STATE HIGHWAY DEPARTMENT
v.
KIRCHMEYER et al.

Arthur K. Bolton, Attorney General, Richard L. Chambers, Assistant Attorney General, F. H. Boney, Deputy Assistant Attorney General, for appellant.

Cook & Palmour, A. Cecil Palmour, for appellees.

GRICE, Justice.

This case was originally filed in the Court of Appeals and was transferred by it to this court. However, the only possible basis for jurisdiction of this court is an attack by the condemnee on the constitutionality of a statute of this State, and the record fails to show that such question was passed upon by the trial judge.

The situation here is different from that in Burke v. State, 205 Ga. 520 (54 SE2d 348), relied upon by the condemnee in his motion to transfer the case to this court. In Burke the overruling of the motion containing a constitutional attack was properly held to be an adjudication of each and every ground of that motion and thus a ruling on the constitutional question. *80 But in the case at bar, the pleadings containing the constitutional attacks were sustained. That ruling was not necessarily an adjudication of every ground of the pleadings, but adjudicated only that at least one of the grounds of the pleadings was meritorious. Furthermore, the order of the court makes it clear that the grounds considered meritorious were grounds other than those making the constitutional attacks.

It is well established 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." Perry v. Maryland Casualty Co., 216 Ga. 93 (115 SE2d 102). Therefore, the Court of Appeals, and not this court, has jurisdiction of this appeal, and it is Returned to the Court of Appeals. All the Justices concur.