Distinction between legislative and judicial functions.

- Legislative power is that which declares what the law shall be; judicial is that which declares what law is, and applies it to past transactions and existing cases; the one makes the law, the other expounds and judicially administers it; the one prescribes a rule of civil conduct, the other interprets and enforces it in a case in litigation. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947).

Intra-county request for judicial assistance did not create class of court.

- Intra-county request for judicial assistance under O.C.G.A. § 15-1-9.1(b)(2)(C) did not create a separate court, but was a constitutionally-permitted request for intra-county judicial assistance where the request and the response set out the matters to be handled by the two juvenile court judges who had agreed to assist the superior court; accordingly, the intra-county request and response were neither an unconstitutional creation of a class of court in violation of Ga. Const. 1983, Art. VI, Sec. I, Para. I, nor an unconstitutional usurpation of legislative authority by members of the judiciary in violation of Ga. Const. 1983, Art. VI, Sec. I, Para. VII. Earl v. Mills, 278 Ga. 128, 598 S.E.2d 480 (2004).

Determining the meaning of the Constitution is the exclusive function of the courts. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947).

If any department of government, including the judiciary, acts beyond bounds of its authority, such action is void. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947).

Legislation may not give court's power to agency.

- Trial court properly ruled that O.C.G.A. § 17-10-6, which authorized the Georgia Sentence Review Panel to review and reduce sentences, was unconstitutional as the Georgia General Assembly does not have the constitutional authority to divest the trial courts of Georgia of their traditional jurisdiction over sentencing by creating a quasi-appellate tribunal (such as the Panel) to review and alter the otherwise lawful sentences imposed by those trial courts. Sentence Review Panel v. Moseley, 284 Ga. 128, 663 S.E.2d 679 (2008).

For distinction between courts and administrative agencies, see Bentley v. Chastain, 242 Ga. 348, 249 S.E.2d 38 (1978).

Judicial Qualifications Commission was not authorized to pronounce the law in unsettled areas; therefore, the Commission's formal advisory opinion regarding the unsettled areas regarding whether the right of public access to the courts extended to children, or whether inquiries by security personnel amounted to a closure of the courts, exceeded the Commission's authority. The Commission was not vested with judicial power; rather, such power was vested in the state courts. In re Judicial Qualifications Comm'n Formal Advisory Opinion No. 239, 300 Ga. 291, 794 S.E.2d 631 (2016).

Courts enumerated in this paragraph are constitutional courts and may not be interfered with by legislation. Chatham County v. Mulling, 248 Ga. 878, 286 S.E.2d 735 (1982) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

Only state courts may try persons charged with violating state laws. City of Atlanta v. Landers, 212 Ga. 111, 90 S.E.2d 583 (1955).

Cost of enforcement of state law cannot be considered in administration of justice. City of Atlanta v. Landers, 212 Ga. 111, 90 S.E.2d 583 (1955).

Action by judges during judicial convention.

- Passage of rule of practice by judges of the superior courts in convention cannot be classified as exercise of "judicial power". Moyers v. State, 186 Ga. 446, 197 S.E. 846 (1938).

Judiciary has no authority to review internal procedure of legislature.

- If in the exercise of power to enact laws, the General Assembly merely fails to observe certain rules of internal procedure, the judiciary would not be authorized to review such action, and the same would be true as to any action of the officers of that body within the sphere of their jurisdiction. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947).

Constitution does not fix salary of ordinary (now probate judge), which is paid out of the county treasury. Houlihan v. Saussy, 206 Ga. 1, 55 S.E.2d 557 (1949).

Validity of title to office created by law is a judicial question. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947).

Power to create additional positions on municipal court is not conferred upon municipal court judge, but lies at discretion of the county commission. The judge of the municipal court has only the power to recommend individuals to fill court positions. Chatham County v. Mulling, 248 Ga. 878, 286 S.E.2d 735 (1982).

Failure to consider need for judge pro tempore may be abuse of discretion.

- Failure of a county commissioner to consider the need of a municipal court for a judge pro tempore and additional deputies where municipal court was overburdened and understaffed amounted to an arbitrary and capricious gross abuse of discretion and a failure to exercise the discretion required by law. Chatham County v. Mulling, 248 Ga. 878, 286 S.E.2d 735 (1982).

Judge not "policymaker."

- A juvenile court judge pro tempore was a state official and, as such, could not be the "official policymaker" responsible for establishing an alleged unconstitutional custom or policy on behalf of a county which was the defendant in a federal civil rights action. Bendiburg v. Dempsey, 692 F. Supp. 1354 (N.D. Ga. 1988).

Municipal court jurisdiction over state misdemeanor offenses.

- In providing that municipal courts shall have jurisdiction over ordinance violations and such other jurisdiction as provided by law, Ga. Const. 1983, Art. VI, Sec. I, Para. I authorizes the General Assembly to vest municipal courts with jurisdiction over state misdemeanor offenses. Kolker v. State, 260 Ga. 240, 391 S.E.2d 391 (1990).

Jurisdiction over foreign plaintiff's contract action.

- When an out-of-state seller sued an in-state buyer in Georgia, despite a provision in the parties' contract for the jurisdiction of the courts of Texas, and the seller did not respond, the courts of Georgia had subject matter jurisdiction under O.C.G.A. § 15-7-4(a)(2); Ga. Const. 1983, Art. VI, Sec. I, Para. I; Ga. Const. 1983, Art. VI, Sec. III, Para. I; and Ga. Const. 1983, Art. VI, Sec. IV, Para. I; the parties waived the forum selection clause by either filing suit in Georgia or not responding. Euler-Siac S.P.A. (Creamar Spa) v. Drama Marble Co., 274 Ga. App. 252, 617 S.E.2d 203 (2005).

City Court of Atlanta does not violate the exclusivity and uniformity provisions.

- The City Court of Atlanta, under 1996 Ga. Laws 627, does not violate the exclusivity and uniformity provisions of the Georgia Constitution. The court rejected the defendant's contention that the phrase "system of state courts" found in the preamble of the 1996 Act amounts to an unconstitutional attempt by the General Assembly to place the City Court of Atlanta in the class of "state court," under Ga. Const. 1983, Art. VI, Sec. I, Para. I, while restricting its jurisdiction. Wickham v. State, 273 Ga. 563, 544 S.E.2d 439 (2001).

Venue for the Atlanta City Court did not need to be shown to be in Fulton County or DeKalb County as venue was coextensive with city territorial limits and need not be shown to lie in either county. State v. Walker, 276 Ga. 756, 585 S.E.2d 77 (2003).

Recorder's court jurisdiction over state misdemeanor traffic offenses.

- Under the 1983 Georgia Constitution, the recorder's courts continue to possess limited jurisdiction over state misdemeanor traffic offenses until otherwise provided by law. Wojcik v. State, 260 Ga. 260, 392 S.E.2d 525 (1990).

Appeal from violation of city ordinance lies in superior court.

- Where uniform traffic citation and complaint form was used to charge an offense in a constitutional city court, but the solicitor general (now district attorney) subsequently amended the form to allege a violation of a city ordinance, jurisdiction of an appeal lay in the superior court rather than the Court of Appeals. Parnell v. City of Atlanta, 173 Ga. App. 602, 327 S.E.2d 569 (1985).

Juvenile courts are courts of record; therefore, they are authorized to grant new trials. In re T.A.W., 265 Ga. 106, 454 S.E.2d 134 (1995).

Proof that a criminal offense occurred within the city limits of Atlanta is sufficient to establish venue in the City Court of Atlanta; to the extent that Walker v. State, 258 Ga. App. 354 (2002) conflicts with this holding, it is overruled. Gardner v. State, 261 Ga. App. 425, 582 S.E.2d 566 (2003).

Superior court judge was state employee.

- Trial court did not err in determining that a deceased Georgia superior court judge was a State of Georgia employee but not a county employee for purposes of the exclusive remedy provision under O.C.G.A. § 34-9-11(a) of the Georgia Workers' Compensation Act in a claim by the judge's widow against county sheriffs, arising from the murder of the judge while in a courtroom, as the judge was vested with the judicial power of the State of Georgia under Ga. Const. 1983, Art. VI, Sec. I, Para. I and was defined as a "state official" pursuant to O.C.G.A. § 45-7-4(a)(20) for compensation purposes; the fact that the county asserted that the widow could obtain workers compensation benefits and that it offered her the judge's funeral expenses, both of which sums the widow refused, or that it contributed a supplemental amount to the judge's salary, did not make the judge a county employee. Freeman v. Barnes, 282 Ga. App. 895, 640 S.E.2d 611 (2006).

Cited in Porter v. Calhoun County Bd. of Comm'rs, 252 Ga. 446, 314 S.E.2d 649 (1984); Ward v. State, 188 Ga. App. 372, 373 S.E.2d 65 (1988); Kolker v. State, 193 Ga. App. 306, 387 S.E.2d 597 (1989); Fathers Are Parents Too, Inc. v. Hunstein, 202 Ga. App. 716, 415 S.E.2d 322 (1992); Waller v. State, 231 Ga. App. 323, 498 S.E.2d 362 (1998); Nguyen v. State, 282 Ga. 483, 651 S.E.2d 681 (2007); Hendry v. Hendry, 292 Ga. 1, 734 S.E.2d 46 (2012).

Editor's notes.

- In light of the similarity of the provisions, decisions under former Ga. Const. 1976, Art. VI, Sec. I, Para. I and antecedent provisions, relating to enumeration of courts of the state, are included in the annotations for this paragraph.

This paragraph does not authorize legislature to take away jurisdiction of superior courts, given by Ga. Const. 1976, Art. VI, Sec. IV, Para. I (see Ga. Const. 1983, Art. VI, Sec. IV, Para. I). Williams v. State, 138 Ga. 168, 74 S.E. 1083 (1912).

Additional terms of superior courts may be created. Burge v. Mangum, 134 Ga. 307, 67 S.E. 857 (1910).

Nonuniform city courts may be created. Western Union Tel. Co. v. Jackson, 98 Ga. 207, 25 S.E. 264 (1896); Welborne v. Donaldson, 115 Ga. 563, 41 S.E. 999 (1902); Clark v. Black, 136 Ga. 812, 72 S.E. 251 (1911).

Organization and manner of payment of salaries of judge and officers thereof may be provided for. Clark v. Eve, 134 Ga. 788, 68 S.E. 598 (1910); Clark v. Black, 136 Ga. 812, 72 S.E. 251 (1911); Macon, D. & S.R.R. v. Calhoun, 138 Ga. 165, 74 S.E. 1030 (1912).

This paragraph does not bar creation of tribunals for special purposes but rather authorizes General Assembly to create additional courts. Tax Assessors v. Chitwood, 235 Ga. 147, 218 S.E.2d 759 (1975) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

General Assembly's power to prescribe territorial limits.

- This paragraph empowers the General Assembly to prescribe territorial limits within which courts may be established and within which the courts shall exercise jurisdiction. Strickland v. Houston, 173 Ga. 615, 161 S.E. 262 (1931) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

Power to appoint judges cannot be delegated to municipal corporations.

- The creation of state courts involves the appointment of judges and court officers; this function cannot be delegated to municipal corporations. City of Atlanta v. Landers, 212 Ga. 111, 90 S.E.2d 583 (1955).

Nonelected senior judges.

- There is no merit to the argument that the authorization for the service of senior judges conflicts with Ga. Const. 1983, Art. VI, Sec. I, Para. I, vesting judicial power in designated courts, because creation of the position of senior judge does not establish a separate judicial forum. Smith v. Langford, 271 Ga. 221, 518 S.E.2d 884 (1999).

Act granting board of commissioners of county power to fix salary of municipal court judge constitutional. Feagin v. Freeney, 192 Ga. 868, 17 S.E.2d 61 (1941).

Power of municipality to punish as municipal offense that which is also state offense must be conferred by general law and the grant of such power must be clearly expressed. Furthermore, the act which the municipality seeks to punish as a municipal offense must be such as affects the peace and good order of the municipality and contain some characterizing ingredient not contained in the state offense. Gordon v. Green, 228 Ga. 505, 186 S.E.2d 719 (1972).

Under this paragraph, legislature is authorized to create school courts or school tribunals and confer jurisdiction on them to hear and determine school controversies. Boatright v. Yates, 211 Ga. 125, 84 S.E.2d 195 (1954) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

Courts to assist in administration of school system.

- Under the provisions of this paragraph, the General Assembly is empowered to create a court, or courts, which has jurisdiction of all controversies arising in the administration of the common school system, as created by the School Laws of 1919 (Ga. L. 1919, p. 288), and to give to any party a right to appeal successively from the decision of the county board of education to the State School Superintendent, and from the judgment of the State School Superintendent to the State Board of Education, whose judgment should be final. Board of Educ. v. Board of Educ., 173 Ga. 203, 159 S.E. 712 (1931).

Power of superior court judge to pay attorney fees in capital felony cases.

- The legislature by authorizing payment of certain fees and expenses of appointed attorneys in capital felony cases created an expense of court, and the judges of the superior courts have the inherent power and authority to order it paid out of the county treasury. Bibb County v. Hancock, 211 Ga. 429, 86 S.E.2d 511 (1955).

Cases from an abolished county court may be transferred to superior court. Redd v. Davis, 59 Ga. 823 (1877).

Inspection of private institutions by grand jury constitutional.

- Georgia Laws 1916, p. 126, now repealed, providing for inspection of private sanitariums and convents by members of grand jury, do not violate this paragraph. Sister Felicitas v. Hartridge, 148 Ga. 832, 98 S.E. 538 (1919) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

Act removing county site valid. Orr v. James, 159 Ga. 237, 125 S.E. 468 (1924).

Editor's notes.

- Some of the cases noted under this heading were decided under Ga. Const. 1976, Art. VI, Sec. VI, Para. I and antecedent provisions, relating to the probate court.

Paragraph does not fix salaries.

- Although this paragraph provides for the establishment of courts of ordinary (now probate courts), and prescribes their powers and term of office, it does not fix their salary, which is paid out of the county treasury. Houlihan v. Saussy, 206 Ga. 1, 55 S.E.2d 557 (1949).

Court of equity to interfere with probate court only when remedies at law inadequate.

- While under former Code 1933, § 113-2203 (see now O.C.G.A. § 53-7-160) a court of equity had concurrent jurisdiction with the ordinary (now probate judge) over the settlement of accounts of administrators, and under former Code 1933, § 37-403 (see now O.C.G.A. § 23-2-91) equity, upon the application of an interested person, will assume jurisdiction to prevent loss, yet this paragraph vested in the ordinary (now probate judge) jurisdiction of probate, and, hence, equity would exercise jurisdiction in such matters only when available remedies at law were inadequate. Hamrick v. Hamrick, 206 Ga. 564, 58 S.E.2d 145 (1950); L.L. Minor Co. v. Perkins, 246 Ga. 6, 268 S.E.2d 637 (1980) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

Equity can only exercise its current jurisdiction over the administration of estates when complete and adequate remedies at law are unavailable. Powell v. Thorsen, 248 Ga. 697, 285 S.E.2d 699 (1982).

This paragraph confers jurisdiction of subject matter on superior court by consent of parties. Hartford Accident & Indem. Co. v. Cohran, 106 Ga. App. 14, 126 S.E.2d 289 (1962) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

Appeal to the superior court from preliminary ruling violated this paragraph and former Code 1933, § 113-603 (see now O.C.G.A. § 53-3-1). Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

Paragraph does not exclude remedy by certiorari.

- This paragraph gives the right of appeal from the court of ordinary (now probate court) but does not exclude the remedy by certiorari. Seagraves v. Powell Co., 143 Ga. 572, 85 S.E. 760 (1915) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

Where either appeal or certiorari is proper, movant may elect which one to pursue. Pierce v. Felts, 146 Ga. 809, 92 S.E. 541 (1917).

Under this paragraph and former Code 1933, § 113-603 (see now O.C.G.A. § 53-3-1) only court of ordinary (now probate court) had original jurisdiction over probate of wills, and the provisions for appeal in such cases were not intended to invade this original jurisdiction. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947) (see Ga. Const. 1983, Art. VI, Sec. I, Para. I).

Court of ordinary (now probate court) has no jurisdiction to determine dire need of widow in action to sell property in which the widow owned life estate. Castleberry v. Horne, 220 Ga. 691, 141 S.E.2d 394 (1965).

For jurisdiction of ordinary (now probate judge) over homesteads, see Dunagan v. Stadler, 101 Ga. 474, 29 S.E. 440 (1897).

Appeal not authorized.

- Ruling by court of ordinary (now probate court) striking some but not all of grounds of caveat to application to probate will is not decision authorizing appeal. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).

Person who is not qualified voter is not eligible to office of ordinary (now probate judge). Lee v. Byrd, 169 Ga. 622, 151 S.E. 28 (1929).

No distinction needs to be made in pleadings between ordinary (now probate judge) and court of ordinary (now probate court). Trust Co. v. Smith, 54 Ga. App. 518, 188 S.E. 469 (1936).

Municipal corporations cannot try for state offenses.

- The only courts with authority or jurisdiction to try state offenses, or persons charged with violation of state laws, are state courts; the trial of a state case is a function of the state, and municipal corporations have no right to inflict punishment for violations of the criminal laws of this state. 1958-59 Op. Att'y Gen. p. 216.

Juvenile courts cannot require specialized services for handicapped or abused children.

- Juvenile courts are without authority to compel state agencies or local school systems to provide or fund specialized services for handicapped or abused children, although a child involved is a handicapped child within the meaning of 20 U.S.C. § 1401 et seq., the Education for All Handicapped Act. 1989 Op. Att'y Gen. No. U89-6.

Judge of probate court is both judicial and county officer. 1948-49 Op. Att'y Gen. p. 482.

Judge of probate court not qualified also to hold public office of county attorney; it is self-evident that the duties of the two public offices in many instances would be conflicting and would be incompatible. 1962 Op. Att'y Gen. p. 61.

A probate court may exercise state judicial power over misdemeanor traffic offenses occurring within the corporate limits of a municipal corporation where the charter of the municipal corporation authorizes a municipal court but no such court is in existence. The arresting officer in a misdemeanor traffic case is responsible for returning those charges to the proper court with jurisdiction to hear the matter, but, if the citation is erroneously returned to the incorrect court, that court should promptly act to transfer the matter to a court with jurisdiction to consider the charges. 1989 Op. Att'y Gen. No. U89-30.

O.C.G.A. § 40-13-29 does not prohibit the probate court from exercising state judicial power in any county simply because of the existence of a municipal court within the corporate limits of a municipal corporation within that county. 1989 Op. Att'y Gen. No. U89-30.

Probate court judges may not exercise jurisdiction over cases involving possession of one ounce or less of marijuana, either by virtue of Ga. Const. 1976, Art. VI, Sec. IV, Para. XI (see Ga. Const. 1983, Art. VI, Sec. X, Para. I) or by virtue of their undisputed authority over misdemeanor traffic cases. 1981 Op. Att'y Gen. No. 81-25.

Am. Jur. 2d.

- 20 Am. Jur. 2d, Courts, § 16 et seq.

C.J.S.

- 21 C.J.S., Courts, § 164 et seq.

ALR.

- Power of court to prescribe rules of pleadings, practice, or procedure, 110 A.L.R. 22; 158 A.L.R. 705.