Justices of the Inferior Court v. Hunt , 29 Ga. 155 ( 1859 )

— Stephens J.

By the Court.

delivering the opinion.

Certiorari is a remedy which lies only against a Court.

The Justices of the Inferior Court, in issuing execution against the county Treasurer and his securities, do not act as a Court. Their action is ministerial — as much so as the action of tax collectors in issuing execution against defaulting tax payers ; and that this latter is ministerial, see Tift vs. Griffin, 5 Ga. Rep. 193, and Bassett vs. The Governor, 11 Ga. Rep. 217. They act as so many individuals. The very Act which confers this power upon them, discriminates between them and the Court, conferring this power upon the justices, or a majority, but conferring upon the Inferior Court, eo nomine, the power to regulate the Treasurer’s compensation. Again, I say, they are not a Court for another reason. My colleagues were not prepared to concur in it, but reflection has only confirmed me in it. I say, that part of the Act which confers this power, is unconstitutional; because it is a total departure from the caption- of the Act. The caption is simply this: “An Act to appoint county Treasurers and define their duties.” To issue an execution against them is a totally different thing from appointing them or defining their duties. You cannot cover it with the caption. You may appoint, and you may define duties, but you must do something else — something further and beyond what is expressed in the caption, before you can issue an execution— you must enforce duty. The constitutional prohibition is: “Nor shall any law or ordinance pass containing any matter different from what is expressed in the title thereof.” The appointment is expressed, and the definition of duties is expressed, in the title, but the enforcement of duties is not expressed. Can any man say it is ? To illustrate: Congress has power to “define and punish piracies and felonies committed on the high seas.” Can any body say the power to define includes the power to punish? The framers of the Constitution of theUnited Statesthoughtnot; they said define and punish, only because they must have thought that both ideas would notbe exjoressed if either word was left out. Again, suppose this Act had gone on and provided that if the Treasurer'should fail in his duties as “defined,” he should be hung, would any body say this punishment was “expressed” in the title? that the caption covered it? To define is one thing, to punish is another, to enforce is another. The caption is to appoint and to define; it covers no more than these, and to push any thing more under it, can be done only on the principle, that where there is a will there will be found a way. This Act is the only one conferring the power of issuing execution against the Treasurer, on the Justices of the Inferior Court. If it fails here, it dont exist; and the justices in exercising it, not only do not act as a Court, but they do not act as a legally constituted body, and certiorari no more lies against their action, than it would against the unauthorized action of any other individuals. This is altogether a different case from a correction of an excess or usurpation of jurisdiction by a legal Court. Nothing is more common than the correction of such excess or usurpation in inferior Courts by certiorari. But here there is not only no legal Court, but no legal body. Whatever remedy then there may be* (and I cannot doubt there is one,) it is not certiorari. For a strong argument in favor of enforcing the constitutional prohibition here invoked by me, and for a strong analagous case to this one, see Prothro & Kendall vs. Orr et al., 12 Ga. R. 36. The Judge having sustained the certiorari, his judgment must be reversed.

Judgment reversed.