Where, in a writ of error to dismissal of a petition for certiorari seeking review of a judgment holding one in contempt of court, exception is taken to such judgment as violative of certain named provisions of the constitutions of the State of Georgia and of the United States, and such assignment of error does not contemplate construction of the constitution where the meaning of some provision thereof is directly in question, or is doubtful by force of its own terms or under the decisions of the Supreme Court of the United States or of the Supreme Court of Georgia,
the Court of Appeals, and not the Supreme Court, has jurisdiction of the writ of error.
No. 14712. NOVEMBER 10, 1943.
The plaintiff in error was adjudged in contempt of court by a judge of the civil court of Fulton County, because of conduct in the presence of the court, found by the judge to be contemptuous, during the trial of a case in which the plaintiff in error appeared as attorney for one of the parties. Upon petition for review of that judgment the writ of certiorari was directed to issue, requiring answer by the judge of the civil court. In addition to the answer by the judge of the civil court, the solicitor-general of the Atlanta Judicial Circuit, on behalf of the State, filed general and special demurrers and a motion to dismiss. Certain of the special demurrers and the motion to dismiss were sustained. The case is in this court on a bill of exceptions wherein is the following statement: "The Supreme Court of Georgia, and not the Court of Appeals, has jurisdiction of this bill of exceptions, because of the constitutional questions raised herein." Three of the assignments of error in the petition for certiorari attack the judgment of contempt as erroneous and a gross abuse of discretion, in that it is violative: (1) of the due-process provision of the constitution of the State (Code, § 2-103): "No person shall be deprived of life, liberty, or property, except by due process of law." (2) Of the similar provision of the constitution of the United States. (3) Of the provision of the constitution (Code, § 2-104) to the effect that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." The bill of exceptions contains assignments of error on the order sustaining grounds of special demurrer, and the motion to dismiss the certiorari, as violative of the constitutional provisions cited above, in that it denied to petitioner his right of appeal by way of certiorari. Said ruling was also alleged to be violative of the provision in the constitution of Georgia, art. 6, par. 5 (Code, § 2-3205), that the superior courts "shall have power to correct errors in inferior judicatories by writ of certiorari, which shall only issue on the sanction of the judge, and said courts and the judges thereof shall have the power to issue writs of mandamus, prohibition, scire facias, and all other writs that may be necessary for
carrying their powers fully into effect, and shall have such other powers as are or may be conferred on them by law." The error assigned is to the effect that the petitioner was deprived of his right to a review by writ of certiorari of the judgment of the judge of the civil court.
1. The Supreme Court has jurisdiction "in all cases that involve the construction of the constitution of the State of Georgia or of the United States." Code, § 2-3005. But, "Jurisdiction is not vested in the Supreme Court merely because it is contended that an action or judgment is or would be contrary to some provision of the constitution." Head v. EdgarBros. Co., 187 Ga. 409, 411 (200 S.E. 792). "The words, `construction of the constitution,' etc., as here employed, contemplate construction where the meaning of some provision of the constitution is directly in question, and is doubtful by force of its own terms or under the decisions of the Supreme Court of the United States or of the Supreme Court of Georgia; and the provision of the constitution in which they are employed is not to be construed as denying to the Court of Appeals jurisdiction of cases which involve mere application of unquestioned and unambiguous provisions of the constitution to a given state of facts." Gulf Paving Co. v. Atlanta, 149 Ga. 114,117 (99 S.E. 374); Head v. Edgar Bros. Co., supra;Hodges v. Seaboard Savings Loan Asso., 186 Ga. 845
(199 S.E. 105); Gaston v. Keehn, 195 Ga. 559
(24 S.E.2d 675). The constitutional questions involved in the instant case do not call for a construction of any constitutional provision, but only the application thereof to a given state of facts.
Since no other question presented falls within the class of cases set out in the Code, § 2-3005, of which the Supreme Court has jurisdiction, and under the constitutional amendment (art. 6, sec. 2, par, 9; Code, § 2-3009) the Court of Appeals has jurisdiction for the correction of errors of law from superior courts, and other named courts, in all cases in which jurisdiction has not been conferred by the constitution upon the Supreme Court, the Court of Appeals, and not the Supreme Court, has jurisdiction of this case.
Transferred to the Court of Appeals. All the Justicesconcur.