Head v. Edgar Bros. Co

• Citation: 200 S.E. 792,187 Ga. 409
• Decision Date: 10 January 1939
• Docket Number: No. 12594.,12594.
• Parties: HEAD, Revenue Com'r. v. EDGAR BROS. CO.
• Court: Supreme Court of Georgia

187 Ga. 409

200 S.E. 792

HEAD, Revenue Com'r.
v.
EDGAR BROS. CO.

No. 12594.

Supreme Court of Georgia.

Jan. 10, 1939.

[200 S.E. 792]Syllabus by the Court.

Under the facts of this case the Court of Appeals, and not the Supreme Court, has jurisdiction of the writ of error.

Error from Superior Court, Wilkinson County; James B. Park, Judge.

Execution proceeding by T. J. Head, State Revenue Commissioner against the Edgar Brothers Company for income tax. To review a judgment in favor of the defendant, the plaintiff brings error to the Supreme Court.

Case transferred to the Court of Appeals.

M. J. Yeomans, Atty. Gen., B. B. Zellars and Duke Davis, Asst. Attys. Gen., and Marshall L. Allison, of Atlanta, for plaintiff in error.

Orville A. Park and Orville A. Park, Jr., both of Macon, for defendant in error.

BELL, Justice.

The State Revenue Commission issued an execution against Edgar Brothers Company for income tax alleged to be due under the income-tax act of 1929, Laws 1929; p. 92. The defendant filed an affidavit of illegality, which was sustained by the superior court. Affirmance by the Court of Appeals was reversed by this court. State Revenue Commission v. Edgar Brothers Co., 55 Ga.App. 505, 190 S. E. 623; Id., 185 Ga. 216, 194 S.E. 505. On the next trial in the superior court the defendant amended its affidavit of illegality by alleging: "The attempt to tax said income would deprive the taxpayer of its property without due process of law and deny to it the equal protection of the law guaranteed to it by the fourteenth amendment of the constitution of the United States [U.S.C.A.], as well as paragraphs 2 and 3 of section 1, article 1, of the constitution of this State." The affidavit of illegality was again sustained by the trial court, and to this judgment the State revenue-commissioner, successor to the original plaintiff in fi. fa., excepted. The writ of error in this instance was made returnable to the Supreme Court, because of the quoted amendment to the affidavit. Did this amendment have the effect of changing the case into one of which this court has jurisdiction? No.

The Supreme Court shall have jurisdiction "in all cases that involve the construction of the Constitution of the State of Georgia or of the United States, " and "in all cases in which the constitutionality of any law of the State of Georgia or of the United States is drawn in question." Art. 6, sec. 2, par. 5; Code, § 2-3005. "The Court of Appeals has jurisdiction to decide questions of law that...