Opinion
14152.
JULY 15, 1942.
Petition to review judgment. Before Judge A. L. Etheridge. Fulton superior court. February 3, 1942.
A. L. Henson, Clifford Walker and Otis L. Hathcock, for plaintiffs in error. Dillon Rose, contra.
1. This court will not pass upon the constitutionality of an act of the General Assembly, unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge. Yarbrough v. Georgia Railroad Banking Co., 176 Ga. 780 ( 168 S.E. 873).
2. In order to raise a question as to the constitutionality of a statute, "the statute which the party challenges, and the provision of the constitution alleged to have been violated, must both be clearly specified; and it must also be shown wherein the statute violates such constitutional provision." Abel v. State, 190 Ga. 651, 653 ( 10 S.E.2d 198). See Stewart v. Board of Commissioners of Echols County, 192 Ga. 139 (2) ( 14 S.E.2d 728).
3. In the instant case, even if there was sufficient specification of the statute and of the constitutional provisions alleged to have been violated, there was no averment stating or showing wherein they were violated; nor does it appear that the constitutionality of the statute was passed on by the trial judge. For each of these reasons, it must be held that the record does not present any such question as to the constitutionality of a statute as would confer jurisdiction upon the Supreme Court; and there being no other basis for jurisdiction in this court, the case must be transferred to the Court of Appeals. Code, §§ 2-3005, 2-3009.
So ordered. All the Justices concur.
No. 14152. JULY 15, 1942.
Parties describing themselves as Edmond Dayan, doing business as The Linen Store, Edmond Dayan and Davis Dayan, a partnership formerly doing business as Dayan Brothers, and Joseph Dayan and Edmond Dayan, a partnership doing business as Dayans, filed in the superior court a petition against Ben T. Huiet as commissioner of the Department of Labor and ex-officio administrator of the unemployment compensation law, and against Sarah Jacobs Leaf, an individual, to whom, it was alleged, the Board of Review had made an award of unemployment compensation as an exaction against petitioners.
The petition alleged, among other things, that the decision of the Board of Review "is wholly without evidence to support it, and is in conflict with the evidence, and constitutes an erroneous finding of law and an erroneous application of the law to the facts." It also quoted section 19(g) (4) of the unemployment compensation law of 1937, and alleged that the decision of the board was based on this section.
Paragraph 9 was as follows: "Petitioners show that said section quoted above, to wit: 19g (4), is void in so far as your petitioners are concerned, as contravening article 1, section 1, paragraph 2, of the State constitution (Code paragraph 2-102), and the equal-protection clause of the United States constitution (amendment 14; Code paragraph 1-815)."
The defendant commissioner filed an answer in which he denied the material allegations of fact as well as the legal conclusions asserted by petitioners. By agreement of the parties, the case was submitted to Honorable A. L. Etheridge, one of the judges of the Atlanta judicial circuit, upon the record of the evidence as adduced before the referee. The following judgment was rendered by Judge Etheridge: "The decision of the Board of Review of Unemployment Compensation of the State of Georgia, to which exception was in this case taken for judicial review, is reversed and set aside as being contrary to law." To this judgment the defendants Huiet and Leaf excepted.