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Lawskills.com Georgia Caselaw
STATE HIGHWAY DEPARTMENT v. HICKS et al.
42631.
PER CURIAM.
Condemnation of land. DeKalb Superior Court. Before Judge Peeler.
This appeal was docketed in our court January 23, 1967. A motion to dismiss was filed upon the ground that the transcript of the evidence was not filed within 30 days after the filing of the notice of appeal, nor was any order applied for extending the time for filing.
When the case was argued before us we were of the opinion that the motion to dismiss was good under the ruling of Davis v. Davis, 222 Ga. 579 (151 SE2d 123). However, within a few days after arguments were made the General Assembly adopted an amendment to the Appellate Practice Act, which was approved March 30, 1967, by which it is provided in 3, amending 13 of the Act, that "An appeal shall not be dismissed nor consideration thereof refused because of failure of the court reporter to file the transcript of evidence and proceedings within the time allowed by law or order of the court, unless it affirmatively appeals from the record that such failure was caused by the appellant."
Since the amendment is remedial in character, we gave it retroactive effect under the rulings in City of Valdosta v. Singleton, 197 Ga. 194, 208 (28 SE2d 759) and Fulton County v. Spratlin, 210 Ga. 447 (2) (80 SE2d 780), as in similar instances we had done in Horton v. Western Contr. Corp., 113 Ga. App. 613 (149 SE2d 542), St. Paul Fire &c. Ins. Co. v. Postell, 113 Ga. App. 862, 865 (149 SE2d 864), and Wood v. Mobley, 114 Ga. App. 170 (150 SE2d 358), and denied the motion.
constitutional question is raised by the attack on the amendment for lack of an enacting clause.
Although the Constitution of this state carries no provision requiring an enacting clause, as does that of most of the state of Virginia, Delaware and Pennsylvania apparently being the only others which do not--the philosophy of the requirement of an enacting clause, outlined by the Supreme Court of Tennessee in State v. Burrow, 119 Tenn. 376, 388 (104 SW 526), and as dealt with in 1 Sutherland, Statutory Construction, Ch. 18, 1801, et seq., certainly impels one to conclude that it is a constitutional issue. Constitutional provisions for the enactment of legislation are found in Art. III, Sec. VII (Code Ann. 2-1901 et seq.).
It is true that the issue was not raised in the trial court--but there was no opportunity to do it. The Amendment was not adopted until after the case was argued before us. In a similar situation the Supreme Court held that the attack could be made in the appellate court and the appellate court should rule on it. Calhoun v. State Hwy. Dept., 223 Ga. 65, 67 (2) (153 SE2d 418).
The Court of Appeals has no jurisdiction to pass upon the constitutionality of an Act of the General Assembly, that power being vested in the Supreme Court.
Consequently, we transfer this appeal to the Supreme Court.
Zachary & Hunter, W. E. Zachary, Sr., John C. Hunter, E. H. Stanford, for appellees.
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, for appellant.
ARGUED MARCH 6, 1967 -- DECIDED MAY 5, 1967.
Friday May 22 19:41 EDT


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