The appellant has an election, that is (1) an immediate appeal by foregoing the privilege to amend; or (2) he may consider amending up to the expiration of the time allowed for amendments, yet appeal within 30 days thereafter; and (3) if he elects to amend during the period of time allowed, he is entitled to have his petition as amended considered on demurrer to determine if a cause of action is now alleged after amendment. We do not agree with such cases as Glover v. S. F. W. R. Co., 107 Ga. 34 ( 32 S.E. 876); Hamer v. White, 110 Ga. 300 ( 34 SE 1001) ; Speer v. Alexander, 149 Ga. 765 ( 102 S.E. 150); and Lavenden v. Haseman, 157 Ga. 275 ( 121 S.E. 646), and similar cases holding that, by electing to amend, the petitioner has conceded that his original petition was defective and is thereafter estopped to say an amendment was not necessary. If he amends, no law of the case is established that his original petition was defective unless he fails to amend and appeal promptly as in Northside Manor v. Vann, 219 Ga. 298 ( 133 S.E.2d 32). But he is entitled to have his entire petition as amended considered on renewed and additional demurrers as to whether a cause of action is then alleged if he makes the election to amend. If his original petition was good then he is entitled to remain in court whether or not the amendment was material. To the extent that the above and similar cases hold that the pleader is estopped to say that the amendment was not necessary by the election he made, they are overruled.

Gerstein Carter, Joe W. Gerstein, contra. Under the ruling of the Supreme Court in Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32), which held the 1952 amendment to Code Ann. § 81-1001 to be unconstitutional, where a general demurrer was sustained to an original petition and the plaintiff was given 30 days in which to amend and the plaintiff amended within the time allowed, and the defendants renewed their general demurrer to the petition as amended on the sole ground that the petition as amended did not set forth a cause of action, the plaintiff did not acquiesce in the ruling requiring an amendment, and even though the amendment to the petition did not cure the defect erroneously adjudged to exist, the court did not err in overruling the general demurrer to the petition as amended since the original petition set forth a cause of action. DECIDED FEBRUARY 24, 1964.

Erwin, Birchmore Epting, Howell C. Erwin, Jr., contra. 1. The effect of the decision of the Georgia Supreme Court in Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32), is that when the trial court has entered an order sustaining a general demurrer and granting the plaintiff 30 days to amend the petition, and dismissing the petition in default of plaintiff's amendment, and the plaintiff does not amend, the plaintiff has 30 days from the expiration of the period granted for amendment to present a bill of exceptions complaining of the dismissal of the petition. 2.

" Since the court did not in Friedman's case review the standards required of optometrists on examination as then existing (Code of 1933, § 84-1105), it appears that the court's decision and judgment (in part at least) may have rested on the Dvorine case by the Maryland court. The Maryland decision was based on requirements of their statutes substantially different from the Georgia law. However the decision in Friedman's case, decided in 1936, was arrived at, it was binding authority for the proposition that optometry under the Georgia law and the standards of Code § 84-1105 (and until the Act of 1953, Ga. L. 1953, pp. 114-117) was not a learned profession. Under our system of government it is axiomatic that the judicial branch alone has the power to construe and interpret the Constitution and laws of this State. Calhoun v. McLendon, 42 Ga. 405; Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32). A declaration by the General Assembly purporting to state the scope of statutory enactments is valid only in so far as the statutes support the declaration made. Under the amendatory Act of 1953 (Ga. L. 1953, pp. 114-117) the standards of training and knowledge required of an applicant for examination to be licensed as an optometrist were substantially extended as to time of study and the number of subjects to be studied.

Our decisions about whether a challenged law violates the Separation of Powers Provision by infringing on the judicial power have looked to whether the law burdens the exercise of a judicial function. See, e.g., Steiner, 303 Ga. at 896-905 (V) (concluding there was no violation of the Separation of Powers Provision because the executive branch employee did not perform a judicial function); Brown v. Scott, 266 Ga. 44, 45-46 (1) (464 S.E.2d 607) (1995) (concluding there was a violation of the Separation of Powers Provision because the executive branch employee performed both executive and judicial functions); Georgia Dept. of Human Resources v. Word, 265 Ga. 461, 463 (1) (458 S.E.2d 110) (1995) (concluding there was no violation of the Separation of Powers Provision because there was no "infringe[ment] on any judicial function"); Northside Manor, Inc. v. Vann, 219 Ga. 298, 300 (133 S.E.2d 32) (1963) (concluding there was a violation of the Separation of Powers Provision because there was an "usurpation of exclusive judicial functions").

We have recognized that our zealous protection of the courts is necessary because "[s]uch palpable usurpation of exclusive judicial functions by the legislature offends the Constitution, paralyzes the judicial function, . . . and constitutes a potential destruction of the judicial process." Northside Manor, Inc. v. Vann, 219 Ga. 298, 301 ( 133 SE2d 32) (1963). Accord United Hospitals Service Assn. v. Fulton County, 216 Ga. 30, 33 ( 114 SE2d 524) (1960); McCutcheon, supra, 199 Ga. at 691 (2); Calhoun, supra; J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372 (1) (b) ( 634 SE2d 123) (2006).

The original petition in the present case was filed January 23, 1963. For a history of the case see General Motors Corp. v. Jenkins, 114 Ga. App. 873 ( 152 S.E.2d 796); and 117 Ga. App. 527 ( 160 S.E.2d 906). The petition for certiorari was granted to review again the effect of a judgment sustaining a general demurrer to a petition and at the same time permitting the plaintiff a number of days in which to amend. In Northside Manor v. Vann, 219 Ga. 298 ( 133 S.E.2d 32), it was held that where a trial court sustains a general demurrer to a petition but allows time in which the plaintiff may amend, if no amendment is filed within such period and no timely appeal is filed, the judgment sustaining the general demurrer establishes the law of the case, and an amendment filed after the time allowed by the original order should be stricken on proper motion. In Peacock Constr. Co. v. Chambers, 223 Ga. 515, 518 ( 156 S.E.2d 348), with reference to such judgments it was said: "If he amends, no law of the case is established that his original petition was defective unless he fails to amend and appeal promptly as in Northside Manor v. Vann, 219 Ga. 298 [supra]."

A final order was entered overruling these objections on January 12, 1966, and also overruling the general and sustaining certain special demurrers. It is settled by Northside Manor, Inc. v. Vann, 219 Ga. 298 ( 133 S.E.2d 32) that, where a general demurrer is sustained with a stated number of days in which an amendment may be filed, and no such amendment is offered within the time limited, it is the law of the case that (1) the original petition failed to set out a cause of action, and (2) an amendment offered after the time limited is nugatory. Where, however, a material amendment is in fact allowed and filed subject to demurrer or objection within the time allowed by the court's order, and where nothing in such original order purports to dismiss the petition in praesenti, the question of the petition's sufficiency is opened for a fresh adjudication.

Fuller v. State of Ga., 232 Ga. 581 ( 208 S.E.2d 85) (1974). See, generally, Northside Manor v. Vann, 219 Ga. 298 ( 133 S.E.2d 32) (1963). This we have undertaken to do over a period of some years, as is evidenced by Justice Clarke's discussion in Jackson v. State, 246 Ga. 459 ( 271 S.E.2d 855) (1980).

After a hearing, a general demurrer was sustained with the petitioner allowed 15 days to amend. No amendment was thereafter filed, and under the ruling in Northside Manor v. Vann, 219 Ga. 298 ( 133 S.E.2d 32), this judgment became final and is res judicata as to the right of the intestate to set up her claim as superior to the brother or his privies, or as to any other issue such as title by adverse possession which might have been put in issue in that case. See Code §§ 110-501, 110-504, 38-623.