Vandiver v. Williams, 21647

• Decision Date: 12 June 1962
• Docket Number: No. 21647,21647
• Citation: Vandiver v. Williams, 126 S.E.2d 210, 218 Ga. 60 (Ga. 1962)
• Parties: S. Ernest VANDIVER, Governor, etc., v. T. V. WILLIAMS et al.
• Court: Georgia Supreme Court

Page 210

126 S.E.2d 210

218 Ga. 60

S. Ernest VANDIVER, Governor, etc., v. T. V. WILLIAMS et al.

No. 21647.

Supreme Court of Georgia.

June 12, 1962.

Syllabus by the Court

1. The ruling of a trial court that the State has no status or right to challenge the constitutionality of a particular act of the General Assembly does not raise a question of which the Supreme Court has jurisdiction.

2. The State has standing to attack the constitutionality of an act of the General Assembly when the rights of the State may be affected by its terms.

Eugene Cook, Atty. Gen., Carter Goode, Donald E. Payton, Richard L. Chambers, Asst. Attys. Gen., Atlanta, for plaintiff in error.

William L. Norton, Gainesville, William Hall, Atlanta, for defendant in error.

GRICE, Justice.

The Court of Appeals certified the following questions:

'Where the State had instituted an action against a former State Revenue Commissioner and against the surety on his official bond in the Civil Court of Fulton County, the surety having an agent for service in Fulton County, and where the defendants, asserting that the former Revenue Commissioner was a 'law enforcement officer' and, that under the provisions of Code § 56-1201 (Ga.Laws, 1960, pp. 289, 500), the action was maintainable only in the county of his residence, which was not Fulton County, and where the State, by amendment to its petition attacked the constitutionality of Code § 56-1201 insofar as it purports to deprive the court in the county wherein the agent of a surety on the official bond of a former State Revenue Commissioner is located of jurisdiction of a suit on the bond when it appears that the former Commissioner was a resident of another county, as being contrary to and violative of Art. I, Sec. IV, Par. I (Code § 2-401) and of Art. VI, Sec. XIV, Par. IV (Code § 2-4904) of the Constitution of Georgia, and where the trial court thereupon ruled that the State had no status or right to challenge or attack the constitutionality of Code § 56-1201: ¹

1. Assuming that the State Revenue Commissioner is a 'law enforcement officer' within the provision of Code § 56-1201, does the ruling of the court that the State has no status or right to challenge the constitutionality of the particular Act of the General Assembly (Code § 56-1201) raise a question of which the Supreme Court, under Art. VI, Sec. II, Par. IV of the Constitution of Georgia (Code § 2-3704), and not the Court of Appeals, has jurisdiction to determine? See Burke v. State, 205 Ga. 520, 54 S.E.2d 348.

'If the foregoing question is answered in the negative, then and in that event we desire an answer to the following additional question:

'2. Does the State have the status or right to challenge or to attack the constitutionality of an act of the General Assembly when the rights of the State may be affected by the terms therof?'

1. The ruling of the trial court that the State has no status or right to challenge the constitutionality of Code § 56-1201 does not raise a question of which the Supreme Court, and not the Court of Appeals, has jurisdiction.

It is apparent that Code § 56-1201 was not construed by the trial court. The question as to its constitutionality was never reached, the trial court holding that the State lacked standing to raise it. In Perry v. Maryland Casualty Co., 216 Ga. 93, 115 S.E.2d 102, this court decline to consider the constitutionality of a statute because it ascertained that no ruling had been made on that question by the trial court. In doing so, it reaffirmed the long established rule that 'this court should never pass upon the constitutionality of a legislative act unless it clearly appears in the record that the point was * * * distinctly passed on by the trial judge.' Savannah, etc., Railway Co. v. Hardin, 110 Ga. 433, 437, 35 S.E. 681, 683. That rule applies here.

In Burke v. State, 205 Ga. 520, 54 S.E.2d 348, cited in...