Persons v. Lea
| Citation | 207 Ga. 384,61 S.E.2d 832 |
| Decision Date | 10 October 1950 |
| Docket Number | No. 17200,17200 |
| Parties | PERSONS v. LEA et al. |
| Court | Georgia Supreme Court |
Eugene Cook, Atty. Gen., M. H. Blackshear, Deputy Asst. Atty. Gen., and Lamar W. Sizemore, Asst. Atty. Gen., for plaintiff in error.
Wm. G. Grant and Grant, Wiggins, Grizzard & Smith, all of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
The defendants in error brought proceedings in the nature of mandamus against the plaintiff in error, as Superintendent of Banks, to require him to issue a certificate approving a charter for the bank which they sought to establish, under the provisions of the Code, §§ 13-1701, 13-1702, authorizing the institution of such proceedings. On the trial of the case, the judge overruled the demurrers of the plaintiff in error and made the mandamus absolute. The only assignment of error argued and insisted upon in the briefs of counsel for the plaintiff in error is based upon the overruling of ground 3 of the general demurrer to the petition, which was as follows: 'Defendant demurs generally to the petition as a whole and specially to each and every paragraph thereof, for the reason that the same seeks to substitute the opinion, judgment, and discretion of the Superintendent of Banks of Georgia. The grant of a charter to a banking corporation has been, by article 3, section 7, paragraph 17 of the said Constitution of Georgia, § 2-1917, Ga.Code Ann., expressly made an executive function and power to the extent that sections 1 and 2 of article 16 of the act to regulate banking, approved August 16, 1919, and codified as sections 13-1701 and 13-1702 of the 1933 Code of Georgia, in so far as they seek to substitute the judgment, opinion, and discretion of the superior court for the judgment, opinion, and discretion of the superintendent of banks, are unconstitutional and void because they are in conflict with and in violation of article 1, section 1, paragraph 23, Ga.Code Ann. § 2-123, of the 1945 Constitution of the State of Georgia, which provides: 'The legislative, judicial and executive powers shall forever 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.'' Held:
1. The above ground of demurrer is too indefinite, to raise any question for adjudication. Carswell v. Wright, 133 Ga. 714, 718, 66 S.E. 905; Curtis v. Town of Helen, 171 Ga. 256, 257, 155 S.E. 202; Jordan v. State, 172 Ga. 857, 159 S.E. 235.
2. A constitutional...
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...Tobacco Sales Bd., 227 Ga. 384, 180 S.E.2d 737 (1971); Elinburg v. State, 227 Ga. 246(1), 179 S.E.2d 926 (1971); Persons v. Lea, 207 Ga. 384(2), 61 S.E.2d 832 (1950). Therefore, Charter is deemed to have waived its constitutional 2. In enumerations 12, 13 and 14 Charter contends the superio......
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...from the petition for certiorari did not begin to meet the requirement of the Supreme Court of Georgia for definiteness. Persons v. Lea, 207 Ga. 384, 61 S.E.2d 832. At this stage, the Supreme Court of Georgia could have denied certiorari on adequate state grounds. Where the highest court of......
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