The Constitution, Art. VI, Sec. IV, Par. VI (Constitution of 1945;
Code Ann.
§ 2-3906) confers unqualified power upon superior and city courts, not the legislature, to grant new trials. Art. I, Sec. I, Par. XXIII, of the Constitution (Constitution of 1945;
Code Ann.
§ 2-123) requires that “legislative, judicial and executive powers shall forever
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remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.” These constitutional clauses constitute insuperable barriers to any legislative control or interference with the courts in the exercise of their powers to grant new trials. If the legislature can qualify and restrict the power of the courts as it appears to have undertaken by Ga. L. 1959, p. 353, it could add additional qualifications and restrictions to the point of nullifying the unrestricted constitutional power of the courts which the Constitution limits only to the point that the grant of a new trial be “on legal grounds.” While the trial court did not rule upon the constitutionality of Ga. L. 1959, p. 353, and hence we are unable to do so here, yet a decision here requires a construction of that Act, and in making that construction the rule we must follow is that if it is susceptible of two meanings, one of which would render it unconstitutional and the other would render it constitutional, we must give it the latter construction.
Fordham v. Sikes,
Since, as pointed out above, if the Act be construed to be mandatory it would be legislative exercise of a purely judicial function and hence unconstitutional, but if it is construed to be merely directory and not mandatory, it would be constitutional, we apply the rule as stated in the foregoing decisions and construe the Act not to be mandatory but merely advisory. With this construction placed upon the Act, the judges may comply with it if they wish, but a failure to do so is not error and constitutes no grounds for reversing the judgment granting a new trial.
While the foregoing ruling requires a reversal of the judgment of the Court of Appeals, which held that since the judgment granting a new trial sustained the motion therefor which contained the general and some special grounds, failed to specify which grounds were sustained, the judgment was
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void, we think we should go further and point out that the entire 1959 Act is a nullity. The legislature has refused to adopt the “Annotated Code,” although urged to do so. This court has held in
Morgan v. Todd,
Judgment reversed.