Ga. v. Sasser

• Decision Date: 26 March 1908
• Citation: 60 S.E. 997,130 Ga. 394
• Court: Georgia Supreme Court
• Parties: GEORGIA, F. & A. RY. CO. v. SASSER.

60 S.E. 997

130 Ga. 394

GEORGIA, F. & A. RY. CO.

v.SASSER.

Supreme Court of Georgia.

March 26, 1908.

Judges—Disqualification—Constitutional Law.

The act approved December 21, 1899 (Acts 1S99, 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 is providentially prevented from trying the case, is not repugnant to article 6, § 5, par. 1, of the Constitution, which provides that "in any county within which there is, 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."

(Syllabus by the Court.)

Action by Amelia Sasser against the Georgia, Florida & Alabama Railway Company, Judgment for plaintiff, and defendant brings error to the Court of Appeals, which certifies a constitutional question to the Supreme Court. Question answered.

Donalson & Donalson, F. T. Myers, and Pottle & Glessner, for plaintiff in error.

Russell & Hawes, for defendant in error.

EVANS, P. J. The following question was certified to the Supreme Court by the Court of Appeals: "Is the act of the General Assembly approved December 21, 1899 (Acts 1899, p. 48) purporting to confer authority upon the judge of a city court to preside in another city court when the judge of the latter court is disqualified, in conflict with paragraph 1 of section 5 of article 6 of the Constitution of the state of Georgia, which provides that 'in any county within which there is, 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, ' on the ground that said constitutional provision prescribed the exclusive method of obtaining a judge to preside in a city court in case of the disqualification of the judge thereof, and that it is not competent for the General Assembly to provide by statute another and different method?"

The argument advanced against the constitutionality of the act of 1899 is that the word "may" in the quoted clause of the Constitution should be construed "shall, " and that by the application of the maxim "Expressio unius est exclusio alterius, " only a judge of the superior court can preside in a city court in cases where the judge of the latter court is disqualified. The word "may" ordinarily denotes permission, and not command. Where the word "may, " as used in a statute, concerns the public interest or affects the rights of third persons, it will be construed to mean "must" or "shall." Birdsong v. Brooks, 7 Ga. 88; Weems v. Farrell, 33 Ga. 419. The public is concerned in the prompt administration of the law, and this constitutional provision, looked at as a delegation of power, will be construed to impose a duty on judges to preside for each other in cases of disqualification. But whether the word "may" shall be construed to have the effect of excluding other superior court judges from presiding out of their respective circuits in a given case, or of denying the Legislature the power of otherwise supplying the place of a disqualified city court judge, depends on the ascertainment of the constitutional scheme and purpose in this respect as revealed by the context. The Constitution (Civ. Code 1895, § 5839) declares that: "There shall be a judge of the superior court for each judicial circuit, whose term of office shall be four years, and until his successor is qualified. He may act in other circuits when authorized by law." Again the Constitution (Civ. Code 1895, § 5850) provides: "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." These paragraphs and that quoted in the question propounded by the Court of Appeals (Civ. Code 1895, § 5851) occur in the same article of the Constitution, and are to be construed in pari materia. If article 6, § 5, par. 1, of the Constitution be interpreted to mean that only a judge of the superior court may preside in the city court in case of the disqualification of the city court judge, then the judge of the city court (where there is a city court in the county where the case is pending) only could preside in the superior court where the judge of the superior court is disqualified, since the language of the Constitution is that the judge of the city court and of the superior court may preside in the courts of each other in case the judge of either court is disqualified to preside.

We do not think that it was the purpose of the framers of our organic law to exclude a judge of the superior court of another circuit from presiding in a case...