Opinion
22689.
SUBMITTED OCTOBER 13, 1964.
DECIDED NOVEMBER 5, 1964.
Suit for inspection tax. Hall Superior Court. Before Judge Smith.
Eugene Cook, Attorney General, George J. Hearn, III, Alfred L. Evans, Jr., Benjamin L. Johnson, Assistant Attorneys General, Melvin Thompson, Jr., for plaintiff in error.
Wheeler, Robinson Thompson, B. Carl Buice, contra.
Originally this case was made returnable to the Court of Appeals and was transferred by that court to this court as being a case over which the Supreme Court has jurisdiction. The petition seeks only legal relief and the only assignment of error which the bill of exceptions contains is one assigning error on a judgment sustaining a ground of general demurrer to the petition which attacks its sufficiency to state a cause of action for the relief sought but which does not expressly raise any constitutional question respecting the validity of an Act which the General Assembly passed in 1906 as amended in 1953 and 1956 (Ga. L. 1906, p. 83; 1953, p. 418; 1956, pp. 293, 296) on which the plaintiff relies for his cause of action; and since this is true, the Court of Appeals and not the Supreme Court has jurisdiction to determine such question and the case must be and is returned to that court for decision. While it is true that some of the demurrers which the defendant interposed to the plaintiff's petition raise constitutional questions respecting the validity of the amended Act on which the plaintiff's right of recovery is predicated, those questions have not been ruled on by the trial judge and for that reason they do not present questions for decision which would give this court jurisdiction of the writ of error. As authority for the rulings here made, see Bentley v. Anderson-McGriff Hardware Co., 181 Ga. 813 ( 184 S.E. 297); Calhoun v. State, 211 Ga. 112, 113 ( 84 S.E.2d 198; Perry v. Maryland Casualty Co., 216 Ga. 93 ( 115 S.E.2d 102); and Undercofler v. United States Steel Corp., 219 Ga. 264 ( 133 S.E.2d 11).
Returned to the Court of Appeals. All the Justices concur.