Opinion
16473.
FEBRUARY 14, 1949.
Habeas corpus. Before Judge Guess. DeKalb Superior Court. October 16, 1948.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, and John E. Feagin, for plaintiff in error.
Frank Grizzard and Frank A. Bowers, contra.
Prior to the constitutional amendment (ratified June 8, 1937), confirming the act to create the Georgia State Highway Patrol (Ga. L. 1937, p. 1116), the Criminal Court of Fulton County had jurisdiction of all misdemeanor cases in Fulton County. The Criminal Court of Fulton County was not divested in part of its jurisdiction by the provisions of the amendment to the Constitution creating the Georgia State Highway Patrol, which conferred jurisdiction of certain misdemeanor cases on police courts and municipal courts in those counties not having a city or county court.
No. 16473. FEBRUARY 14, 1949.
Grady L. Gober was charged with operating a motor vehicle upon the public streets of the City of Atlanta while under the influence of intoxicating liquors. He waived trial by a jury, and his trial in the Recorder's Court of the City of Atlanta resulted in a fine of $200, or in default of the payment of the fine he was required to work "on the streets or public works of said city 60 days." Thereafter Gober filed his petition for a writ of habeas corpus against H. H. Gibson (plaintiff in error), in which it was alleged: The respondent Gibson is illegally detaining the petitioner in the city prison of the City of Atlanta, the respondent being the superintendent of the prison. The cause of the illegal detention is a sentence imposed upon the petitioner by the Recorder of the City of Atlanta, charging him with the offense of operating an automobile under the influence of intoxicating liquors. The offense is fully covered, and made penal, under the laws of Georgia, and was at the time of the alleged offense. The City of Atlanta was without authority to try the petitioner for such offense, there being at the time of the purported trial a duly constituted county court of Fulton County, to wit, the Criminal Court of Fulton County, with authority to try the petitioner for such offense. For the reasons stated, the purported sentence imposed upon him is null and void.
The writ was duly issued by the Judge of the Superior Court of the Stone Mountain Circuit. Gibson filed a response, in which he admitted that the petitioner was being detained in the city prison of the City of Atlanta, located in DeKalb County, pursuant to a sentence imposed by the Recorder of the City of Atlanta, for the offense of operating an automobile under the influence of intoxicating liquors. He admitted that the offense was fully covered under the penal laws of the State of Georgia, but denied that the Recorder of the City of Atlanta was without authority to try the petitioner for such offense. He denied the allegations of the petition that there was a duly constituted county court, to wit, the Criminal Court of Fulton County, with authority to try the petitioner as alleged, and he denied that the sentence imposed by the Recorder of the City of Atlanta was null and void. After the hearing, an order was entered sustaining the writ of habeas corpus, and the petitioner was released from the custody of the respondent. The exception is to the order releasing the petitioner.
In the brief of counsel for the plaintiff in error it is stated: "It is apparent . . that the sole question involved in this appeal is: was there a city or county court in Fulton County, Georgia, at the time of this trial within the meaning of the constitutional provision [Constitution, art. 6, sec. 6, par. 2; Code, Ann., § 2-4102]?" This constitutional provision is in part as follows: "The court of ordinary shall have jurisdiction to issue warrants, try cases, and impose sentences thereon in all misdemeanor cases arising under the act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws, . . in all counties of this State in which there is no city or county court, provided the defendant waives a jury trial. Like jurisdiction is also conferred upon the judges of the police courts of incorporated cities and municipal court judges for offense arising under the act known as the Georgia State Highway Patrol Act of 1937, and other traffic laws of the State within their respective jurisdiction."
Prior to the ratification (on June 8, 1937) of the constitutional amendment known as the Georgia State Highway Patrol Act of 1937 (Ga. L. 1937, pp. 1116-1118, approved March 30, 1937), judges of police courts and municipal courts did not have any jurisdiction to try cases involving alleged violations of State laws. Grant v. Camp, 105 Ga. 428 ( 31 S.E. 429). At the time of the adoption of the constitutional amendment conferring jurisdiction upon the courts of ordinary and police judges or judges of municipal courts to try such offenses, there existed in the City of Atlanta the Criminal Court of Fulton County, having jurisdiction to try all misdemeanor cases arising in the City of Atlanta in Fulton County. See Ga. L. 1891, p. 935; Ga. L. 1935, p. 498. If the Criminal Court of Fulton County has been ousted of jurisdiction to try misdemeanor cases for alleged violations of law upon the highways of Fulton County, such ouster of jurisdiction results only from the constitutional amendment conferring jurisdiction upon courts of ordinary and police judges or municipal court judges to try misdemeanor cases arising upon the highways in certain counties of this State.
The jurisdiction conferred upon ordinaries and municipal court judges is limited to those counties "in which there is no city or county court." The plaintiff in error apparently relies in this case upon the theory that the Criminal Court of Fulton County is not a "county court" within the contemplation of the constitutional amendment of 1937. This position is untenable. While it is true that the Criminal Court of Fulton County was not created under provisions of the acts of 1871-72 (p. 288), and 1878-1879 (p. 132), providing for the creation of county courts upon the recommendation of grand juries, it is nonetheless a valid court, with jurisdiction in all misdemeanor cases in the county. Welborne v. Donaldson, 115 Ga. 563 ( 41 S.E. 999).
As stated by Mr. Justice Wyatt in Clarke v. Johnson, 199 Ga. 163, 167 ( 33 S.E.2d 425), it was the evident purpose of the amendment conferring jurisdiction upon courts of ordinary and police courts or municipal court judges, in cases arising under the Georgia State Highway Patrol Act, to provide courts (where none existed) other than the superior courts of this State for the disposition of charges arising under such act in order that persons charged with misdemeanor violations upon the highways might be given a speedy trial. It was not the purpose of the amendment to divest existing courts of jurisdiction in such cases, or to transfer jurisdiction from existing courts to another court not having such jurisdiction prior to the amendment. Under the ruling in Clarke v. Johnson, supra, the Recorder's Court of the City of Atlanta was without jurisdiction, and the judgment of conviction being void, it was not error for the judge of the superior court to order the petitioner's release.
Judgment affirmed. All the Justices concur.