Second in authority.--Second. As next in authority thereto : This Constitution.

1054. Par. III. Third in authority.--Third. In subordina tion to the foregoing: All laws now of force in this State, not incon sistent with this Constitution, and the ordinances of this Conven tion, shall remain of force until the same are modified or repealed by the General Assembly. The tax acts and appropriation acts passed by the General Assembly of 1877, and approved by the Governor of the State, and not inconsistent with the Constitution, are hereby continued in force until altered by law.

1056. Par. V. Vested rights secured.--All rights, privileges and immunities which may have vested in, or accrued to, any per son or persons, or corporations, in his, her or their own right, or in any fiduciary capacity, under, and in virtue of, any Act of the

1057-1060] CONSTITUTIONAL DOCUMENTS.

[396

General Assembly, or any judgment, decree or order, or other pro ceeding of any Court of competent jurisdiction, in this State, here tofore rendered, shall be held inviolate by all Courts before which they may be brought in question, unless attacked for fraud.

1057. Par. VI. Acts of Courts confirmed.--All judgments, decrees, orders, and other proceedings, of the several Courts of this State, heretofore made, within limits of their several jurisdic tions, are hereby ratified and affirmed, subject only to reversal by motion for a new trial, appeal, bill of review, or other proceeding, in conformity with the law of force when they were made.

1058. Far. VII. Existing officers.--The officers of the gov ernment now existing shall continue in the exercise of their several functions until their successors are duly elected, or appointed and qualified; but nothing herein is to apply to any officer whose office may be abolished by this Constitution.

1059. Par. VIII. Ordinances.--The ordinances of this Con vention shall have the force of laws until otherwise provided by the General Assembly, except the ordinances in reference to sub mitting the homestead and capital question to a vote of. the people, which ordinances, after being voted on, shall have the effect of constitutional provisions.

ARTICLE XIII.
Amendments to the Constitution.
SECTION I.
1060. Paragraph I. Constitution, hoiv amended.---Any amendment, or amendments, to this Constitution may be proposed in the Senate or House of Representatives, and if the same shall be agreed to by two-thirds of the members elected to each of the two Houses, such proposed amendment, or amendments, shall be entered in their journals, -with the yeas and nays taken thereon. And the General Assembly shall cause such amendment, or amend ments, to be published in one or more newspapers in each Con gressional District for two months previous to the time of holding Article so adopted, by this Convention, shall form a part of the

397]

CONSTITUTION OF 1877. [ 1061-1063

the next general election, and shall also provide for a submission of such proposed amendment, or amendments, to the people at said next general election, and if the people shall ratify such amend ment, or amendments, by a majority of the electors qualified to vote for members of the General Assembly, voting thereon, such amendment, or amendments, shall become a part of this Constitu tion. When more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately.

1061. Par. II. Convention,, hozv- called.--No convention of the people shall be called by the General Assembly to revise, amend, or change this Constitution, unless by the concurrence of twothirds of all the members of each House of the General Assembly. The representation in said convention shall be based on population as near as practicable.

SECTION II.
1062. Paragraph I. Constitution, hozv ratified.--The Con stitution shall be submitted for ratification or rejection to the electors of the State, at an election to be held on the first Wednesday in December, one thousand eight hundred and seventy-seven, in the several election districts of this State, at which election every per son shall be entitled to vote who is entitled to vote for the members of the General Assembly under the Constitution and laws of force at the date of such election; said election to be held and conducted as is now provided by law for holding elections for members of the General Assembly. All persons voting at said election in favor of adopting the Constitution, shall write or have printed on their ballots the words "Kor Ratification," and all persons opposed to the adoption of this Constitution, shall write or have printed on their ballots the words "Against Ratification."

1063 ]

CONSTITUTIONAL DOCUMENTS.

[ 398

proclamation of the result of said election by publication in one or more newspapers in each Congressional District of the State, but should a majority of the votes cast be against ratification, he shall in the same manner proclaim the said Constitution rejected.

James Cooper Nisbet, Secretary.

C. J. Jenklns, President.

399]

ORDINANCES.

[ 1064-1065

ORDINANCES.
STATE CAPITAL.
1064. Be it ordained by the people of Georgia in Conven tion assembled:
1st. That the question of the location of the Capital of this State be kept out of the Constitution to be adopted by this Con vention.
2nd. That at the first general election hereafter held for the members of the General Assembly, every voter may indorse his ballot "Atlanta" or "MiHedgeville," and the one of these places re ceiving the largest number of votes, shall be the Capital of the State until changed by the same authority and in the same way that may be provided for the alteration of the Constitution that may be adopted by the Convention, -whether said Constitution be ratified or rejected. And that every person entitled to vote for members of the General Assembly, under the present Constitution and laws of this State, shall be entitled to vote under this ordinance; and, in the event of the rejection of said Constitution, shall (should) a majority of votes cast be in favor of Milledgeville, then this pro vision to operate and take effect as an amendment to the present Constitution.
HOMESTEAD.
1065. Be it ordained by the" people of Georgia in Convention assembled, and it is hereby ordained by authority of the same:--
1st. That the Article adopted by the Convention on the subject of Homestead and Exemptions shall not form a part of this Consti tution, except as hereinafter provided.
2nd. At the election held for the ratification or rejection of this Constitution, it shall be lawful for each voter to have written or printed on his ballot the words "Homestead of 1877," or the words "Homestead of 1868."
3rd. In the event that a majority of the ballots so cast have in dorsed upon them the words, "Homestead of 1877," then said

1066-1068] CONSTITUTIONAL DOCUMENTS.

[400

Constitution submitted, if the same is ratified; but in event that said Constitution, so submitted, shall not be ratified, then the Article on Homestead and Exemptions, so adopted as aforesaid by this Convention shall supersede Article Seventh of the Constitution of 1868, on the subject of Homestead and Exemptions, and form a part of this Constitution.
4th. If a majority of the ballots so cast as aforesaid, shall have indorsed upon them the words, "Homestead of 1868," then Article Seventh of the Constitution of 1868, shall supersede the Article on Homestead and Exemption adopted by this Constitution, and shall be incorporated in and form (a part) of the Constitution so sub mitted and ratified.

JUDICIAL CIRCUITS.
1066. There shall be sixteen Judicial Circuits in this State, and it shall be the duty of the General Assembly to organize and proportion the same in such manner as to equalize the business and labor of the Judges in said several circuits, as far as may be practicable. But the General Assembly shall have power hereafter to reorganize, increase, or diminish the number of circuits: Pro vided, however, that the circuits shall remain as now organized, until changed by law.

SIGNING AND RATIFICATION.

1067. Be it ordained by the people of Georgia in Convention

assembled :

1st. That the Constitution as adopted and revised be enrolled

and signed by the officers and members of this Convention.

2nd. That the Governor shall issue his proclamation, ordering an

election for members of the General Assembly, and a vote upon the

ratification or rejection of this Constitution, as therein provided,

and a vote upon the Capital and Homestead questions, as provided

by the ordinances of this Convention.

Read and adopted in Convention, August 25th, 1877.

Attest:

C. J. Jenkins,

President Constitutional Convention.

James Cooper Nesbet, Secretary.

1068. Constitutional Amendment declaring bonds void.-- Neither the General Assembly nor any other authority or officer of

401 ]

ORDINANCES.

[ 1068

this State, shall ever have the power to pay or recognize as legal, or in any sense, valid or binding upon the State, any direct bonds, or currency bonds, gold bonds, or the State's alleged guaranty or indorsement of any railroad bonds, or any other bonds, guarantees or indorsements heretofore declared to be illegal, fraudulent or void,

bon

sue ur

c o coer

,

, n a o e runnsswwick

and Albany Railroad Company ; the currency bonds issued under the

Act of August 27th, 1870; the quarterly gold bonds issued under

the Act of Sept. 15th, 1870, which are enumerated in the Act of

August 23rd, 1872; the indorsement of the State upon the bonds of

the Brunswick and Albany Railroad Company, made under the Act

.of March 18th, 1869; the indorsement of the State upon the bonds

of the Cartersville and Van Wert Railroad Company, and of the

Cherokee Railroad Company ; the indorsement of the State upon the

bonds of the Bainbridge, Cuthbert and Columbus Railroad Company;

and all other bonds, guaranties, or indorsements declared illegal,

fraudulent, or void, as herein provided. Nor shall any General As

sembly ever have power to provide for the re-enforcement of such

railroad bonds, or to place the State's guaranty upon the same ; or

to provide for the indorsement, or guaranty by the State of any new

bonds issued in lieu of, or to pay off or retire, such railroad bonds,

by any railroad company; or to issue bonds of the State to such

railroad companies, or other persons in payment, or in lieu of such

indorsed bonds, or other bonds herein declared illegal ; or to lend

the aid, or credit of the State by any act, resolution, or law, to such

railroad companies or to other incorporated companies, or persons,

acquiring, or succeeding to the rights and franchises of said com

panies; or to buy the railroads of such companies; or to submit the

question of the ability of the State upon any of the bonds or in

dorsements upon bonds, or other guaranty herein declared illegal,

fraudulent, and void, or upon any claim for money advanced upon

said bonds, indorsements, or guaranties, or expended by said com

panies, or other person in and about the construction of said rail

roads, to the decision of any Court, tribunal, or person whatever;

or to pay, assume, or secure, directly or indirectly, by any act, resolu

tion, or law, any money advanced, or claimed to have been advanced

on the bonds, indorsements, or guaranties herein declared invalid.

Cunningham z>. Macon & Brunswick Railroad Co., 156 U. S. 400.

1069 ]

CONSTITUTIONAL, DOCUMENTS.

[ 4O2

GOVERNOR'S PROCLAMATION.

1069. State of Georgia:

December 21st, 1877.

Whereas, a Convention of the people of the State of Georgia, did assemble at the Capital on the eleventh day of July last ; and

whereas, the said Convention did revise the Constitution of the State and provide that the proposed new Constitution be submitted to the people for ratification or rejection ; and whereas, the said Conven

tion, by ordinances, provided that the people should vote separately on the question of the location of the Capitol at Atlanta, or Mid-

ledgeville, and also on the adoption of the Homestead of 1868 or the Homestead of 1877;

And whereas, on the first Wednesday in December, the present

month, an election was held in conformity with the law prescribed by the Convention, and the vote cast by the citizens of the State was,

for Ratification, 110,442 and against Ratification, 40,947, being a majority of 69,495 votes for the ratification of the Constitution. The

vote cast for the location of the Capitol was, for Atlanta, 99,147 and for Midledgeville, 55,201, being a majority of 43,946 votes for At lanta. The votes cast or the adoption of a homestead was, for the

Homestead of 1877, 94,722, and for the Homestead of 1868, 52,000, being a majority of 42,722 votes for the Homestead of 1877;

Now, therefore, I, Alfred H. Colquitt, Governor and Commander-

in-Chief of the State of Georgia, do issue this, my proclamation, de claring that the Constitution adopted by the Convention at Atlanta,

in the year of our L,ord one thousand eight hundred and seventyseven, is ratified by the people of the State of Georgia, and is now the Constitution of the State. Also, that Atlanta is declared to be

the Capital of the State of Georgia. And that the article adopted by the Convention on the subject of the Homestead forms a part of the new Constitution .

Given under my hand and the Great Seal of the State, at the Cap itol in Atlanta, this twenty-first day of December, in the year of our

Lord one thousand eight hundred and seventy-seven.

By the Governor :

ALFRED H. COLQUITT.

N. C. Barnett, Secretary of State.

403 ]

AMENDMENTS.

[ 1070-1074

AMENDMENTS TO CONSTITUTION OF 1877.
1070. By an amendment proposed in an Act approved Sep tember 24, 1885, and ratified by an election held on the 6th day ot October, 1886, Section 7, of Article 3, was amended by striking from said section, Paragraph 15 thereof.
Acts of 1885, p. 33.
1071. By an amendment proposed in Act approved October 19, 1885, and ratified at an election held on the 6th day of October, 1886, Paragraph 1, of Section 1, of Article 7, was amended by add ing to said paragraph the following words:
"And to make suitable provision for such Confederate soldiers as may have been permanently injured in such service."
Acts of 1885, p. 37.
1072. By an amendment proposed in an Act approved No vember 4, 1889, and ratified at an election held on the first day of October, 1890, Article 7, Section 1, Paragraph 1, as amended by the Act approved October 19, 1885, was amended by adding thereto the following words :
"And for the widows of such Confederate Soldiers as may have died in the service of the Confederate States, or since, from wounds received therein or disease contracted in the service; provided That this act shall only apply to such persons as were married at the time of such service, and have remained unmarried since the death of such soldier husband."
Acts of 1889, p. 39.
1073. By an amendment proposed in an Act approved on Oct. 21, 1890, and ratified at an election held on the 5th day of October, 1892, Article 3, Section 4, Paragraph 3, was amended by striking out the word "biennially," and inserting in lieu thereof the word "an nually."
Acts of 1890, p. 55.
1074. By an amendment proposed in an Act approved Oc tober 21, 1890, and ratified at an election held on the 5th day of October, 1892, Article 2, Section 4, Paragraph 6, was amended by

1075-1078 ] CONSTITUTIONAL DOCUMENTS.

[ 404

striking out of said parag-raph the words "forty days unless by two-thirds vote of the -whole number of each house," and substitut ing therefor the words "fifty days."
Acts of 1890, p. 56.

1075. By an amendment proposed in an Act approved De cember 24, 1890, and ratified at an election held on the 5th day of October, 1892, Article 3, Section 7, Paragraph 7, was amended by adding to said paragraph the following words :
"But the first and second reading of each local bill and bank and railroad charter, in each house, shall consist of the reading of the title only, unless said bill is ordered to be engrossed."
Acts of 1890, p. 57.
1076. By an amendment proposed in an Act approved Sep tember 19, 1891, and ratified at an election held on the 5th day of October, 1892, Article 3, Section 7, Paragraph 18, was amended, by striking therefrom the following words, after the words "com panies," viz : "Except banking, insurance, railroads, canal, naviga tion, express and telegraph companies, nor," and adding as a sub stitute for said words, at the end of said paragraph after the word "courts," the following, viz:
"All corporate powers and privileges to banking, insurance, rail roads, canal, navigation, express and telegraph companies, shall be issued and granted by the Secretary of State, in such manner as shall be prescribed by law."
Acts of 189O, p. 59.
1077. By an amendment proposed in an act approved on De cember 19th, 1893, and ratified at an election held on the 3rd clay of October, 1894, Paragraph I, of Section I, of Article 7, was amended by inserting after the word "service," and before the word "and," in the thirteenth line, the following words :
"* * * or who by reason of age and poverty, or infirmity and poverty, or blindness and poverty, are unable to provide a living for themselves."
Acts of 1893, p, 19.
1078. By an amendment proposed in an Act approved on December 21, 1893, and ratified at an election held on the 3rd day of October 1894, Article 3, Section 4, Paragraph 3, was amended

405 ]

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[ 1079-1080

by striking out the word "October" therein, and substituting1 the word "July" so that said paragraph should read as follows :
"The first meeting of the General Assembly after the Ratification of this Constitution shall be on the Fourth Wednesday in July, 1878, and annually thereafter on the same day until the day shall be changed by law."
Acts of 1893, p. 20.

1079. By an amendment proposed in an Act approved on the 18th day of December, 1894, and ratified at an election held on the 7th day of October, 1896, Paragraph 1, of Section 2, of Article 8, was amended by striking out the words "appointed by the gov ernor and confirmed by the senate," and inserting in lieu thereof, the following, to wit:
"* * * elected by the people at the same time and manner as the Governor and State house officers are elected," and by striking out of the third line of said paragraph the word "appointed" and inserting in lieu thereof, the word "elected."
Acts of 1894, p. 34.

1080. By an amendment proposed in an Act approved 011 the 6th day of December, 1895, and ratified at an election held on the 7th day of October, 1896, Article 6, Section 2, was amended by adding a new paragraph thereto to be known as Paragraph 8, said paragraph to read as follows :
"The Supreme Court shall hereafter consist of a Chief Justice and five associate justices. The court shall have power to hear and determine cases when sitting, either in a body or in two di visions of three judges each, under such regulations as may be prescribed by the General Assembly. A majority of either division shall constitute a quorum for that division. The Chief Justice and the associate justices of the Supreme Court shall hereafter be elected by the people at the same time and in the same manner as the Gov ernor and the State House officers are elected, except that the first election under this amendment shall be held on the third \Vednesday in December, 1896, at which time one associate justice shall be elected for a full term of six years, to fill the vacancy occurring on January first, 1897, by the expiration of the term of one of the present incumbents, and three additional associate justices shall be elected for terms expiring respectively, January 1st, 1899, January

1081-1082] CONSTITUTIONAL DOCUMENTS.

[406

1st, 1901, and January 1st, 1903. The persons elected as additional associate justices shall, among themselves, determine by lot which of the three last mentioned terms each shall have, and they shall be commissioned accordingly. After said first election, all terms (ex cept unexpired terms) shall be 'for six years each. In case of any vacancy which causes an unexpired term, the same shall be filled by executive appointment, and the person appointed by the Gov ernor shall hold office until the next regular election, and until his successor for the balance of the unexpired term shall have been elected and qualified. The returns of said special election shall be made to the Secretary of State."
Acts of 1895, p. 15.

1081. By an amendment proposed in an Act approved on December 21, 1897, and ratified at an election held on the 5th day of October 1898, Paragraph 2, of Section 3, of Article 6, was amended so as to read as follows:
"The successors to the present and subsequent incumbents shall be elected by the electors, entitled to vote for members of the Gen eral Assembly of the whole State, at the general election held for such members, next preceding the expiration of their respective terms ; provided, That the successors to all incumbents whose terms expire on or before the first day of January, 1899, shall be elected by the General Assembly at its session for 1898, for the full term of four years."
Acts of 1897, p. 16.

1082. By the same Act, and ratified at the same election Paragraph 3, of Section 3, of Article 6, was amended so as to read as follows :
"The terms of the judges to be elected under the Constitution (except to fill vacancies) shall begin on the first day of January after their election. Every vacancy occasioned by death, resigna tion, or other causes shall be filled by appointments of the Governor until the first day of January, after the General Election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected."
Acts of 1897, p. 16.

407 ]

AMENDMENTS.

[ 1083-1084

1083. By the same Act, and ratified at the same election Paragraph 1, of Section 2, of Article 6, was amended, to read as follows :
"There shall be a Solicitor General for each judicial circuit, whose official term (except to fill a vacancy) shall be four years. The successors of present and subsequent incumbents shall be elected by the electors of the "whole State, qualified to vote for members of the General Assembly, at the general election held next preceding the expiration of their respective terms. Every vacancy occasioned by death, resignation or other causes shall be filled by appointment of the Governor until the first day of January after the general election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the un expired term shall be elected; provided, that the suc cessors for all incumbents whose terms expire on or before the first day of January, 1899, shall be elected by the General Assembly at its session for 1898, for the full term of four years."
Acts of 1897, p. 16.

1084. By an amendment proposed in an Act approved on December 20th, 1899, and ratified at an election held on the 4th day of October, 190O, Article 7, Section 1, Paragraph 1, was amended so as to read as follows:
"To supply the soldiers who lost a limb in the military service of the Confederate States, with substantial artificial limbs,, during Hfe; and make suitable provision for such Confederate Soldiers as may have been otherwise disabled or permanently injured in such service, or who may, by reason of age and poverty, or infirmity and poverty, or blindness and poverty, are unable to provide a liv ing for themselves, and for the -widows of such Confederate Sol diers as may have died in the service of the Confederate States, or since, from wounds received therein, or disease contracted in the service, or "who by reason of age and poverty, or infirmity and poverty, or blindness and poverty, are unable to provide a living for themselves; Provided, that the act shall only apply to such widows as were married at the time of such service; and have remained unmarried since the death of such soldier husband."
Acts of 1899, p. 19.

1085-1088] CONSTITUTIONAL DOCUMENTS.

[408

1085. By an amendment proposed in an Act approved on August 17, 1903, and ratified at an election held on the 5th day of October, 1904, Article 7, Section 1, was amended by adding- the following paragraph, as paragraph 2, of said section:
"The levy of taxes on property for any one year by the General Assembly for all purposes, except to provide for repelling invasion, suppressing insurrection, or defending the State in time of war shall not exceed five mills on each dollar of the value of the prop erty taxable in the State."
Acts of 1903, p. 21.

1086. By an amendment proposed in an Act approved on August 17, 1903, and ratified at an election on the 5th day of October, 1904, Article 8, Section 4, Paragraph 1, was amended so as to read as follows:
"Authority may be granted to counties, militia districts, school districts and to municipal corporations, upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits by local taxation; but no such local laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county, militia district, school district or municipal corporation, and approved by two-thirds ma jority of persons voting at such election, and the General Assembly may prescribe who shall vote on such questions."
Acts of 1903, p. 23.
1087. By an amendment proposed in an Act approved July 19, 1904, and ratified at an election held on the 5th day of October, 1904, Paragraph 2, Section 1, of Article 11, was amended by striking out all of said paragraph and inserting in lieu thereof, the following:
"There shall not be more than one hundred and forty-five counties in this State."
Acts of 1904, p. 47.

1088. By an Amendment proposed in an Act approved, on July 27, 1904, and ratified at an election held on the 5th day of October, 1904, Section 3, of Article 3, was amended by striking.

409 ]

AMENDMENTS.

[ 1089-1090

out paragraph one of said Article and Section, and substituting in Heu thereof the following:
"Paragraph I. The House of Representatives shall consist of not more than one hundred and eighty-three (183) Representatives, apportioned among the several counties as follows, viz: Chatham, Bibb, Floyd, Fulton, Richmond and Thomas, three (3) Repre sentatives each; to the twenty-six counties having the next largest population, viz: Bartow, Bullock, Burke, Cobb, Carroll, Coweta, DeKalb, Decatur, Dooly, Egbert, Emanuel, Gwinnett, Hall, Houston, Jackson, Laurens, Lowndes, Meriwether, Monroe, Muscogee, Sumter, Tattnal, Troup, Walton, Washington, and Wilkes, two (2) Representatives each; and to the remaining counties one Repre sentative each."
Acts of 1904, p. 48.

1089. By an amendment proposed in an Act approved on August 22, 1905, and ratified at an election held on the 3rd day of October, 1906, Article 6, Section 3, Paragraph 1, was amended by adding to said paragraph the following:
"The legislature shall have authority to add one or more addi tional judges of the Superior Court for any judicial circuit in this State, and shall have authority to regulate the manner in which the judges of such circuit shall dispose of the business thereof, and shall fix the time at which the term or terms of office of such additional judge or judges shall begin, and the manner of his ap pointment or election, and shall have authority from time to time to add to the number of such judges in any judicial circuit, or to reduce the number of judges in any judicial circuit; provided, that at all times there shall be at least one judge in every judicial cir cuit of this State."
Acts of 1905, p. 66.

1090. By an amendment proposed in an Act approved on July 31, 1906, and ratified at an election held on the 6th day of November, 1906, Paragraph 1, of Section 1, of Article 6, was amended, so as to read a^ follows :
"The judicial powers of this State, shall be vested in a Supreme Court, a Court of Appeals, superior courts, courts of ordinary,

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[ 410

justices of the peace, commissioned notaries public, and such other courts as have been or may be established by law."
Acts of 1906, p. 24.

1091. By the same Act, Paragraph 5, of Section 2, of Article 6, was amended so as to read as follows :
"The Supreme Court shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors in law and equity from the superior courts in all civil cases, whether legal or equitable, originating therein, or carried thereto from the court of ordinary, and in all cases of conviction of a capital felony, and for the determination of questions certified to it by the Court of Ap peals ; and it shall sit at the seat of government at such times in each year as are or may be prescribed by law, for the trial and determination of writs of error from the superior courts and of questions certified to it as aforesaid. The provisions of this para graph shall become effective on the first day of January, Anno Domini nineteen hundred and seven, but shall not affect cases which on that date are pending in the Supreme Court, except that cases then pending therein of the kind of which the Court of Appeals has jurisdiction may be transferred by the Supreme Court to the Court of Appeals. Any case thereafter carried to the Supreme Court which is of the class of which the Court of Appeals has juris diction may be transferred to the Court of Appeals, under such rules as the Supreme Court may prescribe, until otherwise pro vided by law; and the Court of Appeals shall try the cases so transferred."
Acts of 1906, p. 24.

1092. By the same Act, Section 2, of Article 6, was amended, by adding to said Section a paragraph, to be known as paragraph 9, to read as follows:
"The Court of Appeals shall, until otherwise provided by law, consist of three judges, of whom two shall constitute a quorum. It shall sit at the seat of government and at such other places as may be prescribed by law. The Governor shall, immediately on the ratification of this amendment, call an election, to be held on Tuesday after the first Monday in November, Anno Domini nine teen hundred and six, at which the judges of the Court of Appeals

411 ]

AMENDMENTS.

[ 1092

shall be elected in the manner in which Justices of the Supreme Court are elected. The returns of said election shall be made to the Secretary of State, and the Secretary of State shall canvass the returns and declare the three persons receiving1 the greatest number of votes to be elected. The terms of office of the judges then elected shall begin on the first day of January, Anno Domini nineteen hundred and seven, and shall continue respectively two, four and six years and until their successors are qualified. The persons so elected shall, among themselves, determine by lot which of the terms each shall have and they shall be commissioned ac cordingly by the Governor. All terms of the judges of the Court of Appeals after the expiration of the terms aforesaid (except unexpired terms) shall continue six years and until their successors are qualified. The times and manner of all other elections, and the mode of filling a vacancy which causes an unexpired term, shall be the same as are or may be provided for by the laws relating to the election and appointment of Justices of the Supreme Court. The Court of Appeals shall have jurisdiction for the trial and correction of errors in law and equity from the superior courts in all cases in which such jurisdiction is not coiifered by this Constitution on the Supreme Court, and from the city courts of Atlanta and Savannah, and such other cities, and in such other cases as may hereafter be prescribed by law, except that where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the Constitution of this State or of the United States, or as to the constitutionality of an Act of the General Assembly, of this State, and a decision of the question is necessary to the determination of the case. The Court of Appeals shall so certify to the Supreme Court, and thereupon a transcript of the record shall be transmitted to the Supreme Court, which, after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the instruction so given. But if by reason of an equal division of opinion among the Justices of the Supreme Court no such instruction is given, the Court of Appeals may decide the question. The Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme Court for proper decision; and thereupon the Supreme Court shall give its instruction on the question certified to it, which shall be binding on the Court of Appeals in such case. The manner of certifying

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[ 412

questions to the Supreme Court by the Court of Appeals, and the subsequent proceedings in regard to the same in the Supreme Court, shall be as the Supreme Court shall by its rules prescribe, until otherwise provided by law. No affirmance of the judgment of the court below, in cases pending in the Court of Appeals, shall result from delay in disposing of questions certified by the Court of Appeals to the Supreme Court. All writs of error in the Court of Appeals when received by its clerk during a term of the court and before the docket of the term is by order of the court closed, shall be entered thereon, and when received at any other time shall be entered on the docket of the next term, and they shall stand for hearing at the term for which they are so entered, under such rules as the court may prescribe, until otherwise provided by law. The Court of Appeals shall appoint a clerk and a sheriff of the court. The reporter of the Supreme Court shall be reporter of the Court of Appeals, until otherwise provided by law. The first term of the Court of Appeals shall be held on the first Monday in January, Anno Domini nineteen hundred and seven. The laws re lating1 to the Supreme Court, as to qualifications and salaries of the judges the designation of other judges to preside "when members of the court are disqualified, the powers, duties, salaries, fees and terms of officers, the mode of carrying cases to the court, the powers, practice, procedure, times of sitting and costs of the court, the publication of reports of cases decided therein, and in all other respects, except as otherwise provided in this Constitution, and until otherwise provided by law, shall apply to the Court of Appeals, so far as they can be made to apply. The decisions of the Supreme Court shall bind the Court of Appeals as precedents."
Acts of 1906, p. 24.

1093. By an amendment proposed in an Act approved on July 31, 1906, and ratified at an election held on the 6th day of November, 1906, Paragraph 2, of Section 1, of Article 11, of the Constitution as amended by the ratification of the amendment pro posed in the Act approved July 19, 1904, was amended by adding to said paragraph the following, language :
"Beginning at the point where the south line of land lot No. 167 in the third district of Wilcox county crosses the Alapaha River, and running- due east along the south line to the northeast corner of land lot 159 in the third district of Irwin county; thence

413 ]

AMENDMENTS.

[ 1093

north to the northeast corner of land lot 172 in the third district of Wilcox County; thence east to the northeast corner of land lot No. 174 in the third district of Irwin County; thence south to the northeast corner of land lot No. 157 in the third district of Irwin County, and thence east to the northeast corner of land lot 156 in the third district of Irwin County, and thence south to the north east corner of land lot No. 66 in the third district of Irwin county; thence east to the northeast corner of land lot No. 62 in the third district of Irwin County, and thence south to the northeast corner of land lot No. 32 in the third district of Irwin county; thence east to the southeast corner of land lot No. 233 in the fourth dis trict of Irwin County, and thence north to the southwest corner of land lot No. 206 in the fourth district of Irwin County, and thence east to the southeast corner of land lot No. 39 in the fourth dis trict of Irwin County, and thence north along the east line of land lot No. 39 to the Ocmulgee river, and thence in a westerly direction along the Ocmulgee river to the point where House creek in Wilcox County empties into the Ocmulgee river, and thence in a westerly direction along- the said House creek to the point where the said House creek crosses the north line of land lot No. 255 in the third district of Wilcox county, and thence west along the north line of said land lot 255 and the district lines between the first and third districts in the said county of Wilcox to the Alapaha river, and thence in a southerly direction along the said Alapaha river to the starting point. That Fitzgerald shall be the County site of said county. Said county shall be attached to the Third Congressional district and to the Oconee Judicial circuit until another circuit shall be established embracing the present county of Irwin, in which case it shall belong to said new circuit, and shall be attached to the fifteenth State senatorial district. That all legal voters residing in the limits of said county of Ben Hill entitled to vote for members of the General Assembly under the laws of Georgia shall, on the first Tuesday m January, 1907, elect an ordinary, a clerk of the superior court, a sheriff, a coroner, a tax-collector, a tax-receiver, a county surveyor, and a county treasurer and three commissioners of roads and revenues for said county, said election to be held at Fitzgerald, the county site of said county. That the superior courts of said county shall be held on the first Mondays in April and October of each year. The limits of the said county, the congres sional and senatorial districts and the judicial circuit to which it

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CONSTITUTIONAL DOCUMENTS.

[ 414

is attached, the time of holding the terms of the superior courts shall be as designated above until changed by law."
Acts of 1906, p. 28.

1004. By an amendment proposed in an Act approved on August 21, 1907, and ratified at an election held on the 7th day of October, 1908, Section 1, of Article 2, was repealed and the follow ing section, consisting of nine paragraphs, was inserted in lieu thereof:
"Section 1. Paragraph 1. After the year 1908 elections by the people shall be by ballot, and only those persons shall be allowed to vote who have been first registered in accordance with the re quirements of law.
"Par. 2. Kvery male citizen of this State who is a citizen of the United States, twenty-one years old or upwards, not laboring under any of the qualifications provided by it, shall be an elector and en titled to register and vote at any election by the people; provided, that no soldier, sailor, or marine in the military or naval services of the United States shall acquire rights of an elector by reason of being stationed on duty in this State.
"Par. 3. To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election, and shall have paid all taxes which may have been required of him since the adoption of the Constitution of Georgia of 1877, that he may have had an opportunity of paying agreeably to law. Such payment must have been made at least six months prior to the election at which he offers to vote, except when such elections are held within six months from the expiration of the time fixed by law for the pay ment of such taxes.
"Par. 4. Every male citizen of this State shall be entitled to register as an elector and to vote in all elections in said State who is not disqualified under the provisions of Section 2, of Article 2 of this Constitution, and who possesses the qualifications prescribed in paragraphs 2 and 3 of this Section or who will possess them at the date of the election occurring next after his registration, and who in addition thereto comes within either of the classes provided for in the five following subdivisions of this paragraph.

415 ]

AMENDMENTS.

[ 1094

"1. All persons who have honorably served in the land or naval forces of the United States in the Revolutionary War, or in the War of 1812, or in the war with Mexico, or in any war with the Indians, or in the "War with Spain, or who honorably served in the land or naval forces of the Confederate States or of the State of Georgia in the War between the States, or
"2. All persons lawfully descended from those embraced in the classes enumerated in the subdivision next above, or,
"3. All persons who are of good character and understand the duties and obligations of citizenship under a Republican form of government; or,
"4. AH persons who can correctly read in English language any paragraph of the Constitution of the United States or of this State and correctly write the same in the English language when read to them by any one of the registrars, and all persons who solely be cause of physical disability are unable to comply with the above requirements but who can understand and give a reasonable in terpretation of any paragraph of the Constitution of the United States or of this State, that may be read to them by any one of the registrars; or,
"5, Any person who is the owner in good faith in his own right of at least forty acres of land situated in this State upon which he resides, or is the owner in good faith in his own right of property, situated hi this State and assessed for taxation at the value of $500.
"Par. 5. The right to register under sub-divisions 1 and 2 of paragraph 4 shall continue only until January 1st, 1915. But the registrars shall prepare a roster of all persons who register under sub-divisions 1 and 2 of paragraph 4, and shall return the same to the clerk's office of the Superior Court of their counties and -the clerks of the Superior Court shall send copies of the same to the Secretary of State, and it shall be the duty of these officers to record and permanently preserve these rosters. Any person who has been once registered under either of the sub-divisions 1 or 2 of paragraph 4 shall thereafter be permitted to vote; provided, he meets the requirements of paragraph 2 and 3 of this Section.
"Par. 6. Any person to whom the right of registration is denied by the registrars upon the ground that he lacks the qualifications set forth in the five sub-divisions of paragraph 4, shall have the right to take an appeal, and any citizen may enter an appeal from the decision of the registrars allowing" any person to register under

1095-1096] CONSTITUTIONAL DOCUMENTS

[416

said sub-divisions. All appeals must be filed in writing with the registrars within ten days from the date of the decision complained of and shall be returned by the registrars to the office of the clerk of the Superior Court to be tried as other appeals.
"Par. 7. Pending an appeal and until the final decision of the case, the judgment of the registrars shall remain in full force.
"Par. 8. No person shall be allowed to participate in a primary of any political party or a convention of any political party in this State who is not a qualified voter,
"Par. 9. The machinery provided by law for the registration, of force October 1st, 1908, shall be used to carry out the provisions of this Section, except where inconsistent with the same; the legis lature may change or amend the registration laws from time to time, but no such change or amendment shall operate to defeat any of the provisions of this Section."
Acts of 1907, p. 47; Acts of 1908, p. 27.

1095. By an amendment proposed in an Act approved on August 6, 1908, and ratified at an election held on the 7th day of October, 1908, Section 3, of Article 3, of the Constitution was amended, by striking out paragraph 1, of said section, as amended by the Act approved July 27, 1908, and substituting in lieu thereof the following:
"Paragraph 1. The House of Representatives shall consist of not more than 184 Representatives, apportioned among the several counties, as follows, to-wit: To the six counties having the largest population, viz., Chatham, Bibb, Floyd, Fulton, Richmond and Thomas, three Representatives each; to the twenty-six counties having the next largest population, viz., Bartow, Bullock, Burke, Cobb, Carroll, Coweta, DeKalb, Decatur, Dooly, Elbert, Emanuel, Gwinnett, Hall, Houston, Jackson, Laurens, Lowndes, Meriwether, Monroe, Muscogee, Sumter, Tatnall, Troup, Walton, Washington and Wilkes, two (2) Representatives each, and to the remaining counties, one Representative each."
Acts of 1908, p. 31.

1096. By an amendment proposed in an Act approved on August 27, 1908, and ratified at an election held on the 7th day of

417 ]

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[ 1097-1098

October, 1908, Section 6, of Article 7, was amended by adding to paragraph 2 of said section, the following words :
"To pay the county police, and to provide for necessary sanita
tion."
Acts of 1908, p. 33.
1097. By an amendment proposed in an Act which was passed by the requisite constitutional majority by the General Assembly at the regular session of 19O8, and ratified by the people at an election held, on the 7th day of October, 1909, Paragraph 1, Section 1, Ar ticle 7, was amended by adding at the end of said paragraph, the following:
"To make provision for the payment of pensions to any exConfederate soldier, now resident of this State, who enlisted in the military service of the Confederate States, during the Civil War be tween the States of the United States, and who performed actual military service in the armies of the Confederate States, or the or ganized militia of this State, and was honorably discharged there from ; and to widows, now residents of this State, of ex-Confed erate soldiers who enlisted in the military service of this State, or who enlisted in the military service of the Confederate States, and who performed actual service in the armies of the State, or of the organized militia of this State, who died in said military service, or was honorably discharged therefrom; provided, that no person shall be entitled to the provisions of this Constitutional Amend ment, the total value of whose property, of every description includ ing money and choses in action, shall exceed fifteen hundred dollars, and provided further, that only those widows "who were married to such soldiers or ex-soldiers previous to the year 1870, shall be en titled to the provisions of this Constitutional Amendment. No widow of a soldier killed during the war shall be deprived of her pension by reason of having subsequently married another veteran who is dead, unless she receives a pension on account of being the widow of such second husband."
Acts of 1908, p. 34.

1098. By an amendment proposed in an Act approved on August 16, 1909, and ratified at an election held on the 5th day of

1099]

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[418

October, 1910, Paragraph 1, of Section 7, of Article 7, was amended by adding at the end of said paragraph, the following words:
"Except that the city council of Augusta, from time to time as necessary, for the purpose of protection against floods, may incur a bonded indebtedness upon its power producing canal and municipal waterworks, in addition to the debts hereinbefore, in this paragraph allowed to be incurred, to an amount in the aggregate not exceeding fifty per centum of the combined value of such properties the val uation of such properties to be fixed as may be prescribed by law, but said valuation not to exceed a figure five per cent, on which shall represent the net revenue per annum produced by the two such properties together at the time of such valuation, and such indebtedness not to be incurred except with the assent of two thirds of the qualified voters of such city, at an election or elections held for that purpose, to be held as may be now, or may hereafter, pre scribed by law for the incurring of new debts by said, the City Council of Augusta."
Acts of 1909, p. 77.

1099. By an amendment proposed in an Act approved on August 3, 1910, and ratified at an election held on the 5th day of October, 1910, Paragraph 1, of Section 13, of Article 6, was amended, by adding to said paragraph, the following words:
"Provided, however, That the counties of Chatham, Fulton, and Richmond shall pay from their respective county treasuries to the Superior Court Judges of the Circuit of which they are a part, and the county of Fulton to the Judge of the Stone Mountain Circuit, or the Judge of such other circuit as may hereafter be required to regularly preside therein, for additional services rendered in the Superior Court of Fulton County, such sums as will, with the sal aries paid each Judge from the State Treasury, make a salary of $5000.00 per annum to each Judge; and said payments are declared to be a part of the Court expenses of such counties, such payments to be made to the Judges now in office as well as their successors."
The Act of the General Assembly of 1904 entitled "An Act to regulate the salaries of Judges of the Superior Courts of all judicial circuits of this State, or that may hereafter have therein a city with a population of not less than 54,OOO nor more than 75,000 in habitants, and for other purposes,--with the Acts of the General

419]

AMENDMENTS.

[ 1100

Assembly of 1905 and 1906 amendatory thereof; and also the Act of the General Assembly of 1906, entitled 'An Act to regulate the Compensation of Judges of the Superior Courts for services ren dered outside of their own circuits in those Judicial Circuits of the State having therein a city of not less than 75,000 inhabitants ac cording to the census of 1900, and for other purposes/ which Acts provide for the payment from the treasuries of the counties con taining said cities to the Judges aforesaid, a part of their salaries, are ratified, validated, and confirmed as of the dates of said respec tive enactments."
Acts of 1910, p. 43.

1100. By an amendment proposed in an Act approved Au gust 4, 1910, and ratified at an election held on the 5th day of Oc tober, 1910, Paragraph 2, Section 6, Article 7, was amended by striking from said paragraph the following words, "in instructing children in the elementary branches of an English education only," so as to make said paragraph read as follows:
"The General Assembly shall not have the power to delegate to any county the right to levy a tax for any purpose, except for ed ucational purposes, to build and repair the public buildings and bridges; to maintain and support prisoners ; to pay jurors and cor oners, and for litigation, quarantine, roads and expenses of courts; to support paupers, and to pay debts heretofore existing."
Acts of 1910, p. 45.

PART III

The Constitution of 1877, as Amended
With Notes of the Decisions Thereon of the Supreme Court and the Court of Appeals of Georgia.
1100. GENERAL NOTE ON INTERPRETATION AND CONSTRUCTION. In interpreting a, provision in a constitution, the meaning of which is doubtful or ambiguous, the end to be ac complished and the mischief sought to be remedied by the provision must be taken into consideration, and the courts will deal with the provision in the light of prior or contemporaneous history, and the conditions and circumstances under which the constitution was formed. 1 Constitutions, being the result of the popular will, pro posed, usually by a convention, but finally enacted by the ratifica tion of the people at the ballot box, their words are to be ordinarily understood in the sense they convey to the popular mind ; 2 and words and phrases in a constitution are to be interpreted according to their collocation, and not their abstract signification. The constitution is to be considered as a whole, and effect is to be given, if possible, to each section, clause and word, and if the language of any part is doubtful, it must be interpreted by every fair intendment to har monize with the main purpose and not to defeat it ;? and so where a word is used in one part of a constitution in a plain and manifest sense, it is to receive the same interpretation when used in every
1. Padelford, Fay & Co. v. Mayor & Aldermen of Savannah, 14 Ga. 438; Park v. Candler, 114 Ga. 466, 40 S. E. 523; Walsh v. City Council of Augusta, 67 Ga- 294; Southern Rwy. Co. V. Melton, 133 Ga. 283; City of Dawson v. Waterworks Co., 106 Ga. 704, 33 S. E. 907.
2. Park v. Candler, 114 Ga. 466, 40 S. E. 533; State v. Calvin, R. M. Charlton 15S.
3. State v. Calvin, R. M. Charlton 152; Gilbert v. Thomas et al., 3 Ga. 575; Park v. Candler, 114 Ga. 466, 40 S. E. 523; Grimball v. Ross, T. U. P. Charlton 175.

1100] AMENDED CONSTITUTION OF 1877.

[424

other part, unless it manifestly appears that a different meaning should be given it.4
Extrinsic aid to the interpretation of a constitution may be de rived from the proceedings and debates of a constitutional con vention. While powerless to vary the terms of the instrument, they may be considered in determining- the purpose and consequent mean ing of a doubtful provision or word; 5 and, while not controlling on the courts, contemporaneous construction by the members of the legislature is entitled to great weight upon constitutional questions. 6 Likewise the practice of the several departments of the government may be looked to as a collateral means of interpretation,7 but when the constitution is the subject matter of construction the courts are the real and final authority. 8 The object of construction, however, is to give effect to the intention of the people in adopting it, and to determine the thought which the constitution expresses, 0 and the judiciary has no right to restrain by construction, the power dele gated by the people to the peoples representatives. 10 A contem porary exposition of the constitution, practiced and acquiesced un der for a period of j'ears, fixes the construction, and the court will not shake or control it. 11

4. Park v. Candler, 114 Ga. 466, 40 S. E. 533. 5. Padelford, Fay & Co. v. Mayor & Aldermen of Savannah, 14 Ga. 438; Park v. Candler, 114 Ga. 466, 40 S. E. 523; Epping v. Columbus, 117 Ga. 273, 43 S. E. 803; "William Solomon z>. The Commissioners of Cartersville, 41 Ga. 157; Houston v. Bavidson, 45 Ga. 579; Miller v. Wilson, 60 Ga. 508; Park v. Candler, 114 Ga. 501, 40 S. E. 523. 6. Hawkinsville Railroad Company -v. Waycross Railroad Company, 114 Ga. 243, 39 S. E- 844; County of Pulaski v. Thompson & Company, 83 Ga. 370, 9 S. E. 1065; Fullington -u. Williams, 98 Ga. 807, 37 S. E. 183; Calhoun v. McLendon, 43 Ga. 405; Rice & Williams v. Johnston, 20 Ga. 644. 7. "Wellborn v. Estes, 7O Ga. 39O; Park v. Candler, 114 Ga. 466, 40 S E. 523; Hawkinsville & Florida Southern Railroad Company z>. "Waycross Airline Railway Company, 114 Ga. 239, 39 S. E. 844; Savannah & Charleston Railroad Company -u. Daniel Callahan, 49 Ga. 506; Caesar v. State, 127 Ga. 714, 57 S. E. 66. 8. Parker z>. Irvin, 47 Ga. 406; Calhoun -v. McLendon, 43 Ga. 405. 9. Wellborn v. Estes, 70 Ga. 390. 10. Walker v. Whitehead, 43 Ga. 538. 11. John L,ow v. Commissioners of Pilotage, R. M. Charlton 316.

425] AMENDED CONSTITUTION OF 1877. [ 1101-1102
PREAMBLE. 1101. To perpetuate the principles of free govern ment, insure justice to all, preserve peace, promote the in terest and happiness of the citizen, and transmit to poster ity the enjoyment of liberty, we the people of Georgia, relying upon the protection and guidance of Almighty God, do ordain and establish this constitution.
ARTICLE 1. BILI, OF RIGHTS.
SECTION 1. RIGHTS OF THS CITIZENS. 1102 (6357). Paragraph 1. ORIGIN AND FOUN DATION OF GOVERNMENT. All government of right origi nates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public offi cers are the trustees and servants of the people and at all times amenable to them.
Cross References; 50, 56, 75, 238, 351.
A constitution emanates directly from the will of the people in whom the sovereign power resides ; x and is founded upon the will of the people of the whole state, the good of the whole people being the end sought to be attained by government, and the right of the people of a municipal corporation to control its affairs being not an inherent right, but a right dependent for its existence upon the legislative will, and there being no express guaranty in the constitu-
1. Grimball v. Ross, T. TJ. P. Charlton 175; Beall v. Beall, 8 Ga. 216; Park v. Candler, 114 Ga. 466, 40 S. E. 523.

1103], AMENDED CONSTITUTION OF 1877.

[426

tion of local self-government for municipal corporations, and nothing from which this right can legitimately be inferred, the General Assembly may appoint municipal officers, 2 and the an nexation of territory to an incorporated city, without submitting the question of such annexation to the people in the territory to be annexed, is not violative of the constitution ;3 but it is not un constitutional for the legislature to submit to the people of a given locality the question whether a local statute shall be of force in that locality.4
An office is a public station or employment conferred by the ap pointment of the government, and any man is a public officer who is appointed by the government and has any duty to perform con cerning the public.5 Being a public officer, a notary public ex officio justice of the peace is a trustee and servant of the people and continues in office until his successor is elected and qualified, hence a judgment by such a notary public who had resigned and whose resignation had been accepted was held valid. 6
Public officers are only the naked agents of the body politic and act only for its benefit ;7 and public policy forbids any man who is agent or trustee for another, whether public or private, to bar gain with himself, whether directly or indirectly, hence a mayor cannot take a contract which it is his official duty to see faithfully performed. 8
1103 (6358). Par. 2. PROTECTION THE DUTY OF GOVERNMENT. Protection to person and property is the paramount duty of government, and shall be impartial and complete.
Cross References: 442, 549, 650, 816.
See Notes to 1104, 1136, 1299.
The law affords protection only to the rights of property and the legal, and not the moral, rights, of persons; hence a mere naked

2. Mayor of Americus v. Perry, 114 Ga. 878, 40 S. E. 1004. 3. Toney v. Mayor & Council of Macon, 119 Ga. 83, 46 S- E. 80; Smith v. Mayor & Council of Macon, 129 Ga. 228, 232, 58 S. E. 713; White -v. City of Atlanta, 134 Ga. 532, 68 S. E. 103. 4. Caldwell et al. v. Barrett et al., Commissioners, 73 Ga. 604. 5. Polk et al., Commissioners, -v. Jones, Ordinary, 68 Ga. 128. 6. Bates v. Bigby, 123 Ga. 727, 51 S. E- 717. 7. State, ex rel. v. Dews, R. M. C. 397. 8. Mayor of Macon v. Huff, 60 Ga. 221, 328.

427]

AMENDED CONSTITUTION OF 1877. [ 1104

promise Is not enforceable. An obligation to be enforced must be

founded upon a legal consideration, or some pecuniary damage

must flow from a breach of it. The affection and sense of duty

which should naturally exist on the part of a child towards an

aged and dependent parent, is a good consideration to support a

contract making provision for her support. 1

;

The right of private property is sacred in the eyes of the law

and stands upon the same foundation as the coordinate rights of

personal liberty and personal security and yields only to the right

of eminent domain, 2 but all property is held subject to the police

power of the State.3 A provision in the charter of a city for ac

quiring and operation of a municipal ice plant for the manufacture

and sale of Ice to the citizens of the town is not repugnant to the

above provision,4 nor is the imposition of an occupation, or voca

tion, tax violative of the duty to protect the person or the prop

erty of the citizen, hence such a tax laid upon an emigrant agent,5

or upon a dealer in imitations or substitutes for beer, etc.,6 is not

violative of this provision; nor is penalty upon insurance company

for failure to pay a loss on a policy within a reasonable time, vio

lative of this provision.7

The general prohibition law does not violate this paragraph.

The prohibition of the manufacture and sale of alcohol bring a

valid exercise of the police power of the State.8

1104 (6359). Par. 3. LIFE, LIBERTY AND PROP ERTY. No person shall be deprived of life, liberty or prop erty, except by due process of law.
Historical Note: This paragraph is derived from the 39th Article of Magna Charta. The principle of natural right contained in it was re-
1. Davis & Co. -v. Morgan, 117 Ga. 506, 43 S. E- 733; Worth v. Baniel, 1 Ga. App. 17, 57 S. E. 898.
2. Alabama Great Southern Railroad v. Gilbert. 71 Ga. 593. 3. Atlantic Coast Line R. R. z>. State, 135 Ga. 557. 4. Holton -v. Town of Camilla, 134 Ga. 560; Lippitt v. Albany, 131 Ga. 629, 63 S- E- 33. 5. Williams v. Peers, Sheriff, et al., 110 Ga. 584, 594, 35 S- E. 699. 6. Carroll v. Wright, 131 Ga. 728, 63 S. E. 360; Carswell -u. Wright, 133 Ga. 717, 66 S. E. 905. 7. Harp f. Fireman's Fund Insurance Co., 130 Ga. 736, 61 S. E. 704, affirming Southern Fire Insurance Co. t>. Knight, 111 Ga. 622, 36 S. E. 821, and overruling Phcenix Insurance Co. v. Hart, 112 Ga. 765, 38 S. E. 67. 8. Cureton v. State, 135 Ga. 660, 70 S. E. 786.

11O4] AMENDED CONSTITUTION OF 1877.

[428

asserted and confirmed in the Confirms.!io Cartarum; in the Petition of Right; in the Bill of Rights, and in the act of settlement. It was guaranteed to the people of Georgia in the colonial charter by the provision that the "----------------------------by laws, constitutions, orders and ordinances, pains and penalties from time to time to be made and imposed," by the trustees should "be reasonable and not contrary or repugnant to the laws and statutes of this our realm." The assertion of this right appears in the Declaration of Rights adopted by the Con tinental Congress in 1774, which declared "that the respective colonies are entitled to the common law of England, and more especially to the great and inestimable right of being tried by their peers of the vi cinity, according to the laws of the land." This principle of rig*ht was asserted in the Declaration of Independence; was made part of the Con stitution of the United States by the Fifth and Fourteenth Amend ments, and is in some form of words, part of the Constitution of every American State.
See Notes, pp. 1116, 1126, 1133.
The phrase "due process of la^^' is the exact equivalent of "the law of the land" as used in Magna Charta, 1 and means, in accord ance with the law of the land in the State where the defendant resides.2 More fully defined, it means the judgment of a court of competent jurisdiction proceeding according to regular and legally appointed methods,3 and is secured by laws operating on all alike without discrimination.4
Opportunity to be heard is necessary to judgment condemning one in person or property,5 and notice of proceeding and right to hearing is generally essential; hence, such notice and right to be heard is essential to validity of judgment in attachment levied upon land, 6 and provision for notice and hearing is essential to validity of statute providing for removal of county officers by judge of

1. Bavison -v. New Orleans, 96 TJ. S- 97. 2. Lamar v. Prosser, 121 Ga. 153, 48 S. E. 977; Handley v. State, 115 Ga. 584, 41 S. E. 992; The Continental National Bank v. Folsom, 78 Ga. 449, 3 S. E. S69. 3. Ward -v. Barnes, 95 Ga. 106, 22 S. E. 133; Kennedy v. Meara, 127 Ga. 68, 56 S- E. 243. 4. Lamar v. Prosser, 121 Ga. 153, 48 S. E. 977. 5. Holden v. Hardy, 169 U. S. 366; Sutton v. Hancock, 118 Ga. 443, 45 S. E. 504. S. Smith v. Brown, 96 Ga. 274, 33 S. E. 849; McCrory v. Hall, 104 Ga. 667, 30 S. E. 881; New England Mortgage Co. v. Watson, 99 Ga. 733, 27 S. E. 160; Baker v. Aultman, 107 Ga. 339, 33 S- E. 423; Hiles Car ver Co. -v. King, 109 Ga. 180, 34 S. E. 353; Cowart v. Caldwell Co., 134 Ga. 544, 68 S. E. 500.

429]

AMENDED CONSTITUTION OF 1877. [ 1104

superior court ;7 to charter provision that mayor and council may assess property and raise valuations ;8 to legislative act providing for the collection of assessments for water pipes against the prop erty through which they pass ; but a municipal ordinance providing for an assessment against property improved to pay for sidewalks which provides that when execution issued owner may contest levy by illegality and show fraud, mistake, error, excess in amount or want of statutory authority is not taking of property "without due process of law;" 10 nor is charter provision for appointment of free holders to assess damages accruing to lot owners consequent upon opening street without notice to such owners, unconstitutional if it provides for notice and opportunity to be heard before assess ments become finally binding and conclusive, 11 and charter pro vision for assessment of damages to owners of lots taken for public use providing for appeal to superior court by dissatisfied party is constitutional; 12 and it is not necessary for special tribunal to be created in condemnation proceedings ; 13 but charter provision which provides for condemnation without providing notice to owner, is violative of this provision of state constitution and of fourteenth Amendment to constitution of United States. 14 Act of 1897 (Acts of 1897-p-82) providing for validating of municipal bonds is not unconstitutional because judgment of validation concludes rights of citizens without making them parties ; 15 nor the Act of August 21, 1906 (Acts of 1906-p-61) providing "local tax for schools," because it makes no provision for contesting election. 16 Suffi cient notice of hearing to constitute due process of law where for eign corporation served by publication in proceeding against it and domestic corporation to cancel transfer of stock of domestic cor poration held by foreign corporation. 17
Usage and practice of common law furnishes criterion by which to determine whether rule or procedure affords due process within

7. Coleman v. Glenn, 103 Ga. 458, 30 S. E. 297. 8. Shippen Lumber Co. v. Elliott, 134 Ga. 700, 68 S. E. 509. 9. City Council of Augusta v. King, 115 Ga. 454, 41 S. E. 661. 10. Speer v. Mayor, Athens, 85 Ga. 49, 11 S. E. 803. 11. Savannah, etc., Rwy. Co. v. Savannah, 96 Ga. 680, 33 S. E. 847; Speer v. Athens, 85 Ga. 49, 11 S. E- 802. 13. Atlanta if. Central R. R., etc., Co., 53 Ga. 120. 13. Savannah Rwy. Co. v. Postal Tel. Co., 115 Ga. 554, 43 S. E. 1. 14. Savannah, etc., Rwy. Co. v. Savannah, supra. 15. Lippit v. Albany, 131 Ga. 633, 63 S- E- 33. 16. Colernan v. Board of Education, 131 Ga. 647, 16 S. E. 41. 17. Peoples National Bank v. Cleveland, 117 Ga. 908, 44 S. E. 20.

1104] AMENDED CONSTITUTION OF 1877.

[430

meaning of phrase as used in constitution; 18 hence, right to review by appeal is not a necessary element of due process of law, no such right having existed at common law; 19 nor has one accused of mis demeanor right to demand indictment by grand jury;20 nor is trial by jury guaranteed to one sentenced by road commissioners as a road defaulter or to petty offender tried in municipal court; 21 nor does due process of law require furnishing' of formal accusation or written statement of charge preferred to one accused of vio lating municipal ordinance ; timely information of nature of charge and opportunity to be heard and present defense sufficient ; 22 nor is Code provision for commitment or holding to bail for appear ance before state courts by municipal officer when evidence on trial of municipal offense discloses violation of state law repugnant to this provision or to Fourteenth Amendment of the federal consti tution ;23 nor is city ordinance providing for arrest by municipal officers without warrant unconstitutional as being without due process of law;24 nor are the provisions of the Act of September 6, 1891 (Acts of 1891-p-935), establishing Criminal Court of At lanta providing for trial by jury of only five contrary to the pro vision of constitution as deprivation of life, liberty or property without due process of law ; 25 but sentence of one convicted of municipal offense without jury trial to county chaingang to serve with violators of state Jaw is violatrve of this provision of con stitution. 26 Trial by jury not so interfered with as to amount to deprivation of due process of law by direction of verdict for the plaintiff or the defendant, as the case may be, when under the evidence it would be legally impossible for the jury to reach but one conclusion. 27 The use of depositions in criminal cases is con trary to the usages, customs and principles of the common law, and when defendants witnesses are without the state and beyond

18. Sutton v. Hancock, 118 Ga. 443, 45 S. E. 504. 19. Yeates v. Robinson, 4 Ga. App. 573, 578, 63 S. E. 104; Robinson v. McAlpin, 130 Ga. 489, 61 S. E. 115; McKane v. Durston, 153 U. S. 684. 20. Gordon v. State, 103 Ga. 673, 29 S. E. 444. 81. Davis v. Smith, 7 Ga. App. 194, 66 S. E. 401; Loeb v. Jennings, 133 Ga. 797, 67 S- E. 102. 22. Loeb v. Jennings, supra. 23. Penal Code (1910), 953; Parks v. Nelms, 115 Ga. 243, 41 S. E. 605. 24. Johnson v. Americus, 46 Ga. 80. 25. Wellborne v, Donaldson, 115 Ga. 563, 41 S. E. 099. 26. Pearson v. Wimbish, 124 Ga. 701, 53 S. E. 757. 27. Tilley v. Cox, 119 Ga. 870, 47 S. E. 219.

431 ]

AMENDED CONSTITUTION OF 1877. [ 1104

its processes, it is not deprivation of life or liberty without due process by being" tried without the testimony of such witnesses. 28
Property not taken "z&ithout due process of law*' by removal, of officer, a public office being a public trust or agency and not the property of the incumbent;29 nor by revocation of license to sell spirituous or malt liquors or "soft drinks/' such license being neither a contract nor a property right ;30 nor, is the general pro hibition law unconstitutional as depriving the citizen of life, liberty or property, in that it prevents the manufacture or the keeping of spirituous, malt or intoxicating liquors at public places ;31 nor, is near beer tax unconstitutional under this paragraph;32 but taxa tion of business in an unreasonable amount constitutes the taking of property without "due process of law."33 Law imposing pen alty in default of performance of Act; for example, freight tracing Act contained in Code, 2771 and 2772, not unconstitutional;34 otherwise, if condition impossible or unreasonable;35 nor is what is commonly known as the "headlight law" unconstitutional as a deprivation of property without due process of law.36
Personal liberty not interfered with, nor property right taken without "due process of law," by city ordinance levying an occu pation tax on persons lending money on personal property ;37 nor by the Act of Aug. 17, 1903 (Acts of 1903-p-92) to regulate the sale of stocks of goods in bulk;38 nor by the act regulating the
28. Minder v. State, 113 Ga. 772, 39 S. E. 284. 29. Gray v. McLendon, 134 Ga. 226; State ex rel. v. Drew, R. M. C. 397; Cassidy v. Macon, 133 Ga. 690, 66 S. E. 941; Edge v. Holcombe, 135 Ga. 760, 70 S. E. 644. 30. Pearson v. Wimbish, 134 Ga. 701, 52 S- E. 751; Plumb v. Christie, 103 Ga. 691, 30 S. E. 759; Brown v. State, 82 Ga. 324, 7 S- E. 915; Sprayberry v. City of Atlanta, 87 Ga. 120, 13 S. E. 197; Cassidy v. Macon, 133 Ga. 690; Deal v. Singletary, 105 Ga. 466, 30 S. E. 765; Silver v. Sparta, 107 Ga. 378, 33 S. E. 31. 31. Tooke v. State, 4 Ga- App. 495, 61 S- E. 917; Cureton v. State, 135 Ga. 660, 70 S. E. 786. 32. Car roll v. Wright, 131 Ga. 734 (3) ; 63 S. E. 260. 33. Atlantic Postal Telegraph Cable Co. v. Savannah, 133 Ga. 66. 34. Central of Georgia Rwy. Co. v. Murphey, 116 Ga. 863, 43 S. E. 265; Savannah Rwy. Co. v. Elder, 116 Ga. 943, 43 S- E. 379. 35. Central of Ga. Rwy. Co. v. Murphey, supra. 36. Atlantic Coast L,ine Rwy. Co. v. State, 135 Ga. 545, 69 S. E- 725. 37. City Council of Augusta v. Clarke & Co., 124 Ga. 254, 53 S. E. 881. 38. Jaques-Tinsley Co. v. Carstarpben Warehouse Co., 131 Ga. 2, 62 S. E. 82; Jaques-Tinsley Co. v. Carstarphen Warehouse Co., 4 Ga. App. 581, 63 S. E. 90. (Certified and decided as above.)

1104] AMENDED CONSTITUTION OF 1877.

[432

sale of seed cotton;39 nor "by municipal ordinance prohibiting boys from jumping on and off trains at depot ;40 but an unreasonable tax levied upon a business by a municipal corporation is a taking of property without due process of law.41
Liberty of speech and writing is guaranteed by the constitution, and liberty of silence is correlative thereto and not less sacred; hence, Act of Oct. 22, 1891, requiring corporations to give their discharged employees or agents the cause of their removal or dis charge is unconstitutional.42
A court of competent jurisdiction to pass a legal judgment may be one presided over by a judge pro hac vice appointed by the clerk.43 Exclusion by jury commissioners of all lawyers, minis ters, dentists, railroad engineers, and firemen from the jury lists and the grand jury box not deprivation of "due process of law" against one accused of crime, the constitution not requiring that all upright men shall be selected as jurors.44
The right of private property, is coordinate with and stands upon the same footing as rights of personal liberty and of personal se curity,45 and cannot be taken away or interfered with without due process of law;" hence, where property levied upon under process afterwards quashed, because illegal, court cannot order property sold and necessary expense of custody paid sheriff.46 The right of private property carries with it, the right to dispose of it as the owner sees fit, provided disposition not contrary to public policy,47
The Dodson !Law (Code 2549) providing for the recovery of a
penalty against insurance companies for failure to pay a loss within
a reasonable time after demand therefor, is not invalid as a depriva
tion of property without due process of law ;48 nor is Code 3352

39. Bazemore -u. State, 131 Ga. 619, 49 S. E. 701. 40. Bearden v. City of Madison, 73 Ga, 184. 41. Atlantic Postal Telegraph Cable Co. -v. Savannah, 133 Ga. 66, 65 S- E. 184. 42. Wallace v. Georgia, Carolina & Northern Rwy. Co., 94 Ga. 732, 22 S. E. 759. 43. Bivins v. Bank, 109 Ga. 342, 34 S. E. 602. 44. Rawlins v. State, 124 Ga. 37, 52 S. E. 1. 45. Alabama Great Southern R. R, v. Gilbert, 71 Ga. 593. See note 3 to pag-e 1126. 46. Ward v. Barnes, 95 Ga. 103, 22 S- E- 133. 47. Smith <v. DuBose, 78 Ga. 413, 3 S. E. 309; Beall v. Beall, 8 Ga. 211. 48. Harp v. Firemens* Fund Inc. Co., 130 Ga. 731, 61 S. E. 704; 185 U. S- 308; overruling- Phcenix Insurance Co. v. Hart, 112 Ga. 765, 38 S. E. 67.

433]

AMENDED CONSTITUTION OF 1877. [ 1105

giving a lien to materialmen ;49 nor Code 3857 providing that the probate of a will in common form shall be conclusive, after a cer tain time;50 nor is the Act of August 13th, 1904, providing that, for the purpose of attachment and garnishment, the situs of a debt owing by a resident of this state to a nonresident shall be in this state repugnant to this provision of the constitution.51
Damage to private property, within the meaning of the Consti tution, consists in some physical interference with the property, or some right or use appurtenant to it ; hence, railroad not liable to owner of property for diminution of market value resulting from noises, smoke, etc., in prosecution of lawful business, though caus ing personal inconvenience to the owner, but not physically affecting the property itself;52 so, annoyances and inconveniences to a rail road company from the erection of telegraph line upon its right of way must be real and interfere with business of railroad, to become element of damage.53

1105 (6360). Par. 4. RIGHT TO THE COURTS. STo person shall be deprived of the right to prosecute or de fend his own cause in any of the courts of this State, in person, by attorney or both.
Cross References: 59, 296, 398, 448, 555, 654, 818.

Kvery citizen has the constitutional right to represent himself in court, 1 but where a defendant is represented in court by counsel
49. Prince v. Neal-Millard Co., 124 Ga. 8S4, 53 S. E. 761. 50. Sutton v. Hancock, 118 Ga. 443, 45 S- E. 504. 51. Harvey v. Thompson, 138 Ga. 147, 57 S. E. 104; Harvey v. Thomp son, 2 Ga. App. 569, 60 S. E. 11. (Certified to Supreme Court and de cided as above.) 52. Austin v. Augusta Terminal Rwy. Co., 108 Ga. 671, 34 S. E. 852. 53. Atlantic, etc., R. R. Co. v. Postal Tel. Co., 20 Ga. 268, 48 S. E- 17.
1. Levadas v. Beach, 119 Ga. 613, 46 S. E. 864.

1105] AMENDED CONSTITUTION OF 1877.

[434

who subjects a witness to a full cross-examination, it is not a denial of the privileges of this section to refuse to allow the defendant to cross-examine the witness- 2
Right of resort to the courts, cannot be impaired by allowing de fendant to sue for and recover damages from plaintiff by way of cross action in same case upon ground that plaintiff's action insti tuted and prosecuted without probable cause,3 but provision in code section 2549 for penalty against insurance company for failure to pay loss within reasonable time does not contravene this right.4
Public policy of State, declared in fundamental law forbids en forcement of contract not to resort to court; hence, award, under agreement to accept award as final and conclusive and not to resort to courts, not more conclusive than award under any other agree ment to abide award of arbitrators. 5
Argument of counsel, a constitutional right, and absence of sole counsel is good cause for continuance ; 6 it forms a link in chain of legal rights belonging to defendants as well as plaintiffs,7 and court has no right to predetermine length of argument, 8 nor cut argument short because not enough of term remaining to permit counsel to be heard at reasonable length ; 9 but cutting off argument in a plain case in order to prevent needless consumption of time, not error. 10 A defendant is entitled to defend his case before the jury to the extent to which his interest is involved, and no further, and when answer sets up no defense, and under the evidence, plain tiff is entitled to verdict, defendant has no right to address jury, and it is error for court to permit him to do so. 11

Z. Roberts v. State, 14 Ga. 18. 3. Fender v. Ramsey & Phillips, 131 Ga. 440, 62 S. E. 527. 4. Harp v. Firemens' Fund Insurance Co., 130 Ga. 731, 61 S. E. 704. 5- Atlanta & Richmond Air Line Co. v. Mangham & Pritchett, 49 Ga. 266. 6. Hill v. Clarke, 51 Ga. 123. 7. Ga. R. R. Co. v. Gardner, 118 Ga. 723, 45 S. E. 600; Traders Ins. Co. v. Mann, 118 Ga. 381, 45 S. E. 436. 8. Hunt z>. State, 49 Ga. 255; Traders Ins. Co. v. Mann, 118 Ga. 381, 45 S. E. 426; Williams v. State, 60 Ga. 367. 9. Van Dyke v. Martin, 55 Ga. 46610. Sparks v. E. T. V. & Ga. R. R. Co., 82 Ga- 156, 8 S. E. 434, citing Early v. Oliver, 63 Ga. 11, and cases there cited; VanDyke v. Martin, 55 Ga. 466. 11. Gunn v. Head, 116 Ga. 325, 42 S. E. 342.

435 ]

AMENDED CONSTITUTION OF 1877. [ 1106

1106 (6361). Par. 5. BENEFIT OF COUNSEL, AC CUSATION, LIST OF WITNESSES, COMPULSORY PROC ESS, AND TRIAL. Every person charged with an offense against the laws of this State shall have the privilege and benefit of counsel; shall be furnished, on demand, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him is founded; shall have compulsory process to obtain the testimony of his own wit nesses; shall be confronted with the witnesses testifying against him; and shall have a public and speedy trial by an impartial jury.
Cross References: 450, 556, 656, 819.
Historical Note: None of the privileges enumerated in this paragraph are common law rights, except those mentioned in the last clause. They were introduced into American Constitutional law by the introduction in the United States House of Representatives by James Madison of the 6th Amendment of the Federal Constitution. Benefit of counsel was first allowed defendants in criminal cases in ling-land in 1696, by the conferring- of the right on persons indicted for treason, but persons charged -with other felonies were not allowed this right until the statute 6 and 7 William IV passed in 1696. The right to have a copy of the indictment and list of witnesses was conferred by statute 7, Anne, ch. 21, passed in 1708, conferring this right upon persons charged -with trea son or its misprision, but this right had never been extended in England to other felonies. Compulsory process for the defendant's witnesses was never allowed by English law. Originally witnesses for the defendant could not even be sworn. In 1670 the House of Lords passed a bill which provided that in cases covered by that special act, witnesses for the defendant might be sworn. About 1690 it was provided that in all cases of treason -witnesses might be sworn for both sides; and this right was later extended to all cases of felonies, but this applied only to such voluntary witnesses as appeared for the defendant. Confrontation of witnesses was a device to make more absolute the common law right of publicity of trial, guaranteeing the defendant as to personal pres ence at the taking- of testimony as at other incidents of the trial. When this paragraph was being- considered by the convention of 1877, it -was proposed to insert the clause "and shall have the right to be tried sep arately -when two or more persons are charged with the same offence," but an amendment to this effect was laid on the table. 2 Watson on U. S. Constitution, 1485, 1489; Cooley's Blackstone, book lv; ch. 27, page 355, and note. As to requirement of public trial in England, see De Lome on Constitution of England, ch. XIII. As to Confrontation of witnesses, see Mattox v. United States, 155 U. S. 283; Cooley's Con stitution limitations (Seventh Ed.) 450; 5 L. R. A. 833 (Note); Small's Report 85.

1106] AMENDED CONSTITUTION OF 1877.

[436

Benefit of counsel is a right guaranteed to every man accused of an offense against the State, 1 which guaranty should be strictly con strued so as to preserve it, 3 and he has right to counsel of his own selection, and this right of selection extends to right of selecting which counsel shall lead in case ;3 and where court refused to post pone a murder trial long enough to allow attendance of leading counsel retained by defendant, who was excusably absent, and forced defendant to trial with counsel appointed by the court, it was held to be error, and new trial granted.4
Accused unable to retain counsel, it is the duty of the court to appoint counsel for him,s and when counsel so appointed, the same duty and responsibility is upon him as if he received the fullest com pensation,6 and, in absence of retention of counsel by accused, this is full compliance with constitution as to privilege and benefit of counsel,7 and there was no violation of constitutional right where court offered to furnish counsel and defendant refused. 8
Sufficient time must be given counsel to prepare for trial,9 and peremptorily forcing case to trial immediately after appointment of counsel to defend accused and before counsel has had opportunity to investigate case and prepare for trial is cause for new trial ; 10 likewise it was denial of benefit of counsel for superior court to limit defendant's counsel to a definite time before the jury, over his

1. Penal Code, P 8 W; Blackman v. State, 76 Ga. 289; Keaton. z>. State, 7 Ga. 190; Bagrwell v. State, 56 Ga. 406; Martin -v. State, 51 Ga. 568; Hart v. Thomas, 61 Ga. 470; Simmons v. State, 116 Ga. 583, 42 S. E. 779; Rob erts v. State, 34 Ga. 18; Stokes v. State, 73 Ga. 816; Fambles v. State, 97 Ga. 625, 35 S. E. 365; Delk z>. State, 100 Ga. 61, 27 S. E- 152.
2. Martin v. State, 51 Ga. 568. 3. Chivers v. State, 5 Ga. App. 657, 63 S. E- 703. 4. Delk v. State, 99 Ga. 667, 26 S. E. 752. 5. Martin v. State, 51 Ga. 568; Charlton v. State, 106 Ga. 400, 32 S. E. 347; Brown V. State, 89 Ga. 340, 15 S. E. 463; Butler v. State, 97 Ga. 404, 23 S. E. 832; Fambles v. State, 97 Ga. 625, 25 S. E. 365; Delk v. State, 99 Ga. 667, 36 S. E. 762. 6. Martin v. State, 51 Ga. 568; Fambles v. State, 97 Ga. 625, 25 S. E. 365.
7. Delk v. State, 99 Ga. 667, 26 S- E. 753. 8. Stokes v. State, 73 Ga. 816. 9. Jones v. State, 65 Ga. 506; Blackniann v. State, 76 Ga. 2B8; McArver v. State, 114 Ga. 514, 40 S- E. 779; Ferryman v. State, 114 Ga. 545, 40 S. E. 746. 10. McArver v. State, 114 Ga. 514, 40 S- E. 779.

437]

AMENDED CONSTITUTION OF 1877. [ 1106

protest that he could not do justice to case in time prescribed, 11 but it \vas not a denial of this right to refuse a continuance to prepare case after indictment, when defendant had been arrested ample length of time to prepare case and knew nature of charge against him. 12
List of ivitnesses, to which accused entitled is a list of witnesses "011 whose testimony the charge against him is founded," and ac cused is entitled to have copy of indictment,, and a list of witnesses who gave testimony before the grand jury; 13 but when furnished with copy and list, another witness, whose name is not on list is not rendered incompetent to testify on the trial. 14 Defendant not guaranteed right to demand indictment in misdemeanor case, and it follows that an act providing that the accused, in cases falling within the jurisdiction of a designated city court shall not have the right to demand indictment is valid ; 15 nor does this constitutional pro vision apply to municipal offenses or entitle one charged with such offense to demand a list of the -witnesses on which such charge is founded. 16
Demand for list of witnesses and copy of accusation is necessary for defendant to avail himself of right to have them, otherwise they need not be furnished him; 17 but when demand made, list must be furnished in misdemeanor cases as well as felonies, both being included in constitutional guaranty ; 1S and defendant may move for mistrial upon discovery that list furnished was incorrect, but such incorrectness is not ground for motion in arrest of judg ment. 19
Compulsory process to obtain attendance of witnesses, does not guarantee more than ordinary diligence on part of officers, or that
they shall serve a witness who conceals himself, 20 and does not in-

11. Hunt v. State, 49 Ga. 255. See also Nobles V. State, 127 Ga. 212, 56 S. E. 125.
12. Shivers v. State, 53 Ga. 149. 13. Inman -v. State, 72 Ga. 269. 14. Inman v. State, 72 Ga. 269. 15. Gordon v. State, 102 Ga. 675, 29 S. E. 444. 16. Hill v. Mayor of Dalton, 72 Ga. 319; Venable v. City of Atlanta, 7 Ga. App. 190, 66 S- E- 489. 17. Reg-apoulos -u. State, 115 Ga. 232, 41 S. E. 619. 18. Bird v. State, 50 Ga. 587; Gordon v. State, 103 Ga.. 675, S9 S. E. 444. 19. Regapoulos v. State, 115 Ga. 232, 41 S. E. 691. 20. Smith v. State, 118 Ga. 62, 44 S. E. 817.

1106] AMENDED CONSTITUTION OF 1877.

[438

elude the right of having them brought at the public expense. 21 De nial of postponement until the attendance of the witnesses for ac cused who had had counsel appointed for him, could be secured, and proper preparation made was error demanding new trial.22
Confrontation "with the "witnesses contemplates their examination in presence of accused and his right to cross examine them, and where defendant is deaf, the presiding judge should permit some reasonable mode of having evidence communicated to him. 23 Right of confrontation not denied by fact that witness who testified be fore grand jury, does not testify on trial under indictment found; 24 nor by admission in evidence of dying declarations, 25 nor by ad mission of testimony of witness at former trial since deceased; 26 but removal of witness from State does not render his testimony on former trial admissible. 27
Public trial denied when judge without further reason than that matters testified to will relate to matters ordinarily indecent to be mentioned, orders, over objection of defendant, that court room be cleared of every one not connected with case, and prejudice to de fendant, demanding new trial, conclusive. 28
Presence of defendant at rendition of verdict, and to have coun sel present when jury re-charged, legal right not lost except by clear and distinct waiver, but if counsel absent without leave recharge in presence of defendant, not unlawful. 29
Speedy trial is secured by provision for discharge of accused after two terms, after demand entered on minutes. 30
Trial by jury is predicated upon the right of the jury as the tri bunal constituted by the law of the land for the purpose to pass upon

21. Roberts v. State, 94 Ga. 66, 21 S. E. 132. 22. McArver v. State, 114 Ga. 517, 40 S. E. 779. 23. Ralph v. State, 134 Ga. 81, 52 S. E. 398. 24. Harper v. State, 131 Ga. 771, 63 S. E. 339. 25. Jones v. State, 130 Ga. 274, 60 S. E. 840. 26. Pittman v. State, 92 Ga. 480, 17 S. E- 856. 27. Robinson v. State, 128 Ga. 254, 57 S- E. 315. 28. Tilton v. State, 5 Ga. App. 59, 62 S. E- 651. 29. Nolan it. State, 53 Ga. 137; Martin v. State, 51 Ga. 667; Roberson v. State, 135 Ga. 654, 70 S. E. 175. See also Wilson v. State, 87 Ga. 584, 13 S. E. 566; Bagwell v. State, 129 Ga. 173, 58 S. E. 650; Lyons v. State, 7 Ga. App. 54, 66 S. E. 149. 30. Penal Code (1910) 983; Graham v. State, 1 Ga. App. 682, 57 S. E. 1055.

439]

AMENDED CONSTITUTION OF 1877. [ 1107

issues of fact, but the Act of Aug. 13th, 1903 (Acts of 19O3, pagre 90) is not repugnant to provision of this paragraph on the ground that from proof of certain facts, a disputable presumption of fraud ulent intent arises, nor does the right of the judge to determine whether in an action to partition lands an equitable division can be made by metes and bounds, contravene this right.31
Impartiality of jury guaranteed as strongly as trial by jury.32 Ex amination of jurors to determine their impartiality may be had in civil as well as criminal cases, but in examinations to determine this, questions should be limited to the partiality of the jurors in reference to the particular case and the parties thereto.33 Declara tion of juror adverse to defendant before trial is prima facie evi dence of disqualification.34
No guaranty of jury trial to one charged with municipal oflrense in present constitution, and act making statutory crime also a mu nicipal offense not in conflict with constitutional right of trial by jury.35

1107 (6362). Par. 6. CRIMINATION OF SELF NOT COMPELLED. No person shall be compelled to give testi mony tending in any manner to criminate himself.
Cross Reference: 820.
Historical Note: At common law, the parties to an action civil or criminal were not competent to testify, the maxim, in criminal matters being, "Nemo tenetur prodere seipsum." By the enabling Act of 1866, this disability was, as a general rule, removed in Georgia, but with certain exceptions, among them being a provision against self crimina tion. This privilege is not a special immunity created by constitutional provision, but is a guaranty that an uninvaded portion of an originally larger territory shall remain inviolate. Bishop %>, Bishop, 124 Ga. 293; Acts of 1866, p. 138; Small's Report 9.
31. Vance v. State, 128 Ga. 661, 57 S. E- 889; Rodgers v. Price, 105 Ga. 67, 31 S. E. 126.
32. Moncrief -u. State, 59 Ga. 470. 33. Sullivan v. Padrosa, 123 Ga. 338, 50 S- E- 142. 34. Savannah F. & W. Rwy. Co. -u. Godkin, 104 Ga. 660, 30 S- E. 378. 35. Williams v. Augusta, 4 Ga. 509; Floyd v. Eatonton, 14 Ga. 354; Hood v. Von Ghlan, 88 Ga. 405, 14 S. E. 64; Pearson v. Wimbish, 134 Ga. 701, 52 S. E. 751; Hill v. Mayor, Dalton, 72 Ga. 319; Ivoeb v, Jennings, 133 Ga. 797, 67 S. E. 102, 219 U. S. 582; Porter v. State, 124 Ga. 302, 52 S. E- 283.

1107] AMENDED CONSTITUTION OF 1877.

[440

The usual construction placed upon this provision is that a wit ness sworn in a case shall not be compelled to testify to any facts that may tend to criminate him, 1 but it applies to persons accused of crimes, as well, and protects them against being compelled to give self incriminating evidence, 2 and both are protected by express constitutional guaranty.3
At common law and in chancery, no person could be compelled to testify against himself, and in equity, he could not be compelled to answer any question which had a tendency to criminate him, or

forfeiture might be established.4 In criminal case in this State ander the constitution, an accused person cannot be compelled to give any involuntary evidence against himself,3 and any evidence of guilt which a defendant, either directly or indirectly, is compelled to dis close, is not admissible against him ; 6 hence, the fact that a person, not under legal arrest, was forced to put his hand in his pocket and surrender pistol, thus disclosing that he was violating the law, was not admissible against him on charge of carrying concealed weap ons7 and one accused cannot more be forced to give evidence against himself by any involuntarily physical act, any more than by being forced to answer questions, hence, accused person cannot be made to criminate himself by forcibly putting his foot in tracks ; s nor could court force a defendant to show where his leg had been amputated, so that another witness might describe his condition to jury, 9 and any evidence of guilt which a defendant is forced to
1. Drake v. State, 75 Ga. 413. 2. Smith v. State, 3 Ga. App. 326, 59 S. E. 934; Williams v. State, 100 Ga. 515, 28 S. E. 634. 3. Higdon v. Heard, 14 Ga. 255; Kneeland v. State, 62 Ga. 398; Blackwell v. State, 67 Ga. 76; Woolfolk v. State, 81 Ga. 552, 8 S. E. 724; Rusher v. State, 94 Ga. 367, 21 S. E. 593; Franklin v. State, 69 Ga. 36; Drake v. State, 75 Ga. 413; Myers v. State, 97 Ga. 78, 25 S. E. 252; Gor don v. State, 68 Ga. 814. 4. Higdon v. Heard, 14 Ga. 255. 5. Day v. State, 63 Ga. 668. 6. Hughes v. State, 2 Ga. App. 29, 58 S. E. 390; Davis v. State, 4 Ga. App. 318, 61 S. E. 404; Shermann v. State, 2 Ga. App. 148, 58 S. E. 393; Glover v. State, 4 Ga. App. 455, 61 S- E. 862; Jackson v. State, 7 Ga. App414, 66 S. E. 982; Williams v. State, 7 Ga. App. 34, 65 S- E. 1097. 7. Evans v. State, 106 Ga. 519, 32 S. E- 659. 8. Day v. State, 63 Ga. 668. 9. Blackwell v. State, 67 Ga. 76.

441 ]

AMENDED CONSTITUTION OF 1877. [ 1107

disclose by seizure and search of his person under illegal arrest, is not admissible in criminal prosecution against him, 10 but where ar rest is legal, search of person is lawful and evidence found upon such search is admissible; 11 and clothing or any other article taken from a person accused of crime, so arrested, may be exhibited to jury, 12 but in all such cases, burden is upon state to show that arrest was legal. 13
The right guaranteed by this section may be waived by inculpatory admissions or by confession, but in order to be admissible against defendant they must be voluntary, and not induced by "the slightest hope of benefit or the remotest fear of injury;" and when so made by a person under arrest they are admissible whether the arrest was legal or illegal, 14 and though a confession obtained by constraint is not admissible, independent facts discovered in consequence thereof are admissible, 15 and if a defendant in a criminal case voluntarily exhibits scar in his hand, it is not error to require him to allow it to be examined by a physician who is put on stand in rebuttal by state, 16 but defendant's consent to be searched for money did not include disclosure of pistol which he was attempting to keep con cealed and which was discovered by force, and, the defendant, not being at time under legal arrest, evidence as to pistol could not be adduced against him; 17 arid an express waiver by defendant of his privilege not to give evidence against himself tending to bring pub lic infamy, contempt or ridicule upon him, is not binding upon subsequent trial. 18
A defendant being separately tried cannot exclude testimony of-

10. Hughes -u. State, 2 Ga. App. 29, 58 S. E. 390; Hammock V. State, 1 Ga. App. 126, 58 S- E. 66; "Warren v. State, 6 Ga. App. 18, 64 S. E. 111. See also, Evans -a. State, 106 Ga. 519, 32 S. E. 659; E>ozier v. State, 107 Ga. 709, 33 S- E. 418, But see Brookins v. State, 7 Ga. App. 204, 66 S. E. 398.
11. Thompson <u. State, 4 Ga. App. 649, 62 S- E. 99; Woolfolk v. State, 81 Ga. 551, 8 S. E. 724.
12. Drake -v. State, 75 Ga. 413; Franklin v. State, 69 Ga. 36; Myers i>. State, 97 Ga. 99, 25 S. E. 352; Day v. State, 63 Ga. 668.
13. Sherman <u. State, 2 Ga. App. 148, 58 S. E. 393. 14. Johnson v. State, 1 Ga. App. 139, 57 S. E. 934; Mill v. State, 3 Ga. App. 414, 60 S. E. 4. 15. Rusher v. State, 94 Ga. 363, 21 S. E. 595; Jones v. State, 75 Ga. 825; Daniels -<j. State, 78 Ga. 98. 16. Gordon v. State, 68 Ga. 814, 17. Davis v. State, 4 Ga. App. 318, 61 S. E. 404. 18. Ga. R. R. Co. v. Eyhrund, 99 Ga. 421(5), 37 S- E. 794.

1108-1109] AMENDED CONSTITUTION OF 1877. [442
fered against him on ground that it was obtained by illegal search and seizure of co-defendant though jointly indicted with him; 19 and, under statute of Anne, regarding the recovery of property and securities won at gambling, and the colonial act of 1764, upon the same subject, defendants being required to answer, but it being provided that their answers could not be used against them, it was held that the requirement that they should give testimony was not unconstitutional, and the requirement that persons accused of play ing and betting at the same time or table shall be competent wit nesses and compelled to testify is not unconstitutional. 20
Right guaranteed by this paragraph is entirely distinct from right guaranteed by paragraph 16 of this section, and evidence obtained by unlawful search of defendant's premises may be used as evi dence. 21
1108 (6363) Par. 7. BANISHMENT, WHIPPING. Neither banishment beyond the limits of the state, nor whip ping, as a punishment for crime, shall be allowed.
Cross References : 116, 671, 831.

e

,

independent state, and they are there

1109 (6364). Par. 8. JEOPARDY OF LIFE, ETC., MOKE THAN ONCE FORBIDDEN. No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial.
Cross References: 451, 557, 657, 823.
19. Jones -v. State, 4 Ga. App. 741, 61 S. E. 133. 20. White v. Crane, 67 Ga. 399; Higdon v. Heard, 14 Ga. 355; Penal Code (1910), pp. 389-395. 31. Duren v. Thomasville, 125 Ga. 1, 53 S- E. 814; Dozier v. State, 107 Ga. 708, 710, 33 S- E- 418; Glover v. State, 4 Ga. App. 455, 61 S. E. 863.

443]

AMENDED CONSTITUTION OF 1877. [ 1109

Historical Note: This paragraph has its genesis in an ancient maxim of the law mentioned by Brackton who wrote in the 13th century, his expression being, "non bis in idem"--"no one shall be twice tried for the same offense." 2 Watson on U. S. Constitution, 1436; Cooley's Blackstone, Book IV, Ch. 36; pp. 335, 336; Small's Report 85.
When accused arraigned under indictment, not defective, and jury sworn and charged, defendant is in jeopardy, and it is his right to have jury pass upon his case; 1 and if, after this, a nolle prosequi be entered on the bill of indictment without consent of the prisoner, 2 or if verdict received3 or mistrial ordered,4 and jury dis charged in absence of defendant, such verdict or mistrial is illegal, and, on new trial, defendant can plead former jeopardy and be dis charged.
Same transaction involved in a trial as was involved in a formercharge in which the defendant has been tried, the former trial amounted to former jeopardy; 5 and state cannot put defendant on second trial for same acts, by calling the ofFense by another name;6 nor can different statement of same fact give right to try defendant a second time for same offense;7 but acquittal of defendant on charge of fornication and adultery, not bar to subsequent trial on indictment for bastardy. 8
Municipal authorities may be authorized by legislature to punish as a city offense an act prohibited by the state law, but the legislative intent shall be "and manifest and unmistakable," 9 and municipal authorities have not, except in, "special instances, authority to inflict

1. Newsom v. State, 3 Ga. 60; Reynolds v. State, 3 Ga. 53; Lancton v. State, 14 Ga. 426; Spencer v. State, 15 Ga. 562; Wttliford v. State, 23 Ga. 1; tester v. State, 33 Ga. 339.
2. Reynolds v. State, 3 Ga. 59; Ingram v. State, 134 Ga. 449, 53 S. E, 759.
3. Nolan v. State, 55 Ga. 521. 4. Bagwell -v. State, 129 Ga. 170, 58 S. E. 650. 5. Maher v. State, 53 Ga. 448; Lock v. State, 133 Ga. 730, 50 S. E. 933. 6. Ingram v. State, 134 Ga. 448, 45O, 53 S. E. T59; Holt v. State, 38 Ga. 187, 7. Buhler v. State, 64 Ga. 504, 505; Roberts and Copenhaven -u. State, 14 Ga- S. 8. Davis v. State, 58 Ga. 170. 9. Hood v. Von Glahn, 88 Ga. 407, 14 S. E- 564, distinguishing Mayor and Aldermen of the City of Savannah v. Hussey, 31 Ga. 80; Jenkins v. Mayor and Council of Thomasville, 35 Ga. 147; Vason v. City of Au gusta, 38 Ga. 543; Reich v. State, 53 Ga. 73; Rothschild v. City of Darien, 69 Ga. 503.

1109] AMENDED CONSTITUTION OF 1877.

[444

punishment for acts indictable under criminal laws of the state;" 10 the special instances are where the act is of a character to make it doubly offensive when committed in a city, as in a case of keeping open a tippling house on the Sabbath day; 11 and when IVIayor and council convict defendant for act, which might by proper ordinance, have been prohibited by them, it will be presumed such ordinance had been passed until contrary appears. 12 Acquittal in a state ccurt on prosecution for assault and battery not support plea of former jeopardy upon trial in municipal police court upon charge of dis orderly conduct in fighting; 13 but municipal ordinance being a stat ute passed by delegated authority, municipal corporation cannot have result of trial where defendant acquitted, reviewed by certiorari. 14 Indictment fatally defective, no former jeopardy. lf>
Court -without jurisdiction on first trial, no jeopardy, hence, where prisoner obtained the setting aside of a verdict against him upon the ground that the judge was not authorized by law to hold the court at which he "was convicted, this amounts to adjudication that he was not in jeopardy, 16 but plea of autrefois convict to indict ment for misdemeanor in the Superior Court may be sustained by proof of former conviction before an inferior court having jurisdic tion of the ofifense, unless it is found that indictment was found and defendant arrested before trial in inferior court ; 17 but when de fendant charged with assault -was put on trial in county court and it developed during the trial from the evidence that the county court did not have jurisdiction to try case because defendant guilty of fel ony, and case stopped and defendant bound over to superior court, the trial in county court did not amount to former jeopard}', 1S and where after jury impannelled it was found, juror disqualified, and

10. Chambers v. Mayor & Council of Barnesville, 89 Ga. 739, 15 S. E. 684; Straus v. Mayor of Waycross, 97 Ga. 475, 25 S. E. 329.
11. Hood et al. v. Von Glahn, 88 Ga. 405, 14 S. E- 564. 12. Chambers -v. Mayor & Council of Barnesville, 89 Ga. 739, 15 S. E. 634; Hill v. City of Atlanta, 3.35 Ga. 698, 54 S. E. 354; Healcy v. City of Atlanta, 125 Ga. 736, 54 S. E. 749. 13. McRea v. Mayor of Americus, 59 Ga. 168. 14. Cranston v. Mayor of Augusta, 61 Ga. 572. 15. Conley v. State. 85 Ga. 348, 11 S. E. 65; Black v. State, 36 Ga. 447; Hill v. Nelms, Sheriff, 122 Ga. 573, 50 S. E. 354. 16. Cunningham v. State, 80 Ga. 4, 5 S. E. 251. 17. Mize v. State, 49 Ga. 375. 18. Cunning-ham v. State, 80 Ga. 4, 50 S. E. 351.

445]

AMENDED CONSTITUTION OF 1877. [ 1110

juror withdrawn and juror dismissed, nor formerly jeopardy, no competent jury having been empannelled. 10
Plea of autrefois acquit, or con-met is plea in bar, and must be made on arraignment before pleading to the merits and cannot be set up on habeas corpus. 20
Mistrial pretty -much' under discretion of court, and doctrine that mistrial amounts to acquittal has been long since exploded, 21 but when mistrial is ordered over protest of defendant for a reason that did not demand a mistrial, the trial amounted to former jeopardy; 22 but the withdrawal of a juror and the declaring of a mistrial with consent of prisoner, is not jeopardy, and prisoner's consent will be presumed from entry of mistrial, if contrary does not appear; 23 and where a person is indicted for murder and convicted of man slaughter, and moves for, and obtains a new trial, he may, on the second trial be convicted of murder. 24

1110 (6365). Par. 9. BAIL, FINES, PUNISH MENTS, ARRESTS. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punish ments inflicted; nor shall any peron be abused in being ar rested, "while under arrest, or in prison.

Cross Refe
Historical Note: The last clause in this paragraph occurs first in the constitution of 1868. The first clause is taken from the English Bill of Rights, incorporated therein on account of the wrong's and oppressions which caused the overthrow of the Stuart dynasty in 1688. Prior to the Bill of Rights, torture in various forms was used both in England and the various colonies in inflicting the death penalty. "Unusual and cruel punishment is usually applied to punishments which inflict tor ture, such as the rack, the thumb screw, the iron boot, the stretching of limbs and the like, which are attended with acute suffering." Consid-
19. Jackson v. State, 51 Ga. 408; Watkins -V. State, 60 Ga. 601. 20. Hall -v. State, 103 Ga. 403, 29 S. E. 915; Yeates v. Roberson, Sheriff, 4 Ga. App. 573, 63 S. E. 404. 31. Stocks v. State, 91 Ga. 839, 18 S. E. 847; Avery v. State, 26 Ga. 233, 237; Williford i>. State, 33 Ga. 1. 22. Oliveras -v. State, 330 Ga. 337, 47 S. E. 637; Bag-well z-. State, 139 Ga. 170, 58 S- E. 650. 23. Lancton v. State, 14 Ga. 426. 34. Waller -u. State, 104 Ga. 505, 507, 508; Taylor v. State, 110 Ga. 150, 35 S. E. 161; Brantley v. State, 133 Ga. 573, 64 S. E. 676; Perdue v. State, 134 Ga. 30O, 67 S. E. 810.

1111] AMENDED CONSTITUTION OF 1877.

[446

ered in reference to the time when the present constitution was adopted, it probably was intended to prevent burning- or bodily disfigurement (which have sometimes been suggested for certain heinous crimes); branding, the pillory and the whipping posts. 3 Watson on U. S- Con stitution 1505, 1507, 1509, 1510; Small's Report, 85.
Provisions of United States Constitution as to excessive bail or fines refers to powers exercised by Kederal, not state government, 1 and in state courts where the penalty is left by law, to the discretion of the Court, with certain fixed limits, the judge of the Superior Court may exercise his discretion within the limits prescribed in the statute, and it is not within the province of the Supreme Court to interfere with his discretion so long as he does not exceed the limits prescribed to him by the statute, 2 and fine authorized by a statute which provided that the fine in cases of fraudulent sales of mort gaged property, should be double the mortgage debt, not so ex cessive as to render law unconstitutional ; 3 but punishment author ized by provision of a city charter whereby offender against ordi nance of city may be confined in the chaingang of the county, where are confined persons convicted of misdemeanors against state and felons whose punishments have been reduced, is cruel and unusual in the sense of the constitution and renders such charter provision unconstitutional. 4
Bail is not an absolute right of a person convicted of rape and sentenced to the penitentiary pending his appeal to the Supreme Court, and whether he shall be admitted to bail pending such ap peal is in the discretion of trial judge. 5

1111 (6366). Par. 10. COSTS. No person shall be compelled to pay costs, except after conviction on final trial.
Cross References: 64, 157, 386, 824, 1001.
Historical Note: This paragraph is but a corollary to the proposi tion that justice shall be free, and is intended to make more explicit the guaranty of the fortieth chapter of Magna Charta.

1. Loeb and Jennings, 133 Ga. 796, 67 S. E. 101. 2. Whitten v. State, 47 Ga. 297; Fitts v. Atlanta, 121 Ga. 577, 49 S. E. 793. 3. Conley -u. State, 85 Ga, 362, 11 S. E. 659. 4. Pearson -v. Wimbish, 124 Ga. 701, 52 S- E. 751. 5. Vandeford i>. Brand, 126 Ga. 67, 54 S. E. 852.

447]

AMENDED CONSTITUTION OF 1877. [ 1112

Where a prisoner escapes before trial, solicitor general is en titled to costs up to time of escape, but none other. 1 This consti tutional provision is not invalidated by a law requiring the payment of costs and the giving of a bond as a condition precedent to an appeal. 2

1112 (6367). Par. 11. HABEAS CORPUS. The writ of Habeas Corpus shall not be suspended.
Cross References: 178-198, 298, 339, 410, 444, 551, 663, 825.
Historical Note: The writ of Habeas Corpus is the most celebrated writ of English Law. It had its origin in the writ de odio et atia ex pressly ordered by the twenty-sixth chapter of Magna Charta to be made out gratis. Other writs having- the same purpose were provided but devices were created to evade them until the Great Habeas Corpus Act of 1679. Cooley's Blackstone, Book 111, Ch. 8, p. 131.
Since Georgia became a sovereign State, it has been her will and intention to preserve the writ of habeas corpus as beneficially and perfectly as it existed or was known to her while in a state of co lonial dependency, or as it existed in the mother country where it was derived. 1 It is a "writ of right" to which every freeman is entitled ex debito justitiae, 2 issuable upon the application of any person on behalf of the person detained, whether or not there is any particular relation between the person applying for the writ and the person detained, or upon application of the person detained himself,3 but while a "writ of right," it does not issue as a matter of course, but only when the application therefor contains allega tions which, if true, would authorize the discharge of the person held in custody,4 and must be in writing and contain the averments required by statute regulating the issuance of the writ-5
It is not an equitable, but a common law remedy, and is not, strictly speaking, either a civil or criminal action, but a summary remedy created for the benefit of a person held in illegal custody

1. Robinson v. Smith, 57 Ga. 332. 2. Flint River Steamboat Co. v. Foster, 5 Ga. 208; DeLamar v. Dollar, 138 Ga. 65, 57 S- E- 85. 1. State v. Philpot, Dudley 46. 2. State v. Fraser, Dudley 43. 3. State v. Philpot, Dudley 46; Broomhead v, Chisholm, 47 Ga. 390. 4. Simmons v. Georgia Iron Co., 117 Ga. 305, 43 S. E. 780. 5. Penal Code (1910), p. 1393; Hammond v. Hammond, 90 Ga. 537, 16 S. E. 265; State v. Philpot, Dudley 46; Taylor v. Jeter, 33 Ga. 195.

1112] AMENDED CONSTITUTION OF 1877.

[448

by another, and having ior its sole object the restoration to liberty of such person, 6 and is available whenever and wherever a person is held illegally in custody under any form of law or without law,7 the function of which is not to determine the guilt or innocence of one accused of crime, but to ascertain the legality of the detention, 8 and on the return of the writ, the court must act according to the facts and circumstances of each particular case. 9
The writ lies for the release of a person accused of bailable offense, who is detained in custody after tendering reasonable bail; allowable in discretion of court10 for the release of a prisoner sen tenced to pay a fine or to be imprisoned who has paid or tendered the fine and is still held in imprisonment; 11 for the release of a person discharged by a sheriff upon the promise of a third person to pay his fine, rearrested upon failure of such third person to carry out his promise ; 12 for the release of one indicted tried and con victed under an unconstitutional statute ; 13 or under a repealed stat ute, if on the trial the validity of such statute was not made and adjudicated against the applicant, 14 or for a person held under a void warrant,15 or one convicted under a municipal ordinance passed without any authority given by charter or statute; 16 for a minor child withheld from the person lawfully entitled to his custody, 17

6. Simmons V. Georgia Iron Co., 117 Ga. 305, 43 S. E. 780. 7. Southern Express Co. v. Lynch, 65 Ga, 240. 8. Stephens v. Henderson, ISO Ga. 318, 230, 47 S. K. 498. 9. State v. Fraser, Dudley 43. 10. State v. Howell, R. M. Charlton 120; State v. Abbott, R. M. Charlton 344; Corbett v. State, 34 Ga. 391; Lester v. State, 33 Ga. 193; Vandeford -v. Brand, 126 Ga, 72, 54 S. E. 852. 11. Broomhead v. Chrisholm, 47 Ga. 390; Dunaway v. Hodge, 127 Ga. 690, 55 S. E. 483. 12. Williams v. Mize, 73 Ga. 139. 13. Moore v. Wheeler, 109 Ga. 63, 35 S- E. 913. 14. Griffin v. Eaves, 114 Ga. 65, 39 S. E. 913. 15. State v. Bandy, 13 Ga. Decisions 40. 16. Brierswick v. Brunswick, 51 Ga. 639; Collins v. Hall, 93 Ga. 411, 17 S. E. 622; Cooper v. Savannah, 4 Ga. 68. 17. Child's Custody, remedy habeas corpus, not equity (Massee v. Snead, 39 Ga. 51) and disposition in discretion of judge (Smith v. Brogg, 68 Ga. G5O) discretion not controlled, unless grossly abused (Gibbs v. Brown, 68 Ga. 803). Father entitled to control unless forfeited or re linquished (Miller v. Wallace, 76 Ga. 479), but parents living separately, ordinarily determines right to custody (Moore -u. Moore, 66 Ga. 336)- Relinquishment of control by father enforced, if person proper (Carter <v. Brett, 116 Ga. 114, 43 S- E. 348), the interest and welfare of child being

449 ]

AMENDED CONSTITUTION OF 1877. [ 1112

or for child under control of guardian illegally appointed;18 or for the custody of a minor wife; 19 or for remanding to proper custody
convict held in private chaingang ; 20 or for minor illegally bound
out as apprentice, 21 or for release of person held under void judg
ment of conviction ; 22 or one detained after valid pardon for his offense; 23 or person denied a "speedy" trial and still detained in
jail ; 34 or seamen illegally held in custody under special provisions
relating to persons of that calling; 25 or for release and remanding
to proper control child committed to a benevolent institution on
account of the existence of certain conditions when the conditions
have ceased to exist. 26
A detention under sentence which is authorized by a valid law
is not illegal, 27 and the writ of habeas corpus cannot be used to
discharge a person from a legal custody, 28 or to perform the func-
considered (116 Ga. 114, cited supra; Walker v. Jones, 1 Ga. App. 70, 57 S- K- 89), and award may be made to grandmother (Chunn v. Graham, 117 Ga. 551, 43 S. E, 987), and immorality of mother may be considered in contest between her and father for possession of child (Haire v. McCardle, 107 Ga. 774, 33 S- E. 683). It would perhaps be confusing to cite all of the great multitude of the habeas corpus cases over the pos session of children, and not necessary to our present purpose, which is not to present an exhaustive digest of matters of procedure relating to the writ of habeas corpus, but to illustrate trie nature of the substan tive rights safeguarded by the writ.
18. Jordan v. Smith, 5 Ga. App. 559, 63 S. E. 595. 19. Gibbs v. Gibbs, 68 Ga. 803. 20. Russell v. Tatum, 104 Ga. 332, 30 S. E. 812. See also Williams V. Mize, 72 Ga. 129, and Broomhead v. Chisholm, 47 Ga. 390. 21. Comas v. Reddish, 35 Ga. 236; Alfred v. McKay, 36 Ga. 440; Adams v. Adams, 36 Ga. 236; Hatcher v. Cutts, 42 Ga. 616; Mitchell v. McElvin, 45 Ga. 558; Ballinger v. Bawn, 54 Ga. 159. 22. Collins v. Hall, 92 Ga. 411, 17 S. E- 622; Massee v. Snead, 29 Ga. 51. 23. Dominick v. Bowdoin, 44 Ga. 357. 24. State v. De L,os Mangnignos, T. U. P. Charlton, 24. 25. State v, Patterson, T. U. P. Charlton 311; State v. Phine, T. U. P, Charlton 142; State v. Wederstrandt, T. U. P. Charlton 142. 26. Kennedy v. Meara, 127 Ga. 68, 56 S. E. 243. See also Murray v. Tarver, 127 Ga. 378, 56 S. E. 417; Contra, Vandiver v. Associated Charities, 130 Ga. 413, 60 S. E. 999. 27. Lyons v. Collier, 125 Ga. 231, 54 S. E. 183; Townsend v. State, 124 Ga. 59, 52 S. E. 293; Stephens v. Henderson, 120 Ga. 218, 47 S. E. 498; Shuler v. Wilder, 126 Ga. 73; Harris v. Bridges, 57 Ga. 407. 28. Singleton -u. Holmes, 70 Ga. 407; Russell v. Tatum, 104 Ga. 334, 30 S. E. 812; Hood v. Von Ghlan, 88 Ga. 405, 14 S. E. 564; In re Harris, 93 Ga. 203, 18 S. E. 283; West v. State, 79 Ga. 773, 4 S. E. 325; Griffin v. Eaves, 114 Ga. 65, 39 S. E. 913; Harris v. Bridges, 57 Ga. 407.
--29

1112 ] AMENDED CONSTITUTION OF 1877.

[ 450

tions of a writ of error to correct irregularities in the proceedings upon which judgment was founded unless so gross as to render proceedings absolutely void,29 or for any matter which might have been litigated at the trial resulting in the imprisonment ;30 hence, a person imprisoned under a valid judgment by a court of competent jurisdiction cannot be discharged on habeas corpus,31 and a person imprisoned under several sentences, some of which are valid and binding and some void cannot be discharged until he has served out the valid sentence,33 nor can a person held under a verdict and judgment wholly void, but also under a valid bench warrant, be dis charged until lawfully tried under the indictment upon which the bench warrant issued, or otherwise discharged according to law.33
Although judge presiding in a habeas corpus case is frequently spoken of as a "habeas corpus court," the law of this state recog nizes no such court, eo nomine, but when a judge of a superior or city court is sitting on the trial of a habeas corpus he is presiding in a case pending in the court of which he is judge and his judg ment is a decision of that court, and a writ of error lies from his decision,34 but jurisdiction as to issuing writs of habeas corpus and adjudicating thereon, is not conferred upon the "court of ordinary," but upon the ordinary, and in hearing and determining such writs, the ordinary acts as an inferior judicatory ;35 hence, the present con stitution in restricting the powers of the courts of ordinary to cer tain named matters, does not withdraw the statutory power of the ordinary to issue and determine writs of habeas corpus;36 his judg ment in such cases being reviewable by the superior court on certiorari. 37
The power to issue writs of habeas corpus is not confined to judges of superior courts and ordinaries, but the judge of the city

29. Manor v. Donahoo, 117 Ga. 304, 43 S. E. 717; Simmons v. Ga. Iron Co., 177 Ga. 305, 43 S- E. 780; Phillips v. Brown, 132 Ga. 571, 50 S. E. 361; Coleman v. Neltns, 119 Ga. 307, 46 S. E. 451; McDonald v. State, 126 Ga. 536, 55 S. E- 235.
30. Young v. Harris, 9 Ga. 535; Tindall v. Nisbet, 113 Ga. 1114, 39 S. E. 450; Badkins v, Robinson, 53 Ga. 613; McFarland v. Donaldson, 115 Ga. 567, 41 S. E. 1000.
31. See note No. 38, supra. 82. Brady v. Joiner, 101 Ga. 190, 28 S. E. 679. 38. Wells v. Newton, 101 Ga. 141, 38 S. E. 640. 34. Barranger v. Bann, 103 Ga. 465, 30 S. E- 524. 35. Chapman v. Woodruff, 34 Ga. 91; Moon v. Robinson, 63 Ga. 506. 36. Moon v. Robinson, 63 Ga. 506. 37. Smith v. Bragg, 68 Ga. 650.

451 ]

AMENDED CONSTITUTION Off 1877. [ 1113

court of Wrightsville has "power to issue writs of habeas corpus, and hear and determine the same as judges of the superior courts do," and the jurisdiction of such court extending over the whole county, he has power to grant writ directed to any person having another in illegal detention any where in county and make re turnable to any place in county, notwithstanding person to whom directed may be non-resident of the county,38 and a void sentence of the superior court will not prevent the issuance of such writ and the exercise of jurisdiction in the matter. 39
No discretion is allowed the judge to whom proper application for issue of writ is made, he being subject to penalty of $2500.00 if he refuses to issue such writ,40 but the judge who hears habeas corpus case is invested with large discretion,41 and exercise of same will not be interfered with unless abused,42 the rule in this regard being the same as at common law,43 and taken from that source by the compilers of the code,44 and this discretion resides in the trial court and not in the reviewal court.45 But while the discretion of the judge in habeas corpus case is broad it must be a legal dis cretion, having regard to legal rights,46 the "flagrant abuse of discretion," meaning "nothing more or less than a failure to follow plain rule of law or to recognize rights clearly established by such law."47

1113 (6368). Par. 12. FREEDOM OP CONSCIENCE. All men have the natural and inalienable right to worship
38. Sumner v. Sumner, 117 Ga. 229, 43 S. E. 485. 39. Simmons <v. Ga. Iron Co., 117 Ga. 306, 43 S. E. 780. 40. Penal Code of 1910, 1315. 41. Russell v. Tatum, 104 Ga. 334, 30 S. E. 813; Newton v. Fain, 114 Ga. 833, 40 S. E. 993. 42. Boyd v. Glass, 34 Ga. 253; Payne v. Payne, 39 Ga. 174; Bentley v. Terry, 59 Ga. 555; Smith v. Brag-g, 68 Ga. 650; Townsend v. Warren, 99 Ga. 105, 34 S. E. 960; Hunter v. Dowdy, 100 Ga. 664, 28 S. E. 387; Marlow v. Marlow, 105 Ga. 178, 31 S- E- 146; King v. Weinman, 116 Ga. 798, 43 S. E. 47; Tuggle v. Tuggle, 97 Ga. 658, 35 S. E. 489; Monk v. McDaniel, 116 Ga. 108, 42 S. E. 360. 43. Boyd v. Glass, 34 Ga. 253; In re Mitchell, R. M. Charlton 489; Lindsey v. Lindsey, 14 Ga. 657. 44. Miller v. Wallace, 76 Ga. 479.
45. Smith v. Bragg, 68 Ga. 650. 46. Tuggle v. Tug-gle, 97 Ga. 658, 35 S. E. 489; Monk v. McDaniel, 116 Ga. 108, 43 S. E. 360. 47. Miller v. Wallace, 76 Ga. 491; Hatcher v. Cutts, 42 Ga. 616.

1114-1115] AMENDED CONSTITUTION OF 1877. [ 452
God, each according to the dictates of his own conscience, and no human authority should in any case control or inter fere with such right of conscience.
Cross References: 31, 235, 294, 411, 447, 655, 827.
1114 (6369). Par. 13. RELIGIOUS OPINIONS, ETC. No inhabitant of this State shall be molested in person or property, or prohibited from holding any public office or trust on account of his religious opinions; but the right of liberty of conscience shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State.
Cross References: 31, 335, 294, 411, 447, 655, 827. See Journal of Convention of 1865, pp. 36, 45 (Confederate Records Vol. IV, pp. 169, 182); Small's Report, 82, 83, 84. No man in this state is subject to any civil or political incapacity by reason of his opinions upon any subject, and that one is universalist or infidel, or holder of any faith or views, is no ground for his removal from the guardianship of minor children to which he was appointed by will of the deceased father of children, 1 and religious belief is no ground for taking child away from its parent. 2
1115 (6370). Par. 14. APPROPRIATIONS TO SECTS FORBIDDEN. No money shall ever be taken from the public treasury, directly or indirectly in aid of any
1. Sloan v. Jones, 130 Ga. 856, 62 S. E. 21. 2. Maxey -v. Bell, 41 Ga. 185. 3. Moore v. Dozier, 128 Ga. 90, 57 S. E. 110. 1. Maxey v. Bell, 41 Ga. 183. 2. Sloan v. Jones, 130 Ga. 856, 62 S. E. 81.

453 ]

AMENDED CONSTITUTION OF 1877. [ 1116

church, sect, or denomination of religionists, or of any sec tarian institution.
Cross References: 31, 340, 411.
See Small's Report, 82, 83, 84.
A church cannot be a public building; neither the state nor any political division thereof, such as county, militia district, or mu nicipality can own or control a church, and if a church building should become the property of the public it would instantly cease to be in any sense "a church," hence 777 of the Penal Code pro tecting public buildings from defacement does not apply to churches ; x but exemption of places of public worship from taxation by legislature under power granted to it, not in conflict with this provision. 2

1116 (6371). Par. 15. LIBERTY OF SPEECH GUARANTEED. No law shall ever be passed to curtail or restrain the liberty of speech, or of the press; any person may speak, write, and publish his senttnreirts on all subjects, being reponsitale for the abuse of that liberty.
Cross References: 399, 4O6, 447, 554, 658, 839.
Historical Note: Freedom of speech and debate in parliament was guaranteed by the English Bill of Rights (1689), the right of public and unrestrained expression by the people of England of their senti ments was the last of their popular rights to be obtained and it was never made a part of their constitution. After the abolition of the Court of Star Chamber, parliament fixed the number of printers and printing- presses and appointed a licenser, without whose approbation, no book could be published. These Acts expired in 1694, and since then the press has been free in England,, not as a matter of positive consti tutional right, but on account of the absence of parliamentary restric tions. This principle first became incorporated into constitutional law, through the introduction of Mr. Madison in the United States House of Representatives of the first amendment of the Federal Constitution DeLome, Constitution of England, Chapter XII; 3 Watson, U. S. Con stitution 1371, 1399. For first suggestion, see Pinkney's Plan of a Con stitution, Article VI; Small's Report 85.
Communications which would otherwise be slanderous are pro tected as privileged if made in good faith by the injured person in

1. Collum v. State, 109 Ga. 531, 35 S. E- 121. 2. The Trustees of the First M. E. Church South v. City of Atlanta, 76 Ga. 181.

1117] AMENDED CONSTITUTION OF 1877.

[454

the prosecution of an inquiry regarding a crime which he believes to have been committed on his property, and for the purpose of de
tecting1 the criminal and bringing him to punishment ;* and an at
torney at law is protected by his privilege from liability on account
of judicial proceedings in the courts unless express malice is proved. 2
Ordinance of City of Atlanta declaring it unlawful to hold public
meetings in the streets of that city without the consent of the municipal authorities, is not unconstitutional either because it cur
tails or restricts the liberty of speech, nor is it void upon the ground
that it is an unreasonable and oppressive exercise of the police
power.3 (Street lecture on Socialism announced without permit
to test city ordinance against street speaking.)
Liberty of speech may be as wrongfully infringed, by forcing a person to speak when, and of things which he choses to remain silent, as by restraining him from speaking when he wishes to speak, hence Act of Oct. 21, 1891 (Acts of 1890-91, vol. 1, p. 188). to make railroad companies notify discharged employees of cause of discharge is unconstitutional ;4 but the "freight tracing act" (Acts of 189O-91) requiring connecting carriers to trace lost or damaged freight and fix and disclose the responsibility for loss or damage is not unconstitutional as infringing the "correlative liberty of silence."5
The publication of a picture of a person, without his consent as a part of an advertisement, for the purpose of exploiting the publisher's business, is a violation of the right of privacy of the person whose picture is reproduced and entitled him to recover special damages; such publication "without liis consent is in no sense an exercise of the liberty of speech or of the press, within the meaning of those terms as used in the constitution. 0

1117 (6372). Par. 16. SEARCHES AND WAR RANTS. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated; and no war-

1. Taylor v. Chambers, 2 Ga. App. 178, 58 S- E. 369. 2. jLester v. Thurmond, 41 Ga. 118. 3. Fitts V. City of Atlanta, 121 Ga. 567, 49 S- E. 793. 4. Wallace v. Ga. Car. & N. Rwy. Co., 94 Ga. 732, 22 S. E. 579. 5. Central of Ga. Rwy. Co. -u. Mtirphey, 116 Ga. 863, 43 S- E. 265. 6. Pavesich v. New England Life Tns. Co., 123 Ga. 190, 50 S. E. 68.

455]

AMENDED CONSTITUTION OF 1877. [ 1117

rant shall issue except upon probable cause, supported by oath or affirmation, particularly describing1 the place or places to be searched and the person or things to be seized.
Cross References: 461, 566, 659, 830,
Historical Note: This paragraph is the same as the fourth amend ment to the constitution of the United States. Its origin runs back in English History to the 17th Century, when Charles the Second was placed on the throne. It had become the practice in the office of the secretaries of the crown, after the Revolution, to issue warrants for the arrest of persons without inserting- their names in the warrants and to invade the houses and search for private papers of individuals to obtain evidence against them on imaginary charges. Finally it was de cided by the Court of King's Bench in the case of Money v. Leach, that the warrant must be issued upon the oath of the accuser, setting forth the name of the offender, and the time, place and nature of the offense with reasonable certainty. Both in England and in America the practice had grown up of issuing1 "Writs of Assistance," under color of which revenue officers entered suspected places to search for smug gled goods. In February 1761, James Otis said in the famous trial in the Superior Court at Boston, that these writs were "the worst instru ments of arbitrary power, the most destructive of English liberty and the fundamental principles of the law that ever was found in an Eng lish law book." In England such writs were used to search for writ ings -which were supposed to be treasonable, until Lord Camden ren dered judgment in the case of Entrick v. Carrington and three other king's messengers, in which he affirmed a judgment in an action of trespass for entering- the plaintiff's dwelling house and breaking open his desk, boxes, etc., and examining his papers. This judgment has since been regarded as a permanent part of the English Constitution. 3 Watson on U. S. Constitution, 1414; Cooley's Blackstone, Book IV, ch. 21, par. 29O; Money -v. Black, 3 Burrows 1742; Cooley's Constitu tional Limitations, 427; Mays Constitutional History of England, ch. 11; DeLome on the Constitutional History of England, ch. 18; Entrick v. Carrington et al., 19 Howell's State Trial 1029; Bancroft's History, vol. Ill, ch. 18; Boyd v. U. S., 116 U. S- 616; Small's Report 85.
The right of persons to be secure in their persons, houses, papers and effects against unreasonable searches is not a right created by the Constitution of the United States, or of this state, but is an ancient right preserved and protected by those instru ments. 1 While officer may under express provision of 917 of the Penal Code make an arrest without a warrant, and while positive knowledge on the part, either of an officer or a private

1. Pavesich v. New England Mutual Life Inc. Co., 132 Ga. 198, 50 S. E. 68.

1118] AMENDED CONSTITUTION OF 1877.

[456

citizen supplies the place of a warrant, neither officer nor private citizen has authority, upon mere suspicion to enter and search a man's private dwelling, 2 or upon mere suspicion, or upon mere information derived from others, to arrest a citizen and search his person in order to ascertain whether he is carrying a concealed weapon in violation of law, but evidence obtained while making" an unlawful search of premises is not rendered inadmissible by the unlawful means by which it is discovered.3 Any detention of a person arrested without a warrant, beyond a reasonable time to procure a warrant, is illegal.4

1118 (6373). Par. 17. SLAVERY. There shall be within the state of Georgia neither slavery nor involuntary servitude, save as a punishment for crime after legal con viction thereof.
Cross References: 6, 7, 70, 103a, 104, 568, 653, 831.
Small's Report, 85.
To require specific performance of a contract to apply personal skill and labor to personalty, would be to hold the person decreed against to personal servitude -, 1 and a contract by which one person hires another of full age to a third, conflicts with this provision and is void ;2 but where the state, as the parens patria^, in a proper case, through its constituted officers or agencies, takes under its control an infant, the law authorizing such child to be bound to service under proper restrictions is not a violation of those pro visions of the constitution of this state and of the United States, which prohibit slavery and involuntary servitude ;3 nor is the Act to make it illegal for any person to procure money or any other thing of value with intent to defraud, by promising to pay for the advance in labor (Acts of 1903-p-90) ; nor is punishment of

2. Williams v. State, 100 Ga. 525, 28 S. E. 624; Pickett v. State, 99 Ga. 12, 25 S. E. 608; Walker V. Dawson, 7 Ga. App. 421, 66 S. E. 984.
3. Smith v. State, 3 Ga. App. 330, 39 S. E. 93; Williams v. State, 100 Ga. 511, 521, 38 S- E. 634; Springer v. State, 121 Ga. 157, 48 S. E. 907; Duren i>. City of Thomasville, 125 Ga. 2, 53 S. E. 814; Pickett v. State, 99 Ga. 15, 25 S. E. 608.
4. Johnson -v. Mayor & Council of Americus, 46 Ga, 80. 1. Willingham v. Hooven et al., 74 Ga. 247. 2. Pitts v. Alien, 72 Ga. 69. 3. Kennedy v. O'Meara et al., 127 Ga. 68, 56 S- E. 243.

457] AMENDED CONSTITUTION OF 1877. [ 1119-1120
violator of a valid municipal ordinance, by labor, confinement, shackles, etc.,4 repugnant to this constitutional provision. 5
Leasing out convicts to private citizen to operate saw mill upon his premises, "while Act of Feb. 25, 1876, "to regulate the leasing out of penitentiary convicts," was against public policy, and not enforceable. 6
Transferee of notes payable in labor made by person of full age, and not tinder other disability, who consents to transfer can recover value of services to be performed.7
1119 (6374). Par. 18. STATUS OF THE CITIZEN. The social status of the citizen shall never be the sub ject of legislation.
Cross References: 116, 660, 832.
Small's Report, 85.
The Code, at the time of the adoption of the Constitution of 1868, prohibiting the marriage relation between white persons and persons of African descent, the adoption of that constitution con taining the foregoing" paragraph, put it beyond the power of the legislature to repeal such prohibition law and render such marriages legal. Scott v. State, 39 Ga. 321.
1120 (6375). Par. 19. CIVIL AUTHORITY SU PERIOR TO MILITARY. The civil authority shall be su perior to the military; and no soldier shall in time of peace, be quartered in any house without the consent of the owner, nor in time of war, except by the civil magistrate, in such manner as may be provided by law.
Cross References: 36, 217, 464, 833.
Historical Note: The origin of this paragraph is found in one of the heaviest grievances complained of in the Petition of Right. When the third amendment to the Federal Constitution was before the House of Representatives, Mr. Gerry moved to amend by inserting in the last line after the word "but" the words, "by a civil magistrate," so that
4. Loeb -u. Jennings, 133 Ga. 797, 67 S. E. 101. 5. Townsend v. State, Townsend v. Roach, 134 Ga. 69, 52 S- E. 293; Young v. State, 124 Ga. 789, 53 S. E. 101; Vance v. State, 128 Ga. 665, 57 S. E. 889. 6. Penitentiary Co. No. 3 v. Rountree, 113 Ga. 799, 39 S- E. 508. 7. Potts v. Riddle, 5 Ga. App. 378, 63 S. E. 353.

1121-1122] AMENDED CONSTITUTION OF 1877. [458
said amendment would read "No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of -war, but by a civil magistrate in a manner to be prescribed by law," the object being-, as is expressed in the above paragraph, to make the "civil authority superior to the military," by giving to the civil au thorities control of quartering soldiers in any mans house even in time of war, but the amendment was lost. 2 "Watson on U. S. Consti tution, 1413; Small's Report, 85.
1121 (6376). Par. 20. CONTEMPTS. The power of the courts to punish for contempts shall be limited by legislative acts.
Small's Report, 85.
The power to punish contempts being inherent in every court of record, the legislature cannot, as to a court created by the consti tution, define what are contempts and declare that the court shall have jurisdiction over no acts except those specified, and this pro vision of the constitution only confers upon the legislature tbe power to prescribe the punishment after conviction. Consequently Par. 4606 of the Civil Code, in so far as it seeks to limit the juris diction of a constitutional court to punish for contempts to certain specified acts, is not binding upon such court ;* but the legislature having fixed the maximum fine for a contempt of court at $200, a fine of $250 for such offense is illegal. 2
1122 (6377). Par. 21. IMPRISONMENT FOB DEBT. There shall be no imprisonment for debt.
Cross References: 116, 408, 465, 567, 667, 835.
See 16 Ga. Bar Report, 8; 35 Ga. Bar Report, 83, and note 46 to 116; Small's Report, 26, 90.
When a person is decreed to perform a duty or to do any act other than the mere payment of money, which the court has juris diction to adjudge he shall do, disobedience to such order is de fiance of the court, and he is guilty of contempt and his arrest and imprisonment for such disobedience, is not imprisonment for debt in any appropriate sense of the term, 1 hence, imprisonment of faithless attorney who fails to respond to his client on a rule
1. Bradley v. State, 111 Ga. 168. 2. Warner v. Martin, 134 Ga. 393. 1. Clements v. Tilman et al., 79 Ga. 455, 5 S. E- 194.

459 ]

AMENDED CONSTITUTION OF 1877. [ 1122

absolute for the money of his client collected by him and not paid over is not imprisonment for debt, 2 nor is punishment provided by 206 of the Penal Code imprisonment for debt but for fraudulent conduct,3 nor is imprisonment for failure to pay a decree for alimony imprisonment for debt, but for a failure to perform a judicially ascertained duty, which defendant owes to his wife and to the public ;4 and, trover being an action of tort founded upon the wrongful conversion of the property of another, imprisonment upon refusal to deliver property demanded upon trover proceed ing, is not imprisonment for debt, but for breach of duty to deliver property wrongfully held upon demand therefor ;5 but failure to pay a simple decree for money, enforceable by common law process is not a contempt authorizing compulsory process against the per son of the defaulting party; hence, imprisonment in trover case after alternative money verdict becomes conclusive is illegal, and defendant should be released on Habeas Corpus,6 and when a court of equity rendered a money decree in favor of a legatee against an executor and awarded an execution for its enforcement, it was error to add an alternative that, if the defendant failed to pay the amount of the decree by a time specified, he should be held in
contempt.7 It is the duty of a debtor to turn over his money to a receiver
appointed under the insolvent traders 1 act when the court orders him to do so and this duty is essentially different from a mere money judgment or decree to be enforced by execution, and upon failure to comply with such order the defendant may be attached and imprisoned for contempt, but such imprisonment should not be perpetual in a case admitting of reasonable doubt ;8 likewise when an award is made upon a finding by an auditor on a bill for accounting between partners, and the court orders one of the partners to pay to the other a certain sum of money, such order does not convert such claim into a debt in such sense as to deprive the chancellor of jurisdiction to compel the party decreed against

2. Smith v. McL,endon, 59 Ga. 523. 3. Youmans v. State, 7 Ga. App. 101, 66 S. E. 3S3. 4. Lamar v. Larnar, 123 Ga. 829, 51 S. E. 763; Carlton v. Carlton, 44 Ga. 216; Importers Bank v. McGhee, 88 Ga. 705, 16 S. E. 37. 5. Harris v. Bridges, 57 Ga. 408. 8. Southern Express Co. v. L,ynch, 65 Ga. 240. 7. Clements v. Tilman et al., 79 Ga. 451, 5 S. E. 194. 8. Tuten v. Central R. R. & Banking Co., 88 Ga. 238, 14 S. E. 185; Taylor v. Dobson, 89 Ga. 361, 14 S. E. 470.

1123] AMENDED CONSTITUTION OF 1877.

[460

to comply \vith such order by attachment for contempt upon his refusal to clo so. 9
The legislature cannot under guise of a statute creating" criminal offense, imprison one who has failed to pay a debt; but if one in creating a debt perpetrates a fraud upon another, it is not beyond the power of the legislature to denounce such fraud as a crime and imprison the one guilty of its perpetration ;10 hence, Act of Aug. 15, 1903 (Acts of 19O3-p-90) making it a misdemeanor to procure money or other thing of value, under promise to perform service, intending at the time not to render such service, is not violative of this section of the constitution. 11

1123 (6378). Par. 22. ARMS. The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms shall be borne.
Cross References: 218, 445, 552, 663, 836.
Historical Note: This provision occurs first in the English Bill of Rights and referred to such arms as were necessary for the military defense of the people, and for the exercise of the natural right of re sistance and self-preservation when the sanction of society and the laws -were found "insufficient to restrain the violence of oppression." The second amendment to the Federal Constitution provides that a well regulated militia being- necessary to a free state, the right of the people to keep and bear arms shall not be infringed. 2 Watson on U. S- Constitution 1408; Cooley's Blackstone Book 1; ch. 1, 144.
The Act 1, William and Mary declares that it is against law to raise or keep a standing army in the kingdom in time of peace without the consent of parliament, and therefore places arms in the hands of the people, and our constitution assigns as a reason why this right shall not be interfered with, or in any manner abridged, that the free enjoyment of it will prepare and qualify a well regulated militia, "and it is held that a law which merely inhibits the wearing of certain arms in a concealed manner is valid; 1 but so far as it cuts off the exercise of the rights of the citizen altogether to bear arms., or under the color of prescribing

9. Clements v. Tillman et al., 79 Ga. 451, 5 S. E. 194. 10. Huggins v. Southeastern Cement Co., 131 Ga. 312, 48 S. E. 933; Mulkey v. State, 1 Ga. App. 531, 524, 57 S. E. 1022. 11. Lamar v. State, 120 Ga. 312, 47 S. E. 958.
1. Nunn v. State, 1 Ga. 243; Morton v. State, 46 Ga. 294.

461]

AMENDED CONSTITUTION OF 1877. [ 1124

the mode, renders the right itself useless--it is in conflict with the constitution and, void ;2 but the legislature may prohibit entirely the bearing of arms in the presence of courts of justice.3

1124 (6379). Par. 23. LEGISLATIVE, JUDICIAL AND EXECUTIVE, SEPARATE. The legislative, judicial and executive powers shall forever remain separate and dis tinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided.
Cross References: 55, 59, 60, 73, 239, 302, 353, 468, 570, 680, 837.
Historical Note: This political maxim makes its appearance, in some form, in all of the state constitutions formed about the time of the war of the Revolution, and is said to have been borrowed by them from Montesquieu's "Spirit of Laws," Book XI; Ch. 6, The Federalist. No. XLVII: Watson, U. S. Constitution, vol. I; 311.
See Notes to 1155, 1196, 1216, 1227.
Theoretically, the three departments of the government--legis lative, executive and judicial--are coordinate1 and distinct, 2 this separation constituting the chief glory and excellence of the free in stitutions of this government,3 yet, in the nature of things, this separation cannot be total,4 nor are the departments of perfect equality, the legislature being within the pale of its constitutional competency, the paramount and sovereign power in the state, 5 clothed by the people with all power except where they have made limita tions.6 This department is the fountain head of power, with the right to limit the powers exercised by the other departments; the judiciary being dependent upon the legislature for the erection of

2. Nunn v. State, 1 Ga. 343; Stockdale v. State, 33 Ga. 327. 3. Hill v. State, 53 Ga. 472. 1. "Walker v. Whitehead, 43 Ga. 538.
2. Beall v. Beall, 8 Ga. 311; Wilder v. Lumpkin, 4 Ga. 212; Eve v. State, 21 Ga. 5O; Aycock v. Martin, 37 Ga. 124; Russell v. Cooley, 69 Ga. 315; Hilliard v. Connelly, 7 Ga. 177; Northeastern R. R. Co. tr. Morris, 59 Ga. 366; Phinizy v. Eve, 108 Ga. 360, 33 S. E- 100.
3. Wilder v. Lumpkin, 4 Ga. 213.
4. Cooper v. Telfair, 4 Dallas (U. S-) 14; Beall v. Beall, 8 Ga. 211; The Federalist, No. 47; Speech of Daniel Webster in U. S- Senate, quoted in note on page 111, vol. I, Watson on U. S- Constitution.
5. The Flint River Steamboat Co. v. Foster, 5 Ga. 194. 6. Nicholas -v. Hovenor, 42 Ga. 517.

1124] AMENDED CONSTITUTION OF 1877.

[462

courts; for the appointment of jurisdiction; for appointment to office; for compensation; and subject to removal by impeachment,7 even the Supreme Court being the subject of such legislation;8 it prescribes the machinery of the courts, and, when in motion they are governed by the arbitrary will of the sovereign, as to the times of holding them, the mode of bringing suits, the rules of evidence and the technicalities of form in which they must be presented.9 The executive department Is also dependent upon the legislative for salary; for election, and the governor is subject to removal by impeachment which is a judicial proceeding conducted by the legis lative department. 10
This provision relates to state and not to municipal officers; hence Mayor of city may preside in police court. 11 The constitu tion having clothed the legislature with the states' power to legislate, that body may make any laws it deems proper, unless in conflict with the constitution itself, or with the constitution of the United States, or laws enacted by Congress In pursuance thereof, 12 but the power to appoint public officers, not being a purely executive function, this power may be exercised by the General Assembly, when not otherwise provided in the constitution, either by naming a given person for the office or providing the manner in which they may be chosen, and they may create a self perpetuating body, by allowing them to name their successors. 13
Legislative and judicial functions not combined in same person to such extent as to be repugnant to constitution by appointment of a committee of the legislature to investigate books of the Western & Atlantic Railroad in order to ascertain if treasurer of the road in default and ascertain the amount ; 14 nor, by Act of Sept. 22, 1881, which provides that the judge of the city court of Richmond County shall be ex officlo, commissioner of roads and

7. Beall v. Beall, 8 Ga. 211. 8. Walker v. Whitehead, 43 Ga. 538. 9. Walker v. "Whitehead, 43 Ga. 538; Goodman v. Morris, 59 Ga. 60; Rives v. Sneed, 25 Ga. 631; Mulkey v. State, 1 Ga. App. 521, 524, 57 SE. 1023. 10. Beall v. Beall, 8 Ga. 216. 11. Ford v. Mayor & Council of Brunswick, 134 Ga. 830, 68 S. E. 733. 12. Southern Railway Co. v. Melton, 133 Ga. 282, 65 S. E. 665. 13. Mayor & Council of Americus v. Perry et al., 114 Ga. 871, 40 SE. 1004. 14. Scofield et al. v. Perkerson, et al., 46 Ga. 335; Shrine v. Jackson, 73 Ga. 383. See citations under No. 17, below.

463 ]

AMENDED CONSTITUTION OF 1877. [ 1124

revenues of that county. 15 Legislature has power to establish rules of evidence where not in conflict with the constitution, or with
rights guaranteed by it. 16
Judicial and executive functions not combined in same person in sense repugnant to constitution by Act of Dec. 20th, 1893, "to pro vide for the filing, hearing and determining of contests m con tested elections; 17 and, providing for secretary of state to preside m such cases not unconstitutional; 18 nor does the fact that "near beer dealers" are required to obtain a license of the ordinary, and that officer is entitled to enforce payment of the tax by the issuance of process there for render the act providing for such method of issuing such license and collecting the tax from such dealers unconstitutional; 19 nor is this provision of the constitution violated by the Act for the appointment of registrars for Savannah, by the judge of the Superior Court, Judge of the City Court and the Ordinary ;20 nor by the provision for the issuing of tax execu tions by the Comptroller General ; 21 but the sole power to pardon being conferred by the constitution on the executive, and no such power being conferred upon the courts, a judge cannot grant a suspension of sentence, and thus indirectly grant a reprieve, com mute a penalty, or remit any part of a sentence. 22.
The provision of the Act creating the railroad commission, which empowered the commission to make and enforce by penalties rules for the furnishing of cars, etc., was not a delegation of legislative power, touching the general subject matter provided for by the legislation conferring such administrative power. 23

15. Phinizy et al- v. Eve, 108 Ga. 360, 33 S- E. 1007. 16. Banks v. State, 124 Ga. 15, 52 S. E. 74; Vance v. State, 128 Ga. 668, 57 S. E. 889; Rose v. State, 4 Ga. App. 610, 62 S- E, 117; Toole v. State, 4 Ga. App. 495, 61 S. E- 917; Youmans v. State, 7 Ga. App. Ill,
66 S. E. 388. 17. Johnson v. Jackson, 99 Ga. 389, 37 S- E. 384. See also Ogburn
v. Elmore, 123 Ga, 677, 51 S. E. 641; Carter v. Jones, 96 Ga. 280, 23 S. E. 201; Tupper v. Dart, 104 Ga. 179, 30 S. E. 624; Harris v. Sheffield,
128 Ga. 303, 57 S. E. 305. 18. Bowen et al. v. Clifton, et al., 105 Ga. 459, 31 S. E. 147. 19. Carroll v. Wright, 131 Ga. 729, 63 S. E. 360. 20. Russell et al. v. Cooley et al., 69 Ga. 315. 21. Scofield et al. v. Ferkerson et al., 46 Ga. 350.
22. Neal v. State, 104 Ga. 511, 30 S. E. 858. 23. Southern Railway Co. v. Melton, 133 Ga. 277, 65 S. E. 665.

1125-1126] AMENDED CONSTITUTION OF 1877. [464
1125 (6380). Par. 24. RIGHT TO ASSEMBLE AND PETITION. The people have a right to assemble peaceably for their common good, and to apply to those vested with the powers of government for redress of grievances, by petition or remonstrance.
Cross References: 38, 216, 448, 555, 654, 838.
Historical Note: The right of petitioning- parliament and the king was exercised from the earliest times, but the practice came especially into vogue during the misrule of Charles II, and the long Parliament. Petitions especially exasperating to the King were presented during the long prorogations of parliament during which he was governing the people by the royal will and depriving them of representative gov ernment. Restrictive statutes were passed and about 1679 a royal proc lamation forbade any person to sign such a petition under pain of punishment. Finally the right to petition the king -was expressly sanc tioned by the Bill of Rights and became part of American Constitu tional law by being incorporated into the first amendment to the Fed eral Constitution. Cooley's Blackstone, Book 1, ch. 1, par. 1.43; Taswell Lang-meade, 483; Watson on U. S. Constitution, 731; Small's Report, 108.
It is not competent for the General Assembly, under the consti tution to enact a law, authorizing any court in the state to restrain any person from applying to any department of the government for a right to which that person claims to be entitled ; hence, pro vision in Act of Feb. 25, 1874 (Act repealing provision for state aid in railroad charters), which provided that if any company claiming such right should apply to the Governor for the same, any citizen might by bill restrain such company and cause the courts to decide whether such right to state aid existed, -was un constitutional as being repugnant to the constitutional provision protecting the right of the people "to apply to those vested with the powers of government," and to the provision that "the legis lative, judicial and executive departments of the government are separate and distinct." 1
1126 (6381). Par. 25. CITIZENS, PROTECTION OF. All citizens of the United States, resident in this State, are hereby declared citizens of this State; and it shall be the duty of the General Assembly to enact such laws as will
1. Northeastern Railroad Co. v. Morris, 59 Ga. 364.

465]

AMENDED CONSTITUTION OF 1877. [ 1126

protect them in the full enjoyment of the rights, privileges, and immunities due to such citizens.
Cross References: 108, 115, 680, 839.
Small's Report, 81, 82. See notes to 1103.
The equality of the rights of citizens is a principle of re publicanism, incumbent upon every republican government, origi nally assumed by the states, and still remaining there. The equal right to resort to the appropriate courts for redress means that no person or class of persons shall be denied the same protection of the law which is enjoyed by other persons or other classes in the same place and under like circumstances. 1 Trial of case between persons of different races without reference to race or color, is not deprivation of due process of law nor denial of equal protec tion of the laws, 2
The Supreme Court of the United States having decided that all colored persons born in the United States and subject to its juris diction are citizens of the United States and of the states in which they reside, all distinctions as to the rights pertaining to citizen ship are abolished, and as to their civil rights they stand upon the same footing ;3 hence, a contract or will providing compensation for the injury done by past illegal cohabitation, being valid, and there being no public policy in this State which would make it unlawful or contrary to public policy for a man to will his property to a bastard, or to a colored person, his will to a colored concubine and his bastard is valid, the rights of a white concubine or bastard be longing equally to a colored concubine.4
Among the rights of citizens is the right to vote and to hold office, 5 and negroes are eligible to do both. 6 The legislature can not prescribe new qualifications for voters, but it may regulate the manner of holding elections for the purpose of securing a fair and

1. Missouri State Life Insurance Co. v. Lovelace, 1 Ga. App. 446, 455, 58 S. E. 93.
2. Creswell v. Knights of Pythias, 133 Ga. 838, 67 S- E. 188. 3. Munroe v. Phillips, 64 Ga. 33; Smith v. DuBose, 78 Ga. 433, 3 SE. 309; Slaughter House Cases, 16 Wallace 90; Crapo v, Kelley, 16 Wallace 620; Murdock v, Memphis, 20 "Wallace 590. 4. Smith -v. DuBose, supra. 5. Smith v. DuBose, supra. 6. White v. Clements, 39 Ga. 332.
----30

1126] AMENDED CONSTITUTION OF 1877.

[466

legal result at the ballot box,7 and may require voter to cast his ballot in his own district. 8
The provisions of Act 6, p. 18, Par. 12 ( 1292, post) providing the manner of making up the jury lists does not make any discrimi nation on account of race, color or previous condition of servitude, 9 nor are the provisions of the "Act to regulate public instruction in the county of Richmond" (Acts of 1872, p, 456) empowering county board of education to discontinue higli schools where public convenience demands, violative of any provision of the State or federal constitution, nor was discontinuance of colored high school abuse of discretion although similar school for whites left in operation. 10
Equal protection of lawus not violated by ordinance providing for arrest and punishment of "street walkers," 11 nor is city ordinance regulating manner rights of citizens to pass over streets with loaded wagon obnoxious to constitution as discrimination between rights of citizens who wagon over streets ;12 nor is act unconstitu tional which provides that in case of injury to passenger on rail road train, presumption of negligence is against company, 13 nor is statute obnoxious to Fourteenth Amendment or to state constitu tion "which makes railroad company liable to employee for injury caused by negligence of fellow servant; 14 nor does the Act of October 16th, 1889, p. 29, providing for taxation of railroads in each county through which they run, deny to railroad corporations the equal protection of the laws ; IH nor is act creating city court with jurisdiction to try misdemeanors unconstitutional because it provides that persons charged in it with crimes shall not have

7. McMahan v. Mayor, Savannah, 66 Ga. 219. 8. E)yson v. Pope, 71 Ga. 206. See 1149. 9. Wilson -v. State, 69 Ga. 224.
10. Board of Education v. Gumming, 103 Ga. 641, 29 S- E. 488. See also Reid v. Mayor of Eatonton, 80 Ga. 755, 6 S- E. 612.
11. Braddy v. City of Milledgeville, 74 Ga. 516. 12. Nagle v. City Counsel of Augusta, 5 Ga. 546. See also Smith v. Macon, 129 Ga. 237, 58 S. E. 713.
13. Augusta, etc., Rwy. Co. v. Randall, 79 Ga. 304, 4 S- E. 674. 14. Georgia R. R. Co. v. Miller, 90 Ga. 571, 16 S. E. 939; Thompson v. Central R. R. & B. Co., 54 Ga. 509; Ga. R. R. & B. Co. v. Brown, 86 Ga. 320, 12 S. E. 812.
15. Columbus So. Rwy. Co. v. Wright, 89 Ga. 574, 15 S. E. 293; Ga. R. R. Co. v. Wright, 125 Ga. 609, 54 S- E. 52; Green Co. v. Wright, 126 Ga. 508, 516, 54 S. E. 951.

467]

AMENDED CONSTITUTION OF 1877. [ 1126

right to demand indictment by grand jury; 16 nor is provision for attachment against property of non resident debtors 17 or the act "to regulate the sales of stock of goods, wares and merchandise in bulk," violative of the fourteenth amendment,18 nor does 715 of the Penal Code, providing that it shall be illegal to procure ad vances under contract to labor with intent to defraud, violative provision of federal constitution against denial of equal protec tion of laws, 19 municipal ordinance of City of Thomasville regu lating sale of "Near Beer" was not void as making an arbitrary classification,20 and denial of equal protection of laws; nor is im position of state tax upon an emigrant agent such a law as works such a discrimination in favor of persons hiring laborers unem ployed within this state as to amount to denial of equal protection of laws within the meaning of the above provision of the constitu tion ;31 nor are the privileges and immunities of the citizen abridged by the law prohibiting the manufacture of alcohol. 22
But while legislature cannot be partial in imposing burdens, it need not necessarily be impartial in bestowing favors. 23
Anti Trust Act of December 23, 1896 (Acts of 1896, p. 68), declaring that it "shall not apply to agricultural products or live, stock while in the hands of the producer or raiser" was repugnant to fourteenth amendment as denial of equal protection of laws. 24

16. Gordon -v. State, 102 Ga. 674, S9 S. E. 444. See note 17 to 1291. 17. Continental Bank v. Folsom, 78 Ga. 449, 3 S. E. 369. See also Lears v. Seaboard Airline Rwy. Co., 3 Ga. App. 614, 60 S- E. 343; Pyrolusite Maganese Co. v. Ward, 73 Ga. 491.
18. Jaques-Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 1, 6S S. E. S3, 4 Ga. App. 581, 62 S. E. 90. See 1133.
19. Vance v. State, 138 Ga. 661, 57 S. E. 889, 2 Ga. App. 420, 58 S. E. 690.
20. Campbell v. Thomasville, 6 Ga. App. 312. 21. Williams v. Fears, 110 Ga. 584, 35 S. E. 699; Shepherd v. Corns-, 59 Ga. 535.
22. Cureton ^. State, 135 Ga. 660, 70 S. E- 786. 23. Bloom -v. State, 20 Ga. 445; Flint River S. Co. v. Foster, 5 Ga. 194. 24. Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 41 S. E. 553. See also West End, etc., R. R. Co. v. Atlanta Street R. Co., 49 Ga, 151; Plumb v. Christie, 103 Ga. 686, 30 S. E. 759; Deal v. Singletary, 105 Ga. 466, 30 S- E- 765; Brown v. Atlanta Rwy. & Power Co., 113 Ga. 462, 39 S. E. 71; Employing Printers Club v. Blosser, 133 Ga. 512, 50 S- E. 353.

1127] AMENDED CONSTITUTION OF 1877.

[468

SECTION 2.
CERTAIN OFFENS^S DEFINED.
1127 (6382). Par. 1. LIBEL, JURY IN CRIMINAL TRIALS. In all prosecutions or indictments for libel, the truth may be given in evidence; and the jury in all criminal cases shall be the judges of the law and the facts. The power of the judges to grant new trials in case of convic tion is preserved.
Cross References: 379, 380, 281, 668, 840.
Historical Note: The law of libel was first administered in the Court of Star Chamber, in which the Court possessed the power to decide both the law and the fact. After the abolition of this Court, the Courts of common law persisted in the effort to retain in the hands of the judges the same power. In the case of Franclin it was held that the court alone could determine what constituted a libel, and that the truth of a libel could not be given in evidence even in mitigation of damages Lord Mansfield laid it down in the Woodfall case, that it was the prov ince of the judges alone to determine the criminality of a libel, leaving the jury to determine merely the fact of publication, and whether the libel meant what it was alleged in the indictment to mean. Tn 1793, by what is known as the Fox Libel Act, it was declared that it was the province of the jury on any trial or information for libel, to give a gen eral verdict of guilty or not guilty on the -whole matter, thus, making the jury "the judges of the law and the facts." State Trials Vol. XVII, p. 673; State Trials Vol. XX, pp. 803, 870, 895; Hannis Taylor, English Constitution, 11; 487, 488; Taswell-Langmeade, 138, 599, 600.
The constitution of 1877 did not alter the law in regard to right of jury to be judges of the law independent of instruction of court thereon, but simply reenacted the law as it had previously existed in the code, with the construction that had been put upon it by the Court j 1 hence the court is the constitutional organ to give the law in charge to the jury in criminal cases, and it is the duty of the jury to accept the law as given them by the court ; they are to ascertain ?u-hat the laiu is, from the charge of the court ; 2 just as they are to ascertain what the facts are, from the evidence intro duced, and they are then to judge of the application of the law to the facts, for the purpose of reaching a conclusion as to whether

1. Ridenhour v. State, 75 Ga. 383; Collier, Assignee, v. Barnes, 04 Ga. 484.
3. Robinson v. State, 66 Ga. 517; Malone v. State, 66 Ga. 539.

469] AMENDED CONSTITUTION OF 1877. [ 1128-1129
the application of such law to the facts proven constitute a crime.3 Counsel may read law to the jury in the hearing of the court
subject to the correction of the court in its charge,4 and may present to jury their view of the law and of the facts,5 but it is not permissible by use of such authority to introduce evidence or thus indirectly to establish facts which might influence the jury. 6
Setting aside of verdict and granting of new trial by the court is not a substitution of his judgment for that of the jury, but is a reference of the case to another jury for their opinion;7 the broad discretion of the jury given them by the law as to the amount of the damages is not a limitation on the discretion of the trial judge to set aside the verdict when he thinks it unfair, unjust, contrary to the evidence, excessive or too small; and, judge ought to set aside a verdict which, on legal grounds, in exercise of sound dis cretion, he cannot approve, and, reviewing court presume positive approval of trial judge from his refusal of new trial. 8
1128 (6383). Par. 2. TREASON. Treason against the State of Georgia shall consist in levying war against her, adhering to her enemies, giving them aid and comfort. No person shall be convicted of treason, except on the tes timony of two witnesses to the same overt act, or confes sion in open court.
Cross References: 65, 116, 674.
Historical Note: This section is copied verbatim from article 111, section 3, of the constitution of the United States in -which it was in serted to make impossible the doctrine of "constructive treason." The words, "Giving them aid and comfort," were not in the original draft as reported by the committee on detail, and when it was moved to add them Connecticut, Delaware and Georgia voted against the mo tion. Watson, U. S. Constitution, 1145-1167.
1129 (6384). Par. 3. CONVICTION. No convic tion shall work corruption of blood, or forfeiture of estate.
Cross References: 452, 558, 673, 842.
3. Columbus Iron "Works v. London, 53 Ga. 433(3); McRae v. State, 52 Ga. 290; Hill <v. State, 64 Ga. 471; Danforth v. State, 75 Ga. 614.
4. McMath v. State, 55 Ga. 303. 5. Warnock V. State, 56 Ga. 503. 6. Cribb v. State, 118 Ga. 319, 45 S. E- 416. 7. Holland v. "Williams, 3 Ga. App. 638, 60 S. E. 331. 8. Central of Georgia Ry. Co. v. Harden, 113 Ga. 460, 38 S. E. 940.

1130-1132] AMENDED CONSTITUTION OF 1877. [470
Conviction of treason or felony, or any lower grade of crime, works no corruption of blood or forfeiture of estate, hence maxim of civiliter mortuus on conviction of felony, has no application in Georgia, and a felon can sue for injuries received while confined in penitentiary. 1
There is nothing in law of this state prohibiting a putative father from making provision for his illegitimate child, or for the illegiti mate offspring of such child, 2 and gift from husband to wife can not be revoked upon discovery that she is an adulteress, the courts being bound to respect property rights and having no power to im pose penalties by forfeiting property rights.3
1130 (6385). Par. 4. LOTTERIES. All lotteries and the sale of lottery tickets are hereby prohibited; and this prohibition shall be enforced by penal law.
Cross References: 115, 672, 843.
1131 (6386). Par. 5. LOBBYING. Lobbying is de clared to be a crime, and the General Assembly shall enforce this provision by suitable penalties.
Cross Reference: 844.
Small's Report, 86, 101, 102.
1132 (6387). Par. 6. FRAUD; PROPERTY CON CEALMENT. The General Assembly shall have the power to provide for the punishment of Fraud; and shall provide, by law, for reaching property of the debtor concealed from the creditor.
Cross References: 665, 845.
Small's Report, 86, 90.
The "Insolvent Traders' Act" is in pursuance of this provision of the constitution and in complete harmony with it ;x and Act of Aug. 17, 1903 (Acts of 1903, p. 92) "to regulate the sale of mer chandise in bulk," is not in contravention of the provision of the
1. Dade Coal Co. -v. Haskell, 83 Ga. 549, 10 S. E. 435; Smith et al. v. DuBose et al., 78 Ga. 415, 3 S. K. 309.
2. Smith et al. v. DuBose et al., Exs., 78 Ga. 415, 3 S. E. 309. 3. Evans v. Evans, 118 Ga. 893, 45 S. E. 612. 1. Ryan v. Kingsbery, 88 Ga. 377, 14 S. E. 596.

471]

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constitution of the United States, or those of the Constitution of this state, especially in view of the above provision of our constitu tion. 2 Bond for title interest in land may be reached by equitable decree where property has been fraudulently conveyed so as to con ceal it from a creditor and prevent its subjection, and as held by person taking with notice of the fraud, and property conveyed to husband by married woman without order of Superior Court of County of her domicile, may be subjected to claims of her cred itors.3

SECTION 3.
PROTECTION TO PERSON AND PROPERTY.
1133 (6388). Par. 1. PRIVATE WAYS; JUST COMPENSATION. In cases of necessity, private ways may be granted upon just compensation being" first paid, by the applicant. Private property shall not be taken, or damaged for public purposes, without just and adequate compensa tion being first paid.
Cross References: 460, 565, 846.
Historical Note: The principle of this section was declared to be part of the co

: private property and the taking of it upon the same footing-. McKenzie, Harrison et al., 3 Ga. 42; Mimms v. Macon & W. R. R. Co., 3 Ga. 340; S. W. Rwy. Co. v. Telephone Co., 46 Ga. 43; BlackCom., Ch. 139, 140; 2 Kent Co
The constitutional provision that in cases of necessity, private ways may be granted upon just compensation being first paid by the applicant was not intended to confer power upon legislature; but its object was to restrict legislature in its grants of such power to cases of necessity and upon just compensation; and right to exercise the power of eminent domain, and to condemn private
2. Jaques-Tinsley Co. v. Carstarphen Co., 131 Ga. 17, 62 S. E. 62. 3. Hood v. Perry, et a!., 75 Ga. 310. See also Fulgham v. Pate, 77 Ga. 454; Flannery v. Coleman, 112 Ga. 648, 37 S. E- 878; Webb v. Har ris, 184 Ga." 787, 53 S. E. 247.

1133] AMENDED CONSTITUTION OF 1877.

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property is strictly construed and must be clearly conferred, 1 and such right is exhausted by first use. What a corporation first con demns, or buys, or takes as necessary for its franchise, it will be bound by its election and the charter powers will be thereby ex hausted, so far as then existing charter vests it with power ; 2 and, where public road is laid out and lateral limits fixed, though fixed at less than thirty feet (the width of the widest class of public roads) its width cannot afterwards be increased by mere order of classification, nor without acquiring the additional width by first
paying just and adequate compensation.3
"Cases of necessity," as contemplated in this provision of Con stitution, do not arise where way sought to be laid out not abso lutely indispensable to applicant as means of reaching his property, and if there is way suitable for all purposes, even though such way may be less convenient than one proposed ;* and where upon certiorari from judgment of court of ordinary granting private way, evidence failed to show that way granted was one of necessity, Su perior Court did not err in sustaining certiorari and reversing the Ordinary ;5 but power may be conferred upon railroad company to appropriate land lying outside of right of way of such railroad for purpose of obtaining such gravel and other material as might be necessary to proper construction, operation and security of rail road and statute conferring this power not in conflict with con
stitution of this state. 6
Private 'ways cannot be granted by ordinaries or county commis sioners, through the exercise of right of eminent domain unless in such cases as they have been clearly authorized by legislative en actment; and, there being no statute conferring the power to grant a private way to a brickyard, such grant by county commissioners

1. Corns, of Bibb County V. Harris, 71 Ga. 250; Neal -v. Neal, 122 Ga. 807, 50 S. E. 929; Farham v. Justices, etc., 9 Ga. 348.
2. Alabama Great Sou. R. R. -u. Gilbert, 71 Ga. 591; Bonner v. Milledgeville Rwy. Co., 133 Ga. 117, 50 S. E. 973.
3. Buchanan -v. James, 130 Ga. 546, 61 S- E. 1S5 4. Neal v. Neal, 122 Ga. 804, 5O S. E. 929; Gaines u. Lunsford, 120 Ga. 370, 47 S. E- 967; Chattanooga, Rome & So. R. R. Co. -u. Philpot
et al., 112 Ga. 153, 37 S. E- 181. 5. Normandale Lumber Co. -v. Knight, 89 Ga. Ill, 14 S. E. 882. 6. Hopkins et al. v. Florida Central & Penn. R. R. Co., 97 Ga. 107,
25 S. E. 452.

473 ]

AMENDED CONSTITUTION OF 1877. [ 1133

is void ;7 but a necessary private way may be granted to one ac tually engaged in quarrying granite ; 8 or to a mining company for the carriage of water necessary to the operation of a gold mine;9 and the General Assembly may grant to a foreign corporation the privilege to construct a telegraph line upon the public domain pro vided it does not authorize the taking of private property for such purpose unless upon prior payment of just compensation ; 10 but General Assembly cannot authorize the taking of private property either for a public or a private way without adequate compensation, and where no means of ascertaining the compensation, the right cannot be exercised, and the means provided in the general law for the condemnation of private property, (Code 5206 et seq.) is not available to a private railroad owned by a partnership and used as incident to saw mill business, because it is not a public road nor a private way in the Constitutional sense; 11 a power granted to a city merely authorizing it to lay out and open streets but providing no way of assessing the damage, does not authorize the city to create a method by ordinance, and the city cannot lay out a street over the land and track of a .chartered railroad company without the consent of the company. 12
Damage to private property and the taking of it for public use are, as regards the right to just compensation, put by the Constitu tion of 1877 on the same footing ; 13 but the word "damaged" is used in its usual sense as a law term, and does not change the sub stantive law of damages, or create a cause of action where none previously existed ; nor does it abrogate the principle expressed in the phrase "damnum absque injuria;" but it preserves all existing causes of action for damages to private property and prohibits ex emptions of liability for such damage, even if occasioned by public

7. Board of Commissioners of Bibb z>. Harris, 71 Ga. 350. 8. Jones & Co. v. Venable et al., 120 Ga. 1, 3, 47 S- E. 549. 9. Hand Gold Mining Co. v. Parker, 59 Ga. 419. 10. Southwestern Rwy. Co. v. Sou. & Atlantic Telegraph Co., 46 Ga. 43. 11. Garbutt Lumber Co. v. Ga. & Ala. Rwy. Co., 311 Ga. 716, 36 S. E. 942. 12. Brunswick & Western R. R. Co. v. Mayor & Council of Waycross, 94 Ga. 103, 31 S. E- 145. See also Butler v. Thomasville, 74 Ga. 570; Ga. R. R. Co. v. Union Point, 119 Ga. 809, 47 S. E. 183; Stour v. Newborne, 137 Ga. 422, 56 S. E. 516. 13. Central Trust Co. v. Thurman, 94 Ga. 735, 30 S. E. 141.

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use. 14 The Constitution of 1877 does not make that a nuisance which was not a nuisance before, hence the simple erection of a prison building by a city, or a jail by a county, both being legal in their erection and of public necessity, cannot so injure adjacent property as to entitle the owners to have damages, or to enjoin their erection on the ground of apprehended damage to private property for public use. 15 Local option legislation is within police power of the State and incidental depreciation of property used as a brewery is damnum absque injuria ; 16 likewise abatement of nuisance is referable to police power and not to right of eminent domain; hence city not liable to owner of damaged corn destroyed by Board of Health; 17 nor are members of city council requiring building torn down as a nuisance liable as individuals unless they acted, ma liciously. 18
Prior to Constitution of 1877, and under the Constitution o 1868, there was no prohibition against the mere damage to private prop erty without just compensation, and consequently the liability of a municipal corporation for any damage done to an owner of property in consequence of the grading of public streets and the construction of sewers or bridges in them, dependent upon the question whether or not the municipal authorities were negligent, and in consequence of their negligence inflicted upon the property owner some injury peculiar to himself and not shared in by the general public; 19 but removal of gravel from street in front of a property owner, not for purpose of grading that street, but of filling up other streets, gives a right of action against municipal corporation for damages. 20 As a

14. Atkinson V. City of Atlanta, 81 Ga. 625, 7 S, E. 692; Smith V. City of Atlanta, 75 Ga. 110; Austin v. Augusta Terminal Rwy. Co., 108 Ga. 671, 718, 34 S. E. 853; Towaliga Falls Power Co. v. Sims, 6 Ga. App. 749, 65 S. E. 844,
15. Bacon et al. v. Walker, Corns., 77 Ga. 336; Long- v. City of Elberton, 109 Ga. 30, 34 S- E. 333; Howard -u. County of Bibb, 137 Ga. 292, 56 S- E. 418.
16. Menkeii v. City of Atlanta, 78 Ga. 668, 2 S. E- 559. 17. Dunbar & Co. v. City Council of Augusta, 90 Ga. 390, 17 S. E. 907; The Mayor & Aldermen of Savannah v. Mulligan, 95 Ga. 333, 22 S- E. 621. 18. Pruden et al. v. Low, 67 Ga. 190. 19. Atkinson v. City of Atlanta, 81 Ga. 625, 7 S. E. 692; Pause v. City of Atlanta, 98 Ga. 97, 26 S. E. 489; Tuggle v. City of Atlanta, 57 Ga. 114; Mayor and Council of East Rome v. Lloyd, 124 Ga. 852, 53 S- E. 103.
20. Mayor & Council of Macon v. Hill, 58 Ga. 595.

475]

AMENDED CONSTITUTION OF 1877. [ 1133

general rule, as constitution then existed, injury to the property of the owners of real estate fronting on streets in cities and towns by reason of legitimate and reasonable grading thereof was "damnum absque injuria." 31
But since the adoption of the Constitution of 1877, a municipal corporation is liable to a property owner, for consequential damages resulting from raising the grade of a street in front of his premises, thereby impairing or destroying his means of ingress or egress ;22 and the fact that a change in the grade of a street is made in con formity to an ordinance of a municipality acting in its legislative capacity does not prevent an abutting property owner from recover ing consequential damages resulting from such public work,23 and on the same principle a right of action exists against a county for damaging private property for public uses in constructing the ap proaches to a county bridge thereby elevating the roadway above an adjacent lot so as to hinder access to the lot from the road,34 or for causing public roads to be washed or drained in such manner as to damage the adjacent realty, 25 but the act of the legislature -which gave to a land owner in Atlanta the right to have a permanent grade, required, as a prerequisite to its value as vesting a right in him, that it be filed for record. Having failed to do so, he could neither re cover damages under the act from the city resulting to his lot from a change in the grade of the sidewalk, nor enjoin the municipal au thorities from making such change. 36
Damaging of property where there is no actual taking of it, is not necessarily contingent upon prior payment of just compensation; hence city merely damaging but not taking, not enjoined from grad ing street until compensation made, 27 nor from permitting the lay ing of a street car track in a street of a city. 28 And the municipal authorities of the city of Rome can lawfully have a street, the grade

21. Jackson v. Tift, 23 Ga. 46. 22. Mayor & Council of East Rome v. Lloyd, 134 Ga. 852, 53 S. E. 103; Moore z>. City of Atlanta, 70 Ga. 611; Castleberry v. City of At lanta, 74 Ga. 164. 23. Mayor & Council of Macon v. Daley, 2 Ga. App. 355, 58 S. E. 540. 24. Smith v. Floyd County, 85 Ga. 420, 11 S. E. 850; Howard v. County of Bibb, 137 Ga. 291, 56 S. E. 418. 25. Barfield v. Macon County, 109 Ga. 386, 34 S. E. 596. 26. Moore v. City of Atlanta, 70 Ga. 611. 27. Moore v. City of Atlanta, 70 Ga. 611. 28. Brown v. Atlanta Rwy. Co., 113 Ga. 476, 39 S. E. 71.

1133] AMENDED CONSTITUTION OF 1877.

[476

of which has previously been established on the city's initiative, brought to such grade without first having the damages which a land owner will suffer by reason thereof assessed and paid, or tend ered, when none of his property is actually taken. 29
Since Constitution of 1877, if in construction or operation of a street railroad adjacent residence is damaged, the owner may re cover damage, but property is not necessarily "damaged" by mere annoyance to occupants, by noise, smoke, dust, or other annoy ances necessary to ordinary operation of the railroad's business.30 There is no damage to a property owner from removing street shade trees unless it be by the negligent manner of removing them, as such trees belong to the city.31
Taking of private property can only be upon just compensation being first paid; hence, the construction and operation of a ste railway in a public street, being a physical invasion of the ea

, so the building of a sewer through a private lot necessarily takes
ers thereon, nor is there an; mode prescribed for the condemna-
29. Fleming v. City of Rome, 330 Ga. 383, 61 S. E- 5. SO. Campbell v. Metropolitan Street Rwy. Co., 82 Ga. 325, 9 S. E. 1078. 31. Castleberry v. Atlanta, 74 Ga. 164. 32. South Carolina K.. R. Co. v. Steiner, 44 Ga. 546; Campbell v. Met ropolitan Street Railroad Co., 82 Ga. 320, 9 S. E. 3078; Atlanta B. & A. Rwy. Co. t.'. McKnig-ht, 125 Ga. 338, 54 S- E. 148; Athens Terminal Co. v. Athens Foundry Co., 129 Ga. 393, 58 S. E. 891. 33. Ga. Midland & Gulf R. R. Co. v. Columbus So. Rwy. Co-, 89 Ga, 205, 15 S. E. 305. 34. Smith v. City of Atlanta, 92 Ga. 119, 17 S. E. 981.

477]

AMENDED CONSTITUTION OF 1877. [ 1133

tion of such property for public use, it cannot exercise such power.35 Owner of toll bridge, whether public or private, entitled to just com pensation from county taking his land and building another bridge to his injury;30 and the city of Savannah could not extend the limits of the city so as to include toll gate terminus of turnpike, without compensation first paid ;37 but where a land owner per mitted a railroad company to lay out and construct its road through his land, without any objection until the road had been completed, and equipped at large expense, his property forming but a small fraction thereof, he could not then enjoin the use of the entire road until his damages should be assessed and paid.38 Though the erection of a bridge on a street may have rendered less convenient the means of egress and ingress to and from an existing building upon an abutting lot, this was not a "taking" of property within the meaning of this clause of the Constitution.39 A railroad cor poration which, under its charter constructs Us track across an existing public highway or street in a city, does so on the implied condition that it will yield to the reasonable burdens imposed by the growth and development of the country or city, and where the public welfare demands a change of grade of the highway or street, the railroad company must, at its own expense, make such altera tion in the grade of its crossing as will conform to the new grade, and to require it to do so is not to take or damage private property in the sense prohibited by the Constitution.40
Measure of da-mage for exercise of right of eminent domain is depreciation of market value of property,41 but this damage is de-

35. Butler i>. Mayor of Tbomasville, 74 Ga, 570; Stowe i>. Newborn, 127 Ga. 422, 56 S- E. 516; Jones v. North Georgia Electric Co., 125 Ga. 628, 54 S- E. 85.
36. Dougherty County v. Tift, 75 Ga. 815. 37. Mayor & Aldermen of City of Savannah v. The Vernon Shell Road Company, 88 Ga. 343, 14 S- E. 610; Town of PouEan v. Atlantic R. R. Co., 123 Ga. 608, 51 S- E- 657. 38. Griffin -u. Augusta & Knoxville R. R., 70 Ga. 164; City of Elberton v. Pearl Mills, 123 Ga. 3, 50 S. E. 977. 39. Hurt v. City of Atlanta, 100 Ga. 374, 28 S. E. 65; Marietta Chair Co. v. Henderson, 121 Ga. 405, 49 S. E. 312. 40. Cleveland, Receiver, v. City Council of Augusta, 103 Ga. 233, 39 S. E. 584; Atlantic Rwy. Co. v. Cordele, 128 Ga. 293, 57 S. E. 493. 41. Mayor & Council of East Rome v. Lloyd, 124 Ga. 853, 53 S. E. 503; Moore v. City of Atlanta, 70 Ga. 611; Smith -v. Ezell, 51 Ga. 570; Smith v. Floyd County, 85 Ga. 420, 11 S. E. 850.

1133] AMENDED CONSTITUTION OF 1877.

[478

creased by the actual benefit, If any, from the improvements ;42 so, although the erection of a bridge on a street may have rendered less convenient the means of egress and ingress to and from an existing building upon an abutting lot, the abutting property is not damaged if its market value is more after the erection of the bridge than before ;43 but where an old road ran near a residence, and the county authorities sought to abandon it and locate a new road further away, in assessing the "consequential damages," such abandonment and the attendant result upon ingress to and egress from the residence and upon the value of the property were proper for consideration in determining whether the market value of the land would be diminished;44 but "consequential benefits" can only be set off against "consequential damages," and not against value of land taken,45 and can only be allowed when work skillfully done. For unskillful work city is liable as before constitution of 1877.46
The damages recoverable under the provisions of the Constitu tion of 1877 are for substantial injury to private property;--real damage affecting the market value, and not speculative, affecting only natural beauties of property ;47 and, where county dammed up creek and polluted its waters so that owners milch cows were made sick and the milk unfit from drinking the water, it was held that there was no diminution of the market value of the premises.48
Precedent payment of compensation for taking or damaging of

42. Streyer v. Ga. Sou. & Florida Railroad Co., 90 Ga. 56, 15 S. E637.
43. Hurt v. City of Atlanta, 100 Ga. 274, 28 S- E. 65. 44. Mallory v. Morgan County, 131 Ga. 271, 62 S. E- 179. 45. City Council of Augusta v. Marks, 50 Ga. 612. 46. City of Atlanta v. Word, 78 Ga. 276. 47. Elbert County v. Swift, 2 Ga. App. 47, 58 S. E. 396. 48. Howard v. County of Bibb, 127 Ga. 291, 56 S. E. 418. See also, as to market value as measure of damages, Smith v. Floyd County, 85 Ga. 430, 11 S. E. 850; White Star Line Steam Boat Co. -v. County of Gordon, 81 Ga. 48, 7 S. E. 231; Pause -u. City of Atlanta, 98 Ga. 103, 26 S. E. 489; Bacon v. Walker et al., 77 Ga. 339; Campbell v. Metropolitan Street Railroad Co., 82 Ga. 320, 9 S. E. 1078; Barfield v. Macon County, 109 Ga. 386, 34 S. E. 596; Raughton v. City of Atlanta, 113 Ga. 948, 39 S. E. 315; City Council of Augusta v. Schrameck, 96 Ga. 426; Terrell County v. York, 127 Ga. 166, 56 S. E. 309; Austin v. Au gusta Terminal Rwy. Co., 108 Ga. 671, 34 S. E. 852; Steyer V- Ga. S& F. R. R. Co., 90 Ga. 56, 15 S. E. 657; City of Atlanta v. Green, 67 Ga. 386; Milwood v. DeKalb County, 106 Ga. 747, 32 S. E. 577.

479]

AMENDED CONSTITUTION OF 1877. [ 1133

private property for public use necessary, hence in a case arising before the passage of the general condemnation law in 1894 (Code, 4657, et seq.), -when the question of determining the amount of damages which would accrue to a certain property by locating right of way of railroad over it, had been submitted to assessors, under the charter of the road, and from their decision the company had entered an appeal, it could not proceed pending such appeal to construct its road across the land, and an effort to do so would be restrained by injunction;49 but since Act of 1894, the company may proceed to build the road, pending appeal, provided it first pays or tenders the amount of the award. (Code, 4679.) 50 But, the constitutional inhibition against taking private property for public purpose without just and adequate compensation being first paid, does not constrain the granting of an ad interim injunction in favor of the owner of the fee against a railroad company where there is an apparently bona fide claim on the part of the railroad company to the right of way in dispute, whether the claim if well founded, would amount to a legal title or to a mere license from another company having such title ;51 and where a land owner whose property had been taken years before for a roadway, by a railroad company, obtained judgment for damages according to its charter, it was held to have had an ample legal remedy by levy and sale or by ejectment, and the fact that another railroad company, the successor to the first, had interposed a claim to all the property of the former, held no ground for enjoining the latter company from using the roadway.52
Method of appropriating property pointed out by statutes must be followed, and statutory provisions existing prior to Constitution of 1877, and different from Act approved December 18, 1894 was repealed by Constitution of 1877,53 and if the authorities under take to appropriate property in any other way, equity will restrain the act,54 and where a railroad company claims title to land, as having been condemned under the provisions of its charter, the burden of proof is upon the company to show a strict compliance

48. Chambers v. Cincinnati & Ga. R. R. Co., 69 Ga. 330. 50. Oliver v. Railroad Company, 83 Ga. 261, 9 S. E. 1086. 31. Davis et al. v. Covington & Macon R. R. Co., 77 Ga. 322. 52. Remshart v. Savannah & Charleston R. R. Co., 54 Ga. 579. 53. Alexander v. City Council of Augusta, 134 Ga. 849. 54. Board of County Commissioners for the County of Decatur v. Humphrey, 47 Ga. 565.

1133] AMENDED CONSTITUTION OF 1877.

[480

with its terms. 55 Jury trial is not a constitutional right in case involving power of eminent domain; the legislature having the power to prescribe the method of ascertaining what is just and adequate compensation, right of appeal given by statute is suffi cient. 56 In condemnation proceedings to subject trust property to public use in the exercise of the right of eminent domain, the trustee is the proper party to be served, and it is not necessary that the beneficiaries should be parties to the proceeding. 57
Public use, is the object of the exercise of the right of eminent domain; hence the use by a street railway of its franchise for private purposes, such as hauling coal for a private manufacturing plant ;5S and a contract between a railroad company and a tele graph company whereby the railroad company granted to the telegraph company the exclusive right to use the right of way for a telegraph line is void. The railroad companies themselves are in possession of their rights of way by the exercise of the right of eminent domain, granted to them by the State, for certain specified uses, and it was never contemplated that the property thus condemned to the public use could be conveyed to another company for its exclusive interests and in antagonism to the public interest;59 but the state, although it may have dedicated cer tain property to one public use by the exercise of the right of eminent domain, has the power to dedicate a portion of the same property to another public use not inconsistent with or destructive of the first use. This doctrine applies to streets and roads opened b}^ condemnation where subsequent grants to railway companies have been upheld, 60 and where a street has been opened in a city the state may vacate the street or empower the municipality to
55. Doe ex dem. Mobley ~u. Roe, Casual Ejector & Breed, Lessee, Selma, Rome & Dalton, R. R. Co., 48 Ga. 44.
56. Mayor & Council of Atlanta v. Central Railroad & Banking Co., 53 Ga. 130; Oliver /. Union Point & White Plains R. R Co., 83 Ga. 257, 9 S. E. 1086, distinguishing Southwestern R. R. Co. v. S- & A. Tel egraph Co., 46 Ga. 43.
57. Small, Trustee, v. Ga. Sou. & Fla. R. R. Co., 87 Ga. 603, 13 S. E. 694.
58. Mayor of Macon -v, Harris, 73 Ga. 438; Mayor of Macon v. Har ris, 75 Ga. 763.
59. "Western Union Telegraph Co. v. American Union T. Co., 65 Ga. 160.
60. Wood v. Macon & Brunswick R. R. Co., 68 Ga. 547.

481]

AMENDED CONSTITUTION OF 1877. [ 1134

vacate it. 61 Church property is private property, and is subject to condemnation according to law for railway purposes. 62

1134 (6389). Par. 2. ATTAINDER; EX POST FACTO AKD RETROACTIVE LAWS, ETC. No bill of at tainder, ex post facto law, retroactive law, or law impair ing the obligation of contracts, or making irrevocable grants of special privileges or immunities, shall be passed.
Cross References; 65, 75, 78, 406, 847.

, tors, supporting their accusation by evidence, and the L,ords are the sole judges. Attainder is a legislative act, which must pass through the same stages as any other Act of Parliament- It may be introduced in either the Lords or Commons, and after passing through both houses receives the royal assent. No evidence is necessarily adduced to sup port it. It is analogous to a bill of pains and penalties, and was orig inally intended for the punishment of those who fled from justice. Tlie earliest notable instance of its employment was in the banishment by Parliament of the two Despencers, father and son, in the fifteenth Ed ward II, A. D. 1321. Proceedings against the Despencers, 1 St. Tr., 23, 138.
The Earl of Warwick, only son of the Duke of Clarence, brother of Edward IV.; the Earl of Suffolk, nephew of that king; the Duke of Buckingham, also of royal descent and the first in rank and conse quence among the nobility; the aged countess of Salisbury, daughter of Edward IV. and mother of Cardinal Pole; Queen Anne Boleyn; Bishop Fisher; Sir Thomas Moore; Thomas Cromwell; the Earl of Sur rey; and the Duke of Norfolk, ordered for execution but saved by the opportune death of the king, were among the most conspicuous victims to Henry's (Henry VIII) ferocious vengeance, policy or caprice; the forms of law became the engines for the perpetration of judicial mur ders; the most trivial evidence was regarded as sufficient to support the conviction for treason; and during the latter part of Henry's reign even the few advantages which the accused possessed In the ordinary courts were taken away by the habitual employment of Bills of At tainder. English Constitutional History, Taswell-Ivangmeade, 303.
The Parliament of Great Britain were in the habit of passing Bills of Attainder, or Bills of Pains and Penalties; they declared acts to be treason, -which were not so at the time they were committed; they vio lated the rules of evidence, to supply a deficiency of legal proof; they authorized evidence to be received without oath; they admitted the
61. Marietta Chair Co. v. Henderson, 121 Ga. 399, 49 S. E. 312. 62. Macon & Atlantic Rwy. Co. v. Riggs, 87 Ga. 158, 13 S. E. 313.
-- 31

1134] AMENDED CONSTITUTION OF 1877.

[482

wrfe to testify against the husband; they inflicted punishments -where the law prescribed none; and greater punishments than the law an nexed to the offense. To prevent these abuses, the prohibition against making- ex post facto laws, -was introduced into all of our constitu tions. Boston v. Cummins, 16 Ga. 113; "Special privileges or immuni ties;" Small's Report, 95, 104, 107, 111, 45], 455.
A bill of attainder is a legislative act which inflicts punishment without a judicial trial. 1 If the punishment be less than death, the act is termed a bill of pains and penalties. Any disqualification from office or the exclusion from any of the professions or any of the ordinary avocations of life or the deprivations of an exist ing right for misconduct and without judicial trial partakes of the nature of a bill of pains and penalties. 2 The Georgia Act of At tainder passed in 1782, before the adoption of the Federal Consti tution was not void. 3 Since the adoption of the Federal Constitution, all Bills of Attainder, bills of pains and penalties, being included in their purview, are prohibited,4 but a resolution of the General Assembly of Georgia removing a railroad com missioner from office was not a bill of attainder. 5
An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.6 Ex post facto laws include : First. Every law that makes criminal an action, done before the passing of the law, which was innocent when done, and punishes such action. Second. Kvery law that aggravates a crime or makes it greater than it was when com mitted. Third. Every law that changes the punishment and in flicts a greater punishment than the law annexed to the crime when committed. Fourth. Every Jaw that alters the legal rules of evidence, and requires less or different testimony than the law required at the time of the commission of-the offense.T
Ex post facto law refers to criminal cases only and retrospective

1. Cummins v. State of Missouri, 4 Wallace 277; Piece -v. Larskadon, 16 Wallace 234.
2. Ex parte Garland, 4 Wallace 333; Cummins v. State of Missouri, 4 Wallace 377.
3. Cooper v. Telfair, 4 Dallas 14. 4. Ex parte Garland, 4 Wallace 333; Cummins z>. State of Missouri, 4 Wallace 277. 5. Gray v. McLendon, 134 Ga. 326, 67 S. E. 859. 6. Fletcher v. Peck, 6 Cranch 138; 1 Kent 409; Ex parte Law, 35 Ga. 310. 7. Boston v. Cummins, 16 Ga. 106.

483]

AMENDED CONSTITUTION OF 1877. [ 1134

laws which are not ex post facto in their character, and which do not impair the obligation of contracts are not within the prohibi tion of the constitution.8 Hence the Act of November 21, 1897, providing that in suits for land, bona fide holders of the property may set off permanent improvements against mesne profits is not unconstitutional, even in its application to improvements made and mesne profits accrued before the passage of the act;9 nor is con tract obligation impaired by providing different method of ex ercising right of eminent domain; 10 nor is an act of the legislature extending the limits of an incorporated city so as to include therein contiguous territory previously unincorporated and to subject such territory to taxation to pay municipal liabilities without respect to when some of them arose, and to the payment of debts of the corporation incurred before the enlargement of the limits, uncon stitutional on the ground that it is retroactive or retrospective as to municipal liabilities already incurred. 11
Law providing for the payment of license by dealers in "near beer," which fixes the amount at so much per calendar year, under which one who enters business must pay for entire year, although he enters business after part of year has passed, is not violative of the constitutional inhibition against the passage of retrospective laws; 12 and a legislative act which imposes a specific tax on cer tain business occupations and which does not become operative until the year following its passage is not violative of that section of the federal constitution which prohibits a state to pass any ex post facto law, and registry act retrospective in operation do not impair the obligation of contracts provided they allow a reasonable time after their passage to record existing or antecedent deeds. 13
Retrospective laws which are not ex post facto and do not im pair the obligation of contracts are not within the prohibitions of

8. Wilder v. Eumpkin, 4 Ga. 308; Ex parte Law, 35 Ga. 310; Boston v. Cummins, 16 Ga. 106; "Wellborn z>. Akin, 44 Ga. 435; Spencer v. Amu & Thomas, R. M. Charlt. 178; White v. Wayne, T, Tj. p. Charlton 94; Baker v. Herndon, 17 Ga. 568.
9. Mills v. Geer, et ah, 111 Ga. 275, 35 S. E. 673. 10. Alexander v. Augusta, 134 Ga. 854.
11. "White V. City of Atlanta, 134 Ga. 533, 68 S- E. 103.
13. Carroll v. Wrigfht, 131 Ga. 739, 63 S- E. 260. 13. Keher v. Stewart, 117 Ga. 969, 4 S- E. 854; Leps v. State, 120 Ga. 139, 47 S- E. 572; Smith v. Clark, 132 Ga, 538, 50 S. E. 480; Boston v. Cummins, 16 Ga. 103; Tucker v. Harris, 13 Ga. 1.

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the constitution, 14 and retroactive intent or effect will never be given. statutes by construction unless such construction is imperatively demanded; 15 hence, where a statute expressly declared that a speci fied chart made and published by the "United States Geodetic Survey," should be conclusive evidence of the location of natural oyster-beds upon the coast of Georgia, and the state in pursuance of such statute made contracts with its citizens whereby it leases to them territory for oyster propogation, which according to such chart, embraces no natural oyster beds such contracts -were ab solutely binding, and their validity could not be effected by the passage of a subsequent statute amending the former by striking therefrom the word "conclusive;" 16 nor could an act repealing a previous act under which a town had established public schools providing for a certain tax levy, passed after a certain teacher had been employed and had earned a certain sum as such, be given a retrospective operation so as to divest the teachers previously ac quired rights, or to impair the obligation of contracts made by him, and the town was compelled to levy a tax to pay him, 17 and where a city lays a sewer across a property owners land and there exists, at the time, no law requiring such property owner to pay for it, a statute thereafter passed authorizing the municipal corporation, by a new assessment, to impose upon the owner the payment of a portion of such expense, was such "retrospective" legislation as is prohibited by the Constitution of the State; 18 likewise an act pro viding for the payment of an attorney for past services rendered to a county for which the county was not legally liable when the services were performed is unconstitutional as being retroactive, 19 but a law which does not impair a right, but only provides a dif ferent remedy, or different mode of trial, or mollifies instead of increasing the rigor of the law is not unconstitutional even though it applies to causes of action existing before its passage. 20

14. Wilder v. Lumpkin, 4 Ga. 308. 15. Fleming, Trustee, -u. Fountain, 73 Ga. 557; Rowland v. Randolph & Co., 43 Ga. 390; Hart et at. v. Hart et al., 53 Ga. 376; Walker et al. v. Bivins et al.; Maynard v. Marshall, 91 Ga. 840, 18 S- E. 403; Wilder v. Lumpkin, 4 Ga. 208; Lewis v. Turner, 40 Ga. 416. 1. Jones v. Oemler, 11O Ga. 303, 35 S. E. 375. 17. Dennington v. Mayor & Council of Roberta, 130 Ga. 494, 61 S. E. 20. 18. Holliday Ex. v. City of Atlanta, 96 Ga. 377, 23 S- E. 406. 19. Ross v. Lettice, 134 Ga. 866, 68 S. E. 134. 20. DuBignon v. Brunswick, 106 Ga. 317, 33 S. E. 102; Pritchard, Admr., v. Sav. St. & Rural Resort R. R. Co., 87 Ga. 394, 13 S- E. 493;

485]

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Relief Act of October 10, 187O, which required persons suing on debts or contracts or other causes of action made or implied before June 1, 1865, unless the plaintiff at the time of filing the suit should file his affidavit stating that all legal taxes had been paid upon the debt, contract, or cause of action sued upon, and requiring plaintiff in suits then pending to pay such taxes and file such affidavit within six months after the passage of the act, in default of which the suit should be dismissed, was in the leading case of Walker f. Whitehead, held not to be unconstitutional, 21 but the case was carrie,d to the Supreme Court of the United States, and, by that court held to be violative of Article 1, Section 10, paragraph 1, of the Constitution of the United States, 22 after which decision it was so held by the Supreme Court of Georgia. 23
Limitation Statute of March 16, 1869, declaring that all actions on bonds or other instruments under seal, which accrued prior to June 1, 1865, not then barred should be brought by January 1, 1870, or all right of action of the party claimant for its enforce ment should be thereafter barred, held not to impair the obligation of the contract, as it only effects the remedy. 24
Homestead provisions of Constitution of 1868, which granted greater exemptions to debtors than existed under previous laws in a number of cases held valid even as against debts created before the adoption,25 but the case of Gun -v. Barry was reversed by the Supreme Court of the United States, upon the ground that it im paired the obligation of contracts26 and following this decision the courts of Georgia have held the liability of the debtors property to

Wilder -v. Lumpkin, 4 Ga. 208; Humby v. Cummins, 16 Ga. 103; Macon, etc., R. R. Co, -v. Little, 45 Ga. 383; Searcy v, Stubbs, 12 Ga. 437; Ba con v. Savannah, 105 Ga. 62, 31 S. E. 137; Cutts v. Hardee, 38 Ga. 350.
21. Walker v. Whitehead, 43 Ga. 539; Alison, Anderson & Co. v. Gra ham, 45 Ga. 355.
22. Walker v. Whitehead, 16 Wallace (U. S.) 314. 23. Mitchell v. Cothrans & Elliott, 49 Ga. 135; Gardner v. Jeter, 49 Ga. 195; Gardner v. Adams, 49 Ga. 195; Kimbro v. Bank of Fulton, 49 Ga. 419; Dougherty v. Fogle, Chipley, Smith, 50 Ga. 465. 24. George v. Gardner, 49 Ga. 441. 25. Hardeman v. Downer, 39 Ga. 425; Pulliam et al. v. Sewell et al., 40 Ga. 73; Gunn v. Barry, 44 Ga. 352. 26. Gunn v. Barry, 15 Wallace (U. S.) 610; Chambers, Guardian, v, Jordan, 50 Ga. 81; Vandyke v. Kilgo, 54 Ga. 551; Drinkwater v. Moreman, 61 Ga. 395; Hunt v. Juhan, 63 Ga. 163; Jones v, Brandon, 48 Ga. 593; Burnside v. Terry, 51 Ga. 190; Smith, Gov., v. Banks, et al., 60 Ga. 642.

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the payment of his debts, in respect to the homestead and exemp tion laws in force at the time of the creation of the debt; hence, where an attorney received a note for collection prior to the adop tion of the constitution of 1868, and collected, the money subse quently, the contract was held to date from the receipt of the note for collection and a rule for the money by the client, was held su perior to a homestead claimed in the fund by the wife ; 27 and, so, when one became guardian prior to constitution of 1868, and after 1868 received ward's property, judgment against bond was held superior to homestead granted the wife ; 2S and, where judgment was upon a debt prior to Constitution of 1877, the debtor was only entitled to an exemption of personalty to the amount of $1,000, and it was held that there is no authority of law to set apart cash under the constitution of 1877, as against a debt antidating such constitution, and then invest it in realty so as to defeat the debt. 29
Constitutional provision in the second paragraph of the 17th sec tion of Article 5 of the Constitution of 1868, declaring void all debts made in aid of rebellion, held not to be controlling of actions brought by bona fide holders of bank bills which were issued by a bank payable to bearer, and which passed into circulation as money, nor could illegality of such issue by the bank as con templated in said provision be set up as defense to a recovery against the rights of such holder, upon the ground that if the said provisions of the constitution were intended to apply to such cases, they are void under lOth section of the 1st Article of the Constitu tion of the United States, inasmuch as they not only annul sub sisting contracts which were otherwise legal and valid, but impose upon the holder of such bills, impracticable conditions in cases of certain defenses which practically deny all right of recovery.30
Charter provisions exempting Georgia Railroad & Banking Com pany from taxation for seven years from its completion, and fixing rate thereafter, was a valid portion of the contract of incorporation between the State and the corporation, and any repeal of the pro vision without the consent of the corporation would be repugnant to Article 1, section 10, Paragraph 1, of the Constitution of the United States, prohibiting any state from passing any law impair-

27. Douglas, Admr., v. Boylston et al., 69 Ga. 186. 28. WilHs -v. Thornton, Ordinary, 73 Ga. 128. 29. Johnson et al. v. Dobbs, 69 Ga. 605. 30. Branch v. Baker, 53 Ga. 503.

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ing the obligation of contracts.31 (But see concurring opinion of Judge Bleckley in Atlantic & Gulf R. R. Company v. State, 55 Ga. 312) ; but where two or more roads holding charters granted prior to the Code of 1863, were consolidated under an Act subsequent to that Code, it was held that all of the rights contained in the original acts should be treated as if conferred by the latter act, and subject to 1682 of the Code of 1863, which reserved the right of withdrawal to the State but on appeal to the Supreme Court of the United States, this holding was adjudged to be er roneous ;32 but a charter provision granting a railroad exclusive right of transportation provided certain rates are not exceeded, is not infringed by subsequent law regulating rates.33
Obligation of contract contained in lease by State of all of its convicts to two penitentiary companies, could not be changed by resolution instructing a public officer to turn over to a railroad com pany a certain number of convicts, hence joint resolution of 1883 was unconstitutional because it impaired obligation of contract, and State cannot pass a law impairing a contract made by it, any more than it can a contract made by one of its citizens.34
But the obligation of the contract contained in the charter of a turnpike company is not impaired by a statute enacted after the grant of its charter providing a remedy for damages, or to forfeit the charter on account of failure of the company to. discharge its obligations to the public, provided such act does not materially abridge the rights of the company or increase its burdens, the com pany being subj ect to police regulations.35
No contract obligation in license granted to sell liquors by re tail;36 nor in a judgment rendered in an action for a tort growing out of a wrongful conversion of personal property,37 nor is revo-

31. State of Ga. v. Ga. R. R. & Banking- Co., 54 Ga. 433. 32. Code, 1862, 1863: Central R. R. & Banking Co. v. State of Georgia, 54 Ga. 401, 408, 92 U. S- 665. See also Atlantic & Gulf Rail road Co. -v. State of Georgia, 55 Ga. 312, and State v, Atlantic & Gulf R. R. Co., 60 Ga. 268. 33. Ga. R. R. et al. v. Smith et al., R. R. Corns., 70 Ga. 694. 34. Ga. Pen. Cos. Nos. 2 and 3 v. Nelms, 71 Ga. 301 (see also page 375); Ga. Pen. Cos. Nos. 2 et al. v. Nelms et al., 65 Ga. 68. 35. Davis et al. Corns, v. Vernon Shell Road Co., 103 Ga. 491, 29 S. E. 475. 36. Brown v. State, 82 Ga. 224, 7 S. E. 915; Whaley v. Mayor & Coun cil of Columbus, 89 Ga. 781, 15 S. E. 694. 37. McAfee et al. v. Covington et al., 71 Ga. 273.

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cation of executive warrant upon the treasury of the State, un constitutional as impairment of obligation of contract;38 nor does act relieving* security on bond impair any vested right of solicitorgeneral as to his fees.39 Nor does the Act of March 2, 1875 re quiring registration of past matured bonds, repudiate the bonds, take away any remedy, nor impair any obligations of the con tracts ;40 nor does the Act of August 15, 1910 (Acts of 1910, p. 85) providing a new method of selecting advertising medium violate any contract obligation.41
Establishing of dispensary by local act in any county of this State does not violate the constitutional rights of any citizen; nor is a monopoly in such business thus created by the General As sembly by conferring the exclusive privilege of engaging in such traffic upon a body corporate repugnant to the provision of the constitution against "making irrevocable grants of special privileges or immunities.1 *42

1135 (6390). Par. 3. REVOCATION OP GRANTS. No grant of special privileges or immunities shall be re voked, except in such manner as to work no injustice to the corporators or creditors of the incorporation.
Cross References: 562, 675, 848.
Smalt's Report, 111,
Where a charter granted to a turnpike company in 1840 pro vided as the only penalty or forfeiture to be incurred for failing to keep its road in proper repair, that its toll gates should be thrown open and kept open until it was put in repair, it was not competent for the General Assembly in 1878 to prescribe an other and different penalty, viz, damages and forfeiture of its charter for a failure of the company to keep its road in repair ;* but where an act incorporating a bank provides that each stock holder shall be individually liable for the ultimate payment of the debts of said corporation to an amount equal to the amount of stock held by him, such liability since the passage of the Act of

38. A. A, Fletcher, ex., v. Renfrew, 56 Ga. 675. 39. Jordan v. Baynes, 48 Ga. 462. 40. Gurnee & Co. v. Speer, Treasurer, 68 Ga. 711. 41. Dollar v. Wind, 135 Ga. 760, 70 S. E. 335. 42. Plumb et al. v. Christie et al., 103 Ga. 687, 30 S. E. 759.
1. Habersham, etc., Turnpike Company v. Taylor et al., 73 Ga. 553.

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AMENDED CONSTITUTION OF 1877. [ 1136

1894, may be enforced by the receiver of an insolvent corporation notwithstanding the act was passed subsequently to the act of in corporation which fixed the liability. The provision of the subse quent act that such liability shall be considered as an asset of the bank and enforced by the receiver, is remedial in its nature and does not affect any vested right of the creditor. 2

SECTION 4.
SPECIAL, LEGISLATION FORBIDDEN.
1136 (6391). Paragraph 1. GENERAL LAWS, AND HOW VARIED. 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. No general law affecting private rights shall be varied in any particular case by special legislation, except with the free consent, in writing, of all persons to be affected thereby; and no person under legal disability to contract is capable of such consent.
Cross References: 99, 123, 458, 563, 675, 849.
A law is general, under the Constitution of Georgia, when it operates uniformly throughout the whole state upon the subject with which it proposes to deal ;* and it is not essential that it should affect every person, object or thing in the State, nor operate territorially throughout the entire limits and in all parts of the State, but generic subjects may be divided into classes, and legisla tion peculiarly necessary to each class may be enacted, and if it applies uniformly to all persons or objects within the class, it will be general and not special,2 unless it appears that the classification was arbitrary.3 Hence, localities may be classified according to
2. Moore et al. v. Ripley, Receiver, 106 Ga. 557, 32 S. E. 647. 1. Lorentz & Rittler v. Alexander, 87 Ga. 444, 13 S- E. 632; Crovatt V. Mason, 101 Ga. 251, 28 S. E. 891. 2. Sasser v. Martin, 101 Ga. 454, 29 S. E. 278; Southern Rwy. Co. v. State, 125 Ga. 289, 54 S. W. 160; Gray v. McLendon, 134 Ga. 325, 67 SE. 859. 3. McGinnis et al. v. Rag-sdale, Ord., 116 Ga. 245, 42 S. E. 492; Union Savings Bank & Trust Co. v. Dottenheim, 107 Ga. 606, 34 S. E. 217; Bone v. State, 86 Ga. 108, 12 S. E. 205; Futrell v. George, 135 Ga. 269, 69 S. E. 182.

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population, and a law applying to all the class will be a general law;4 likewise, the legislature can classify vocations or businesses and assess a tax against all persons carrying on such vocation, without requiring it of all businesses ;5 or make a classification of property and provide for the payment by insurance companies of losses according to a certain special rule on certain specified classes of property which does not include all property ; 6 and the people of the State may be divided into classes, for instance, those living in incorporated towns and cities and those living outside of them, and a different provision with reference to working the public roads made as to the two classes.7
Act to provide for change of county lines lying within the limits of incorporate towns and cities (Acts of 1906, p. 121) ;s Act to fix the venue of justice courts in cities of this State having a popu lation of over 15,000, etc." (Acts of 1889, p. 116) ; Act "to pro vide for the collection of the special taxes imposed by law on dealers in spirituous, or malt liquors, or intoxicating bitters" (Acts of 1880, 1881, p. 42; Code 809 (9) (h)), having operation in every county or locality in the State where spirituous or malt liquors are sold; the "alternative road law," 9 are examples of general laws applying uniformly to a designated class.
But the Act of 1872 (Acts of 1871-2, p. 294), which first pro vided for the establishment of county courts, was not a general law, because it excepted forty-six counties from its operation; nor was the Act of 1879, amending the former act, a general law, be cause it excepts by name the county of Walton, and also excepts all counties having a city court, and all County courts then ex isting; 10 and the Act of the General Assembly embraced in 4270 et seq. of the Code for the establishment of a city court "upon the recommendation of a grand jury of any court having a population of ten thousand or more where a city court does not exist," is not a general law because it excepts over sixty counties from its opera-

4. Starnes V. Mutual Loan & Banking Co., 102 Ga. 597, 29 S- E. 452. 5. Williams v. Fears, 110 Ga. 584, 35 S. E. 699. 6. ./Etna Ins. Company v. Bingham, 120 Ga. 926, 48 S. E- 348. 7. McGinnis et al. v. Ragsdale, Ord., 116 Ga. 245, 42 S. E. 493. 8. Manson, Ord., v. City of College Park et al., 131 Ga. 429, 62 S. E. 278. 9. McGinnis et al. v. Ragsdale, Ord., 116 Ga. 245, 42 S. E. 492; Futrell v. George, 135 Ga. 265, 69 S- E. 182. 10. Lorentz & Rittler v. Alexander, 87 Ga. 444, 12 S. E. 632.

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AMENDED CONSTITUTION OF 1877. [ 1136

tion; 11 and the provision of 529, 1419, and 1422, of the Code of 1882, were held not to be a general lav? upon the subject of granting licenses to sell spirituous liquors because it excepted from its operation all such cities and towns as already had legislative authority upon the subject in their charter, hence a special law for a particular county was not unconstitutional. 12
But it is not necessary that a law should provide that it be put into operation in every county in the State, to be a general law; it being only necessary that it be applicable to every locality of the State, or to every one of a designated class of localities and the putting of the law into operation may be made optional upon a popular election, as in case of the "stay law ;" 13 or the "local option law" as to the sale of intoxicating- liquors; 14 or, upon the recommendation of the grand jury, as in the case of the "alter native road law," 10 and many other laws. 16
Territorial test of whether a law is general law is that it shall operate in every part of the State upon every person or transac tion embraced within its terms ; 17 hence the act of December 26, 1888, to legislate for two militia districts so as to dispense them, with the popular vote provided for under the Code of 1882, and requiring all domestic animals to be kept from running at large in such districts, was unconstitutional as being a special law upon a subject matter for which provision had been made by the Code of 1882, as molded and modified by general legislation on the subject of fences; 18 likewise, special statute prohibiting and making penal the sale of spirituous liquors within the corporal limits of a desig nated city or county was void, the general local option law being then in force and covering the same subject matter; 19 and, a
11. Thomas v. Austin, 103 Ga. 701, 30 S. E. 627. 12. Glover -v. State, 136 Ga. 594, 55 S. E. 592; Sasser v. Martin, 101 Ga. 447, 29 S. E. 278; Fullington -v. Williams, 98 Ga. 814, 815, 27 S. E. 183; Benning- v. Smith, 108 Ga. 359, 33 S. E. 833; Kennedy *. Meara, 127 Ga. 127, 56 S. E. S43; Lorentz & Rittler v. Alexander, 87 Ga. 444, 13 S. E. 632. 13. Thomas v. State, 92 Ga. 1, 18 S. E. 44; Mathis f. Jones, 84 Ga. 804, 11 S. E. 1018. 14. Crabb v. State, 88 Ga. 584, 35 S. E. 455. 15. McGinnis et al. v. Ragsdale, Ord., 116 Ga. 245, 42 S- E- 492. 16. Murphy v. Educational Board of Burke Co., 71 Ga. 856. 17. Union Savings Bank v. Dottenheim, 107 Ga. 60S, 34 S. E. 217. 18. Mathis v. Jones, 84 Ga. 804, 11 S. E. 1018. 19. Barley v. State, 103 Ga. 388, 29 S- E. 123, 32 S. E. 414; Harris V. State, 114 Ga. 436, 40 S. E. 315; Caldwell v. State, 101 Ga. 557, 39 S. E.

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special act, which by its terms undertook to prohibit the sale of all spirituous or intoxicating liquors within the limits of a designated county, was obnoxious to the above provision, there being a general law of force in the State rendering lawful sales of domestic wines in any county of the State in quantities of not less than one quart, by the manufacturers of the same;20 and a local act applying to Harris County requiring a special tax of a liquor dealer in order to register and requiring an applicant for license to sell liquor in that county to obtain the consent of two-thirds of the residents in three miles of where he proposed to carry on business, was held to contravene the general law on the subject of the manner of ob taining liquor licenses and to be unconstitutional ;31 and special acts creating "school districts" were held to be void as being in contra vention of the general law embraced within 1338, 1808 of the Code of 1882 ; 22 and that part of the Act of 1895, creating the City Court of Wilkes County, which provides that county officers shall pay into treasury a certain sum as hire of convicts to be paid to the officers of court, is void as being contrary to the general law for the control and management of convicts. 23
General subject matter may be divided and special legislation made to apply to particular phase of the subject, although another phase of the subject may be provided for by general law; hence municipal corporation may forbid the keeping within its corporate limits any intoxicating liquors for unlawful sale, but it has no power to adopt an ordinance which prohibits the keeping of liquors which cannot lawfully be sold and also wines which under the general law may be sold under certain prescribed terms and re strictions ; 24 and there being no general law whereby the sale of intoxicating liquors could be had by means of dispensaries, an act providing for a dispensary for a designated county is not uncon stitutional ; 25 nor when a dispensary has been established, is an act prohibiting the sale of intoxicating liquors "otherwise than

20. Papworth v. State, 103 Ga. 36, 31 S. E. 402; Crabb 11. State, 88 Ga. 584, 15 S. E. 455; Tinsley v. State, 109 Ga. 822, 35 S. E. 303; Edwards v. State, 133 Ga. 544, 51 S- E. 630.
21. Smith v. State, 90 Ga. 133, 15 S- E. 682. 22. Barber v. Alexander et al., 120 Ga. 30, 47 S. E. 580; Sellers et al. v. Cox et al., 127 Ga. 346, 56 S. E. 284. 23. Binns v. Ficklin, 130 Ga. 378, 60 S. E. 1051; Pulaski County V. DeLacy, 114 Ga. 583, 40 S. E. 741. 24. Duren v, Stephens, 136 Ga. 496, 54 S. E. 1045. 25. Plumb v. Christie, 103 Ga. 687, 30 S. E. 759.

493]

AMENDED CONSTITUTION OF 1877. [1136

by such dispensary" unconstitutional because it deprives the mu nicipal authorities of the city in which it is established of their pre-existing power to grant liquor licenses.
No general law having been enacted upon the subject of the powers, duties and jurisdiction of county commissioners, and the Constitution not requiring the General Assembly to pass such a law, the Act of December 20, 1900, creating a Board of County Commissioners for Douglas County, and the Act of July 30, 1903, amendatory thereof were not unconstitutional ;26 nor the Act creat-

municipalities; hence, a subsequent act authorizing establishment of municipal school system in a certain town and providing for issuing bonds was not unconstitutional as a special act in regard to matters covered by general Act of 1905, as amended by said Act of 1906. 28
City courts, being expressly excepted by the constitution from the requirement as to uniformity in jurisdiction, powers and procedure, and the provision of the Code for the return of the warrant to dispossess a tenant and the counter affidavit not vest ing exclusive jurisdiction of such an issue in the Superior Court, the act creating- the city court of Vienna could constitutionally confer on such a court jurisdiction of such an issue ;29 nor is the act approved September 22, 1881, to establish a city court in the county of Richmond, which makes the fees of the solicitor of that court wbich may become due to him as insolvent costs, a part of
26. Sayer v. Brown, 119 Ga. 543, 545, 46 S. E. 649. 27. Phinizy v. Eve, 108 Ga. 360, 33 S- E. 1007. 28. Farmer v. Mayor & Council of Thomson, 133 Ga. 94. 29. McDonald v. Vaughan, 130 Ga. 398, 60 S. E- 1060. 30. Adam, County Treasurer, v. Cohen, Solicitor, 84 Ga. 725, 11 S. E. 895.

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accused, in cases falling within the jurisdiction of a designated city court shall not have the right to demand indictment, is valid and constitutional.31
Section 793 of the political code of 1882, which provides that councilman shall not hold other municipal office is contravened by special act of December 20, 1899, creating a new charter for a designated city and providing" that two councilmen should be elected as members of the board of water commissioners -^ and since the adoption of the present constitution it has not been within the power of the General Assembly to empower the municipal court of any town or city to punish persons for any acts which are in dictable and punishable as misdemeanors ;33 hence, the town of Rutledge could not be authorized to punish one for selling liquor without license ;34 nor can the municipal authorities of any city of this State summarily compel the abatement of anything as a nuisance save such things as are by the common or statute law declared to be nuisances per se, without reasonable notice to the person against whom the charge of maintaining the nuisance is brought and affording him a hearing for the purpose of de termining whether the thing complained of is, or is not, a nuisance;35 and the General Assembly having, by the general tax act, expressed and established the general policy of the State with reference to the existence of "locker clubs," a municipal ordinance inconsistent with the general policy of the State is void.36
A law merely declaratory of what was already the law is not such special legislation as is unconstitutional because contrary to general law,37 and a tax law, general in the title and in the enacting clause, is not made a special law by a proviso which exempts from its operations any county which has a board for equalizing taxes under any special act, there being, in fact, no county having such a board by any special act which is not void because of its conflict with the Constitution, hence the Act of August 14, 1891, providing for a board of equalization of taxes is not unconstitutional.38
31. Gordon v. State, 102 Ga. 673, 29 S. E- 444. 32. Jones v. McCaskill, 113 Ga. 453, 37 S. E. 724. 33. Grant v. Camp, 105 Ga. 428, 31 S. E. 429. 34. Aycock v. Town of Rutledge, 104 Ga. 533, 30 S. E- 815. 35. W. & A. R. R. Co. -v. Atlanta, 113 Ga. 537, 38 S. E. 996. 36. WHght v. Mayor & Council of MacoO, 5 Ga. App. 750, 64 S. E. 807. 37. Cook v. Equitable Bldg. & Loan Assn., 104 Ga. 815 (4), 30 S. E911. 38. Stewart v. Collier, 91 Ga. 117, 118, 17 S. E. 379.

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AMENDED CONSTITUTION OF 1877. [ 1136

General law fixing the rate of interest to be charged by all per sons, the General Assembly coulcl not, by a provision in a special charter of a banking institution, authorize it to charge a rate of interest higher than atithorized by the general law of the State;39 nor could the General Assembly provide for holding a bond elec tion by any other method than that provided by the general law ;40 and the Constitution making general provision as to the venue of all suits, the act approved November 12, 1889, for the lease of the Western and Atlantic Railroad could not authorize the bringing of a suit in Cobb County for an injviry done in Fulton.41
The General Assembly was not deprived of the power to charter a railroad company by special act, by its enactment of the general railroad law of 1892.42
Prior to the Constitution of 1877, the legislature was not pro hibited from enacting special laws for particular localities, varying or changing a general law, hence the Act of March 2, 1875, fixing the compensation of the treasurer of Harris County at a stated amount, there being nothing in the Constitution of 1868 pro hibiting the enactment of special laws in cases for which provision had been made by an existing general law, and, the act not being inconsistent with the Constitution of 1877, was kept of force by it;43 but an amendatory law passed after the adoption of the Con stitution of 1877, which puts into operation a law passed before the Constitution of 1877, which when passed was within the con stitutional power of the legislature to pass it, but which left it discretionary with the county commissioners whether they would put the law into effect, and which amendatory act made it mandatory upon them to put the law into effect, and the operation of which was, at the time of the passage of the amendatory act, contrary to the general law of the State as to working convicts, was held to be unconstitutional and void ;44 and the focal act ap proved February 29, 1876, providing for the consolidation of the county treasurer of Cobb County with the office of the clerk of the

39. Atlanta Savings Bank v. Spencer, 107 Ga. 629, 33 S- E. 878. 40. Elliott v. Gammon, et al., Corns., 76 Ga. 766; County of Dougherty v. Boyd, 71 Ga. 484. 41. Le Croix v. W. & A. R. R. Co., 118 Ga. 98, 44 S- E. 840. 42. Hawkinsville & Fla. Rwy. Co. v. Waycross Airline R. R. Co., 114 Ga. 239, 39 S. E. 844. 43. Moore -v. Houston Co., 128 Ga. 187, 57 S. E. 236. 44. Houston County v. Kitlen, 76 Ga. 836.

1137 ] AMENDED CONSTITUTION OF 1877.

[ 496

that, under the Constitution of 1868, the General Assembly ,.-- without power to expressly abolish the office of county Treasurer, or to accomplish the same result by depriving the treasurer of the emoluments of his office and transfer the duties thereof to the clerk.* 5
1137 (6392). Par. 2. WHAT ACTS VOID. Legis lative acts in violation of this constitution, or the Constitu tion of the United States are void, and the judiciary shall so declare them.
Cross References: 53 (4), 245, 317, 373, 456, 561, 681, 850.
See notes to 1134, 1196.
The power to pass upon the constitutionality of a statute is one necessarily belonging to every grade of magistracy, from the highest to the lowest, 1 and the power of testing an act of the legislature by comparison with the constitution being one inherently residing in the courts, it is unnecessary for the Act itself to recite such power. 3
But the legislature has power to pass all acts not forbidden by, nor obnoxious to, the constitution,3 and comity to the legislature requires courts not to dispose of case on constitutional grounds when possible to avoid it,4 and the courts will not declare a law unconstitutional until it is attempted to be put into operation,5 except where the constitutional rights of a citizen and taxpayer are sought to be invaded by an attempt to make an unconstitutional
45. Massenburg- v. Corns, of Bibb County, 96 Ga. 614, 33 S. E. 998; Hall v. Burks, 96 Ga. 623, 24 S. E. 349; Morris v. Glover, 131 Ga. 751, 49 S. E. 786.
1. Beall et al. v. Beall, 8 Ga. 217; Calhoun v. McLendon, 43 Ga. 405; Winter v. Jones, 10 Ga. 190.
2. Coleman v. Board of Education, 131 Ga. 647, 648, 63 S. E. 41. 3. Churchill et al. v. Walker, et al., 68 Ga. 681; Allison v. Thomas, et al., 44 Ga. 649. 4. Board of Education of Glynn County v. Mayor, etc., of Brunswick et al., 73 Ga. 353; Jones v. L. & N. R. R. Co., 133 Ga. 14, 63 S. E. 627; Armstrong v. Jones, 34 Ga. 310; Futretl v, George, 135 Ga. 268, 69 S. E. 182. 5. Scoville et al, v. Calhoun, Ord., 76 Ga. 264, 270; Carswell v. Wright, 133 Ga. 715; Tolbert v. Long, 134 Ga. 294, 67 S. E. 826.

497]

AMENDED CONSTITUTION OF 1877. [ 1137

or inapplicable law operative through the means of a popular elec tion,6 and when a law is attacked as unconstitutional, the burden is upon him who makes the attack to make it clear what particular constitutional provision is offended, and this cannot be done upon implication or conjecture nor because "contrary to principles of justice and equity," or "spirit of our institutions,"7 and constitu tional question cannot be first raised upon writ of error. 8 And when the courts are called upon, in a proper case, to pass upon the constitutionality of a law, it will be presumed to be constitutional,9 and all doubts will be resolved in favor of its constitutionality, 10 and ambiguous provisions will, if possible, be given that meaning which is consistent with the constitutionality of the law, 11 and be fore it will be declared unconstitutional, it must clearly appear that the law plainly and palpably conflicts with the constitution, 12 and then, if only part of the law is unconstitutional, the remaining part will be upheld if, possible, 13 and if the main purpose of the act is not interfered with by the unconstitutional requirements therein, it will not render the whole act unconstitutional ; 14 but if

6. Mayor of Macon -v. Hughes, 110 Ga. 795, 36 S. E. 347; Town of Roswell v. Ezzards, 128 Ga. 43, 57 S. E. 114; Town of Maysville v. Smith, 132 Ga. 316, 64 S. E. 131; County of DeKalb v. Atlanta, 132 Ga. 737, 65 S. E. 72; Tolbert v. Long, 134 Ga. 294, 67 S. E. 826; Cohen v. State, 7 Ga. App. 5, 65 S. E. 1096; Parker-Hansel Co. v. Schuler, 7 Ga. App. 396, 66 S. E- 1038; Sims v. State, 7 Ga. App. 856, 68 S. E. 493; Loque v. Hancock Co., 8 Ga. App. 208, 68 S. E. 866.
7. Gray v. McLendon, 134 Ga. 226, 67 S. E. 839; Macon, etc., Rwy. Co. v. Little, 45 Ga. 371; Nicholas v. Hovenor, 42 Ga. 516; Black v. Cohen, 52 Ga. 621. See also Loque v. Hancock Co., 8 Ga. App. 208, 68 S. E866.
8. Cooper v. National Fertilizer Co., 132 Ga. 529, 64 S- E- 650; Bearden v. Holland, 134 Ga. 70, 67 S- E. 432.
9. Churchill et al. v. Walker, et al., 68 Ga. 661; Beall, Admx., et al. it. Beall et al., 8 Ga. 210; Carey et al. v. Giles, Receiver, 44 Ga. 649; Thomp son z>. Sprague, Soulle & Co., 69 Ga. 49; AlUson v. Thomas, 44 Ga. 649; Lee v. Tucker, 130 Ga. 43, 60 S- E 164.
10. Turman v. Cargill & Daniel, 54 Ga. 663.
11. Smith & Co. -u. Evans, 125 Ga. 109, 53 S. E. 589; Georgia Fire In surance Co. v. Cedartown, 134 Ga. 87, 67 S- E- 410.
12. McMahon et al. v. Mayor, etc., of Savannah, 66 Ga. 222; MeAr thur v. State, 69 Ga. 444; Wellborn v. Estes, 70 Ga. 390.
13. Scoville et al. v. Calhoun, Ord., 76 Ga. 263; McArthur v. State, 69 Ga. 424, 444; Savannah Electric Co. v. Tuck, 132 Ga. 49, 63 S. E. 800; Pearson v. Bass, 132 Ga. 117, 63 S. E. 798.
14. Irvin et al. v. Gregory, et al., 68 Ga. 605, 13 S. E. 130; Carswell v, Wright, 133 Ga. 716, 66 S- E. 905.
--32

1138] AMENDED CONSTITUTION OF 1877.

[498

the objectionable part is so connected with the general scope of the statute that, should it be stricken out, effect cannot be given to the legislative intent, the rest of the statute must fall with it. 15 An unconstitutional act of the legislature is not a law, and no court having a proper regard for its own dignity and responsibility would enforce it. 16 With reference to municipal ordinances the distinc tion is whether the ordinance operates as a total exclusion or deprivation of the rights of the citizen or whether it merely regu lates the enjoyment of it for the benefit of the inhabitants of the city. 17

SECTION 5.

GOVERNMENTAL, RIGHTS OF THE PEOPLE.
1138 (6393). Far. 1. STATE BIGHTS. The people of the state have the inherent, sole and exclusive right of regulating their internal government, and the police thereof, and of altering and abolishing their constitution whenever it may be necessary to their safety and happiness.
Cross References: 89, 90, 97, 127, 851.
Historical Note: As originally proposed this paragraph contained the words "form of Government" after the word "constitution," but it was stricken out on amendment. Small's Report, 98, 99, 100.
The people of a municipal corporation have not the inherent right to name their municipal officers, and there is no constitutional restriction upon the power of the General Assembly to name the number and prescribe the authority and mode of appointing the officers who shall administer the affairs of a municipal corporation created by it,1 and the General Assembly can itself select the offi cers of such a municipality instead of allowing them to be elected by the people of the municipality.2

15. Elliott v. State, 91 Ga. 696, 17 S- E. 1004; Futrell v. George, 135 Ga. 265, 69 S. E. 187.
16. Boston v. Cummins, 16 Ga. 102; Wellborn v. Estes, 70 Ga. 390; Green v. Hutchinson, 128 Ga. 379, 57 S. E. 353.
17. Nagle v. City Council of Augusta, S Ga. 546; Badkins v. Robinson, 53 Ga. 613; City of Dawson v. Waterworks, 106 Ga. 606, 32 S. E. 907.
1. Mayor of. Americus v. Perry, 114 Ga. 876, 40 S. E- 1004. 2. Lambert v. Norman, 119 Ga. 351, 46 S- E. 433; Mayor of Americus v. Perry, supra.

499] AMENDED CONSTITUTION OF 1877. [ 1139-1140
"Local option law" regulating the sale of intoxicating liquors is a valid exercise of the police power,3 and so is an act making it a misdemeanor to sell seed cotton at night ;4 and the business of plumbing is so related to the public health that the regulation of it is a legitimate subject of the police power, but the right of every citizen to labor at any and all common and honest employment is of such high importance that any statute or ordinance placing restrictions thereon will be strictly construed.5
Taxation of occupation not prohibited by the Constitution of the United States or of this State, hence, a tax laid upon an "emigrant agent" is valid;6 but a law imposing a tax upon the agents of pack ing houses, which is unreasonable, excessive and discriminating, cannot be enforced.7
1139 (6394). Par. 2. ENUMERATION OP BIGHTS NOT DENY OTHERS. The enumeration of rights herein contained as a part of this Constitution shall not be con strued to deny to the people any inherent rights which they may have hitherto enjoyed.
Cross References: 466, 569, 852.
See notes to 1126.
There is no inherent right, to make, sell, barter or give away intoxicating liquors.1
ARTICLE II.
ELECTIVE FRANCHISE.
Small's Report, 26, 36, 38, 51, 60-63, 65-73.
SECTION I.
QUALIFICATION OP VOTERS.
1140 (6395). Par. 1. ELECTIONS, BY BALLOT, AND VOTERS MUST BE REGISTERED. After the year
3. Menken v. City of Atlanta, 78 Ga. 67S, 2 S- E. 559. 4. Bazemore v. State, 121 Ga. 620, 49 S. E. 70. 5. Felton v. City of Atlanta, 4 Ga. App. 183, 61 S. E. 27. 6. Williams v. Fears, 110 Ga. 595, 35 S. E. 699. 7. Mayor & Alderman of Savannah v. Cooper, 131 Ga, 671, 63 S. E. 138. 1. Whitley v. State, 134 Ga. 759, 68 S. E. 716.

1141-1142] AMENDED CONSTITUTION OF 1877. [500 1908, elections by the people shall be by ballot, and only those persons shall be allowed to vote who have been first registered in accordance with the requirements of law.
Cross References: 18, 28, 63, 108, 126, 247, 336, 402, 542, 639, 684, 854, 1094.
It of the election, rendered it void.2 1141 (6396). Par. 2. WHO SHALL BE AN ELECTOR ENTITLED TO REGISTER AND VOTE. Every male citizen of this State who is a citizen of the United States, twenty-one years old or upwards, not laboring under any of the disabilities named in this Article, and possessing the qualifications provided by it, shall be an elector and en titled to register and vote at any election by the people: Provided, that no soldier, sailor, or marine in the military or naval service of the United States shall acquire the rights of an elector by reason of being stationed on duty in this State,
Cross References: 18, 38, 63, 108, 126, 247, 336, 402, 542, 639, 684, 854, 1094.
Small's Report, 60-70, 75, 76.
1142 (6397). Par. 3. WHO ENTITLED TO REG ISTER AND VOTE. To entitle a person to register and vote
1. Ivambert V. Norman, 119 Ga. 351. 46 S. E. 433. 2. Howell et al. . Pate et al.. 119 Ga. 537, 46 S. E. 537

501 ]

AMENDED CONSTITUTION OF 1877. [ 1143

at any election by the people he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election, and shall have paid all taxes which may have been required of him since the adoption of the Constitution of Georgia of 1877, that he may have had an opportunity of paying agreeably to law. Such payment must have been made at least six months prior to the election at which he offers to vote, except when such elections are held within six months from the expiration of the time fixed by law for the payment of such taxes.
Cross References: 18, 38, 63, 108, 126, 247, 336, 402, 542, 639, 684, 854, 1094.
Smalls Report (Payment of taxes), 65.
The qualifications of an elector are set forth, in the Constitution, and the General Assembly cannot prescribe other qualifications, but it provides the method and prescribes regulations for the registra tion of voters, 1 but reasonable opportunity must be given for regis tration. 3 Registration adds no qualification to voters, but only serves to identify them as persons qualified to vote ;3 and a legis lative requirement that voter shall vote at the court ground of his militia district, does not infringe the right of the citizen to exer cise the elective franchise ;4 but while the legislature has the right to authorize and require the registration of voters in a town or city the regulations prescribed must be "reasonable and impartial and calculated to facilitate and serve the constitutional right of suffrage and not to subvert, or injuriously, unreasonably or un necessarily restrain, impair or impede the right," and where au thority is given to registration for one purpose, it cannot be extended to other purposes. 5

1143 (6398). Par. 4. QUALIFICATIONS OF ELECT ORS. Every male citizen of this State shall be entitled to register as an elector, and to vote in all elections in said

1. Cole v. McLendon, 109 Ga. 183; McMahon et al. -*. Mayor, etc., of Savannah, 66 Ga. 217, 222.
2. Stephens et al. -u. Mayor and Council of Albany, 84 Ga. 630, 11 S. E. 150.
3. Mayor & Council of Madison v. Wade et al., 88 Ga. 699, 16 S. E. 31. 4. Dyson, Ord., v. Pope, 71 Ga. 206. 5. Stephens v. Mayor, Albany, 84 Ga. 631, 633, 11 S. E. 150.

1143 ] AMENDED CONSTITUTION OF 1877.

[ 502

State, who is not disqualified nnder the provisions of Sec tion 2, of Article 2, of this Constitution, and who possesses the qualifications prescribed in paragraphs 2 and 3 of this Section or who will possess them at the date of the election occurring next after his registration, and who in addition thereto conies within either of the classes provided for in the five following subdivisions of this paragraph:
1. All persons who have honorably served in the land or naval forces of the United States in the Revolutionary War, or in the War of 1812, or in the War with Mexico, or in any War with the Indians or in the War between the States, or in the War with Spain, or who honorably served in the land or naval forces of the Confederate States or of the State of Georgia in the War between the States; or,
2. All persons lawfully descended from those embraced in the classes enumerated in the subdivision next above; or,
3. All persons who are of good character and understand the duties and obligations of citizenship under a republican form of government; or,
4. All persons who can correctly read in English language any paragraph of the Constitution of the United States or of this State and correctly write the same in the English language "when read to them by any one of the registrars, and all persons who solely because of physical disability are unable to comply with the above requirements but who can understand and give a reasonable interpretation of any paragraph of the Constitution of the United States or of this State that may be read to them by any one of the registrars; or,
5. Any person who is the owner in good faith in his own right of at least forty acres of land situated in this State, upon which he resides, or is the owner in good faith in his own right of property situated in this State and assessed for taxation at the value of $500.
Cross References: 18, 38, 63, 108, 126, 347, 336, 402, 542, 639, 684, 854, 1094.
After adoption of the foregoing amendment adding new qualifi cations of electors, an act providing for a bond election and that

503 ] AMENDED CONSTITUTION OF 1877. [ 1144-1146
all persons who had been legally qualified at a preceding election might vote at said bond election, such prior election having been before the adoption of this amendment adding new qualifications, was unconstitutional, for the reason that voters could not be quali fied voters after such amendment unless qualified in accordance with it. 1
1144 (6399). Par. 5. REGISTRARS SHALL PRE PARE ROSTER. The right to register tinder subdivisions 1 and 2 of paragraph 4 shall continue only until January 1st, 1915. But the registrars shall prepare a roster of all per sons who register under subdivisions 1 and 2 of paragraph 4, and shall return the same to the clerk's office of the superior court of their counties, and the clerks of the su perior court shall send copies of the same to the secretary of State, and it shall be the duty of these officers to record and permanently preserve these rosters. Any person who has been once registered under either of the subdivisions 1 and 2 of paragraph 4 shall thereafter be permitted to vote: Provided, he meets the requirements of paragraphs 2 and 3 of this Section.
1145 (6400). Par. 6. APPEAL FROM DECISION OF REGISTRARS. Any person to whom the right of regis tration is denied by the registrars upon the ground that he lacks the qualifications set forth in the five subdivisions of paragraph 4 shall have the right to take an appeal, and any citizen may enter an appeal from the decision of the reg istrars allowing any person to register under said subdi visions. All appeals must be filed in writing with the registrars within ten days from the date of the decision complained of, and shall be returned by the registrars to the office of the clerk of the superior court to be tried as other appeals.
1146 (6401). Par. 7. JUDGMENT OF FORCE PENDING APPEAL. Pending an appeal and until the final decision of the case, the judgment of the registrars shall remain in full force.
1. Tolbert V. Long, 134 Ga. 292, 67 S. E. 836.

1147-1150] AMENDED CONSTITUTION OF 1877. [ 504
1147 (6402). Par. 8. ONLY QUALIFIED VOTER CAN PARTICIPATE IN PRIMARY. No person shall be al lowed to participate in a primary of any political party or a convention of any political party in this State who is not a qualified voter.
Cross Reference: 126.
1148 (6403). Par. 9. MACHINERY FOR REGIS TRATION. The machinery provided by law for the regis tration, of force October 1st, 1908, shall be used to carry out the provisions of this Section, except "where inconsistent with same; the legislature may change or amend the regis tration laws from time to time, but no such change or amendment shall operate to defeat any of the provisions of this Section.
SECTION 2.
REGISTRATION.
1149 (6404). Paragraph 1. REGISTRATION; WHO DISFRANCHISED. The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote, or hold any office, or appointment of honor or trust in this State, to wit: (1) Those who shall have been convicted, in any court of competent jurisdiction, of treason against the State, of embezzlement of public funds, malfeasance in office, bribery, or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned; (2) idiots and insane persons.
Cross References: 349, 688.
Small's Report, 73. See notes to 1126.
SECTION 3.
VOTERS' PRIVILEGE.
1150 (6405). Paragraph 1. PRIVILEGE OF ELECT ORS. Electors shall, in all cases except for treason, felony, larceny, and breach of the peace, be privileged from arrest

505] AMENDED CONSTITUTION OF 1877. [ 1151-1154
during their attendance on elections, and, in going to and returning from the same.
Cross References: 248, 689, 856, 1094.
SECTION 4.
DISQUALIFICATION TO HOLD OFFICE. 1151 (6406). Paragraph 1. HOLDER OF PUBLIC FUNDS. No person who is the holder of any public money, contrary to law, shall be eligible to any office in this State until the same is accounted for and paid into the treasury.
Small's Report, 70.
1152 (6407). Par. 2. DUELLING. No person who, after the adoption of this Constitution, being a resident of this State, shall have been convicted of fighting a duel in this State, or convicted of sending or accepting a challenge, or convicted of aiding or abetting such duel, shall hold office in this State, unless he shall have been pardoned; and every such person shall also be subject to such punishment as may be prescribed by law.
Cross References: 116, 687, 858. Small's Report, 70.
SECTION 5.
SALE OF LIQUORSJ WHEN FORBIDDEN. 1153 (6408). Paragraph 1. SALE OF LIQUORS ON ELECTION DAYS. The General Assembly shaU, by law, forbid the sale, distribution, or furnishing of intoxicating drinks within two miles of election precincts on days of elec tion--State, county or municipal,--and prescribe punish ment for any violation of the same.
Cross References: 690, 859.
Small's Report, 73, 74. See Penal Code (1910), 445, 446. See note 1 to 1271.
SECTION 6.
RETURNS OE ELECTIONS. 1154 (6409). Paragraph 1. ELECTION RETURNS. Returns of elections for all civil officers elected by the peo-

1155] AMENDED CONSTITUTION OF 1877.

[506

pie, who are to be commissioned by the Governor, and also for the members of the General Assembly shall be made to the secretary of State, unless otherwise provided by law.
Cross References: 690, 860.
Historical Note: Mr. Guerrard moved in convention the adoption of an additional section, as follows: "Women, twenty-one years of age and upward, shall be eligible to any office of control or management under the school laws of this state," but it was laid on the table- Small's Report, 75.

ARTICLE III.
LEGISLATIVE DEPARTMENT.
SECTION 1.
LEGISLATIVE POWER, WHERE VESTED.
1155 (6410). Paragraph 1. LEGISLATIVE POWER. The legislative power of the State shall be vested in a Gen eral Assembly, which shall consist of a Senate and House of Representatives.
Cross References: 18, 52(7), 240, 302, 469, 571, 694, 861. Small's Report, 340. See notes to 1124, 1216.
It is not a delegation of the legislative power for the legislature to pass a law to take effect upon the assent of the people, or upon the recommendation of a grand jury, but such laws are conditional laws, to go into operation only upon certain contingencies. The legislative power creates the law; the assent of the people or the recommendation of the grand jury determines the existence of the condition. 1 Nor was the appointment of commissioners to codify the laws a delegation of legislative power, the adoption of the Code, and not the compilation being the legislative act ; 2 nor was it an unconstitutional delegation of legislative power to clothe the

1. Mayor & Council of City of Brunswick et al. v. Finney et al., 54 Ga. 325; Caldwell et al. v. Barrett et al., Commissioners, 73 Ga. 604; Haney et al. v. Commissioners of Bartow Co., 91 Ga. 770, 18 S. E. 38; Murphy v. Educational Board of Burke County, 71 Ga. 856.
2. The Western & Atlantic Railroad Company v. Young, 83 Ga. 512, 10 S- E. 197.

507] AMENDED CONSTITUTION OF 1877. [ 1156-1158
railroad commission -with the power to make rules governing rail road companies as to rates, etc.3
Municipal corporations form an exception to the rule which forbids the legislature to delegate any of its legislative powers to subordinate subdivisions.4
Private agreement between two persons cannot affect the lien of a third person not a party to the agreement, for the reason that they cannot make a law for other persons by their agreement, the right to make laws being exclusively vested in the General As sembly.5
SECTION 2.
SENATORIAL DISTRICTS. 1156 (6411). Paragraph 1. NUMBER OF SENA TORS, ETC. The Senate shall consist of forty-four mem bers. There shall be forty-four senatorial districts, as now arranged by counties. Each district shall have one senator.
Cross References: 303, 344, 354, 434, 475, 699, 863.
Small's Report, 341-352. See 6411, Code 1910.
1157 (6412). Par. 2. DISTRICTS CHANGED, HOW. The General Assembly may change these districts after each census of the United States: Provided, that neither the number of districts nor the number of senators from each district shall be increased.
Cross References: 4S9, 699, 863.
SECTION 3.
COUNTY REPRESENTATION. 1158 (6413). Paragraph 1. NUMBER OF REPRE SENTATIVES. The House of Representatives shall consist of not more than 184 representatives, apportioned among the several counties as follows, to wit: To the six counties
3. Smith 11. Ga. R. R. Co., 70 Ga. 694; Southern Rwy. Co. v. Melton, 133 Ga. 277, 65 S. E. 665; 6 Ga. App. 807, 65 S. E. 1100.
4. McMahon et al. v. Mayor, etc., or Savannah, 66 Ga. 224. 5. Central Georgia I^and and Lumber Co. tr. Exchange Bank, 101 Ga. 353, 38 S. E. 357.

1159-1161] AMENDED CONSTITUTION OF 1877. [SOS
having the largest population, viz: Chatham, Bibb, Fulton, Floyd, Richmond, and Thomas, three representatives each; to the twenty-six counties having the nest largest popula tion, viz: Bartow, Bulloch, Burke, Cobb, Carroll, Coweta, DeKalb, Decatur, Dooly, Elbert, Emanuel, Gwinnett, Hall, Houston, Jackson, Laurens, Lowndes, Meriwether, Monroe, Muscogee, Sumter, Tattnall, Troup, Walton, Washington, and Wilkes, two representatives each, and to the remaining counties one representative each.
Cross References: 79, 80, 81, 240, 346, 358, 439, 435, 479, 580, 703, 864, 1088, 1095.
Small's Report, 341-352.
1159 (6414). Par. 2. CHANGED, HOW. The above apportionment shall be changed by the General As sembly at its first session after each census taken by the United States government, so as to give the six counties having the largest population three representatives each; and to the twenty-six counties having the next largest popu lation two representatives each; but in no event shall the aggregate number of representatives be increased.
Small's Report, 364.
SECTION 4.
THE GENERAL ASSEMBLY.
1160 (6415). Paragraph 1. TERM OF MEMBERS. The members of the General Assembly shall be elected for two years, and shall serve until their successors are elected.
Cross References: 32, 240, 307, 428, 571, 695, 866.
Small's Report, 365.
1161 (6416). Par. 2. ELECTION, WHEN. The first election for members of the General Assembly, under this Constitution, shall take place on the first Wednesday in December, 1877; the second election for the same shall be held on the first Wednesday in October, 1880, and sub sequent elections biennially on that day, until the day of election is changed by law.
Small's Report, 365, 366, 369, 370.

509] AMENDED CONSTITUTION OF 1877. [ 1162-1165

1162 (6417). Par. 3. MEETING OF THE GEN ERAL ASSEMBLY. The first meeting of the General As sembly, after the ratification of this Constitution, shall be on the fourth Wednesday in October, 1878, and annually thereafter on the same day, until the day shall be changed by law. No session of the General Assembly shall continue longer than fifty days: Provided, that if an impeachment trial is pending at the end of fifty days, the session may be prolonged till the completion of said trial.
Cross References: 60, 68, 133, 224, 241, 312, 348, 363, 428, 439, 470, 572, 868, 1073, 1078.
Small's Report, 365, 373.
Historical Note: The General Assembly met annually from the adop tion of the Constitution of 1777 until 1841; biennially from 1841 to 1859; annually from 1857 to 1877; biennially from 1877 to 1892, and has met annually since the last date.

1163 (6418). Par. 4. QUORUM. A majority of each house shall constitute a quorum to transact business, but a smaller number may adjourn from day to day and compel the presence of its absent members, as each house may provide.
Cross References: 123, 313, 348, 439, 470, 696, 869.
Historical Note: Adopted from Art. 1; Sec. 5 of Constitution of United States; Small's Report, 373.

1164 (6419). Par. 5. OATH OF MEMBERS. Each senator and representative, before taking Ms seat, shall take the following oath, or affirmation, to wit: "I will support the Constitution of this State, and of the United States; and on all questions and measures which may come before me, I will so conduct myself as will, in my judgment, be most conductive to the interests and prosperity of this State."
Cross References: 369, 491, 592, 718, 870.

1165 (6420). Par. 6. MENT.
Cross References: 1073, 1074.

REPEALED BY AMEND

1166-1168] AMENDED CONSTITUTION OF 1877. [510
1166 (6421). Par. 7. ELIGIBILITY; APPOINT MENTS FORBIDDEN. No person holding a military commission, or other appointment or office having any emolument or compensation annexed thereto, under this State or the United States, or either of them, except jus tices of the peace and officers of the militia, nor any de faulter for public money or for any legal taxes required of him shall have a seat in either house; nor shall any senator or representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Sen ate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected.
Cross References: 249, 255, 473, 573, 697, 872.
Small's Report, 373.
A member of a county board of education being an officer of the State is ineligible to membership in the General Assembly. Election to that office does not vacate his membership on the Board of Education, but membership on such board renders him ineligible as a member of the General Assembly.1
1167 (6421). Par. 8. REMOVAL VACATES. The seat of a member of either house shall be vacated on his removal from the district or county from which he was elected.
Cross References: 698, 873.
SECTION 5.
THE SENATE.
1168 (6422). Paragraph 1. QUALIFICATIONS OF SENATORS. The Senators shall be citizens of the United States, who have attained the age of twenty-five years, and who shall have been citizens of the State for four years, and for one year resident of the district from which elected.
Cross References: 16, 17, 61, 73, 79, 81, 82, 304, 355, 425, 476, 577, 700, 874.
Small's Report, 373.
1. McWilliams v. Neal et al., 130 Ga. 733, 61 S. E. 7S1.

511 ] AMENDED CONSTITUTION OF 1877. [ 1169-1172
1169 (6423). Par. 2. PRESIDENT. The presiding officer of the Senate shall be styled the President of the Sen ate and shall be elected viva voce from the Senators.
Cross References: 305, 477, 578, 701, 875.
1170 (6424). Par. 3. IMPEACHMENTS. The Sen ate shall have the sole power to try impeachments.
Cross References: 287, 306, 478, 579, 702, 876.
The provision of law for the suspension and removal of a rail road commissioner is not violative of this provision. 1
1171 (6425). Par. 4. TRIAL OF IMPEACHMENTS. When sitting for that purpose, the members shall be on oath or affirmation, and shall be presided over by the Chief Justice or the Presiding Justice of the Supreme Court. Should the Chief Justice be disqualified, the Senate shall select the Judge of the Supreme Court to preside. No per son shall be convicted without the concurrence of two-thirds of the members present.
Cross References: 478, 579, 702, 877. Small's Report, 374.
1172 (6416). Par. 5. JUDGMENTS IN IMPEACH MENTS. Judgments, in cases of impeachments, shall not extend further than removal from office, and disqualification to hold and enjoy any office of honor, trust or profit within the State; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punish ment according to law.
Cross References: 377, 478, 579, 702, 877. Small's Report, 373.
1. Gray v. McLendon, 134 Ga. S26.

1173-1176] AMENDED CONSTITUTION OF 1877. [512
SECTION 6. THE HOUSE op REPRESENTATIVES. 1173 (6427). Paragraph 1. QUALIFICATIONS OF REPRESENTATIVES. The representatives shall be citizens of the United States, who have attained the age of twentyone years, and who shall have been citizens of this State for two years, and for one year residents of the counties from which elected.
Cross References: 9, 18, 82, 244, 308, 359, 362, 436, 581, 705, 879. Small's Report, 373.
1174 (6428). Par. 2. SPEAKER. The presiding of ficer of the House of Representatives shall be styled the Speaker of the House of Representatives, and shall be elected viva voce from the body.
Cross References: 18, 41, 245, 309, 470, 482, 583, 706, 880.
1175 (6429). Par. 3. POWER TO IMPEACH. The House of Representatives shall have the sole power to im peach all persons who shall have been, or may be in office.
Cross References: 310, 361, 482, 583, 707, 881. Small's Report, 374. See note to 1170.
SECTION 7.
ENACTMENT OF LAWS. 1176 (6430). Paragraph 1. ELECTIONS, RETURNS, ETC., DISORDERLY CONDUCT. Each house shall be the judge of the election, returns, and qualifications of its mem bers, and shall have power to punish them for disorderly

513] AMENDED CONSTITUTION OE 1877. [ 1177-1178
behavior, or misconduct, by censure, fine, imprisonment, or expulsion; but no member shall be expelled except by a vote of two-thirds of the house to which he belongs.
Cross References: 314, 364, 484, 585, 709, 882. Compare Art. 1, 8, Constitution of United States; Small's Report, 374.
1177 (6431). Par. 2. CONTEMPTS, HOW PUN ISHED. Each house may punish by imprisonment, not ex tending beyond the session, any person, not a member, who shall be guilty of a contempt by any disorderly behavior in its presence, or who shall rescue, or attempt to rescue, any person arrested by order of either house.
Cross References:
1178 (6432). Par. 3. PRIVILEGE MEMBERS. The members of both houses shall be free from arrest during their attendance on the General Assembly, and in going thereto or returning therefrom, except for treason, felony, larceny, or breach of the peace; and no member shall be liable to answer in any other place for anything spoken in debate in either house.
Cross References: 220, 365, 486, 587, 711, 884.

1179-1182] AMENDED CONSTITUTION OF 1877. [514
1179 (6433). Par. 4. JOURNALS. Each house shall keep a journal of its proceedings, and publish it immediately after its adjournment.
Cross References: 18, 366, 487, 588, 712, 885, 886. See Watson, U. S. Constitution, vol. 1, 293; Small's Report, 374.
This provision does not require the recording in the Journal of the full title of a bill. In describing- the various bills read and passed, it is only necessary that the journal indicate by appropriate description on the general nature of the measure so as to identify it. 1
1180 (6464). Par. 5. WHERE KEPT. The origi nal journal shall be preserved, after publication, in the office of the secretary of state, but there shall be no other record thereof.
Cross References: 487, 588, 712, 886. Small's Report, 374.
1181 (6435). Par. 6. YEAS AND NAYS, WHEN TAKEN. The yeas and nays on any question shall, at the desire of one-fifth of the members present, be entered on the Journal.
Cross References: 366, 487, 493, 593, 712, 717, 887, 893, 902. See Watson, U. S. Constitution, vol. 1, 283; Small's Report, 374.
1182 (6436). Par. 7. BILLS TO BE BEAD. Every bill before it shall pass shall be read three times, and on three separate days, in each house, unless in cases of actual invasion or insurrection but the first and second reading- of each local bill, and bank and railroad charters, shall consist of the reading of the title only, unless said bill is ordered to be engrossed.
Cross References: 83, 346, 368, 488, 589, 713, 888, 1075.
Historical Note: The provisions of this paragraph are practically the same as the long- established method of the English Parliament in the enactment of laws. Cooley's Blackstone Book I, Ch. 2; | 181, 183, 183; Small's Report, 374.
The act adopting the Code of 1895 was not unconstitutional, be-
1. Carswell v. Wright, 133 Ga. 714, 66 S. E- 905.

515]

AMENDED CONSTITUTION OF 1877. [ 1183

cause all the provisions of the code were not read in each house, on three separate days. 1
The above provision is a legislative construction of paragraph IS, of this section, that the legislature was not deprived by the passage of what is known as the "general railroad law" for the incorporation of railroad companies, of the power to grant a special charter to a railroad company by a special act, prior to 1892, when the constitu tional amendment was passed taking from the legislature the power to grant special charters. 3

1183 (6437). Par. 8. ONE SUBJECT-MATTER EX PRESSED. 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.
Cross References: 75, 99, 488, 589, 713, 889.
Historical Note: "The traditional history of this clause is, that it was inserted in the Constitution of 1798, at the instance of General James Jackson, and that its necessity was suggested by the Yazoo Act. That memorable measure of the 17th of January, 1795, as is well known was smuggled through the legislature under the caption of an Act "for the payment of the late state troops," and a declaration in its title of the right of the state to the unappropriated territory thereof "for the protection and support of its frontier settlements." Chief Justice L,umpkin, in Mayor & Alderman of Savannah v. State of Georgia, 4 Ga. 38; Small's Report, 374.
What the Constitution looks to in the provision that "no law shall pass which refers to more than one subject-matter," is unity of pur pose. "It does not mean by one subject-matter only such subjects as are so simple that they cannot be divided into topics, but it mat ters not how many subdivisions there may thus exist in a statute, or how many topics it may embrace, yet if they all can be clearly in dicated by a comprehensive title, such matter can be constitutionally embodied in a single act of the legislature ;" 1 and any instrumen tality provided in a statute in aid of the one great purpose of the act, is not a different subject matter; 2 hence (for example) the act

1. Central of Ga. Railway Company v. State, 104 Ga. 831, 842, 843, 31 S- E. 531.
2. Hawkinsville & Florida Southern Railway Company v. Waycross Air L,ine Railroad Company, 114 Ga. 239, 243, 39 S. E. 844.
1. Central of Ga. Rwy. Co. v. State, 104 Ga. 832, 845, 31 S. E. 531. 2. Hope et al. <u. Mayor, etc., of Gainsville, 72 Ga. 346; Stanley v. State, 135 Ga. 859, 70 S. E. 894.

1183] AMENDED CONSTITUTION OF 1877.

[516

adopting the Code of 1895, did not refer to more than one subjectmatter in the constitutional sense ; 3 and an act to amend the char ter of a city may embody any legislation germane to the general subject of amending the charter of the city; 4 and when "subject" was to amend a certain section of the Code, any amendment to the section was germane, though the amendment contained more than one "object;"5 likewise, the Act of October 28, 1870, entitled "an Act to extend the provision for alimony to the family of the hus band, to provide for the custody of the children, and for other pur poses connected therewith," was not unconstitutional as referring to more than one subject matter, the act referring only to the subject matter, alimony.6
Without attempting to notice specifically the great multitude of cases which have dealt with this provision, it is, perhaps, suffi cient to state the general rule deducible from these cases, which is, that if there be only one general subject matter, in an Act, it is not open to the objection of plurality on account of its entering into details, provided all the parts of the act have a natural connection and relate to the main object of legislation; 7 but if an act em-

3. Central Rwy. Co. v. State, 104 Ga. 833, 845, 31 S. E. 531. 4. Mayor & Council of Macon v. Hughes et al., 110 Ga. 795, 36 S- E. 247; Royal v. Mayor & Council of Cordele, 132 Ga. 135, 63 S. E. 836; Town of Poulan and Atlantic Coast Line R. R. Co., 133 Ga. 605, 51 S. E. 657; "White v. City of Atlanta, 134 Ga. 532, 68 S- E. 103; Smith v. Mayor & Council of Macon, 139 Ga. 237, 58 S- E. 713; Mayor and Coun cil of Americus v. Perry, 114 Ga. 871, 40 S. E. 1004; Stapleton -u. Perry, 117 Ga. 561, 43 S. E. 996. 5. Clay v. Central Railroad & Banking- Co., 84 Ga. 345, 10 S. E. 967. 6. Holleman -v. Holleman, 65 Ga. 479. 7. Wellborne v. State, 114 Ga. 793, 40 S. E. 857; Alien v. Tyson, 50 Ga. 374; Churchill v. "Walker, 68 Ga. 681; Hope v. Gainesvillc, 72 Ga. 246; Smith v. Bohler, 72 Ga. 546; Brown v. State, 73 Ga. 38; Spier v. Morgan, 80 Ga. 581, 5 S. E- 768; Clay v. Central R, R., etc., Co., 84 Ga. 345, 10 S. E. 967; Ga. R. R., etc., Co. v. State, 89 Ga. 597, 15 S. E. 301; Columbus, etc., Rwy. Co. v. Wright, 89 Ga. 574, 15 S. E- 293; McCommons v. English, 100 Ga. 653, 38 S. E. 386; Starnes v. Mutual Loan & Banking Co., 103 Ga. 597, 29 S. E. 453; Brand v. Lawrenceville, 104 Ga. 486, 30 S- E. 954; Central, etc., Rwy. Co. v. State, 104 Ga. 831, 31 S. E- 531; State v. Southern Express Co., 133 Ga. 277, 65 S. E. 282; Nolan v. Central Ga. Power Co., 134 Ga. 301, 67 S. E. 656; Pearson v. Bass, 132 Ga. 117, 121, 63 S- E. 798; Manson v. College Park, 131 Ga. 429, 62 S. E. 278; Maysville v. Smith, 133 Ga. 316, 14 S. E. 131; Carroll v. Wright, 131 Ga. 728, 63 S. E. 260; Richardson v. Macon, 132 Ga. 122, 63 S. E. 790; Christie v. Miller, 128 Ga. 412, 57 S. E. 697; Stanley v. State, 135 Ga. 859, 70 S. E. 894.

517]

AMENDED CONSTITUTION OF 1877. [ 1183

braces several incongruous objects, it will be subject to objection on the ground of plurality.8
The object of the provision that "no law shall pass which refers to more tlian one subject matter" was, first, to insure a separate consideration for every subject presented for legislative action, and, second, in connection with the provision that it should not "contain matter different from what is expressed in the title," was to put the public on full and distinct notice of the subject matter of every law proposed9 and to prevent surprise, deception and fraud by the covertly inserting into an act a distinct subject matter, not referred to in the caption of the Act. 10
But a substantial, and not a liberal, compliance with this provision in the Constitution is all that is necessary, and a statement of the general object of the statute is all that the title need contain; it never having been contemplated that the title should give a complete synopsis of the act, or that it should be essential that the title should recite in minute detail all of its provisions. The title should state in a brief and succinct form the purpose of the act, and the subject matter to be dealt with. The words "and for other purposes" in the title are sufficient to cover provisions in the act, germane to the general subject matter. 11
The general rule as to the sufficiency of the title to an act may be stated to be that a title to an act, which reasonably expresses the general subject matter of legislation, covers all matters properly connected with the general subject and germane thereto; 12 but a

8. King et al. -v. Banks et al., 51 Ga. 20; Brierswick, et al. v. Mayor & Council of Brunswick, 51 Ga. 639; Ex Parte Comer, 51 Ga. 571; Pearson v. Bass, 133 Ga. 117, 63 S. E. 798.
9. Hope et al. v. Mayor, etc., of Gainesvjlle, 72 Ga. 246; Mayor & Aldermen of Savannah v. State of Georgia, 4 Ga. 26; Green v. Mayor & Aldermen of Savannah R. M. C., 368; Smith, et al. v. Oliver et al., Dudley 191.
10. Howell -v. State, 71 Ga. 227; Brieswick v. Mayor & Council of Brunswick, 51 Ga. 639.
11. Black et al. v. Cohen et al., 52 Ga. 623; Hope et al. v. Mayor of Gainesville, 72 Ga. 246; McGruder v. State, 83 Ga. 616, 10 S- E. 281; McCommons v. English & Co., 100 Ga. 653, 38 S- E. 386; Hart v. State, 113 Ga. 939, 39 S. E. 321; Stapleton et al. V. Perry, 117 Ga. 561, 43 S. E. 996; Oglesby v. State, 121 Ga. 602, 49 S. E. 706; Mayor of Macon v. Hughes, 110 Ga. 796, 36 S. E. 247; Banks v. State, 124 Ga. 16, 52 S- E. 655; Plumb v. Christie, 103 Ga. 700, 30 S. E. 759.
12. Savannah v. State, 4 Ga. 26; Martin v. Broach, 6 Ga. 31; Muscogee R. R. Co. v. Neal, 26 Ga. 120; Nenham v. Holeman, 26 Ga. 182; Davis v. Bank, Bl Ga. 69; Alien -v. Tison, 50 Ga. 374; Danielly v. Cab-

1183] AMENDED CONSTITUTION OF 1877.

[518

statute which contains matter neither expressed in the title nor ger mane to it, is repugnant to the Constitution. 13
When the body of the act contains matter not embraced in the title, only so much of the matter in the body of the act as is differ ent from what is expressed in the title will be void, and if the act can stand after eliminating the invalid portions, the fact that the act contains matter different from the title will not render the whole act void ; 14 but where the valid and invalid matter are not separa ble, or where it is apparent that the legislature would not have en-

aniss, 52 Ga. 211; Black v. Cohen, 52 Ga. 621; Goldsmith v. Railroad Co., 62 Ga. 473; Holleman v. Holleman, 65 Ga. 476; Seay v. Bank of Rome, 66 Ga. 609, and cases cited; Evans v. State, 68 Ga. 826; Whittendale -v. Dixon, 70 Ga. 731, and cases cited; Howell v. State, 71 Ga. 224; Hope v. Gainesville, 73 Ga. 246; Smith v. Bohler, 72 Ga. 546; Brown v. State, 73 Ga. 38; Caldwell v. Barrett, 73 Ga. 604; McGruder v. State. 83 Ga. 616, 10 S. E. 281, and cases cited; Macon, etc., R. Co. v. Gibson, 85 Ga. 1, 11 S. E. 442; "Western Union Tel. Co. v. Cooledge, 86 Ga. 104. 12 S. E. 264; Irvin v, Gregory, 86 Ga. 605, 13 S. E. 120; Butler v. State, 89 Ga. 821, 15 S. E- 763; Stewart v. ColJier, 91 Ga. 117, 17 S- E. 279; KHiott V. State, 91 Ga. 694, 17 S. E. 1004; McCook v. State, 91 Ga. 740, 17 S. E. 1019; Maynard v. Marshall, 91 Ga. 840, 18 S. E. 403; McGhee v. State, 92 Ga. 21, 17 S. E. 876; Silvey v. Phoenix Ins. Co., 94 Ga. 609, 21 S. E- 607; Carson v. Forsyth, 94 Ga. 617, 20 S. E. 116; Bempsey v. State, 94 Ga. 766, 22 S. E. 57; FuIIington v. Williams, 98 Ga. 807, 27 S- E. 183; McCommons v. English Co., 100 Ga. 653, 28 S. E. 386; Butner v. Boifeuillet, 100 Ga. 743, 38 S. E. 464; Newman v. State, 1O1 Ga. 534, 28 S. E. 1005; Plumb v. Christie, 103 Ga. 686, 30 S. E. 759; Burns v. State, 1O4 Ga. 544, 30 S. E. 815; Central Railroad Co. v. State, 104 Ga. 831, 31 S. E. 531; Collins v. Russell, 107 Ga. 423, 33 S. E. 444; Macon v. Hughes, 110 Ga. 795, 36 S. E. 247; Hirsch v. Brunswick, 114 Ga. 776, 40 S- E. 786; Welborne v. State, 114 Ga. 793, 40 S. E. 857; Americus v. Perry, 114 Ga. 871, 40 S. E. 1004; Mattox v. State, 115 Ga. 212, 41 S. E. 709; Cham3ee v. Davis, 115 Ga. 266/41 S. E, 691; Smith v. Oliver, Dud. 190; Green v. Savannah, R. M. Charlt. 368; Wilson v. Dalton, 135 Ga. 240, 69 S. E. 163; Dollar <v. Wind, 135 Ga. 760, 70 S. E. 335.
13. Harris v. State, 110 Ga. 887, 36 S- E. 232; Frazier v. Georgia, etc.. Co., 101 Ga. 77, 28 S. E. 662; Sasser v. State, 99 Ga. 54, 25 S. E. 619; Dempsey -v. State, 94 Ga. 766, 22 S. E. 37; Blair -u. State, 90 Ga. 326, 17 S. E. 96; Johnson v. Jones, 87 Ga. 85, 13 S. E. 261; McDuffie v. State, 87 Ga. 687, 13 S. E. 596; Brieswick z>. Brunswick, 51 Ga. 639; Brown v. State, 79 Ga. 324, 4 S. E. 861.
14. Mayor and Aldermen of Savannah v. Ga., 4 Ga. 26; Protho Kendall v. Matthew Orr, et al., 12 Ga. 36; Worrnly v. State, 70 Ga. 721; Macon & Augusta R. R. Co. v. Little, 45 Ga. 388; Ga. R. R. Co. v. Cox, 61 Ga. 454; Western Union Telegraph Co. v. Cooledge, 86 Ga. 104, 12 S. E. 264.

519] AMENDED CONSTITUTION OF 1877. [ 1184-1186
acted one portion without the other, the whole act is void; 15 and if both the title and body of the act contain separate and distinct subject matters, the act will be void in its entirety, since it would be im possible to tell what particular object, rather than another of those referred to the legislation was intended to accomplish. 16
1184 (6438). Par. 9. GENERAL APPROPRIATION BILL. The general appropriation bill shall embrace nothing except appropriations fixed by previous laws, the ordinary expenses of the executive, legislative and judicial depart ments of the government, payment of the public debt and in terests thereon, and the support of the public institutions and educational interests of the State. All other appropriations shall be made by separate bills, each embracing but one subject.
Cross Reference: 890.
Small's Report, 374.
1185 (6439). Par. 10. BILLS FOR REVENUE. All bills for raising revenue, or appropriating money, shall orig inate in the House of Representatives, but the Senate may propose or concur in amendments, as in other bills.
Cross References: 38, 367, 483, 584, 708, 891.
Small's Report, 116, 314.
Historical Note: This paragraph is a verbatim copy of Art. 1, Sec. 7, Par. l, of the Constitution of the United States, which was adopted from the rules of the House of Commons in which the money bills of parliament must originate. 1 "Watson on U. S- Court, 342; TaswellLangmeade, 248-282, 451.
Because of the fact that the charter of a municipal corporation contains among its corporate powers, the power to tax the people of the town, its origination in the senate is not in conflict with this pro vision of the Constitution. 1
1186 (6440). Par. 11. PUBLIC MONEY, HOW DRAWN. No money shall be drawn from the treasury ex cept by appropriation made by law; and a regular state-
is. Elliott -u. State, 91 Ga. 694, 17 S. E. 1004. 16. Bass v. Lawrence, 124 Ga. 77, 52 S. E. 296. 1. Harper v. Commissioners of the Town of Elberton, 23 Ga. 566.

1187-1188] AMENDED CONSTITUTION OF 1877. [520
ment and account of the receipt and expenditure of all public money shall be published every three months, and also with the laws passed by each session of the General Assembly.
Cross References: 499, 600, 720, 892.
Smalls Report, 376.
The Constitution requiring that behind every payment by the treasurer from the public money of the State, there shall be an ap propriation made by law, and the law of the State providing that, except as to the drafts of the President of the Senate and the Speaker of the House of Representatives for sums due to the mem bers and officers of their respective bodies, all such payments shall be upon the warrant of the Governor, the treasurer may refuse to pay any claim unless the person demanding payment presents a warrant of the Governor and shows an appropriation made by law for the payment of the claim; 1 hence it is not the duty of the treas urer to pay State bonds until an appropriation is made and an ex ecutive warrant issued and countersigned as required by law, 2 and an executive warrant upon the treasury of the State, authorizing the payment of money in pursuance of an appropriation made by law is not in the nature of a contract, but is only a license or power, and is revocable so long as the payment which it warranted has not been made.5
1187 (6441). Par. 12. BILLS APPROPRIATING MONEY. No bill or resolution appropriating money shall become a law, unless upon its passage the yeas and nays, in each house, are recorded.
Cross Reference: 893.
Small's Report, 374.
1188 (6442). Par. 13. ACTS SIGNED; REJECTED BILLS. All acts shall be signed by the President of the Senate and the Speaker of the House of Representatives; and no bill, ordinance, or resolution, intended to have the effect of a law, which shall have been rejected by either house, shall be again proposed during the same session,
1. Park -v. Candler, 113 Ga. 669, 39 S. E. 89. 2. Gurnee, Jr., & Co. v. Speer, Treas., 68 Ga. 711. 3. Fletcher, Exec. -v. Renfroe, Treas., 56 Ga. 674.

521] AMENDED CONSTITUTION OF 1877. [ 1189-1190
under the same or any other title, "without the consent of two thirds of the house by which the same was rejected.
Cross References: 489, 590, 714, 894.
Small's Report, 374.
1189 (6443). Par. 14. MAJORITY OF MEMBERS TO PASS BILL. No bill shall become a law unless it shall receive a majority of the votes of all the members elected to each house of the General Assembly, and it shall, in every instance, so appear on the journal.
Cross References: 133, 893.
Where enrolled bill duly signed by President of Senate and Speaker of House and approved by Governor and deposited with Secretary of State, it was not competent to attack its validity on ground that legislative journal showed that it originated in House, passed by a constitutional majority, "was transmitted to Senate, there amended and passed by a constitutional majority and sent back to House and the Senate Amendment concurred in, but failed to show that this was done by a constitutional majority. 1
1190 (6444). Par. 15. NOTICE OP INTENTION TO ASK LOCAL LEGISLATION NECESSARY. No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall be given at least thirty days prior to the introduction of such bill into the General Assembly, and in the manner to be prescribed by law. The evidence of such notice having been published shall be exhibited in the Gen eral Assembly before such act shall be passed.
Cross References: 123, 896, 1070,
Small's Report, 374, 375, 376, 383.
Question of preliminary advertisement of local bill is for de termination by General Assembly before its passage and1 evidence
1. DeLoach v. Newton, 134 Ga. 740, 68 S- E. 708; Whitley v. State, 134 Ga. 759, 68 S- E. 716; Atlantic Coast Line R. R. Co. v. State, 135 Ga. 545, 70 S. E- 725.
1. "White V. City of Atlanta, 134 Ga. 532; Mangum v. Burge, 134 Ga. 307.

1191] AMENDED CONSTITUTION OF 1877.

[522

outside the journals of the legislature will not be received to show whether proper notice of local legislation was given, and when the journals are silent as to whether notice was given or not, the pre sumption is that the legislature did not disregard the requirement.2

1191 (6445). Par. 17. STATUTES AND SEC TIONS OP 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.
Cross References: 123, 723, 898.
Historical Note: No provision like this was embodied in any of the constitutions prior to the Constitution of 1868, but its genesis is doubtless traceable to the "Yazoo Fraud Act," its purpose being the same as that of paragraph 8, of this section, which appeared first in the Constitution of 1798.
Small's Report, 376.
This section has nothing to do with the contents of the title of an act, that being provided for in paragraph 8, of this section; it merely provides what shall be contained in the body of the act ;x hence, an act purporting to amend a section of the Code, which not only states the number thereof, but also indicates its general na ture and contents in such manner as to show with reasonable cer tainty what section is intended and the changes to be made in it, complies with this provision ;2 and when an act intended to repeal another act refers to the act to be repealed by giving its title in full and the date of its approval it sufficiently identifies the act to be repealed,3 but description of law by reference to title and in-

2. Speer et al. v. Mayor & Council of Athens, 85 Ga. 49, 11 S. E. 803; Peed v. McCrary, 94 Ga. 487, 21 S. E. 332; Fullington v. Williams, 98 Ga. 808, 27 S- E. 183; Lee v. Tucker, 130 Ga. 43, 60 S. E. 164.
1. Newman v. State, 101 Ga. 538, 28 S. E. 1005.
2. Puckett v. Young, 112 Ga. 578, 37 S. E- 880; Cunningham v. State, 123 Ga. 55, 57 S. E. 90; Gilbert v. Ga. Railroad & Banking Co., 104 Ga. 415, 30 S. E. 673; Kite, et al. v. Black, Ord., 85 Ga. 413(3), 11 S. E. 782; Silvey & Co., et al. v. Phoenix Ins. Co. et al., 94 Ga. 609, 21 S. E. 607; Georgia Southern & Fla. R. R. Co. v. George, 92 Ga. 760, 19 S. E. 813.
3. Fullington i>. "Williams, 98 Ga. 810, 27 S. E. 803; Peed v. McCrary, 94 Ga. 487, 21 S- E. 232; Bagwell v. Town of Lawrenceville, 94 Ga.

523 ]

AMENDED CONSTITUTION OF 1877. [ 1191

correct date is insufficient.4
An act not purporting to amend any particular law or section
of the Code, but "which describes the law to be amended by such
general descriptive terms as to put every one on notice of the law
to be amended, for instance, "An act to amend the several acts
incorporating the town of L/awrenceville," and a law "to amend
the county court laws as regards Taylor County," and the act "to
change the terms of Eulton Superior Court, to create new and ad
ditional terms,5 and for other purposes," are constitutional.
A later expression of the legislative will cannot be set aside to sustain a former expression, so an amending act is valid although it may render nugatory a former act.6
This provision of the Constitution has reference to repeals and amendments expressly made and has no application to repeals by implication.7 Repeals by implication are not favored,8 but the Gen eral Assembly may constitutionally pass a general law which may incidentally affect an existing law, although it is neither referred to nor described in the new law; for instance, the pleading act of 1893, which did away, absolutely, with many sections of the Code; the act of 1895, prescribing penalties for all felonies (ex cept certain ones specially mentioned) under the laws of this State, and further providing that all misdemeanors should be punished as prescribed by 4310 of the Code; the act establishing the rule of evidence for presuming intent from acts carrying such intent into effect, which laws do not refer specifically to any one of a

654, 21 S. E. 904; Johnson v. Sou. Mutual Bldg. & Loan Assn., 97 Ga. 622, 35 S. E. 358; Swift v. Van Dyke, 98 Ga. 725, 26 S. E. 59; Collins v. Russell, 107 Ga. 424, 436, 33 S- E. 404; Wellborne v. State, 114 Ga. 822, 40 S. E. 857.
4. Town of Maysville v. Smith, 132 Ga. 319, 64 S. E. 131. 5. Peed i>. McCrary, 94 Ga. 488, 21 S- E. 232; Bagwell v. Town of Lawrencevilte, 94 Ga. 654, 21 S. E. 904; Burge v. Man gum, 134 Ga. 307; Shippen Lumber Co. V. Elliott, 134 Ga. 699. 6. Macon Railroad Co. v. Gibson, 85 Ga. 19, 11 S- E. 443; Smith v. Oatts, 92 Ga. 694, 18 S. E. 1007. 7. Edalgo v. Southern Railway Co., 129 Ga. 266, 58 S. E. 846; Nolan v. Central Ga. Power Co., 134 Ga. 201. 8. Central Railroad v. Hamilton, 71 Ga. 461; Montgomery, Executor et al. v. Board of Education of Richmond County et al., 74 Ga. 43;
Erwin et al. v. Moore et al., 15 Ga. 361; Southern Railway Co. v. Moore, 133 Ga. 814, 67 S- E. 85, 656.

1192] AMENDED CONSTITUTION OF 1877.

[524

number of sections of the Code, practically repealed many sections of the Code.9
Unless particularly named, or necessarily embraced, a local or particular law is not repealed by a subsequent general law, but whenever the legislature enacts a local law and applies its pro visions to the entire territory of a county, inconsistent provisions in a charter of an incorporated town located in that county are repealed by necessary implication ; 10 and an act passed at a subsequent session of the legislature inconsistent with a prior act, to that extent repeals such prior act. 11

1192 (6446). Par. 18. CORPORATE POWERS, HOW GRANTED. The General Assembly shall have no power to grant corporate powers and. privileges to private companies, to make or change election precincts, nor to establish bridges or ferries, nor to change names of legiti mate children; but it shall prescribe by law the manner in which such powers shall be exercised by the courts. All corporate powers and privileges to banking, insurance, rail road, canal, navigation, express, and telegraph companies shall be issued and granted by the secretary of State in such manner as shall be prescribed by law; and if in any event the secretary of State should be disqualified to act in any case, then in that event the legislature shall provide by general laws by what person such charters shall be granted.
Cross References: 437, 498, 599, 724, 899.
Small's Report, 377.
The courts in granting charters under this provision of the Constitution, exercise legislative and not judicial power and no person is authorized to appear and object to the grant of corporate powers by the courts, nor is the action of the courts in granting or refusing a charter reviewable on writ of error;1 and where the

9. Swift v. Van Byke, 98 Ga. 726, 727, 26 S. E. 59; Vance v. State, 188 Ga. 663(6), 57 S. E. 889.
10. Glover v. State, 136 Ga. 599, 55 S- E- 592; Mayor, etc., of Montezuma -V. Minor, 70 Ga. 191; Turner et al. -v. Mayor, etc., of Forsyth, 78 Ga. 683; Strauss v. Mayor and Council of Waycross, 97 Ga. 475, 25 S. E. 329.
11. Macon Railroad Co. v. Gibson, 85 Ga. 19, 11 S- E. 442; Smith v. Oatts, 92 Ga. 694, 18 S. E. 1007.
1. Gas Light Company of Augusta et al. v. West et al., 78 Ga. 318.

525]

AMENDED CONSTITUTION OF 1877. [1192

petition fails to specify the objects of the corporation, the court may do so in its order ;2 but where the petition fails to set forth the things which the law requires to be stated, the charter will be re fused by the courts.3
Under the Constitution of 1868, the courts could not create a manufacturing corporation, that power being under the Constitu tion, in the General Assembly,4 although the General Assembly, after the adoption of the present Constitution, had no such right, such power being in the courts,5 yet such a charter granted by the General Assembly was not repealed by the adoption of the present Constitution, it being a private law kept of force by the express provisions of Article 12, Section 1, Paragraph 4, of the present Constitution, and a legal organization could be made under it after power to create such a company was vested in the courts.6
An act of the legislature incorporating a railroad company is a public law,7 and the courts are without authority to grant such a charter. 8
Under the present Constitution, the general rule is, so far as private corporations are concerned, that the General Assembly shall pass upon the question of necessity by general laws, providing what classes of corporations shall be authorized to exercise the powers of eminent domain,9 and that a commercial steam railroad for the common carriage of freight and passengers will be only about three miles in length, and will for a considerable part of its course, lie within the corporate limits of a city and that it will con nect with other steam railways at the outer terminus, does not prevent its falling within the purview of the general laws for in corporating railroad companies. 10
Trust companies with banking privileges are embraced within the description "banking companies" as used in this paragraph of the Constitution and, therefore, the Acts of 1898 (Acts of 1898, page 78) authorizing the Secretary of State to grant charters to such companies does not violate the provisions of this paragraph. 11
2. McBurney v. Wheelan et al., 54 Ga. 474. 3. Deveaux et al., Plaintiffs in Error, 54 Ga. 673. 4. Kehler v. The G. W. Jack Mfg-. Company, 55 Ga. 641. 5. City of Atlanta et al. v. Gate City Gas Light Company, 71 Ga. 131. 6. City of Atlanta et al. v. Gate City Gas Light Co., 71 Ga. 131. 7. Gunn v. Central Railroad Company et al., 74 Ga. 509. 8. Ellington v. Beaver Dam Lumber Co., 93 Ga. 53, 19 S. E- 31. 9. Atlantic R. R. Co. v. Penny, 119 Ga. 482, 46 S. E- 665. 10. Bridwell v. Gate City Terminal Co., 127 Ga. 530, 56 S. E. 624. 11. Mulherin v. Kennedy, ISO Ga. 1080, 48 S. E. 437.

1193-1194] AMENDED CONSTITUTION OF 1877. [526
1193 (6447). Par. 19. RECOGNIZANCES. The General Assembly shall have no power to relieve principals or securities upon forfeited recognizances from the pay ment thereof, either before or after judgment thereon, un less the principal in the recognizance shall have been apprehended and placed in the custody of the proper officer.
Cross Reference: 900.
1194 (6448). Par. 20. STREET RAILWAYS. The General Assembly shall not authorize the construction of any street passenger-railway within the limits of any in corporated town or city, without the consent of the corpo rate authorities.
Cross Reference: 901.
Small's Report, 377.
In adopting this provision, the Constitution was protecting mu nicipalities and not denning the differences between various species of railroads ; x and the Constitution recognized that the necessity for the operation of street railways is largely a municipal problem to be solved by the municipal authorities ;2 but express legislative authority must be conferred upon a municipal corporation to au thorize it to permit its streets to be occupied longitudinally by a street railroad company, but when a street railway company has the power, under its charter, to lay its track along the streets of a city, the city authorities may consent to such use of its streets by the street railway company, although there may be no express authority in the charter of the city authorizing it to grant such a privilege.3
A street railroad company is "a railroad company," and its charter is, therefore, granted by the same authority as other rail road companies,4 and the consent of the municipal authorities, provided for in the above paragraph, is simply a condition precedent to the exercise by the company of the charter power to construct a railway upon the streets of the city, and not a condition precedent to the granting of a charter to a street railway company.5
1. Savannah Railway v. Williams, 117 Ga. 430, 43 S. E. 731. 2. Athens Terminal Co. v. Athens Foundry, 129 Ga. 400, 58 S. E. 891. 3. Piedmont Mills v. Ga. Rwy. & Elec. Co., 131 Ga. 142, 62 S. E- 52; Almand et al. v. Atlanta Con. Street Railway Co., 108 Ga. 417, 34 S- E. 6. 4. Savannah Railway v. Williams, 117 Ga. 420, 43 S. E. 731. 5. Brown v. Atlanta Railway Co., 113 Ga. 475 (484), 39 S. E- 71.

527] AMENDED CONSTITUTION OF 1877. [ 1195-1196
The general law for the incorporation of railroads (Code, 1689(a) et seq.) was not applicable to street railroad companies; hence, after its passage, the General Assembly could prior to the ratifica tion of the amendment to paragraph 18, of this section, conferring the power of creating such corporations upon the Secretary of State, grant a special charter to a street railroad company, and, in so doing, could authorize such a company to extend its line to a terminus beyond the limits of the town or city in which such road was to be located.6
1195 (6449). Par. 21. YEAS AND NAYS TO BE ENTERED, WHEN. Whenever the Constitution requires a vote of two-thirds of either or both houses for the pass ing of an act or resolution, the yeas and nays on the passage thereof shall be entered on the journal,
Cross References: 487, 493, 593, 717, 902.
Small's Report, 377.
1196 (6450). Par. 22. POWERS OP THE LEGIS LATURE. The General Assembly shall have power to make all laws and ordinances consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.
Cross References: 75, 83, 245, 317, 373, 374, 493, 594, 719, 903.
Historical Note: The General Assembly is, of course, modeled, both as to form and function, after the English Parliament, but the differ ence in powers exercised by the legislature of Georgia and the parlia ment of Great Britain exhibit the fundamental difference in the theories of government obtaining in the two countries. The legislature of Georgia exercises delegated power and can only pass laws "consistent with the Constitution," and not repugnant to it or the Federal Con stitution, while parliament exercises original power, and that a power so transcendent and absolute, as Sir Edward Coke says, that it cannot be confined either for persons or causes within any bounds. All causes which transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or change the succession to the crown; alter the establishment of religion, and change and create afresh the constitution of the kingdom and qf parliament itself. Cooley's Blackstone Book I, Ch. 2, p. 160. Small's Report, 377.
See Note to 1134, 1137.
6. Dieter, Adm. v. Estill, 95 Ga. 370, 23 S. E. 622.

1196] AMENDED CONSTITUTION OF 1877.

[ 528

The legislative power is defined to be the power to make law, 1 and is vested by the constitution in a senate and house of repre sentatives,3 constituting the General Assembly. The legislature is the sovereign power in the State,3 clothed by the people with all power, except where they have made limitations,4 and it is invested with the power to make all laws and ordinances which it may deem necessary and proper and which are not repugnant to the Constitution, 5 with the sole discretion of determining what laws are promotive of the public morality or otherwise,6 and the courts cannot pass upon a statute by an inquiry as to whether or not it is just or oppressive, nor can any light be thrown upon the question by an attempt to show that it contravenes the general purposes for which a free government is established; nor because "contrary to principles of justice and equity," or the "spirit of our institu tions ;"T or violative of "inherent and inalienable rights," not de fined in the organic law or the statutes of the State, 8 the wisdom, policy or expediency of a law being matters purely of legislative deliberation and cognizance, 9 and it being the province of the judiciary to interpret the mandates of the legislature and to obey them, if constitutional, however unreasonable they may appear. 10
While, theoretically, the departments--legislative, executive and judicial--may be coordinate, 11 yet where the legislative power is undefined, it includes the judicial and the executive attributes. 12 The legislature is the fountain head of power, and, acting within

1. McLeod z>. Burroughs, 9 Ga. 316; Wilder <u. Ltimpkin, 4 Ga. 312; State v. Dews, R. M. Charlton 400; Powers v. Inferior Court of Dougherty Co., 23 Ga. 65.
2. The Franklin Bridge Co. v. Wood, 14 Ga. 80; Mayor & Aldermen of Savannah -u. Hussey, 21 Ga. 90.
3. The Flint River Steamboat Co. v. Foster, 5 Ga. 194. 4. Nicholas -v. Hoverner, 42 Ga. 517.
5. Churchill et al. v. Walker, et al., 68 Ga. 681; Carey v. Gilio, 9 Ga. 253; Beall v. Beall, 8 Ga. 210; Alison v. Thomas, 44 Ga. 649; McMahan u. Mayor, Savannah, 66 Ga. 217; Boston v. Cummins, 16 Ga. 103; Mc~ Arthur v. State, 69 Ga. 444; Wellborn v. Aikin, 44 Ga. 420; Hood v. Von Ghlann, 88 Ga. 412, 14 S. E. 564.
6. Beall v. Beall, 8 Ga. 311.
7. Gray v. McLendon, 134 Ga. 226. 8. Plumb v. Christie, 103 Ga. 693, 30 S. E. 759. 9. Winter -v. Jones, 10 Ga. 191; The Central Bank of Ga., 11 Ga. 346. 10. Flint River Steamboat Co. -u. Foster, 5 Ga. 194. 11. Walker v. Whitehead, 43 Ga. 538. 12. Cooper v. Telfair, 4 Dallas (U. S.) 14.

529]

AMENDED CONSTITUTION OF 1877. [ 1196

its constitutional bounds, it has the right to direct the action and limit or enlarge the powers exercised by the other depart ments. 13 It regulates the courts by prescribing their machinery, and when in motion, they are governed by the arbitrary will of the sovereign power as to time of holding them, the mode of procedure therein, the rules of evidence governing them, 14 the rules by which the measure of damages to be awarded by them is to be de termined, 15 the punishments which may be inflicted, 16 the remedies by which existing equities may be proved, 17 the manner in which juries may be obtained, 18 and the qualifications of jurors, 19 but the legislature, on account of the provision for the separation of the powers of government, cannot exercise judicial powers, except in cases expressly provided by the constitution itself,20 and it can not evade this prohibition by an attempt to exercise it through agents or appointees. 21 The legislative exposition of a doubtful law, is the exercise of a judicial power. 22 The appointment of a receiver to settle the affairs of an insolvent bank is not the exercise of a judicial power, hence the legislature might authorize the governor to make such appointment.23
Likewise the executive department is subject to regulation by the executive department. 24
A marked difference exists between the State legislature and the United States Congress in its power to enact legislation and in the presumptions regarding its constitutionality. The former can do all things not prohibited by the constitution, while the latter can exercise no power not delegated to it by the states in the federal constitution, for example, there being nothing in the constitution of this State to

13. Walker v. Whitehead, 43 Ga. 538. 14. Walker v. Whitehead, 43 Ga. 538; Goodman v. Morris, 59 Ga. 60; Rives -v. Sneed, 25 Ga. 631; Harvey v. Thompson, 138 Ga. 147, 151, 57 S. E. 104. 15. Clay v. Central R. R. & Banking Co., 84 Ga. 345, 10 S. E. 967. 16. McNalley v. Mulberrin, 79 Ga. 614, 4 S. E. 332; Bradley v. State, 111 Ga. 168, 36 S. E. 630. 17. Gunn v. Hendry, 43 Ga. 556. 18. Mattox v. State, 115 Ga. 213, 41 S. E. 709. 19. Woolfolk v. State, 85 Ga. 71, 11 S. E. 814. 20. Milliard v. Connelly, 7 Ga. 177; Carey v. Giles, 9 Ga. 256. 21. Hilliard v. Connelly, 7 Ga. 177. 22. McLeod v. Burroughs, 9 Ga. 213. 23. Carey v. Giles, 9 Ga. 253. 24. Beall v. Beall, 8 Ga. 216.

1196] AMENDED CONSTITUTION OF 1877.

[530

regulate the sale of intoxicating liquors a statute prohibiting such sale cannot be declared unconstitutional for any want of power in the legislature to pass it.25
Delegation of legislative power cannot, as a general rule, be made by the legislature to any subordinate bodies, the people in whom all legislative power primarily resides being alone able to create a depository of the power, 20 but this rule is subject to the qualification that municipal corporations may be created and in vested with power to control local matters, and to exercise legis lative powers incident to the municipal government, and to levy taxes, 27 and the legislature may create business corporations and invest them with the power to make by-laws. 28 The right may be delegated to the courts to make rules regulating the conduct of business in them, and to the officers of the law to make rules which are to have, within their sphere, the force of law ; 28a and a local law may be passed conditioned upon its taking effect on a vote of the people interested,29 but whether the same principle is applicable in the case of general laws has been left undecided.30
But the legislative power is not of unrestrained and unlimited discretion,31 it being restrained by two limitations: first, The con stitution of the State; and, second, the constitution of the United States, and by them, alone.32
The constitution in declaring that every citizen has a right to bear arms, in defence of himself and the State, has neither ex pressly nor by implication denied the legislature the right to enact laws in regard to the manner in which arms shall be borne.33
The legislature has the right to regulate trade and to authorize

25. Plumb v. Christie, 103 Ga. 693, 30 S. E. 759; Southern Rwy. Co. v. Atlanta Sand Co., 135 Ga. 39, 68 S- E. 807-
26. Mayor and Aid. Savannah v. Hussey, 31 Ga. 90; Phinizy v. Err, 108 Ga. 362, 33 S. E. 1007; Franklin Bridge Co. v. "Wood, 14 Ga. 80.
27. Mayor & Council of Brunswick v. Finney, 54 Ga. 326. 28. Powers v. Inferior Court of Dougherty Co., 23 Ga. 81. 28a, Georgia Railroad and Banking Co. v. Smith, 70 Ga. 698. 29. Mayor of Brunswick v. Finney, 54 Ga. 317; Caldwell v. Barrett, 73 Ga. 604; Coleman it. Board of Education, 131 Ga. 644, 63 S. E. 41. 30. Mayor of Brunswick v. Kinney, 54 Ga. 317. 31. Nunn v. State, 1 Ga. 249; Speer -v. Mayor of Athens, 85 Ga. 49, 11 S- E. 803. 32. Beall v. Beall, 8 Ga. 217; Macon & Western R. R. Co. v. Davis, 13 Ga. 83; Walker v. Whitehead, 43 Ga. 541. 33. Nunn v. State, 1 Ga. 249.

531] AMENDED CONSTITUTION OF 1877. [ 1197-1198
municipal corporations to do so within their limits ;34 to delegate to railroad commissioners the right to regulate freight and pas senger rates ;35 to prescribe the registration of electors, and to regulate the mariner of holding elections, but its power is not ex tensive enough to prescribe new qualifications.30
Tax upon an emigrant agent is not such a restriction upon the rights of the citizen to move from one state to another as that it abridges the privileges or immunities of the citizens of the United States within the meaning of the Fourteenth Amendment of the constitution of the United States, nor such a discrimination in favor of persons hiring laborers to be employed within the State as denies the equal protection of the laws within the meaning of that amendment.37
1197 (6451). Par. 23. SIGNATURE OP GOV ERNOR. No provision in this Constitution for a two-thirds vote of both houses of the General Assembly, shall be con strued to waive the necessity for the signature of the Governor, as in any other case, except in the cage of the two-thirds vote required to override the veto, and in case of prolongation of a session of the General Assembly.
Cross References: 37, 329, 386, 516, 613, 735, 938.
Historical Note: On the 16th of December 1811, a resolution was adopted expressing the opinion "that -the governor's signature is not intended in the passage of any bill upon which both branches have ex ercised their constitutional right of two thirds." That resolution had special reference to amendments of the Constitution of 1798, but the language was broad enough to include any vote, resolution or bill, and the above paragraph was inserted in the present constitution so as to provide for executive revision of all laws without respect to the degree of legislative approval. L,amar's Digest, 1089, 1090; Small's Report, 377.
1198 (6452). Par. 24. ADJOURNMENTS. Neither house shall adjourn for more than three days, or to any
34. Badkins v. Robinson, 53 Ga. 613; Nagle v. City Council of Au gusta, 5 Ga. 546; Morris V, City Council of Rome, 10 Ga. 534; Whitten v. Mayor, Covington, 43 Ga. 421; Green v. Mayor, Savannah, 6 Ga. 13; Perdue v. EUis, 18 Ga. 586.
35. Georgia R. R. v. Smith, 70 Ga. 694. 36. McMahan v. Mayor Savannah, 66 Ga. 217; Gavin v. City of At lanta, 86 Ga. 132, 12 S. E. 262. 37. Williams v. Fears, 110 Ga. 584, 35 S. E. 699.

1199-1201 ] AMENDED CONSTITUTION OF 1877. [ 532
other place, without the consent of the other; and in case of a disagreement between the two houses on a question of adjournment, the Governor may adjourn either or both of them.
Cross References: 490, 591, 715, 905.
SECTION 8.
OFFICERS OF THE GENERAL ASSEMBLY. 1199 (6453). Paragraph 1. SECEETAEY AND CLERK. The officers of the two houses, other than the President and Speaker, shall be a secretary of the Senate and clerk of the House of Representatives, and such as sistants as they may appoint; but the clerical expenses of the Senate shall not exceed sixty dollars per day for each session, nor those of the House of Representatives seventy dollars per day for each session. The Secretary of the Senate and clerk of the House of Representatives shall be required to give bond and security for the faithful dis charge of their respective duties.
Cross References: 716, 916.
Small's Report, 377, 378.
SECTION 9.
PAY OF MEMBERS.
1200 (6454). Paragraph 1. COMPENSATION. The per diem members of the General Assembly shall not exceed four dollars; and mileage shall not exceed ten cents for each mile traveled, by the nearest practicable route, in going to and returning from the capitol; but the President of the Senate and the Speaker of the House of Representatives shall each receive not exceeding seven dollars per day.
Cross References: 471, 907.
Small's Report, 378.
SECTION 10.
ELECTIONS BY GENERAL ASSEMBLY. 1201 (6455). Paragraph 1. ELECTIONS. All elections by the General Assembly shall be viva voce, and

533 ]

AMENDED CONSTITUTION OF 1877. [ 1202

the vote stall appear on the Journal of the House of Repre sentatives. When the Senate and House of Representa tives unite for the purpose of elections, they shall meet in the Representative Hall, and the President of the Senate shall in such cases, preside and declare the result.
Cross References: 331, 345, 403, 543, 640, 908.

SECTION 11.
MARRIED WOMAN'S PROPERTY.
1202 (6456). Paragraph 1. WIFE'S ESTATE. All property of the wife at the time of her marriage, and all property given to, inherited or acquired by her, shall re main her separate property, and not be liable for the debts of her husband.
Cross References: 119, 791, 909.
Small's Report, 31, 427.
The passage of the Act of 1866, served to execute all trusts in deeds, marriage settlements and other instruments where the sole purpose of the trust was to protect the property of the wife from the marital rights of the husband, 1 and a conveyance made to the husband as trustee for his wife since the Act of 1866 vested full title in the wife free of the trust; 2 and since said Act, a married woman can dispose of her separate property by will, whether said property be real or personal, without the consent of her husband,3 and she has as full capacity to make a contract with reference to her separate estate as a feme sole,4 except that she cannot bind her separate estate by any contract of suretyship; nor can she bind it by an assumption of the debts of her husband, nor by any sale to a creditor of her husband in extinguishment of his debts, and she cannot sell any part of her separate estate to her husband or her trustee unless the same is allowed, by the Superior Court of her domicile;5 hence a transfer by a mar-
1. McLaughlin, Trustee -u. Ham, 84 Ga. 786, 11 S. E. 889; Banks v. Sloat et al., 69 Ga. 330; Kyle, Trustee v. Fleming and vice versa.
2. Lathrop et al. v. White Guardian et al., 81 Ga. 39, 6 S. E. 834. 3. Urquhart v. Oliver, 56 Ga. 344. 4. Hays v. Jordan & Co., 85 Ga. 741, 11 S. E. 833; Brown v. Kimbrough, Admr., et al., 55 Ga. 41. 5. Code, 3007, 3009; Dunbar & Co. v. Mize, 53 Ga. 435.

12O2 J AMENDED CONSTITUTION OF 1877.

[ 534

ried woman to her husband of a bond for title upon the considera tion of the carrying out her obligation as to the payment of the debt therein referred to, is a sale by a married woman of her separate property and is invalid in the absence of an order of the Superior Court of her domicile allowing the same, and the payment by the husband of the debt referred to in the bond for title under such circumstances is a mere voluntary payment and will not en title him to be subrogated to the rights of the creditor.6
A creditor of the husband who receives, with notice of the wife's title, any money or property of the wife in payment of the husband's debt, is liable to her for the property, and any convey ance made to him in payment of or as security for his debts is void ab initio and may be treated as a nullity by her, or if necessary, it will be set aside at the suit of the wife. 7 And where such a conveyance is not made directly to the creditor, but to an agent taking in his own name, but for the creditors benefit,, it is as void as if made directly to the creditor for such purpose. 8
Property occupied jointly by husband and "wife is presumed to be the property of the husband ; but the fact that a husband and wife live on certain land and the husband returns and pays taxes thereon is not sufficient to make the land subject to a judgment against the husband when the legal title is shown to be in the wife. 9
A creditor receiving the wife's money without notice of its being hers, will be protected, 10 but when a creditor claims under a deed the recitals of which disclose the wife's interest, he is bound by such recitals. 11
A married woman who has a separate estate may engage her husband to act as her agent in the transaction of any business she may have, and if she does so, his acts as such agent stand as to her and the world as do the acts of other agents, 12 and when a married woman signs a note jointly with her husband, the question of her responsibility for the payment of the note out of her separate estate turns upon the question whether she signed to raise money

6. Webb -v. Harris, 124 Ga. 723, 53 S. E. 247.
7. Taylor v. Alien, 113 Ga. 330, 37 S. E, 408. 8. Wilkins v. Benning, 51 Ga. 13; Bryan & Hunter 'v. King, 51 Ga. 293; Shorter et al. v. Methvin, 53 Ga. 230; Kent & Co. et al. v. Plumb, Trustee, et al., 57 Ga. 207. 9. Hill v. Bruce, 54 Ga. 332. 10. Humphrey v. Copeland, 54 Ga. 548. 11. Cheney v. Rogers, 54 Ga. 170.
12. Keller v. Mayor, Strauss and Baum, 5 Ga. 407.

535 ] AMENDED CONSTITUTION OF 1877. [ 1203-1204
on her own account, or as security for, or to assume a debt of her husband; 13 but when a married woman borrowed money from a creditor of her husband the loan being made on condition that she would "take up" a promissory note due to the creditor by her husband who was insolvent, and when she accordingly gave to the lender her own note for an amount including the cash advanced to her and the amount of her husband's note, and when she paid on her own note a sum exceeding the principal and lawful interest of the money advanced to her, she could sue for and recover the excess paid by her over the amount of her own debt. 14
SECTION 12.
INSURANCE; COMPANIES.
1203 (6457). Paragraph 1. NON-RESIDENT IN SURANCE COMPANIES. All life-insurance companies now doing business in this State, or "which may desire to estab lish agencies and do business in the State of Georgia, chartered by other States of the Union, or foreign States, shall show that they have deposited with the comptrollergeneral of the State in which they are chartered, or of this State, the insurance commissioner, or such other officer as may be authorized to receive it, not less than one hundred thousand dollars in such securities as may be deemed by such officer equivalent to cash, subject to his order, as a guarantee fund for the security of policy holders.
Cross Reference: 910.
Small's Report, 435, 436.
1204 (6458). Par. 2. LICENSE BY COMPTROL LER. When such showing is made to the comptroller-gen eral of the State of Georgia, by a proper certificate from the State official having charge of the funds so deposited, the comptroller-general of the State of Georgia is authorized to issue, to the company making such showing, a license to do business in the State, upon paying the fees required by law.
Cross Reference: 911.
Small's Report, 435, 436.
13. King -v. Thompson, 59 Ga. 380. 14. Louis et al. v. Howell, 98 Ga. 428, 25 S. E. 504.

1205-1207 ] AMENDED CONSTITUTION OF 1877. [ 536
1205 (6459). Par. 3. RESIDENT INSURANCE COMPANIES. All life insurance companies chartered by the State of Georgia, or which may hereafter be chartered by the State, shall, before doing business, deposit with the comptroller-general, of the State of Georgia, or with some strong corporation which may be approved by said comp troller-general one hundred thousand dollars in such se curities as may be deemed by him equivalent to cash, to be subject to his order, as a guarantee fund for the security of the policy holders of the company making such deposit, all interests and dividends arising from such securities to be paid, when due, to the company so depositing. Any such securities as may be needed or desired by the company may be taken from said department at any time by replac ing them with other securities equally acceptable to the comptroller-general, whose certificate for the same shall be furnished to the company.
Cross Reference: 912.
Small's Report, 435, 436.
1206 (6460). Par. 4. GENERAL ASSEMBLY TO ENACT LAWS FOR PEOPLE'S PROTECTION, ETC. The General Assembly shall, from time to time, enact laws to compel all fire-insurance companies doing business in this State, whether chartered by this State or otherwise, to deposit reasonable securities with the treasurer of this State, to secure the people against loss by the operations of said companies.
Cross Reference: 913.
Small's Report, 436.
1207 (6461). Par. 5. REPORTS BY INSURANCE COMPANIES. The General Assembly shall compel all in surance companies in this State, or doing business therein, under proper penalties, to make semi-annual reports to the Governor, and print the same at their own expense, for the information and protection of the people.
Cross Reference: 914.
Small's Report, 34.

537]

AMENDED CONSTITUTION OF 1877. [ 1208

ARTICLE 4. POWER OF THE GENERAI, ASSEMBLY OVER TAXATION, ETC.

SECTION I.
TAXATION.
1208 (6462). Paragraph I. TAXATION, A SOV EREIGN RIGHT. The right of taxation is a sovereign right, inalienable, indestructible, is the life of the State, and rightfully belongs to the people in all republican govern ments, and neither the General Assembly, nor any nor all other departments of the government established by this Constitution, shall ever have the authority to irrevocably give, grant, limit, or restrain this right; and all laws, grants, contracts, and all other acts whatsoever, by said govern ment or any department thereof, to effect any of these pur poses, shall be and are hereby declared to be null and void for every purpose whatsoever; and said right of taxation shall always be under the complete control of, and revoca ble by, the State, notwithstanding any gift, grant, or con tract whatsoever by the General Assembly.
Cross References: 34, 35, 75, 915.
Small's Report, 378; Taxation of Railroads, 378-381, 383.
See notes to 1299, 1300, 1309, 1310.
Prior to the Constitution of 1877 the State could, by contract restrict itself as to taxing powers, and municipal corporations could exempt property by ordinances, but they could not do so by con tract, unless by express statute j 1 and where the charter of a mu nicipal corporation contained any provision authorizing it to exempt any property from taxation, such provision was strictly construed,2 and was repealed by the adoption of the present constitution,3 which imperatively requires that all property of every nature within the territorial limits of the State except such as the constitution

1. Augusta Factory v. City Council, 83 Ga. 743, 10 S. E. 359. 2. Mayor, Macon v. Central R. R. Co., 50 Ga. 630; Atlanta Street R. R. Co. -v. City of Atlanta, 66 Ga. 104, 108; Wells v. Mayor, Savannah,
107 Ga. 1, 181 U. S- 531, 539, 540. 3. McLendon v. City of Lagrange, 107 Ga. 357, 33 S. E. 405; Savan
nah, etc., R. R. Co. 11. Savannah, 112 Ga. 164, 37 S. E. 393, 198 U. S. 398.

1209 ] AMENDED CONSTITUTION OF 1877.

[ 538

specifically exempts shall be taxed; and that all property subject to taxation within the territorial limits of any subordinate subdivision of the State exercising the power of taxation shall be taxed.4

SECTION 2.
REGULATION OF CORPORATIONS.
1209 (6463). Paragraph 1. RAILROAD TARIFFS. The power and authority of regulating railroad freights and passenger tariffs, preventing unjust discriminations, and re quiring reasonable and just rates of freight and passenger tariffs are hereby conferred upon the General Assembly, whose duty it shall be to pass laws, from time to time, to regulate freight and passenger tariffs, to prohibit unjust dis criminations on the various railroads of this State, and to prohibit said roads from charging other than just and rea sonable rates, and enforce the same by adequate penalties.
Cross References: 124, 916.
Small's Report, 385-410, 466. Speech of Hon. W. O. Tuggle, Small's Report, 458; Speech of Hon. J. D. Matthews, Small's Report, 460.
The act creating the railroad commission and conferring upon the
commissioners, the power to make rules and to regulate rates, was
not an unconstitutional delegation of legislative power. 1
The railroad commission, in fixing its schedule of rates, may con sider any economical or industrial factor which may potentially in fluence freight transportation; It may also consider the natural advantages of localities. These natural and traffic conditions may enter into rate adjustment, and may, in a proper case justify a clas sification of commodity rates between localities, whereby the rates between designated points may be excepted from the general clas sification. When the commission after fixing a reasonable schedule of rates for all commodities makes an exception, by amendment to the general schedule, of one of the commodities provided for in the general schedule, by fixing a lesser rate therefor between designated points, such exception cannot be said, as a matter of law, to be dis criminator}', and unconstitutional. On the contrary the presump-

4. Atlanta National Building & L,oan Assn. v. Stewart, 109 Ga. 80, 35 S. E. 73; Georgia R. R. Co. V. Wright, 135 Ga. 593, 609, 54 S. E. 52.
1. Georgia Railroad et al. v. Smith et at., Corns., 70 Ga. 694, 128 U. S. 174.

539 ]

AMENDED CONSTITUTION OF 1877. [ 1210

tion is in favor of the reasonableness of the classification, and the burden is on the railroad company to show the classification illegal. 3
A joint rate is one prescribed to be charged for the transportation of goods or passengers over the connecting lines of two or more railroads and to be divided among them for service rendered, but, when the stock and bonds of one railroad were owned by another, though having separate directors and operated separately, a contin uous mileage rate prescribed by the commission applying to freight and passenger travel over both roads, was a species of joint rate and was not illegal if the rate was reasonable and just, although there was no merger, but the two artificial persons remained in law sep arate.3

1210 (6464). Par. 2. RIGHT OP EMINENT DO MAIN; POLICE POWER. The exercise of the right of em inent domain shall never be abridged, nor so construed as to prevent the General Assembly from taking the property and franchises of incorporated companies, and subjecting them to public use, the same as property of individuals; and the exercise of the police power of the State shall never be abridged, nor so construed as to permit corporations to conduct their business in such manner as to infringe the equal rights of individuals, or the general well-being of the State.
Cross Reference: 917.
See notes to 1133.
The right of eminent domain may be exercised by the General As sembly directly through the officers of the State, or through the medium of corporate bodies, or by means of individual enterprise, but only for a public purpose, 1 and it is the use to which the prop erty taken is to be put, and not the character of the person seeking to exercise the power -which controls the right to be invested with the power; hence, the statute which confers upon owners of water powers seeking under certain conditions involving a public use of

2. Southern Rwy. Co. v. Atlanta Stove Works, 128 Ga. 307, 57 S.
E- 439. 3. Hill et al., Corns, v. Wadley Southern Rwy. Co., 128 Ga. 705, 57
S- E. 795. 1. Mayor, etc., of Macon -u. Harris, 73 Ga. 428; Mayor, etc., of Macon
V. Harris, 75 Ga. 766.

1211] AMENDED CONSTITUTION OF 1877.

[540

their product, the authority to exercise the right of eminent domain is not violative of that provision of the constitution which prohibits the taking of private property -without due process of law,2 and the generation of electricity to be used for lighting towns and cities; supplying motive power to railroad lines or street car lines, or to supply light, heat and power to public is a public use authorizing power of eminent domain.3

1211 (6465). Par. 3. CHARTERS REVISED OR AMENDED BECOME SUBJECT TO THIS CONSTITUTION. The General Assembly shall not remit the forfeiture of the charter of any corporation now existing1, nor alter or amend the same, nor pass any other general or special law for the benefit of said corporation except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this Constitution; and every amendment of any charter of any corporation in this State, or any special law for its benefit, accepted thereby, shall operate as a no vation of said charter and shall bring the same under the pro visions of this Constitution: Provided, that this section shall not extend to any amendment for the purpose of allowing any existing road to take stock in or aid in the building of any branch road.
Cross Reference: 918.
See 1134, and especially note 32 to that section. See also note and references under 1208 and 1209: Remarks of Mr. Toombs, Small's Report, 466.
The object of the provision that any amendment to the charter of a corporation should subject it to the Constitution was to subject it to taxation if it had previously been exempted, but the convention framing" the Constitution, deeming the development of the State, and the convenience of its people by the extension of railroad facil ities, of paramount importance, in order not to discourage the

2. Jones v. North Georgia Electric Co., 135 Ga. 624, 59 S. E. 85. See also, as to what is a public use, Mayor of Macon v. Harris, 73 Ga. 428; Butler v. Thomasville, 74 Ga. 570; Hopkins v. Florida Central R. R. Co., 97 Ga. 113, 25 S. E. 452; Garbut Lumber Co. v. Ga. & Ala. Rwy. Co., Ill Ga. 714, 36 S- E. 943; Jones v. Venable, ISO Ga. 1, 47 S. E. 549. See also notes 58-62 to 1133.
3. Nolan v. Central Ga. Power Co., 134 Ga. 301, 67 S. E. 656.

541 ]

AMENDED CONSTITUTION OF 1877. [ 1212

building of branch roads, put the proviso to this section. 1 \Vhile a provision that a special law, voluntarily asked for, and
accepted by a corporation, could be made to operate as a novation of its charter and subject it to existing laws without impairing the obligation of the contract contained in its charter, where a turn pike company's charter granted in 1840 provided a certain penalty for neglect, an act passed in 1878 prescribing a different and more onerous penalty, was unconstitutional. 2

1212 (6466). Par. 4. BUYING STOCK, ETC., IN OTHER CORPORATIONS; COMPETITION. The General Assembly of this State shall have no power to authorize any corporation to buy shares or stock in any other corpora tion in this State or elsewhere, or to make any contract, or agreement whatever, with any such corporation, which may have the effect or be intended to have the effect, to defeat or lessen competition in their respective businesses, or to en courage monopoly; and all such contracts and agreements shall be illegal and void.
Cross Reference: 919.
Small's Report, 469.
Legislative grant to corporations of power to buy shares of stock in another corporation is prohibited only when such purchase would have the effect, or when intended to have the effect, to defeat or lessen competition in the respective business of the two corporations or to encourage monopoly ;x and, as to railroad companies, the de feating or lessening of which, the provisions of this paragraph were intended to prevent, was competition between lines of railroad viewed with reference to their general business in and through the territory traversed by them, and not competition which might incidentally ex ist at mere points or particular places ;2 and, when there has been a sale of stock in one railroad company to another, even if the effect of such sale would be to lessen competition, the state, the stock holders, and the parties themselves could alone attack the sale; bond holders could not.3

1. State v. Central of Ga. Rwy. Co., 109 Ga. 734, 35 S. B. 34. 2. Habersham Turnpike Co. v. Taylor et al., 73 Ga. 552. 1. Trust Company v. Georgia, 109 Ga. 752, 35 S. E. 323. 2. State v. Central of Ga. Rwy. Co., 109 Ga. 716, 35 S. E. 37. 3. "Weed v. Gainesville, Jefferson R. R. Co., 119 Ga. 576, 46 S- E. 885.

1213 ] AMENDED CONSTITUTION OF 1877.

[ 542

A railroad company does not violate any public duty or deprive any citizen of any right by granting to a single corporation or indi vidual the exclusive right of entering its trains to solicit the trans portation of passengers and baggage or by renting to such person a portion of its baggage room, provided it affords to all persons like and equal privileges of entering its depots and buying tickets and checking baggage and of presenting checks and procuring baggage at destination.4
Combination of mercantile dealers to compel another dealing in similar goods to sell at prices fixed by it or upon his refusal so to do, to prevent those from whom the members of the combination pur chase goods from selling to him, is contrary to public policy and void, and the members of such combination may individually or collectively be enjoined from carrying out such illegal purpose.5
A distinction exists between that class of contracts binding one to desist from the practice of a learned profession, and those which bind one who has sold out a mercantile or other kind of business, and the good will connected with it not to again engage in that busi ness ;--in the latter class, a limit, as of time, is not essential to the validity of the contract, but in the former class there should be a reasonable limit as to the time.6

1213 (6467). Par. 5. REBATES. No railroad company shall give or pay any rebate, or bonus in the nature thereof, directly or indirectly or do any act to mislead or de ceive the public as to the real rates charged or received for freights or passage; and any such payments shall be illegal and void; and these prohibitions shall be enforced by suitable penalties.
Cross Reference: 920.
Small's Report, 469.
See Code, 2629, 2630, 2655, 2657.
4. Kates v. Atlanta Baggage & Cab Co., 107 Ga. 636, 34 S. E. 372; Atlanta Terminal Co. v. American Transfer Co., 125 Ga. 678, 54 S. E. 711; Hart v. Atlanta Terminal Co., 128 Ga. 754, 58 S. E- 452.
5. Brown & Alien v. Jacobs Pharmacy Co., 115 Ga. 429, 41 S. E. 553. 6. Rakestraw &-. Lanier, 1O4 Ga. 188, 3O S. E. 735. See also Holmes v. Martin, 10 Ga. 503; Jenkins v. Temples, 39 Ga. 655; Spier v. I^ambdin, 45 Ga. 319; Goodman v. Henderson, 58 Ga. 567; Breurr & Co. v. L,amar, 69 Ga. 656; Newman v. Wolfson, 69 Ga. 764; Swanson v. Kirby, 98 Ga. 586, 26 S. E. 71.

543 ] AMENDED CONSTITUTION OF 1877. [ 1214-1216
1214 (6468). Par. 6. OBLIGATION OF CONTRACTS PRESERVED. No provision of this Article shall be deemed, held, or taken to impair the obligation of any contract here tofore made by the State of Georgia.
Cross Reference: 931. See Notes to 1134.
1215 (6469). Par. 7. GENERAL ASSEMBLY TO ENFORCE. The General Assembly shall enforce the provi sions of this Article by appropriate legislation.
Cross Reference: 922.
Smalls Report, 469.
The provisions of this section are not self-acting and it can be carried into effect only by appropriate legislation, which is done, as to competing railroad lines, by the railroad acts, providing that railroads may purchase, lease or consolidate -with other roads pro vided they are not competing lines; and the fact that they may have competing points does not necessarily mean that they are competing lines. 1
ARTICLE 5.
EXECUTIVE DEPART MBNT.
Smalls Report, 77, 109, 110, 113-127, 130-140, 148, 280, 281, 284, 285, 290.
SECTION 1.
GOVERNOR. 1216 (6470). Paragraph 1. EXECUTIVE DEPART MENT. The officers of the Executive Department shall con sist of a Governor, Secretary of State, Comptroller-General, and Treasurer.
Cross References: 518, 737, 9S3.
The right of sovereignty is not in the executive authority of the State but resides in the people by whom, through the Constitution, the powers of that department have been delegated and defined. 1
1. State v. Central of Ga. Rwy. Co., 109 Ga. 735, 35 S. E. 37. 1. Bonner v. State, 7 Ga. 481.

1217 ] AMENDED CONSTITUTION OF 1877.

[ 544

As one of the three great coordinate departments into which the government is divided, the executive department is, in theory, dis tinct from the legislative and judicial. In fact, it is so far distinct from the judicial department that the executive can exercise no judicial functions whatever, 2 and it is so far distinct from the leg islative department that it is the duty of the executive to enforce the laws constitutionally passed by the legislature however absurd and unreasonable they may be deemed, the legislature being the sole and exclusive judges whether a law passed by it is far the good of the State, but the separation between the executive and legislative departments is not total,3 the sanction of the executive to an act being necessary in some cases to give it validity as a law,4 and the power of the veto existing in all cases, uniting the executive depart ment with the legislature in the passage of laws.5 Whether a claim for taxes is to be executed or not, is a question for the executive,
not for the judiciary.6 In cases where the executive is vested with discretionary power
as to whether he shall act in a given case or not, or as to the manner of the exercise of such power, he is not amenable to judicial process, his responsibility being political, but, it has been held that where a specific duty is imposed upon the executive, upon the performance of which individual rights depend, a person injured by the refusal of the executive to perform the duty may resort to the courts, but for political reasons the chief magistrate of the State cannot be compelled by mandamus to perform even a ministerial act.7

1217 (6471). Par. 2. GOVERNOR; TERM OF OF FICE, SALARY, ETC. The executive power shall be vested in a governor, who shall hold his office during the term, of two years, and until his successor shall be chosen and quali fied. He shall not be eligible to re election, after the expira tion of a second term, for the period of four years. He shall

3. Milliard v. Connelly, 7 Ga. 177, 3. Beall v. Beall, 8 Ga. 217. 4. In the case of an act sent to the governor later than five days be fore the adjournment of the session of the General Assembly, see page
1231. 5. Beall v. Beall, 8 Ga. 220. 6. Eve v. State, 21 Ga. 50. 7. Bonner -u. State, 7 Ga. 481; X,owe v. Towns, 8 Ga. 360; Park v.
Candler, 113 Ga. 667, 39 S. E. 89; Marbury v. Madison, 1 Cranch (U. S.) 137; Kendall v. United States, 12 Peters (U. S-) 524.

545 ] AMENDED CONSTITUTION OF 1877. [ 1218-1220
have a salary of three thousand dollars per annum (until otherwise provided by a law passed by a two-thirds vote of both branches of the General Assembly), which shall not be increased or diminished during the period for which he shall have been elected; nor shall he receive, within that time, any other emolument, from the United States, or either of them, or from any foreign power. But this reduction of salary shall not apply to the present term of the present governor.
Cross References: 261, 320, 377, 506, 603, 725, 924.
1218 (6472). Par. 3. ELECTION FOR GOVERNOR. The first election for governor, under this Constitution shall be held on the first Wednesday in October, I860, and the governor elect shall be installed in office at the next session of the General Assembly. An election shall take place bien nially, on said day, until another date be fixed by the Gen eral Assembly. Said election shall be held at the places of holding general elections in the several counties of this State, in the manner prescribed for the election of members of the General Assembly, and the electors shall be the same.
Cross References: 84, 321, 378, 423, 507, 604, 736, 925.
1219 (6473). Par. 4. RETURNS OF ELECTIONS. The returns for every election of governor shall be sealed up by the managers separately from other returns, and directed to the President of the Senate and Speaker of the House of Representatives, and transmitted to the Secretary of State, who shall, without opening said returns, cause the same to be laid before the Senate on the day after the two bouses shall have been organized, and they shall be transmitted by the Senate to the House of Representatives.
Cross References: 84, 507, 604, 726, 927.
1220 (6474). Par. 5. HOW PUBLISHED. The mem. bers of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the di rection of the General Assembly; and the person having the majority of the "whole number of votes shall be declared

1221-1224 ] AMENDED CONSTITUTION OF 1877. [ 546
duly elected Governor of this State; but if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice.
Cross References: 423, 507, 604, 726, 927.
1221 (6475). Par. 6. CONTESTED ELECTIONS. Contested elections shall be determined by both houses of the General Assembly in such manner as shall be prescribed by law.
Cross References: 423, 507, 604, 726, 928.
1222 (6476). Par. 7. QUALIFICATIONS OF GOV ERNOR. No person shall be eligible to the office of Gov ernor who shall not have been a citizen of the United States fifteen years, and a citizen of the State six years, and who shall not have attained the age of thirty years.
Cross References: 83, 84, 322, 379, 432, 508, 605, 727, 929.
1223 (6477). Par. 8. DEATH, RESIGNATION, OR DISABILITY OF GOVERNOR. In case of the death, resig nation, or disability of the Governor, the President of the Senate shall exercise the executive powers of the govern ment until such disability be removed, or a successor is elected and qualified. And in case of the death, resignation, or disability of the President of the Senate, the Speaker of the House of Representatives shall exercise the executive powers of the government until the removal of the disa bility, or the election and qualification of a Governor.
Cross References: 420, 509, 606, 728, 930.
1224 (6478). Par. 9. UNEXPIRED TERMS. The General Assembly shall have power to provide, by law, for filling unexpired terms by special elections.
Cross References: 728, 931.

547 1 AMENDED CONSTITUTION OF 1877. [ 1225-1227
1225 (6479). Par. 10. OATH OP OFFICE. The Governor shall, before he enters on the duties of his office, take the following oath or affirmation:--"I do solemnly swear (or affirm, as the case may be) that I will faithfully execute the office of Governor of the State of Georgia, and will, to the best of my ability, preserve, protect, and de fend the Constitution thereof, and the Constitution of the United States of America."
Cross References: 26S, 324, 381, 510, 607, 739, 932.
Small's Report, 139.
1226 (6480). Par. 11. COMMANDER-IN-CHIEF. The Governor shall be commander-in-chief of the army and navy of this State, and of the militia thereof.
Cross References: 13, 52, 271, 325, 383, 511, 608, 730, 933.
1227 (6481). Par. 12. REPRIEVES AND PAR DONS. He shall have power to grant reprieves and pardons, to commute penalties, remove disabilities imposed by law, and to remit any part of a sentence for offenses against the State, after conviction, except in cases of treason and impeachment, subject to such regulations as may be provided by law relative to the manner of ap plying for pardons. Upon conviction for treason he may suspend the execution of the sentence and report the case to the General Assembly at the next meeting thereof, when the General Assembly shall either pardon, commute the sentence, direct its execution, or grant a further re prieve. He shall, at each session of the General As sembly, communicate to that body each case of reprieve, pardon, or commutation granted, stating the name of the convict, the offense for which he was convicted, the sentence and its date, the date of the reprieve, pardon, or commutation, and the reasons for granting the same. He shall take care that the laws are faithfully executed, and shall be a conservator of the peace throughout the State.
Cross References: 14, 257, 326, 383, 512, 731, 934.
See Notes to 1124(22).
Small's Report, 139.
Historical Note: Lord Coke defines a pardon to be "A work of mercy, whereby the king either before or after attainder, sentence or

1227 ] AMENDED CONSTITUTION OF 1877.

[ 548

conviction forgiveth any offense, punishment, execution, etc." By stat ute 12 and 13 William 11.1, Chapter 2, a limitation was put upon the kings power to pardon by the provision "That no pardon under the great seal should be pleaded in bar to an impeachment by the House of Commons." This provision was incorporated in the Constitution of

held that the Constitution of 1868, removed the limitation of the par doning power which permitted the exercise of the power only "after conviction," and permitted its exercise before as well as after convic tion.
"A pardon reaches both the punishment prescribed for the of fense and the guilt of the offender, and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense." 1
Power to grant pardons and commute penalties necessarily in cludes the authority to pardon upon such terms, not unlawful, as the governor may see fit to impose; hence, he could grant a pardon for the violation of a provision of a tax act conditional upon the offender's paying the tax, although the tax act provided that upon conviction a fine in addition to the tax should be imposed to go to the fund for fines and forfeitures ; 3 and the remission of a fine by the Governor has the effect to restore it to the individual fined, and the same being in the hands of an officer unappropriated, will be refunded under a rule against such officer.3
The Governor alone can commute the punishment of a criminal and a judge has no power or authority to suspend the execution of a sentence imposed in a criminal case except as an incident to a review of the judgment; hence, a sentence to the chaingang, to which is added the words, "this sentence is suspended until further order of the court," is to be treated as if they were not added, the exercise of such a power being an unwarranted interference with the right of the executive and a violation of the principle that the
1. United States v. Athens Armory, 35 Ga. 363; Ex parte Garland, 4 "Wallace (U. S.) 333.
2. Carmichael et al. v. Banks, 102 Ga. 317, 219, 29 S. E- 211. 3. In re Flourney, Esq., Atty.-Gen., 1 Ga. 606; Parrott -u. Wilson, 51 Ga. 256.

549]

AMENDED CONSTITUTION OF 1877. [ 1228

executive and judicial branches of the government shall be sep arated.4
It is the duty of all courts to receive without further evidence of its verity the pardon of the governor under the Great Seal of the State,5 but, a pardon before conviction are based upon the confession of the imputed guilt by the accused, and before such pardon takes effect it must be accepted by the accused, and where sureties set up a pardon, it was held that, before such pardon could be held to have any effect, it was necessary to show that it had been applied for by accused, delivered to, and accepted by him. 6
An agreement to procure a pardon from the Governor, for a convict in the penitentiary, by the use of all legitimate means is neither immoral nor against public policy ;7 and a note given for professional services rendered by an attorney, on an application for a pardon to the legislature, by the use of no improper methods, is not illegal as being contrary to public policy. 8

1228 (6482). Par. 13. WRITS OF ELECTION; CALLED SESSIONS OF THE LEGISLATURE. He shall issue writs of election to fill all vacancies that may happen in the Senate or House of Representatives, and shall give the General Assembly, from time to time, information of the State of the Commonwealth, and recommend to their con sideration such measures as he may deem necessary, or expedient. He shall have power to convoke the General Assembly on extraordinary occasions; but no law shall be enacted at called sessions of the General Assembly except such as shall relate to the object stated in his proclamation convening them.
Cross References: 14, 337, 384, 513, 610, 733, 935.
Small's Report, 140.
A statement in a proclamation of the Governor convening the General Assembly in extra session, that the object of such ex tra session was "To consider legislation broadly upon the dis-

4. Ogletree v. Dozier, Sheriff, 59 Ga. 800; Neal v. State, 104 Ga. 509, 30 S. E. 858; Gordon v. Johnson, 126 Ga. 584, 55 S. E. 489.
5. Dominick -u, Bowdoin, Jailer, 44 Ga. 357. 6. Grubb, et al. Trustees v. Bullock, Gov., 44 Ga. 379. 7. Formby v. Pryor, 15 Ga. 358. 8. Meadow v. Bird, 22 Ga. 346; Bird v. Meadows, 35 Ga. 251.

1229 ] AMENDED CONSTITUTION OF 1877.

[ 550

position now and hereafter to be made of persons convicted of crime, both misdemeanor and felonies, including the estab lishment of a plan or plans for the management, confinement, and labor of convicts, and including the undertaking of such work or works in connection with which convicts may be worked, to gether with the raising of revenue and the appropriation of money to carry out such plans, and to provide for the establishment of juvenile courts and reformatories," was broad enough to authorize the passage of the act approved, September 5, 1908, levying a tax on dealers in and manufacturers of "imitations of or substitutes for beer, ale, wines, whiskey or other spirituous or malt liquors/' the purpose of which act was to raise a revenue to be used, for the development and conduct of the penitentiary system of the State. 1

1229 (6483). Par. 14. FILLING VACANCIES. "When any office shall become vacant, by death, resignation, or otherwise, the Governor shall have power to fill such vacancy, unless otherwise provided by law, and persons so appointed shall continue in office until a successor is com missioned, agreeably to the mode pointed out by this Con stitution, or by law in pursuance thereof.
Cross References: 14, 259, 385, 514, 611, 733, 936.
See Notes to 1102,
The word "term" as applied to a public office ordinarily means a fixed and definite time, and unless he is authorized to hold over, his rights, duties and authority cease, and an officer cannot, after his election, by resignation affect the term or time for which he was chosen, 1 and he must discharge the duties of his office until his successor is commissioned and qualified. 2
An office is vacated by removal from State, county, circuit or district from which elected;3 or by failure through the fault of the

1. Carroll v. Wright, 131 Ga. 728, 63 S. E. 260; Carswell v. Wright, 133 Ga. 714, 66 S- E. 905.
1. Crovatt -V. Mason, 101 Ga. 346, 28 S. E. 891. 2. Ay cock v. Owen, 35 Ga. 694; Gormley v. Taylor, 44 Ga. 76; Wal ker -v. Ferrill, 58 Ga. 513; Smith v. Meador, 74 Ga. 416; Roby v. State, 74 Ga. 812; Bates v, Bigby, 133 Ga. 727, 51 S. E. 717. 3. Code, 364; Channel v. State, 109 Ga. 150, 34 S. E. 353; Jones V. Collier, 65 Ga. 553; Smith v, Meador, 74 Ga. 416; Hinton v. Lindsay, 20 Ga. 746.

551 ] AMENDED CONSTITUTION OF 1877. [ 123O-1231
officer to obtain commission ;4 or by abandonment ;5 or by removal from office under provision therefor.6
Relatively to the right of the Governor to fill office by appoint ment, it is immaterial whether it has "become vacant;" the right of appointment exists whenever a vacancy exists.7
1230 (6484). Par. 15. APPOINTMENTS RE JECTED. A person once rejected by the Senate shall not be reappointed by the Governor to the same office during the same session, or the recess thereafter.
Cross References: 515, 612, 734, 937.
1231 (6485). Par. 16. GOVERNOR'S VETO. The Governor shall have the revision of all bills passed by the Gen eral Assembly, before the same become laws, but two-thirds of each house may pass a law notwithstanding- his dissent; and if any bill should not be returned by the Governor within five days (Sunday excepted) after it has been presented to him, the same shall be a law, unless the General Assembly, by their adjournment, shall prevent its return. He may ap prove any appropriation, and disapprove any other appro priation, in the same bill, and the latter shall not be effectual unless passed by two-thirds of each house.
Cross References: 14, 18, 329, 386, 516, 613, 735, 938.
Historical Note: The right of veto (I forbid) appertained to the office of Tribune under Roman Law, and to the Sovereign, without question or limitation under English Law until the Revolution of 1688, but no English Sovereign has exercised the power with respect to an Act of Parliament since 1708 and it is now virtually obsolete under the English Constitution. With respect to the acts of the Colonial Assem blies, the power of the vote was conferred upon the Governor of each of the colonies, and was exercised by the King himself, even after laws had passed the Colonial Legislature and had been approved by the Governor, thus creating the grievance set forth in the Declaration of Independence, That "He (the King) has refused his assent to laws most wholesome and necessary for the public good." "Watson on U. S- Constitution, vol. 1, page 354: Bagehot, English Constitution, Ch. 3.
Small's Report, 140.
4. Code, 264; Ross v. Williamson, 44 Ga. 501; Bosworth v. "Walters, 46 Ga. 635; Bassett v. Governor, 11 Ga. 207; Stephens v. Crawford, 1 Ga. 574; Fulton County v. Clarke, 73 Ga. 665.
5. Code, 264; Jones v. Collier, 65 Ga. 553. 6. Gray v. McLendon, 134 Ga. 241, 67 S. E. 859. 7. Gormley v. Taylor, 44 Ga. 77.

1232-1233 ] AMENDED CONSTITUTION OF 1877. [ 552
Failure of Governor to approve or veto a law within five days. after presentation to him, if during session, amounts to waiver of right to veto and is tantamount to approval; failure to act on bill within five days after adjournment is tantamount to disapproval by what is known as "pocket veto," and no possibility of passing bill over veto then existing, the bill necessarily dies. Right of Governor to sign bills after adjournment, within five days, under Constitution 1868, doubted as an original and abstract proposition, but upheld upon ground that usage of Executive Department amounts to construction of constitutional provisions on the subject by the Executive Department, upholding such right, which con struction will be upheld by courts in deference to coordinate branch of government. 1 Same doubt expressed under Constitution of 1877. 2
1232 (6486). Par. 17. GOVERNOR MUST AP PROVE. Every vote, resolution, or order, to which the concurrence of both houses may be necessary except on a question of election or adjournment, shall be presented to the Governor, and, before it shall take effect, be approved by him, or, being disapproved, shall be repassed by twothirds of each house.
Cross References: 18, 60, 61, 365, 329, 386, 419, 516, 735, 938.
See Watson, U. S- Constitution, vol. 1, p. 377.
The above provision has no application to the action of the General Assembly in removing a railroad commissioner under the Act of 1879, no concurrent or joint resolution of the House and Senate being necessary, it being only necessary that each house should de clare by a majority vote that the suspended commissioner be re moved. 1
1233 (6487). Par. 18. INFORMATION FROM DE PARTMENT OFFICERS, TREASURER, AND COMPTROL LER. He may require information in writing from the officers in the Executive Department, on any subject re lating to the duties of their respective offices. It shall be
1. Solomon -v. Commissioners of Cartersville, 41 Ga. 157; Danielly v. Cabanis, 52 Ga- 211.
2. Temple Baptist Church v. Ga. Terminal Co., 128 Ga. 669, 58 S. E. 157.
1. Gray v. McLendon, 134 Ga. 244.

553 ] AMENDED CONSTITUTION OF 1877'. [ 1234-1235
the duty of the Governor, quarterly, and oftener if he deems it expedient, to examine under oath, the treasurer and comptroller-general of the State on all matters pertaining to their respective offices, and to inspect and review their books and accounts. The General Assembly shall have au thority to provide by law for the suspension of either of said officers from the discharge of the duties of his office, and also for the appointment of a suitable person to dis charge the duties of the same.
Cross Reference: 940.
1234 (6488). Par. 19. SECRETARIES. The Gov ernor shall have power to appoint his own secretaries, not exceeding two in number and to provide such other clerical force as may be required in his office; but the total cost for secretaries and clerical force in his office shall not exceed six thousand dollars per annum.
Cross References: 390, 520, 617, 739, 941.
Small's Report, 148, 278-281.
SECTION 2.
OTHER EXECUTIVE OFFICERS.
1235 (6489). Paragraph 1. SECRETARY OF STATE, COMPTROLLER, AND TREASURER, HOW ELECTED. The secretary of State, comptroller-general and treasurer, shall be elected by persons qualified to vote for members of the General Assembly, at the same time and in the same manner as the Governor. The provisions of the Constitution as to the transmission of the returns of elec tion, counting the votes, declaring the result, deciding when there is no election, and when there is a 'contested election, applicable to the election of Governor, shall apply to the election of secretary of State, comptroller-general, and treasurer; they shall be commissioned by the Governor and hold their offices for the same time as the Governor.
Cross References: 388, 518, 615, 737, 942.
As to State Treasurer, see Notes to 1316.
Small's Report, 18, 141.

1236-1240 ] AMENDED CONSTITUTION OF 1877. [ 554
1236 (6490). Par. 2. TREASURER'S SALARY. The salary of the treasurer shall not exceed two thousand dollars per annum. The clerical expenses of his depart ment shall not exceed sixteen hundred dollars per annum.
Cross Reference: 943.
Small's Report, 142, 143, 141.
1237 (6491). Par. 3. SALARY OF SECRETARY OF STATE. The salary of the secretary of State shall not exceed two thousand dollars per annum, and the clerical expenses of his department shall not exceed one thousand dollars per annum
Cross References: 388, 518, 615, 737, 944.
Small's Report, 143-147.
1238 (6492). Par. 4. COMPTROLLER-GENER AL'S SALARY. The salary of the comptroller-general shall not exceed two thousand dollars per annum. The clerical expenses of his department, including the insurance depart ment and wild-land clerk, shall not exceed four thousand dollars per annum; and without said clerk, it shall not ex ceed three thousand dollars per annum.
Cross References: 388, 578, 615, 737, 945.
Small's Report, 142, 143, 144.
1239 (6493). Par. 5. PROFIT FROM USE OF PUBLIC MONEY. The treasurer shall not be allowed, di rectly or indirectly, to receive any fee, interest, or reward from any person, bank, or corporation, for the deposit or use, in any manner, of the public funds; and the General Assembly shall enforce this provision by suitable penalties.
Cross Reference: 946.
See Code, 228, 1251, and Acts of 1878-'79, p. 88.
1240 (6494). Par. 6. QUALIFICATIONS. No per son shall be eligible to the office of secretary of State, comptroller-general, or treasurer unless he shall have been a citizen of the United States for ten years, and shall have resided in this State for six years next preceding his elec-

555 ] AMENDED CONSTITUTION OF 1877. [ 1241-1243
tion, and shall be twenty-five years of age when elected. All of said officers shall give bond and security, under regu lations to be prescribed by law, for the faithful discharge of their duties.
Cross Reference: 947. Small's Report, 147.
1241 (6495). Par. 7. FEES AND PERQUISITES DENIED. The secretary of State, the comptroller-general, and the treasurer shall not be allowed any fee, perquisite, or compensation, other than their salaries as prescribed by law, except their necessary expenses when absent from the seat of government on business for the State.
Cross Reference: 948. Small's Report, 147.
SECTION 3.
SBAL OP STATS.
1242 (6496). Paragraph 1. GREAT SEAT.. The great seal of the State shall be deposited in the office of the secretary of State, and shall not be affixed to any instru ment of writing except by order of the Governor, or General Assembly, and that now in use shall be the great seal of the State until otherwise provided by law.
Cross References: 37, 395, 330, 389, 519, 616, 738, 949. Small's Report, 148.
ARTICLE VI.
JUDICIARY.
SECTION 1.
COURTS.
1243 (6497). Paragraph 1. COURTS ENUMER ATED. The judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, Superior Courts, Courts of ordinary, justices of the peace, commissioned notaries

1243 ] AMENDED CONSTITUTION OF 1877,

[ 556

public, and such other courts as have been or may be estab lished, by law.
Cross References: 19, 22, 25, 86.
See cross reference sections to each particular court.
See Notes to 1348, 1253, 1356, 1258.
The judicial power of the State is that which declares what the law is and applies it to past transactions, and to existing cases, 1 its business and design being to administer justice according to the law of the land. 2 Its powers are derived from the people speaking through the constitution, or through the legislature in cases where its power is unrestricted by the constitution,3 or in such cases as the constitution authorizes it to confer judicial power.4 It is the balance wheel of the several departments of the government, under the obligation of holding them steadily to their spheres,5 with the power to declare acts of the legislature repugnant to the constitu tion, null and void,6 exercising such power only in clear cases, free from doubt,7 and giving effect to all presumptions in favor of the validity of laws passed by the legislative department,8 not judging of the wisdom, policy or expediency of laws--these matters being purely of legislative jurisdiction and cognizance,9 and not restrain ing the legislative discretion by construction. 10 But the courts may inquire of the reasonableness or unreasonableness of a body of rates prescribed by a legislative commission and restrain their operation if they work a deprivation of property rights, 11
The three departments of government being separate and dis-

1. State -v. Dews, R. M. Charlton 400; McLeod v. Burroughs, 9 Ga. 213; Wilder v. Lumpkin, 4 Ga. 313.
2. Beall v. Beall, 8 Ga. 217. 3. Macon & Western R. R. v. Davis, 13 Ga. 33. 4. Power to create "other courts" conferred by this paragraph. 5. Wilder v. L,umpkin, 4 Ga. 211. 6. Bank of St. Mary's V. State, 12 Ga. 475. See notes to 1137. 7. Cutts v. Hardee, 38 Ga. 350; Macon & Western R. R. v. Davis, 13 Ga. 83; Winter V. Jones, 10 Ga. 190; Carey -u. Giles, 9 Ga. 353; Frank lin Bridge Co. v. Wood, 14 Ga. 80; Beall v. Beall, 8 Ga. 253, 8. Beall v. Beall, 8 Ga. 316; Boston v. Cummins, 16 Ga. 102; Hood v. Von Ghlan, 88 Ga. 412, 14 S- E. 564. 9. Equitable Loan Co. v. Waring, 117 Ga. 599, 44 S. E. 320. See also, note 13 to 1124. 10. Walker v. Whitehead, 43 Ga. 538. 11. Southern Rwy. Co. v. Atlanta Stove Works, 128 Ga. 207, 224, 57 S- E. 429.

557 ]

AMENDED CONSTITUTION OF 1877. [ 1243

tinct, it is not permissible for the legislature to delegate legislative power to the courts, but they may be invested with the power to make rules for the conduct of business in them, and they have the inherent power to punish for contempts, and the legislature cannot define what contempts are and that the courts shall have jurisdic tion over no other acts than those specified, 12 but the legislature can prescribe the punishment after conviction. 13 A legislative act providing that a judge of a city court shall be ex officio a member of the board of county commissioners is not repugnant to the con stitution upon the ground that it seeks to confer legislative duties upon a judicial officer, 14 nor is the power to grant charters to corporations a delegation of legislative power.15
The courts may enforce individual rights involved in the per formance by the governor of a mere ministerial act, but they can not, for political reasons, compel him by mandamus to perform such act, 16 but they can investigate the validity of elections and decide title to office even after the governor has commissioned one of two claimants. 17
The legislature may create such special tribunals as that for try ing contested elections, 18 and such other special courts as it may see fit, and where it creates a new and independent single court adapted to the peculiar needs of a particular locality, and having only criminal jurisdiction over misdemeanors, it is not requisite that the jurisdiction of this special court shall be uniform with the jurisdiction and procedure of existing courts of an altogether dif ferent class of courts, having and exercising jurisdiction over misdemeanors; hence, the act of September 6, 1891, establishing the criminal court of Atlanta, is not unconstitutional because it withdraws criminal jurisdiction from the City Court of Atlanta nor because its powers and proceedings are not uniform with the procedure and powers of the Superior and County courts of the State, nor because it fails to provide for demand for indictment,

12. Phlnazee v. Eve, 108 Ga- 363, 33 S. E. 1007; Powers v. Inferior Court, 23 Ga. 65 ; Mayor & Alderman of Savannah -u. Hussey, 31 Ga. 90; Ga. R. R. v. Smith, 70 Ga. 698.
13. Bradley v. State, 111 Ga. 168, 36 S. E. 630. 14. Phinazy V. Eve, 108 Ga. 360, 33 S. E. 1007. 15. Franklin Bridge Co. v. Wood, 14 Ga. 80. 16. Low v. Towns, 8 Ga. 360. 17. Low z>. Towns, 8 Ga. 360; White v. Hart, 13 Wallace 646; Mosley v. Hogg, 45 Ga. 601; Macon R. R. Co. v. Little, 45 Ga. 307. 18. Freeman et al. v. State, 73 Ga. 812.

1244 ] AMENDED CONSTITUTION OF 1877.

[ 558

nor because It provides for a trial before a jury of five; 19 and the legislature has ample power to establish a city court in a certain city and give it jurisdiction over the entire county In which the city is located; but the legislature has no power to establish a "city court" anywhere but in a city, and to denominate a court a "city court" does not make it such, and the legislature cannot confer power on a city court to grant new trial, nor upon the supreme court to entertain bills of exceptions from it unless the court is one established in a city. 20
The courts of this State have recognized the distinction between the ordinary and courts of ordinary, and between a justice of the peace and the court over which he is authorized to preside; both of these officers are constitutional officers vested with judicial powers. 21

SECTION 2.
SUPREME COURT, AND COURT of APPEALS.
1244 (6498). Paragraph 1. SUPREME COURT JUDGES. The Supreme Court shall consist of a Chief Justices and five Associate Justices. A majority o? the court shall constitute a quorum.
Cross References: 14, 52(5), 86, 427, 532, 619, 951. Small's Report, 26, 29, 168-182, 184.

For reorganization of Supreme Court after the adoption of the con stitutional amendment proposed in 1895 (acts of 1895, p. 15), see "Re organization of Supreme Court," 97 Ga. pp. V-XVI.
19. Welborn v. Donaldson, 115 Ga. 565, 41* S. E. 999. 20. "Western Union Telegraph Co. V. Jackson, 98 Ga. 207, 25 S. E. 264; "Wight & Wellosky Co. v. Wolf & Harp, 113 Ga. 169, 37 S. E- 395; Atkinson v. State, 113 Ga. 402, 37 S. E. 746; Wellborne v. State, 114 Ga. 804, 40 S- E. 857. 21. Cunningham v. -U- S. Savings & Loan Co., 109 Ga. 617, 34 S. E. 1024; Dunagan v. Straddler & Co., 101 Ga. 477, 29 S. E- 440; 120 Ga. 919, 48 S. E. 383.

559 ] AMENDED CONSTITUTION OF 1877. [ 1245-1248
1245 (6499). Par. 2. GOVERNOR TO DESIGNATE JUDGES TO PRESIDE, WHEN. When one or more of the judges are disqualified from deciding any case, by interest or otherwise, the Governor shall designate a judge, or judges, of the superior courts, to preside in said case.
Cross Reference: 95S.
Small's Report, 184.
If a quorum of the justices of the Supreme Court participate in a decision, it is not void because one of the justices does not par ticipate therein. 1
1246 (6500). Par. 3. BONDHOLDING JUDGE DISQUALIFIED, WHEN. No judge of any court shall pre side in any case where the validity of any bond--Federal, State, corporation or municipal--is involved, who holds in his own right, or as the representative of others, any ma terial interest in the class of bonds upon which the question to be decided arises.
Cross Reference: 953.
Small's Report, 180, 181, 184, 185.
1247 (6501). Par. 4. TERMS OF OFFICE. The Chief Justice and Associate Justices shall hold their offices for six years, and until their successors are qualified. A successor to the incumbent whose term will soonest expire shall be elected by the General Assembly in 1880; a suc cessor to the incumbent whose term of office is next in duration shall be elected by the General Assembly in 1882; and a successor to the third incumbent shall be elected by the General Assembly in 1884; but appointments to fill vacancies shall only be for the unexpired term, or until such vacancies are filled by elections, agreeably to the mode pointed out by this Constitution.
Cross References: 98, 427, 533, 741, 954.
1248 (6502). Par. 5. JURISDICTION. The Supreme Court shall have no original jurisdiction, but shall be a
1. Greene County et al. v. Wright, Comp. General, 127 Ga. 150, 56 S. E. 288.

1248 ] AMENDED CONSTITUTION OF 1877.

[ 560

court alone for the trial and correction of errors in law and equity from the superior courts in all civil cases, whether legal or equitable, originating therein or carried thereto from the court of ordinary, and in all cases of conviction of a capital felony, and for the determination of questions certi fied to it by the Court of Appeals; and shall sit at the seat of government at such times in each year as are or may be prescribed by law, for the trial and determination of writs of error from the superior courts and of questions certified to it as aforesaid. The provisions of this paragraph shall become effective on the first day of January, Anno Domini nineteen hundred and seven, but shall not affect cases, which on that date are pending in the Supreme Court, except that cases then pending therein of the kind of which the Court of Appeals has jurisdiction may be transferred by the Su preme Court to the Court of Appeals. Any case thereafter carried to the Supreme Court which is of the class of which the Court of Appeals has jurisdiction may be transferred to the Court of Appeals, tinder such rules as the Supreme Court may prescribe, until otherwise provided by law; and the Court of Appeals shall try the cases so transferred.
Cross References: 427, 523, 630, 742, 955.
See Notes to 1252, 1243.
The jurisdiction referred to in this section has no reference to persons, but only "to subject matter ;' J1 and the supreme court, being a court "for the correction of errors," 2 it cannot pass upon any question not made in the court below, and it has no jurisdic tion to decide any question on any writ of error unless the bill of exceptions "plainly and specifically sets forth the errors alleged to have been committed," and "a special assignment of error" raises the question ;3 hence, a general complaint in a motion for new trial that the verdict is "contrary to law" is not a special assignment of error;4 and, where it appears from the certificate of the judge that the bill of exceptions is not true, in whole or in part, the su preme court cannot entertain the bill, because it can only try and correct errors actually committed in the court below, and to correct

1. Starnes v. Mutual Loan & Banking Co., 103 Ga. 601, 39 S. E. 452. 2. Henderson v. State, 133 Ga. 750, 51 S. E. 385. 3. Kelly v. Strouse Bros., 116 Ga. 874, 43 S- E. 380. 4. Herndon v. State, 111 Ga. ISO, 36 S. E. 634.

561 ] . AMENDED CONSTITUTION OF 1877. [ 1248
errors not committed below would be to exercise original juris diction ;5 and, when a verdict is authorized by the evidence, though conflicting, and no errors of law were committed, the Supreme Court cannot interfere.6
The Supreme Court having no original jurisdiction, it cannot hear evidence impeaching the verity of a record from the trial court, and, in the absence of statutory provision, it has no au thority to try a traverse to a return of service of a bill of excep tions, and having no power to try such issue of fact, it has no power to delegate such power by referring to the trial court the issue of fact as to the truth or falsity of such return.7 The Su preme Court of Georgia is coequal and coordinate with the Su preme Court of the United States; therefore, the latter cannot give the former an order, or create for it a precedent8 and it is doubtful if the Supreme Court can by writ of mandamus compel a judge of a superior court to admit a prisoner to bail pending the hearing of his appeal, or compel the court to do any act except some act necessary to enable the supreme court to hear the case; for ex ample, to certify a bill of exceptions ;9 but the Supreme Court may hear evidence on motion to dismiss for an accord and satisfaction of the judgment appealed from,10 and it has frequently heard evi dence in cases involving the refusal to grant injunctions, (and in one case where an injunction had been granted,) not for the purpose of reversing the judgment of the trial judge, but for the purpose of showing that since the interlocutory order of the lower court had been passed circumstances had occurred which would render nugatory any judgment which the Supreme Court might render in the case. 11
The jurisdiction of the Supreme Court extends to the trial and correction of errors only from such courts as are specifically men tioned in this section of the Constitution, and since, under the law creating the Court of Appeals, that court is to determine whether a constitutional question is necessary to a determination of a case
5. Hawkins et al. v. Mayor & Council of Americus, 102 Ga. 786, 30 S. E. 519.
6. Brodnax et al. -v. Carr, 75 Ga. 849. 7. Ga., Fla. & Ala. Railroad Co. v. Lasseter, 123 Ga. 679, 51 S- E. 15. 8. Padelford, Fay & Co. V. Mayor, Savannah, 14 Ga. 438. 9. Vandeford v. Brand, 126 Ga. 68, 54 S- E. 822. 10. Atlanta & Fla. Railroad Co. v. Blanton, 80 Ga. 563, 6 S. E. 584. 11. Marietta Chair Company -v. Henderson, 119 Ga. 65, 45 S. E. 735.
--36

1248 ] AMENDED CONSTITUTION OF 1877. ___[562
pending in such court and where it certifies such a question, the Supreme Court will not examine the records to see whether such question is in fact necessary or not, the Supreme Court having no jurisdiction under the Constitution to review a decision of the Court of Appeals on any question, and no jurisdiction of any sort in such case, but to decide the constitutional question certified to it. 12
An agreement to try a case before three lawyers, with the right to
carry the case to the Supreme Court, did not give that court juris
diction of the writ of error. 13 A court is not a "city court" in the constitutional sense, though
designated as such by the act creating it, if it is located elsewhere than at a county site, and at a county site which has been expressly incorporated as a city, or if it provides that a jury of less than twelve can try a case, and a writ of error will not lie from such a court to the Supreme Court ; 14 and courts established upon the recommendation of grand juries under the provisions of the Act of October 19, 1891, as amended by the Act of December 23, 1892, are not city courts in the constitutional sense ; 15 but the general assembly may, without regard to the population of a particular city, establish therein a "city court" and prescribe that a writ of error shall lie therefrom to the Supreme Court. 16 A city court may be established in a county seat which is a city, and given juris diction over the entire county, without making its practice uniform -with that of county courts, 17 and the effect of the act to establish the "city court of Brunswick in and for the county of Glynn," the court created being of like character and jurisdiction as the city courts of Savannah and Atlanta, and providing that "said court shall be held at the courthouse of Glynn County" was to establish in the city of Brunswick, a city court with jurisdiction over the whole county of Glynn, and to give the Supreme Court jurisdic tion of a writ of error from such court. 18
12. Harvey v. Thompson, 128 Ga. 148, 157 S. E- 104. 13. Stanton -v. Speer, 69 Ga. 771. 14. Wellborne v. State, 114 Ga. 793, 40 S- E. 857; Clay v. Houk, 102 Ga. 549, 26 S. E. 769; Cooper v. State, 103 Ga. 406, 3O S. E. 249; Crosson v. State, 124 Ga. 651, 53 S. E. 880. 15. Stewart v. State, 98 Ga. 303, 35 S. E. 434; Western Union Tele graph Company v. Jackson, 98 Ga. 209, 25 S. E. 364; "Well v. Newton, Sheriff, 101 Ga. 141, 38 S. E. 640. 16. Heard v. State, 113 Ga. 448, 39 S- E. 118. 17. Whittendale v. Dixon & Brother, 70 Ga. 721. 18. Johnson v. Hilton & Dodge Lumber Co., 103 Ga. 213, 29 S. E. 819.

563 ]

AMENDED CONSTITUTION OF 1877. [ 1249

An order passed by a judge of the superior court in a proceeding instituted under Code, 307, for the production of books, papers, or other property, is not reviewable on a writ of error, such pro ceeding not being a proceeding "in a superior court;" 19 but the judg ment rendered by a judge of a city court when sitting in a habeas corpus case, is reviewable on a writ of error. 20
The Supreme Court and not the Court of Appeals has jurisdic tion of a writ of error, where a writ of habeas corpus is sued out before the ordinary, and his decision was carried to the superior court by certiorari, and a writ of error was taken to the order of the judge of the superior court thereon ; 21 and when a person is accused of murder and convicted, but recommended to mercy and imprisonment for life, the writ of error is returnable to the Su preme Court and not the Court of Appeals. 22

1249 (6503). Par. 6. CASES, HOW DISPOSED OF. The Supreme Court shall dispose of every case at the first or second term after such writ of error is brought; and in case the plaintiff in error shall not be prepared at the first term to prosecute the case unless prevented by providen tial cause it shall be stricken from the docket, and the judgment below shall stand affirmed.
Cross References: 427, 524, 621, 743, 956.
The constitution constrains an adjudication at the second term, 1 and providential cause is not good ground for postponement ex cept at the first term, 2 and the .first term is the term at which the record reaches the supreme court, and an act providing that where a record reaches the Supreme Court after the docket of the cir cuit to which the case belonged was ended should go over to the next term, such act was unconstitutional.3 Where for want of time to hear, during a particular term, oral argument in civil cases en-

19. Albea -u. Watts, 114 Ga. 149, 39 S. E. 940. 20. Barrang-er v. Baum, 103 Ga. 468, 30 S. E. 534. 21. Hendley v. Adams, 129 Ga. 518, 59 S. E- 227. 22. Caesar v. State, 127 Ga. 71S, 57 S. E. 66.
1. Howard v. State, 73 Ga. 83. 2. Davis v. Bennett, 72 Ga. 766. 3. Jones v. Fayne, 41 Ga. 32.

1250-1251 ] AMENDED CONSTITUTION OF 1877. [ 564
named, all such cases must be treated as though they had been called for argument upon that day, and in any case "when briefs were not filed by plaintiffs in error by that day, the case must be dismissed.4
1250 (6504). Par. 7. JUDGMENTS MAY BE WITHHELD. In any case the court may, in its discretion, withhold its judgment until the next term after the same is argued.
Cross References: 427, 524, 621, 743, 956.
1251 (6505). Par. 8. THE SUPREME COURT JUDGES. The Supreme Court shall hereafter consist of a Chief Justice and five Associate Justices. The court shall have power to hear and determine cases when sitting either in a body or in two divisions of three judges each, under such regulations as may be prescribed by the Gen eral Assembly. A majority of either division shall consti tute a quorum for that division. The Chief Justice and the Associate Justices of the Supreme Court shall hereafter be elected by the people at the same time and in the same manner as the Governor and the State house officers are elected, except that the first election under this amend ment shall be held on the third Wednesday in December, 1896, at which time one Associate Justice shall be elected for a full term of six years, to fill the vacancy occurring on January 1st, 1897, by the expiration of the term of one of the present incumbents, and three additional Associate Justices shall be elected for terms expiring, respectively, January 1st, 1899, January 1st, 1901, and January 1st, 1903. The persons elected as additional Associate Jus tices shall, among themselves, determine by lot which of the three last-mentioned terms each shall have, and they shall be commissioned accordingly. After said first elec tion, all terms (except unexpired terms) shall be for six years each. In case of any vacancy "which causes an unexpired term, the same shall be filled by executive appointment, and the person appointed by the Governor shall hold his
4. Irwin v. A. K. & N. Ry. Co., 113 Ga. 185, 38 S. E. 407; Griffith v. Mitchell, 117 Ga. 476, 43 S. E. 743.

565 ]

AMENDED CONSTITUTION OF 1877. [ 1252

office until the next regular election, and until his successor for the balance of the unexpired term shall have been elected and qualified. The returns of said special election shall be made to the Secretary of State.
Cross References: 1079, 1080.

1252 (6506). Par. 9. COURT OF APPEALS. The Court of Appeals shall, until otherwise provided by law, con sist of three Judges, of whom two shall constitute a quorum.
It shall sit at the seat of government and at such other places as may be prescribed by law. The Governor shall, imme diately on the ratification of this amendment, call an elec tion, to be held on Tuesday after the first Monday in No vember, Anno Domini nineteen hundred and six, at which the judges of the Court of Appeals shall be elected in the manner in which Justices of the Supreme Court are elected. The returns of said election shall be made to the secretary of State, and the secretary of State shall canvass the returns and declare the three persons receiving the greatest number of votes to be elected. The terms of office of the Judges then elected shall begin on the first day of January, Anno Domini, nineteen hundred and seven, and shall continue respectively, two, four, and six years and until their successors are qualified. The persons so elected shall, among themselves, determine by lot "which of the terms each shall have, and they shall be commissioned accordingly by the Governor. All terms of the Judges of the Court of Ap peals after the expiration of the terms aforesaid (except unexpired terms) shall continue six years and until their successors are qualified. The times and manner of all other elections, and the mode of filling a vacancy, which causes an unexpired term, shall be the same as are or may be pro vided for by the laws relating to the election and appoint ment of Justices of the Supreme Court. The Court of Ap peals shall have jurisdiction for the trial and correction of errors in law and equity from the superior courts in all cases in which such jurisdiction is not conferred by this Constitu tion on the Supreme Court, and from the city courts of At lanta and Savannah, and such other like courts as have been or may be hereafter established in other cities, and in such other cases as may hereafter be prescribed by law; except

1252 ] AMENDED CONSTITUTION OF 1877.

[ 566

that "where, in a case pending in the Court of Appeals, a ques tion is raised as to the construction of a provision of the Con stitution of this State or of the United States, or as to the con stitutionality of an Act of the General Assembly of this State, and a decision of the question is necessary to the determina tion of the case, the Court of Appeals shall so certify to the Supreme Court, and thereupon a transcript of the record shall be transmitted to the Supreme Court, which, after having af forded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certi
fied, and the Court of Appeals shall be bound by the instruc tion so given. But if by reason of an equal division of opinion among the Justices of the Supreme Court no such instruction is given, the Court of Appeals may decide the question. The Court of Appeals may at any time certify to the Supreme Court any other question of law concerning which it desires the instruction of the Supreme Court for proper decision; and thereupon the Supreme Court .shall give its instruction on the question certified to it, which shall be binding on the Court of Appeals in such case. The man ner of certifying questions to the Supreme Court by the Court of Appeals, and the subsequent proceedings in regard to the same in the Supreme Court, shall be as the Supreme Court shall by its rules prescribe, until otherwise provided by law. No affirmance of the judgment of the court below, in cases pending in the Court of Appeals, shall result from delay in disposing of questions certified by the Court of Appeals to the Supreme Court. All "writs of error in the Court of Ap peals when received by its clerk during a term of the court and before the docket of the term is by order of the court closed, shall be entered thereon, and when received at any other time shall be entered on the docket of the next term, and they shall stand for hearing at the term for "which they are so entered, under such rules as the court may prescribe, until otherwise provided by law. The Court of Appeals shall appoint a clerk and a sheriff of the court. The reporter of the Supreme Court shall be reporter of the Court of Appeals, until otherwise provided by law. The first term of the Court of Appeals shall be held on the first Monday in January, Anno Domini nineteen hundred and seven. The laws relating to the Supreme Court, as to qualifications and salaries of the

567 ]

AMENDED CONSTITUTION OF 1877. [ 1252

judges, the designation of other judges to preside when mem bers of the court are disqualified, the powers, duties, sala ries, fees, and terms of officers, the mode of carrying cases to the court, the powers, practice, procedure, times of sit ting1, and costs of the court, the publication of reports of cases decided therein, and in all other respects, except as otherwise provided in this Constitution, and until otherwise provided by law, shall apply to the Court of Appeals, so far as they can be made to apply. The decisions of the Supreme Court shall bind the Court of Appeals as precedents.
Cross References: 123, 1090, 1091, 1092.
Historical Note: The Court of Appeals came into existence on the 13th day of October, 1906, the day of the Governor's proclamation that the constitutional amendments creating such courts were ratified. Gainesville Midland Railway v. Jackson, 1 Ga. App. 632.
Court of Appeals has same jurisdiction as Supreme Court in its peculiar sphere, 1 but it and Supreme Court have no concurrent juris diction. 2 However, Supreme Court has jurisdiction of "writ of error sent to it although case is within exclusive jurisdiction of Court of Appeals to extent of transferring it to Court of Appeals for trial.3 Question of "which court has jurisdiction of writ of error sent to Court of Appeals referred to Supreme Court for decision when Court of Appeals is of opinion that jurisdiction of case is in Su preme Court,4 and Supreme Court will receive and consider bill of exceptions received.5
Constitutionality of law raised in Court of Appeals, that court de cides whether decision upon such question necessary for proper de termination of case, and if it decides such decision not necessary, it will decide case without certifying such question, 6 and it is undeter-

1. Finley v. Sou. Rwy. Co., 5 Ga. App. 724, 64 S- E. 312. 2. Ford v. Harris, 3 Ga. App. 783, 60 S. E. 835. 3. Durant Lumber Co. v. Tyson & Vickers, 3 Ga. App. 209, 58 S. E. 485. 4. Ford v. Harris, 3 Ga. App. 783, 60 S. E. 835; Dawson v. State, 130 Ga. 127, 60 S. E. 315; Mitchell v. Masury, 132 Ga. 360, 64 S. E. 275; Jones v. Williams, 132 Ga. 782, 64 S. E. 1081; Bland V. Bird, 134 Ga. 74, 67 S. E. 427; Albritton v. Tygart, 134 Ga. 485, 68 S. E. 79. 5. Albritton v. Tygart, supra, and other cases cited in preceding notes. 6. Southern Rwy. Co. v. Schliter, 1 Ga. App. 30, 58 S- E- 29; Walker v. Swift Fertilizer Works, 3 Ga. App. 284, 59 S. E. 850; Yeates v. Rob inson, 4 Ga. App. 578, 62 S. E. 104.

1253 ] AMENDED CONSTITUTION OF 1877.

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mined whether Supreme Court has power, in any case, to compel Court of Appeals by mandamus to certify case to Supreme Court, but it will not be so compelled where constitutional question was one of those involved in case, and case proceeded to trial in Court of Appeals without request to certify such question until motion for rehearing made after adverse decision upon case by Court of Ap peals.7 In determining existence of constitutional question neces sary to be decided, Court of Appeals will follow decision of Su preme Court, 8 and when a clause of the Constitution has been con strued by the Supreme Court as having a certain meaning there can be no question of that meaning, and attempt to raise it will not re quire Court of Appeals to certify such question to Supreme Court,9 but if Court of Appeals does certify question, Supreme Court will not examine record to see if decision of such question necessary. 10
Constitutionality of Municipal Ordinance not raising- any question as to construction of any provision of the Constitution of this State or of the United States or any act of the General Assembly, Court of Appeals can decide such question. 11
Supreme Court and Not Court of Appeals has jurisdiction of writ of error excepting to ruling of Superior Court on certiorari of ha beas corpus case from decision of ordinary, 12 and of writ of error to review case where person tried for murder and convicted and, upon recommendation of jury, sentenced to penitentiary for life, such conviction being "of a capital felony." 13

SECTION 3.
SUPERIOR COURTS.
1253 (6507). Paragraph 1. TERMS, ETC., OF SU PERIOR-COURT JUDGES. There shall be a judge of the su perior courts for each judicial circuit, whose term of office
7. In re Youmans, 133 Ga. 559. 8. Ox Breeches Manufacturing Co. -u. Bird, 1 Ga. App. 40, 57 S. E. 975; Central Rwy. Co. v. Augusta Brokerage Co., 2 Ga. App. 514, 58 S. E. 904; Tooke v. State, 4 Ga. App. 500, 61 S. E. 917. 9. Fears v. State, 1 Ga. App. 125, 58 S. E. 64; Middleton v. State, 7 Ga. App. 1, 66 S. E. 23; Mock v. "Waters, 6 Ga. App. 608, 65 S. E. 579. 10. Harvey v. Thompson, 138 Ga. 147, 57 S. E- 104. 11. Wright v. Macon, 5 Ga. App. 755, 64 S. E. 807; Campbell V. Thomasville, 63 Ga. App. 325. 13. Henley v. Adams, 129 Ga. 518, 59 S. E. 327. 13. Caesar v. State, 127 Ga. 713, 57 S. E. 66.

569 ]

AMENDED CONSTITUTION OF 1877. [ 1254

shall be four years, and until his successor is qualified. He may act in other circuits when authorized by law. The leg islature shall have authority to add one or more additional judges of the Superior Court for any judicial circuit in this State, and shall have authority to regulate the manner in which the judges of such circuits shall dispose of the busi ness thereof, and shall fix the time at which the term or terms of office of such additional judge or judges shall begin, and the manner of his appointment or election, and shall have authority from time to time to add to the number of such judges in any judicial circuit, or to reduce the number of judges in any judicial circuit. Provided, that at all times there shall be at least one judge in every judicial circuit of this State.
Cross References: 335, 391, 421, 427, 525, 622, 745, 958, 1089.
Small's Report, 30, 31, 187-190.
The term of a superior court judge elected as successor to an incumbent at the time of election is four years, but if he is elected to fill a vacancy, he holds only for the unexpired portion of the term in which the vacancy occurred. 1
Any superior court judge may preside in the trial of any case in the superior court of any county in the State,2 and under proper statute, the Superior Court may be held in two or more sections at the same time, or two or more judges may sit in bane.3

1254 (6508). Par. 2. ELECTIONS, WHEN TO BE HELD. The successors to the present and subsequent in cumbents shall be elected by the electors entitled to vote for members of the General Assembly of the whole State, at the general election held for such members, next preceding the expiration of their respective terms: Provided, that the successors for all incumbents whose term expire on or be fore the first day of January, 1899, shall be elected by the General Assembly at its session for 1898, for the full term of four years.
Cross References: 123, 535, 622, 767, 959, 1081.
On method of selecting judges, see Small's Report, 210-22; Time of Electing, Small's Report, 233.
1. Wellborn v. Estes, 70 Ga. 390. a. Daniel v. Towers, 79 Ga. 786, 7 S. E. 120. 3. Bone v. State, 86 Ga. 108, 12 S. E. 205.

1255^1256] AMENDED CONSTITUTION OF 1877. [570
1255 (6509). Par. 3. TERMS BEGIN, WHEN. The terms of the judges to be elected under the Constitution (except to fill vacancies) shall begin on the first day of Jan uary after their election. Every vacancy occasioned by death, resignation, or other causes shall be filled by ap pointments of the Governor until the first day of January after the general election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected.
SECTION 4.
JURISDICTION OP SUPERIOR COURTS.
1256 (6510). Paragraph 1. EXCLUSIVE JURISDIC TION. The Superior Court shall have exclusive jurisdiction in cases of divorce; in criminal cases where the offender is subjected to loss of life, or confinement in the penitentiary; in cases respecting titles to land; and equity cases.
Cross References: 331, 391, 418, 421, 427, 536, 627, 539, 633, 624, 628, 746, 961.
Divorces, Small's Report, 253-258. Titles to land, Small's Report, 259. Equity case, Small's Report, 259.
Historical Note: At the time of the adoption of the Constitution of 1798, the Superior Court had no jurisdiction of common law cases, ex cept such as respected titles to lands, all common law jurisdiction, except in the particular mentioned being vested in the Inferior Courts until common law jurisdiction was conferred on the Superior Courts by the Judiciary Act of 1799. See Judiciary Act of 1778; Watkins Digest 250; Judiciary Act of 1789, Watkins Digest, 391; Judiciary Act of 1792, "Watkins Digest 481; Judiciary Act, 1797; Watkins Digest, 481; Judi ciary Act of 1799, Watkins Digest 689; Cobb's Digest, 1135. For sub sequent history, of jurisdiction of Superior Courts, see marginal refer ences to the provisions of the several constitutions.
The jurisdiction of the superior courts of this State to take cognizance of and to try and punish misdemeanors, is not exclusive, and it is competent for the general assembly to confer concurrent jurisdiction over such matters on city or county courts, or other courts, but the legislature is not authorized to deprive the su perior courts of jurisdiction over misdemeanors j 1 but the superior
1. Porter v. State, 53 Ga. 236; Clifton -v. State, 53 Ga. 241; Bell v. State, 41 Ga. 589.

571 ]

AMENDED CONSTITUTION OF 1877. [ 1256

court as a court of equity cannot interfere with the administration of the criminal law by injunction or otherwise. 2
"Cases respecting titles to land," in the intendment of the Con stitution, are cases m which the plaintiff asserts his title to the land in question, and depends for his recovery upon his main tenance of the title asserted; or to supply a link in the chain, want ing by accident or otherwise ;3 hence, an action to foreclose a mechanics' lien on realty is not a case respecting title to land,4 and such a case can be maintained in a city court, and the mere fact that notes sued upon in a city court were given for the pur chase price of land did not render the case one respecting titles to land within the meaning of the constitution so as that the city court did not have jurisdiction of the case;5 nor is a suit to subject trust property, though realty, to a debt, 6 nor an equitable petition against a man and his wife, for the purpose of subjecting to judgments against the husband land to which the wife fraudulently and in collusion with the husband claimed in order to defeat the collection of the plaintiff's claim;7 nor an illegality to a magistrate's fi. fa. levied on homestead land,8 nor a bill in equity to enjoin a trespass upon realty by felling timber,9 a suit respecting title to land.
Since the passage of the Act of 1885 (Acts of 1884-5, p. 36) and since the Act of 1887 (Acts of 1887, p. 64) known as the "uniform procedure act" which merged the two sides of the court and established the distinction between the two, legal and equitable remedies may be applied, and legal and equitable defenses pleaded in the same case, and it is no longer, so far as proceedings and the forms of procedure in the superior court are concerned, necessary to keep in mind the distinction between the jurisdiction of that

2. Gault v. Wallis, 53 Ga. 675; Mayor v. Moultrie v. Patterson, 109 Ga. 372, 34 S. E. 600; Paulk z/. Mayor, etc., Sycamore, 104 Ga. 25, 31 S. E. 200; Atlanta v. Gate City Gas Light Co., 71 Ga. 136; Davis v. Wilson, 61 Ga. 388; Pope z>. Mayor of Savannah, 74 Ga. 365.
3. Smith v. Bryan, 34 Ga. 53; Bivins v. Bivins, 37 Ga. 346; Beckwith V. McBidge & Company, 70 Ga. 644.
4. Wheatley v. Blalock, 83 Ga. 406, 9 S. E. 168; Royston -u. Royston, 31 Ga. 161; Porter v. Wilder & Son, 62 Ga. 531; Stroupper v. McCauley et ux., 45 Ga. 74.
5. Black -v. Fritz, 98 Ga. 32, 25 S. E. 188. 6. Beckwith v. McBride & Co., 7O Ga. 643. 7. Hixs v. Kiser & Company, 103 Ga. 738, 30 S. E. 583. 8. Moore v. O'Farr, 87 Ga. 305, 13 S. E. 464. 9. Powell v. Cheshire, 70 Ga. 357.

1257 ] AMENDED CONSTITUTION OF 1877.

[ 572

court as a court of law and a court of equity ; 10 but city courts, being courts of common-law jurisdiction, cannot entertain juris diction of matters involving equitable rights between the parties except .purely by way of defense, to defeat the establishment of some legal right, 11 and the right of a defendant sued at law upon a cause of action ex contractu to set off against the plaintiff's de mand damages arising ex delicto on the ground that the plaintiff is insolvent or a non-resident, is an equitable right in the enforce ment of which is involved the granting of affirmative relief and cannot be recognized in a city court. 12
But although the General Assembly may have, under paragraph two of this section, permitted everything to be done on the common law side of the court which could have been done on the equity side, the merger is of subject matter and forms of procedure and does not relate to venue, and since, under the Constitution, suits respecting titles to land must be brought in the county where the land lies, and equity suits must be brought in that county in which a defendant resides against whom substantial equitable relief is prayed, if a suit is brought by a debtor against his creditor, to can cel a conveyance in pursuance of which the latter has been admitted into possession, such action must be brought in the county of the residence of the creditor, and a suit to recover land predicated on a perfect equity only, cannot be maintained to recover possession un less the person against whom the equity is sought to be established resides in the county where the land lies.13
A contest of an election is not an action at law or a suit in equity nor can it be annexed to a case at law or a suit in equity; nor can a suit in equity be amended so as to convert it into such a contest. It is a special statutory proceeding, which can be exercised by per sons holding judicial positions; but there is nothing in the constitu tion which confers upon the superior court as suck the right to hear and determine contests of elections. 14

1257 (6511). Par. 2. EQUITY MAY BE MERGED IN COMMON-LAW COURTS. The General Assembly may

10. Hecht v. Snook & Austin Co., 114 Ga. 926, 41 S. E. 74. 11. Butler v. Holmes, 128 Ga. 333, 57 S. E. 715. 12. Hecht v. Snook & Austin Co., 114 Ga. 926, 41 S. E. 74. 13. Clayton v. Stetson, 101 Ga. 634, 28 S. E. 983. 14. Ogburn v. Elmore, 123 Ga. 677, 681, 51 S- E. 641.

573 ]

AMENDED CONSTITUTION OF 1877. [ 1258

confer upon the courts of common law all the powers here tofore exercised by courts of equity in this State.
Cross References: 117, 746, 962.
Small's Report, 187, 359.
The distinction between courts of law and equity as to the kind of rights and remedies that each of them administer has not been insisted upon as essential since the Act of 1821,* allowing parties to insist upon equitable rights in Courts of law, where it is not necessary to resort to discovery,2 and by 5508 of the Code bills in equity and all distinctions of actions into real, personal and mixed are abolished,3 leaving the distinction between equitable and legal powers very slight,4 and since the Act of 1887, the superior courts on the trial of any civil case may give effect to all the rights of the parties, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require ;5 the uniform procedure act, however, does not go to the length of abolishing all distinctions between legal and equitable remedies and relief and the modes of administering them. Except in providing that both kinds shall be applied for by one form of petition, and may be administered by the court in one and the same proceeding, it leaves the mode of trial as to each unchanged. The purpose of the act was to enable the parties to approach the court as a single instead of a dual form, and by a uniform method of procedure, whether the relief sought was legal or equitable.6

1258 (6512). Par. 3. GENERAL, JURISDICTION. Said courts shall have jurisdiction in all civil cases, except as hereinafter provided.
Cross References: 391, 418, 421, 427, 533, 630, 746, 963.
See Notes to 1256.
In any matter of which the court has jurisdiction, it can assert its jurisdiction by causing its process to be served, although there

1. Cobb's Digest, page 464.
2. Glover et al. v. Stamps, 73 Ga. 209.
3. Austell -v. Swann, 74 Ga. 378. 4. Oellrich et al. v. Georgia Railroad, 73 Ga. 399. 5. Knight v. Bond, 113 Ga. 831, 38 S. E. 306; McKenzie v. Flannery & Company, 90 Ga. 590, 16 S. E. 710; Georgia Iron & Coal Co. v. Etowah Iron Company, 1O4 Ga. 395, 30 S. E. 878. 6. McKenzie v. Flannery & Company, 90 Ga. 590, 16 S- E. 710.

1259 J AMENDED CONSTITUTION OF 1877.

[ 574

may be no statutory provision for such service, the power of the court to provide for service in such case being one arising by necessary implication. 1
An action for the breach of an indenture of apprenticeship is a civil case, and there is no provision of the Constitution excepting it from the jurisdiction of the Superior Court, hence, that court has jurisdiction of such a case ; 2 but the superior court has no jurisdiction of a proceeding to establish a copy of a lost will, such jurisdiction being conferred by the Constitution on the court of ordinary.3
But the courts have no jurisdiction to interfere at all where no judicial function is involved and no jurisdiction has been conferred upon them, and in matters which the legislature has referred to other tribunals; hence, where the legislature provides for a "local option" election to determine the question whether a certain law shall be of force in a certain county or not, and no provision is made for judicial interference, the courts cannot interfere and matters arising out of such elections must be determined alone by the special tribunals constituted by the legislature for such pur pose.4

1259 (6513). Par. 4. APPELLATE JURISDIC TION. They shall have appellate jurisdiction in all such cases as may be provided by law.
Cross References: 391, 418, 427, 530, 627, 746, 964.
Small's Report, 301.
This provision of the Constitution is not self-operating and can not become operative until legislative provision is made providing for and regulating the manner of appeal, 1 and there being no pro vision of law authorizing an appeal from the county court to the superior court, when the amount involved is fifty dollars or less, no such right exists.2
When a case involving over fifty dollars in a justice's court is

1. Mitchell -v. Southwestern R. R., 75 Ga. 404. 2. Tritt -v. Bize, 51 Ga. 494. 3. Perkins v. Perkins, 21 Ga. 13; Walton v'. Walton, 31 Ga. 13; Ponce v. Under-wood, 55 Ga. 601. 4. Skrine v. Jackson, 73 Ga. 377; Caldwell v. Barrett, 73 Ga. 604. 1. Hendrix & McBurney v. Mason, 70 Ga. 533. 2. DeLamar v. Dollar, 138 Ga. 57, 57 S. E. 85; 1 Ga. App. 696.

575 ]

AMENDED CONSTITUTION OF 1877. [ 1260

appealed to a jury in that court, a subsequent appeal to a jury in the superior court will not serve to remove the case from the
justice's court.3
1260 (6514). Par. 5. CERTIORARI, MANDAMUS, ETC. They shall have power to correct errors in inferior judicatories, by writ of certiorari, which shall only issue on the sanction of the judge; and said courts and the judges thereof shall have power to issue writs of mandamus, prohibition, scire facias, and all other writs that may be necessary for carrying their powers fully into effect, and shall have such other powers as are or may be conferred on them by law.
Cross References: 391, 418, 421, 437, 531, 628, 746, 965.
The right to correct errors of inferior judicatories by certiorari is a constitutional right, 1 and the writ lies from all inferior judicatories,3 in all matters where an appeal is not given by law, and the fact that no provision appears anywhere in the home stead act authorizing an appeal from a decision of the ordinary, sustaining a demurrer to an application for a homestead, shows that no such right of appeal exists in such a case, and certiorari is the proper method of correcting an error in such homestead matter,3 and also in correcting error from, the court of ordinary in county matters, or other matters not touching the probate of wills ;4 and a so called "city court" which provides for a trial by less than a full pannel of twelve jurors is "an inferior judicatory," in the sense that errors committed in it cannot be corrected by writ of error to the supreme court, but must be corrected by certiorari to the superior court.5
The jurisdiction to correct errors by writ of certiorari is in the superior court and not in the judge as a special tribunal; and a
3. E. T. V. & G. Railroad Company v. Miles, 73 Ga. 353. 1. Hayden -v. State, 69 Ga. 731. 2. Stewart v. State, 98 Ga. 303, 29 S. E. 424; White v. Clements, 39 Ga. 333, 365, 366; McElhannon -v. State, 113 Ga. 321, 37 S. E. 402; Moore v. State, 96 Ga. 309, 22 S. E. 960; Daughtry v. State, 115 Ga. 819, 42 S. E- 248.
3. Lathrop v. Soldier's Loan & Building Assn., 45 Ga. 483; Harrell v. Pickett, 45 Ga. 271; Cunningham v. United States Loan Co., 109 Ga. 616, 617, 34 S. E- 1024.
4. Cunningham v. U. S. Loan Company, 109 Ga. 618, 34 S. E. 10S4. 5. Monford v. State, 114 Ga. 528, 40 S. E. 798.

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[ 576

certiorari, being1 a case pending- in the superior court, whetbicr the

111C *Jlll_lLUi-gCIlCl dl, eLllU 111 U-ClcLUlL \JL SU(J11 SCJL VltJC 1L Will LJC
missed ;6 and the right of reviewing the errors of inf'ierior judicatories by certiorari being a right vested exclusively in thuec superior court, when an act creating a city court undertakes to confer upon the judge thereof authority to sanction writs of certiorari, such attempted grant of authority is unconstitutional f but the right in the superior court to correct errors by certiorari does not include the right to correct errors by bill of exceptions and an act providing for cerrecting errors in city court by bill of exceptions to superior court is unconstitutional. 8
1261 (6515). Par. 6. APPEAL FROM ONE JURY TO ANOTHER. The General Assembly may provide for an appeal from one jury, in the superior and city courts, to another; and the said courts may grant new trials on legal grounds.
Cross References: 332, 391, 418, 421, 427, 747, 966.
Small's Report, 301.
The power to grant new trials is limited to the superior courts and such city courts as are recognized as such by the Constitution itself and that recognition is of the city courts of Atlanta, and Savannah "and such other 'like courts* as may be hereafter es tablished in other cities;" hence the power to grant new trials is limited to courts "like" the city court of Atlanta or Savannah, and they must be established in an incorporated city j 1 hence such right does not exist in a court unlike those mentioned in that it does not provide for trial by a full panel of twelve jurors ; 2 nor where not in terms established in a city.3
6. Word -v. Southern Mutual Ins. Co., 112 Ga. 592, 37 S- E. 897. 7. Kieve -u. Ford, 111 Ga. 30, 36 S- E. 293. 8. Maxwell v. Tumlin, 79 Ga. 570, 4 S. E. 858; Pope, Trustee v. Jones, 79 Ga. 488, 4 S. E. 860; Duff v. Jones & Sons Mfg. Co., 81 Ga. 351, 8 S. E. 525; Memler v. Roberts, 81 Ga. 659, 8 S. E. 525. 1. Stewart v. State, 98 Ga. 205, 25 S. E. 424. 2. Monford v. State, 114 Ga. 52S, 40 S- E. 798. 3. Wells -v. Newton, 101 Ga. 143, 28 S. E. 640; Cooper v. State, 103 Ga. 406, 29 S. E. 439; Wellborne v. State, 114 Ga. 793, 40 S. E. 857.

577 ]

AMENDED CONSTITUTION OF 1877. [ 1262

New trials are granted by the superior court as a court and not by the presiding judge in his capacity as a judge.4
1262 (6516). Par. 7. JUDGMENT BY THE COURT. The court shall render judgment without the verdict of a jury, in all civil cases founded on unconditional contracts in writing-, where an issuable defense is not filed under oath or affirmation.
Cross Reference: 967.
See Notes to 1291.
This provision refers to causes at law and not to suits in equity, 1 and is not applicable in a suit on an unconditional contract in writing when a specific lien against lands is prayed. 3
In a civil case founded on an unconditional contract in writing where no issuable defense is filed under oath, there is nothing with which a jury can deal, and the court must take the responsibility of rendering judgment without a jury, and the verdict of a jury in such a case is illegal, 3 and judgment entered by counsel void,4 but where after plea stricken, amount agreed upon arid verdict rendered for that amount, the verdict is not a nullity, but one founded upon a confession, and will support judgment entered by plaintiff's attorney in the usual forms.5
That the contract shall be unconditional is a necessary jurisdictional fact to support a judgment by the court without the verdict of a jury,6 and the court cannot render judgment without the verdict of a jury in a suit upon a series of promissory notes, some ma tured and some not matured except under a stipulation that they should become due if any one of the series was not paid within thirty days after maturity,7 nor in a suit on a receipt for notes to

4. Alien V. State, 103 Ga. 626, 29 S. E. 490. 1. Isaacs -v. Tinsley, 58 Ga. 457. 3. Palmer -u. Simpson, 69 Ga. 793. 3. Lester v. Piedmont and Arlington Life Insurance Co., 55 Ga. 475; Bullock, Gov. for use v. King;, 48 Ga. 551. 4. Tippins v. Whitehead, 66 Ga. 688; Contra, if order of Court di recting- plaintiff's attorney to enter judgment; Tift v. Keaton, 78 Ga. 235, 2 S- E. 690. 5. McNulty v. Marcus, 57 Ga. 507. 6. Anders v. Blount, 67 Ga. 41. 7. Howard v. Wellman, 114 Ga. 934, 41 S. E. 62; Rodgers v. Caldwell, 113 Ga. 635, 37 S. E. 865; Latimer v. Irish-American Bank, 119 Ga. 898, 47 S. E. 322; Sanner v. Sayne, 78 Ga. 667, 3 S. E. 657; Dye v. Garrett, 78 Ga. 471, 3 S. E. 692. See also, Knox v. Yow, 91 Ga. 367, 17 S. E. 654.

1262 ] AMENDED CONSTITUTION OF 1877.

[ 578

be collected by the maker, alleging collection and failure to pay over ; 8 nor in suit by second endorser against first where declara tion shows protest necessary to bind indorser.9
But a contract containing two distinct promises, one uncondi tional, other conditional, and suit founded on former alone, verdict is unnecessary ; 10 and in suit against two makers of a promissory note where one defended and other did not, judgment by the court against the maker who filed no plea was proper/ 1 and in such a case where a plea is filed in the name of both defendants and one of them swears to the plea and the other does not, judgment by the court against defendant who omits to swear to his plea is proper. 12
A note stipulating- attorney's fees upon failure to pay, may be unconditional, 13 and a judgment may be rendered without a jury on unconditional contract in writing, even though title to property be reserved therein until same be paid, 14 and a joint action against the maker and indorser of promissory note is a suit on an uncon ditional contract in writing. 15
Prior to the Neel pleading act of 1893, abolishing the "general issue" the filing of that plea under oath, prevented judgment by the court, 16 and a case was not in default when counsel for defense marked his name on the docket, such being a plea of the general issue and amendable. 17 Since the passage of the Neel Act, even though party has right to demand jury trial, there is no right to jury trial in absence of plea which sets up some meritorious, issuable defense, there being no right of defendant to be preserved, all facts in declaration legally admitted, 18 and where action is on unconditional contract in writing and all defenses are stricken out judgment is properly rendered by court. 19

8. Freyer v. Cole & Co., 70 Ga. 687. 9. Everett v. Westmoreland et al., 92 Ga. 670, 19 S. E. 37. 10. Mozeley v. Walker, 84 Ga. 274, 10 S. E- 623. IX. Freyer v. Cole & Co., 70 Ga. 687. 12. Riley v. Southern Female College, 118 Ga. 849, 45 S. E. 673. 13. Coleman v. Slade & Etheridge, 75 Ga. 63. 14. Craig v. Herring- & Turner, 80 Ga. 709, 6 S. E, 283. 15. Georgia R. R. & Banking Co. v. Pendleton, 87 Ga. 751, 13 S. E. 822. 16. Farmelee v. Williams, 72 Ga, 43. See also Erambert v. Scarbor ough, 46 Ga. 398. 17. Simmons v. Southern Banking & Trust Co., 94 Ga. 795, 31 S. E. 1005; Barrett v. Pasco et al., 90 Ga. 826, 17 S. E. 117. 18. Jester v. Bainbridge State Bank, 4 Ga. App. 469, 61 S. E. 926. 19. Moore v. Smith Machine Co., 4 Ga. App. 151, 60 S. E. 1035.

579 ]

AMENDED CONSTITUTION OF 1877. [ 1263

Where, in suit on note in county court, consent appeal was taken to the superior court before the Constitution of 1868, a valid judg ment could be taken without a jury after adoption, no issuable defense on oath being filed. 20

1263 (6517). Par. 8. SESSIONS. The superior courts shall sit in each county not less than twice in each year, at such times as have been or may be appointed by law.
Cross References: 274, 331, 391, 418, 431, 536, 748, 968.
The constitution imperatively requires at least two sittings each year of the superior court in each county, and it is the duty of the judges of the superior courts to hold their courts at the regular times provided by law, 1 but this provision relates to the regular terms only,2 and it does not prohibit more sittings nor does it prohibit two or more sections of the superior court presided over by different judges sitting at the same time in any county where the public interest may require3 and special terms may be held to dispose of civil or criminal business ;4 and the act authorizing judges of the superior court to call special terms to grant charters to corporations is not unconstitutional, either as being a special law enacted in a case for which provision has been made by an existing general law, or as infringing the constitutional require ments of uniformity in the jurisdiction, powers, proceedings and practice of courts.5
Grand jury which served at previous regular term may, at ad journed term, make a recommendation, under the provision of 573 of the Political Code, that the alternative road law be adopted in the county. 6

. Ga. 13.
1. Hoye v. State, 39 Ga. 718.
2. Grinord v. Benton, 4 Ga. 371. 3. Bone v. State, 86 Ga. 116, 12 S- E. 205.
'

1264-1265 ] AMENDED CONSTITUTION OF 1877. [ 580
1264 (6518). Par. 9. PRESIDING JUDGE DIS QUALIFIED. The General Assembly may provide by law for the appointment of some proper person to preside in cases where the presiding judge is, from any cause, dis qualified.
Cross Reference: 969.
Small's Report, 180-182, 185-190.
The appointment under statutory provision of another person or other persons to perform the duties of a judge in a case in which he is disqualified, is the creation of an "other court," for the special purpose of trying that case and is not unconstitutional j 1 and the act of the General Assembly which makes it the duty of the Clerk of the Superior Court to select some competent attorney practicing in that court to preside in such a case, when the parties do not agree upon some other person to preside, is a due exercise of the power given by this paragraph of the Constitution, and a judg ment rendered in a case thus tried is the legitimate outcome of due process of law, 2 and -where the clerk is absent from the court, the deputy clerk has power to make the appointment ;3 but this pro vision is not self-acting and there is no provision of law for the appointment of a member of the bar as judge pro hac vice in a criminal case.4
A disqualified judge may do such formal acts as are necessary to enable the case to be brought before a proper tribunal for adjudication, for example, he may procure another judge to sit in his stead in the trial of the case, his act in procuring such other judge not being an act judicial in its nature.5
SECTION 5.
JUDGES OF SUPERIOR AND CITY COURTS.
1205 (6519). Paragraph 1. JUDGES OF SUPE RIOR AND CITY COURTS MAY ALTERNATE, WHEN. In any county within which there is, or hereafter may be, a city court, the judge of said court and of the superior
1. Taylor v. Smith, 4 Ga. 135 (2). 2. Bivins v. Bank of Richland, 109 Ga. 342, 34 S- E. 603. 3. Byrd V. Campbell Co., 94 Ga. 47, 30 S- E. 353. 4. Castleberry v. State, 68 Ga. 49. 5. Alien v. State, 102 Ga. 626, 39 S. E. 470.

581 ]

AMENDED CONSTITUTION OF 1S77. [ 1265

court may preside in the courts of each other in cases where the judge of either court is disqualified to preside.
Cross Reference: 970.

The purpose of this provision was to afford an additional op
portunity of securing an eligible judicial officer to supply the place
of a disqualified judge, and not to exclude any means of obtaining
another judge when a superior court judge is disqualified; hence,
the provision does not operate so as to prevent a judge of the
Superior Court of another circuit from presiding for a disqualified
superior court judge when there is a city court in the county where
such case is tried, 1 and the Act of December 21, 1899 (Acts of
1899, p. 48) which confers authority upon the judge of a city court
to preside in another city court when the judge of the latter court
is disqualified or providentially prevented from trying the case is
not repugnant to this provision. 2
Neither this provision nor any statute of this State confers upon a judge of the superior court authority to preside in a city court save only in cases wherein the judge of that court is disqualified to preside, and where a superior court judge undertakes to preside in a case pending in a city court which the judge thereof is quali fied to try, the trial is a nullity and its result absolutely void ;3 and where the judge of a city court is disqualified in a case on the dockets of that court, and calls in the judge of the superior court of the county to try the case, and such judge enters upon the trial, the city court judge has no jurisdiction or power to try any other case on the dockets of the city court while the superior court judge is engaged in said trial;4 and neither under the act of 1885 (Acts of 1884-5, p. 475), nor under the constitutional provisions did a judge of the superior court have authority to administer an oath and attest an affidavit made as a basis for an accusation in a city court, on the ground that the judge of the city court was disquali fied from attesting the affidavit because of relationship to the de fendant and a judgment based on such an affidavit and accusation should be arrested on motion.5

1. Georgia-Fla. & A. Rwy. Co. v. Sasser, 130 Ga. 396, 60 S- E. Continental National Bank v. Folsom, 78 Ga. 456 (3), 3 S. E. 269.
2. Ga. F. & A. Rwy. Co. v. Sasser, 130 Ga. 396, 60 S. E. 997. 3. Ivey v. State, 113 Ga. 176, 37 S. E- 398. 4. Butler v. State, 112 Ga. 76, 37 S. E. X19. 5. Edmondson v. State, 123 Ga. 194, 51 S. E. 301.

997;

1266] AMENDED CONSTITUTION OF 1877.

[582

SECTION 6.
COURT of ORDINARY.
1266 (6520). Paragraph 1. ORDINARY, APPEALS FROM. The powers of a court of ordinary, and of pro bate, shall be vested in an ordinary, for each county, from whose decision there may be an appeal (or, by con sent of parties, without a decision) to the superior court, under regulations prescribed by law.
Cross References: 436, 531, 618, 740, 950.
Small's Report, 33, 190-194.
The orders of the courts of ordinary of this State, in matters connected with wills and the administration of estates, are judg ments of courts of general jurisdiction, 1 and the superior court, in the exercise of its chancery powers, has no jurisdiction to set aside a will which has been admitted to probate, or any clause of such will, jurisdiction over such subject matter being vested ex clusively in the court of ordinary. 2
Under the Code, the ordinary acts in a dual capacity, as judge and as clerk.3 In hearing and passing upon a petition for home stead, he exercises discretion and in a judicial capacity and not ministerially.4 An order passed by the ordinary allowing extra compensation to a temporary administrator and discharging him from the trust,5 and a decision of the court of ordinary overruling objections to the application of an administrator or guardian for discharge, and granting such discharge, are matters judicial in their nature from which an appeal lies to the superior court ; G likewise, a judgment rendered by the ordinary sustaining a demurrer to an application for a homestead is judicial, but the remedy for review ing such a judgment is not appeal, but certiorari.7
The fact that the "Near Beer Tax Act" (Acts of 1908, p. 1112) made it incumbent on the ordinary to issue licenses to dealers and

1. Barnes v. Underwood, 54 Ga. 87. 2. Tudor v. Jones, 53 Ga. 302; Hooks v. Brown, 125 Ga. 132, 53 S. E. 583. 3. State v. Henderson, 120 Ga. 782, 48 S. E. 334. 4. Dunagan v. Stradler & Company, 101 Ga. 476, 29 S. E. 440. 5. Comer v. Ross, 100 Ga. 652, 28 S. E. 387. 6. Maloy v. Maloy, 131 Ga. 579, 62 Ga. 991; Comer v. Ross, 100 Ga.
653, 28 S. E- 387. 7. Cunning-ham -v. United States Savings & Loan Co., 109 Ga. 616, 34
S. E. 1024.

583 ]

AMENDED CONSTITUTION OF 1877. [ 1267

collect from them the tax and to issue executions against them for failure to pay the tax, did not render such law unconstitutional as being in conflict with this or the next paragraph in that these two sections declare the courts of ordinary to be parts of the judicial system of the State, and under the Constitution the judicial, legislative and executive departments must remain separate and
distinct. 8

1267 (6521). Par. 2. POWERS. The courts of ordinary shall have such powers, in relation to roads, bridges, ferries, public buildings, paupers, county officers, county funds, county taxes, and other county matters, as may be conferred on them by law.
Cross References: 85, 436, 541, 638, 752, 973.
Small's Report, 190-194.
The powers conferred on the courts of ordinary by 6520 and 6521 constitute jurisdiction as to the things which are subject matters of such sections, and do not relate to jurisdiction over persons. 1
The right of a ferry is a franchise, and originally the power to grant it, was in the legislature, but 4238 (3), of the Code, enacted under the authority of this paragraph of the Constitution, invests the courts of ordinary with original and exclusive jurisdic tion in establishing ferries. 2
The order or judgment of an ordinary making or establishing an alteration in a public road, is the exercise of a judicial function and is the judgment of a court, which cannot be collaterally at tached. 3
The jurisdiction to try habeas corpus cases is not a constitutional power of the court of ordinary, but is a power conferred by statute not upon the court of ordinary, but upon the ordinary; hence, the present constitution, by restricting the jurisdiction of courts of ordinary in some cases to county matters, did not affect the statutory power of the ordinary previously granted to preside on the return of writs of habeas corpus.4

8. Carroll v. Wright, 131 Ga. 736, 63 S. E. 260. 1. Statrnes v. Mutual Loan & Banking Co., 102 Ga. 601, 39 S. E. 452. 2. Hudspeth v. Hall, 111 Ga. 514; 36 S. E. 770. 3. Crum v. Hargrove, Ord., 119 Ga. 471; 46 S. E. 626. 4. Barranger v. Baum, 113 Ga. 471.

1268-1270] AMENDED CONSTITUTION OF 1877. [584 1268 <6522). Par. 3. TERMS OP OFFICE. The
ordinary shall hold his office for the term of four years, and until his successor is elected and qualified.
Cross References: 436, 541, 638, 758, 973.
SECTION 7.
JUSTICES OF THE PEACE. 1269 (6523). Paragraph 1. JUSTICES, NUMBER AND TERM. There shall be in each militia district one justice of the peace, whose official term, except when elected to fill an unexpired term, shall be four years.
Cross References: 33, 52(6), 85, 284, 395, 419, 540, 637, 768, 974.
f the Peace. Macy, Our Government, 92, 93.
1270 (6524). Par. 2. JURISDICTION. Justices of the peace shall have jurisdiction in all civil cases arising ex contractu, and in cases of injuries or damages to per sonal property, when the principal sum does not exceed one hundred dollars, and shall sit monthly at fixed times and places; but in all cases there may be an appeal to" a jury in said court, or an appeal to the Superior court, under such regulations as may be prescribed by law.
Cross References: 32, 395, 419, 760, 975. See notes to 1273. Smalls Report, S5, 195-197; 206-209.
The court over which a justice of the peace presides is a constitu tional court, a part of the judicial system of the State. While the

585 ]

AMENDED CONSTITUTION OF 1877. [ 1270

functions of a justice of the peace can only be exercised in a
given county, and generally only in the district of his residence only, he is nevertheless an officer of the State. 1
JURISDICTION : (1) Generally. The word jurisdiction as used in this paragraph of the Constitution relates to subject matter and to matters of practice and not to persons or territory.2 The au thority of a justice of the peace in reference to the administration of the criminal law is derived not from the Constitution but from statutes.3
(2) Ex contractu. Under the Constitution of 1868, justices courts had jurisdiction of all civil cases whether ex contractu or ex delicto,4 including claims for damages to realty up to $100, but under the present Constitution they have no jurisdiction of any case arising ex delicto--as, for instance, a breach of public duty--or any other claim arising ex delicto--except in cases of injuries or damages to personal property;5 hence, an action to re cover a statutory penalty ;6 for damages to a steam boat company from detention of steamer at river bridge ;7 nor of damages to the person or reputation;8 nor of action of trover; 9 nor of an action for damages against one who by collusive and fraudulent conduct destroyed the lien of a landlord on the crops of his tenant; 10 nor for injury to fences and crops by fire from sparks of locomotive, 11 but a justice court has jurisdiction of an action

1. Long v. State, 137 Ga. 286, 56 S. E- 424. 2. Starnes v. Mutual Loan & Banking Co., 102 Ga. 601, 6O2, 29 S. E. 452. 3. Ormond V. Ball, 120 Ga. 919, 48 S. E. 383. 4. W. & A. Railroad Co. v. Brown, 58 Ga. 535. 5. Mayor, etc., of Carterville V. Lyon et ux., 69 Ga. 577; Smith, etc., Lumber v. L. & N. R. R. Co., 4 Ga. App. 714, 63 S. E. 473; Savannah R. R. Co. V. Snider, 1 Ga. App. 14, 57 S. E. 898; "W. U. Telegraph Co. v. Cooper, 3 Ga. App. 376, 58 S. E- 517. 6. Western Union Tel. Co. v. Taylor, 84 Ga. 408, 11 S. E. 396. 7. "White Star Line Steamboat Co. v. County of Gordon, 81 Ga. 47, 7 S. E. 331, distinguishing 62 Ga. 353. 8. Williams v. Suiter, 76 Ga. 355. 9. Peeples -v. Strickland, 101 Ga. 829, 29 S. E. 22; Blocker v. Boswell, 109 Ga. 330, 331, 233, 239, 34 S. E. 289; Berger v. Saul & Co., 109 Ga. 240, 34 S. E. 1026. 10. Dorsey v. Miller, 105 Ga. 91, 31 S. E. 736. 11. Bagley v. Columbus Southern Rwy. Co., 98 Ga. 626, 25 S- E. 638.

1270] AMENDED CONSTITUTION OF 1877.

[ 586

for breach of a contract of bailment where the amount claimed is not over $100. 12
A justice court has jurisdiction to try the issue made by a claim interposed to a levy upon personalty, under an execution issued therefrom, 13 but an execution issued by a tax collector does not grow out of and cannot be treated as an incident or auxiliary of any original action in a justice court, and a claim for property levied upon under it cannot be properly returned for trial to a justice's court, but must be tried in the superior court. 14
(3) si-mount Involved as Determining Jurisdiction. Note for $100 and attorney's fees in addition thereto is note for more than $100 and beyond jurisdiction of justice court; 15 and suit upon such note and judgment rendered in such suit void although claim for attorney's fees abandoned at trial and judgment taken only for principal of note ; 16 but where damages are not liquidated by express agreement of parties or by implication of law, plaintiff may write off sufficient amount to bring case within jurisdiction of justice court; 17 and note for $100 containing stipulation to pay ten per cent attorney's fees is expressly waived at time of filing suit in summons served upon defendant, 18 and where claim is apparently in excess of $100 suit may be amended by proper credit so as to show case within jurisdiction, and this may be done after appeal; 19 but plaintiff cannot divide account so as to confer juris diction, 30 and cannot enter arbitrary credit without debtors con sent in liquidated demand so as to confer jurisdiction. 21
Amount which may be claimed under contract determining juris-

12. Bates v. Bigby, 123 Ga. 727, 51 S. E. 717. 13. Everett v. Brown, 117 Ga. 342, 43 S. E. 735. 14. Winn v. Butts, 127 Ga. 388, 56 S. E. 406. 15. Baxter -v. Bates, 69 Ga. 587; Johnson Ex. v. Stephens, 69 Ga. 756; Searcy Ex. v. Tjllman, 75 Ga. 504; Beach et al. v. Atkinson, 87 Ga. 388, 13 S- E. 591; Almand v. Almand & George, 95 Ga. 204, 22 S. E. 313; Peeples v. Strickland, 101 Ga. 839, 39 S. E. 22; Dowdle v. Stein, 103 Ga. 94, 29 S. E. 595; Rimes v. "Williams, 99 Ga. 281, 25 S- E. 685; John son v. Johnson, 113 Ga. 942, 39 S. E. 311; Forbes Piano Co. v. Owens, ISO Ga. 494, 47 S. E. 938. 16. Ashworth v. Harper, 95 Ga. 660, 23 S. E. 670. 17. Jennings v. Stripling, 127 Ga. 782, 56 S. E. 1026. 18. Pickett v. Smith, 95 Ga. 757, 22 S. E. 669. 19. Johnson v. Johnson, 113 Ga. 942, 39 S. E. 311. 20. Parks i>. Oskamp, 97 Ga. 802, 26 S. E. 369. 21. Cox U. Stanton, 58 Ga. 406, distinguished in Johnson ti. Johnson, supra (note 19).

587 ]

AMENDED CONSTITUTION OF 1877. [ 1270

diction of justice court to entertain suit upon it--justice court had jurisdiction of suit for breach of contract by express company where it received $1,100 and delivered $1,000: 22 and where num ber of notes under $100, but aggregating more than that sum, se cured by mortgage containing stipulation that "on default all shall become due," this did not prevent suit on each of notes in justice court. 23
FIXED--VENUE AND PLACES: Prior to the Constitution of 1877 justice courts did not sit monthly "at fixed times and places" but continuously. 24 The Act of November 11, 1889, "to fix the venue of justices courts in cities of this State having a certain popula tion and to locate the times and places of holding such courts" does not, by providing that justices of the peace and notaries public ex ofHcio justices of the peace "may hold their courts at the same or different times or at the same or at different places as they may desire," violate either the constitutional requirement that justices of the peace "shall sit monthly at fixed times and places," or that clause of the constitution providing for uniformity in the "j urisdiction, powers proceedings and practice of all courts or officers invested with judicial powers (except city courts) of the same grade or class;" 25 but such justice, although he may have jurisdiction over all the territory and persons of the city, cannot hold court or render judgment elsewhere than in his own district, although authorized by local law, 26 and judgment is void if ren dered out of term and not at usual time and place,27 and juris diction is not con ferr able by waiver ; 28 but duration of term may be extended so as to continue sittings of court from day to day, if notice given. 29
APPEAL : This constitutional provision for appeal is not self-

22. Southern Express Co. v. Hilton, 94 Ga. 450, 30 S. E. 126. 23. Starnes v. Mutual Loan & Banking Co., 103 Ga. 598 (2), 29 S. E. 453. 24. Burrus et al. -v. City of Columbus et al., 105 Ga. 42, 31 S. E. 124. 25. Brooks v. Mutual Loan Co., 95 Ga. 179, 32 S. E. 55; Bone v. State, 86 Ga. 115, 116, 12 S- E. 205; Turpley v. Corputt, 65 Ga. 259. 26. Brahe v. Boker & Co., 75 Ga. 881; Harbig v. Freund & Co., 69 Ga. 180; Johnson v. Heitman, 67 Ga. 482. 27. Reed v. Thomas & McNeal, 66 Ga. 595; Bozeman V. Singer Manu facturing Co., 70 Ga. 685; White v. Mandeville, 73 Ga. 705; Hilson v. Kitchens, 107 Ga. 230, 33 S. E. 71. 28. Block -v. Henderson, 82 Ga. 23, 8 S. E. 877. 29. White v. Mandeville, 72 Ga. 705.

1271-1272 ] AMENDED CONSTITUTION OF 1877. [ 588
acting1 and it did not become operative until legislative action thereon;30 but now appeal lies to jury in justice court in all cases within the jurisdiction of the court;31 but a city court has no juris diction to entertain an appeal from a justice's court, and where it does so and renders any judgment except dismissal the Supreme Court will reverse such judgment whether exception is taken to want of jurisdiction in court below in bill of exceptions or not.32
1271 (6525). Par. 3. ELECTIONS AND COMMIS SIONS. Justices of the peace shall toe elected by the legal voters in their respective districts, and shall be commis sioned by the governor. They shall be removable on convic tion for malpractice in office.
Cross References: 419, 423, 540, 637, 976.
A justice of the peace is an officer of the State and a special election for a justice of the peace in a militia district is a State election, within the meaning of the provisions of the penal laws of the State prohibiting the selling of liquors on election days, within two miles of an election precinct. l
A justice of the peace cannot be arraigned on a presentment for malpractice in office; indictment is the proper mode of charging him with such ofrense ; 2 and an indictment against a magistrate for willfully and knowingly demanding more costs than he was entitled to by law is not sufficient, and must specify the items of costs actually due as well as the amount demanded or received.3
SECTION 8.
NOTARIES PUBLIC.
1272 (6526). Paragraph 1. NOTARIES PUBLIC, HOW APPOINTED. Commissioned notaries public, not to exceed one for each militia district, may be appointed by
30. Hendrix & McBurney v. Mason, 70 Ga. 523, criticising- 65 Ga. 556, citing 61 Ga. 74.
31. Jackson v. Lewis, 76 Ga. 92. 32. Kirkman v. Gillespie, 112 Ga. 507, 37 S. E. 714.
1. Long z>. State, 127 Ga. 285, 56 S. E. 424. 2. Hawkins v. State, 54 Ga. 653. 3. Oliveras v. State, 45 Ga. 555; American Life Insurance Co. v. Green, 57 Ga. 470.

589]

AMENDED CONSTITUTION OF 1877. [ 1273

the judges of superior courts in their respective circuits, upon recommendation of the grand juries of the several counties. They shall be commissioned by the Governor for the term of four years, and shall be ex-ofncio justices of the peace, and shall be removable on conviction for mal practice in office.
Cross References: 740, 950.
Small's Report, 35.
Commissioned notaries public are clothed with all the j udicial powers of a justice of the peace, and are embraced under the provisions of the Code which provide for. the indictment and punishment of justices of the peace for malpractice in office. 1

SECTION 9.
UNIFORMITY OP COURTS.
1273 (6527). Paragraph 1. UNIFORMITY PRO VIDED FOR. The jurisdiction, powers, proceedings, and practice of all courts or officers invested with judicial powers (except city courts), of the same grade or class, so far as regulated by law, and the force and effect of the process, judgment, and decree by such courts, severally, shall be uniform. This uniformity must be established by the General Assembly.
Cross References: 123, 978.
Small's Report, 165-167, 198.
The word jurisdiction as used in this paragraph refers to sub ject matter and not to persons or territory, 1 and does not relate to the time and place of holding courts ;2 hence, the acts fixing the venue of the justices courts in cities so as to extend their juris diction over the whole city, are not contrary to the provisions of this paragraph ;3 but, procedure being involved, the local law ap-
1. Lynes v. State, 46 Ga. 308; Childers v. State, 3 Ga. App. 450, 60 S. E. 128.
1. Starne v. Mutual Loan & Banking Co., 102 Ga. 600, 29 S. E. 452. 2. Brooks v. Mutual Loan Co., 95 Ga. 181, 22 S. E. 55; Bone v. State, 86 Ga. 115, 12 S. E. 205. 3. Starnes v. Mutual Loan & Banking Co., 102 Ga. 597, 29 S. E. 452; Brahe v. Boker & Co., 75 Ga. 881; Thomas z>. Lawton, 71 Ga. 244; Harbig -v. Freund & Co., 69 Ga. 180; Brook v. Mutual Loan & Banking Co., 95 Ga. 178, 22 S. E. 55; Bone v. State, 86 Ga. 115, 12 S. E. 205. See notes 24-29 to 1S70.

1274 ] AMENDED CONSTITUTION OF 1877.

[ 590

plicable to the city of Savannah, providing for the immediate dis possession of tenants holding over, was repealed by the general law of 1878 allowing three days.4
City courts being expressly excepted by the constitution as to uniformity with other courts, and there being no general law of force in this State in reference to the powers, procedure and practice of such courts, the legislature has a right to give a city court jurisdiction over the whole county in which it is located,5 without making its practice uniform with county courts; 6 but the exception of city courts from the rule of uniformity does not authorize a special law providing for the payment of a certain sum, derived from the hire of convicts into the county treasury for the use of the officers of court, such law being a special law in conflict with the general law on the subject of the disposition of misdemeanor convicts is void.7
The General Assembly has the power to create a special statu tory court adapted to the needs of a particular locality, without making its jurisdiction uniform with any other court, 8 and it may create special tribunals for special purposes, and invest judicial of ficers of courts already created with special judicial functions.9
The law allowing the superior courts to call special terms for the granting of charters does not contravene this provision; 10 nor does act providing for holding of six terms a year in a single county. 11
SECTION 10.
ATTORNEY-GENERA!,.
1274 (6528). Paragraph 1. ATTORNEY-GEN ERAL; ELECTION. There shall be an attorney-general of this State, who shall be elected by the people at the same
4. Pausch v. Guerrard, 67 Ga. 319. 5. Johnson v. Hilton & Dodger Lumber Co., 103 Ga. 223, 29 S. E. 819; Gordon v. State, 102 Ga. 684, 29 S. E. 444; Wright v. Davis, ISO Ga 676, 48 S- E. 170. 6. Whittendale v. Dickson & Bro., 70 Ga. 721. 7. Binns -v. Ficklen, 130 Ga. 377, 60 S. E. 1051. 8. Wellborn v. Donaldson, 115 Ga. 563, 41 S. E. 999; McFarland v. Donaldson, 115 Ga. 570, 41 S. E- 1000. 9. Kennedy v. Meara, 127 Ga. 68, 76, 56 S. E. 243; Columbus Rwy. Co. v. Wright, 89 Ga. 596, 15 S. E- 393, 67 Ga. 374. 10. Branch v. Augusta Glass Works, 95 Ga. 576, 23 S. E. 138. 11. Burge v. Mangum, 134 Ga. 307, 67 S. E. 857.

591 ] AMENDED CONSTITUTION OF 1877. [ 1275-1276
time, for the same term, and in the same manner as the Governor.
Cross References: 763, 979.
Small's Report, 42, 199, 200, 233, 234, 235.
1275 (6529). Par. 2. DUTIES. It shall be the duty of the attorney-general to act as the legal adviser of the Executive Department, to represent the State in the Supreme Court in all capital felonies, and in all civil and criminal cases in any court when required by the Governor, and to perform such other services as shall be required of him by law.
Cross References: 764, 980.
Small's Report, 29, 337.
The Attorney-General has the power to institute suits necessary to the protection of trie interests of the State where the State's property is involved or where public rights are jeopardized, with out direction from the Governor; and where so directed he has no discretion but to obey the mandates of the chief executive, 1 but he has not the power to release an ad valorem tax ;2 nor to compromise a tax exemption at less than its full amount unless express authority is given by the State.3
"Capital felony" requiring representation of State by AttorneyGeneral before Supreme Court has been interpreted to mean any case where the law authorized the death penalty for the crime, whether the extreme penalty imposed in that particular case or not.4
SECTION 11.
SOLICITOR-GENERAL.
1276 (6530), Paragraph 1. SOLICITOR- GEN ERAL; TERM. There shall be a solicitor-general for each judicial circuit, whose official term (except to fill a va-
1. Trust Company v. Georgia, 109 Ga. 746, 747, 35 S. E. 333; Wood ward v. Westmoreland, 124 Ga. 530, 532, 52 S. E. 810; Hart v. Atlanta Terminal Company, 128 Ga. 754, 58 S. E. 452.
2. State v. Southwestern R. R. Co., 70 Ga. 11. 3. State -v. Southwestern R. R. Co., 66 Ga. 403. 4. Cffisar v. State, 127 Ga. 714, 57 S. E. 66. See note 13 to 1252.

1277] AMENDED CONSTITUTION OF 1877.

[ 592

cancy) shall be four years. The successors of present and subsequent incumbents shall be elected by the electors of the whole State, qualified to vote for members of the Gen eral Assembly, at the general election held next preceding1 the expiration of their respective terms. Every vacancy occasioned by death, resignation, or other cause shall be filled, by appointment of the Governor, until the first day of January after the general election held next after the expiration of thirty days from the time such vacancy oc curs, at which election a successor for the unexpired .term shall be elected; Provided, that the successors for all in cumbents whose terms expire on or before the first day of January, 1899, shall be elected by the General Assembly at its session for 1893, for the full term of four years.
Cross References: 438, 437, 538, 635, 766, 982, 1083.
Smalls Report, 238, 239.
1277 (6531). Par. 2. DUTIES. It shall be the duty of the solicitor-general to represent the State in all cases in the superior courts of his circuit, and in all cases taken up from his circuit to the Supreme Court, and to perform such other services as shall be required of him by law.
Cross References: 766, 982.
Written notice of the sanction of a writ of certiorari and of the time and place of hearing must be given to the "opposite party in interest;" hence, notice to the members of the court which ren dered the judgment complained of will not suffice. 1 A certiorari returnable to a regular term of the superior court from a con viction of misdemeanor in a county court, such notice must be served upon the solicitor-general instead of the solicitor of the county court, 2 and whether the certiorari in such a case be treated as pending in the superior court, or before the judge in vacation, it will be dismissed when it appears that neither solicitor general nor county court solicitor served ;3 but bill of exceptions sued out to review decision overruling certiorari to judgment of municipal court convicting one of violation of a municipal ordinance, need

1. Shepard v. Walker, 118 Ga. 47, 44 S. E. 801. 2. Moore v. State, 96 Ga. 309, 22 S. E. 960. 3. Glenn v. State, Gilbert v. State, 122 Ga. 595, 50 S. E. 371.

593 ] AMENDED CONSTITUTION OF 1877. [ 1278-1279
not be served upon the solicitor general of the Atlanta circuit,4 to represent the State in Supreme Court, in case pending there on writ of error from superior court of Fulton County, in which error assigned upon refusal of the judge of the superior court to sanction petition for certiorari, to be directed to the criminal court of Atlanta.5
City Court of Griffin being a court from which writs of error lie direct to the Supreme Court, act establishing that court, cre ating office of solicitor thereof, and providing, in effect, that he shall represent the State in criminal cases prosecuted in that court, it is his duty to represent the State in criminal cases carried to the Supreme Court from such city court. 6
SECTION 12.
ELECTION OF JUDGES, ETC.
1278 (6532). Repealed by 1251, 1254, 1276 (6505, 6508, 6530).
SECTION 13.
JUDICIAL SALARIES.
1279 (6533). Paragraph 1. SALARIES OF JUDGES, ETC. The judges of the Supreme Court shall have, out of the treasury of the State, salaries not to exceed three thou sand dollars per annum; the judges of the superior courts shall have salaries not to exceed two thousand dollars per annum; the attorney-general shall have a salary not to ex ceed two thousand dollars per annum; and the solicitor general each shall have salaries not to exceed two hundred and fifty dollars per annum; but the attorney general shall not have any fee or perquisite in any cases arising after the adoption of this Constitution; but the provisions of this section shall not affect the salaries of those now in office: Provided, however, That the counties of Chatham, Fulton,
4. Holliman v. Mayor of Hawkinsville, 109 Ga. 107, 34 S. E. 214. 5. Williams V. State, 131 Ga. 195, 48 S. E. 938. 6. Fambrough v. State, 113 Ga. 934, 39 S. E. 334; Cooper v- State, 103 Ga. 405, 30 S. E. 249.

1279 ] AMENDED CONSTITUTION OF 1877.

[ 594

and Richmond shall pay from their respective county treas uries to the Superior Court Judges oi the Circuit of which they are a part, and the county of Fulton to the Judge of the Stone Mountain Circuit, or the Judge of such other circuit as may hereafter be required to regularly preside therein, for additional services rendered in the Superior Court of Fulton County, such sums as will, with the sal aries paid each Judge from the State Treasury, make a salary of $5000.00, per annum to each judge; and said payments are declared to be a part of the Court expenses of such counties, such payments to be made to the Judges now in office as well as their successors. The Act of the General Assembly of 1904 entitled "An act to regulate the salaries of Judges of the Superior Courts of all judicial cir cuits of this State, having or that may hereafter have therein a city with a population of not less than 54,000, nor more than 75,000 inhabitants, and for other purposes,--with the Acts of the General Assembly of 1905 and 1906 amend atory thereof; and also the act of the General Assembly of 1906, entitled "An Act to regulate the Compensation of Judges of the Superior Courts for services rendered out side of their own circuits in those Judicial Circuits of the State having therein a city of not less than 75,000 inhab itants according to the Census of 1900, and for other pur poses; which Acts provide for the payments from the treas uries of the counties containing said cities to the judges aforesaid, a part of their salaries are ratified, validated, and confirmed as to the dates of said respective enact
ments.
Cross References: 335, 537, 634, 769, 984.
Historical Note: By special acts of the legislature the judges of the Superior Courts of the counties of Fulton, Chatham and Richmond, and of the Stone Mountain Circuit were paid $2,000 per annum from the county treasury of the counties named in supplement of their sal aries. In the case of Clarke, Treasurer, v. Hammond, Judge, 134 Ga. 792, this was declared unconstitutional. The General Assembly being in session when this decision was announced, it submitted the amend ment providing for such increased payment which forms part of the above paragraph. See Acts 1905, p. 90; Acts of 1906, p. 56; Acts of 1910,
p. 42. Code, 325, 336.
Small's Report, 239-245, 246-248.

595 ] AMENDED CONSTITUTION OF 1877. [ 1280-1282
1280 (6534). Par. 2. HOW SALARIES MAY BE CHANGED. The General Assembly may at any time, by a two thirds vote of each branch, prescribe other and differ ent salaries for any, or all, of the above officers, but no such change shall affect the officers then in commission.
Cross Reference: 985. Small's Report, 248-350. See Acts of 1904, p. 72; Code, 322, 323, 335, 326.
SECTION 14.
QUALIFICATION OF JUDGES, ETC. 1281 (6535). Paragraph 1. QUALIFICATIONS. No person shall be judge of the Supreme or Superior Courts, or Attorney-General, unless, at the time of the elec tion, he shall have attained the age of thirty years, and shall have been a citizen of the State three years, and have practiced law for seven years; and no person shall be here after elected solicitor-general, unless at the time of his election, he shall have attained twenty-five years of age, shall have been a citizen of the State for three years, and shall have practiced law for three years next preceding his election.
Cross References: 771, 986.
Small's Report, 252.
SECTION 15.
DlVORCS.
1282 (6536). Paragraph 1. DIVORCE. No total divorce shall be granted, except on the concurrent verdicts of two juries at different terms of the Court.
Cross References: 83, 399, 424, 526, 623, 746, 987.
Small's Report, 253-258.
Each trial is so far distinct that quo ad hoc it may be treated as a termination of the case within the meaning of the statutes, so as to allow a motion for a new trial to be made and exception taken to the judgment thereon, or direct exception taken to the direction of a verdict. 1
1. Rorie V. Rorie, 133 Ga. 723, 64 S. E. 1070.

1283-1284 ] AMENDED CONSTITUTION OF 1877. [ 596
1283 (6537). Par. 2. LAST JURY DETERMINES DISABILITIES. When a divorce is granted, the jury render ing the final verdict shall determine the rights and disabil ities of the parties.
Cross References: 526, 623, 772, 988.
Under the present constitution the judge has no power to revise a final verdict rendered in a divorce case and when the jury gives the parties their right to marry again, this right cannot be denied by the judge, 1 and a final verdict dissolves the marriage whether any judgment or decree is entered upon it or not. 2
SECTION 16.
General Note.--The provisions of the Constitution fixing the venue in all cases, both civil and criminal, were intended to be ex haustive. 1 All the provisions of the Constitution preceding this sec tion with respect to jurisdiction have been with respect to jurisdic tion as to persons and subject matter; that which follows in this section treats exhaustively of "where" actions are to be brought. 2 The general rule, with certain exceptions provided for in this sec tion, is that all civil cases shall be brought and tried in the county of the defendants residence.3
1284 (6538). Paragraph 1. DIVORCE CASES, WHERE BROUGHT. Divorce cases shall be brought in the county where the defendant resides, if a resident of this State; if the defendant be not a resident of this State, then in the county in which the plaintiff resides.
Cross References: 773, 989.
Small's Report, 259.
The provisions of the Code which allow parties to waive jurisdic tion do not apply to divorce suits, and where both parties reside in
1. Montfort V. Montfor.t, 88 Ga. 641, 15 S- E. 688. 2. Burns et al. V. Lewis, 86 Ga. 591, 13 S. E. 123; Rorie v. Rorie, 132 Ga. 723, 64 S- E. 1070. 1. Pope V, State, 124 Ga. 803, 53 S. E. 384. 2. Starnes v. Mutual Loan & Banking- Co., 102 Ga. 60S, 29 S. E. 452. 3. McCall v. Central Rwy. Co., 120 Ga. 6O4, 48 S. E. 154.

597 ]

AMENDED CONSTITUTION OF 1877. [ 1285

this State, the defendant cannot, by acknowledgment of service and. agreement that the case be tried in the county of the residence of the plaintiff, confer power upon the court to render a valid judg ment, and when it appears that the court is without jurisdiction of a divorce suit, and the defendant attempts by waiver or consent to confer jurisdiction, the trial judge, upon his own motion, may dis miss the suit, even after the rendition of the first verdict in favor of the grant of a divorce. 1

1285 (6539). Par. 2. LAND TITLES, WHERE TRIED. Cases respecting- titles to land shall be tried in the county where the land lies, except where a single tract is divided by a county line, in which case the superior court in either county shall have jurisdiction.
Cross References: 276, 334, 391, 418, 421, 427, 529, 626, 775, 990.
Although legal and equitable jurisdiction has been so merged in the superior courts that legal and equitable remedies may be ap plied in the same action, yet, giving effect to the provisions of this and the next succeeding paragraph, if a suit in its legal aspects is one respecting titles to land, and it also seeks equitable relief pre liminary to the recovery of the land, and the defendant lives in one county and the land lies in another, the two causes of action cannot be combined in one suit. 1
The provisions of this paragraph do not apply when the title to the land is not directly put in issue but is only incidentally in volved ;2 hence a suit to cancel a deed ;3 a bill to enjoin a trespass to realty;4 an action to enforce a mechanics' Hen on realty; 5 a suit against a trust estate to put a charge upon certain lands; 6 a bill

1. Watts v. "Watts, 130 Ga. 684, 61 S. E. 593. 1. Clayton v. Stetson, 101 Ga. 634, 28 S. E. 983. 2. Royston v. Royston, 21 Ga. 162. 3. Saffold -v. Scottish American Mortgage Co., 98 Ga. 785, 27 S. E. 208; Smith V. Bryan, 34 Ga. 53; Bivins v. Bivins, 37 Ga. 346; Eagle Mfg. Co. v. West, 61 Ga. 133; McArthur v. Matthewson, 67 Ga. 144; Carswell v. Bunch, 77 Ga. 504; Johnson v. Griffin, 80 Ga. 553, 7 S. E. 94; Wheatley v. Blalock, 82 Ga. 406, 9 S. E. 168; Lowe v. Mann, 74 Ga. 387; Block v. Fritz, 98 Ga. 32, 25 S. E. 188. 4. Powell v. Cheshire, 70 Ga. 357. 5. Wheatley v. Blalock, 82 Ga. 406, 9 S. E. 168; Porter v. Wilder and Son, 62 Ga. 521.
6. Beckwith v. McBride & Co., 70 Ga. 643.

1286 ] AMENDED CONSTITUTION OF 1877.

[ 598

to set aside a sale of land and cancel a deed for fraud;7 a bill for accounting and specific performance ;8 a bill to set aside a sale by a married woman to her husband without an order of the superior court of the wife's domicile, & are none of them such "suits respecth ing titles to land" that they must be brought in the county where the land lies.
The foreclosure of a mortgage on realty, 10 and a bill to set aside a sheriff's deed, 11 must be brought in the county where the land lies. Where a complainant has no redress except against land in Georgia, a court of equity will take jurisdiction in rern, 13 and a court of equity of the county where the land lies has peculiar jurisdiction of a proceeding in rem to quiet title to land sold by a foreign vendor and duly paid for by a resident vendee. 13 Condemnation proceed ings under 5206, et seq., may be had in either county where the land sought to be condemned is divided by county lines. 14
An act of the legislature changing the county lines so as to place
the land sued for in an ejectment suit in another county, deprives
the court in which such case is pending of jurisdiction to proceed
with the trial of the case. 15

1286 (6540). Par. 3. EQUITY OASES. Equity cases shall be tried in the county where a defendant resides against whom substantial relief is prayed.
Cross References: 529, 636, 776, 991.
The term "civil cases" as used in the Constitution of 1798 was held not to include equity causes, 1 but, following the analogy of the provision in that constitution "that all civil cases should be tried in the county of the residence of the defendant," it was held that,

7. Smith v. Bryan, 34 Ga. 53; Bivins v. Bivins, 37 Ga. 346; McArthur & Griff v. Matthews & Butler, 67 Ga. 135; Hicks v. Kiser & Co., 103 Ga. 738, 30 S. E. 583; Martin v. Gaissert, 134 Ga. 34, 67 S. E. 536.
8. Lowe et al. v. Mann, 74 Ga. 387. 9. Fulgham et al. v. Pate, 77 Ga. 455. 10. Hackenhull v. Westbrook, 53 Ga. 285. 11. Caswell v. Bunch, 77 Ga. 504. 12. Central R. R. Co. v. Whitehead, 74 Ga. 441. 13. Stewart et al. v. Rutherford, 74 Ga. 436. 14. Whitney v. Central Ga. Power Co., 134 Ga. 213, 67 S. E. 197. 15. Kelly v. Tate, 43 Ga. 536. 1. Gilbert v. Thomas et al., 3 Ga, 575; Rice v. Tarver, 4 Ga. 584; I^avender v. Thomas, 18 Ga. 678.

599]

AMENDED CONSTITUTION OF 1877. [ 1286

even in equity, a party should not, without good cause, be dragged out of his county to answer a complaint,2 and that equity suits should be brought in a county where one of the defendants resides, unless there was some other equity authorizing a different course.3 The Constitution of 1861, for the first time specifically referred to the venue of equitable causes, and brought substance and not form, alone, into consideration in determining venue,4 and it was, conse quently, held, afterwards, that a bill in equity must show that a de fendant against whom substantial relief is prayed, is a resident of the county in which it is filed, otherwise the court has no jurisdic tion,5 and a bill so filed was not demurrable on the ground that land lying in another county was involved in the litigation;6 but juris diction is not given by residence of a party against whom no sub stantial relief is prayed,7 and a prayer for discovery is in no way necessary to an assertion of complainant's rights,8 and where a bill was filed against the railroad commission and a certain railroad in a county where none of the railroad commissioners lived, to enjoin the enforcement of a certain rate made by said commission, and it appeared that the interest of the defendant railroad was not adverse to the complainants, and therefore no substantial relief was prayed against it, the bill was dismissed for want of jurisdiction in such
county.9 This rule does not apply to bills auxiliary to suits at law, and in
so far as such a bill seeks no relief outside of the suit pending, the county where the suit is pending has jurisdiction regardless of the residence of the defendant against whom such equitable relief is prayed,10 and, hence, a bill to enjoin a pending proceeding is prop-

2. Wynne v. Lumpkin, 35 Ga. 212; Aiken v. Peek, 64 Ga. 644, 11 Ga.
455. 3. Jordan et al. v. Jordan, 12 Ga. 77; Smith v. Iverson & Wife, 22 Ga.
198; Carswell v. Macon Mfg. Co., 38 Ga. 406. 4. Railroad Commission v. Palmer Hardware Co., 124 Ga. 639, 53 S.
E. 193. 5. Sims et al. v. Sims et al., 50 Ga. 572; Hawkins v. Smith, 56 Ga.
576; Edwards et al. v. Kilpatrick et al., 70 Ga. 328. 6. Roberts v. Mathews, 77 Ga. 458. 7. Davis v. McMichael et al., 65 Ga. 396; Smith v. Coker et al., 74
Ga. 390. 8. Mackall, Assignee, v. West et al., 67 Ga. 281. 9. Railroad Corns, v. Palmer Hardware Co., 124 Ga. 648, 53 S. E- 193;
Smith v. Coker et al., 74 Ga. 390. 10. Code, 5557; Thompson -v. Thompson, 129 Ga. 445, 59 S. E- 236;
Lawson v. Cunningham, 21 Ga. 454; Dew v. Hamilton, 23 Ga. 415; Cars-

1286 ] AMENDED CONSTITUTION OF 1877.

[ 600

erly brought in the county where such suit is pending though the defendant resides in another county, 11 but the chancery court where guardianship letters were granted has no jurisdiction to call a guardian living in another county to account with ward, no sub stantial relief being prayed against any other defendant. 13
A bill for specific performance and accounting, 13 and a bill to en join a trespass upon realty by felling timber, 14 are not suits "re specting titles to land," and the venue is the county of the residence of one or more of the defendants against whom substantial relief is prayed, and if brought elsewhere it will be dismissed; and an equita ble amendment to a. declaration in ejectment is demurrable unless it alleges that the defendant against whom relief is prayed is a resident of the county where the suit is pending or is a nonresident of the State, 15 and a bill to set aside a sheriff's deed must be filed in the county of the grantee's residence. 16
The venue on equitable petition to enjoin the levy of an execution until a pending motion to set aside the judgment on which it is based can be heard and determined, and complaining of misconduct of the levying officer, is the county of the residence of the judgment plaintiff, if a resident of this State; 17 and, where the State has ac tually received the amount due upon an execution issued by the comptroller-general for the hire of convicts and the execution has been assigned to a private citizen, an equitable petition by the de fendant in execution to enjoin the assignee from proceeding with

well v. Macon Mfg-. Co., 38 Ga. 403; Clark v. Beall, 39 Ga. 534; Shewmake v. Johnson, 57 Ga. 75; L,ester v. Mathews, 58 Ga. 404; Bdwards v. Kilpatrick, 70 Ga. 338; Caswell v. Bunch, 77 Ga. 505; Dobbins v. Mayor Cartersville, 73 Ga. 137; DeLacy v. Hurst, 83 Ga. 233, 9 S. E. 105S; Romisaville v. McGinnis, 93 Ga. 581, 21 S. E. 123; Moon v. Medlock, 101 Ga. 98; Ray v. Home, etc., Co-, 106 Ga. 492, 32 S. E. 603; Dawson v. Equitable Mfg. Co., 109 Ga. 389, 34 S- E. 668; Kruger v. Walker, 111 Ga. 387, 36 S. E. 794; Johnson v. Whitley Grocery Co., 112 Ga. 449, 37 S. E. 766; Vizard v. Moody, 115 Ga. 491, 41 S. E. 997; Etowah Milling Co. v. Crenshaw, 116 Ga. 409, 42 S- E. 709.
11. Markham v. Huff, 72 Ga. 874; Caswell v. Bunch et al., 77 Ga. 504; Crawley v. Barge et al., 132 Ga. 96.
12. Bass et al. v. Wolff & Hopp et al., 88 Ga. 427, 14 S. E. 589, 13. Wactor v. Salsbury, Respess & Co., 73 Ga. 811; Eowe et al. v. Mann, 74 Ga. 387; Jackson v. Jackson, 127 Ga. 183, 56 S- E. 318. 14. Dobbins v. Mayor, etc., of Cartersville, 73 Ga. 137. 15. Johnson v. Griffin et al., SO Ga. 551, 7 S. E. 94. 16. Caswell v. Bunch et al., 77 Ga. 504. 17. Malsby & Co. v. Studstill, 127 Ga. 736, 36 S. E. 988.

601 ]

AMENDED CONSTITUTION OF 1877. [ 1287

a levy of the execution should be brought in the county of the resi dence of such assignee and is not maintainable in another county, though the property seized be located therein, and the sheriff thereof by whom levy was made be joined as a party defendant. 18
A collusive sale attacked by a bill in the county of a debtor's res idence, the court of that county had jurisdiction of the vendee, though he resided in another county, 19 and where a bill showed that property had been covered up by a debtor in collusion with a person in another county, the bill could be filed in the county of the resi dence of the debtor and the co-conspirator could be joined as a de fendant irrespective of his residence. 20
A suit which is not a suit "respecting titles to land," but which is of an equitable nature can only be brought in some county where a defendant resides against whom substantial relief is prayed, and a foreign corporation cannot be treated as a resident of such a county when it has no agent therein except in the sense that it is repre sented by an attorney at law in litigation in that county. 21
The judges of the superior courts of this State have power, at chambers to appoint and remove trustees; and applications for this purpose may be entertained at any place within their respective cir cuits, without reference to the residence of the parties or the loca tion of the property, the proceedings had on such application being always returned to the clerk of the superior court of the proper county. 22

1287 (6541). Par. 4. SUITS AGAINST JOINT OB LIGORS, ETC. Suits against joint obligors, joint promisors, copartners or joint trespassers, residing in different coun ties, may be tried in either county.
Cross References: 391, 418, 534, 631, 777, 993.
Where an immediate act is done by the cooperation or the joint act of two or more persons, they are all trespassers, and may be sued jointly, or severally, and any one of them is liable for the in jury done by all. To render one man liable in trespass, for the acts

18. Dade Coal Co. v. Anderson et al., 103 Ga. 811, 30 S. E. 640. 19. DeLacy et al. v. Hurst, Purnell & Co. et al., 83 Ga. 323, 9 S. E1052. 20. Kruger v. "Walker, 111 Ga. 383, 36 S- E. 794. 21. Saffold -v. Scottish American Mort. Co., 98 Ga. 786, 27 S. E. 208. 22. Heath v. Miller et al., 117 Ga. 854, 44 S. E. 13.

1287 ] AMENDED CONSTITUTION OF 1877.

[ 602

of others, it must appear either that they acted in concert, or that the act of the party sought to be charged, ordinarily and naturally produced the acts of the others. 1 The word "trespass" generally involves the idea of force, yet, in its broadest sense, it comprehends any misfeasance, transgression or offence which damages another person's health, person, reputation or property, hence persons charged with a joint libel are suable in the county of any one of the joint trespassers. 2
The levy of an execution against one person upon property in the possession of another is a trespass; and the plaintiff in execution, the attorney for the plaintiff in execution who orders the levy, and the officer who makes it, are all liable as trespassers, unless they justify by showing that the property belonged to the defendant in execution, and was liable to the execution.3
A person who wrongfully enters upon land and proceeds to cut timber thereon is a trespasser, and subject to be sued as such, whether he is acting for himself or as agent for another. If he com mits such trespass by the direction of another acting as the principal, or if the two collude to defraud and damage the other by such wrong ful cutting of timber, an action for damages or for the equitable relief of injunction and receiver may be brought in the county of the residence of either.4
A railroad company is liable as a trespasser for an unjustifiable assault made upon a passenger by the conductor of the train, the conductor being engaged in the company's business, and when the assault is the joint act of the conductor and a person not the servant of the company, the company and the person who assisted the con ductor in making the assault are joint trespassers and the courts of the county of such person's residence have jurisdiction of a joint suit for damages against the company and such person, although such county is not the county in which the cause of action originated, nor the county of the residence of the railroad company.5
The act of a railroad engineer in running a train over a public road crossing in violation of the requirements of the blow post law, is not a mere nonfeasance of the agent, but is a misfeasance which

1. Brooks -v. Ashburn, 9 Ga. 298. 2. Cox -v. Strickland, ISO Ga. 104, 106, 47 S. E. 913. 3. McDougald v. Dougrherty, 13 Ga. 613. 4. Baker v. Davis, 127 Ga. 649, 57 S. E. 62; McPhaul v. Fletcher, 111 Ga. 878, 36 S- E. 938. 5. Central of Ga. Rwy. Co. v. Brown, 113 Ga. 414, 38 Ga. 989.

603 ]

AMENDED CONSTITUTION OF 1877. [ 1287

renders him individually liable to persons injured as a result of such conduct and he may be jointly sued with the railroad company, and, the railroad company being a foreign corporation which must be sued in the county where the cause of action originated if it has an agent in such county, the engineer may be sued in such county, jointly with the railroad company, although he resides in another
county. 6 "Where two are sued as joint trespassers, one of whom resides
without the county in which the suit is brought, the court has prima facie jurisdiction as to both, but if the evidence shows that the party residing in the county where suit is brought is not a co-trespasser with the other the jury should, under instructions from the court, find in favor of the nonresident no matter how much the evidence may show his separate liability for the trespass.7
A principal and surety may be sued together in county of the sure ty's residence. 8 (But see 1288 below as to indorsers.)
Railroad companies may be joint obligors, so as to come under the provisions of this paragraph, as in the case of a suit upon a bond made by a railroad company, in a county other than that in which its principal office is located, said bond being conditioned to pay damages to another railroad company resulting from delay in cident to the prosecution of a writ of error complaining of the re fusal to enjoin the latter company from crossing the tracks of the
former in still another county. 9 But the purchaser of property under mortgage contracting with
the mortgagor to pay the debt, the mortgagee not being a party, is not a joint obligor with the mortgagor; 10 nor are the owner of real estate improved and the contractor, relatively to the material man, "joint obligors or joint promisors," hence, where the owner of the real estate resides in one county, and the contractor in another, they cannot be joined in a suit to foreclose the lien in a justice's court of the district where the owner of the land resides. 11

6. Southern Rwy. Co. v. Grizzle and O'Neal v. Grizzle, 124 Ga. 735,
53 S. E. 344. 7. Lee v. "West, 47 Ga. 312. 8. White v. Hart & Davis, 35 Ga. 369; Cobb i>. Pitman, 49 Ga. 578;
Lumpkin et al. v. Galloway, 101 Ga. 227, 38 S. E- 622. 9. Waycross Air Line R. R. Co. v. Offerman & Western R. R. Co.,
114 Ga. 727, 40 S- E. 738. 10. Autrey v. Autrey, 94 Ga. 88, 20 S. E. 431. 11. Mauck v. Rosser, 136 Ga. 270, 271, 55 S. E. 32.

1288-1289] AMENDED CONSTITUTION OF 1877. [604
1288 (6542). Par. 5. SUITS AGAINST MAKER AND INDORSEE,, ETC. Suits against the maker and indorser of promissory notes, or drawer, acceptor, and indorser of foreign or inland bills of exchange, or like instruments, re siding in different counties, shall be brought in the county where the maker or acceptor resides.
Cross References: 431, 535, 632, 778, 993.
Small's Report, 259.
A guarantor of the payment of a promissory note, not residing in the same county with the maker, cannot be sued with the maker m the county of the residence of the latter, though the guaranty be "endorsed" upon the note ;* and, likewise, a debtor by account cannot be sued jointly with a guarantor of the payment of the ac count in the county of the latters residence.2
A warranty deed to land is not a "like instrument" with a promissory note, and the indorsers thereof cannot be sued in the same action with the maker, and the trial be had in the county of the residence of the latter, irrespective of where the former re sided. 3
An acceptor of a draft who accepts it after endorsement by the payee and upon the understanding with him that if he has to pay the draft, he may recover the sum paid from the drawer and the payee in joint suit against the drawer and payee in the county of the drawer, though the indorser lives in a different county.4
1289 (6543), Far. 6. ALL OTHER CASES. All other civil cases shall be tried in the county where the de fendant resides, and all criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an im partial jury cannot be obtained in such county.
Cross References: 376, 277, 335, 391, 418, 421, 427, 528, 533, 625, 630, 774, 779, 994.
See notes to 1286, 1290.
Civil Cases.--This clause of the Constitution applies to corpora tions as well as to natural persons, but the legislature has the
1. Geiser Manufacturing Co. v. Jones & Toole, 90 Ga. 307, 17 S- E. 81. 2. Sims & Auchmuty et al. v. Clark & Co., 91 Ga. 302, 18 S. E. 158. 3. McGuire v. Wagnon et al., 59 Ga. 592. 4. Ross et al. v. Saulsbury, Respess & Co., 53 Ga. 380.

605 ]

AMENDED CONSTITUTION OF 1877. [ 1289

power to make a railroad company a resident, for specific pur poses, of every county in which the railroad is located, but the corporation does not cease to be a resident of the county where its principal office or place of business is located, 1 and the act mak ing railroad companies suable in the county where the cause of action originated is not unconstitutional ;2 and the General As sembly can make a lessee corporation, for the purposes of suit, the same as that which the lessor corporation had when the relation of lessor and lessee originated; and thus make the lessee of a rail road located partly in Georgia, and partly in Alabama, suable in the county of its principal office in this State for an injury sus tained on the line of road in the State of Alabama.3
A mortgage on personalty must be foreclosed in the county of the defendant's residence, if a resident of Georgia, and the affidavit must disclose the defendant's residence,4 and show the jurisdiction of the court where proceedings commenced,6 but if the mortgagor be a nonresident of the State, the mortgage may be foreclosed In any county of the State where the mortgaged property may be found. 6
Georgia courts have no jurisdiction of suits, in personam, against a foreign corporation, unless the contract sued upon was made in Georgia, or the Georgia agent is connected with it, within the scope of his authority as the maker of the contract;7 and where

1. McCall v. Cen. of Ga. Rwy. Co., 130 Ga. 604, 48 S- E. 157; Mayor of Savannah v. Grayson, 104 Ga. 112, 30 S. E. 693.
2. Gilbert v. Ga. R. R. & Banking Co., 104 Ga. 412, 30 S. E. 373; Wil liams v. East Tenn., Va. & Ga. Ry. Co., 90 Ga. 519, 16 S. E. 303; Ga. R. R. & Banking- Co. v. Monroe, 49 Ga. 373; Southwestern Railroad Co. v. Cohen, 49 Ga. 627; Arnold & Dubose v. Ga. R. R. & Banking Co., 50 Ga. 304; Ga. R. R. & Banking Co. v. Oaks, 52 Ga. 410; Cen. R. R. & Banking Co. v. Smith, 54 Ga. 499; Ga. R. R. & Banking Co. v. Seymour, 53 Ga. 499; Cen, R. R. & Banking Co. v. Carswell, 54 Ga. 251; Bracewell v. Southern Rwy. Co., 134 Ga. 637, 68 S- E. 93.
3. Watson v. Richmond & Danville R. R. Co., 91 Ga. 222, 18 S. E. 306.
4. Rich v. Colquitt, Gov., 65 Ga. 113; Harper v. Grambling, Spalding & Co., 66 Ga. 236; Clayton v. May, 67 Ga. 769; Galloway v. Walls, Sher iff et al., .54 Ga. 167.
5. Lewis v. Frost, 69 Ga. 755. 6. Griffin & Clay v. Marshall et al., 45 Ga. 549; Rich v. Colquitt, Gov., 65 Ga. 113; Epping v. Aiken, 71 Ga. 682; Hubbard v. Andrews & Co., 76 Ga. 177. 7. Bawknight v. Liverpool & London, etc., Co., 55 Ga. 195.

1289 ] AMENDED CONSTITUTION OF 1877.

[ 606

the courts of this State have jurisdiction of a suit against a foreign insurance company by reason of the fact that the contract was made in this State, the suit must be filed in the county where the principal office of the company is located, or where the company has an agent at the time the suit is brought ;8 but -when the contract was made in this State, and the company suable here but there being no agency, and therefore, no venue fixed, the company is to be treated as a nonresident and suable here wherever it can be found. 9
The cause of action which gives jurisdiction to the courts of the county where the suit is filed must be a cause of action existent at the time of the commencement of suit, and if the plaintiff has no right of action at the time of the commencement of suit, he cannot maintain it by a right acquired during its pendency, 10 but if a defendant resides in a certain county, and a cause of action exists against him in that county at the time of the filing of a suit upon such cause of action, and he removes from the county, he does not thereby oust the court of jurisdiction by his change of residence pendente lite, and where an executor is sued as such and dies pending the suit, and an administrator de bonis non is ap pointed in another county, the suit does not abate and the new administrator may be made a party in the county where the suit is pending; 11 but if an administrator be sued, in the county of his residence jointly with others not residing in the same county with him, and if there be no cause of action against the administrator, the court will not have jurisdiction of the nonresidents of the county, though a good cause of action exists and is alleged against them. 13
Exceptions,--A possessory warrant is not such civil case as must be brought in the county where the defendant resides; 13 and

8. Empire State Ins. Co. et al. v. ColHns, 54 Ga. 376; Merritt v. Cot ton States Life Ins. Co., 55 Ga. 103; Atlanta Home Ins. Co. v. Tullis, 99 Ga. 225, 25 S. E. 401.
9. Pollard & Co. v. Gibbs et al., 55 Ga. 46; Eauity Life Ass'n v. Gam mon, 119 Ga. 274, 46 S. E. 100; City Fire Ins. Co. of Hartford v. Carrugi, 41 Ga. 660.
10. Wadley, Jones & Co. v. Jones, 55 Ga. 329; Mason et al. v. Atlanta Fire Company, No. 1, 70 Ga. 608; Baker v. Tillman, 84 Ga. 402, 11 S. E. 355.
11. Walton et al. v. Gill, 46 Ga. 600, 602, 12. Lester et al. v. Matthews, 56 Ga. 656. 13. Jordan v. Owens, 67 Ga. 616.

607 ]

AMENDED CONSTITUTION OF 1877. [ 1289

injunction suits to stay pending1 proceeding's are an exception to the rule and may be brought where the suit is pending irrespective of the residence of the plaintiff in the suit sought to be enjoined; provided no relief is prayed except such as is included in the litiga tion sought to be stayed.14
Criminal Cases.--The constitution requires trial of all criminal cases in the county where the crime was committed, and the resi dence of the defendant is wholly immaterial, 15 hence, the pro visions in an act which subjected offenders to be tried in the county of their residence, was unconstitutional in so far as it applied to offenses committed elsewhere than in the county of the offender's residence ; 16 and where a new county is created, one re siding in the territory of the new county cannot be tried in such new county for a criminal offense committed in the territory left in the original county, but must be tried in the county which em braces the place where the crime is alleged to have been com mitted, 17
The statutory provisions prescribing manner of changing venue are not unconstitutional as impairing- the right of the defendant to be tried by an impartial jury; nor is statute prescribing questions on voir dire; nor is said, statute unconstitutional because the power of the judge to change the venue is restricted. 18
General Note as to New Counties.--It may be deduced from the decisions that where there is no constitutional provision regulating the place at which the trial of a civil action shall be had, the cutting off into a new county of land involved in pending suits in the old county, or the change of residence of defendants against whom suits are pending, will not oust the jurisdiction of the courts of the old county, and, in the absence of a provision for the transfer of such cases to the new county, that they are triable in the courts of the old county; but where there is a constitutional provision that cases respecting land shall be tried in the county

14. Moore, Marsh & Co. v. Medlock, 101 Ga. 94, 98, 38 S. E. 836; Markham -v. Huff, 72 Ga. 874. See Note 10 to 1286.
15. Tarver v. State, 123 Ga. 494, 51 S. E. 491. 16. Dempsey v. State, 94 Ga. 766, 22 S. E- 57; Davis v. State, 58 Ga. 172; Lovell v. State, 60 Ga. 257. 17. Pope v. State, 124 Ga. 803, 53 S. E. 384; Bundrich v. State, 125 Ga. 756, 54 S. E. 683. 18. Woolfolk v. State, 85 Ga. 70, 71, 11 S. E. 814. See notes to next section.

1290-1291 ] AMENDED CONSTITUTION OF 1877. [ 608
where the land is situated, and that cases against defendants shall be tried in the county where the defendant resides, the defendants in the latter character of cases, or either party in the former class of cases, may have such cases transferred to the proper courts of the new county, but if there is no timely motion for transfer, the jurisdiction of the court cannot after judgment be questioned. 19
SECTION 17.
CHANGE OF VENUE.
1290 (6544). Paragraph 1. POWER TO CHANGE VENUE. The power, to change the venue in civil and criminal cases shall be vested in the superior courts, to be exercised in such manner as has been, or shall be, provided by law.
Cross Reference: 995.
Small's Report, 259.
The proper method of determining whether an impartial jury can be obtained in the county where the crime was committed is to test the question by trying to get a jury in that county, 1 by putting the jurymen on their voir dire and on challenge. 2
Upon a change of venue in a criminal case, the county from which the case was transferred loses all jurisdiction to try the ac cused upon the indictment transferred at the time of the change, or upon any indictment charging the same offense.3
SECTION 18.
JURY TRIALS.
1291 (6545). Paragraph 1. TRIAL BY JURY. The right of trial by jury, except where it is otherwise provided
19. Pope v. State, 124 Ga. 809, 53 S. E. 384. 1. Hunter -v. State, 43 Ga. 484. 2. Hunter v. State, 43 Ga. 516; Nesbit V. State, 43 Ga. 338; Brinkley
v. State, 54 Ga. 371; Stewart v. State, 58 Ga. 577; Woolfolk v. State, 85 Ga. 78, 11 S. E. 814; Anderson v. State, 14 Ga. 713; Jim (a slave) v. State, 15 Ga. 544; Mitchum v. State, 11 Ga. 616; McGuffie v. State, 17 Ga. 513; Martin et al. v. State, 38 Ga. 396; Hudgins et al. v. State, 61 Ga. 182; Moon v. State, 68 Ga. 696; Trustee of Chester Church v. Blount, 70 Ga. 779; Westmoreland v. State, 45 Ga. 379; Jordan v. Porterfield, 19 Ga. 139; Brinkley v. State, 54 Ga. 371.
3. Johnston v. State, 118 Ga. 310, 45 S. E. 381.

609 ]

AMENDED CONSTITUTION OF 1877. [ 1291

in this Constitution, shall remain inviolate, but the General Assembly may prescribe any number not less than five, to constitute a trial or traverse jury in courts other than the superior and city courts.
Cross References: 157, 299, 338, 406, 450, 556, 656, 780, 819.
Historical Note: According- to Blackstone and the authorities cited by him, trial by jury -was an ancient custom in use among the earliest Saxon Colonies, and practiced by all those nations which adopted the feudal system. In the twenty-ninth chapter of Magna Charta it is claimed, not as a new privilege or right, but in terms -which indicate that it -was part of an already existing common law. Cooley's Blackstone, Book 111; Ch. XXIII, 350.

1. Origin and Nature of Right. 3. Criminal Cases. 3. Misdemeanor Cases. 4. "Waiver or Loss of Right. 5. Summary Proceedings with
Jury Trial in Second Instance. 6. Equity Cases. 7. Proceeding's in Which Right Does Not Exist. 8. Municipal Offences.

9. Province of Jury and Direction of Verdict.
10. Not Guaranteed by Federal Constitution in Civil Cases in State Courts.
11. Right on Appeal from Judg-ment of Justice of the Peace.
12. Judgment by City Court Judge without Jury.

Small's Report, 259, 270, 372. See notes to 1262, as to judgment by Court -without jury. See notes to 1107 as to right to impartial jury in criminal cases.

1. Origin and Nature of Riffht. A provision for a jury trial has come down to us from Magna Charta, and lias stood as a constant expression of the public mind in favor of the preservation unim paired of this great bulwark of civil liberty. 1 The expression "the right of trial by jury shall remain inviolate" has been con strued to mean that the right of trial by jury as it existed in the colonies prior to the Revolution should be preserved,2 and not that there must be a jury trial in all cases, or in all tribunals erected, or in the application of all remedies provided for condi-

1. Stewart, Dunbolter, v. Shell, 99 Ga. 537, 36 S. E. 757; Tift et al. v. Griffin, 5 Ga. 188.
2. Pearson -v. Wimbish, 124 Ga. 705, 52 S. E. 751; Costley v. State, 19 Ga. 614; Robert v. Palmer, 14 Ga. 353.
--39

1291 ] AMENDED CONSTITUTION OF 1877.

[ 610

tions arising, subsequent to such period ;3 and this provision in the present constitution is preservative of jury trial as it existed when Georgia became an independent State, and a part of the United States, except as modified in the present constitution ;4 and, in so far as county court Act of 1879 denies to party in a case involving $50 or less the right of a trial by jury, it is violative of this para graph;5 and the power of the jury to settle every issue is para mount and interference with that prerogative of the jury violates the constitution. 6
2. Criminal Cases. The trial by jury in criminal cases which had been used in this State prior to the Constitution of 1798, was "a trial of every freeman charged with a crime by his peers; that he was not to be tried upon a charge by an individual, but a jury should accuse him before he should be called to answer; to try an accusation thus made, he should have a jury made of impartial

should be done "agreeably to such regulations as the legislature might prescribe ;" 8 hence, the same rule still obtaining, it has been held that an act creating a city court is not unconstitutional be cause it provides for the drawing and the summoning of a panel of only eighteen jurors for the trial of cases from which a jury of twelve shall be made up, 9 and the legislature may pass any act

trial by jury; 10 hence the Act of 1843 prescribing the questions to be propounded to the j uror upon his voir dire, was constitutional and valid; 11 and, likewise, the Act of 1833 allowing ten peremp-
3. Flint River Steamboat Co. v. Foster, 5 Ga. 207 (7); Hobbs v. Cody, 45 Ga. 478; Hood v. Voti Ghlan, 88 Ga. 413, 14 S. E- 564; Lippitt V. Al bany, 131 Ga. 639, 63 S. E. 33.
4. Pearson -v. Wimbish, 124 Ga. 705, 52 S- E. 751. 5. DeLamar v. Dollar, l Ga. App. 688, 57 S. E. 85; Gower v. Fowler, 1 Ga. App. 814, 57 S. E. 1054. S. Alexander v. State, 1 Ga. App. 289, 57 S. E. 996. 7. Rafe (a slave) v. State, 20 Ga. 66. 8. Rafe (a slave) TJ. State, supra. 8. Conyers v. Graham & Foute, 81 Ga. 615, 8 S. E, 531. 10. Costly v. State, 19 Ga. 629. 11. Boone v. State, 1 Ga. 618; Woolfolk v. State, 85 Ga. 71.

611]

AMENDED CONSTITUTION OF 1877. [ 1291

tory challenges to the State did not impair the right by trial by jury as it existed at the adoption of the Constitution of 1798 ; 12 nor is an act unconstitutional which fixes the number of strikes each party shall have, such being a statutory and not a constitu tional right. 13
3. Misdemeanor Cases. Since the adoption of the Constitution of 1868, the General Assembly has been authorized to provide for the trial of misdemeanors in county courts and in other than superior courts, by juries of a less number than twelve; 14 hence, a jury of five in the city court of Atlanta being authorized by statute and not prohibited by the constitution is a legally sufficient jury for the trial in such court of one accused of a misdemeanor, 15 and an act providing for an indictment for misdemeanor in a city court to be found by nine grand jurors is a valid statute, 16 especially, since the Constitution of 1777; nor did the common law prior to that time guarantee, and the present Constitution does not guarantee, to one charged with a misdemeanor the right to demand indictment by any sort of grand jury, and such person can be tried upon an "ac cusation" without an indictment. 17
4. Waiver or Loss of Right. Right of trial by jury is one guar anteed by the constitution, 18 and in actions at law where the plead ings have raised an issue of fact both parties have right to have the issue passed upon by a jury, and this right cannot be taken away either by rule of court or by express statute, 19 hence, answer of attorney at law to rule for money collected for client being traversable, traverse must be tried by jury, 30 and when claim is

12. Boon v. State, 1 Ga. 618; Hudgins v. State, 3 Ga. 173; Jones v. State, 1 Ga. 611; Robinson v. State, 1 Ga. 563; Sealey -v. State, 1 Ga. 213; Reynolds v. State, 1 Ga. 232.
13. Conyers v. Graham & Foute, 81 Ga. 616, 8 S. E. 521. 14. Alien v. State, 51 Ga. 364; Thurman v. State, 35 Ga. 220. 15. Downing v. State, 66 Ga. 110; Downing v. State, 66 Ga. 164; Walsh
v. Colquitt, 62 Ga. 385. 16. Thurman v. State, 35 Ga. 220. 17. Gordon v. State, 102 Ga. 673, 29 S. E- 444; "Wellborn v. Donald-
son, 115 Ga. 565 (3), 41 S- E. 999; Darden v. State, 74 Ga. 842; Adam v. Cohen, 84 Ga. 725, 11 S. E. 895; Wright -v. Davis, 120 Ga. 676, 48 S. E. 170.
18. Lamar v. Prosser, 131 Ga. 153, 48 S. E. 977; "Weed v. Gainesville, etc., R. R. Co., 119 Ga. 576, 46 S. E. 885.
19. Green v. Valdosta Co., 131 Ga. 131, 48 S. E. 984. 20. Smith v. Bush, 58 Ga. 121.

1291 ] AMENDED CONSTITUTION OF 1877.

[ 612

interposed and returned to court for trial, proper disposition by verdict of jury, 21 but trial by jury is a right which may be waived,22 and this may be done, in misdemeanor cases, whether upon accusation drawn by the prosecuting officer or upon indict ment, 23 and such waiver may result from failure to demand a jury trial, and a statute providing for demand as a condition to a jury trial is constitutional, 24 but there is no case and can be no waiver, until Indictment, presentment or accusation ; 23 and where oppor tunity to demand trial by jury is given, and accused fails to take ad vantage of it, he cannot afterwards complain that jury has been de nied him, 26 and where defendant waives trial by jury in county court, he cannot, after conviction, complain that method of selecting jury in such court is unconstitutional, 27 but where person is convicted of misdemeanor in county court and reversal is had on certiorari to superior court, and case returned to county court for new trial, defendant can withdraw waiver and demand jury trial, provided timely application made, 2S and where accused on arraignment de clines defense by counsel and waives trial by jury, but when counsel is appointed by court, who promptly moves to withdraw waiver, such motion should be granted. 39
5. Summary Proceedings -with Jury Trial in Second Instance. Statute not providing for jury trial in first instance but which provides for an appeal upon the trial of which there is to be a jury trial,30 and a proceeding which authorizes issue of execu-

81. Hodges -v. Holliday, 29 Ga. 696. 22. Flint River Steamboat Co. v. Foster, 5 Ga. 308 (8); Lamar v. Prosser, 131 Ga. 153, 48 S. E. 977; Weed v. Gainesville R. R. Co., 119 Ga. 576, 46 S. E. 885. 23. L,ogan v. State, 86 Ga. 266, 12 S. E. 406. 24. Button v. Gunn, 86 Ga. 652, 12 S. E. 979; Kneeland v. State, 63 Ga. 220. See also Maryland Casualty Co. v. L,anham, 134 Ga. 859, 53 S. E. 595; Southern Rwy. Co. v. Beach, 117 Ga. 31, 43 S- E. 413. 25. Williamson z>. State, 1 Ga. App. 657, 57 S. E. 1079. 26. Flint River Steamboat Co. v. Foster, 5 Ga. 208 (8); Button v. Gunn, 86 Ga. 653, 13 S. E. 979; Kneeland v. State, 62 Ga. 395; Taffe v. State, 90 Ga. 459, 16 S. E. 204; Heard v. Kennedy, 116 Ga. 36, 42 S. E. 509; Mills v. Ivey, 3 Ga. App. 557, 60 S. E. 299. 27. Lamar v. Prosser, 121 Ga. 153, 48 S. E. 977; Southern Rwy. Co. V. Beach, 117 Ga. 31, 43 S. E. 413. 28. Brown v. State, 89 Ga. 340, 15 S. E. 463. 29. Butler v. State, 97 Ga. 404, 23 S. E. 822. 30. Beers v. Beers, 174 U. S. 30; Arthur <u. Commissioners, 67 Ga. 220.

613 ]

AMENDED CONSTITUTION OE 1877. [ 1291

tion without jury trial but which provides for illegality and jury trial thereon after levy, is not unconstitutional,31 but the county court Act of 1879, in so far as it denied to a party in a case in volving fifty dollars or less, the right of trial by jury was held violative of this provision,32 and, in actions at law, exceptions to an auditor's report must, as a constitutional right, be submitted to a jury,33 and a statute requiring trial by the court of exceptions of fact to an auditor's report, is unconstitutional except as to equity cases.34
6. Equity Cases. Jury trial in chancery cases is not a constitu tional right, or one guaranteed by Magna Charta; it originated in this State m the Judiciary Act of 1799, and is purely a matter of legislative regulation.35
7. Proceedings in Wh<wh Right Does Not Exist. Statute of 1897 for the validation of municipal bonds provides one of the tribunals created since the birth of the State to meet a new condi tion, and such proceeding being neither a common-law suit nor an equitable action, it is not unconstitutional because it does not provide for a jury trial in reference to the matters for the investi gation of which provision is made;36 and a special court to try contested election cases -without a jury,37 an act requiring per sons to work the public road or pay road tax, and providing for enforcement without a jury trial are not unconstitutional,38 nor is an act unconstitutional which authorized executors, adminis trators and guardians to be cited before the ordinary for settle-

31. Hobbs & Tucker v. Dougherty Co., 98 Ga. 574, 25 S. E. 579. 32. De Eamar v. Dollars, 128 Ga. 57, 57 S. E. 85. 33. Weed -v. Gainesville, etc., R. R. Co., 119 Ga. 576, 46 S. E. 885. 34. McKenzie -v. Flannery, 90 Ga. 596, 16 S. E. 710; Poullan z>. Brown, 80 Ga. 30, 5 S. E. 107. 35. Mahan v. Cavender, 77 Ga. 118. See also Isaacs v. Tinsley, 58 Ga. 457; Gilbert v. Thomas, 3 Ga. 575; Mounce v. Byars, 11 Ga. 180; Brown v. Burke, 22 Ga. 574; McGowan v. Jones, R. M. Charlton 184; Mayor, Brunswick, v. Drue, 60 Ga. 457; Akers v. Veal, 66 Ga. 303; Cardin v. Jones, 23 Ga. 175; Poullan v. Brown, 80 Ga. 27, 5 S. E- 107; Hearn v. Laird, 103 Ga. 271, 39 S. E. 973; Central Trust Co. v. Thurman, 94 Ga. 736, 20 S. E. 141; Burns v. Armour Packing Co., 105 Ga. 293, 31 S. E. 173. 36. Lippitt v. Albany, 131 Ga. 631, 63 S. E- 33. 37. Freeman v. State, 72 Ga. 812. 38. Haney v. Commissioners, 91 Ga. 770, 18 S. E. 28. See also Blankenship v. State, 40 Ga. 680.

1291] AMENDED CONSTITUTION OF 1877..

[614

ment and authorizing the ordinary to enforce his judgment by attachment or execution;59 nor an act authorizing- the issue of an execution against a collector, receiver or depository or other monetary agent without the intervention of a jury ;40 and a pro ceeding against a road commissioner by presentment of the grand jury for neglect of duty under Act of 1866 (Acts of 1866, p. 18) was not technically a criminal proceeding and commissioner had no right to demand jury trial;41 nor is defendant in alimony pro ceeding entitled to demand a jury trial as to his ability to pay money ordered by judge to be paid by him.42 And it has been held that unless there are express constitutional provision on the sub ject, it is not a constitutional right to have a jury trial to ascertain the compensation to be paid for property condemned and taken for public use ;43 nor do the provisions of this section apply to trials by commissioners of pilotage.44
8. Municipal Offenses. Violations of municipal by-laws, or ordinances are not criminal cases in the constitutional sense, and offenders against such by-laws or ordinances are not entitled to jury trials,45 and such offenders may be summarily tried and con victed, without a jury, in a police court having jurisdiction to try petty offenders against the peace, good order and security of the municipality. 46
9. Province of Jury and Direction of Verdict. The exclusive province of a jury in a civil case is to pass on questions of fact and therefore the provisions of the code authorizing the court to direct a verdict in a case where there is no conflict in the evi dence, and where the evidence introduced with all reasonable in ferences from it demands a particular verdict, is not repugnant

39. Davis -v. Harper, 54 Ga. 180; De Lamar v. Dollar, 128 Ga. 65. 40. Tift z>. Griffin, 5 Ga. 185. 41. Blankenship v. State, 40 Ga. 680. 42. Lee v. Lee, 97 Ga. 736, 25 S. E. 174. 43. Savannah Rwy. Co. v. Postal Telegraph & Cab. Co., 112 Ga. 943, 38 S. E. 353. 44. Low -V. Pilotage Cones, R. M. C. 302. 45. Floyd v. Commissioners, 14 Ga. 354; Williams v. City Council of Augusta, 4 Ga. 509; Hood v. Von Ghlan, 88 Ga. 413; Anderson z>. Brown, 72 Ga. 714; Holt v. Bank of Augusta, 13 Ga. 354. 46. Little v. Fort Valley, 123 Ga. 503, 51 S. E. 501; Littlejohn -u. Stells, 133 Ga. 437, 51 S. E. 390; Duren z>. Thomasville, 125 Ga. 1, 53 S. E. 814; Pearson v. Wimbish, 134 Ga. 701, 52 S. E. 751.

615 ]

AMENDED CONSTITUTION OF 1877. [ 1292

to the Constitution of this State or of the United States, as im pairing the right of trial by jury, or as depriving a person of his property without due process of law.47
10. Not Guaranteed by Federal Constitution in Civil Cases in State Courts. Seventh Amendment to Constitution of United States, providing that in suits at common-law where the value in controversy shall exceed twenty dollars the right of jury trial shall be preserved, applies only to courts of the United States, and the provisions of the fourteenth amendment that no State shall deprive any person of life, liberty or property without due process of law do not guarantee jury trial.48
11. Right on Appeal from Judgment of Justice of the Peace, to a jury exists in all civil cases, "whether the judgment of the justice was rendered upon a question of law or of fact, or combi nation of both.49
12. Judgment by Judge of City Court without Jury under Act of 1872 (Acts of 1872, p. 141), providing that Judge should render judgment without jury when no issuable defense filed on oath was not unconstitutional as deprivation of jury trial, as act merely prescribes manner of obtaining a jury. 50

1292 (6546). Par. 2. SELECTION OF JURORS. The General Assembly shall provide by law for the selec tion of the most experienced, intelligent, and upright men to serve as grand Jurors, and intelligent and upright men to serve as traverse jurors. Nevertheless the grand jurors shall be competent to serve as traverse jurors.
Cross References: 37, 117, 781, 997.
Small's Report, 28, 35, 361, 270, 371. See Notes to 1126.
This provision of the Constitution is not self-acting and the qualifications of grand jurors was not changed by the provisions of the present Constitution until the act of December 5, 1878, to

47. Tilley v. Cox, 119 Ga. 867, 47 S. E. 319; Laing y. Americus, 86 Ga. 756, 13 S. E. 107; Price v. Central of Georgia R. R. Co., 134 Ga. 599, 53 S. E. 455.
48. Tilley v. Cox, 119 Ga. 867, 47 S. E- 319. 49. Bates v. Messer, 76 Ga. 696. 50. Dortic v. Lockwood, 61 Ga. 393.

1293-1294 ] AMENDED CONSTITUTION OF 1877. [ 616
carry Into effect the Constitution of 1877, in relation to the selec tion of grand jurors. 1
An objection being made to a grand jury on the ground that the jury lists had not been properly revised, when in fact the lists had been revised and the revisers were in court certifying to such fact, was rightly overruled, 2 and there was no error in allowing the jury lists to be completed by attaching thereto, nunc pro tune, the certificate of the jury commissioners, upon the evidence of the clerk of the superior court and the surviving commissioners and in overruling defendant's plea in relation thereto.3
The board of jury commissioners may, in the exercise of their discretion, omit from the jury lists of the county all persons who are exempted by law from jury services, as well as those whose business or avocation is such that it is reasonably probable that an excuse from jury service would be granted by the judge;4 but while persons over sixty years old are exempt from jury duty, when they consent they are competent to act as grand jurors.5 This paragraph makes no discrimination on account of race, color or previous condition of servitude. 6
1293 (6547). Par. 3. COMPENSATION OF JU RORS. It shall be the duty of the General Assembly, by general laws, to prescribe the manner of fixing compensa tion of jurors in all counties in this State.
Cross Reference: 998.
Small's Report, 260, 268-370.
SECTION 19.
COUNTY COMMISSIONERS.
1294 (6548). Paragraph 1. POWER TO CREATE COUNTY COMMISSIONERS. The General Assembly shall
1. Mikell v. State, 62 Ga. 368. 2. Mikell v. State, 63 Ga. 368. 3. Jackson -v. State, 76 Ga. 551; McLain v. State, 71 Ga. 283; Mikell v. State, 62 Ga, 368; Carter v. State, 62 Ga. 368; Carter v. State, 56 Ga. 463. 4. Rawlins et al. v. State, 124 Ga. 31, 52 S. E. I; Turner v. State, 124 Ga. 31, 52 S. E. 1; Danforth -v. State, 75 Ga. 614. 5. Carter v. State, 75 Ga. 747; Jackson v. State, 76 Ga. 551; Danforth v. State, 75 Ga. 614. 6. Wilson V. State, 69 Ga. 334. See Note 9 to 1126.

617 ] AMENDED CONSTITUTION OF 1877. [ 1295-1296
have power to provide for the creation of county commis sioners in such counties as may require them, and to define their duties.
Cross References: 783, 999.
There is no limit on the power of the legislature to create county commissioners and to define their duties, 1 and the acts creating boards for different counties need not be uniform, 2 and an act creating county commissioners for the county of Mclntosh, and conferring upon them the power and duty of administering the municipal government,3 and the Act of 1880 conferring upon the county commissioners of Fulton County power to lay out new militia districts, are not void ;4 but county commissioners have no greater powers than ordinaries in granting private ways.5
SECTION 20.
WHAT COURTS MAY BE ABOLJSHSD.
1295 (6549). Paragraph 1. POWER TO ABOLISH COURTS. All courts not specially mentioned by name in the first section of this Article may be abolished in any county, at the discretion of the General Assembly.
Cross References: 784, 1000.
SECTION 21.
SUPREME; COURT COSTS. 1296 (6550). Paragraph 1. COSTS IN SUPREME COURT. The costs in the Supreme Court shall not exceed ten dollars, until otherwise provided by law. Plaintiffs in error shall not be required to pay costs in said court when the usual pauper oath is filed in the court below.
Cross References: 1001; see also 64, 286. Small's Report, 245, 246, 263, 283.
1. Churchill v. Walker, 68 Ga. 686; "Waller v. Perkins, 52 Ga. 233, 239 (5); Black et al. v. Cohen et al. Shorter -v. Mayor & Council of Rome, 52 Ga. 621; Northeastern Railroad Co. v. Morris, 59 Ga. 364.
2. Conley V. Poole, 67 Ga. 254; County of Pulaski v. Thompson & Co., Pulaski v. Vaughn, 83 Ga. 270, 9 S- E. 1065; Soyer v. Brown, 119 Ga. 545, 46 S. E. 649.
3. Churchill v. Walker, 68 Ga. 686. 4. Conley v. Poole, 67 Ga. 254. 5. Board of Commissioners of Bibb Co. v. Harris, 71 Ga. 250.

1297 ] AMENDED CONSTITUTION OF 1877.

[ 618

Full costs are taxable in the Supreme Court on cross bills of exceptions as on main bills. 1 In order to relieve the plaintiff in error from the payment of costs in the Supreme Court, it is necessary that a pauper affidavit shall be filed -with the clerk of the trial court before the bill of exceptions and the transcript of the record is transmitted to the Supreme Court. No excuse will avail in case of failure to file the pauper affidavit before this time, and under no circumstances is the Supreme Court authorized to receive the affidavit upon the call of the case in the Supreme Court. 2 A pauper affidavit cannot be filed in the Supreme Court ; and that court will not, after a record from a lower court has been completed and the transcript sent to the Supreme Court, receive or consider original certificates purporting to have been signed by officials in another State, the purpose of which is to show the official character of the person by whom a paper filed as such pauper affidavit in the court below was attested.3
The only thing material to be stated in an affidavit filed for the purpose of carrying a case to the Supreme Court without payment of costs is that the plaintiff in error, from his poverty is unable to pay the costs, but if a supersedeas is also desired, the affidavit must state that his counsel has advised him that he has good cause for a writ of error,4 and where a pauper affidavit has been made there is no law for traversing the truth of such affidavit in the supreme court. 0

ARTICLE VII. FINANCE, TAXATION, AND PUBLIC DBT.

SECTION 1.
POWER OF TAXATION.
1297 (6551). Paragraph 1. TAXATION, HOW AND FOR WHAT PURPOSES EXERCISED. The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only.

1. Jack -v. Kehler & Bro,, 53 Ga. 639. 2. Smith -v. State, 117 Ga. 16, 43 S. E. 440. 3. Whatley v. Macon & N. Rwy. Co., 104 Ga. 764, 30 S- E- 1003. 4. Davis ?/. Muscogee Mfg-. Co., 106 Ga. 126, 32 S. E. 30. 5. "Walker v. Bryant, 112 Ga, 412, 37 S. E. 749.

619 ]

AMENDED CONSTITUTION OF 1877. [ 1297

For the support of the State government and the public institutions.
For educational purposes, in instructing children in the elementary branches of an English education only.
To pay the interest on the public debt. To pay the principal of the public debt. To suppress insurrection, to repel invasion, and defend the State in time of war. To supply the soldiers "who lost a limb or limbs, in the military service of the Confederate States, with substantial artificial limbs, during life; and make suitable provisions for such Confederate soldiers as may have been otherwise disabled or permanently injured in such service, or "who may, by reason of age and poverty, or infirmity and pov erty, or blindness and poverty, be unable to provide a living for themselves, and for the widows of such Confederate soldiers as may have died in the service of the Confed erate States, or since, from wounds received therein, or disease contracted in the service, or who, by reason of age and poverty, or infirmity and poverty, or blindness and poverty, are unable to provide a living for themselves: Provided, that the Act shall only apply to such widows as were married at the time of such service, and have re mained unmarried since the death of such soldier husband. To make provision for the payment of pensions to any ex-Confederate soldier, now resident of this State, who enlisted in the military service of this State, or who en listed in the military service of the Confederate States dur ing the civil "war between the States of the United States, and who performed actual military service in the armies of the Confederate States or the organized militia of this State, and was honorably discharged therefrom; and to "wid ows, now residents of this State, of ex-Confederate soldiers who enlisted in the military service of the State, or who en listed in the military service of the Confederate States, and who performed actual service in the armies of the Confederate States or of the organized militia of this state, who died in said military service or were honorably dis charged therefrom: Provided, that no person shall be en titled to the provisions of this constitutional amendment the total value of whose property of every description, in-

1298] AMENDED CONSTITUTION OF 1877.

[ 620

eluding1 money and choses in action, shall exceed fifteen hundred dollars: And provided further, that only those widows who were married to such soldier or ex-soldier previously to the year 1870 shall be entitled to the pro visions of this constitutional amendment. No widow of a soldier killed during the war shall be deprived of her pen sion by reason of having1 subsequently married another veteran who is dead, unless she receives a pension on ac count of being the widow of such second husband.
Cross References: 126, 459, 564, 676, 1003.
This section is applicable only to state taxation and does not apply to county taxation, and, the railroad tax act of 1889, being an act for the taxation of railroads by the county authorities for county purposes, it could not conflict -with this section,1 but back taxes could not be collected in 1899 by county tax collectors under this act, on property held by a railroad company between the years 1880 arid 1889, no authority or means for so doing being provided in the act of October 16, 1889, providing a system for the taxation of railroad property by counties. 2
The term "public debt" is broader than the term "bonded debt;" it includes not only the latter, but every other debt due by the public, floating or otherwise.3 In every paragraph of the Consti tution other than that relating to the incurring of indebtedness by counties and municipalities, whenever the term "debt" is used, whether it refers to the debt of the State, or the debt of the sub ordinate public corporations ; whether it be "bonded debts," "public debts" or simply "debts," it is plainly manifest that the term debt is used to refer to the principal of the debt due, exclusive of un earned interest on the same.4
None of the provisions of this section are broad enough to in clude the acquisition of a railroad.5

1298 (6552). Par. 2. LEVY OP TAXES LIMITED. The levy of taxes on property for any one year by the Gen eral Assembly for all purposes, except to provide for re-

1. Columbus Railway Co. v. Wright, 89 Ga. 596, 15 S. E. 293. 2. State v, S. F. & W. Rwy. Co., Ill Ga. 803, 36 S. E. 938. 3. Park v. Candler, 114 Ga. 485, 40 S. E. 523. 4. Epping v. Columbus, 117 Ga. 269, 43 S. E. 803. 5. Park v. Candler, 113 Ga. 661, 39 S. E. 89.

621 ]

AMENDED CONSTITUTION OF 1877. [ 1299

polling invasion, suppressing insurrection, or defending tlie State in time of war, shall not exceed five mills on each dollar of the value of the property taxable in the State.
Cross Reference: 1085.

SECTION 2.
TAXATION AND EXEMPTIONS.
1299 (6553). Paragraph 1. MUST BE UNIFORM, ETC.; DOMESTIC ANIMALS. All taxation shall be uni form upon the same class of subjects, and ad valorem on all property subject to be taxed within the territory limits of the authority levying the tax, and shall be levied and collected under general laws. The General Assembly may, however, impose a tax upon such domestic animals as, from their nature and habits, are destructive of other property.
Cross Refeiences: 676, 1003.
See Notes to 1208, 1300, 13O9, 1310; Small's Report, 35, 36, 38, 183, 327, 340.
A municipal corporation, prior to the Constitution of 1877, could exempt property from taxation, and could do so by forbearing to exercise the taxing power as to some property, 1 and it could by contract restrict itself in the exercise of its taxing powers,2 and could exempt some property from any tax at all.3 Under the present Constitution the General Assembly cannot lawfully, either expressly exempt any property from taxation, or accomplish the same result by a failure to tax any property except that which the Constitution itself expressly authorizes it to exempt,* nor can a municipal corporation exempt any property subject to taxation within its territorial limits, and a provision in a city charter granted in 1856, exempting from municipal taxation property which under the present Constitution cannot be so exempted, con flicts with the present Constitution and such exemption was abro-
1. Waring -v. Mayor, etc., of Savannah, 60 Ga. 93. 2. Augusta Factory v. City Council, etc., 83 Ga. 740, 105 S- E. 35. 3. Mayor, etc., Athens v. Long, 54 Ga. 330. 4. Atlanta National B. & L. Ass'n v. Stewart, 109 Ga. 80, 355 S. E. 73.

1299 ] AMENDED CONSTITUTION OF 1877.

[ 622

gated by the adoption of the present Constitution.5
Different kinds of property cannot be separately classed so as to fix a different rate of taxation for each ; 6 nor can the legislature impose preliminary penalty for nonpayment upon one class of taxpayers exclusively, nor subject one class to execution for taxes on October 1, while others are exempt to December 2Q,T and a municipal ordinance taxing real estate alone is unconstitutional,8 likewise a tax on all lands in a city, except farming lands, is void,9 so is a school district tax imposing an ad valorem tax upon those taxpayers who are required to make their returns to the tax re ceivers and not upon that class of persons who make returns to the comptroller general ; 10 and neither the Governor nor the At torney General could exempt a railroad company from ad valorem tax upon its property, because it was subject to a tax upon its income; 11 but, while a city could not exempt a gas company from taxation, it could bona fide contract to pay for gas a sum equal to such tax. 12
So long as county tax rate is at same rate upon all subjects, this provision is met, although another county applies a different rate under the same act, 13 and the railroad county tax Act of 1889 is constitutional, although it subjects different sections of the same railroad to a different tax rate under the operation of the same law. 14 A purchaser in possession under a bond for title is charged with taxes accruing on lands, and the authorities may tax the property as belonging to either the maker or the holder of the bond for titles, but, as between the parties to the bond, the one

5. McLendon v. City of LaGrange, 107 Ga. 356, 33 S- E. 405; Georgia Fire Ins. Co. v. Cedartown, 134 Ga. 87, 67 S. E. 410; Tarver v. Dalton, 134 Ga. 462, 67 S. E. 929.
6. Mayor V. Weed, 84 Ga. 683, 11 S. E. 235. 7. Atlanta and Florida Railroad Co. v. Wright, 87 Ga. 487, 135 S. E. 578. 8. Verdery v. Village of Summerville, 82 Ga. 138, 8 S. E. 213. 9. Smith v. Mayor, etc., Americus, 89 Ga. 81O, 15 S. E. 752. 10. Brown i>. Southern Rwy. Co., 125 Ga. 772, 54 S. E. 729; Green v. Hutcheson, Tax Collector, 138 Ga. 379, 57 S. E. 353. 11. State v. Southwestern Railroad, 70 Ga. 11. 12. Cartersville Improvement, Gas, etc., Co, zr. Mayor, etc., 89 Ga. 683, 16 S. E. 25. 13. Columbus Rwy. Co. v. Wright, 89 Ga. 574, 15 S. E. 393. 14. Columbus Rwy. Co. v. Wright, 89 Ga. 574, 15 S. E. 293.

623]

AMENDED CONSTITUTION OF 1877. [ 1299

taking the rents and profits, or enjoying the use of it is liable for
the taxes. 15 The General Assembly, not being required by the Constitution
to impose tax on shares of stock in domestic corporations when the property of such corporations is taxed in the hands of the company, the failure of the General Assembly to impose such a tax, while imposing a tax upon shares in foreign corporations is not, as to the owners of shares of the latter class, a violation of those provisions of the Constitution which require that protection to property shall be impartial and complete, and that all taxation shall be uniform on the same class of subjects and ad valorem on all property subject to be taxed within the territorial limits of the taxing authority; 16 but an act providing that the president of a building and loan association shall return to the tax receiver all shares of stock owned by the stockholders at their true market value, provides for a tax, not against the corporation, but against the individual property of the stockholders, the method being only a convenient method of securing the return of the stock, but when the act provides that such tax shall be in lieu of all other taxes, licenses, etc., -whether state, county, or municipal, this provision is inoperative as contravening the provisions of this paragraph as to the assessment ad valorem and as to uniformity ; 17 and a tax is inoperative and void which is imposed by a municipal corpora tion on the gross premiums of a nonresident insurance company doing business in the city and expressly excludes resident com panies. 18
The words "domestic animals" as here used were intended to refer to dogs ; 19 and they are recognized as property by being refei red to along with other property.20
The provisions of Code, 1075, that all persons or companies shall make their returns to the receiver of the county where the

a. 63, 35 S.
E. 67. 18. Mutual Reserve Fund Ass'n v. City Council of Augusta, 109 Ga.
73, 35 S. E. 71. 19. Guil Martin et al. -u. Middle Ga. & Atlantic Rwy. Co., 101 Ga. 565,
29 S. E. 189. 20. Graham v. Smith, 109 Ga. 435, 28 S. E. 225; Columbus R. R. Co.
V. Wolfolk, 128 Ga. 633, 58 S. E- 159.

1299] AMENDED CONSTITUTION OF 1877.

[624

persons reside or the office of the company is located, refers to personal property; real property shall be returned where it is situated except where single tracts of land or manufacturing plants are divided by county line, in which case the legislature may provide in which county it shall be returned. 21
The word "property" as here used, properly construed, does not require the taxing1 of public property, or any of the lawful instru mentalities of government, such as bonds issued by munici palities. 22
Building's erected for and used as a "college, incorporated acad emy or other seminary of learning," are not, under the Constitution and laws of this State, exempt from taxation if "used for purposes of private or corporate profit or income, 23 or used by the owner for conducting a college or school for attendance upon which charges for board or tuition are made. 24
It is -within the constitutional power of the General Assembly of this State, in the imposition of specific taxes upon occupations, to classify the subjects of taxation, taxing some and omitting to tax others, and the principle of uniformity required is not violated so long as a given tax is made uniform upon all individuals be longing to the particular class upon which it as imposed. 25 The imposition of a tax upon an "emigrant agent" under the general tax Act of 1898, was not violative of this section,36 nor was the tax "upon all agents of packing houses doing business in this State," levied by paragraph 19 of 2 of the general tax act approved De cember 21, 1900, violative of it; 37 and the General Assembly may

31. County of Walton v. County of Morgan, 120 Ga. 548, 48 S. E. 243. 22. Penick v. Foster, 139 Ga. 217, 58 S- E- 773. 23. Mundy, Sheriff et al. v. Van Hoose, 104 Ga. 293, 30 S- E. 783. 24. Mundy, Sheriff et al. v. Van Hoose, 104 Ga. 392, 30 S- E. 783. 25. Burch v. Savannah, 42 Ga. 596; City Council of Augusta v. Na tional Bank of Augusta, 47 Ga. 563; Bohler v. Schneider, 49 Ga. 196; Home Ins. Co. v. City Council of Augusta, 50 Ga. 53O; Goodwyn y. Savannah, 53 Ga. 414; Gould & Co. v. Mayor & Council of Atlanta, 55 Ga. 178; Cutliff v. Mayor, Albany, 60 Ga. 598; Savannah -u. Weed, 84 Ga. 686, 11 S- E. 235; Weaver v. State, 89 Ga. 642, 15 S. E. 840; Mutual Reserve Ass'n v. Augusta, 109 Ga. 78, 35 S. E- 71; Singer Mfg-. Co. v. Wright, 97 Ga. 114, 25 S. E. 249; Henry v. Campbell, 133 Ga. 883, 67 SE. 390; Cars-well v. "Wright, 133 Ga, 717, 66 S. E. 905; State v. Southern Express Co., 133 Ga. 118, 65 S. E. 282; Weaver v. State, 89 Ga. 639, 15 S. E. 840. 26. Williams v. Fears, 110 Ga. 594, 35 S. E. 699. 27. Stewart v. Kehrer, 115 Ga. 184, 41 S. E. 680.

625 ]

AMENDED CONSTITUTION OF 1877. [ 1299

provide that the amount of an occupation tax imposed by a mu nicipal corporation upon and paid by a corporation liable for a franchise tax may go in reduction of the amount due on the fran chise tax. 28
While an attorney at law who engages in the business of lend ing money is subject to a lawful municipal tax imposed upon all money lenders, an ordinance which seeks to tax attorneys at law who lend money without taxing other money lenders, contravenes this provision and is void ;29 but a city may, in the exercise of an express charter provision, have the right to impose business, trade and occupation taxes, and, by ordinance, classify such trade, busi ness or occupations, and the classification of persons lending money on personal property in a different class from chartered banks, persons negotiating loans on realty, real estate agents, and dealers in bonds and stocks, and the imposing of a different tax upon them is not so wanting in reason that the ordinance will be declared void as being entirely arbitrary;30 and a specific tax upon all agents and representatives of packing houses, and representatives and agents of dealers in packing house products having a store or stock of merchandise in a certain city and selling to customers in such city, is a vocation or occupation tax ; is a tax upon business, and not upon labor or the right to work; and is a classification which is not so arbitrary as to be unconstitutional.31
The law imposing a tax on the presidents of each of the banks in the State includes the presidents of all the banks doing busi ness in the State, and a man who is president of a number of banks is subject to a tax of $10 for each of the banks of which he is pres ident, payable to the tax collector of the county where he resides;32 but such a tax is inoperative as to the presidents of national banks, because the tax would impair the efficiency of such banks and con stitute an obstruction of Federal powers.33
A provision in a tax act (Acts of 1902, p. 30) levying a tax upon telephone, telegraph and express companies as an occupation tax of such a per centum upon their gross receipts as added to the

28. State of Georgia v. Southern Express Co., 133 Ga. 113, 65 S. E. 282.
29. Beckett v. Mayor, etc., Savannah, US Ga. 58, 44 S. E. 819. 30. City Council of Augusta -v, Clark & Co., 121 Ga. 254, 52 S. E. 881. 31. Mayor, etc., Savannah v. Cooper, 131 Ga. 671, 63 S- E. 138. 32. Witham v. Stewart, 129 Ga. 48, 58 S. E. 463. 33. Linton v. Childs, 105 Ga. 567, 32 S. E. 617.

1300] AMENDED CONSTITUTION OF 1877.

[626

ad valorem taxes, State and county, including all taxes on fran chises as "would make the taxes of such companies equal to two and one half per cent upon the gross receipts of such companies, is void for lack of uniformity.34

1300 (6554). Par. 2. EXEMPTIONS. The General Assembly may, by law, exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; all buildings erected for and used as a college, incorporated academy, or other semi nary of learning; the real and personal estate of any public library, and that of any other literary association, used by, or connected with such library; all books and philosophical ap paratus ; and all paintings and statuary of any company or association, kept in a public hall, and not held as merchan dise or for purposes of sale or gain; Provided, the property so exempted be not used for purposes of private or cor porate profit or income.
Cross References: 118, 1004, 1006.
Small's Report, 288, 289, 393, 394.
A masonic lodge, being a charitable institution, is exempt from taxation, and prior to the present Constitution, this exemption ex tended to any house belonging to it ;* but, under the present Con stitution, its temple or lodge building, when used for corporate profit or income, as by renting out part of it for store purposes, is subject to taxation, and the most that such a corporation could claim is that the comparative value of the part used for income, and the part not so used, may be distinguished in making the re turns, and the latter part, by due apportionment, be spared from taxation. 3
It being competent for the legislature, at the time the Georgia Railroad and Banking Company was incorporated, to exempt its property from taxation beyond a certain rate, sucb. an exemption in its charter constitutes part of the valid contract of incorpora tion and is irrepealable,3 but where a railroad corporation ac-

34. Wright v. Southern Bell T. & T. Co., 137 Ga. 327, 56 S. E. 116. 1. Mayor, etc., Savannah v. Solomon's Lodge, 53 Ga. 93. 2. Massenberg v. Grand Lodge, 81 Ga. 312, 27 S. K. 636. S. State v. Ga. R. R. & B. Co., 54 Ga. 424; Goldsmith v. Ga. R. R. Co.,
63 Ga. 490; Word v. Southern Mutual Ins. Co., 113 Ga. 593, 37 S. E. 897; State v. Atlantic & Gulf R. R. Co., 60 Ga. 273.

627 ]

AMENDED CONSTITUTION OF 1877. [ 1300

cepted a charter after the passage of a law which provided that private charters granted after its passage should be subject to the right reserved in the State to withdraw the franchise unless such right was expressly negatived m the charter, the State might with draw any exemption from taxation in the charter, no negation upon such right appearing in the charter.4
A municipal corporation could, prior to the present Constitution, exempt certain property from taxation, 5 or by contract restrict itself in the exercise of the taxing power, 6 but under the present Constitution such cannot be done and where property is illegally exempted, any tax payer may have redress by mandamus,7 and an exemption of property under a charter of a city before the present Constitution, if the property is not of the class exempted by this Constitution, is abrogated by the present Constitution,8 and only property specifically exempted by the Constitution can be ex empted by any taxing power,9 hence commercial fertilizers held by one on March 15, 1901, being property which is not exempt, was subject to taxation, notwithstanding it was the purpose of the owner to apply the same to his land which was also taxed. 10
When an act provides that the president of a company is re quired to return the stock of the stockholders to the tax receiver of the county where the principal office is located, at their market value; and the act also provides that the taxes so required shall be in lieu of all other taxes and licenses, whether state, county or municipal against such corporation, such latter provision is in operative and void. 11
An academy is no less public because independent of general public school system. 12 Buildings used as a college may be ex empt from taxation, though tuition fees are charged, where the fees themselves are not used for "private or corporate gain," but

4. Central R. R. & B. Co. -u. State, 54 Ga. 401; Macon R. R. Co. i>. Gibson, 85 Ga. 13, 11 S. E. 443.
5. Mayor, etc., Athens v. Long, 54 Ga. 330. 6. Augusta Factory & City Council, 83 Ga. 743, 10 S. E. 359; Waring v. Mayor, etc., Savannah, 60 Ga. 93. 7. Ford v. Mayor, 48 Ga. 313, 10 S. E. 732. 8. McLendon v. City of LaGrange, 107 Ga. 357, 33 S- E. 405. 9. Athens Water Works Co. v. Mayor, etc., 74 Ga. 413. 10. Joiner v. Adams, 114 Ga. 389, 40 S. E. 281. 11. Ga. State B. & L. Ass'n v. Mayor, etc., Savannah, 109 Ga. 63, 35
S. E. 67. 12. Trustees v. City Council, 90 Ga. 647, 17 S. E. 61.

1300] AMENDED CONSTITUTION OF 1877.

[628

are appropriated for the maintenance of the institution, as a chari table or educational institution for the public good, 13 but the prop erty of a corporation having a capital stock formed for the "busi ness" of conducting an educational institution, and which has the absolute ownership of all the realty and personalty employed in such enterprise, with the right to convey it at will, and to make any desired disposition of the income derived from the fees charged for tuition and board, is not exempt from taxation. 14
The exemption of "places of public worship" from taxation is not in conflict with the constitutional inhibition against taking money from the public treasury in aid of any church sect, etc.,15 but churches are subject to assessments for street improvements, 16 and property owned by churches, other than their houses of wor ship, for example, parsonages, are subject to taxation as other property. 17
The bonds of the State and its various political subdivisions are
not subject to taxation. General terms and expressions in the Constitution, or in a statute providing for the levy of taxes, are
never given their full import, if to do so would require to be done what the law does not authorize, or violate a fundamental prin
ciple upon which the government is founded and operated. 18
"Public property" means property belonging to the State, or the political divisions thereof, such as cities, towns and the like, 19
and so a building and stock of liquors owned by a municipal cor poration and operated by it as a dispensary are "public property" within the meaning of the Constitution and laws of this State,
and, as such, are exempt from taxation by virtue of 998 of the
Code and this is so although the town had no legal authority to maintain a dispensary, all property held by a municipality being
held, presumptively, for the public use ;20 but property not owned
by the State nor any political division of it, cannot be made public

13. Ivinton v. Eucy Cobb Institute, 117 Ga. 678, 45 S. E. 63; Trustees v. City Council, 90 Ga. 647, 17 S. E. 61.
14. Mundy v. Vanhoose, 104 Ga. 299, 30 S- E. 783. 15. Trustees First Methodist Chuich v. City of Atlanta, 76 Ga. 182. 16. City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 13 S- E. 252, overruling 76 Ga. 183. 17. Warden, St. Mark's Ch. v. Mayor of Brunswick, 88 Ga. 541, 3 S. E. 561. 18. Penick v. Foster, 129 Ga. 217, 58 S. E- 773. 19. Mundy v. Van Hoose, 104 Ga. 299, 30 S. E. 783. 20. Walden v. Town of Wig-ham, 120 Ga. 646, 48 S- E. 159.

629 ] AMENDED CONSTITUTION OF 1877. [ 1301-1302
property by a legislative provision that it "shall be to all intents and purposes public property;" hence an armory owned and oc cupied by a "Command" of the military forces of the State could not be exempted from taxation under such a legislative provision. 21
But an act is not unconstitutional because it recites that the tax imposed by it is to be laid upon "all property" without mak ing any express provisions for the exemption of certain classes of property which is exempt under the constitution and laws. 22
1301 (6555). Par. 3. POLL-TAX. No poll-tax shall be levied except for educational purposes, and such tax shall not exceed one dollar annually upon each poll.
Cross References: 678, 1005. Small's Report, 293.
1302 (6556). Par. 4. LAWS EXEMPTING PROP ERTY VOID. All laws exempting- property from taxation, other than the property herein enumerated, shall be void.
Cross References: 118, 1004, 1006. Small's Report, 294. See note to 1399 and 1300.
Exemptions are made, not to favor individual owners of prop erty, but in the advancement of the interest of the whole people. Taxation being the rule, and exemption the exception, exemptions are not favored but are strictly constrvied; exemption of place of public worship does not include parsonage, in which pastor re sides; nor lands held in trust for the proceeds to be applied for the erection of a poor house; nor a fund raised or set apart to build a place of public worship, or a charitable institution; 1 nor income-bearing stores constituting portion of a Masonic Temple ;2 and any law, or ordinance of a city, or provision in a municipal charter, exempting any property not specifically enumerated as exemptable under the Constitution is void.3
81. Board of Trustees of Gate City Guard v. City of Atlanta, 113 Ga. 883, 39 S. E. 394.
22. Coleman v. Board of Education, 131 Ga. 644, 63 S. E. 41. 1. Mundy v. Van Hoose, 104 Ga. 298, 30 S. E. 783; Wardens, etc., of St. Mark's Church -u. Mayor, etc., of Brunswick, 78 Ga. 541, 3 S. E. 561. 2. Massenberg v. Grand Lodge F. & A. M. of Georgia, 81 Ga. 212, 7 S. E. 636. 3. McLendon v. City of LaGrange, 107 Ga. 357, 33 S. E. 405; Atlanta National Ass'n v. Stewart, 109 Ga. 96, 35 S. E. 73.

1303-1304] AMENDED CONSTITUTION OF 1877. [630
"AH property subject to taxation" is not the equivalent of "all subjects of taxation," as occupations, vocations, business, etc., are subjects of taxation but the inhibition of exemption does not apply to them. The legislature or municipal authorities may classify all subjects of taxation, exclusive of property, and may tax or exempt any or all of such classes with, a uniform rate upon the whole of each class taxed.4
1303 (6557). Par. 5. TAX ON CORPORATIONS. The power to tax corporations and corporate property shall not be surrendered or suspended by any contract or grant to which the State shall be a party.
Cross References: 124, 1007. Small's Report, 395.
The General Assembly has no power to declare that an occupa tion or business tax shall be levied upon certain classes of cor porations, which, when collected, shall be received in lieu of all other taxes upon the property of such corporation, nor that the payment of a tax levied upon the shares of the members of a pri vate corporation, shall discharge the corporation from the pay ment of all other taxes upon its property. 1
SECTION 3.
STATE DUET.
1304 (6558). Paragraph 1. DEBTS, FOR WHAT CONTRACTED. No debt shall be contracted by or on be half of the State, except to supply casual deficiencies of revenue, to repel invasion, suppress insurrection, and de fend the State in time of war, or to pay the existing public debt, but the debt created to supply deficiencies in revenue shall not exceed, in the aggregate, two hundred thousand dollars.
Cross References: 26, 1008.
Small's Report, 38, 35, 182, 340, 113, 114.
4. Mayor, etc., of Savannah v. Weed, et al., 84 Ga. 683, 1 S. E. 335. See as to uniformity as to individuals of the same class, note 35 to 1399.
1. Georgia State B. & I*. Ass'n -v. Mayor, Savannah, 109 Ga. 63, 35 S. E. 67.

631 ] AMENDED CONSTITUTION OF 1877. [ 1305-1306
The debt of an individual, corporation, or State is the principal and accrued interest on a given date; hence the right to make a debt of $200,000 to supply casual deficiencies of revenue, was in tended to authorize governor to borrow $200,000 and repay that sum with whatever increment of interest might accrue. 1
The power of the legislature with reference to the bonded debt was limited to the payment of the debt which existed when the Constitution was adopted; when this debt matured, the legislature could authorize the issue of new bonds to take up the old debt but they could go no further. 2
For the history of this provision in the several constitutions, see the opinion in case of City of Dawson v. Waterworks Co., 106 Ga. 704, 705, 32 S. E. 907.
SECTION 4.
DEBT, How CONTRACTED.
1305 (6559). Paragraph 1. FORM OF LAWS TO BORROW MONEY. All laws authorizing the borrowing of money by or on behalf of the State shall specify the pur poses for which the money is to be used, and the money so obtained shall be used for the purpose specified, and for no other.
Cross Reference: 1009. Small's Report, 394.
SECTION 5.
STATE AID.
1306. (6560). Paragraph 1. STATE AID FOR BIDDEN. The credit of the State shall not be pledged or loaned to any individual, company, corporation, or associ ation, and the State shall not become a joint owner or stockholder in any company, association or corporation.
Cross References: 99, 118, 120, 122, 501, 60S, 723, 1010. Small's Report, 23, 31, 35, 294-301.
Historical Note: For a discussion of State aid, see the opinion in the case of Park v. Candler, 113 Ga. 673, 39 S- E. 89.
1. Epping v. Columbus, 117 Ga. 264, 43 S. E. 803. 2. Park v. Candler, 14 Ga. 476, 40 S. E. 523.

1307] AMENDED CONSTITUTION OF 1877.

[632

SECTION 6.
PURPOSES OE" TAXATION BY COUNTIES AND CITIES.
1307 (6561). Paragraph 1. RESTRICTIONS ON COUNTIES AND CITIES. The General Assembly shall not authorize any county, municipal corporation, or political di vision of this State to become a stock-holder in any com pany, corporation, or association, or to appropriate money for, or to loan its credit to, any corporation, company, association, institution, or individual, except for purely charitable purposes. This restriction shall not operate to prevent the support of schools by municipal corporations within their respective limits; Provided, that if any mu nicipal corporation shall offer to the State any property for locating or building a capitol, and the State accepts such offer, the corporation may comply with such offer.
Cross Reference: 1011.
Small's Report, 298, 301, 316, 317.
Before the adoption of the present Constitution, municipal cor porations could issue bonds or subscribe to stock in railroad com panies to promote the building of railroads supposed to be to their advantage ; x but under the present Constitution such cannot be done nor can a city pay for a railroad right of way through its corporate limits, 2 nor compensate a citizen who has made a dona tion to a railroad company,3 but the present Constitution did not prevent a city from disposing of stock already owned.4
It is within the purposes and scope of a municipal corporation to apply the corporate funds, or to create a corporate debt, for the purchase or erection of a building to be used as a public school or college for the accommodation of the people of the town,5 and a city, not forbidden by its charter, may build schoolhouses, such right not being taken away by the present Constitution. 6

1. Hope -V. Mayor, etc., Gainesville, 72 Ga. 246. 2. Covington & Macon R. R. Co. v. Mayor & Council of Athens, 85 Ga. 367, 11 S. E. 663. 3. Town of Adel v. Woodal, 122 Ga. 535, 50 S- E. 481. 4. Mayor, etc., of Athens -v. Comak et al., 75 Ga. 430. 5. Donnelly v. Cabaniss, 52 Ga. 211. 6. Mayor, etc., of Cartersville -u. Balor, 73 Ga. 686, Frederick v. City Council of Augusta, 5 Ga. 561; Plumb, Trustee, v. Tucker, 64 Ga. 498.

633 ]

AMENDED CONSTITUTION OF 1877. [ 1308

An act providing for the establishment of a dispensary and the appointment of dispensary commissioners and allowing the com missioners to borrow money and make purchases on credit, and pledging the stock on hand for the payment of the debt thus cre ated, would not render the city, nor the county liable for the debt, but persons so extending credit would have to look to the com missioners or to the stock on hand, or its proceeds for their pay.7
A contract by a city to pay a dealer a portion of the amount which would become due to a contractor, for materials bought by him to complete his contract and which were not to be paid for unless the contract was fulfilled, was not a contract of suretyship and not violation of this constitutional provision.8
A county cannot pay pensions to soldiers, hence the Act of March 3, 1875, "for the relief of maimed and indigent soldiers," by permitting them to draw a stipend from the county treasury, is in conflict, with this provision, and was repealed by the adop tion of the present constitution.9
Where legislature extends corporate limits of municipality so as to take in contiguous territory previously unincorporated, its inhab itants and property are subject to taxation for all legitimate pur poses, including payment of indebtedness of municipality previously incurred; and where extension covers territory of other municipal ity where charters are repealed, annexing municipality acquires assets and assumes liabilities of annexed municipality, and such extension may be made without submission to vote. 10

1308 (6562). Par. 2. TAXING POWER OF COUN TIES LIMITED. The General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except for educational purposes; to build and repair the public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners, and for liti gation, quarantine, roads, and expenses of courts; to sup port paupers and pay debts heretofore existing; to pay the county police, and to provide for necessary sanitation.
Cross Reference: 1012.
Small's Report, 303, 316, 317.

7. Chatnblee z>. Davis, 115 Ga. 268, 41 S. E. 691. 8. City of Albany v. Cameron & Barkley Co., 121 Ga. 794, 49 S. E. 798. 9. Elder -v. Collier et al., 100 Ga. 343, 38 S. E. 116. 10. "White v. City of Atlanta, 134 Ga. 533, 68 S- E. 103.

1308] AMENDED CONSTITUTION OF 1877.

[634

aurnonzes ine expenditure oeiore ne win ue eiuiueu to receive 11, hence claim against county for fees of attorney employed to enjoin illegal sale of intoxicating liquors in dry county, cannot be paid out of county funds ; 2 nor claim for vaccine matter ;3 nor for pub lication in a newspaper of the annual statement of county treas urers;4 nor of grand jury presentments;3 nor for payment of in solvent costs of solicitor general;6 nor can the legislature give county commissioners authority to levy tax to build a fence around a militia district;7 nor pay stipend "for the relief of maimed and indigent soldiers; 8 nor to pay salary to judge of Superior Court in addition to constitutional provision; 9 but the Act of August 21, 1906 (Acts of 1906, p. 61), for a local tax for public schools, was not violative of this paragraph because it fails to specify upon its face that the tax was to be used for the instruction of children in the elementary branches of an English education; nor that the schools should be free for all alike; nor that white and colored races should be separated. 10
The limitation to incur debts is not a limitation upon the taxing

of the county; 11 and county commissioners having a broad discre tion, in passing upon the necessity for erecting suitable buildings for county purposes and selecting appropriate sites; they cannot be enjoined unless they abuse their discretion; 12 and county com-
1. Maxwell v. Gumming, 58 Ga. 384; Howard v. Early Co., 104 Ga. 670, 30 S. E. 880; Houston v. Kersh, 83 Ga. 353, 10 S. E. 199; Kennedy v. Seamans, 60 Ga. 352; Berksdale v. Hayes, 134 Ga. 348.
2. Koger v. Hunter Bros., 103 Ga. 76, 39 S. E. 141. 3. Daniel v. Putman Co., 113 Ga. 570, 38 S. E. 980. 4. Howard v. Early County, 104 Ga. 669, 30 S. E. 880. 5. Houston V, Kersh, 8 Ga. 353. 6. Adair et al. v. ElHs, et al., 83 Ga. 464, 10 S. E. 117. 7. Jones et al. v. Sligh et al., 75 Ga, 7. 8. Elder v. Collier, et al., 100 Ga. 243, 28 S. E. 116. 9. Clark v. Hammond, 134 Ga. 798. 10. Coleman v. Board of Education, 131 Ga. 643, 68 S. E. 141. 11. Knight v. Isom, 113 Ga. 614, 39 S. E. 133. 12. Anderson, Corns, et al. v. Newton, 123 Ga. 513, 51 S. E. 508.

635 ]

AMENDED CONSTITUTION OF 1877. [ 1309

missioners without special act, have power to incur a debt (when too late to levy tax) to purchase tools, etc., for chaingang. 13
Restriction on taxing power of counties, will not prevent re covery of damages for failure to keep bridges in repair; 14 and tax ing power is sufficiently broad to raise revenue to pay damage caused by exercise of right of eminent domain for constructing bridge or road ; 15 and county is compellable by mandamus to pay judgment for injury from defective bridge, the Constitution and act of legislature conferring power to levy tax therefor ; 16 but county commissioners will not be compelled by mandamus to issue warrant upon the county treasurer to pay a judgment for dam ages against the county for injuries received on a public road unless on account of defective bridge, there being no statute which makes a county liable for such damage. 17
Coroner may sue and recover from county his fees up to the amount allowed by law, viz: $10 for each inquest up to $1500. 1S

SECTION 7.
LIMITATIONS ON MUNICIPAL DEBTS.
1309 (6563). Paragraph 1. DEBT OF COUNTIES AND CITIES NOT TO EXCEED SEVEN PER CENT. The debt hereafter incurred by any county, municipal corpora tion, or political division of this State, except as in this Con stitution provided for, shall not exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality, or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per centum of the assessed value of taxable property therein, without the assent of two thirds of the qualified voters thereof at an election for that purpose, to be held as may be prescribed by law; but any city, the debt of which does not exceed seven per centum of the assessed value of the taxable property at the time of the adoption of this Con-
is. Pennington et al. v. Gammon et al., 67 Ga. 456.
14. Moreland v. Troupe County, 70 Ga. 714. 15. Smith v. Floyd County, 85 Ga. 420, 11 S. E- 850. 16. Dearing- v. Shepard, et al., 75 Ga. 28. 17. Brunson v. Casfcie, et al., 137 Ga. 502, 56 S. E. 621. 18. Davis v. County of Bibb, 116 Ga. 24, 42 S. E. 403.

1309 ] AMENDED CONSTITUTION OF 1877.

[ 636

stitution, may be authorized by law to increase, at any time, the amount of said debt, three per centum upon such assessed valuation.
Except that the city council of Augusta, from time to time as necessary, for the purpose of protection against floods, may incur a bonded indebtedness upon its power producing canal and municipal waterworks, in addition to the debts hereinbefore, in this paragraph allowed to be incurred, to an amount in the aggregate not exceeding fifty per centum of the combined value of such properties to be fixed as may be prescribed by law, but said valuation not to exceed a figure five per cent, of which shall represent the net revenue per annum produced by the two properties together at the time of such valuation, and such indebtedness not to be in curred except with the assent of two thirds of the qualified voters of such city, at an election held for that purpose, to be held as may be now, or may hereafter, prescribed by law for the incurring of new debts by said, the City Council of Augusta.
Cross References, 1013, i098.
Small's Report, 306.
It was decided in the case of Spann et al. v. Board of Commis sioners, etc., of Webster County, that a county could not levy a tax for "incidental purposes," nor to buy a safe without the as sent of two-thirds of the voters at an election held for that pur pose ;* but this case was overruled in the case of Dawson Water Works Co. v. City of Dawson, to the extent that it was held that an obligation could be incurred by a city -without such an election, if a tax had been levied which would realize a sufficient amount which could, during the year, be lawfully appropriated to discharge the obligation ;2 which latter case defined a debt, in the constitu tional sense, to be "any liability (of a municipal corporation) which is not to be discharged by money already in the treasury, or by taxes to be levied during the year in which the contract under which the liability arose was made,"3 but a special act fixing- the salary of a city court judge at a higher sum than he previously

1. Spann et al. v. Board of Commissioners of Webster Co., 64 Ga.
498. 2. City of Dawson v. "Waterworks Co., 106 Ga. 720, 33 S. E. 907. 3. City of Dawson -V. Waterworks Co., 106 Ga. 720, 32 S- E. 907.

637 ]

AMENDED CONSTITUTION OF 1877. [ 1309

received is not such a creation of a debt as that it "was necessary to submit it to a vote.4
On account of this provision of the Constitution, a municipality cannot purchase a fire engine and apparatus and give its negotiable notes therefor payable annually through a series of years ;5 nor make a contract good for longer than one year with a gas or water company to take gas or water from it upon the credit of the city ;6 nor create a sinking fund to buy a city hall, nor purchase such a building and pay for it in annual installments ;7 and a municipality cannot, even on a vote of two-thirds of the qualified voters, issue bonds to pay a debt allowed to accumulate from year to year, con stitutional authority to hold such election for bonds is to authorize city to incur a debt, not to pay one already incurred.8
A county cannot contract to build court house in excess of funds in hand and available from year's taxes without sanction of pop ular vote ; 9 and there is no authority of law for a county to enter into an executory contract for the sale of bonds which at the time of the contract, the county is not authorized to issue and for breach of such contract an action for damages will not lie; 10 but, even though county authorities had not constitutional power to borrow money by temporary loans to supply casual deficiencies of revenue, yet repayment of loan applied to legitimate use was lawful; 11 and where county authorities borrowed money for county purposes without authority of law, giving for it promissory notes in the name of the county, and the money thus unlawfully borrowed 'was received by the county treasurer as county funds and kept with the lawful money of the county, he was estopped from denying that he held this money as county treasurer and was liable for the same upon his bond ; 12 and, county commissioners have no author-

4. Clark V. Eve, 134 Ga. 788, 68 S. E- 598. 5. Town of Wadley -v, Lancaster, 124 Ga. 354, 52 S- E. 335. 6. Cartersville Improvement Co. v. Mayor et al., 89 Ga. 683, 16 S. E. 25; City of Dawson v. Waterworks Co., 106 Ga. 696, 32 S. E. 907. 7. Hunnicutt -v. City of Atlanta, 104 Ga. 3, 30 S. E. 500; Pilcher -u. English, 133 Ga. 505, 66 S. E. 163; Hogan v. State, 133 Ga. 875, 67 S. E. 368. 8. Mayor & Council of Macon v. Jones, 132 Ga. 455, 50 S. E. 340. 9. Lewis et al. -u. Lofley, 92 Ga. 804, 19 S. E. 57. 10. Robinson-Humphrey Co. v. Wilcox Co., 129 S. E. 104, 58 S. E. 644. 11. Peed V. McCrary, 94 Ga. 488, 21 S. E. 232. 12. Mason v. Commissioners, 104 Ga. 45, 30 S. E. 513; Wilkinson v. Bennett, 56 Ga. 290; Walden -v. Lee, 60 Ga. 298; Johnson v. Christis, 64 Ga. 120; Watts v. Colquitt, 66 Ga. 493.

1309 ] AMENDED CONSTITUTION OF 1877.

[ 638

ity to contract in behalf of a county for a loan of money (not to supply a casual deficiency in revenue) to be used in defraying cur rent expenses, although the notes which evidence the loan be pay able in the current year, and the general design be to discharge them from anticipated revenue; but an action for money had and re ceived can be maintained by one who has made such loan. 13
The framers of the Constitution made and intended to make the creation of a new debt by a municipality a matter not easy of ac complishment by placing upon the people residing within the limits of the municipality the responsibility for the creation of the debt; they provided for prompt payment at maturity by levy of annual tax, and provided protection against extravagance by requirement of assent of two-thirds of qualified voters. 14
The law requiring the notice of bond election to be given in a certain way is mandatory, and failure to comply with the law vi tiates the election if objection is properly raised ; the Constitution does not authorize creation of a debt merely because two-thirds of voters consent; they must consent in the manner required by law and at a valid election, 15 the rule being that, not only must the con stitutional provisions be strictly construed, but the Act of the Gen eral Assembly prescribing the manner in which the election shall be held on the question of incurring the bonded indebtedness must be, also, strictly construed; 16 hence, notice calling election for mu nicipal bonds stating that they are to become due after thirty years, not good; should state within thirty years ; 17 and, the General Assembly cannot provide for submission of any question entirely foreign thereto along with the question whether they will incur the debt, but the question of establishing the enterprise may be submitted along with question of incurring debt therefor, but bet-

13. Butts County v. Jackson Banking Co., 129 Ga. 801, 60 S. E. 149. As to what is casual deficiency of revenue, see Hall v. County of Greene, 119 Ga. 254, 46 S. E. 69; Lewis v. Lofley, 92 Ga. 804, 19 S. E. 57.
14. Wilkins v. Waynesboro, 116 Ga. 362, 43 S. E. 767. 15. Reynolds & Hamby v. Marvin, 116 Ga. 495, 42 S. E. 796; Wilkins et al. v. Waynesboro, 116 Ga. 359, 42 S. E. 767. 16. Dawson v. Waterworks, 106 Ga. 696, 33 S. E. 907; Walsh v. Au gusta, 67 Ga. 293; Cabaniss v. Hill, 74 Ga. 845; Bowen v. Mayor of Greensboro, 79 Ga. 709, 4 S- E- 159; Mayor of Athens, v. Hemerick, 89 Ga. 674, 16 S. E. 73; Ponder v. Forsyth, 96 Ga. 572, 33 S- E- 498; Mayor, Perry, V. Norwood, 99 Ga. 300, 35 S. E. 648. 17. Smith v. Dublin, 113 Ga. 838, 39 S. E. 337.

639 ]

AMENDED CONSTITUTION OF 1877. [ 1309

ter practice to submit questions separately ; 18 and, where question of establishment of system of public schools submitted alone and assented to, and bonds defeated at subsequent election it was duty of municipal authorities to establish system and provide funds by taxation. 19 A provision in a legislative act authorizing a bond issued by a municipality, providing that the proceeds shall be used for equipping a waterworks plant, and "for other purposes" is not in harmony with the general law requiring the purposes for which such bonds are issued to be specified, and a provision for a sinking fund, but not for a sufficient annual tax, is void; 20 and creation of sinking fund less than amount required, expecting to supply defi ciency by accretions of interest by loaning out sinking- fund, void;31 but provision may be made for payment of portion of sinking fund from other sources than annual tax if funds from such sources are available; and the Constitution not requiring provision for annual tax until "at and before the time of incurring the indebtedness" it is not necessary for the city to make such provision until notice has been given, election held and judgment of validation has been had. 23
The method of ascertaining the number of votes necessary to provide for the incurring of debts -by counties is different from that providing for the removal of county sites. In the latter the provision is for the assent of two-thirds of those voting at the election; in the former, for two-thirds of the qualified voters ;23 and this question is to be determined, since the passage of the gen eral registration law, by reference to the registration lists, 34 but, in case of an election held in a municipality in which there was no law requiring or authorizing any registration of voters, reference is to be had to the tally sheets of the last general election in the town. 35
After bonds have been legally validated, they cannot afterwards

18. Cain et al. v. Smith, 117 Ga. 902, 44 S. E. 5; Brand v. Town of Lawrenceville, 104 Ga. 487, 30 S. E. 954.
19. Ayers et al. v. McCalla, Mayor Conyers, 95 Ga. 5, 22 S. E. 295. 20. Wilkins et al. v. Waynesboro, 116 Ga. 359, 42 S- E. 767. 21. Oliver v. City of Elberton, 124 Ga. 64, 52 S. E. 15. 22. Woodal -v. Town of Adel, 132 Ga. 302, 50 S. E. 102; Epping v. Columbus, 117 Ga. 265, 43 S. E. 803. 23. Lippitt v. Albany, 131 Ga. 630, 63 S. E. 33; Farmer v. Mayor & Council of Thomson, 133 Ga. 94, 65 S. E. 180. 24. Wells v. Ragsdale, 102 Ga. 53, 29 S. E. 165. 25. Floyd County v. State, 112 Ga. 794, 38 S. E. 37; Gavin v. City of Atlanta, 86 Ga. 132, 12 S. E. 262.

1310] AMENDED CONSTITUTION OF 1877.

[640

be declared invalid, on the ground of insufficiency in the ordinance, or that issue was not properly submitted to the voters ; 26 but the solicitor general must comply strictly with the law as to the filing of his answer to the petition to validate, and must file it within twenty days after it is served upon him, and he cannot file it after the expiration of that time. 27
The "debt" of a municipal corporation, within the meaning of the provision that a debt exceeding seven per centum of the assessed valuation of all the taxable property within the municipality cannot be incurred, is to be ascertained by adding to the principal of all outstanding indebtedness, the amount of all accrued interest due and payable on the date the amount of the indebtedness is to be fixed; and, in ascertaining the amount of such debt, future inter est not due on such date is not to be counted. 38

1310 (6564). Par. 2. COUNTY AND CITY BONDS, HOW PAID. Any county, municipal corporation, or political division of this State, which shall incur any bonded indebted ness under the provision of this Constitution, shall, at or before the time of so doing, provide for the assessment and collection of an annual tax sufficient in amount to pay the principal and interest of said debt within thirty years from the date of the incurring1 of said indebtedness.
Cross Reference: 1014.
See notes to 1309.
The Constitution of 1877 does not prohibit a municipal corpora tion from building school houses and unless there is something in its charter -which forbids, it may apply the corporate funds or create a corporate debt for such purpose, 1 and where bonds are issued with due formality for the purpose of maintaining schools, their validity is not affected by the fact that the schools contem plated by the act providing for the election have not been formally established before bonds issued and sold. 2
Agreement by city to take water for twenty years from private

26. Murphy v. Harker, 115 Ga. 91, 41 S- E. 585; Farmer v. Mayor & Council of Thomson, 133 Ga. 94, 65 S. E. 130.
27. Lippitt v. Albany, 131 Ga. 630, 63 S. E. 33. 28. Roff v. Town of Calhoun, 110 Ga. 806, 36 S. E. 314. 1. Danielly v. Cabanis, 53 Ga. 311; Cartersville v. Baker, 73 Ga. 688. 2. Brand v. Town of Lawrenceville, 104 Ga. 486, 30 S. E. 954.

641 ]

AMENDED CONSTITUTION OF 1877. [ 1310

company at specified annual rate unconstitutional; debt must be created and its payment provided for as provided in Constitution, but such contract is operative so long as neither party renounces it.3
Condition as to levy of annual tax considered by framers of Con stitution a guaranty of prompt payment at maturity,4 and condition must be strictly complied with,5 Not compliance to provide for levy of annual tax sufficient to pay interest and also to raise a sum each year -which would amount, in the aggregate, to less than principal, and create a sinking fund to be loaned by commissioners at interest with view of increasing amount to a sufficiency to pay indebtedness, but providing that any deficiency be met by taxation in the year in which bonds would fall due.6
Provision for assessment and collection of annual tax, sufficient compliance, i in amount sufficient to pay principal and interest of bonded debt within time prescribed by Constitution, although or dinance making the provision provides that the interest and a por tion of the principal may, from year to year, be paid from other sources, if funds from such sources are available at time interest and principal are due.7
Notice calling election for municipal bonds stating that they are to become due after thirty years not good; must show maturity within thirty years,8 and solicitor-general cannot file petition to validate bonds issued under 1309 above, after twenty days after notice to him provided by 446 of the Code.

3. City of Dawson v. Waterworks Co., 106 Ga. 496, 33 S. E. 907, cit ing- Cartersville Imp. Co. v. Cartersville, 89 Ga. 683, 16 S. E. 35; Cartersville Water Co. v. Cartersville, 89 Ga. 689, 16 S. E. 70; Lewis v. Loffley, 73 Ga. 804, 19 S. E. 57; Habersham County v. Porter Mfg. Co., 103 Ga. 613, 30 S. E- 547, overruling- in part Spann v. Webster Co., 64 Ga. 498, and Cabaniss v. Hill, 75 Ga. 845.
4. Wilkins v. Waynesboro, 116 Ga. 362, 43 S- E. 767. 5. Walsh v. Aug-usta, 67 Ga. 293; Cabinis v. Hill, 74 Ga. 845; Bowen v. Greensboro, 79 Ga. 409; 4 S. E. 159; Mayor of Athens v. Hemerick, 89 Ga. 674, 16 S- E- 73; Ponder v. Forsyth, 96 Ga. 573, 23 S. E. 498; Mayor of Perry v. Norwood, 99 Ga. 300, 35 S. E. 648; City of Dawson v. Waterworks, 106 Ga. 732, 733, 33 S- E. 907. 6. Oliver v. City of Elberton, 134 Ga. 64, 52 S. E. 15. 7. Epping- v. Columbus, 117 Ga. 365, 43 S. E. 803. 8. Smith v. Dublin, 113 Ga. 838, 39 S. E. 327.
----41

1311-1313 ] AMENDED CONSTITUTION OF 1877. [ 642
SECTION 8.
ASSUMPTION OP DEBT.
1311 (6565). Paragraph 1. ASSUMPTION OF DEBTS FORBIDDEN. The State shall not assume the debt, nor any part thereof, of any county, municipal corporation, or political division of the State, unless such debt shall be contracted to enable the State to repel invasion, suppress insurrection or defend itself in time of war.
Cross Reference: 1015. Small's Report, 307.
SECTION 9.
PUBLIC MONEY.
1312 (6566). Paragraph 1. PROFIT ON PUBLIC MONEY. The receiving, directly or indirectly, by any of ficer of the State or county, or member or officer of the General Assembly, of any interests, profits, or perquisites arising from the use or loan of public funds in his hands, or moneys to be raised through his agency for State or county purposes, shall be deemed a felony, and punishable as may be prescribed by law, a part of which punishment shall be a disqualification from holding office.
Cross Reference: 1016. Small's Report, 307.
SECTION 10.
CITY DEBTS. 1313 (6567). Paragraph 1. CITY DEBTS, HOW INCURRED. Municipal corporations shall not incur any debt until provision therefor shall have been made by the municipal government.
Cross Reference: 1017. Small's Report, 307.
The municipal authorities must levy an annual refunding tax, but they are not compelled to collect it, if there are other funds in the treasury sufficient to pay the debt when the time of payment comes -, 1
1. Epping v. Columbus, 117 Ga. 378, 43 S. E. 803.

643 ]

AMENDED CONSTITUTION OF 1877. [ 1314

but, pending the maturity of outstanding bonds, the municipal au thorities must keep separate accounts of taxes collected to refund the bonds, and if they apply any portion of any fund so collected by taxation to any other ordinary or extraordinary expense, they shall be guilty of malpractice in office.3
The Act of December 3, 1901, providing for the establishment of a dispensary in the city of LaGrange, was not unconstitutional, because it provided "that all bills incurred for the establishment and maintenance of the dispensary and purchase of stock * * * shall be paid out of the funds of the city as the mayor and council shall direct," notwithstanding there was no provision for an elec tion to ascertain the assent of two-thirds of the qualified voters, the act providing that the dispensary should sell for cash only, and it appearing that the city was out of debt and all bills for estab lishing the dispensary were to be paid in cash out of funds on hand.3
There is no constitutional impediment against a city's paying a debt resulting from a cash contract of sale,4 and where a city con tracted with a water company to take water twenty years and water company builds plant on faith of it, and the city received the benefit of the contract by taking water for a year, it must pay for water for that year, although contract was illegal because for more than one year.5

SECTION 11.
VOID BONDS.
1314 (6568). Paragraph 1. CERTAIN BONDS SHALL NOT BE PAID. The General Assembly shall have no authority to appropriate money, directly or indirectly to pay the whole; or any part, of the principal or interest of the bonds, or other obligations, which have been pronounced illegal, null and void, by the General Assembly, and the con stitutional amendments ratified by a vote of the people on the first day of May, 1877; nor shall the General Assembly have authority to pay any of the obligations created by the State under laws passed during the late war between the States, nor any of the bonds, notes, or obligations made

2. Code, 866; Mayor of Macon v. Jones, 122 Ga. 457, 50 S. E. 986. 3. Jacoby et al. v. Dallas, 115 Ga. 372, 41 S. E- 611. 4. City of Conyers v. Kirk & Company, 78 Ga. 480. 5. Ford v. Mayor & Aldermen of Cartersville, 84 Ga. 213, 10 S. E. 732.

1315-1316] AMENDED CONSTITUTION OF 1877. [644
and entered into during the existence of said war, the time for the payment of which was fixed after the ratification of a treaty of peace between the United States and the Confederate States; nor shall the General Assembly pass any law, or the Governor, or other State official, enter into any contract or agreement, whereby the State shall be made a party to any suit in any court of this State, or of the United States instituted to test the validity of any such bonds or obligations.
Cross References: 121, 814, 1018, 1068.
Small's Report, 307, 309.
For act declaring a large number of bonds null and void, see Acts of 1872, pp. 5, 6, 7; for act repealing all charters to railroad companies, providing for State's endorsement, see Acts of 1874, p. 98; for amendment of Constitution declaring that endorsement of State on certain railroad bonds was fraudulent and void, see Acts 1875, p. 27, and Acts of 1877, p. 24, and 1068 of this work. See also Park v. Candler, 113 Ga. 664, 39 S. E. 89; Epping v. Columbus, 117 Ga. 270, 43 S. E. 863; and City of Dawson v. Dawson Water Works, 106 Ga. 705, 32 S. E. 907.
SECTION 12.
PUBLIC DEBT NOT To BE INCREASED.
1315 (6569). Paragraph 1. BONDED DEBT NOT TO INCREASE. The bonded debt of the State shall never be increased, except to repel invasion, suppress insurrec tion, or defend the State in time of war.
Cross Reference: 1019.
SECTION 13.
PUBLIC PROPERTY PLEDGED POR STATE'S DEBT.
1316 (6570). Paragraph 1. STATE'S PROPERTY MAY BK SOLD TO PAY BONDED DEBT. The proceeds of the sale of the Western and Atlantic, Macon and Brunswick, or other railroads held by the State and any other property owned by the State, whenever the General Assembly may authorize the sale of the whole or any part thereof, shall be applied to the payment of the bonded debt of the state,

645 ]

AMENDED CONSTITUTION OF 1877. [ 1317

and shall not be used for any other purpose whatever, so long as the State has any existing bonded debt; Provided, that the proceeds of the sale of the Western and Atlantic Railroad shall be applied to the payment of the bonds for which said railroad has been mortgaged, in preference to all other bonds.
Cross Reference: 1020.
Small's Report, 310, 440.
This provision is not a specific appropriation of funds so as to authorize payment of particular bonds directly by treasurer, and he is authorized to pay out the public moneys intrusted to him only upon warrants of the governor, -when countersigned by the comp troller-general, excepting drafts of the president of the senate or speaker of the house for sums due members thereof j 1 and he is not compelled to pay it upon such warrant, if payment is for a purpose unauthorized by the constitution; and no part of the fund derived from the sale of the State's property can be lawfully paid out, or expended in the payment of any obligation or demand due by the State other than the bonded debt of the State, or some por tion thereof; and this is true whether such disposition of the fund permanently disposes of the same, or merely applies it to some other obligation or demand temporarily and until the taxes levied for the purpose of paying such other obligation or demand can be collected ; 2 but this mandate is fully met when such proceeds are applied to the payment of the interest on the public debt.3

SECTION 14.
SINKING FUND.
1317 (6571). Paragraph 1. SINKING FUND. The General Assembly shall raise by taxation, each year, in ad dition to the sum required to pay the public expenses and interest on the public debt the sum of one hundred thou sand dollars, which shall be held as a sinking fund to pay off and retire the bonds of the State which have not yet matured, and shall be applied to no other purposes what ever. If the bonds cannot at any time be purchased at or
1. Gurnie & Co. v. Speer, 68 Ga. 711. 2. Park v. Candler, 113 Ga. 647, 39 S. E. 89. 3. Park v. Candler, 114 Ga. 466, 40 S. E. 533.

1318-1319 ] AMENDED CONSTITUTION OF 1877. [ 646
below par, then the sinking fund herein provided for may be loaned by the Governor and treasurer of the State; Pro vided, the security which shall be demanded for said loan shall consist only of the valid bonds of the state; but this section shall not take effect until the eight per cent cur rency bonds, issued under the Act of February 19th, 1873, shall have been paid.
Cross Reference: 1021.
Small's Report, 311, 317, 318. See Acts of 1873, p. 16.
SECTION 15.
REPORTS.
1318 (6572). Paragraph 1. QUARTERLY RE PORTS OF COMPTROLLER AND TREASURER. The comp troller-general and treasurer shall each make to the Governor a quarterly report of the financial condition of the State, which report shall include a statement of the as sets, liabilities, and income of the State, and expenditures therefor, for the three months, preceding; and it shall be the duty of the Governor to carefully examine the same by himself, or through competent persons connected with his department, and cause an abstract thereof to be published for the information of the people, which abstract shall be indorsed by him as having been examined.
Cross Reference: 1023.
SECTION 16.
DONATIONS.
1319 (6573). Paragraph 1. DONATIONS FOR BIDDEN. The General Assembly shall not, by vote, reso lution, or order, grant any donation or gratuity in favor of any person, corporation, or association.
Cross References: 77, 122, 375, 500, 1023.
Small's Report, 322, 323. Legislative resolution to refund sureties on bond of defaulting county treasurer sums paid in satisfaction of such default, violative of this paragraph and therefore void. Smith V. Fuller, 135 Ga. 273, 69 S. E. 177.

647 ] AMENDED CONSTITUTION OF 1877. [ 1320-1322
1320 (6574). Par. 2. EXTRA COMPENSATION FORBIDDEN. The General Assembly shall not grant or au thorize extra compensation to any public officer, agent, or contractor, after the service has been rendered, or the contract entered into.
Cross Reference: 1034.
SECTION 17.
PUBLIC PRINTING.
1321 (6575). Paragraph 1. PUBLIC PRINTING. The office of the State printer shall cease with the expira tion of the term of the present incumbent, and the General Assembly shall provide, by law, for letting the public print ing to the lowest responsible bidder, or bidders, who shall give adequate and satisfactory security for the faithful per formance thereof. No member of the General Assembly or other public officer, shall be interested, either directly or indirectly, in any such contract.
Cross Reference: 1028.
Small's Report, 26, 36, 323, 441.
ARTICLE VIII.
SECTION 1.
COMMON SCHOOLS.
1322 (6576). Paragraph 1. COMMON SCHOOLS. There shall be a thorough system of common schools for the education of children in the elementary branches of an English education only, as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State, but separate schools shall be provided for the white and colored races.
Cross References: 66, 393, 787, 1036. Small's Report, 324, 327, 385-391, 402-410, 548-462.
School Districts. The Constitution of 1877 preserves local systems as they existed in 1877, and permits counties and munici-

1322 ] AMENDED CONSTITUTION OF 1877.

[ 648

palities to establish systems "which form necessary exceptions to uniformity, but do not apply to rural districts. General law pro vides that each county shall compose one school district; hence, act establishing Olive Springs School District, approved August IS, 1903, destroys territorial uniformity, and is contrary to con stitution and void; 1 and where the charter of a town sought to incorporate an area four miles square and provide for the creation of a school board which should have jurisdiction over the entire area, but provided other municipal officers who should have au thority only over a circular area of one half mile radius, it was an attempt to create a school district outside of a city, and was void as to all area outside of half mile radius; 2 but the Consti tution having been amended in the meantime, the Act approved August 23, 1905 (Acts of 1905, p. 425), as amended by Act ap proved August 21, 1906 (Act of 1906, p. 61), providing for the creation of local tax district schools, is not unconstitutional.3
\Vhen an act creating a school district was found to be un constitutional, one who had received the full benefit of the law and who was active in procuring its adoption, was held to be estopped from contesting the levy and collection of a tax to pay for such benefit, but such estoppel was held not to preclude such person from objecting to acts done, but not strictly in purview of the invalid law.4
Exclusion from Public School. The exaction of an incidental admission fee to be paid by each and every pupil as a condition of admission into the public schools of a town, though constitutional as applied to nonresident pupils, would be unconstitutional if ap plied to resident pupils also; and nonresident pupils cannot be re ceived to the exclusion of resident children who would otherwise attend, nor can nonresident pupils be received in payment at a less rate per pupil than the inhabitants of the town pay by taxa tion for their children ;5 and when private school opened a "com-

1. Barber et al. v. Alexander, 120 Ga. 30, 47 S- E. 580; Sellers v. Cox, 127 Ga. 246, 56 S. K. 284.
2. Neal v. McWhorter, 132 Ga. 433, 50 S. E. 381. 3. Edalgo v. Southern R. R. Co., 129 Ga. 258, 58 S. E. 846; Henslee et al. v. McLarty, 131 Ga. 244, 63 S. E. 66; Coleman et al. v. Board of Education, 131 Ga. 643, 63 S. E. 41. 4. Sellers et al. v. Cox, 127 Ga. 246, 56 S. E. 284. 5. Irvin v. Gregory, 86 Ga. 605, 13 S. E. 120; Board of Education v. Purse, 101 Ga. 437, 28 S. E. 896; Edalgo v. Southern Rwy. Co., 139 Ga. 266, 58 S. E. 846.

649] AMENDED CONSTITUTION OF 1877. [ 1323-1324
mon school department" and accepted part of public fund, school became subject to constitutional provisions applicable to public school system of State and parent of child refused admission be cause of failure to pay matriculation fee, could compel free ad mission by mandamus ;6 but the board of education having charge of a system of public schools established by law, and supported by taxation, has the right to suspend from attendance upon the school, children whose parents enter the school room during school hours and abuse the teacher and interfere with proper conduct of school, although children have violated no rule of the school.7
SECTION 2.
SCHOOL COMMISSIONER.
1323 (6577). Paragraph 1. STATE SCHOOL COM MISSIONER. There shall be a State school commissioner, elected by the people at the same time and manner as the Governor and State House officers are elected, whose term of office shall be two years, and until his successor is elected and qualified. His office shall be at the seat of government, and he shall be paid a salary not to exceed two thousand dollars per annum. The General Assembly may substitute for the State school commissioner such officer, or officers, as may be deemed necessary to perfect the system of public education.
Cross References: 788, 1037, 1079.
Small's Report, 25, 43, 337-335.
SECTION 3.
SCHOOL FUND.
1324 (6578). Paragraph 1. SCHOOL FUND. The poll-tax, any educational fund now belonging to the State (except the endowment of, and debt due to, the University of Georgia), a special tax on shows and exhibitions and on the sale of spirituous and malt liquors, which the Gen eral Assembly is hereby authorized to assess, and the pro ceeds of any commutation tax for military service, and all
8. "Wilson -V. Stanford, 133 Ga. 483, 66 S. E. 358. 1. Board of Education v. Purse, 101 Ga. 438, 2S S. E. 896.

1325 ] AMENDED CONSTITUTION OF 1877.

[ 650

taxes that may be assessed on such domestic animals, as, from their nature and habits, are destructive to other property are hereby set apart and devoted for the support of common schools.
Cross References: 789, 1028.
Small's Report, 300-306, 339.
The only source from which the appropriation for the common schools can be derived, consistently with the constitution, is either a tax levied in the manner prescribed by law or the school fund as made up of the items expressly enumerated in this paragraph. 1
Under the Constitution of 1868, a specific tax of twenty cents per gallon on intoxicating liquors was held valid. 2 Malt liquors referred to in this paragraph of the Constitution are such only as are intoxicating, hence, tax on nonintoxicating imitations need not be applied to common schools.3
In view of constitutional amendment adopted in 1903, authoriz ing local taxation for public schools, McMichael law (Acts of 1905, p. 425) is valid.4

SECTION 4.
EDUCATIONAL, TAX.
1325 (6579). Paragraph 1. LO GAL TAXATION FOR PUBLIC SCHOOLS. Authority may be granted to counties, militia districts, school districts, and to municipal corporations upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits by local taxation; but no such laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county, militia district, school district, or municipal corporation and approved by two-thirds majority of persons voting at such election, and the General Assembly may prescribe who shall vote on such questions.
Cross References: 1029, 1086.
Small's Report, 301, 302, 304, 306.

1. Park v, Candler, 113 Ga. 668, 39 S. E. 89. 2. Kennedy v. Harwell, 42 Ga. 416; McGowan v. Davidson, 43 Ga. 480.
3. Carroll v. Wright, 131 Ga. 746, 63 S. E. 260. 4. Henslee v. McLarty, 131 Ga. 244, 62 S. E. 66.

651 ]

AMENDED CONSTITUTION OF 1877. [ 1325

Under the Constitution of 1868, the power might be granted to county boards of education and to municipal corporations to levy taxes to support public schools within their respective territorial limits. 1 The provisions of this paragraph do not relate to the issue of bonds for the establishment of schools, but to the levy of local taxation for such purpose ;2 and a denial by election of power to issue school bonds, is no denial of power to tax schools under city charter previously ratified.3
This paragraph of the Constitution as originally adopted, clearly limited local school districts so far as their taxing power was concerned to two classes--counties and municipalities ;4 in view of the amendment of 1903, school districts might be created out side of cities ;5 but each such school district must be located en tirely within a county ;G and since the passage of the McMichael law, it being a general law, the General Assembly cannot create
school districts by special act.7 The provisions of amendment of 1903, not self-acting, and gen
eral power in charter of town to establish and maintain, by taxa tion, public school system, not sufficient to authorize election, and
levy of special tax. 8 The question of establishing schools and issuing bonds to sup
port the system may be submitted at one time, and when an act providing for submission of question of adopting the act and of issuing bonds at one time and an election was so held, at which two-thirds of the qualified voters voted in favor of bonds, the act was thereby put in force and the issue of bonds was authorized, but the better practice is to submit each question at a separate election. 9
Reference to registration list, not to tally sheet of last election is the proper method of ascertaining whether two-thirds of voters have assented to issuance of bonds or local taxation; 10 and since

1. Board of Education v. Barlow et al., 49 Ga. 333; Smith et al. v. Bohler et al., 72 Ga. 546.
2. Bowen et al. v. Mayor, etc., of Greensboro, 79 Ga. 710, 4 S. E. 159. 3. Ayers et al. v. McCalla, Mayor, et al., 95 Ga. 555, 23 S. E. 295. 4. Edalgo v. Southern Rwy. Co., 139 Ga. 360, 58 S. E. 246. 5. Henslee et al. v. McLarty, et al., 131 Ga. 344, 62 S. E. 66. 6. Edalgro v. Southern Rwy. Co., 129 Ga. 260, 58 S. E. S46. 7. Sellers v. Cox, 127 Ga. 351, 56 S. E. 284. 8. Brooks v. Town of Logansville, 134 Ga. 358, 67 S. E. 940. 9. Brand v. Town of Lawrenceville, 104 Ga. 487, 30 S. E. 954; Cain v. Smith, 117 Ga. 905, 44 S. E. 5. 10. Floyd County v. State, 113 Ga. 794, 38 S. E- 37.

1326 ] AMENDED CONSTITUTION OF 1877.

[ 652

the Act of 1899 (Acts of 1899, p. 1892), construed in connection with the Act of 1893 (Acts of 1893, p. 206), providing power in city authorities to provide for registration of voters, in the ab sence of any registration, there is no method of ascertaining whether two-thirds of qualified voters voted at a school election or not, and an election so held is void. 11
An act purporting to amend the charter of a town, and au thorizing the levy of an annual special tax "for the improvement of the school property" in the town without submitting1 to the qualified voters of the town the question whether such tax should be levied or not was void; 12 but when the General Assembly, upon the recommendation of the corporate authorities of a city, passed an act to establish and maintain public schools in such city "for as much as six months in the year" the act providing that "no local tax levied and collected for said purpose shall ever exceed one-fourth of one per cent on the taxable property of said city," which act was duly submitted to and approved by the qualified voters of the city and a system of public school was established thereunder, it was competent for the General Assembly, without another recommendation from the corporate authorities, and with out providing for another submission to the qualified voters, to amend the act in question by authorizing the schools to be con tinued "for as much as ten months in each year," the amending act distinctly providing that the amount of tax to be levied for school purposes should not exceed the rate authorized by the original act. 13

SECTION 5.
LOCAL, SYSTEMS.
1326 (6580). Paragraph 1. LOCAL SCHOOLS NOT AFFECTED. Existing local school systems shall not be affected by this Constitution. Nothing contained in first section of this Article shall be construed to deprive schools in this State, not common schools, from participa tion in the educational fund of the State, as to all pupils

11. Mayor & Council of Decatur v. Wilson, 96 Ga. 251, 23 S. E. 240. 12. Mayor & Council of Chipley v. Layfield et al., 120 Ga. 33: 47 S. E. 539. 13. Mayor of Gainesville v. Simmons, 96 Ga. 477, 23 S. E. 50.

653 ] AMENDED CONSTITUTION OF 1877. [ 1327-1328
therein taught in the elementary branches of an English education.
Cross Reference: 1030.
SECTION 6.
UNIVERSITY OF GEORGIA.
1327 (6581). Paragraph 1. STATE UNIVERSITY. The trustees of the University of Georgia may accept be quests, donations, and grants of land or other property for the use of said University. In addition to the payment of the annual interest on the debt due by the State to the Uni versity, the General Assembly may, from time to time, make such donations thereto as the condition of the treasury will authorize. And the General Assembly may also, from time to time, make such appropriations of money as the condition of the treasury will authorize, to any college or university (not exceeding one in number) now established, or hereafter to be established, in this State for the education of persons of color.
Cross References: 64, 414, 496, 596, 789, 1031. Small's Report, 31, 339, 443.
ARTICLE IX.
HOMESTEAD AND EXEMPTIONS.
SECTION 1.
HOMESTEAD.
1328 (6582). Paragraph 1. HOMESTEAD AND EXEMPTION. There shall be exempt from levy and sale, by virtue of any process whatever under the laws of this State, except as hereinafter exeepted, of the property of every head of a family, or guardian or trustee, of a family of minor children or every aged or infirm person, or person having the care and support of dependent females of any age, who is not the head of a family, realty or personalty,

1328 ] AMENDED CONSTITUTION OF 1877.

[ 654

or both, to the value in the aggregate, of sixteen hundred dollars.
Cross References: 118, 135, 790, 1032, 1033, 1035, 1036, 1038, 1039, 1040, 1069.
Small's Report, 25, 26, 37, 28, 29, 3O, 33, 34, 35, 40, 41, 53, 218, 422-4Z8. Speech of Hon. J. D. Matthews, Small's Report, 476.
Under the Constitution of 1868, a widow with children could, as the head of a family, take a homestead in the property of her deceased husband without alleging whether he owed debts or not;1 but, under the Constitution of 1877, one who seeks to have an exemption on the ground that he or she has "the care and support of dependent females," must apply for the exemption out of his or her own property, and neither a wife nor a widow can, under the clause of the Constitution granting the right of a homestead to those having the care of such dependents, exempt property be longing to the husband or his estate.3 The legislature cannot enact that a single person living to himself or herself alone is the head of a family; the decision of the judiciary on that subject is paramount.3
After the adoption of the present Constitution, while the right of the wife to have provision out of the estate of her deceased husband has been dependent upon the laws as to dower and year's support, where an intestate died leaving as his only estate property which had been set apart as a homestead under this paragraph for the benefit of himself and his family and his widow lives upon the property for several months until her death without making an application for a year's support out of the property or indicating any intention to do so, she will be held to have elected to take the homestead in the property rather than the year's support and her executor cannot have the property set apart as a year's support to her under provision of Civil Code 4041.4
Provision in bankruptcy act that homestead allowance be same as allowed in State of debtor's residence, is not unconstitutional, nor wanting in uniformity ;5 and homestead could be legally

1. Deyton et al. -u. Bell, 81 Ga. 370, 8 S. E. 620; Madden v. Jones, 75 Ga. 680.
2. Sutton -v. Rosser, 109 Ga. 204, 34 S. E. 246. 3. Calhoun -v. McLendon, 42 Ga. 405. 4. Ehrlich -v. Silverstein, 121 Ga. 54, 48 S. E. 703, distinguishing- 77 Ga. 232, 80 Ga. 469, 80 Ga. 187, and 117 Ga. 824. 5. Cox, Hill & Thompson z-. Bearden, 84 Ga. 307, 10 S- E. 627.

655]

AMENDED CONSTITUTION OF 1877. [ 1328

granted under the present Constitution, although an exemption for the full amount had been previously granted by the bankrupt court under the Constitution of 1868.6
Under the Constitution of 1868, a homestead could be sold for money borrowed and expended in improvements upon it, but not under the present Constitution;7 but since the adoption of the present Constitution, a homestead set apart under the Constitution of 1868 cannot be mortgaged for any purpose, either by the hus band or the wife, who applied for the homestead out of the husband's property, he having refused to apply. 8
Denial of homestead on application of husband, no ground for refusal being stated, does not estop wife from making subsequent application for exemption upon ground that her husband refused. 0
Before one who has an "undivided interest" in land can have the same set apart under the "poiiey homestead" he must bring a partition of the land in order that the number of acres can be definitely known, and set apart according to law. 10
Where pending an application for homestead and before the same is set apart, land sought to be set apart thereunder is sold under an execution against the applicant, the purchaser at such sale, with notice of the application for homestead, acquires the fee, subject only to the homestead estate which may thereafter be set apart; 11 but a different result would follow if the land was actually set apart before the sale; 12 and when a homestead is set apart and the head of the family dies, the same cannot be sold by the administrator under an order of the court of ordinary for the purpose of paying debts so as to give a present right of entry and such sale will remain inoperative until after the termination of the homestead estate. 13
A person sixty-six years old is entitled to a homestead as an aged and infirm person," although he may be a "hale and hearty" man. 14

6. Holland v. Withers, 76 Ga. 567. 7. McWilliams v. Bones, 84 Ga. 207, 10 S- E. 724. 8. Ach z>. Milam, 118 Ga. Ill, 44 S. E. 870; Fulcher v. Mandell, 83 Ga. 716, 10 S. E. 582.
9. Mozeley & Co. v. Fontane, 124 Ga. 376, 52 S. E- 442. 10. Sims . Sims, 122 Ga. 777, 50 S- E. 937. 11. Grace v. Kezar, 86 Ga. 697, 12 S- E. 1067. 12. Crine v. Johns et al., 96 Ga. 220, 22 S. E. 913; Jolly v. Lofton, 61 Ga. 154.
13. Graddock v. Kelley, 139 Ga. 818, 60 S. E. 193. 14. Alien v. Pearce, 101 Ga. 316, 28 S- E. 859.

1329] AMENDED CONSTITUTION OF 1877.

[656

SECTION 2.
EXEMPTION.
1329 (6583). Paragraph 1. PROTECTION GUAR ANTEED. No court or ministerial officer in this State, shall ever have jurisdiction or authority to enforce any judgment, execution, or decree against the property set apart for such purpose, including such improvements as may be made thereon from time to time, except for taxes, for the purchase-money of the same, for labor done thereon, for material furnished therefor, or for the re moval of incumbrances thereon.
Cross Reference: 1033.
See Notes and References under 1328.
A homestead in land is subject to a debt for labor done thereon in the cultivation of crops or other farm work, as in building or other improvements of a substantial nature; 1 and is subject to a lien of an attorney for services in having title to land decreed in applicant for homestead ; 2 and to comptroller-general's execution against defaulting tax collector and sureties ;3 and to sale for taxes;4 and to judgment on county treasurer's bond upon failure to pay money to his successor ;5 and to lien of attorney for re sisting levy thereon and having same set apart ;6 and to lien of a lender paying off purchase money and waiver mortgage, he being thereby subrogated to the rights of the original creditors;7 and" to renewal note of purchase-money note in hands of vendor's trans feree. 8 And when exempted property has been exchanged, whether legally or not, for property of like kind, the latter stands, as against the husband's creditors in the place of the former, so long as the exchange is not repudiated by the parties at interest, 9
1. Dickens v. Thrasher, 58 Ga. 360. 2. Davis v. Taylor, 103 Ga. 366, 30 S. E. 50. 3. Cahn -v. Wright, 66 Ga. 119. 4. Crine v. Johns, 76 Ga. 326. 5. McWatty v. Jefferson County, 76 Ga. 352. 6. Strohecker V. Irvine, 76 Ga. 639. 7. McWilliams -v. Bone, 84 Ga. 203, 10 S. E. 723. 8. Wofford v. Gaines, 53 Ga. 485; McElmurray v. Blue & Stewart, 91 Ga. 509, 18 S. E. 313. 9. Johnson v. Redwine, 105 Ga. 453, 33 S. E. 676; Murray v. Sells, 53 Ga. 357; Cheney v. Rogers, 54 Ga. 168; Cheney v. Rosser, 59 Ga. 861; Dodd v. Thompson, 63 Ga. 393; Mitchell v. Prater, 78 Ga. 767, 3 S. E. 658; Broome v. Davis, 87 Ga. 584, 13 S. E. 749.

657 ]

AMENDED CONSTITUTION OF 1877. [ 1329

and. a mortgage on homestead for one oi the excepted debts is both invalid and unnecessary. 10
Bankrupt applying for homestead in court of bankruptcy and having property set apart to him for -which he had made note for purchase money waiving homestead, creditor holding such note not having reduced his debt to judgment nor proved it in bank ruptcy, entitled to have judgment in rem in State court subjecting it to his claim, and when property is of perishable nature, receiver will be appointed to preserve it. 11
But homestead is not subject to mortgage for money loaned to improve property, whether before or after set apart; 12 nor to distress warrant ; 13 nor to judgment on attachment against home stead property (for debt not in excepted class), on ground of nonresidence of husband; 14 nor, as for purchase money, where note was given to holder of bond for title, who rescinded sale with original vendor, and latter then sold to maker of note, 15 nor to note of husband and wife in renewal of husband's note for part of price, such renewal note not being a purchase-money note. 16
When homestead is legally set apart it cannot be sold by the owner or the beneficiaries, or both except under order of court 17 as provided in this Constitution, and where, upon refusal of husband, wife applied and had homestead set apart, a lease exe cuted by husband purporting to convey to third persons all rights to timber for turpentine purposes, and saw mill timber was void, 18 and where husband and father mortgage crops growing on home stead lands to be used in making such crops, the holder of the mortgage cannot after maturity of the crops by foreclosing this mortgage against the mortgagor as an individual, subject crops to satisfaction of the mortgage execution, 19 and where the bene ficiaries of homestead used proceeds of illegal sale thereof, it will not bar a recovery of the land. 30

10. Planters' Bank v. Dickmson, S3- Ga. 715, 10 S. E. 446. 11. Bell v. Dawson Grocery Co., 120 Ga. 628, 48 S. E. 150; Britt-Carson Shoe Co., 133 Ga. 191. 12. McWilliams v. Bone, 84 Ga. 203, 10 S. E. 733. 13. Shivers v. Williams, 85 Ga. 583, 11 S. E. 876. 14. Burns et al. v. Lewis, 86 Ga. 591, 13 S. E. 123. 15. Farmer v. "Word, 72 Ga. 16. 16. Haynie v. Watson, 70 Ga. 707. 17. Hart v. Evans, 80 Ga. 330, 5 S- E. 99. 18. Pritchett v. Davis, 101 Ga. 236, 28 S. E. 666. 19. Martin v. Davis & Co., 104 Ga. 63, 30 S. E. 753 20. Timothy -v. Chambers, 85 Ga. 267, 11 S- E. 598.
----42

Brooks v.

1330 ] AMENDED CONSTITUTION OF 1877.

[ 658

In order to show that sale of homestead property under legal process was legal, it is necessary for it to be affirmatively made to appear that the plaintiff, his agent or attorney made and filed an affidavit before the sale that the debt fell within one of the classes for which the homestead is bound under the Constitution, also that there was no other property except the homestead on which to levy; and, where one to whom homestead was set apart died, and widow also died, and youngest child became twenty-one years of age, and thus homestead estate terminated, heirs could sue for land and recover it from one who bought at illegal sale; and no pre scription runs until youngest child is twenty-one ; 21 but where mortgage, rule nisi and rule absolute, all showed that debt was within exceptional class, 22 and in case when bond for title given, judgment for purchase money, and deed filed for levy and sale, homestead is subject to levy and sale without affidavit. 23
An interest in a judgment is not cash and can be set apart with out being invested in personal property, and when it is collected and the proceeds are invested in land, the land is exempt as other property purchased with the proceeds of homestead property. 24
The act of the ordinary in receiving and recording a schedule of property sought to be set apart as a homestead, under the pro visions of 3416, et seq., of the Code is ministerial only, and the validity of such exemption may be collaterally attacked in a court of competent jurisdiction in a case involving the right of a plaintiff in execution to subject the same to the satisfaction of his execu tion, and the affidavit provided for in 3400 of Code need not be filed before levy, such affidavit provided for in that section ap plying only to homesteads set apart under 3378 of the Code, and not to exemptions.25

SECTION 3.
WAIVER OP HOMESTEAD. 1330 (6584). Paragraph 1. MAY BE WAIVED, HOW PAR; HOW SOLD. The debtor shall have power to waive or renounce in writing his right to the benefit of

21. Davis -v. Jones, 95 Ga. 788, 23 S- E. 79. 22. McDaniel v. Westberry, 74 Ga. 380. 23. Perdue v. Fraley, 93 Ga. 780, 19 S- E. 40. 24. Johnson v. Redwine, 105 Ga. 449, 33 S- E. 676. 25. Marcrum v. "Washington, 109 Ga. 296, 34 S. E. 585.

659 ]

AMENDED CONSTITUTION OF 1877. [ 1330

the exemption provided for in this Article, except as to wearing apparel, and not exceeding1 three hundred dollars worth of household and kitchen furniture and provisions to be selected by himself and his wife, if any; and he shall not, after it is set apart, alienate or encumber the property so exempted, but it may be sold by the debtor and his wife, if any, jointly, with the sanction of the judge of the superior court of the county where the debtor resides or the land is situated, the proceeds to be reinvested upon the same uses.
Cross Reference: 1034.
Small's Report, 425, 436, 437.
Prior to the present Constitution, a general waiver o f homeste~aid was ineffectual; 1 but the right to homestead being personal t*o^ the debtor, and its exercise being subject to his decision, 2 he could, under former constitutions, make his decision as to whether he would claim the benefit of the homestead or exemption laws, by waiver as to specific property at the time of creating a lien upon it for securing a debt,3 and under the present Constitution he can affect all his property (save the small amount expressly excepted in the Constitution) by a general waiver.*
Exemption of cotton can be waived, although produced by labor performed while consuming exempt provisions,5 and milch cow not included in term "provisions," so as to prevent waiver of exemp tion as to such cow, although family using milk at the time.8
Exemption of $300 worth of personal property allowed under this paragraph in order to be affectual as against a -waiver thereof, must be set aside by the ordinary in the same manner the con stitutional homestead is set apart.7
Homestead waiver is void if embraced in a note infected with usury and a surety thereon signing in. ignorance of the usury will

1. Stafford, Blalock & Co. v. Elliott, 59 Ga. 837; Green v. "Watson, 75 Ga. 473.
2. Bowen v. Bowen, 55 Ga. 183. 3. Simmons 77. Anderson, 56 Ga. 53; Stafford, Blalock & Co. <u. ElHott, 59 Ga. 837; Alien v. Frost, 59 Ga. 558; Flanders & Son v. Wells, 61 Ga. 195; Smith v. Shepheard, 63 Ga. 454; Jackson v. Parrott, 67 Ga. 210. 4. Flemister v. Phillips, 65 Ga. 676; Wedingrton v. Florence, 65 Ga. 676; Boroughs v. White & Stone, 69 Ga. 843. 5. Butler v. Heath & Shiver, 79 Ga. 172, 4 S. E. 115. 6. Wilson -v. McMillan, 80 Ga. 733, 6 S. E. 183. 7. Sasser v. Roberts, 68 Ga. 353; Miller v. Almon, 123 Ga. 104, 50 S. E. 993.

1331 ] AMENDED CONSTITUTION OF 1877.

[ 660

be discharged, 8 but though contract infected with usury, if money used to take up waiver mortgage, subrogated thereto and is su perior to homestead ; 9 and a note executed by one partner in firm name, waiving homestead, binds all partners as to personal prop erty of the firm. 10
Since 1877, a homestead, though taken under the Constitution of 1868, cannot be mortgaged either by husband or wife who ap plied for it out of his property; 11 and a homestead taken out since the adoption of the Constitution of 1877, but under the pro visions of the Constitution of 1868, and to the amount allowed by that Constitution is good as against a debt owed by him before the adoption of the Constitution of 1877; but promissory notes given in 1890, and containing a homestead waiver, may be en forced against property subsequently exempted under the pro visions of the Constitution of 1868. 12
A deed made by the head of a family, purporting to convey land which had been, on August 31, 1877, set apart as a homestead under the Constitution of 1868, while inoperative and ineffectual as to the homestead estate in existence when it was made, passed to the grantee the reversionary interest of the grantor in the land
described. 13

SECTION 4,
HOMESTEAD SET APART, How.
1331 (6585). Paragraph 1. SETTING APART SHORT HOMESTEAD. The General Assembly shall pro vide by law, as early as practicable, for the setting apart and valuation of said property. But nothing in this Article shall be construed to affect or repeal the existing laws for exemption of property from sale, contained in the present Code of this State in paragraphs 2040 to 2049, 1 inclusive, and the acts amendatory thereto. It may be optional with

8. Prather v. Smith, 101 Ga. 283, 28 S. E. 857. 9. McWilliams v. Bones, 84 Ga. 203, 10 S. E. 723. 10. Hahn & Co. z>. Alien, 93 Ga. 612, 20 S- E. 74. 11. Planters Loan & Savings Bank v. .Dickinson, 83 Ga. 711, 10 S. E.
446. 12. Bell v. Whitehead, 115 Ga. 589, 41 S. E. 1003. 13. Huntress v. Anderson, 110 Ga. 427, 35 S. E. 671, overruling Love
et al. -v. Anderson, Admr., 89 Ga. 613, 16 S. E. 68.

661 ]

AMENDED CONSTITUTION OF 1877. [ 1332

the applicant to take either, but not both, of such exemp tions.
Cross Reference: 1035.
Small's Report, 443.
"Debtors have no vested right not to pay their debts. Exemp tions of their property from legal process for the satisfaction of creditors is but a privilege; mere grace and favor dependent upon the will of the State. Statutory exemptions are subject to be re duced or revoked by the legislature, and constitutional exemptions, by the people, through a change of the organic law;" 2 hence act providing that exemptions under the provisions of this paragraph should be subject to purchase money, applied to exemptions laid off at any time after the act, regardless of whether debt -was created before the passage of the act ;3 and such an act does not impair obligation of contract.4
A homestead granted in 1885 not held invalid because plats com posing same "did not purport to be made by county surveyor, and were not sworn to," as the law requires; it will be presumed proper order was granted to surveyor to lay off and plat the homestead, although the homestead papers do not so disclose. 5
So far as Constitution is concerned the General Assembly was unrestricted as to the manner in -which it could by statute provide for the setting apart of a homestead. It could have conferred the jurisdiction of passing upon applications for homestead upon any other officer in the county as well as upon the ordinary.6

SECTION 5.
SHORT HOMESTEAD WAIVED.
1332 (6586). Paragraph 1. SHORT HOMESTEAD MAY BE WAIVED. The debtor shall have authority to
1. 3416-3425 of the Code of 1910. 2. Harris -v. Glenn, 56 Ga. 94; Gunn v. Wades, 65 Ga. 537; Ellis v. Barnett, 65 Ga. 350; Mitchell v. Wolf, 70 Ga. 625. 3. Sparger -v. Cumpton, 54 Ga. 356. 4. Davis v. Vernon Shell Rd. Co., 103 Ga. 492, 29 S- E. 475; Kile & Co. v. Montgomery, 73 Ga. 345; Stiles v. Elliott, 68 Ga. 86; Harris v. Glenn, 56 Ga. 96. 5. Timothy v. Chambers, 85 Ga. 267, 11 S. E. 598. 6. Cunningham -u. U. S- Loan Co., 109 Ga. 618, 34 S. E. 1024.

1333-1334] AMENDED CONSTITUTION OF 1877. [ 662
waive or renounce in writing his right to the benefit of the exemption provided for in section four, except as is excepted in section three of this Article.
Cross Reference: 1036.
A waiver of a husband is binding also upon his wife and chil dren ;* but a waiver of homestead or exemption in an usurious contract is void. 2
SECTION 6.
HOMESTEAD SUPPLEMENTED,
1333 (6587). Paragraph 1. SUPPLEMENTAL HOMESTEAD. The applicant shall, at any time, have the right to supplement his exemption by adding to an amount already set apart, which is less than the whole amount of exemption herein allowed, a sufficiency to make his exemp tion equal to the "whole amount.
Cross Reference: 1037.
Under the Constitution of 1868, there was no provision of law for taking a second or supplemental homestead, although the former one -was less than the maximum allowed by law, 1 but an exemp tion of personalty could be supplemented afterwards by a home stead on realty ; 2 and, since the adoption of the present Constitu tion, a homestead granted under the Constitution of 1868 can be supplemented until the amount becomes equal to that allowed under the Constitution of 1877.3
SECTION 7.
FOKMSS HOMESTEADS PRESERVED.
1334 (6588). Paragraph 1. HOMESTEAD HERE TOFORE SET APART. Homesteads and exemptions of
1. Taliaferro 11. Pry, 41 Ga. 622. 2. Cleghorne V. Greyson, 77 Ga. 343. 1. Pate V. Oglethorpe Fertilizer Co., 54 Ga. 515; Woods v. Jones, 56 Ga. 520. 2. Echols & Abercrombie v. Reeves, 61 Ga. 214; Dickinson v. Harraldson, 61 Ga. 526. 3. Johnson v. Redwine, 105 Ga. 455, 456, 33 S. E. 676, criticising Mitchell v. Wolfe, 70 Ga. 625.

663 ]

AMENDED CONSTITUTION OF 1877. [ 1335

personal property which have been heretofore set apart by virtue of the provisions of the existing Constitution of this State; and in accordance with the laws for the en forcement thereof or which may be hereafter so set apart at any time, shall be and remain valid as against all debts and liabilities existing at the time of the adoption of this Constitution, to the same extent that they would have been had said existing Constitution not been revised.
Cross Reference: 1038.
A homestead taken out by a debtor since the adoption of the Constitution of 1877, but under the provisions of the Constitution of 1868, is good against a debt owed by him before the adop tion of the latter Constitution. 1

SECTION 8.
PRIOR RIGHTS TO EXEMPTION PRES^KVED.
1335 (6589). Paragraph 1. VESTED EIGHTS PROTECTED. Rights which have become vested under previously existing laws shall not be affected by anything herein contained. In all cases in which homesteads have been set apart under the Constitution of 1868, and the laws made in pursuance thereof, and a bona fide sale of such property has been subsequently made, and the full purchase-price thereof has been paid, all right of exemp tion in such property by reason of its having been so set apart shall cease in so far as it affects the right of the purchaser. In all such cases where a part only of the purchase-price has been paid, such transaction shall be governed by the laws now of force in this State, in so far as they affect the rights of the purchaser, as though said property had not been set apart.
Cross Reference: 1039.
The curative provisions of this paragraph were intended to operate only where the parties had pursued the statutory mode of conveying the property in question. That mode required the ap proval of the ordinary to be endorsed upon the deed, and a sale
1. Bell v. Whitehead, 115 Ga. 589, 41 S- E. 1002.

1336 ] AMENDED CONSTITUTION OF 1877.

[ 664

made without the ordinary's approval was not cured by the pro visions of this paragraph. 1
A deed by an adult to whose father, as the head of a family, a homestead had been set apart under the present Constitution, ex ecuted after the latter's death but before the termination of the homestead estate, and purporting to convey the grantor's interest, as heir at law in the exempted realty, is not void. 2

SECTION 9.
SALE; of HOMESTEAD.
1336 (6590). Paragraph 1. SALE AND REIN VESTMENT OF HOMESTEAD. Parties who have taken a homestead of realty under the Constitution of 1868 shall have the right to sell said homestead and reinvest the same, by order of the judge of the superior courts of this State.
Cross Reference: 1040.
Small's Report, 444.
Prior to the adoption of the Constitution of 1877, there could be no alienation of homestead property even with the approval of the ordinary, but since its adoption, such power has been given upon the approval of the judge of the superior court; 1 but a deed executed by a head of a family,' purporting to convey land which had been, on August 31, 1877 set apart as a homestead under the Constitution of 1868 (the Constitution of 1877 not then being in force) while inoperative and ineffectual as to the homestead in existence when it was made, did pass to the grantee the "rever sionary" interest of the grantor in the land described ; 2 but a sale by a husband and wife after the adoption of the present Consti tution without the sanction of the court is void.3
See notes to 1330.
1. Rosser v. Cheney, 61 Ga. 468. 2. Anderson v. Hall, 114 Ga. 1016, 41 S. E. 593. 1. Lynch v. Mclntyre, 78 Ga. 210; Roberts rv. Trammell, 55 Ga. 383; McManus v. Cook, 59 Ga. 488; Saulsbury Respess Co. v. McCallum, 65 Ga. 102. 2. Huntress v. Anderson, 110 Ga. 437, 35 S. E- 671. 3. Hart v. Evans, 80 Ga. 330, 5 S. E. 99.

665 ] AMENDED CONSTITUTION OF 1877. [ 1337-1340
ARTICLE X.
MILITIA.
SECTION I.
MILITIA AND VOLUNTEERS. 1337 (6591). Paragraph 1. ORGANIZATION OF MILITIA. A well regulated militia being essential to the peace and security of the State, the General Assembly shall have authority to provide by law how the militia of this State shall be organized, officered, trained, armed, and equipped; and of whom it shall consist.
Cross References: 373, 404, 546, 648, 792, 793, 794, 1041.
Small's Report, 51, 59, 60.
1338 (6592). Par. 2. VOLUNTEERS. The Gen eral Assembly shall have power to authorize the formation of volunteer companies, and to provide for their organ ization into battalions, regiments, brigades, divisions and corps, with such restrictions as may be prescribed by law, and shall have authority to arm and equip the same.
Cross Reference: 1042.
1339 (6593). Par. 3. PAY OF MILITIA. The officers and men of the militia and volunteer forces shall not be entitled to receive any pay, rations, or emoluments, when not in active service by authority of the State.
Cross Reference: 1043.
ARTICLE XI.
COUNTIES AND COUNTY OFFICERS.
SECTION L.
COUNTIES.
1340 (6594). Par. 1. COUNTIES ARE CORPO RATE BODIES. Each county shall be a body corporate, with such powers and limitations as may be prescribed by

1341 ] AMENDED CONSTITUTION OF 1877.

[ 666

law. All suits by or against a county shall be in the name thereof; and the metes and bounds of the several counties shall remain as now prescribed by law, unless changed as hereinafter provided:
Cross Reference: 1044.
Small's Report, 70.
Each county is a separate corporate existence with power to manage its own finances,1 and suable after the adoption of the present Constitution only in the name of the county, and suit against county commissioners, designed as against county commissioners, was bad and not amendable ;2 and a suit by the commissioners of one county against ordinary of another, for claim of one county against the other was demurrable ;3 but a suit brought against a county be fore the adoption of the present Constitution, in the name in which suits against a county might legally be brought at the time, did not abate on its adoption, this provision not affecting suits then pend ing.4
A county can only tax when it has the clear and manifest legal right to do so, and it is not authorized to levy a ''specific" tax of $50 per year on liquor dealers. 5
County can enter into and enforce contract made with mill owner to pay cost of building piers under county bridge, 6

1341 (6595). Par. 2. COUNTIES, NUMBER OF, LIMITED. There shall not be more than one hundred and forty-five counties in this State: Provided, however, that in addition to the counties now provided for by this Con stitution there shall be a new county laid out from the coun ties of Irwin and Wilcox, bounded as follows: Beginning at the point where the south line of land lot No. 167 in the third district of Wilcox County crosses the Alapaha river, and running due east along the south line to the northeast corner of land lot No. 159 in the third district of Irwin

1. Hargrove V. Lily, 69 Ga. 326. 2. Arnett v. Corns. Decatur County, 75 Ga. 783. 3. Hunnicutt -u. Stone, 85 Ga. 435, 11 S- E. 663. 4. Conyers, Admrs., v. Corns, of Road & Revenues of Bartow County, 116 Ga. 503, 42 S. E. 419. 5. Albany Bottling Co. v. Watson, 103 Ga. 503, 30 S. E. 270. 6. Wright v. Floyd Co., 1 Ga. App. 582, 58 S. E. 72.

667 ]

AMENDED CONSTITUTION OF 1877. [ 1341

County; thence north to the northeast corner of land lot No. 172 in the third district of Wileox County; thence east to the northeast corner of land lot No. 174 in the third district of Irwin County; thence south to the northeast corner of land lot No. 157 in the third district of Irwin County, and thence east to the northeast corner of land lot No. 156 in the third district of Irwin County, and thence south to the northeast corner of land lot No. 66 in the third district of Irwin County; thence east to the northeast corner of land lot No. 62 in the third district of Irwin County, and thence south to the northeast corner of land lot No. 32 in the third district of Irwin County; thence east to the southeast corner of land lot No. 233 in the fourth district of Irwin County, and thence north to the southwest corner of land lot No. 206 in the fourth district of Irwin County, and thence east to the southeast corner of land lot No. 39 in the fourth district of Irwin County, and thence north along the east line of land lot No. 39 to the Ocmulgee river, and thence in a "westerly direction along the Ocmulgee river to the point where House creek in Wilcox County empties into the Ocmulgee river, and thence in a westerly direction along the said House creek to the point where the said House creek crosses the north line of land lot No. 255 in the third district of Wilcox County, and thence west along the north line of said land lot No. 255 and in the district lines between the first and third districts in the said county of Wilcox to the Alapaha. river, and thence in a southerly direction along the said Alapaha river to the starting point. That Fitegerald shall be the county-site of said county. Said county, shall be attached to the Third Congressional district, and to the Oconee judicial circuit un til another circuit shall be established embracing the present county of Irwin, in which case it shall belong to said new cir cuit, and shall be attached to the fifteenth State senatorial district. That all legal voters residing in the limits of said county of Ben Hill, entitled to vote for members of the Gen eral Assembly under the laws of Georgia, shall, on the first Tuesday in January, 1907, elect an ordinary, a clerk of the superior court, a sheriff, a coroner, a tax-collector, a taxreceiver, a county surveyor, and a county treasurer, and three commissioners of roads and revenues for said county,

1342-1343 ] AMENDED CONSTITUTION OF 1877. [ 668
said election to be held at Fitzgerald, the county-site of said county. That the superior courts of said county shall be held on the first Mondays in April and October of each year. The limits of the said county, the Congressional and senatorial districts and the judicial circuit to which it is attached, the time of holding the terms of the superior courts shall be as designated above until changed by law.
Cross References: 1045, 1093, 1087. Small's Report, 148, 149.
From 1777 to 1877, the General Assembly was authorized to lay out new counties, and this authority was not abridged until the adoption of the present Constitution. 1
1342 (6596). Par. 3. CHANGE OF COUNTY LINES. County lines shall not be changed, unless under the opera tion of a general law for that purpose.
Cross Reference: 1046. Small's Report, 70.
The Act approved August 7, 1906 (Acts of 1906, p. 121), to pro vide for the change of county lines lying within the limits of in corporate cities, is not a special, but a general law, and, hence, is not in contravention of that provision that "no special law shall be enacted in any case for which provision has been made by an existing general law;" 1 but said act does not apply to change of lines in cities or towns involving county sites. 2
1343 (6597). Par. 4. CHANGE OF COUNTY SITES. No county site shall be changed or removed, except by a two-thirds vote of the qualified voters of the county, voting at an election held for the purpose, and a two-thirds vote of the General Assembly.
Cross Reference: 1047. Small's Report, 70, 149, 150, 444.
An election implies a choice, and if only one result would be pos sible, there can be no valid election, hence Act of 1906 (Acts 1906,
I. Pope v. State, 134 Ga. 802. 1. Manson, Ordinary, v. City of College Park, 131 Ga. 429, 62 S. E. 278. 2. County of DeKalb v. Atlanta, 132 Ga. 737, 65 S. E. 72.

669 ] AMENDED CONSTITUTION OF 1877. [ 1344-1345
p. 121), providing for change of county lines within towns and cities, is inapplicable to change of lines in a municipality containing a county site. 1
Issuance of bonds and establishment of schools require "twothirds of qualified voters of county;" removal of county site re quires only "two-thirds of qualified voters, voting at an election" held for such purpose; 2 therefore Act of October 8, 1879 (Code, 394) requiring assent of two-thirds of qualified voters of county to change county site unconstitutional.3
Fact that act of legislature prescribed that certificate of Secre tary of State shall be sufficient evidence of holding of election for removal of county site and of requisite number of votes, not a dec laration that this shall be only evidence of such fact; presumption that General Assembly had evidence before it, and courts will only look to journals of two houses of General Assembly;4 and certifi cate from office of Secretary of State, not admissible in evidence in proceeding to enjoin removal of county site, to show that condition precedent to action of General Assembly in passing bill for removal complied with by requisite vote. 5
1344 (6598). Par. 5. DISSOLUTION OP COUN TIES. Any county may be dissolved and merged with con tiguous counties, by a two-thirds vote of the qualified electors of such county, voting at an election held for that purpose.
Cross Reference: 1048.
SECTION 2.
COUNTY OFFICERS.
1345 (6599) Paragraph 1. COUNTY OFFICERS. The county officers shall be elected by the qualified voters of their respective counties, or districts, and shall hold their offices for two years. They shall be removed on conviction for malpractice in office; and no person shall be eligible to any of the offices referred to in this paragraph, unless he
1. County of DeKalb V. Atlanta, 132 Ga. 736, 65 S. E. 72. 2. Floyd County v. State, 112 Ga. 53, 38 S. E. 37. 3. Wells v. Ragsdale, 102 Ga. 53, 29 S. E. 165. 4. Lee v. Tucker, 130 Ga. 48, 60 S. E. 164. 5. Cutcher v. Crawford, 105 Ga. 180, 31 S. E. 139.

1346 ] AMENDED CONSTITUTION OF 1877.

[ 670

shall have been a resident of the county for two years, and is a qualified voter.
Cross Reference: 1049.
Si'Si :'m al.'l's Report, 152-158. The legislature has constitutional power to pass an act shortening
term of office of clerk and sheriff of city court of Savannah. 1 A constable is a county officer.2

SECTION 3.
UNIFORMITY IN COUNTY OFFICERS.
1346 (6600). Paragraph 1. COUNTY OFFICERS TO BE UNIFORM. "Whatever tribunal, or officers, may hereafter be created by the General Assembly, for the trans action of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for the ap pointment of commissioners of roads and revenues in any county.
Cross Reference: 1050. Small's Report, 153-158, 262, 161.
Act of 1872 providing for establishment of county courts in certain counties and for appointment of judges thereof and giving those judges jurisdiction over county matters, was not unconstitu tional at time of its passage; hence, whenever county availed itself

stitution, such provision referring only to tribunals and courts es tablished after adoption of present Constitution. 1
Act establishing city court in county of Richmond and providing that judge thereof should be ex officio commissioner of roads and revenues of that county,2 nor the act conferring on commissioners of roads and revenues of Kulton County power to lay out new mi litia districts, not violative of this provision.3
1. Collins ij. Russell, 107 Ga. 433, 33 S. E. 444. 2. Rose v. State, 107 Ga. 697, 33 S. E. 449. 1. Thorpe v. Butt, Ord., 106 Ga. 52, 31 S. E. 793. 2. Phinizy v. Eve, 108 Ga. 360, 363, 33 S. E. 1007. 3. Conley v. Poole, 67 Ga. 354.

671 ] AMENDED CONSTITUTION OF 1877. [ 1347-1348
Construing together this section and 5879, acts creating boards of commissioners for different counties need not be uniform.4
Local act approved February 20, 1876 (Acts of 1876", p. 322), providing for consolidation of office of county treasurer of Cobb County with office of clerk of superior court, and making clerk ex officio treasurer and fixing his fees is unconstitutional and wholly inoperative in that, under Constitution of 1868, the General Assem bly was without power expressly to abolish office of county treas urer, or to accomplish same result by indirection by depriving treasurer of emoluments and transferring duties to clerk of su perior court. 5
SECTION 4.
STATE CAPITAL.
1347 (6601). Paragraph 1. CAPITAL IN ATLANTA, The city of Atlanta shall be the capital of the State, until changed by the same authority and in the same way, that is provided for the alteration of this Constitution.
Cross Reference: 1051. Small's Report, 23, 30-33, 36, 48-52, 89, 90, 148, 411-422, 454.
ARTICLE XII.
THE LAWS OF GENERAI, OPERATION IN FORCE IN THIS STATE.
LAWS OF FORCE.
1348 (6602). Paragraph 1. SUPREME LAW, WHAT IS. The laws of general operation in this State are:
First, as the Supreme law: That Constitution of the United States, the laws of the United States in pursuance thereof, and all treaties made under the authority of the United States.
Cross Reference: 1052. Small's Report, 428.
Congress has plenary power to enact laws on the subject of in terstate commerce, and the laws of the State must yield to those of
4. County of Pulaski v. Thompson & Co., 67 Ga. S54, disapproving 67 Ga. 254.
5. Morris v. Glover, 131 Ga. 752, 49 S. E. 786.

1349-1350 ] AMENDED CONSTITUTION OF 1877. [ 672
Congress in the realm of its power on that subject; 1 and the State cannot by its laws, except in the valid and reasonable exercises of the police power place any burden upon interstate commerce. 2 The solicitation of orders of -whiskey to be shipped from without the State to persons within it by means of letters sent from a place without the State by United States mail to persons within the State, does not fall within the police power of the State to prevent by penal laws.3
1349 (6603). Par. 2. SECOND IN AUTHORITY. Second, as next in authority thereto: This Constitution.
Cross Reference: 1053. Small's Report, 428. See Notes to 1137.
The Constitution of the State as enrolled, published and ratified by the people is the organic law of the State, representing the di rect and immediate intention and will of the people, and is su preme in authority except wherein its provisions may violate the powers vested by the people in the federal constitution. To this supreme law every other power must be subordinate, and, conse quent^ where there is an irreconcilable variance between the Con stitution and a statute, which is the act of the people's agents, the superior obligation and validity is to be given to the direct will of the people as expressed in the Constitution. 1
1350 (6604). Par. 3. THIRD IN AUTHORITY. Third, in subordination to the foregoing: All laws now of force in this State, not inconsistent with this Constitution, and the ordinances of this Convention, shall remain of force until the same are modified or repealed by the General As sembly. The tax acts and appropriation acts passed by the General Assembly of 1877, and approved by the Governor of the State, and not inconsistent with the Constitution, are hereby continued in force until altered by law.
Cross Reference: 1054. Small's Report, 428.
1. Southern Rwy. Co. -v. Atlanta Sand Co., 135 Ga. 39, 68 S. E. 807. 2. Loh -v. Mayor, etc., of Macon, 8 Ga. App. 744, 70 S. E. 149. 3. R. M. Rose Co. v. State, 133 Ga. 353, 65 S. E. 770. 1. Ezekiel v. Dixon, 3 Ga. 157; Eeall v. Beall, 8 Ga. 217; Solomon v. Commissioners of Carter sville, 41 Ga. 161; "Walsh -v. City Council of Augusta, 67 Ga- 294.

673 ] AMENDED CONSTITUTION OF 1877. [ 1351-1354
1351 (6603). Par. 4. LOCAL AND PRIVATE ACTS. Local and private acts passed for the benefit of counties, cities, towns, corporations, and private persons, not incon sistent "with the supreme law, nor with this Constitution, and which have not expired nor been repealed, shall have the force of statute law, subject to judicial decisions as to their validity when passed, and to any limitations imposed by their own terms.
Cross Reference: 1055.
Small's Report, 429.
1352 (6606). Par. 5. VESTED BIGHTS SECURED. All rights, privileges, and immunities which may have vested in, or accrued to, any person or persons, or corporation, in his, or her, or their own right, or in any fiduciary capac ity, under and in virtue of any act of the General Assembly, or any judgment, decree, or order, or other proceeding of any court of competent jurisdiction in this State, heretofore rendered, shall be inviolate by all courts before which they may be brought in question, unless attacked for fraud.
Cross Reference: 1056.
Small's Report, 429.
1353 (6607). Par. 6. ACTS OF COURTS CON FIRMED. All judgments, decrees, orders, and other pro ceedings of the several courts of this State, heretofore made within the limits of their several jurisdictions, are hereby ratified and affirmed, subject only to reversal by motion for a new trial, appeal, bill of review, or other pro ceeding in conformity "with the law of force when they were made.
Cross Reference: 1057.
Small's Report, 429.
1354 (6608). Par. 7. EXISTING OFFICERS. The officers of the government now existing shall continue in the exercise of their several functions until their successors are duly elected or appointed, and qualified; but nothing herein

1355-1356 ] AMENDED CONSTITUTION OF 1877. [ 674
is to apply to any officer whose office may be abolished by this Constitution.
Cross Reference: 1058.
Small's Report, 429.
1355 (6609). Par. 8. ORDINANCES. The ordi nances of this Convention shall have the force of laws until otherwise provided by the General Assembly, except the or dinances in reference to submitting the homestead and cap ital question to a vote of the people, which ordinances, after being voted on, shall have the effect of constitutional pro visions.
Cross Reference: 1059.
Small's Report, 429.
ARTICLE XIII.
AMENDMENTS TO THE CONSTITUTION.
SECTION 1.
CONSTITUTION--How AMENDED.
1356 (6610). Paragraph 1. CONSTITUTION, HOW AMEND23D. Any amendment or amendments to this Con stitution may be proposed in the Senate or House of Repre sentatives, and if the same shall be agreed to by two-thirds of the members elected to each of the two houses, such pro posed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon. And the General Assembly shall cause such amendment or amend ments to be published in one or more newspapers in each Congressional district, for two months previous to the time of holding the next general election, and shall also provide for a submission of such proposed amendment or amend ments to the people at said next general election; and if the people shall ratify such amendment or amendments by a majority of the electors qualified to vote for members of the General Assembly, voting thereon, such amendment or amendments shall become a part of this Constitution. When more than one amendment is submitted at the same

675 ] AMENDED CONSTITUTION OF 1877. [ 1357-1358
time, they shall be so submitted as to enable the electors to vote on each amendment separately.
Cross References: 60, 137, 1060.
As reported by the committee, this paragraph provided that a pro posed amendment should be passed by a two-thirds vote of two suc cessive legislatures and then be submitted to the people for ratification. Upon motion of Mr. Hammond, of Fulton, supported by Mr. Toombs, the paragraph was amended so as to provide for submission after pas sage by one legislature. Small's Report, 429, 430.
1357 (6611). Par. 2. CONVENTION, HOW CALLED. No convention of the people shall be called by the General Assembly to revise, amend, or change this Con stitution, unless by the concurrence of two thirds of all the members of each house of the General Assembly. The repre sentation in said convention shall be based on population as near as practicable.
Cross Reference: 1061.
SECTION 2.
CONSTITUTION, How RATIFIED.
1358 (6612). Paragraph 1. CONSTITUTION, HOW RATIFIED. The Constitution shall be submitted for rati fication or rejection to the electors of the State, at an elec tion to be held on the first Wednesday in December, one thousand eight hundred and seventy-seven, in the several election districts of this State, at which election every per son shall be entitled to vote who is entitled to vote for members of the General Assembly under the Constitution and laws of force at the date of such election; said elec tion to be held and conducted as is now provided by law for holding elections for members of the General Assembly. All persons voting at said election in favor of adopting the Constitution shall write or have printed on their ballots the words "For Ratification," and all persons opposed to the adoption of this Constitution shall write or have printed on their ballots the words "Against Ratification."
Cross Reference: 1062.

1359 ] AMENDED CONSTITUTION OF 1877.

[ 676

1359 (6613). Par. 2. CONSOLIDATION OF VOTES. The votes east at said election shall be consoli dated in each of the counties of this State, as is now re quired by law in elections for members of the General Assembly, and returns thereof made to the Governor; and should a majority of all the votes cast at said election be in favor of ratification, he shall declare the said Constitu tion adopted, and make proclamation of the result of said election by publication in one or more newspapers in each Congressional district of the State; but should a majority of the votes cast be against ratification, he shall in the same manner proclaim the said Constitution rejected.
Cross Reference: 1063.

ORDINANCES.
(See Ordinances, etc., in Constitution of 1877, 1064-1068, Part II.)

INDEX
The references are to sections. Where a subject matter appear ing in the Amended Constitution of 1877, also appears in prior con stitutions or other parts of the -work, the reference is, in most cases, to the Amended Constitution of 1877 only. To trace the matter through the other parts of the work, consult the line of Cross Ref erences immediately below the section referred to. In order to fa cilitate the use of the work in connection -with the Hopkins' Code of 1910, the section numbers of that Code are preserved, being en closed in parentheses at the beginning of the section. The matter in the notes is not indexed, except in a few cases, and, -when indexed, the particular location of such matter is indicated by the footnote number in parentheses after the index reference.
ABUSE ON ARREST.. ........................................ 1110 ACADEMIES.
County provided for. ...................................... 64
ACCADIANS. Bound out to service........................................ 27
ACCUSED PERSONS, RIGHTS OF.......................... 1106 ACTS, SIGNED HOW....................................... .1188
ALLEGIANCE. Paramount to United States. .................. .74(29), 115, 1126
AMENDMENT OF LAWS....................................1191 AMENDMENTS OF CONSTITUTION.
How made ................................................ 1356
ANNAPOLIS, CONVENTION AT............................ 67 APPROPRIATIONS.
How made ......................................... .1184-1187 To churches and sects forbidden........................... 1115
ARMS', RIGHT TO BEAR....................................1123
ARTICLES OF CONFEDERATION. Inadequacy of ............................................. 67
ASSEMBLE AND PETITION, RIGHT TO....................1125 ASSUMING COUNTY OR CITY DEBT, FORBIDDEN...... .1311 ATLANTA, THE CAPITAL. ................................. 1347 ATTAINDER, BILLS OF. ....................................1134

678__________________INDEX._____________________
ATTORNEY GENERAL. Under Provisional Constitution. .................. ...52(5), 52(8) Under State Constitutions. Appointed by governor (1868) .......................... 767 Duties enumerated ..................................... 1275 Elected by people......................................1274 Qualifications (1868) ................................... 771 Salary .................................................1279
BAIL. Excessive prohibited ...................................... 1110
BAILIFFS. Government of colony by magistracy of.................... 4
BANISHMENT OR WHIPPING..............................1108
BENEFIT OF COUNSEL.. ..................................noe
BEN HILL COUNTY. Created ....................................................1341
BILLS OF ATTAINDER......................................1134
BILL OF RIGHTS, ENGLISH...... .............. ..........199-224
BILLS OF CREDIT, COLONIAL............................. 33
BILLS, LEGISLATIVE, READ THRICE....................1182
BONDS, CERTAIN, VOID AND UNPAYABLE..............1314
BOSTON PORT BILL...................................42, 45, 50
BULLOCK, ARCHIBALD. Calls constitutional convention ............................. 53 Elected speaker Commons House of Assembly ............ 41 President Council of Safety. ............................... 52
BULLOCK, RUFUS B. Member of convention of 1868.............................. 112 Elected governor .......................................... 115 Prolongs reconstruction .................................... 120
BUNKER HILL. Powder for battle furnished by Georgia..................... 49
CAPITAL, LOCATION OF.
Changed how ............................................. 1347 Ordinance fixing- ..........................................1064 Separate submission of question............................ 125
CENSUS. State, provisions for taking............................. .79, 376
CERTIORARI. Court of, issued by superior court. ......................... 1260

INDEX.

679

CHARTERS. See also CORPORATIONS. By what authority granted................................. 1192 Revised or amended, subject to constitution................ 1211
CHARTER OF PROVINCE OF GEORGIA.
Text of ................................................ 325-237
CHIEF JUSTICE. See also SUPREME COURT. Of general court ........................................... 20 Under Provisional Constitution ...........................52(5)
CHISHOLM CASE. Effect upon public sentiment respecting appellate courts.... 86 Relation to "State Rights" doctrine........................ 74
CHURCH OF ENGLAND. Established ......................................... j...... 31 Disestablished .......................................... 60, 294
CITY COURTS. Established .............................................85, 421 Exceptions, bills of to Supreme Court. .................123, 1252 Jurisdiction, originally ................................. 85, 421 Restricted to "Seaport Town or Port of Entry"............. 421 Restriction removed ....................................... 438
CITY DEBTS ................................ 1307, 1309-1311, 1313
CIVIL AUTHORITY. Superior to Military ....................................... 1120
CITIZENSHIP. Fourteenth Amendment ........................... 109, 110, 111 Provisions of Constitution of 1868.......................... 651 Provisions of Constitution of 1877. .........................1126
COBB, THOMAS R. R...................................92, 94, 96
COLONIAL CURRENCY .................................... 26
COMMERCE, REGULATION OF. Importation of slaves ..................................... 70
COMPTROLLER-GENERAL. Elected how ..............................................1235 Office of created .......................................... 518 Qualifications of .......................................... 1240 Salary .....................................................1238
CONFISCATION AND BANISHMENT. Georgia, Acts of ....................................... 65, 66
CONGRESS, PROVINCIAL ................................. 46-52
CONGRESS, CONTINENTAL. Admits delegates from Georgia ............................ 51 Declaration of Colonial Rights by.......................... 45 First meeting of .......................................... 45 Georgia sends delegates to ................................ 50

INDEX.
CONGRESS, OF THE UNITED STATES. Passes "Omnibus Bill" .................................... 91 Powerless under Articles of Confederation to levy taxes.... 67 Readmits Georgia to Representation in.................... 115 "Reconstruction Acts" passed by .......................... Ill Regulation of commerce by ............................... 70 Representation in ........................................ 68, 69
CONTEMPTS OF COURT. Punishments for limited .................................. 1131
CONSCIENCE. Freedom of guaranteed .................................... 1113
CONSTITUTION, CONFEDERATE. Ordinance ratifying ....................................... 95 Ratifying- ordinance repealed ............................... 103
CONSTITUTION, ENGLISH. Not written .............................................. 56 Parliament unlimited as to legislative power................ 56
CONSTITUTION OF THE PROVINCE OF GEORGIA ((ROYAL, SOCALLED).
Abstract of ...............................................13-33 Plan of recommend ....................................... 13
CONSTITUTIONS OF GEORGIA. See TABLE OF CONTENTS.
CONSTITUTION OF UNITED STATES-
Georgia ratifies ............................................ 71 Eleventh Amendment ...................................... 74 Fourteenth Amendment ............................... 110, 115 Fifteenth Amendment ..................................... 115 Signed by Georgia delegates ............................... 71 Thirteenth Amendment .................................... 107
CONSTITUTIONAL UNION PARTY. Formed ................................................... 91
CONSTRUCTION. Common law as affecting ................................. 1 Contemporaneous history ................................. 1100 General note on ...........................................1100 Power of resides in courts............................ 1137, 1196 Rules of ............................................1137, 1196
CONTRACTS. Laws not to impair obligation of........................... 1134 Lessening competition ..................................... 1212 Rescinding Act unconstitutional as impairing contract. ...... 89
CONVENTION. To revise Constitution, how called ........................ .1357

INDEX.

681

CORPORATIONS. See also RAII.KOAD COMPANIES; INSURANCE COMPANIES ; MUNICIPAL CORPORATIONS.
Amendment of charters, subjects to Constitution............ 1211 Buying stock to lessen competition, forbidden.............. 1212 Corporate powers, how granted ............................ 1192 Kminent domain and police power, as to.................... 1210
COSTS, EXACTED "WHEN .................................. 1111
CORRUPTION OF BLOOD. None by conviction ....................................... 1129
COUNSEL, ACCUSED TO HAVE ........................... 1106
COUNCIL OF SAFETY ............................. .....51, 52, 65
COUNTIES. Ben Hill created ..................................... 1093, 1341 Bonds of, how paid ....................................... 1310 Boundaries, how altered ................................... 1342 Corporate bodies ..........................................1340 County commissioners .................................... 1346 County sites, how changed................................. 1343 Debts limited ............................................. 1309 Debts, not assumed by state................................ 1311 Dissolved how ............................................. 1344 "Educational purposes," limitation to elementary branches removed .......................................... .1100, 1308 Lines, changed only by general laws....................... 1342 New counties, none to be created.......................... 1045 Number limited ........................................... 1341 Officers to be uniform. .................................. .134*' Officers, terms and election of. ............................ 1345 Power Jn legislature to lay out (1789).................. 75, 218 Province divided into two.................................. 8 Records to be kept by .................................... 288 Taxation, limited power delegated to. ...................... 1308 Unit of legislative power (1789)............................ 73
COUNTY COMMISSIONERS. General Assembly to provide for........................... 1394
COURTS; GENERALLY. Abolished, certain courts may be........................... 1295 Correction of errors in..................... 1248, 1252, 1260, 1S61 Costs not demandable in criminal cases till conviction.......1111 Costs in limited ................................... 64, 286, 1396 Debt for slave or hire of, not enforced..................... 785 Fixed times and places for holding. ...... .139, 1263, 1270(24-39) Jurisdiction; see discussion of judicial powers in Part First in chapters relating to that feature of the several constitu tions; also, see Particular Courts, below. Public trials in........................................ 156, 1106

682

INDEX.

COURTS; GENERALLY--Continued. Right of appeal .......................................1104(19) Right of resort to courts................................... 1105 Uniformity of proceedings and practice. .................. .1273 Venue, see title "Venue of Courts"
COURTS, PARTICULAR. Appeals, Court of ......................................... 1252 City Courts .................................. 85, 105, 1253, 1273 Commissioned Notaries Public ............................. 1272 Conscience, Court of .................................... 32, 284 County Courts ......................................... 1136(10) Courts merchant ........................................... 333 District Courts .................................... .117, 749-755 General Court ............................................ 19, 25 Inferior Courts .... .85, 98, 105, 117, 391, 394, 396, 418, 533, 536, 618, 782 Justices of the peace.................................. 1269, 1270 Ordinary, Courts of .................................. 1266, 1267 Oyer and Terminer ................................ 19, 25, 52(5) Superior Court ........................................ 1253-1265 Supreme Court ................................... .... 1244-1251 Town Court of Savannah .................................. 14 Vice-Admiralty ........................................... 21, 25
DAMAGE. Of private property for public use.......................... 1133
DEBT. Of State not to be increased................................1315
DEBTS OF STATE, COUNTY AND CITIES-...........1304-1317
DECLARATION OF FUNDAMENTAL PRINCIPLES. In constitution of 1861.................................. 440-467 Proposed draft for constitution of 1861..................... 97
ENFRANCHISEMENT. First English act .......................................... 63 By English municipal charters.............................. 63 By amendment of constitution of 1877....... .125, 1094, 1140-1149
DISQUALIFICATION FOR OFFICE ..................1151, 1152
DISTRICT COURTS UNDER CONSTITUTION OF 1868. Accusation in ............................................ 752 Civil jurisdiction of ....................................... 754 Created ................................................... 749 Criminal jurisdiction ...................................... 750 Fee System, prohibited in ................................. 755 Judges, terms of .......................................... 755 Jury trials, none unless demanded.......................... 753 Salaries of Judges ......................................... 769 Terms of Court ........................................... 751

INDEX.

683

DIVORCES. Cognizable in Superior Court .............................. 1256 Concurrent verdicts, two required .......................... 1282 Grounds prescribed by General Assembly. ............... 83, 433 History of legislation concerning-.......................... 83 Rights and disabilities, last jury determines................. 1283 Venue of actions for...................................... 1284
DONATIONS AND GRATUITIES FORBIDDEN............ 1319
DUELLING BARS FROM OFFICE ......................... 1152
BUE PROCESS OF LAW.................................... 1104
EDUCATION. Commutation tax for military service...................... 1324 Counties authorized to tax for......'.................. 1308, 1325 Dog tax applied to ........................................ 1324 Free system to be provided................................ 1322 General tax for.......................................1100, 1308 Limitation to elementary branches, removed as to coun ties .............................................,1100(p. 419) Liquor tax ................................................1324 Local systems preserved ................................... 1326 Municipal corporations, authority to tax for. .............. .1325 Poll tax ...................................................1324 School districts, taxation by ............................... 1325 Show tax ................................................. 1324 State taxation, for elementary branches only................ 1322
ELECTIONS. See also ELECTORS, QUALIFICATION'S OF. By ballot ............................................. .....1140 By General Assembly ..................................... 1201 Freedom of voters from arrest ............................ 1150 Intoxicating liquors not sold on election days.............. 1153 Punishment for not voting at. .............................. 250 Primaries, only qualified voters may participate............ .1147 Returns to Secretary of State..............................1154 Viva voce .................................................. 403
ELECTORS, QUALIFICATIONS OF. Age .......................................................1141 Character ..................................................1143 Descent ...................................................1143 Education ................................................. 1143 Payment of taxes .......................................... 1142 Property ..................................................1143 Pursuit of mechanic trade .................................. 63 Residence .................................................1142 Registration ............................................... 1143 War service ............................................... 1143
EMIGRANT AGENTS ........................... . .1126, 1196(37)

684__________________INDEX.____________________
EMINENT DOMAIN ....................................... .1310
ENTAILS. Forbidden .......................................... 64, 289, 341
EXCESSIVE BAIL AND FINES .......................... . .1110
EXECUTIVE DEPARTMENT. Officers of ................................................. 1316
EXECUTIONS, STAY OF .......................... .64, 103a, 118
EXEMPTIONS FROM TAXATION ..............1300, 1303, 1303
EX POST FACTO LAWS .................................... 1134,
EXTRA COMPENSATION FORBIDDEN ................... 1330
FERRIES. Commons House of Assembly declines to establish. ......... 36 Power to establish conferred on courts. .................... 437
FINES. Excessive prohibited ...................................... 1110
FIFTEENTH AMENDMENT ................................ 115
FORFEITURE OF ESTATE. None by conviction of crime.............................. 1129
FOURTEENTH AMENDMENT .................. 109, 110, 111, 115
FRANKLIN, BENJAMIN .................................... 38
FRAUD. Concealed property, laws to subject. ....................... .1132 Insolvent Trader's Act ................................. 1132(1) Punishment of under former constitutions. ...... .408, 465, 567, 664 Sales of merchandise in bulk ........................... 1132(3)
FREDERICA, COUNTY OF ESTABLISHED ................ 8
FREEDMAN'S CODE ........................................ 108
FREEDOM OF CONSCIENCE ..............................1113
GENERAL ASSEMBLY. See HOUSE or REPRESENTATIONS; SEN ATE OF GEORGIA.
Adjournments regulated ................................... 119S Apportionment of members .......................... 1156, 1158 Appropriations by .................................... 1184-1187 Bi-cameral form of ........................................ 60 Bills read three times ..................................... .1182 Bribe-taking disqualifies ..............:.................... 369 Canvass returns of elections .......................... 1319, 1220 Clerical expenses .......................................... 1199 Clergymen not eligible (1777, 1789) .................... 300, 319 Concealed property, laws to subject to creditors............ 1132 Corporate powers, right to grant restricted. ................ .1192

____________________INDEX.__________________685
GENERAL ASSEMBLY--Continued. Contempts, punishment of ................................ .1177 Contested elections, determination of ...................... 1221 Counties, none to be created.............................. 1045 County Commissioners ..................................... 1294 Delegated powers .................................. 61, 76, 351 Disqualification as member ................................ 1166 Debate, freedom of ....................................... .1178 Donations and gratuities ................................. 1319 Donations to sects forbidden .............................. 1115 Elections, each house judges of ............................ 1176 Election of members to other office forbidden. ............. 1166 Elections by ............................................... 1301 Extraordinary sessions .................................... 1228 Free persons of color, duty to provide government for (1865)... 598 Governor, elected by................................... 84, 1320 Journals .............................................. 1179, 1180 Learning, promotion of........................ 64, 414, 496, 596 Legislative power vested in ................................ 1155 Local legislation, notice of................................ .1190 Local bills read by title only. .............................. .1182 Majority of members necessary to enact laws.. .............1189 Meetings of............................................... .1162 Military officers elected by (1798).. ......................... 404 Oath of members ......................................... 1164 Officers and assistants. ..................................... 1199 Pardons and reprieves, reports of by governor.............. 1237 Pardons for treason and murder (1861, 1865, 1S68)..497J 597, 609 Pay of members ........................................... 1200 Powers ................................................... .1196 Privilege from arrest....................................... 1178 Privilege of debate ........................................ 1178 Public officers accountable to (1777) ........................ 287 Public moneys only drawn on appropriations made by...... 1186 Qualifications of members. ........................... .1168, 1173 Quorum ................................................... 1189 Railroad rates, regulated by. ............................... 1209 Rebates by railroads, General Assembly to prohibit. ........ .1193 Recognizances relieved from, how. ....................... .1193 Rejected bills.. ........................................... ..1188 Removal from district vacates seat of member. ............ .1167 Sessions limited ........................................... 1162 Street railways, construction only on consent of municipal authorities ............................................... 1194 Unexpired terms, power to provide, for filling.............. 1224 Veto overridden by ........................................ 1232 Yeas and nays ....................................... 1187, 1195
GENERAL LAWS-
Classification of subject matter. ...................... .1136(2-12)

686__________________INDEX._____________________
GENERAL LAWS--Continued.
City courts, uniformity of laws concerning not required..... ..............................................-.1136(29,31)
County commissioners ............................. .1136(36, 27) Definition of .......................................... .1136(1) Division of subject matter. .......................... .1136(24-26) Municipal corporations, laws concerning............. 1136(32-36) Not varied in particular cases. ............................. 1136 Optional operation .................................. 1136(13-16) Special, none where general apply. ......................... 1136 Special laws prior to present constitution,........... 1136(43-45) Territorial test, general or special. ................. .1138(17-331
GEORGIA PLATFORM, THE ............................... 01
GOVERNMENTAL POWERS, SEPARATION OF. ......... .1124
GOVERNOR, PROVINCIAL ............................11, 13, 14
GOVERNOR, OF THE STATE OF GEORGIA. Adjourning of General Assembly (1789, 1798) ......... .328, 372 Appoints to vacancies ..................................... 1229 Attorney General, appointed by (1868)...................... 767 Commander-in-Chief ....................................... 1236 Commissions executive officers ............................ 1235 Comptroller-General reports to ............................ 1233 Conservator of the peace...................................1227 Contested elections of, determined by General Assembly.... 1221 Designates judge to sit in Supreme Court, when. ........... 1245 Election of by people...................................... 1218 Election of by General Assembly. ......................... 122O Examination of executive officers ........................... 1S33 Executive power vested in.................................. 1217 Ineligible for reelection when.............................. 1217 Justices of the peace, commissioned by..................... 1271 Messages to General Assembly............................1228 Notaries public, commissioned by.......................... 1272 Oath of Office .............................................1225 Qualifications .............................................. 1222 Pardons and reprieves ......................................1227 President of Senate acts as, when.......................... 1223 Reappoint rejected persons, cannot..........................123O Returns of election of......................................121& Revision of laws ........................................... 1231 Revision of joint resolutions................................ 1232 Salary of ..................................................1317 Secretaries and Clerks ....................................1334 Vacancies, filled by appointment of......................... 1229 Veto .......................................................1231 Writs of election issued by. ................................ 1228^

____________________INDEX.__________________687
HABEAS CORPUS ACT. Act of Charles II; ch. 31............................... .178-198 Benefits guaranteed ........................................ 1112 "Habeas Corpus Court," none such.................... Ills (34) Lies for what .......................................... 1113(10) Nature of writ ......................................... 1112 (l)
HABERSHAM, JOSEPH ....................................49, 52
HALL, LYMAN .............................................. 48
HILL, BENJAMIN H. ....................................92, 101
HOMESTEAD AND EXEMPTIONS. All exemptions statutory until 1S68........................ 116 Exemption from levy, generally ............................ 1328 Gunn v. Barry.. .................................... ..1134(26) Prior homestead preserved ................................ 1335 Protection guaranteed .....................................1329 Sale and reinvestment ................................ 1330, 1336 Separate submission in 1877............................ 135, 1065 Short homestead, how set apart............................ 1331 Subject to certain debts....................................1328 Supplemental exemptions .................................. 1333 Waiver ..............................................1330, 1332
HOUSE OF REPRESENTATIVESApportionment of members ................................ 1158 Apportionment changed how .............................. 1159 Appropriations, originate in ................................ 1185 Clerks .....................................................1199 Disqualification for membership in .......................... 1166 Impeachment, sole power of................................ 1175 Negro members expelled (1868) ............................ 115 Number of members not to be increased by law............1159 Number increased by constitutional amendment. .... .1087, 1094 Pay of members ........................................... 1200 Pay of Speaker ............................................ 1200 Qualifications of members ................................. 1173 Revenue bills, originate in.................................. 1185 Speaker, elected how....................................... 1174 Acts as governor, when.................................... 1223 Terms of members .......................................... 1160
IMPAIRING OBLIGATION OF CONTRACTS, LAWS VOID.. 1134
IMPEACHMENTS. Judgments in ............................................. .1172 Power in House of Representatives......................... 1175 Tried by Senate ........................................... 1170
IMPRISONMENT FOR DEBT. None, after delivery of goods to creditors............408, 465, 567 Prohibited entirely ................................ 116(46), 66?

688

INDEX.

INFERIOR COURTS. Abolished .................................................. 782 Established as Constitutional Courts........................ 391 Justices elected how. ........................... 394, 422, 539, 636 Jurisdiction of .......................... 85, 391, 418, 421, 533, 624 Probate jurisdiction conferred on ordinary. ................. 436
INHERBNT RIGHTS OF PEOPLE....................1133, 1139
INHERITANCE. Rules of ............................................. 64, 289, 341
INTOXICATING LIQUORS. Election days, sale forbidden.............................. 1153 No inherent right to make or sell. ..................... .1139(1) Prohibition by trustees .................................... 7 "Rum Act" repealed ....................................... 7
INSURANCE COMPANIES. Dodson Law, constitutional ........................... 1104(48) Laws for people's protection required...................... 1206 Licensed by Comptroller-General............................ 1204 Nonresident companies, conditions to do business.......... 1203 Resident companies, conditions of doing business.......... 1205 Reports by ................................................ 1207
INTERNAL GOVERNMENT AND POLICE................1138
JACKSON, ANDREW ....................................... 91
JACKSON, JAMES .......................................... 77
JEFFERSON, THOMAS ..................................... 55
JENKINS, CHARLES J. ...................... 91, 103, 107, 109, 113
JEOPARDY. Once only ................................................. 1109
JOHNSON, ANDREW .................................... 101, 109
JOHNSON, JAMES ...................................... 102, 103
JOHNSON, HERSCHEL V............................ .92, 103,112
JONES, NOBLE WIMBERLY ............................41, 43, 49
JUDICIAL POWER. What courts vested in..................................... 1243
JUDGMENTS. By court without jury ............................ 1262, 1291 (50) Prior preserved by later Constitution...................... 1353
JURORS' COMPENSATION ................................. 1293

INDEX.

689

JURY. See also TKIAI, BY JURY. Compensation of jurors .................................... 1293 Judges of law and fact in libel and criminal cases. ........ .1127 Justice's courts, rig-ht of appeal to.......................... 1270 Number ................................................... 1S91 Oath of prescribed (1777).................................. 380 Special juries (1777)........................................ 281 Upright and honorable, laws to provide for................. 1292
JUSTICE. To be free, undenied and without delay............ 157, 449, 1106
JUSTICES OF THE PEACE. Appeal from to jury in Superior Court. ..................... 1270 Appeal to jury in justice court.............................. 1370 Cases formerly tried without respect to term (1868)........ 760 Civil jurisdiction of ........................................ 1270 Commissioned by governor ................................ 1271 Elected by people of district................................ 1271 Fixed times and places............................. .1270(24-29) No appeal to jury in justice court (1868).................... 761 Nominated by inferior courts (1798) ........................ 395 Number in each militia district............................. 1269 Removed how ............................................. 1371 Terms .....................................................1269
JUSTICES OF SUPREME COURT. Bondholding1, disqualified .................................. 1246 Disqualified, governor appoints other judge. ................ 1245 Elected how ......................................... 1251, 1254 Number .............................................. 1244, 1251 Qualifications .............................................. 1281 Salaries .................................................... 1279
LABORERS, LIEN PROVIDED FOR ........................ 679
LAWS OF " GENERAL OPERATION.................... 1348-1350
LAWS TO RELATE TO ONE SUBJECT....................1183
LEGISLATION VOID WHEN.. ........................... ..1137
LEGISLATIVE POWERS VESTED WHERE...... ..........1155
LIBELJury decides law and facts.................................. 1127 New trials, power to grant preserved...................... 1127 Truth given in evidence....................................1127
LIBERTY BOYS ............................................. 35
LIBERTY OF SPEECH, AND OF THE PRESS........... .1116
LOBBYING A CRIME........................................ 1131

690_______________ INDEX.___________________
LOCAL ACTS PRESERVED.................................. 1351
LOCAL OR SPECIAL BILLS................................1190
LOCAL SCHOOL SYSTEMS............................ 1325, 1326
LOTTERIES PROHIBITED ............................116, 672
LUMPKIN, JOSEPH HENRY. First Chief Justice ........................................ 86
LUMPKIN, WILSON. Message on State's Rights................................. 90
MAGNA CHARTA ........................................ 128-166
MANDAMUS, WRIT OF. Issued by Superior Court..................................1260
MARRIAGE. Between whites and blacks, prohibited.................. 106, 647
MARRIED WOMEN. Separate property of .................................. 119, 1202
MARSHALL, JOHN. Dictum concerning suit against state........................ 74 Opinion in Worcester z>. Georgia. ......................... 90
MARTIAL LAW. Complained of in Petition of Right...................... 173-176
MARTIN, LUTHER ......................................... 68
MEADE, GEORGE w. Appointed military commander of Georgia. ................. 113
MILITIA. Necessary to preserve freedom ............................1337 No pay except during service. ............................. .1339 Officers elected how (1861, 1865) ........................ 546, 648 Persons subject to duty (1868)............................. 792 Volunteer companies ...................................... 1338
MILITARY AUTHORITY. Subordinate to civil ....................................... 1120
MISSIONARIES. Case of ................................................... 90
MUNICIPAL CORPORATIONS. Aid to public improvements............................723, 1307 Augusta authority to issue bonds ........................... 1098 Creation of debts by............................... 118, 122, 1309 Debts not to be assumed by state........................... 1311 Repayment of debts ...................................... 1310 Restrictions on debts ......................................1307

INDEX.

691

Violators of not entitled to jury trial nor formal accusation. 1104(31)
NEGROES. Eligible to hold office...................................... 115 Expelled from legislature .................................. 115 Expelled members reseated ................................. 115 Freednian's Code, prepared for government of. ............. 108 Importation into colony prohibited.......................... 7 Importation from other slave holding states prohibited (1861) 502 Importation from any state, General Assembly to prohibit (1861) 503 Injuries to, how punished (1861) ............................ 505 Marriage with -whites, prohibited. ...................... .106, 647 Tried and punished for crime, how....................... .25, 27
NEW HAMPSHIRE. Adopts first American Constitution ........................ 57
NEW TRIAL OF CRIMES. .................................. 1137
NISBET, EUGENIUS A. .................................. .86, 92
NON-IMPORTATION LEAGUE ............................. 45
NOTARIES PUBLIC, EX-OFFICIO JUSTICES OF THE PEACE. Appointed and commissioned by governor (1868) ............ 761 Appointed by judges of the Superior Courts................ 1372 Judicial powers vested in. ................................. 1343 Removable how ........................................... 1373
NOTICE OF LOCAL BILL...................................1190
OBLIGATION OF CONTRACTSContracts by state, not to be impaired. ..................... 1214 Laws impairing, void ...................................... 1134
OFFICERS CONTINUED UNDER NEW CONSTITUTION. .. ,1354
ORDINANCES OF THE CONVENTION OF 1877.......1064-1068
OMNIBUS BILL ............................................. 91
ORDINARY, COURTS OF. Appeal from to Superior Court ............................ 1366 Clerk, powers of (1865).................................... 638 Consent, appeals by........................................ 1366 County matters, jurisdiction of............................ ,1367 Created ................................................... 436 Deputy clerk, powers of. ................................... 638 Elected how ...................................... .436, 541, 638 Judicial powers vested in.................................. 1343 Term of ................................................... 1268 Vacancies, how filled (under former constitutions) . . . .436, 641, 638

692

INDEX.

PARDONS ................................................... 1227
PARISHES. Province divided into .................................... 31, 33 Representation of southern ................................ 40
PARLIAMENT. Asserts right to tax colonies................................ 33 Called and dissolved at will of king........................ 60 Frequent meetings, demanded in Bill of Rights.......... 60, 234 Petitions to by colonies.................................... 38 Resolutions of Commons House of Assembly concerning.. .. 38
PENSIONS. First appearance of provisions for.................... 136, 1002 Provision in amendments............ 1071, 1073, 1077, 1084, 1097
PEOPLE THE SOURCE OF GOVERNMENT................1103
PEOPLE MAY ALTER OR ABOLISH GOVERNMENT... .1138
PETITION OF RIGHT ...................................167-177
POLL TAX .................................................. 1301
POLICE POWER .......................................... . .1210
POWER TO MAKE LAWS.................................. 1196
PREROGATIVE. Attempt to revive, causes English Revolution.............. 58, 60
PRESIDENT OF SENATE. Acts as governor, when.................................... 1223 Elected how ...............................................1169 Legislative acts signed by................................. 1188 Pay of ....................................................1200 Presides over joint sessions................................ 1201
PRESIDENT AND ASSISTANTS. Government of colony by.................................. 8
PRIVATE PROPERTY. See also PRIVATE WAYS. Compensation for taking. ................................... 1133 Damaged for public purposes, compensation for............ 1133 Protection guaranteed ..................................... 1103
PRIVATE WAYS ............................................ 1133
PROBATE, REGISTERS OF. Appointed by the legislature in each county................ 290 Powers conferred on Inferior Courts........................ 396 Powers vested in Courts of Ordinary........................ 436
PROFIT ON PUBLIC FUNDS A CRIME. ...................1312
PROHIBITION, WRITS OF. Issued by Superior Court. ................................. 1360

____________________INDEX.__________________693
PROHIBITION OF INTOXICATING LIQUORS. By trustees ............................................... 6 General law constitutional ............................ 1104(31)
PROTECTION. Colored persons, equal rights of.......................... 1126n Duty of government....................................... 1103 Equal protection of laws................................... 1126 Legal, not moral rights protected. ......................... .1103
PROVOST MARSHALL ..........................23, 53(5), 52(8")
PUBLIC DEBT. Borrowing money, form of laws............................ 1305 Contracted for what .......................................1304 Not to be increased........................................ 1315 Public property, proceeds of sale applies to.............. 121, 1316 Sinking fund ..............................................1317
PUBLIC MONEY ACCOUNT FOR, HOW.................. 1186
PUBLIC OFFICE. Defaulters not eligible to.................................. 1151 Dual holding, prohibited (1777)............................ 256 Duellist not eligible to...................................... 1152 No religious test to holding of. ............................ 1114 Persons convicted of felony ineligible ......... .473, 574, 685, 68S Qualified voters only eligible............................... 639
PUBLIC OFFICERS. No extra compensation to.................................. 1320 No profit on public money.................................. 1312 Trustees and agents of people..............................1102
PUBLIC PRINTING ......................................... 1321
PUNISHMENTS. Cruel and unusual prohibited.......................... 1108, 1110
QUALIFICATIONS OF ATTORNEY-GENERAL AND CER TAIN JUDGES ........................................ 1381
QUALIFICATIONS OF ELECTORS ....................1140-1149
QUARTERING SOLDIERS. Complained of in the Petition of Right.................. 172, 176 Consent of owner, necessary in peace...................... 1120 In war, as prescribed by law...............................1130 "Quartering Act" ......................................... 45
RAILROADS, REGULATION OF. Delegation of power to railroad commission, constitutional.- 124 Power in General Assembly. .............................. .1209 Railroad commission established ........................... 134 Rebates by railroads, forbidden............................. 1213

694__________________INDEX._____________________ RATIFICATION OF CONSTITUTION ...........1062, 1358, 1359 RECONSTRUCTION ACTS ................................... Ill REGISTRATION OF ELECTORS .................1144-1146, 1149 REJECTED BILES PROPOSED, HOW......................1188
RELIGIOUS FREEDOM. Guaranties of ......................................... 3, 60, 1113 Not permit licentious acts .................................. 1114 Papists exempted from guaranty. ........................... 2
RELIEVING FORFEITED RECOGNIZANCES ............ ..1193 RELIGIOUS OPINIONS .................................... 1114 REPORT ON FINANCES BY TREASURER AND COMP
TROLLER ..............................................1318 REPRESENTATIVES APPORTIONED, HOW........1168. 1159 RETROACTIVE LEGISLATION.
Injurious to private rights forbidden.....................
RIGHTS OE CITIZENS. Inherent rights of people.............................. 1138, 1139 Intoxicating liquors, no inherent right to make or sell. . . . . .1131n Right to vote and hold office........................ .1126(5, 6)
SALARIES OF OFFICERS .................................. 1279 SALES OF MERCHANDISE IN BULK..................1132(2) ST. JOHN'S PARISH ...................................... ..44,48
SCHOOL COMMISSIONER ................................1323
SCIRE FACIAS, WRIT OF. Issued by Superior Court.................................. 1260
SEARCHES AND SEIZURES. Security against unreasonable .............................. 1117 Warrants for only on probable cause .......................1117
SECRETARY OF STATE. Bond required of ..........................................1340 Charters granted by ......................................1192 Elected how ............................................ .'.1235 Election returns made to ................................... 1235 Eligibility .................................................1240 Executive officer ........................................... 1216

INDEX.

695

SECRETARY OF STATE--Continued. Fees and expenses ........................................ 1241 Great Seal deposited with.................................. 1242 Journal of General Assembly deposited with. ............... 1180 Salaries and clerical expenses. .............................. 1237
SECESSION. Convention called .......................................... 92 Ordinance of ............................................... 92 Ordinance repealed ........................................ 103
SELF CRIMINATION. Not compelled ............................................ 1107
SELF GOVERNMENT ................................. 3, 28, 1138
SENATE OF GEORGIA. Amendment of revenue bills ............................... 1185 Composed how ............................................ 1156 Districts, composed how ................................... 1156 Districts Changed how ................................... 115? Impeachments tried by .................................... 1170 President, elected how ..................................... 1169 President acts as governor, when.......................... 1233 Qualifications of members ................................. 1168 Removal of member, vacates office.......................... 1167 Terms of members ......................................... 1160
SENATE OF THE UNITED STATES. Georgia's position on organization of. ...................... 69
SEPARATION OF POWERS. Origin of maxim concerning. ............. 58, 1124(Hist. Note) Discussion of provisions of constitution of 1777. ........... 59, 60 Discussion of provisions of constitution of 1789.............. 73 Judicial and executive functions. ................... .1124(17-23) Legislative and judicial functions................... .1124(14-16) Legislative department, fountain head of power......... .1134(9^ Railroad commission, no violation of in rate making. ... 1124(23) Relates to state officers--not municipal. ............... 1124(11) Separation not total ........................................ 60 Webster, Daniel, statement concerning separation of powers 58
SINKING FUND .................................... ......... 1317
SLAVERY. Abolished .............................................. 103, 107 Compensation for emancipation ........................ .104, 568 Emancipation of slaves, no power in General Assembly(l861) 504 Future slavery prohibited ..................................1118 Fugitive slave law ........................................ 91 Government of slaves ..................................... 27 Importation of slaves prohibited.......................... 70, 412

696________________INDEX.___________________
SLAVERY--Continued. Injuries to slaves .......................................413, 505 Prohibited by trustees .................................... 7 Prohibition removed ....................................... 7
SOCIAL STATUS OF CITIZEN. Not subject of legislation.................................. 1119
SOLDIERS. See QUARTERING SOLDIERS.
SOLICITORS-GENERAL ................................ 1376,1277
SOUTH CAROLINA. Attempts to absorb Georgia............................... 9 Denounces Georgia ....................................... 35 First Constitution of ...................................... 57 Ordinance of secession, passed by. ......................... 92 Union of Georgia with proposed........................... 88
SPEAKER OF THE HOUSE OF REPRESENTATIVES. Acts as governor, when.................................... 1333 Elected how .............................................. 1174 History of office ............................... 1174(Hist. Note) Legislative acts signed by.................................. 1188 Pay of .................................................... 1300
SPECIAL PRIVILEGES AND IMMUNITIES................1134
SPECIAL LAWSNone where general laws apply. .......................... .1136
SPEECH. Liberty of guaranteed ......................................1116
STAMP ACT. Enacted by parliament .................................... 33 Protests of colonists ...................................... 35 Repeal, effect of news...................................... 36
STANDING ARMIES. Dangerous to liberty ...................................... 463
STATE RIGHTS. Chisholm Case ........................................... 74, 89 Cherokee lands, controversies over.................... 89, 90, 99 Federalist, declaration concerning ......................... 74 Fletcher v. Peck ........................................... 89 Inherent right of people to regulate state government...... 1138 "Retained Sovereignty" ..................................74, 89 Secession, right of asserted ............................. 93, 441 State Sovereignty, origin of doctrine...................... 74 (28) Suit against state, dictum of Marshall concerning........... 74

INDEX.

697

STATE AID. Prohibited ................................................. 1306 Provisions of constitutions of 1861 and 1865......... .99, 501, 60S Unsafe provisions of constitution of 1868............ 118, 130, 724
STATES ATTORNEY ................................... 538, 635
STATE SCHOOL COMMISSIONER.........................1323
STATE TREASURER. Elected how ............................................... 1235 Fees and perquisites, none ................................. 1241 Office created ............................................. 388 Qualifications .............................................. 1240 Salary .....................................................1236
STATUTES. Amending law or section of code.......................... 1191 Appropriation bills ................................... 1184, 1187 Arms, manner of bearing, prescribed by....................1123 Bills of attainder prohibited................................ 1134 Borrowing money, form of laws for........................ 1305 Exempting from taxation void.............................. 1302 Ex post facto laws void.................................... 1134 Impairing obligation of contract void...................... 1134 Liberty of speech, curtailing void.......................... 1116 Local acts preserved ...................................... 1351 Local and special bills, notice of........................... 1190 Local bills, first and second reading of..................... 1182 Majority vote to pass...................................... 1189 One subject matter, only. ..................................1183 Ordinances of convention of 1877...................... 1064-1067 Retroactive acts void ...................................... 1134 Revoking grants, when permissible ......................... 1135 Signed by presiding officers ................................1188 Signed by governor ........................................ 1197 Social status of citizen, not subject matter of................ 1119 Special law, none -where general applies.................... 1136 Taxation, exemptions from ................................ 1302 Title of, matter different from.............................. 1183 Void, if repugnant to constitution......................... .1137
STAY LAWS. Legislative acts ............................................ 103a Ordinances of convention of 1865..........................103a Provisions in constitution 1777.............................. 285 Provisions of convention of 1868........................... 118
STEPHENS, ALEXANDER H......................80, 92, 93, 112
STREET RAILWAYS IN CITIES............................ 1194

INDEX.
SUPERIOR COURTS. See also JUDGES OF THE SUPERIOR COURTS; CLERKS of SUPERIOR COURTS.
Additional judges allowed .................................. 1253 Appeal from one jury to another............................ 1261 Appeals from ordinary .................................... 1266 Appellate jurisdiction ...................................... 1259 Certiorari power .......................................... 1260 City court judge, may preside in, when...................... 1265 Civil jurisdiction .......................................... .1258 Concurrent jurisdiction with Inferior Courts. ...........
..................................... .391, 418, 421, 427, 533, 630 Criminal jurisdiction, concurrent with County Courts. ....... 624 Equity merged with law ................................ 117, 1257 Judge pro hac vice......................................... 1264 Judgment without a jury. ................................. 1363 Jurisdiction exclusive ...................................... 1256 Mandamus and prohibited, writs of........................ 1260 New trials power .......................................... 1261 Powers, statutory (1868) .................................... 746 Scire facias .............................................. .1260 Sessions ................................................... 1263 Terms of judges ........................................... 1255 Writs, all necessary to execute powers...................... 1260
SUPREME COURT. See JUSTICES OF SUPREME COURT. Affirmance by disagreement (1868) .......................... 744 Cases disposed of, when .................................... 1249 Cases transferred to court of appeals. ..................... 1253 City Courts, bills of exceptions from........................ 955 Creation ................................................. 86, 427 Decisions, have force as law............................... 86 Disposition of cases ........................................ 1249 Disqualification of judges .................................. 1246 Divisions, may sit in two................................... 1251 Jurisdiction only appellate ................................. 1248 Number of justices ........................................ 1244 Number of justices increased. ......................... 1080, 1251 Quorum ................................................... 1251 Sits at seat of government................................. 1248 Terms ..................................................... 1248
SURVEYOR-GENERAL ...................... ....388,518,615,737
TASWEEL-EANGMEADE. Quotation from ........................................... 58
TAXATION. See also TAXATION without REPRESENTATION. Annual tax, condition of right of cities and counties to issue bonds ................................................... 1310 Classification of occupations, &c..................... 1299 (35-31) Corporations, right to tax, not to be surrendered............ 1303 Counties, taxing powers limited............................ 1307

INDEX.

699

TAXATION--Continued. Dog tax ................................................... 1299 Exemptions from .......................................... 1300 Local tax for schools......................................1325 Occupation Tax ....................... .1126(20-22), 1299(25-31) Poll tax, applied to schools............................... .1324 Poll tax limited ........................................... 1301 Power delegated to towns and cities. ...................... .1308 Purposes of state taxation .................................. 1297 Purposes of county tax....................................1308 Rate, limited to five mills................................... 1298 Right of, sovereign and inalienable.......................... 1208 Right of, granted only by people.......................... 1208 Schools maintained by. .................................... .1322 Uniform and advalorem ................................... 1299 Voter must pay ........................................... 1142
TAXATION "WITHOUT REPRESENTATION. Bill of Rights declares illegal. .............................. 215 Colonial Assembly, declaration concerning. ............... .34, 43 Joseph Habersham, declaration concerning................. 35 Parliament asserts right to tax colonies.................... 33 Unrepresented parishes of Georgia. ........................ 40
TITLE. No matters in body different from......................... 1183
TREASON, PROVED HOW ................................. 1128
TRIAL BY JURY.. ...................................-.1106, 1291
UNIFORM OPERATION OF LAWS. See GENERAL LAWS.
UNIFORMITY OF COURTS ................................. 1273
UNION OF STATES, PERMANENT......................... 682
UNITED STATES, CONSTITUTION AND LAWS SU PREME ..................................................1348
UNIVERSITY OF GEORGIA. Act authorizing establishment. ............................. 64 Authority to maintain...................................... 1327 Income, derived how ........................................ 1327
VENUE OF ACTIONS. Change of by Superior Court. ... ^ ........................... 1290 Civil cases, generally ...................................... 1289 Criminal cases ...................................... 1289(15-18) Divorce cases .............................................1284 Equity cases ............................................... 1286 Joint defendants ...........................................1287 Land titles ................................................ 1285 Maker and endorser ...................................... .1288 New counties ......................................... .1289(19) Residence of defendant as fixing. ........................... 1289

700

INDEX.

VESTED RIGHTS, INVIOLATE.............................1351?
VETO, POWER. OF. Colonial governors ...................................... 18, 37 Governor, under existing- constitution........................ 1231 English sovereign, desuetude of right. ..................... 61 "Pocket veto" ......................................... .1231(1) Royal, of colonial acts..................................... 37, 61
VOID BONDS. Prohibition of payment..................................... 131^ Reconstruction era, responsible for.......................... 120
VOTERS, QUALIFICATIONS OF ...................... 1140-114^
WAR DEBT. Contracts aiding rebellion, declared void............... 103a, 786Ordinance repudiating .................................... 103a Restoration of political rights, conditioned upon repudiating. ,103a
WEBSTER, DANIEL. On separation of powers.................................. 5S
WEREAT, JOHN ............................................ 66
WHIPPING. Forbidden as punishment for crime. ......................... 1108
WIFE'S SEPARATE ESTATE................................ 1203
WILMOT PROVISO ......................................... 91
WIRT, WILLIAM. Counsel of Cherokee Indians................................ 89
WITNESSES. See also ACCUSED PERSONS, RIGHT OF. Compulsory process for..................................... 1106 Confrontation with ......................................... 1106 Lists furnished on demand..................................1106 Treason, number necessary to conviction of................1129
WRIGHT, JAMES. Appointed governor ....................................... 32 Arrested ................................................... 52 Banished ................................................... 65
YAZOO ACT. Act known as.............................................. 75 Constitutional provisions originating from. ................. 75 Pay of conspirators prohibited.............................. 375 Political effect of........................................... 77 Rescinding act ............................................ 75 Rescinding act declared unconstitutional .................. 89
YEAS AND NAYS IN GENERAL ASSEMBLY.... .1181, 1187, 1195