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DAY v. KELLEY, Solicitor.
21945.
Petition to transfer case, etc. Fulton Superior Court. Before Judge McKenzie.
HEAD, Presiding Justice.
The petition failed to state a cause of action for any relief and it was not error to sustain the general demurrers of the defendant.
Walter Day filed a petition in the Superior Court of Fulton County against John I. Kelley, as Solicitor of the Criminal Court of Fulton County. The petition alleged: On July 3, 1962, the defendant solicitor instituted criminal proceedings against the petitioner by accusation in which the petitioner was charged with assault and battery, and on the same date he was bound over to the Criminal Court of Fulton County. The act of 1891, as amended by the act of 1935, creating the Criminal Court of Fulton County, provides that the defendant solicitor may institute criminal prosecutions by accusation founded on affidavit and does not permit the accused "to waive an indictment by a grand jury," where the accused is bound over to the Criminal Court of Fulton County. Under the provisions of Code Ann. 27-704, a person charged with a misdemeanor offense in the superior court may not be tried upon an accusation unless such person waives indictment in writing. The petitioner having been bound over to the Criminal Court of Fulton County, "is placed in a grave disadvantage relative to the status and privilege of a defendant bound over to the superior court of said county in that the petitioner may not be privileged to exercise a waiver of grand jury indictment in lieu of which petitioner could compel a grand jury indictment and secure the advantages of such a hearing." The defendant solicitor should be compelled to grant the petitioner the privilege of waiver of grand jury indictment because the denial of such privilege violates the petitioner's rights under Article XIV of the United States Constitution, to wit, "(a) 'Equal protection of the law' clause; (b) 'due process of law' clause," in that the petitioner being in the same class with a party defendant in a misdemeanor case bound over to the Superior Court of Fulton County, is "in spite of such equality of classification, not accorded an equal opportunity for his case to be heard" by a grand jury. By reason of these facts the petitioner is placed at an unconstitutional disadvantage in violation of the provisions of "Article 1, Code Sections 2-102 and 2-103, of Constitution of Georgia of 1945." The defendant solicitor should, in the alternative, be required to transfer the case against the petitioner to the Solicitor of the Criminal Division of the Superior Court of Fulton County so as to enable the petitioner to secure the privileges and rights of a defendant
bound overt to the Superior Court of Fulton County. The prayers of the petition are stated in the opinion.
The demurrers of the defendant solicitor were sustained and the petition dismissed. The exception is to that judgment.
The petition in the present case does not comply with the applicable rules of pleading. "All suits in the superior courts for legal or equitable relief or both shall be by petition addressed to the court, signed by the plaintiff or his counsel, plainly, fully, and distinctly setting forth the cause of action, legal or equitable or both, the names of the persons against whom process is prayed, and the demand for legal or equitable relief or remedy or both." Code 81-101. In the first instance, the petition is not headed as to State or County. It is not addressed to any court. There is no prayer for process. The petitioner prays "that the court issue an order requiring the defendant to show cause on a date certain, . . . why the defendant should not be compelled to grant petitioner the privilege of waiver of a grand jury indictment"; that "in the alternative defendant be required to transfer the said case to the Solicitor of the Criminal Division of Fulton County"; and "that the provisions of Title 3, Section [sic] which does not provide for the privilege of waiver be declared unconstitutional as alleged." There is a general prayer that the petitioner have such other relief as in equity may appear just and proper.
If we may properly conclude that the petition is one seeking equitable relief in the Superior Court of Fulton County, which court, as shown by orders appearing in the record, took jurisdiction of the petition, then, and in that event, the petitioner could not prevail, since it is the rule in this State that: "Equity will take no part in the administration of the criminal law. It will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain or obstruct them." Code 55-102. See Powell v. Waits, 147 Ga. 619 (2) (95 SE 214); Mayor &c. of Athens v. Co-op Cab Co., 207 Ga. 505 (62 SE2d 906).
In so far as the petition seeks an order to compel the Solicitor of the Criminal Court of Fulton County to transfer the case, it fails to state a cause for either legal or equitable relief. The powers and duties of all public officers are fixed by law. Code 89-903. Under the acts creating the Criminal Court of Fulton County (Ga. L. 1890-1891, Vol. 2, p. 935; Ga. L. 1935, p. 498) there is no authority vested in the Solicitor of the Criminal Court of Fulton County to transfer any case to any court, and he can not be compelled to perform an act which is not authorized by law.
Where a court of equity does not have jurisdiction, it will not assume jurisdiction for the purpose of inquiring into the constitutionality of a legislative act. City of Douglas v. South Georgia Grocery Co., 178 Ga. 657 (174 SE 127); City of Eatonton v. Peek, 207 Ga. 705, 707 (64 SE2d 61). If the petitioner wants to attack the validity of the acts creating the Criminal Court of Fulton County (Ga. L. 1890-1891, Vol. 2, p. 935; Ga. L. 1935, p. 498) in any particular, or the jurisdiction of the court in any manner, the place to make such attack is in that court.
The general demurrers of the defendant solicitor were properly sustained.
Judgment affirmed. All the Justices concur.
John I. Kelley, Solicitor, Frank A. Bowers, contra.
J. L. Jordan, for plaintiff in error.
ARGUED FEBRUARY 11, 1963 -- DECIDED MARCH 7, 1963.
Friday May 22 22:12 EDT


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