Mayor of Marietta v. Alexander

Simmons, Justice. Alexander was tried and convicted before the Mayor and Council of Marietta for violating certain special whisky sections of the city ordinance. The affidavit on which the warrant was issued fails to state how and 456 in what manner these sections were violated, but simply quotes the section of the ordinance. Alexander carried the case by certiorari to the superior court, where, upon a hearing by the judge of that court, the certiorari was sustained and a new trial ordered. To this ruling of the trial judge the mayor and council excepted, and brought the case here for review. "When the case was called in this court, counsel for the defendant in error moved to dismiss the same, upon the ground that, the case being a criminal case, the mayor and council had no right under the law to sue out a writ of error and thereby have the decision of the trial judge reviewed in this court. If Alexander had been acquitted, it would be clear to our minds that the mayor and council could not have a certiorari or a writ of error to review the trial, but having been convicted and having obtained a new trial on a writ of certiorari, it presents a more difficult question. No authority was cited in the argument by counsel on either side as to the right of the mayor and council to sue out a writ of error reviewing the action of the superior court in granting a new trial upon certiorari. In oúr investigation of the subject we find that three cases of the kind were brought to this court and reviewed here, to wit: Mayor, etc. v. Lumpkin, 5 Ga. 447, Mayor, etc. v. Arnold, 80 Ga. 517, and Mayor, etc. v. Charlton, 36 Ga. 460; but it appears from the record in these cases that no motion to dismiss them on this ground was made, and the court did not pass upon, the question now under consideration. It being a very important question to the incorporated towns and cities of this State, we will not decide it now, inasmuch as we have looked into the merits of the case and find that the judgment of the trial judge was correct and should be affirmed. See Mayor, etc. v. Cranston, 61 Ga. 572; Bayliss on New Trials and Appeals, 296. Judgment affirmed.