Whenever it is necessary and expedient to lay out a new militia district, to change the lines of old districts, or to consolidate or abolish old districts, the judge of the probate court may, at any time, appoint three commissioners who are citizens of the district or districts from which it is proposed to make the new district or to change the lines thereof, whose duty it shall be to lay out and define the lines and to report the same to the judge of the probate court. The commissioners shall have authority to engage the services of a competent surveyor to assist them in their duties. The surveyor shall be paid for his services, out of the county treasury, the same compensation county surveyors are paid for similar services rendered to a citizen. If the judge of the probate court approves the report of the commissioners, he shall have all proceedings in the matter entered on his minutes, after which the district laid out or the line changed or defined shall be known and regarded accordingly.
(Laws 1840, Cobb's 1851 Digest, p. 187; Code 1863, §§ 456, 457, 458; Code 1868, §§ 518, 519, 520; Code 1873, §§ 484, 485, 486; Code 1882, §§ 484, 485, 486; Civil Code 1895, §§ 333, 334, 335; Civil Code 1910, §§ 376, 377, 378; Code 1933, §§ 23-204, 23-205, 23-206.)
Cross references.- Compensation of county surveyors, § 36-7-9 et seq.
JUDICIAL DECISIONS
This section is a general law. Drummond v. Lowry, 88 Ga. 716, 16 S.E. 28 (1892); Hackney v. Leake, 91 Ga. 141, 16 S.E. 966 (1893).
Commissioners appointed by the ordinaries to lay out new militia districts, or change the lines of those existing, have authority to engage the services of a competent surveyor to assist the commissioners in the commissioners' duties. The commissioners are not limited to the county surveyor. Graham v. Hall, 68 Ga. 354 (1882).
Power of ordinary (now judge of the probate court) and time of action.
- Ordinary (now judge of the probate court) may appoint the commissioners, receive the commissioners' reports, and establish new districts either in term or vacation. Poole v. Sims, 67 Ga. 36 (1881).
Ordinary (now judge of the probate court) determines expediency.
- Commissioners are mere agents to lay off the lines of a new district; the ordinary (now judge of the probate court) determines the expediency of creating it. The creation of a new district is not, therefore, illegal because deemed inexpedient by the commissioners. Conley v. Poole, 67 Ga. 254 (1881).
Finality of decision.
- Judge of a superior court has no jurisdiction to review by certiorari the action of an ordinary (now judge of the probate court) or board of commissioners for there is no decision of a judicial question between parties litigant. Hillsman v. Harris, 84 Ga. 432, 11 S.E. 400 (1890); Hudson v. Sullivan, 93 Ga. 631, 20 S.E. 77 (1894).
Decision to create district not subject to review.
- Exercise of the discretion of the county authority in creating a militia district, in the absence of fraud or the willful abuse of discretion, could not be made the subject of review by the superior court or the Supreme Court. Johnson v. Chappell, 198 Ga. 162, 30 S.E.2d 909 (1944).
New district must not leave old district undermanned.
- An order, by the proper county authority, approving a report of the commissioners appointed to lay out and establish a new militia district, is void since, by the establishment of the new district, an existing district is left with less than the required number of persons liable to militia duty. Johnson v. Chappell, 198 Ga. 162, 30 S.E.2d 909 (1944).
Proof of district lines and residence.
- Change of district lines is a matter of record, but the location of a residence with reference thereto must be proved by parol evidence. Graham v. Hall, 68 Ga. 354 (1882).
Isolated tracts.
- This section does not authorize the inclusion in a district of isolated tracts not contiguous thereto. Howell v. Kinney, 99 Ga. 544, 27 S.E. 204 (1896).
Justice of the peace (now magistrate) whose fees will be diminished by change in the militia district is not entitled to notice of proceedings. Poole v. Sims, 67 Ga. 36 (1881).
Form of petition and report.
- Petition for a change of boundary line should distinctly specify the location of the new line, and the commissioners' report should lay out and define the new line. Howell v. Kinney, 99 Ga. 544, 27 S.E. 204 (1896).
OPINIONS OF THE ATTORNEY GENERAL
Judge may change district name.
- Since the judge of the probate court has all of the powers specified in this section, which are quite extensive, then certainly the judge has the power as implied by law to merely change the name of a militia district without changing the district's boundaries. 1963-65 Op. Att'y Gen. p. 339.
Commissioners of a county have authority to consolidate militia districts of that county into one militia district; the responsibility for changing the boundaries of, or consolidation of militia districts is that of the ordinary (now judge of the probate court) only when jurisdiction over such matters has not been granted by legislative act to the county commissioners. 1968 Op. Att'y Gen. No. 68-177.
Change in city limits is not one of means specified in the laws of Georgia for changing the boundaries of militia districts. 1968 Op. Att'y Gen. No. 68-237.
The 1982 amendment to O.C.G.A. § 36-2-2 does not require that any militia district boundaries be changed; any changes are to be initiated by the board of county commissioners in counties where the board is vested with this power by local law. 1982 Op. Att'y Gen. No. 82-94.