Payne v. State, 10787.

• Decision Date: 17 May 1935
• Docket Number: No. 10787.,10787.
• Citation: 180 Ga. 609,180 S.E. 130
• Parties: PAYNE. v. STATE.
• Court: Georgia Supreme Court

180 Ga. 609

180 S.E. 130

PAYNE.

v.STATE.

No. 10787.

Supreme Court of Georgia.

May 17, 1935.

Syllabus by the Court.

1. The Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the Constitution to a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the state or of the United States, and that do not involve the constitutionality of any law of the state or of the United States or any treaty.

2. Jurisdiction is not vested in the Supreme Court merely because a judgment is excepted to as being unconstitutional.

3. Section 4977 of the Civil Code of 1910, providing that a judgment of disbarment might be reviewed by the Supreme Court, was superseded by the constitutional amendment of 1916 (article 6, § 2, pars. 5, 9) defining the jurisdiction, respectively, of the Supreme Court and the Court of Appeals.

4. The present case is One falling within the jurisdiction of the Court of Appeals.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Proceeding wherein J. H. Payne was opposed by the State. To review the judgment, the first-named party brings error.

Transferred to the Court erf Appeals.

John H. Payne and L. H. Foster, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen, and J. Walter Le Craw, both of Atlanta, for the State.

BELL, Justice.

J. H. Payne, after being disbarred as a lawyer by the superior court of Fulton county, was reinstated upon condition that he would abstain from the use of intoxicating liquors and otherwise properly demean himself for the period of one year. Before the expiration of this period he was convicted, in the criminal court of Atlanta, of the offense of being intoxicated on a public highway; and because of this conviction his reinstatement was revoked on July 1, 1933. He carried the criminal case-by certiorari to the superior court, and, pending that cause, on February 5, 1935, he was granted a full pardon by the Governor; whereupon at his motion the certiorari was dismissed and his bond exonerated. Thereafter he presented to the judges of the superior court the evidence of his pardon, and moved for a relocation of the order of July 1, 1933, withdrawing his reinstatement as a member of the bar. Thefollowing order was passed: "Upon consideration of the foregoing motion by the court, in banc, it is adjudged that the pardon is of no effect on and has no relation to the order herein of July 1, 1933, of this court; and the said order is hereby affirmed; and it is therefore ordered that the within motion be and the same is hereby denied by a concurrence of all the judges." To this order Payne excepted. His bill of exceptions was made returnable to this court. The order was assigned as error upon the grounds that for various reasons stated the judgment was contrary to law and to the following provisions of the state Constitution: "Protection to person and property is the paramount duty of government, and shall be impartial and complete." Code 1933, § 2-102 (Const. art. 1, § 1, par. 2). "No person shall be deprived of life, liberty, or property, except by due process of law." Section 2-103 (Const, art. 1, § 1, par. 3). "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." Section 2-109 (Const, art. 1, § 1, par. 9). "He [the Governor] shall have power to grant reprieves and pardons, to commute penalties, remove disabilities imposed by...