Cochran v. City of Rockmart

251 S.E.2d 259, 242 Ga. 732, 1978 Ga. LEXIS 1343

• Court: Supreme Court of Georgia
• Decided: November 30, 1978
• Docket: 34134, 34135
• Status: Published

Opinions

Marshall, Justice.

The appellants were convicted of municipal ordinance violations in the Recorder’s Court for the City of Rockmart. Under § 6.04 of the Rockmart City Charter (Ga. L. 1968, p. 3224), they appealed to the Polk Superior Court. Section 6.04 of the city charter allows appeals to be taken from the Recorder’s Court for the City of Rockmart to the Polk Superior Court; it further provides that an appeal to the superior court shall be a de novo proceeding.

The City of Rockmart, appellee herein, filed a motion to dismiss the appeal in the superior court. The city argued that § 6.04 of the Rockmart City Charter is unconstitutional under Art. VI, Sec. IV, Par V of the Georgia Constitution of 1976 (Code § 2-3305), which provides that superior courts shall have power to correct errors in inferior judicatories by writ of certiorari. The city also argued that § 6.04 of the city charter, a special law, is unconstitutional under Art. I, Sec. II, Par. VII of the Georgia Constitution of 1976 (Code § 2-207), because of the existence of a general law, Code Ann. § 19-101, providing that, "The writ of certiorari shall lie for the correction of errors committed by... corporation courts... or any inferior judicatory . . .” Thus, the city’s position is that under the State Constitution, a writ of certiorari is the exclusive method for securing review by the superior courts of decisions of inferior judicatories, such as recorders’ courts. The superior court agreed and entered an order dismissing the appeals. This appeal is from that order. We affirm.

In Maxwell v. Tumlin, 79 Ga. 570 (4 SE 858) (1887), this court faced the precise question which is involved in this appeal. Maxwell had brought suit in the City Court of Bartow County against Tumlin. Upon the overruling of his motion for new trial by the trial judge, Tumlin filed a bill of exceptions to the Bartow Superior Court under a provision of the Act creating the city court allowing judgments of the city court to be reviewed by the superior court upon bills of exception (the equivalent of our present-day appeal). On appeal from the superior court, this court held that under Art. VI, Sec. IV, Par. V of the Georgia Constitution and the predecessor of Code Ann. § 19-101, it was the intent of the framers of the State Constitution and of the General Assembly to provide the writ of certiorari as the exclusive means for securing review in the superior court from judgments of inferior judicatories.

"It is manifest from the constitution and from the statutes cited, that it was the intention of the framers of the constitution, and of the legislature, to provide the writ of certiorari to the superior courts to all persons dissatisfied with the judgments of inferior judicatories and who desire to have those judgments corrected by the superior court. The writ of certiorari is a constitutional as well as a statutory remedy. The legislature has provided by general law the manner and means for carrying out this constitutional provision. The only power and authority given by the constitution to the superior courts to correct errors in inferior courts, is by the writ of certiorari. The legislature has no power to provide other means than those prescribed in the constitution for correcting errors in inferior courts by the superior courts. Even if this were not true, the legislature having passed a general law on the subject of carrying cases from inferior courts to the superior courts by writ of certiorari, it had no power, under the constitution, to pass a special and different law for the county of Bartow.” Maxwell v. Tumlin, 79 Ga. 570, supra, p. 572.

Submitted October 13, 1978 Decided November 30, 1978 Rehearing denied December 19, 1978. Marson G. Dunaway, Jr., for appellants. Stephen Malone, for appellee.

Judgment affirmed.

All the Justices concur, except Hill, J., who concurs specially.