16 S.E.2d 537 | Ga. | 1941
Jurisdiction of a writ of error which otherwise would be returnable to the Court of Appeals is not conferred upon the Supreme Court by reason of the fact that the plaintiff in error, defendant in the trial court, in the *725 answer contended that a decision of the Supreme Court is unconstitutional for that it is violative of paragraph 3 of section 8 of article 1 of the constitution of the United States.
Under article 6, section 2, paragraph 5, of the constitution of this State (Code, § 2-3005), this court can not entertain this writ of error unless it be a case in which the constitutionality of a law of the State is drawn in question. So far as pertinent to the issue here presented, that paragraph of our organic law above cited gives this court jurisdiction only "in all cases in which the constitutionality of any law of the State of Georgia or of the United States is drawn in question." We are asked to give to the words "any law of the State" in the sentence next above a meaning which would include any full-bench decision of this court which has not been formally reviewed, and upon such review overruled, in the manner pointed out in the Code, § 6-1611. As will be seen from a synopsis of the argument in support of that view, which is set forth at the beginning of this opinion, it rests primarily on the act of 1858, supra. That act, omitting the formal parts, is as follows: "Be it enacted, that from and after the passage of this act the decisions of the Supreme Court of this State, which may have been heretofore or which may hereafter be made by a full court, and in which all three of the Judges have or may concur, shall not be reversed, overruled, or changed; but the same is hereby declared to be, and shall be considered, regarded, and observed by all the courts of this State, as the law of this State, when it has not been changed by legislative enactment, as fully, and to have the same effect, as if the same had been enacted in terms by the General Assembly."
In a paper which exhibits much research and contains references to and extracts from many documents which illuminate the subject, read before the Georgia Bar Association, Honorable Joseph R. Lamar, who had theretofore graced the bench of this court and who was thereafter to adorn that of the highest court of the republic, traced the history of the establishment of the Supreme Court *727 of Georgia. Report of the 24th Annual Session of the Georgia Bar Association, 1907, pages 85 et seq. It is there made plain that one of the prevailing reasons for its creation was to secure certainty and uniformity in the administration of the law, and to prevent the confusion produced by contemporary contradictory decisions. The most salutary rule that leads to that desired end is that known as stare decisis.
The act of 1858, supra, did not undertake to enact into one statute all of the decisions of this court in the sense that this was done by the General Assembly in adopting the Code (seeCentral of Georgia Railway Co. v. State,
The act of 1858, supra, contains no exception as to those decisions which the court itself may review and overrule. The codifiers of our first Code inserted a provision that "A decision concurred in by three Judges can not be reversed or materially changed, except *728 by a full bench, and then after argument had, in which the decision by permission of the court is expressly questioned and reviewed, and after such argument the court in its decision shall state distinctly whether it affirms, reverses or changes such decision." Code of 1863, § 210. This was carried forward in the Code of 1882 as section 217. The act reorganizing this court under the constitutional amendment of 1896 made only the following reference to that section: "That the law now embodied in section 217 of the Code of 1882, which declares that a decision concurred in by three Judges can not be reversed or materially changed, except by a full bench, be and the same is hereby amended by striking therefrom the words just quoted, and inserting in their stead the following words to wit: `A decision rendered by the Supreme Court prior to the first day of January, 1897, and concurred in by three Judges, or Justices, can not be reversed or materially changed except by the concurrence of at least five Justices.' Unanimous decisions hereafter rendered by a full bench of six Justices shall not be overruled or materially modified except in the manner pointed out in said section, and then only with the concurrence of six Justices." Georgia Laws 1896, p. 42-45, sec. 5. This is now embodied in the Code of 1933, § 6-1611. So that to-day a decision is not so binding but that it may be reviewed and overruled in the manner pointed out.
The position of counsel for the plaintiff in error would seem to logically lead to this: Either that this court, notwithstanding the provisions of the Code, § 6-1611, can not review and overrule and refuse to follow a prior decision because of the act of 1858; or else that this court has jurisdiction of a writ of error such as that in the instant case, to wit, a suit for damages and nothing else, on the ground that the pleadings attack as unconstitutional a prior decision of this court, treating such decision as a law of the State within the meaning of the constitution, art. 6, sec. 2, par. 5 (Code, § 2-3005), although this court has the power not to follow the decision complained of, or not to treat it as law, if in its judgment it should upon review be overruled. The phrase "any law of the State," as used in the constitutional provision cited above, means a legislative enactment. It has no reference to such a "law" as the court itself laid down and which it may ex proprio vigore alter, amend, or repudiate and declare no longer to be binding as a precedent. If any *729 other view were to prevail, it would in our opinion be necessary to ascribe to the words "any law of the State of Georgia" a significance never contemplated by those who sponsored and framed the amendment to the constitution containing the provision in which they occur, or by the legislators who submitted it to the people for their rejection or ratification, or the voters who adopted it.
Transferred to the Court of Appeals. All the Justicesconcur.