Sears ex rel. Baker v. Candler , 112 Ga. 381 ( 1900 )

Lewis, J.

1. In the case of Carr v. State, 98 Ga. 89, this court, then composed of three Justices, by a majority held that the proceedings authorized by section 4666 of the Code of 1882 (subsequently codified in section 1047 of the present Penal Code) were not judicial in character. This view was afterwards, in the case of Baughn v. State, 100 Ga. 554, recognized as correct by a full bench of six Justices. In the opinion delivered by Mr. Justice Lumpkin in the case first mentioned, he pointed out the reasons'for the conclusion reached by himself and the Chief Justice, and remarked, “ It may be that the whole subject needs legislation.” This .suggestion doubtless led to the passage of the act of December 21, 1897, amending section 1047 of the Penal Code (Acts of 1897, p. 41). A casual reading of this act will suffice to show that the trial to he had under its provisions is a judicial proceeding. All of the objections to so regarding the inquisition provided for hy the old law have heen removed, and we therefore without difficulty came to the conclusions announced in the first headnote. The section, before it was amended, provided for an investigation without a judicial head, and gave no direction as to procedure. Under the amendment, the inquisition is now a regular case in the superior court, with all the incidents thereunto appertaining.

2, 3. The cases of Taylor v. Reese, and Perry v. Reese, 108 Ga. 379, which were carefully considered, are authoritative upon the two remaining headnotes. It may now be regarded as the settled law and practice of this State, that when a true and correct bill of exceptions is duly sued out and tendered to a trial judge, it is his duty to certify it without regard to the merits of the questions thereby presented; and that this court will not, in passing upon an application for a mandamus to compel a judge to certify a bill of exceptions, look into the merits of any assignment of error therein made. In other words, a case must get to this court in the regular and lawfully .appointed manner before it is considered and decided.

Mandamus absolute ordered.

All the Justices concurring.