Brunswick Peninsular Corp. v. Daugharty

• Decision Date: 19 March 1948
• Docket Number: 16085.
• Citation: 47 S.E.2d 275,203 Ga. 454
• Parties: BRUNSWICK PENINSULAR CORPORATION v. DAUGHARTY.
• Court: Georgia Supreme Court

47 S.E.2d 275

203 Ga. 454

BRUNSWICK PENINSULAR CORPORATION v. DAUGHARTY.

No. 16085.

Supreme Court of Georgia

March 19, 1948

Syllabus by the Court.

1. This court will never pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge.

2. Under the Constitution, cases respecting titles to land shall be tried in the county where the land lies, except wher a single tract is divided by a county line, in which case the superior court of either county shall have jurisdiction.

(a) In view of the act of 1927, Ga.L. 1927, p. 545, which purports to fix the boundary line between the counties of Clinch and Ware, and by its provisions placed the lands sued for in the county of Clinch, although they were formerly situated in the county of Ware, and which act under the ruling in paragraph 1, supra, must be treated as valid, the court did not err in sustaining the general demurrer and dismissing the instant suit at law as filed in the Superior Court of Ware County to recover the lands in question, it appearing that the lands are situated in the county of Clinch and that the Superior Court of Ware County would therefore have no jurisdiction of the subject-matter.

J B. Copeland and Jos. W. Dukes, both of Valdosta, for plaintiff in error.

Downing Musgrove, of Homerville, and Sapp & Ewing, of Douglas for defendant in error.

BELL Justice.

Brunswick Peninsular Corporation filed a suit in the Superior Court of Ware County against I. Daugharty to recover lots of land Nos. 37 and 38, which the petition alleged 'are now located in the Twelfth Land District of Ware County, Georgia.'

The petitioner based its claim of title upon two alleged certificates of title, one as to each lot, issued to the plaintiff by the Clerk of the Superior Court of Ware County Georgia, on July 8, 1947, under the Land Registration law. Code, § 60-101 et seq. The court sustained a general demurrer and dismissed the petition, and to this judgment the plaintiff excepted.

The suit is a plain action at law, seeking no other relief except recovery of the land, and as we view it, the only question now for determination is one of venue and jurisdiction as between Ware and Clinch Counties.

1. By an act approved February 14, 1850, Ga.L. 1950, p. 126, the General Assembly created a new county from the counties of Ware and Lowndes, to be called the County of Clinch, in which act boundary lines of the new county were stated, and although no land lots were named, it is conceded on both sides that under the terms of this act the two lots of land here in controversy were left in the County of Ware. But in 1927, the General Assembly passed another act, to fix and define the boundary line between the counties of Clinch and Ware 'from the mouth of Cane Creek southward to the Florida line, and for other purposes.' Ga.L. 1927, p. 545. It is conceded by the plaintiff in error that, under the terms and provisions of this act, if it should be treated as valid, these lots would now be located in the county of Clinch. The plaintiff in error insists, however, that this act is unconstitutional as being repugnant to the constitutional provisions (1877), that 'Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law', Const. art. 1, § 4, par. 1, Code, § 2-401, and that 'County lines shall not be changed, unless under the operation of a general law for that purpose.' Const. art. 11, § 1, par. 3, Code, § 2-8204. But it does not appear in the record that any attack whatever was made upon this statute in the trial court or any question as to validity was there adjudicated.

All statutes are presumed to be constitutional until the contrary appears, and it is the well-established general rule that 'This court will never pass upon the constitutionality of an act of the general assembly unless it clearly appears in the record that the point was directly and properly made in the court below, and distinctly passed on by the trial judge.' Brown v. State, 114 Ga. 60(2), 39 S.E. 873. See also, in this connection, Laffitte v. Burke, 113 Ga. 1000, 39 S.E. 433; Spielberger v. Hall & Co., 159 Ga. 511, 126 S.E. 391; Yarbrough v. Georgia R. & Banking Co., 176 Ga. 780(1), 168 S.E. 873; Stegall v. Southwest Georgia Regional Housing Authority, 197 Ga. 571(1 a), 30 S.E.2d 196; Boyers v. State, 198 Ga. 838, 843, 33 S.E.2d 251; Singleton v. State, 196 Ga. 136(1), 140, 26 S.E.2d 736; Price v. State, Ga., 42 S.E.2d 728.

So, in the present case, we must assume that the act of 1927 is a valid and constitutional statute, and that, in view of it these two lots of land are situated in Clinch County instead of Ware. We do not overlook the argument of counsel for the plaintiff in error, based upon Stanford v. Bailey, ...