South-Eastern Underwriters Ass'n v. Cravey

• Decision Date: 09 February 1961
• Docket Number: No. 21151,SOUTH-EASTERN,21151
• Citation: 118 S.E.2d 471,216 Ga. 599
• Parties: UNDERWRITERS ASSOCIATION v. Zack D. CRAVEY, Insurance Commissioner.
• Court: Georgia Supreme Court

Page 471

118 S.E.2d 471

216 Ga. 599

SOUTH-EASTERN UNDERWRITERS ASSOCIATION v. Zack D. CRAVEY, Insurance Commissioner.

No. 21151.

Supreme Court of Georgia.

Feb. 9, 1961.

Syllabus by the Court

The provisions of the act of 1959 (Ga.L.1959, pp. 255, 262), authorizing an appeal to the Superior Court of Fulton County, do not offend the constitutional provision that '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.' Constitution, Art. I, Sec. I, Par. XXIII (Code, Ann. § 2-123).

South-Eastern Underwriters Association, doing business as Georgia Inspection and Rating Bureau, filed an appeal in Fulton Superior Court from an order of Honorable Zack D. Cravey, as Insurance Commissioner of Georgia. The order excepted to approved certain rates adjusted downward by the bureau, and disapproved an adjustment upward in certain rates. The judge of the superior court on his own motion dismissed the appeal, his order reciting in part: 'The language of the Act of 1959 [Ga.L.1959, pp. 255, 262] is exceedingly broad, it providing that on such appeal this Court shall affirm, reverse, or modify the Commissioner's ruling, order, or decision appealed from. In the opinion of the Court, this is equivalent to a direction by the General Assembly to the Court to make rates; in the opinion of the Court, this is a legislative function which the courts are neither authorized nor required under our system of government to exercise.'

The exception is to the order dismissing the appeal.

Robert S. Sams, Henry B. Troutman, Jr., Troutman, Sams, Schroder & Lockerman, Atlanta, for plaintiff in error.

Eugene Cook, Atty. Gen., F. Douglas King, Asst. Atty. Gen., Atlanta, for defendant in error.

HEAD, Presiding Justice.

The able trial judge correctly ruled that it is the duty of every court to inquire into its jurisdiction. He likewise correctly stated that rate making is legislative in character. He erred in the conclusion that the right of appeal to the Superior Court of Fulton County from findings or orders of the State Insurance Commissioner is equivalent to a direction by the General Assembly to the court to make rates.

In the present case the applicable rules of law with reference to appeal are set forth in subsections 3, 4, and 5 of section 17A of the act of 1959 (Ga.L.1959, pp. 255, 262). (See an act approved March 8, 1960, entitled 'Georgia Insurance Code of 1960,' Ga.L.1960, pp. 289, 376, Code Ann. § 56-518b, which incorporates the above provisions of the 1959 act.) Subsection 4 of section 17A of the act cited provides that the Superior Court of Fulton County 'shall affirm, reverse or modify the Commissioner's ruling, order or decision appealed from.'

Counsel have not cited, and our search has not revealed, any decision by this court pertaining to the jurisdiction, duties, and powers of a Judge of the Superior Court of Fulton County where an appeal is filed pursuant to the provisions of the act of 1959. The Constitution of 1945 in Art. VI, Sec. IV, Par. IV (Code Ann. § 2-3904), with reference to the jurisdiction of the superior courts, directs that 'They shall have appellate jurisdiction in all such cases as may be provided by law.' This provision likewise appeared in the Constitution of 1877, Art. VI, Sec. IV, Par. IV. In DeLamar v. Dollar, 128 Ga. 57, 66, 57 S.E. 85, 89, this court said: 'The appellate jurisdiction of the superior court must be exercised, and can only be exercised, in such cases as are provided by law.'

The correct rule in most jurisdictions applicable to similar appeals is properly stated by the Supreme Court of Appeals of Virginia in Aetna Insurance Co. v. Commonwealth, 160 Va. 698, 719, 169 S.E. 859, 867, as follows: 'Our...