MCMILLIAN v. CITY OF ROCKMART., 242 Ga. 732, 251 S.E.2.d 259 (1978)
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Judgment affirmed. All the Justices concur, except Hill, J., who concurs specially.
Summary
Judgment affirmed. All the Justices concur, except Hill, J., who concurs specially.
Text
Stephen Malone, for appellee.Marson G. Dunaway, Jr., for appellants.
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,
In 1968 the City of Rockmart's charter was completely revised. Ga. L. 1968, pp. 3224-3261. The recorder's court was established and, there being no modern Act for appeals to the superior courts, it was provided that (Ga. L. 1968 at p. 3258) "The right of appeal to the Superior Court of Polk County from the recorder's court shall lie in the same manner and under the same procedure as generally prescribed for appeals from the Court of Ordinary [now Probate Court]."
Following the charter of the City of Rockmart, appellant took an appeal to the superior court. There the City of Rockmart challenged its own charter (a dangerous if not prohibited practice), saying in effect to this citizen: "You can't trust our city charter."
The superior court and this court find the charter provision attacked by the city to be invalid as a special law as to which provision has been made by a general law, to wit: the general law providing for certiorari, Code 19-101 et seq. Actually the charter provision simply provided for review by a different general law, to wit: the general law providing for appeals from the court of ordinary (now the probate court). Code 6-201. Since the majority have not seen fit to consider the question of whether a special law which chooses one general law over another is invalidated by the other general law, neither will I because this whole problem needs solution rather than further analysis of peculiarities.
What does one do after losing a case in an inferior judicatory, probate court, recorder's court, city council court, police court, magistrate's court, mayor's court, justice of the peace court, etc.)? [1] Appeal? Seek a writ of certiorari? Seek mandamus or prohibition? Seek an injunction? In Toole v. Edmondson & Seay,
1978
Notes:
1. According to the Third Annual Report of the Administrative Office of the Courts of Georgia, pp. 24, 28 (1975-1976), there are more than 2,350 of these courts (probate and courts not courts of record).
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