Thomas v. Austin

• Decision Date: 24 March 1898
• Citation: 103 Ga. 701,30 S.E. 627
• Parties: THOMAS. v. AUSTIN, Sheriff.
• Court: Georgia Supreme Court

30 S.E. 627

103 Ga. 701

THOMAS.

v.AUSTIN, Sheriff.

Supreme Court of Georgia.

March 24, 1898.

Constitutional Law—Local Act — City Court.

1. The act of the general assembly embodied in section 4270 et seq. of the Civil Code for the establishment of a city court "upon the recommendation of the grand jury of any county having a population of ten thousand or more, where a city court does not now exist, " is not a general law.

2. The local act approved December 13, 1893 (Acts 1893, p. 373), for the establishment of a city court for Dekalb county, is not in violation of paragraph 1, § 4, art. 1, of the constitution of this state, which provides that no special law shall be enacted in any case for which provision has been made by an existing general law.

(Syllabus by the Court.)

Error from superior court, Dekalb county; J. S. Candler, Judge.

Petition by Reuben Thomas for a writ of habeas corpus directed to H. C. Austin, sheriff of Dekalb county. Writ denied, and petitioner brings error. Affirmed.

W. W. Braswell, for plaintiff in error.

W. T. Kinsey, Sol. Gen., C. W. Smith, H. L. Parry, and R. R. Arnold, for defendant in error.

LEWIS, J. The plaintiff, Reuben Thomas, sued out a petition for habeas corpus before the judge of Dekalb superior court, alleging that he was illegally deprived of his liberty by H. C. Austin, sheriff of said county; that he was arrested by the sheriff upon a pretended warrant issued by H. L. Parry, judge of the city court of Dekalb, which warrant was based upon a pretended accusation purporting to be sworn out in said city court; that said Parry had no authority to issue said warrant, and that the same was a nullity, for the reason that the act of the legislature approved December 13, 1893, establishing said city court, is in violation of article 1, § 4, par. 1, of the constitution of this state, which declares, "Laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law." Upon the hearing of the case the judge of the superior court denied the petition, and ordered that the prisoner, Reuben Thomas, be remanded to the custody of the sheriff. To this judgment, exception was taken.

The sole question presented by the record in this case is whether or not the local act establishing the city court of Dekalb (Acts 1893, p. 373) is in violation of that provision in the state constitution above mentioned. It is insisted by counsel for plaintiff in error that the act of the legislature embodied in section 4270 et seq. of the Civil Code for the establishment of a city court upon the recommendation of the grand jury of any county having a population of 10, 000 or more, where a city court does not now exist, is a general law, and that, therefore, the local act of 1893 creating a city court for Dekalb county is unconstitutional, because provision for such court has been made by an existing general law. The constitution declares that "laws of a general nature shall have uniform operation throughout the state." There have been many decisions of this court defining what is a general law, within the meaning of this constitutional provision. In the case of Mathis v. Jones, 84 Ga. 804, 11 S. E. 1018, what is known as the "Fence Law" was declared to be a general law, and in that case it was therefore held that a local act for "no fence" in a certain militia district was unconstitutional. On page 808, 84 Ga., and page 1019, 11 S. E., of that case, Chief Justice Bleckley said, "The generality here spoken of is territorial generality." See, also, Thomas v. State, 92 Ga. 6, 18 S. E. 44. In Crabb v. State, 88 Ga. 584, 15 S. E. 455, the local option liquor law was declared a general law, and therefore a local act to prohibit the sale of liquor in a certain county was unconstitutional. On page 587, 88 Ga., and page 456, 15 S. E., Justice Lumpkin, in delivering the opinion, said: "It is true that section 9 of this act enacts that no election shall be held under its provisions in any county or other place where the sale of spirituous liquors is already prohibited by high license, local option, or other legislation, so long as these local laws remain of force; but the act nevertheless undoubtedly contemplates that it may operate in counties or other localities where prohibition existed at the time of its passage, whenever such prohibition shall cease to exist, and therefore the act may and does apply to every county and section of the state." To the same effect is the caseof Matrox v. Knox, 96 Ga. 403, 23 S. E. 307, which rules that the road law is a general law, although there may be some counties with a local system to which the general law does not apply so long as the local system exists. See, also, Haney v. Commissioners, 91 Ga. 770, 18 S. E. 28. In Brown v. State, 73 Ga. 38, It was decided that the act of 1881, imposing a special tax on the sale of liquors, was a general law, because it applied to every locality where liquor is sold. In Butler v. State, 89 Ga. 821, 15 S. E. 763, the act of August 11, 1891, prohibiting the sale of liquors within three miles of any church or school house, was declared a general law...