34 S.E.2d 863 | Ga. | 1945
Under the petition in this case, the court erred in ruling that mandamus was not available, and that certiorari was the petitioner's proper and exclusive remedy in attacking the failure of the county commissioners to grant a permit for a cemetery under the provisions of the act of 1910 (Ga. L. 1910, p. 130); and, since it appears that the petition was dismissed because the trial court was of the opinion that it was without jurisdiction to entertain the petition on its merits, and so held, and since this court is a court for the correction of errors, has no original jurisdiction, and can not pass upon questions on which no ruling expressly or impliedly has ever been made, or which under the ruling actually made could have been made by the trial court, the judgment dismissing the petition for lack of jurisdiction is reversed, and the case is remanded in order that the petition may be considered on its merits in accordance with the provisions of the Code, § 64-107 et seq.
2. The performance of judicial acts under authority conferred upon courts is judicial in character, while the performance of judicial acts under authority conferred upon other persons, boards, or tribunals is quasi-judicial. Just as the authorized acts and functions of courts may or may not be judicial in character, so the authorized acts and functions of other officers or bodies may or may not be quasi-judicial in character, according to whether or not the character and nature of the authorized function and the authorized manner and method of its performance are made so by competent authority.
3. The chief distinction between a legislative and judicial function is that the former sets up rights or inhibitions, usually general in character; while the later interprets, applies, and enforces existing law as related to subsequent acts of persons amenable thereto. An example of delegated legislative authority may be seen in many of the authorized functions of public-service commissions.
4. It has often been said in effect by various courts of the county that the basic distinction between administrative and judicial acts is that in the former case the law has prescribed and defined the duty to be performed with such precision and certainty as to leave no room for the exercise of judgment or discretion; whereas in the latter case the act to be done does involve the exercise of judgment or discretion. Burnam v.
Terrell,
(a) In determining whether or not a proceeding be judicial in character, the question hinges not on whether the parties at interest were in fact given opportunity to be heard, since an officer cannot clothe himself with unauthorized judicial powers by mere voluntary compliance with the forms of judicial procedure, but the test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.
(b) If a person or tribunal has the right under proper delegated authority to act in a judicial capacity, the character of *482
such a judicial procedure, when had as prescribed, is not impaired because under the law such tribunal might have had the alternative right to act ex parte without a trial, but refused to exercise such right. Daniels v. Commissioners of Pilotage,
5. Applying the foregoing principles of law to the facts presented by the present record as hereinbefore outlined, it does not appear that the quoted act of the General Assembly, giving the county commissioners in certain counties the power to grant or refuse permission to establish cemeteries outside the limits of incorporated towns, conferred upon such commission the duties and functions of a court, so that the writ of certiorari might issue from its action taken upon any such application. Rather does it appear from the meager terms of the statute, which fails to provide for notice or hearing, that, just as in Daniels v.Commissioners of Pilotage, supra, its action was "but merely entertainment and refusal of a request pertaining to the executive duties of the commission." As already stated, the fact that there was a trial, where none was authorized under the law, could not operate to change the nature and character of the procedure. See, as to the nature and character of acts which are merely administrative, Hallman v. Atlanta Child's Home,
6. The Code, § 64-101, provides as follows: "All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper performance, the writ of mandamus may issue to compel a due performance, *483 if there shall be no other specific legal remedy for the legal rights."
7. While the general legal import of the word mandamus implies superior power, and is used to require action when there has been inaction on the part of a public officer charged with a duty to act, and while the writ cannot ordinarily be employed to control a discretion vested in such an officer by directing what his action shall be, or in effect to reverse his action in the orderly exercise of such discretion, the exception to this general rule is where there is no other legal remedy available, and where there have been such an arbitrary and capricious use and such gross abuse of discretion as will in effect amount to a failure on the part of the officer to exercise his discretion at all. Board of Commissioners of Walton County v. Robinson,
8. The Supreme Court is a court for the correction of errors, and has no original jurisdiction. Code, §§ 2-3005, 24-3901. "It will not pass upon questions on which no ruling has ever been made by the trial judge." Bourquin v. Bourquin,
9. In accordance with the foregoing principles of law, the judgment of the trial court in dismissing the petition on general demurrer for the reason that certiorari and not mandamus was the only remedy which plaintiff might properly invoke, is reversed; and direction is given that the petition be considered on its merits, in accordance with the provisions of the Code, §§ 64-107-64-109, inclusive. These sections provide as follows: "Upon the presentation of an application for mandamus, if the mandamus nisi shall be granted, the judge shall cause the same to be returned for trial not less than 10 nor more than 30 days from said date; the defendant to be served at least five days before the time fixed for such hearing. If the answer to said mandamus nisi shall involve no issue of fact, the same shall be heard and determined in vacation, unless court shall then be in session, when it may be determined in the superior court." §§ 64-107. "If an issue of fact shall be involved in said cause, it shall be in order for trial upon the first day of the next term of the superior court as other jury causes are tried. If the superior court shall be in session, or shall be taking a recess at the time fixed for trial in the mandamus nisi, the same shall stand for trial at the then present term." § 64-108. "If an issue of fact shall be involved, it may be heard by the judge in vacation upon the consent of all parties." § 64-109.
Judgment reversed, with direction. Bell, C. J., Duckworth,Atkinson, and Wyatt, JJ., concur. *486