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ROBINSON et al. v. MCLENNAN et al.
ALDREDGE et al. v. MCLENNAN et al.; and vice versa.
24650.
24651.
24652.
NICHOLS, Justice.
Injunction. Fulton Superior Court. Before Judge Pye.
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 SE2d 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 SE2d 880), and Frankel v. Cone, 214 Ga. 733 (107 SE2d 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 SE2d 667), 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 Act unconstitutional was reversed. Richmond Concrete Products Co. v. Ward, 95 Ga. App. 419 (98 SE2d 130).
(b) Accordingly, so much of the judgment of the trial court as permanently enjoins the payment of certain funds so long as the Act declared by the trial court to be unconstitutional is enforced must be reversed since trial court was without authority to declare an Act unconstitutional in the absence of a proper attack upon it. Whether or not the Act is in fact unconstitutional is not passed upon.
Alex McLennan, for McLennan.
James P. Groton, Madison Richardson, Clay C. Long, Sutherland, Asbill & Brennan, for Robinson et al.
SUBMITTED MAY 16, 1968 -- DECIDED JUNE 20, 1968.
Friday May 22 18:14 EDT


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