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Declaratory judgment; constitutionality of city ordinance. Muscogee Superior Court. Before Judge Davis.
HEAD, Presiding Justice.
The Court of Appeals has jurisdiction of a case in which the judgment under review is one declaring a city ordinance unconstitutional, illegal, and unenforceable.
The Atlanta Cigar Company, Inc., and others, filed their petition against the City of Columbus "for declaratory relief under Georgia Code Sections 110-11 for the purpose of determining a question in actual controversy between the parties." The petition attacked an ordinance of the City of Columbus purporting to levy a tax on certain tobacco products. It was asserted that the ordinance was in conflict with stated provisions of the Georgia law, and in conflict with provisions of the Georgia Constitution for stated reasons. It was prayed that declaratory judgment be entered in line with the contentions of the petitioners, and that "the defendant, its agents and servants, be restrained and enjoined by the order of this court, from the enforcement of said ordinance, pending the final determination of the issues stated herein, and upon such determination, be permanently restrained and enjoined" from the enforcement of the ordinance.
The judge of the superior court issued a rule nisi requiring the defendants to show cause why the prayers for relief in the petition should not be granted. Subsequently the judge entered an order wherein it was held that the tax ordinance was in conflict with stated provisions of the Georgia law, was unconstitutional, "null, void, illegal and unenforceable," and imposed no duty or obligation upon the petitioners; and that the City of Columbus was without authority to enact such ordinance.
The City of Columbus excepted to this judgment by a bill of exceptions wherein it was asserted that the Court of Appeals and not the Supreme Court of Georgia had jurisdiction of the writ of error "for the reason that this case does not involve any matter, the exclusive jurisdiction of which, is reserved to the Supreme Court of Georgia." The Court of Appeals transferred the case to this court, and jurisdiction of the writ of error is before this court for determination.
A prayer for injunctive relief to maintain the status does not convert an action for declaratory relief into an equitable action. Griffin v. Hardware Mutual Ins. Co., 212 Ga. 130 (91 SE2d 10); U. S. Casualty Co. v. Ga. So. & Fla. R. Co., 212 Ga. 569 (94 SE2d 422). Where, as in the present case, there are no allegations in the petition germane to any equitable relief, a prayer for permanent injunction, after a determination of the cause by the court, to restrain the defendant from enforcing the ordinance, is insufficient to convert an action for declaratory relief into an equity case.
Moreover, in the present case no injunctive relief was granted either in the order of the court setting the matter far a hearing or in the judgment declaring the ordinance void and unenforceable, and there is no assignment of error involving the right of the petitioners to injunctive relief. The question of jurisdiction of this court will be evaluated on the character of the case as it stands before this court, and the relief granted in the trial court. Brightwell v. Oglethorpe Telephone Co., 176 Ga. 65 (166 SE 646); Holloway v. Dorsey, 198 Ga. 266 (31 SE2d 349); Swinson v. Jones, 198 Ga. 327 (31 SE2d 592); Overstreet v. Schulman, 203 Ga. 284 (46 SE2d 344); Findley v. City of Vidalia, 204 Ga. 279 (49 SE2d 658); Williams v. Russell, 207 Ga. 220 (60 SE2d 243); Miller v. Ray, 208 Ga. 27 (64 SE2d 449).
The Court of Appeals has jurisdiction to decide constitutional questions that do not involve the construction of the Constitution of the United States or of this State, or the constitutionality of a law of the United States or of any law of this State. Thompson v. City of Atlanta, 176 Ga. 489 (168 SE 312); Stafford v. City of Valdosta, 178 Ga. 224 (172 SE 461); Maner v. Dykes, 183 Ga. 118 (187 SE 699); Dade County v. State, 203 Ga. 280 (46 SE2d 345); Shipman v. Johnson, 210 Ga. 174 (78 SE2d 515); Beard v. City of Atlanta, 211 Ga. 25 (83 SE2d 594).
Under the Constitution, Art. VI, Sec. II, Par. IV (Code Ann. 2-3704) jurisdiction of the writ of error in the present case is vested in the Court of Appeals and not the Supreme Court of Georgia.
Remanded to the Court of Appeals. All the Justices concur.
Norton & Cooper, contra.
Lennie F. Davis, L. L. Davis, Davis & Davis, for plaintiff in error.
Friday May 22 21:24 EDT

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