Robinson v. McLennan, s. 24650-24652

• Decision Date: 20 June 1968
• Docket Number: Nos. 24650-24652,s. 24650-24652
• Citation: 162 S.E.2d 314,224 Ga. 415
• Court: Georgia Supreme Court
• Parties: W. L. ROBINSON et al. v. Alex McLENNAN et al. James H. ALDREDGE et al. v. Alex McLENNAN et al. Alex McLENNAN v. James H. ALDREDGE et al.

Page 314

162 S.E.2d 314

224 Ga. 415

W. L. ROBINSON et al. v. Alex McLENNAN et al.

James H. ALDREDGE et al. v. Alex McLENNAN et al.

Alex McLENNAN v. James H. ALDREDGE et al.

Nos. 24650-24652.

Supreme Court of Georgia.

June 20, 1968.

Alex McLennan for himself.

Harold Sheats, Paul H. Anderson, Atlanta, for Board of Commissioners.

James P. Groton, Madison Richardson, Sutherland, Asbill & Brennan, Clay C. Long, Atlanta, for Board of Education.

Syllabus Opinion by the Court

NICHOLS, Justice.

Alex McLennan, a citizen, resident and taxpayer of Atlanta, Fulton County, Georgia, filed an equitable petition seeking to enjoin the payment of certain sums of money by the county authorities to the Fulton County Board of Education and the Fulton County School Pension Board. After ruling that the payments were not in violation of the Constitution for the reasons alleged in the plaintiff's petition, the trial court ruled that one of the payments sought to be enjoined was unlawful if a certain Act of the General Assembly was enforced which Act the court held to be unconstitutional. The Act declared to be unconstitutional was not attacked by the plaintiff. In separate appeals the Fulton County Commissioners and members of the Fulton County Board of Education appeal and enumerate as error that part of the judgment declaring the Act of the General Assembly unconstitutional and enjoining the payment of funds while such Act is being enforced. The plaintiff filed a cross appeal. Held:

1. The cross appeal was docketed in this court on April 12, 1968 and no enumeration of error was filed until more than ten days later. Thus the motion to dismiss the cross appeal is sustained and the cross appeal dismissed. See Davis v. Blum's, Inc., 223 Ga. 790(3), 158 S.E.2d 410.

2. It is well settled that an Act of the General Assembly, although palpably unconstitutional, may not be so declared by the courts of this State in the absence of a proper attack thereon. See McElroy v. McCord, 213 Ga. 695, 100 S.E.2d 880, and Frankel v. Cone, 214 Ga. 733, 107 S.E.2d 819.

(a) Such rule is as applicable to the trial court as to this court. See Richmond Concrete Products Co. v. Ward, 212 Ga. 773, 95 S.E.2d 677, holding that a judgment declaring an Act unconstitutional was not reviewable by this court (otherwise the case was one reviewable by the Court of Appeals), where no proper attack on the Act had been made in the trial court. After the case was transferred to the Court of Appeals the judgment of the trial court holding the...