Brockett v. Maxwell , 200 Ga. 213 ( 1946 )

1. While neither party has raised any question as to whether this case should be transferred to the Court of Appeals as the court of review having jurisdiction, it is the duty of this court, with or without motion of a party, to consider the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction; and the present case is one calling for such inquiry. Dobbs v. Federal Deposit Ins. Corp., 187 Ga. 569 (1 S.E.2d 672); McDowell v. McDowell, 194 Ga. 88, 91 (20 S.E.2d 602).

2. The question as to this court's jurisdiction of the particular case depends on whether the constitutionality of a statute is drawn in question, within the meaning of the constitutional provision relating to jurisdiction of the Supreme Court, there being in the record no other ground upon which such jurisdiction could be thought to rest. Code, § 2-3005; and see also art. 6, sec. 2, par. 4, amendment to the Constitution, ratified August 7, 1945.

3. "A question of constitutional law not raised at the trial, but presented first in a petition to the superior court for a certiorari, is not properly presented for decision on a writ of error." Martin v. State, 199 Ga. 731 (35 S.E.2d 151).

4. Furthermore, "A constitutional question which bears no reasonable relation to the case in hand could not be considered as determining jurisdiction. The question must at least be so related to the particular case that a decision thereon will be necessary unless it shall become unnecessary because of rulings on other questions raised." Florida State Hospital v. Durham Iron Co., 192 Ga. 459, 465 (15 S.E.2d 509).

5. Under the rule stated in 3 above, if the order of the ordinary declaring the result of the election was of such character as to be reviewable by the writ of certiorari, the validity of the statute could not be challenged for the first time in the petition for certiorari.

(a) On the other hand, under the ruling in 4 above, if the action of the ordinary was not of such character as to be reviewable by such writ, the petition for certiorari could not be aided by the attack on the statute, no matter when such attack was first made, and therefore the constitutional question could never be reached under such a petition. See, in this connection, Southeastern Greyhound Lines v. Georgia Public Ser. Comm., 181 Ga. 75 (181 S.E. 834, 102 A.L.R. 517); South View Cemetery Assn. v. Hailey, 199 Ga. 478 (34 S.E.2d 863). Accordingly, in any view of the case, no question as to the constitutionality of a statute is presented for determination. It follows that the Court of Appeals and not the Supreme Court has jurisdiction of the writ of error, and the case is transferred accordingly. Code, § 2-3009.

Transferred to the Court of Appeals. All the Justicesconcur.

No. 15305. JANUARY 9, 1946. C. B. Brockett presented to the judge of the Superior Court of Decatur County a petition for the writ of certiorari, seeking to review a decision by the ordinary of that county, which petition was denied. The petition alleged: The ordinary of Decatur County on May 29, 1945, called an election for the purpose of nullifying a previous one, which had been held on June 25, 1938, under the provisions of the act known as "The Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors." After the said election was held on June 15, 1945, the petitioner filed objections with the ordinary to a declaration of the result, which objections were heard and overruled on June 18, 1945; and the result of the election was declared in favor of nullifying the previous election. To the petition for certiorari was attached a copy of the objections, making the following allegations: The objector was a resident, citizen, and taxpayer of Bainbridge, Decatur County, Georgia, and was legally engaged in the business of a retail liquor dealer, having on hand a large stock and committed, under a contract, to buy more. He had a substantial property right involved in the result of the said election. He was paying to the City of Bainbridge and the County of Decatur an annual license fee for the privilege of carrying on his business. Some time prior to May 1, 1944, a number of registered voters handed to the ordinary of Decatur County a number of petitions, based on which she called an election, under the provisions of the act of 1941 (Ga. L. 1941, p. 199), to be held on a stated date, but because of an error in the advertisement the election was not held. Subsequently, certain citizens, desiring to bring on such election to nullify the previous election, obtained from the ordinary the petitions which had been previously lodged with her, circulated these together with other petitions, and after securing additional signers presented them again to the ordinary prior to May 29, 1945. In all, thirty-nine different petitions were presented to her, together with two sheets of paper, one with forty-three names thereon, and the other with fifty-four. The thirty-nine petitions, reciting that they had been signed by thirty-five percent of the registered voters of the county, requested that she call the election. Following the presentation of the petitions, and based thereon, and under the provisions of the act of 1941, supra, the election was called on May 29, 1945, to be held on June 15, 1945. The election called is illegal; and, if the result is declared, it will result in great damage to the objector, a multiplicity of suits, and will jeopardize the liberty of those who may subsequently seek to contest its legality. It was illegal to permit the withdrawal of the old petitions for recirculation and presentation again. The registration list for the general election immediately preceding the call of the election for June 15, 1945, showed a total registration of 4293 voters. Thirty-five percent of this number would be legally necessary as a basis for a call of an election. On the petitions presented were 348 names of persons not qualified to vote, 202 persons who signed one or more of the petitions two or more times, and 7 who were dead at the time the petition was presented. There were 1738 signatures on the several petitions and lists; but, when the names of those disqualified, the duplications in signing, and those deceased are deducted, the petitions do not contain the requisite thirty-five percent, or 1503, as the required number of signers. These facts have been brought to the attention of the ordinary to induce her to call off the election, but she declines to do so. It would be necessary for all of the petitioners to join in one petition, instead of signing several. Only two of the petitions have been marked "filed" by the ordinary. In numerous instances it appeared that one person signed the petition for others. Frequently the husband signed for the wife and vice versa, and in one instance the father signed for the whole family of six. The registration books were not opened five days subsequently to the call of the election, so as to allow the registration of voters.

By an amendment to the objections, which was allowed, it was further alleged that the objector had no opportunity to oppose the calling of the election, since he was without knowledge or even intimation that the same would be called until he saw the advertisement therefor in the official gazette of the county.

The petitioner for certiorari specifically assigned error upon the decision of the ordinary as follows: Because the order in declaring the result of the said election was error when it appeared, without dispute in the evidence, that an insufficient number had signed the petition to warrant the call of the election. The order was contrary to the law and the facts and without evidence to support it. The act of the General Assembly (Ga. L. 1941, p. 199), embodied in the Annotated Supplement of the Code as section 58-1010a, is in conflict with article 1, section 1, paragraph 3 of the constitution of Georgia, which provides that "No person shall be deprived of life, liberty, or property, except by due process of law," because the act does not provide any method for preventing the holding of an election thereunder or contesting such election, although illegal on its face.