Barnard v. DuPree

149 Ga. 796 | Ga. | 1920

Beck, P. J.

(After stating the foregoing facts.) The constitutionality of section 28 of the act approved August 20, 1913 (Acts 1913, p. 145), entitled “An act to carry into effect in the City of Atlanta the provisions of the amendment to paragraph 1 of section 7 of article 6 of the constitution of the State of Georgia, ratified October 2d, 1912,” etc., was attacked on the grounds that it was a special law with reference to matters which are covered by a general law; and that it conferred powers of a judicial character upon the clerk of the municipal court. Section 28 of the act in question reads as follows: “Be it further enacted by the authority aforesaid, that affidavits’ for attachment and garnishment may be made before any officer authorized by law to administer oaths, including commercial notaries public; but all bonds in such proceedings issuing out of said court shall be approved by the clerk of said court, or his deputies, and all attachments and summons of garnishment shall be issued by said, clerk or his deputies, and bear test in the name of the chief judge of said court.” It is insisted that the provision authorizing the clerk to issue attachment and summons of garnishment, and to attest the affidavits made before him for the purpose of having such attachment and summons issue, confers upon .-the clerk of the municipal court powers that are judicial in their character. In the case of McWilliams v. Smith, 142 Ga. 209 (82 S. E. 569), it was said: “The act of August 20, 1913 (Acts 1913, p. 145 et seq.), is not violative of art. 1, sec. 4, par. 1, of the constitution of 1877 (Civil Code of 1910, § 6391), as being a special law enacted in a case for which-provision had previously been made by an existing general law. The constitutional amendment of 1912 (Acts 1912, p. 30), which was adopted by the people, provided for the enactment of a law creating a court or courts or system of courts in cities of twenty thousand or more inhabitants.” In view of the ruling there made and what was said in the course of the opinion, we conclude that the act under review here is not a special law in a case for which provision has been made by a general law.

As to the other ground of the exception to the act, we do not think the contention is sound that the duties imposed upon the clerk of the municipal court and the power there given him as to issuing attachment and summons of garnishment and taking affidavits are judicial in their character. Such duties may have some elements of a judicial nature, but they are more truly ministerial in character.

The court did not err in overruling the certiorari.

Judgment affirmed.

All the Justices concur.