Opinion
13993.
JANUARY 13, 1942.
O. N. Singleton, J. L. Barwick, C. V. Whiddon, and Joseph M. Love, for plaintiffs.
John A. Boykin, solicitor-general, William E. Spence, E. A. Stephens, and Durwood T. Pye, for defendant.
1. The attack, made for the first time in the bill of exceptions, that the decision excepted to was void because its effect was to deprive the plaintiffs in error of vested contract and property rights, privileges, and immunities and therefore in violation of paragraph 5 of section 1 of article 12 of the constitution of this State, is not sufficient to give this court jurisdiction of the writ of error. Paragraph 5 of section 2 of article 6 of the constitution; Felker v. Still, 176 Ga. 735 ( 169 S.E. 15); Silas v. State, 181 Ga. 744 ( 184 S.E. 318); Bentley v. Anderson-McGriff Hardware Co., 181 Ga. 813 ( 184 S.E. 297); Forrester v. Lowe, 192 Ga. 469, 477 ( 15 S.E.2d 719).
2. The same paragraph requires that any case carried to this court which belongs to the class of which the Court of Appeals has jurisdiction shall be transferred thereto. Paragraph 9 of the same section of the constitution declares that the Court of Appeals shall have jurisdiction in all cases in which such jurisdiction has not been conferred upon the Supreme Court. The case is therefore transferred to the Court of Appeals.
3. In so transferring the case this court does not adjudicate whether or not the exception involved is such a justiciable question as is reviewable by the Court of Appeals. That court, and not this court, has jurisdiction to determine that question, together with any other issue which may properly arise under the record.
Transferred to the Court of Appeals. All the Justices concur.
No. 13993. JANUARY 13, 1942.
On October 15, 1940, upon the application of registered voters in a territory embracing portions of Fulton, Gwinnett, and Forsyth Counties, Judge Paul S. Etheridge of Fulton superior court, passed an order incorporating the village of Liberty Valley Inc. On December 13, 1940, at the November term of said court, the said judge, of his own motion, passed an order nullifying and setting aside the order of October 15, 1940, stating that in passing the former order he was "under a misapprehension as to the nature of the proposed corporation, believing he was dealing with an application for a charter for an ordinary commercial corporation." On July 16, 1941, A. M. Bell and others, on whose application the original charter of Liberty Valley Inc. was granted, filed their petition in Fulton superior court, alleging, that in pursuance of the court's order of October 15, 1940, granting to the applicants a municipal corporate franchise under the name and style of Liberty Valley Inc., said municipality organized and elected officers, began to function as an incorporated municipality, entered into contracts, granted permits, and adopted by-laws and regulations; that thereafter, without notice to any officer or person interested, and without an opportunity to be heard, said judge of the superior court passed an order nullifying the charter granted on October 15, 1940; that the last-mentioned order was void and of no effect, for the alleged reason that such revocation and dissolution of a municipal franchise can be obtained only upon a proceeding filed in court for that purpose, with notice and opportunity to be heard in opposition thereto. They prayed that said order revoking the charter of Liberty Valley Inc. be vacated and set aside. An intervention was filed by Lucien Bell, who, after admitting the facts above recited, opposed the effort to have vacated the order nullifying and dissolving the charter and franchise of Liberty Valley Inc., he alleging that the original order of incorporation was void for want of jurisdiction of the subject-matter.
The petition of A. M. Bell and others was dismissed by Judge Dorsey, and they excepted. Their contention that the order revoking the original order of incorporation was in violation of specified provisions of the constitution of this State was made by them for the first time in their bill of exceptions.