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SHOULD THE SUPREME COURT AND THE COURT
OF APPEALS BE CONSOLIDATED?
The rule for the construction of remedial statutes is grounded in wisdom and approved by time and usage: “The court shall look diligently for the intention, keeping in mind, at all times, the old law, the evil and the remedy.” The Act creating the Court of Appeals was remedial. In determining whether or not the Court of Appeals should be merged in the Supreme Court, we should look diligently to the old law, under which the Supreme Court was the only Appellate Court in our judicial system, the evils of the system which called for an amendatory statute, and the remedy sought and obtained thereby. Under the law as it existed at the time the Court of Appeals was created, there existed the right of appeal to the Supreme Court to review every kind of case, regardless of amount, importance, or the court in which it originated. The evil that inhered in this system is obvious. I was a member of the Legislature when the act to amend the Constitution to create a Court of Appeals was passed. I recall that the only reason urged in favor of an additional court of review was that the Supreme Court could not consider and decide the great number of cases which were being brought to it for review. It was suggested at the time that this condition could be remedied by vesting in the Supreme Court the power to sanction or refuse the writ of error to the lower court upon application therefor, or by providing that only cases involving a certain amount and over, and those involving the construction or constitutionality of a statute could be appealed. The unlimited right of appeal had spoiled the Georgia lawyer and litigant. Much serious opposition was developed to any change that denied to the litigant the right to have the court of last resort declare the law in his case, however unimportant it might be. It was found impossible to pass any act which narrowed the jurisdiction of the Appellate Court. I recall, however, that in the give and take of this reform movement, it was found necessary, in order that the Act could pass without serious opposition, to confine the jurisdiction of the Appellate Courts to questions of law only. Personally, I did not like the express curtailment of the right of the reviewing court to do substantial justice between the parties, especially in those cases where the verdicts were obviously excessive or were the result of an inflamed public opinion, or of local bias, or class prejudice.
The Act, as it was finally passed, was not an expression of the best thought of its friends, but the best that could be secured to relieve the immediate congestion of the Supreme Court.
It was passed by the Legislature in 1906 and submitted to the people and ratified that year. Under its provisions, as originally organized, the Court of Appeals reviewed cases which originated in the City Courts, and misdemeanors. It was a court of last resort in a majority of the cases in the State. It had the right and did occasionally certify some question to the Supreme Court, but, on the whole, its findings became the law of the case.
This division of jurisdiction did not prove logical nor satisfactory, hence, in 1916, another amendment to the Constitution was ratified by which the revision of cases on appeal was changed so that the Supreme Court reviewed only cases involving constitutional questions, such as respected title of land, equity cases, those involving the validity or constructions of wills, capital felonies, habeas corpus cases, cases involving extraordinary remedies, divorce and alimony, and all cases certified to it by the Court of Appeals. The right was also vested in the Supreme Court to require by certiorari any case to be certified to the Supreme Court. All other cases were reviewable in the Court of Appeals alone.
What is the evil that it is desired to correct by the consolidation of the two Appellate Courts? Not a congestion of cases, for the two courts, as now constituted, can dispose of the cases on their calendars with reasonable expedition, although the consolidation will eliminate the double labor resulting from the certifying of questions to the Supreme Court by the Court of Appeals, and the right of certiorari. The latter right, however, judging by my personal experience, is not likely to be abused as a result of prodigal encouragement.
We must seek elsewhere for the cause, if any exists, for the rather general conscious and subconscious feeling among the lawyers of the State that the present system is defective and calls for remedial action. I have always believed that the Court of Appeals, by reason of its quasi subordinate relation to the Supreme Court, has suffered, and to some extent unjustly so, in the estimation of the bench and bar of Georgia. There has been, since its creation, a certain vigor and freshness in the decisions of the Court of Appeals which is lacking in the more stately deliverances of the Supreme Court.
I say this in passing, realizing that there is no occasion to defend the Court of Appeals, because the proposed reform contains no germ of criticism. I believe, however, that some degree of this universal dissatisfaction with our present judicial system is the unconscious disparagement of a subordinate body in comparison with a superior one. The fact that the Court of Appeals must, in certain cases, call on the Supreme Court for instruction, and that, in all cases, the dissatisfied party can, at least, ask for a review of its findings, is calculated to bring the court into a certain degree of disrepute. This rather subtle cause for hostility and reproach in itself demands that the members of the Court of Appeals be placed in a more defensible position. The consolidation plan will accomplish this.
But that is not all. The opinions of the Court of Appeals are essentially not authoritative and final. The right of a petition for certiorari places the court somewhat in the position of Judge Thomas, who, when he sustained a demurrer to the petition filed by a famous character at the Lowndes County Bar, was told with some acerbity, “I will take you to the Supreme Court, sir.”
The most serious objection to be found in the present system is that, under it, over half of the decisions rendered on appeal lack that finality that is necessary to make them authoritative from the time of their rendition. The reasonably prompt conclusion of litigation is almost as important as its correct and just conclusion. At best, law is not an exact science, and there are those to be found who will see in every decision rendered the germs of truth and justice. The point of view and the bias of advocacy and the selfishness of interest can clothe error with all the habiliments of truth. It would not be safe to say that any kind of final decision is better than a long delayed correct decision, but it is true that when the Appellate Court is reasonably competent and entirely honest, the most important end to accomplish in its organization and equipment is that its work shall be promptly done. The right of certiorari adds thirty days automatically to the already long interim between the filing of a case in the Court of Appeals and the declaration of its findings, and, when the writ of certiorari is granted, months must be added to the. suspense of litigants and the delay in quieting title and establishing rights. In a short discussion, such as this, it is impossible to go extensively into the many illogical situations resulting from Georgia's patchwork system of judicial review. As illustrative, however, of the uncertainties incident to the system, I remind you gentlemen of the case of the Southern Bell Telephone and Telegraph Com
pany v. Glawson, 140 Ga., 507, in which the Supreme Court in answer to a question submitted to it by the Court of Appeals held that when the Court of Appeals had reversed the lower court in sustaining a demurrer to plaintiff's petition, and the case had gone to verdict and judgment for. plaintiff, and had reached the Court of Appeals again, the opinion of the Court of Appeals on the demurrer was the law of the case, notwithstanding the fact that, in the meantime, in a similar case, the Supreme Court had handed down an opinion, in the light of which, the former ruling in the Court of Appeals was erroneous. It was at the same time held that the opinion of the Supreme Court should control the Court of Appeals in all future cases that might demand its attention—a little hard on the Southern Bell Telephone and Telegraph Co. to have to pay a judgment which had already been declared by the court of last resort to be unjust-injustice judicially administered.
In conclusion, I desire to say that to my mind the most serious defect in our entire judicial system is the meager compensation which attaches to all judicial positions in Georgia. Double or triple the pay of judges and you will have found a panacea for all your ills. We are still suffering the blight of Bob Toombs' reputed epigram with reference to the small pay of the judges: “If they do not like the liquor, let them pour it back into the jug!" and back into the jug it has been going ever since.