R. M. Rose Co. v. State , 7 Ga. App. 523 ( 1910 )

Russell, J.

It goes without saying that after the very careful consideration of the questions involved in the case of Rose v. State, 4 Ga. App. 588 (62 S. E. 117), in which the writer had the honor of delivering the opinion of this court, he deemed it unnecessary to certify to the Supreme Court the question presented, which involved merely the ability of the accusation to withstand the general 'demurrer. In the present case questions involving the construction of the constitution were property presented, and we were all of the opinion that it was our duty to certify these questions to the Supreme Court; whereas in the case of Bose v. State, supra, these questions were not directly made. The practical effect of the answer of the Supreme Court to the questions certified is to overrule the decision of this court in the case above cited. While it is our duty judicially to be convinced of the correctness of the ruling of the Supreme Court, we are still of the opinion personalty that our decision in the former case is in strict accord with the ruling of the Supreme Court of the United States in DeLamater v. South Dakota, 205 U. S. 93 (51 L. ed. 724, 27 Sup. Ct. 447). As to the soundness of the reasoning of the DeLamater case, we did not then and do not now express any opinion. However, our personal opinion is unimportant; the judicial opinion must control.

Judgment reversed.