West v. Frick Co.

ON MOTION ROE REHEARING.

Broyles, C. J.

Counsel for the plaintiffs allege in their motion for a rehearing that this court in rendering its judgment must have overlooked the act of the General Assembly (Ga. L. 1937, p. 804), approved March 29, 1937, which repealed the “trade-name” act approved August 15, 1929, and provided that the failure of any person, persons, or partnership to file the affidavit required by the “trade-name” act would not invalidate any contract, whether the contract was made before or after the approval of said act of 1937. The “trade-name” act was of full force and effect on February 3, 1936, when the trial court sustained the general demurrer to the petition. This court, on April 7, 1937, in affirming that judgment, did not overlook the act of 1937, but construed it as not operating so retroactively as to give to the plaintiffs rights which they did not have on February 3, 1936, when their petition was dismissed on general demurrer. If the act were construed as contended for by the plaintiffs, it would destroy vested rights and be retroactive and unconstitutional. “An act of the General Assembly which creates a new obligation and imposes a new duty in respect to transactions or considerations already past is retroactive in character, and in violation of art. 1, sec. 3, par. 2, of the constitution [Code, § 2-302], which forbids the General Assembly to pass a retroactive law.” Ross v. Lettice, 134 Ga. 866 (68 S. E. 734, 137 Am. St. R. 281); Gunn v. Barry, 82 U. S. 610 (21 L. ed. 212). Of course this court is without authority to hold that an act of the General Assembly is unconstitutional, and we do not so hold in this case. On the contrary, we are endeavoring by our construction of the act to make it valid and constitutional. The eases cited in the motion for rehearing are differentiated by their facts from this case.

Rehearing denied.

MacIntyre and Guerry, JJ., concur.