Opinion
39409.
DECIDED JULY 3, 1962. REHEARING DENIED JULY 27, 1962.
Complaint. Fulton Civil Court. Before Judge Parker.
Eugene Cook, Attorney General, Carter Goode, Donald E. Payton, Richard L. Chambers, Assistant Attorneys General, for plaintiff in error.
William Hall, William L. Norton, contra.
1. The State Revenue Commissioner is a law enforcement officer within the meaning of Code Ann. § 56-1201 (4) (Ga. L. 1960, pp. 289-500), under the provisions of which any suit on his surety bond must be brought in the county of his residence.
2. The Court of Appeals has jurisdiction to decide whether a party has the status to challenge a statute on constitutional grounds, though the constitutional issue itself be one for the Supreme Court.
3. Mere failure of the trial court to rule upon a demurrer in which a statute is challenged upon constitutional grounds, does not on appeal raise a constitutional question, nor does a ruling that the demurrant has no status or standing to challenge the constitutionality of the statute in question.
4. When the State has brought suit on the bond of a State Revenue Commissioner to recover for alleged defalcations of his subordinates, not in the county of his residence but in the county where the court has jurisdiction over the surety on his bond, the Commissioner files a plea to the jurisdiction based upon the provisions of Code Ann. § 56-1201 (4), and the State thereupon demurs to his plea upon the ground that the provisions of the Code section are unconstitutional and void, being in conflict with and violative of Art. I, Sec. IV, Par. I ( Code § 2-401) and of Art. VI, Sec. XIV, Par. IV ( Code § 2-4904) of the Constitution of Georgia, it was error for the court to refuse to rule upon the demurrer upon the ground that the State had no status or right to challenge the constitutionality of the acts of its General Assembly, or to hold that the State had no status or standing to make the challenge.
DECIDED JULY 3, 1962 — REHEARING DENIED JULY 27, 1962.
1. It seems to us that beyond any peradventure the State Revenue Commissioner is a law enforcement officer within the meaning of the provisions of Code Ann. § 56-1201 (4), requiring that suits on the surety bonds of "a sheriff, or other arresting or law enforcement officer . . . shall be instituted in the county of the residence of such officer, and not in any other county . . ." He is empowered, inter alia, to seize and sell property under Code Ann. §§ 58-915, 58-921, 58-1021, 58-1067, 92-2215, 92-2225, 92-3434a and other sections, to make and promulgate rules and regulations for the enforcement of the alcoholic beverage control laws ( Code Ann. §§ 58-1012, 58-1022), and for the enforcement of income tax laws ( Code § 92-3005), the sales tax laws ( Code Ann. § 92-3438a), and to do many other things which in their nature, are a part of the process of enforcing laws the administration of which is delegated to him. The several statutes use the terms "enforce," "to enforce" and "enforcement" many times when referring to actions or things authorized or required to be done by him. Consequently, the provisions of Code Ann. § 56-1201 (4) are applicable to suits brought against the State Revenue Commissioner and the surety on his bond.
2-4. All other rulings herein are pursuant to the answers made by the Supreme Court to certified questions which we submitted. Vandiver v. Williams, 218 Ga. 60 ( 126 S.E.2d 210).
Judgment reversed. Carlisle, P. J., and Russell, J., concur.