42 S.E.2d 128 | Ga. | 1947
Lead Opinion
1. A question of constitutional law not raised at the trial, but presented first in a petition to the superior court for a certiorari, is not properly presented for decision on a writ of error.
2. A negative answer to question No. 2 obviates the necessity of answering the other questions submitted.
"(1) Is the question of the constitutionality of the quoted part of the act of 1927 raised in such a manner as to require an adjudication of the question?
"(2) Could the question of the constitutionality of said part of said act be raised for the first time in a petition for certiorari under the facts stated? See, in this connection,Empire Investment Company v. Hutchings,
"(3) Does the Court of Appeals have jurisdiction to decide the question of the constitutionality of the part of the act of 1927 attacked in the petition for certiorari?
"(4) Is that part of the act of 1927, § 64, page 1321, attacked in the petition for certiorari, unconstitutional for the reason assigned in the said petition?
"(5) If the fourth question is answered in the affirmative, is the constitutional certiorari from the judgment of the Mayor and Council, as provided in Code, § 2-3205, article 6, section 4, paragraph 5 of the Constitution, available to a policeman found guilty on appeal under § 58, rule 13, acts of 1927, page 1318, which provides that "The right of appeal from the decision of either committee to the mayor and council is hereby granted each employee;' the committees here referred to being the police and the fire committee?"
1. The office of a certiorari is to review a judgment of an inferior judicatory when such tribunal exercises judicial or quasi-judicial powers. Code, § 19-201; Bryant v.Board of Education of Colquitt County,
In the Brockett case, this court said: "A question of constitutional law not raised at the trial, but presented first in the petition to the superior court for a certiorari, is not properly presented for decision on a writ of error."
In our examination of Empire Investment Co. v. Hutchings,
In the instant case, the plaintiff in error by his petition for the writ of certiorari sought to attack, for the first time, the constitutionality of section 64 of the act of 1927 (Ga. L. 1927, p. 1321), and on authority of the cases we have cited, together with many others by this court, we again hold that this cannot be done, and accordingly answer the second question submitted in the negative.
2. Having held in the preceding division, in answer to the second question certified to us, that a constitutional question may not be raised for the first time in a petition for the writ of certiorari, we think that it becomes unnecessary to answer the other *71 questions, since a determination of them depends entirely upon an affirmative answer to the question we have considered.
All the Justices concur. Jenkins, C. J., concurs specially.
Concurrence Opinion
A statute may be in part constitutional and in part unconstitutional. If the plaintiff in error had merely attacked in the superior court, upon the presentation of his petition for certiorari, the illegal unconstitutional provision that no appeal by certiorari can be had from the judgment of the mayor and council, I think that he could have been heard to do so, for the reason that this was the first opportunity that such attack could properly have been made. He has, however, after availing himself of the right and benefit of an appeal to the mayor and council, sought here to attack as unconstitutional, not only the portion which denies the right of certiorari to the superior court, but the entire provision authorizing the right of appeal to the mayor and council, of which right he has availed himself. This he cannot do.