Ormond v. Ball

• Decision Date: 11 August 1904
• Citation: 48 S.E. 383,120 Ga. 916
• Parties: ORMOND v. BALL.
• Court: Georgia Supreme Court

48 S.E. 383

120 Ga. 916

ORMOND v. BALL.

Supreme Court of Georgia

August 11, 1904

Syllabus by the Court.

1. The duties of a justice of the peace under the law of this state are not of so varied and complex a nature as they were at common law. In this state he is a civil magistrate, but has duties also imposed upon him in connection with the administration of the criminal law.

2. His civil jurisdiction is prescribed by the Constitution, and by statute he is authorized to issue warrants against persons accused of crime, and to hold courts of inquiry to examine into the accusations against them.

3. The court of inquiry and the constitutional court are, although presided over by the same officer, separate and distinct courts. The civil court is held at "fixed times and places"; the court of inquiry, at such time as the justice may determine. The constitutional court is always in existence. The statutory court of inquiry is organized for a particular purpose, and passes out of existence as soon as this object is accomplished.

4. The issuing of a criminal warrant by a justice of the peace is a judicial act, performed by a judicial officer, and is the beginning of a judicial proceeding, but it is not the act of a court.

5. The court of inquiry does not come into existence until the accused has been "legally arrested and brought before" the magistrate and a court organized for the purpose of examining into the accusation.

6. A justice of the peace cannot issue a special warrant returnable only before himself, but a warrant issued by him must be made returnable before himself or "some other judicial officer."

7. The officer to whom the warrant is delivered for execution has some discretion with reference to the judicial officer before whom the warrant shall be returned, and the magistrate who issues it cannot become a court if the warrant should not be returned before him.

8. A judicial officer cannot punish for contempt unless the contempt is of the court over which he presides.

9. A justice of the peace may attach for contempt a person in contempt of the constitutional court over which he presides and punish him by imposing a fine of not more than $5, and imprisonment for not exceeding five hours.

10. He may exercise like authority, and perhaps impose a similar punishment, for a contempt of a court of inquiry over which he is presiding.

11. But the refusal to surrender to an arresting officer, upon a warrant lawfully issued, one accused of crime, cannot be dealt with as a contempt of court by a justice of the peace who has done nothing more than issue the warrant.

12. If for such a refusal a justice of the peace, acting under authority supposed to have been conferred upon him as the presiding officer of the court created by the Constitution issues a rule for contempt, prohibition will lie to enjoin its further progress.

13. The common-law offense of refusal by an officer to execute a warrant delivered to him for that purpose is indictable in this state, and, under the statutes of this state, any person interfering with such an officer while attempting to execute the warrant is likewise indictable.

Error from Superior Court, Fulton County; J. H. Lumpkin, Judge.

Application of J. W. Ball for writ of prohibition to W. E. Ormond. From an order granting the writ, defendant brings error. Affirmed.

Simmons C.J., dissenting.

Arnold & Arnold, for plaintiff in error.

J. L. Mayson and Wm. P. Hill, for defendant in error.

COBB, J. (after stating the foregoing facts).

The office of justice of the peace is one both ancient and honorable, and comes to us from the common law. The duties imposed upon this officer by the common law and by statute were of a varied and complex nature. While we have retained the name and the office, the duties of a justice of the peace under our law are by no means as numerous as they were in England. Under our law he is a civil magistrate, and he has also duties imposed upon him in connection with the administration of the criminal law. He is recognized by the Constitution as an officer clothed with judicial powers. Civ. Code 1895, § 5831. His jurisdiction as a civil magistrate is fixed by the Constitution. Civ. Code 1895, § 5856. The authority of a justice of the peace in reference to the administration of the criminal law is derived, not from the Constitution, but from statutes. He is authorized to issue a warrant for the arrest of an offender against the penal laws. Pen. Code 1895, § 882. He has authority to "hold a court of inquiry to examine into an accusation against a person legally arrested and brought before him." Pen. Code 1895, § 906. As a civil magistrate, he is required to hold his court monthly at fixed times and places. Civ. Code 1895, § 5856. As the judge of a court of inquiry, he may hold the court at such time as shall be determined by him. Pen. Code 1895, § 906. The justice of the peace court, or the justice's court, as it is commonly called, which sits monthly at fixed times and places for the transaction of civil business, is one court, and a court of inquiry, organized for the purpose of examining into an accusation against a person arrested for the violation of the penal laws, is a separate and distinct court, notwithstanding they may be presided over by the same individual. The justice of the peace, who is elected by the people of the district, or the commissioned notary public, who has all the powers of a justice of the peace so elected, may hold a court for the trial of a possessory warrant case, or a court for the trial of a forcible entry and detainer case; but such courts are in no sense the justice's court of the district, but special courts, with limited jurisdiction, brought into existence for the determination of the particular case, and passing out of existence when the final judgment has been rendered. So it is when the justice of the peace holds a court of inquiry--a court connected with the administration of the criminal law; the court comes into existence in the time and manner prescribed by the statute, and is organized for a specific purpose, and when this object is accomplished the court goes out of existence. The justice of the peace, as a constitutional officer, has full authority, when sitting at the time and place fixed by law, to deal with all matters of a civil nature within his jurisdiction; and, when so sitting, neither he, nor the court over which he presides, has any jurisdiction whatever in reference to any matter connected with the administration of the criminal law. His authority to deal with such matters as a judicial officer is derived from the statute giving him power to issue warrants, and his power to hold a court having jurisdiction of such matters is also derived from the statute which recognizes as still existing the common-law court of inquiry organized for the purpose of examining into an accusation against one duly arrested under the penal laws. He can no more exercise the criminal jurisdiction vested in him by statute when he is presiding as the judge of the constitutional court, than he can exercise civil jurisdiction vested in him by the Constitution at a court of inquiry held at such time and place as he may fix. His authority to hold a court of inquiry is limited. The court of inquiry does not come into existence until a person is "legally arrested and brought before him." Then, and not till then, does the court of inquiry come into existence.

But it may be said that the issuing of the warrant is a judicial act. This is true, and it has been held that the making of an affidavit upon which a warrant is to be issued is the beginning of a judicial proceeding. See Herring v State, 119 Ga. 709, 46 S.E. 876. But the performance of a judicial act does not necessarily make the person performing it a court. Judicial acts are performed by ministerial officers. When the sheriff determines whether he will accept an affidavit of illegality, he passes judicially upon the question whether or not the grounds of the affidavit are meritorious; but, of course, the sheriff is not, when so doing, a court. The clerk of the superior court, or a commissioned notary public, who takes an acknowledgment of a deed, passes judicially upon the question as to whether or not the deed has been executed in the manner and form required by law; but the performance of this judicial act does not make either of these officers a court. Illustrations might be multiplied. It does not necessarily follow that, because a judicial act is performed by a judicial officer, he was at the time a court. So, while justices of the peace and other judicial officers who are...