Wadley v. McCommon

Atkinson, J. 1. As appears from the foregoing statement, an attack was made on the validity of section 14 of the act of 1913 (Acts 1913, p. 252), abolishing courts of the justices of the peace in the City of Macon and setting up the municipal court of Macon. The only ground of attack upon that portion of the act was that the act was “ unconstitutional, null and void.” As the allegations relied on as a basis for attacking the constitutionality of the act failed to state what particular provision of the constitution it was contended the act violated, the allegations were insufficient to raise any question for decision. Dobbs v. Bullard, 149 Ga. 553 (101 S. E. 122), and cit. 2. Whether the deputy clerk had power to take the affidavit and issue the warrant under which the petitioner was held in custody by the officer depends on a proper construction of the act of 1913 supra. Section 11 of that act confers upon the judge, among others, all the powers theretofore conferred by the laws and constitution of this State upon a justice of the peace. That would include the power to take an affidavit and issue a warrant for the arrest of an offender on a criminal charge. Penal Code (1910), §§ 789, 903; Cox v. Perkins, 151 Ga. 632 (107 S. E. 863, 16 A. L. R. 918). Section 14 of the act provides: “Be it further enácted by the authority aforesaid, that the clerk of said municipal court shall have complete power and authority, coexistent and co-ordinate with the power of the judge of said court, under the provisions of this act, to issue any and all warrants, civil or criminal, summary processes, and writs which are issuable as a matter of right, to accept and approve bonds, and to discharge any and all other functions, ministerial in character, which under the laws of this State are performable by a justice of the peace. The clerk of said municipal court shall have power, by and with the consent of the judge thereof, to appoint one or more deputy clerks, provided the business of [422] said court renders the services of such deputy or deputies indispensable. The said deputy clerk, if and when so appointed, shall exercise all the functions and be subject to all the responsibilities and requirements of the clerk of said court. The compensation of said deputy clerk shall be nine hundred dollars per annum.” This authorizes the appointment of a deputy clerk, and authorizes the deputy to perform whatever official act the clerk might do. It confers upon the clerk “complete power and authority, coexistent and co-ordinate with the power of the judge, . . to issue any and all warrants, civil or criminal.” It was held in Cox v. Perkins, supra: “ A criminal warrant consists both of the affidavit upon which it is based and the precept of the officer.” Under this definition the clerk, having express power, by the statute creating the office, to issue criminal warrants, had power to take the affidavit and issue the warrant. It is true that such acts are judicial in their nature. Cox v. Perkins, supra. On that basis it is urged in the briefs that the language of the act should not be so construed as to confer power upon the clerk or his deputy to perform such acts. This proposition is untenable, as the construction contended for would require that no effect be given to the words of the statute quoted above, relating to the powers of the clerk. Even if, as contended in the briefs, such powers could not be constitutionally conferred upon the clerk, as pointed out in the preceding division no such question has been raised, and a decision of the case must be predicated on the statute as a valid law. In the light of what has been said, the clerk was authorized by the statute to take the affidavit and issue the warrant, and so was his deputy. It was not required of the clerk or his deputy that he act in the presence of the judge. It follows from what has been stated, that the process under which the petitioner was restrained of his'liberty was lawful, and the judge did not err in remanding him to the custody of the officer. The statute differs from the act establishing the municipal court of Atlanta (Acts 1913, pp. 145-161), defining the powers of the' judges and of the clerk of that court, the distinction plainly appearing from a comparison of the two statutes, and on that account a different result was reached in that case; but there is no conflict of principle between the decision rendered in that case and the rulings now made. Judgment affirmed. All the Justices concur.