Central Board on Care of Jewish Aged, Inc. v. Henson , 120 Ga. App. 627 ( 1969 )

Evans, Judge,

concurring specially. In Fife v. Johnston, 225 Ga. 447 (169 SE2d 189), it appears that the right of appeal is not absolute but is based upon the conditions imposed by the General Assembly under its power to “prescribe conditions as to the right of a party litigant to have his case reviewed by the Supreme Court or Court of Appeals.” Code Ann. § 2-3704; Const. of 1945. With the creation of the Court of Appeals as composing nine judges by Georgia Laws 1961, pp. 140-142, whereby Code Ann. §§ 24-3501, 24-3502, were amended, under the authority of the General Assembly to add additional judges as stated in the Constitution of 1945, Code Ann. § 2-3708, and providing for three divisions of three judges each, and as to when all members of the court shall sit as one court, it appears that the concurrence of five judges — that is when the court sits as one court en banc — shall “overrule any previous decision by any division alone in the same manner as now prescribed for the Supreme Court,” and a decision by such entire court with only a majority concurring shall take precedence over a decision by any division. See Godby v. Hein, 107 Ga. App. 481, 483 (130 SE2d 511). Therefore, pretermitting the question of whether or not the legislature under the separation of powers doctrine has the power and authority to say how this court shall operate and what decisions become binding authority upon the judges as shown above, I am bound by the decision in Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403 (170 SE2d 709), wherein the same question has been raised and passed upon with seven judges concurring and two dissenting. I therefore specially concur in this decision.