Ivey v. State

• Decision Date: 26 November 1900
• Citation: 37 S.E. 398,112 Ga. 175
• Parties: IVEY v. STATE.
• Court: Georgia Supreme Court

37 S.E. 398

112 Ga. 175

IVEY v. STATE.

Supreme Court of Georgia

November 26, 1900

Syllabus by the Court.

1. The court created by the act of August 14, 1885, "to establish the city court of Macon," etc., was in all substantial respects a "like court" to the city court of Atlanta as it existed on the date of the ratification of the present constitution.

2. Construing all together the provisions of that act, the court thereby created was established in the city of Macon.

3. It follows that the supreme court has jurisdiction of bills of exceptions sued out to review judgments of the city court of Macon.

4. Neither paragraph 1 of section 5, art. 6, of the constitution (Civ. Code, § 5851), 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. When, therefore, a superior court judge undertakes to preside in a case pending in a city court, which the judge thereof is qualified to try, the so-called trial is a nullity, and the result of it absolutely void.

Error from city court of Macon; W. D. Nottingham, Judge.

Henry Ivey was convicted of crime, and brings error. Reversed.

John R Cooper and Marion W. Harris, for plaintiff in error.

Robt. Hodges, Sol. Gen., for defendant in error.

SIMMONS C.J.

1, 2 3. This case arises upon a bill of exceptions from the city court of Macon. When the case was called, the solicitor general moved to dismiss it upon the ground that this court had no jurisdiction to entertain a writ of error from the city court of Macon because--First, that court, established by the act of August 14, 1885 (Acts 1884-85, p.470), was not a "like court" to the city court of Atlanta or that of Savannah; and, second, the act establishing the court did not locate it in the city of Macon. The motion to dismiss was reserved. After reargument of the motion by counsel interested in other cases pending here from the city court of Macon, we have come to the conclusion that the grounds of the motion to dismiss are not well taken. The motion is therefore denied.

Under the constitution of this state, writs of error lie to this court from the superior courts of the state, and from "the city courts of Atlanta and Savannah and such other like courts as may be *** established in other cities." We have examined the act creating the city court of Macon and the act creating the city court of Atlanta, which was in force at the time of the adoption of the present constitution. Without the use of parallel columns, and without going into details, we will simply state that we think the acts are substantially alike. There is, of course, some difference in detail; but the courts established are, in constitution, practice, and procedure, substantially the same. We think that the constitution, by the expression "like courts," does not mean courts identical in all respects. It is sufficient if the court established be substantially like the courts of Savannah and Atlanta, or either of them.

The gravest doubt is raised by the second ground of the motion to dismiss. This court has held in several cases that a city court, to come within the clause of the constitution above quoted, must be located in a city; and the question is whether the act establishing the city court of Macon, taking all of its provisions together, can be so construed as to show an intention to establish the court in the city of Macon. It was argued that the act itself requires us to construe it to the contrary, because the forty-fourth section of it provides that the county commissioners of the county shall provide a suitable place for the holding of the court. The solicitor general argued that this shows that the court was not located in the city of Macon, and that under it the commissioners had power to locate the court outside the city of Macon, in the county of Bibb, over the whole of which county the court had jurisdiction. We think that the act will not bear that construction. The board of commissioners of Bibb county, under the act creating the board, have control of county affairs and public buildings. It is the duty of the commissioners to provide suitable accommodations in the court house for the public officers of the county. When this court was established there may have been no suitable place prepared in the court house for holding the court. It may have been that the ordinary, the superior court, the clerk and the sheriff occupied all of the offices in the court house which had been properly furnished; and it may have been that the superior court occupied the court room all of the time, as at that time there was sufficient litigation to keep the superior court engaged nearly all of the year. If this was true, the legislature and the draftsman of the bill must, through the representatives of Bibb county, have had knowledge of it. This section of the act may therefore have been placed in it in order to compel the commissioners to provide a suitable place in the court house for the newly-established court, which was to be a city court. Or the clause may have been placed in the act in order that there might be no doubt as to the authority or as to the duty of the commissioners to provide a place for holding the court. It was a wise provision to insert in the act, and was not intended, in our opinion, to give the commissioners power to provide a place for holding the court outside of the court house and of the city. While the constitution of this state requires this court to declare unconstitutional all acts of the legislature which are so, the power is exercised with hesitation and reluctance. This court hesitates to declare that a co-ordinate branch of the state government has violated the constitution, except where it is its manifest duty to do so. If the language of the statute under consideration is ambiguous or lacks precision, or uses one word when another would express the manifest intention of the legislature, the intended meaning must be sought by this court to aid it in construing the act. The court will always adopt that construction which will render the act constitutional, rather than a construction which will make it unconstitutional. It will also look at all the provisions of the act which show the intention of the legislature. Applying these rules to the act now under consideration, we think it is manifest that the legislature intended to establish a city court in the city of Macon according to the constitution. It is true, the title of the act is "An act to establish the city court of Macon, in and for the county of Bibb; to define its jurisdiction and powers; to provide," etc.; and the enacting clause declares that "the city court of Macon is hereby established and created with civil and criminal jurisdiction over the whole county of Bibb." It is also true that the act nowhere expressly provides that the court is to be located within the city of Macon. The legislature must necessarily have known that no city court could be established unless it was located in the city, and we will strive to avoid construing the act as an attempt to violate the constitution. The fair inference, therefore, is that the preposition "of" was used as being synonymous with the...