Stephens v. Moran

¶1dissenting. I think the trial judge erred in granting a mandamus absolute in this case. Section 193 (14) of an Act which the Governor approved on March 5, 1957 (Ga. L. 1957, pp. 2429, 2495) provides that the City of East Point may “control and/or prohibit the manufacture and/or sale of alcoholic *8beverages” in that municipality. No attack is here made on the validity of that Act and until its invalidity is established in the manner and way provided by law, it is the duty of the courts to comply with its provisions. The legislature, like the courts, is bound by the Constitution and the members of that body, like ourselves, are sworn to maintain it. It is a grave matter for this court to set aside an Act of the co-ordinate legislative department and in Savannah, Florida &c. R. Co. v. Hardin, 110 Ga. 433, 437 (35 SE 681), it was unanimously said: “While the Constitution declares that legislative Acts in violation of its provisions are void, and the judiciary shall so declare them, it is well settled that a legislative Act should not be declared unconstitutional unless the point that the Act is unconstitutional is squarely made in the case. From this it necessarily follows that this court should never pass upon the constitutionality of a legislative Act unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge.” For cases prescribing the procedure which must be employed and followed in attacking the constitutionality of a legislative Act, see Dade County v. State of Ga., 201 Ga. 241, 245 (39 SE2d 473), and the several cases there cited. As pointed out above, no attack is here made on the constitutionality of the 1957 Act and this court has several times held that an attack on the validity of an annotated section of the unofficial Code of 1933 is not sufficient to draw into question the constitutionality of the Act from which it came. See Morgan v. Todd, 214 Ga. 497, 499 (106 SE2d 37); Tomlinson v. Sadler, 214 Ga. 671 (107 SE2d 215); Bowen v. State, 215 Ga. 471 (111 SE2d 44); and Underwood v. Atlanta & W. P. R. Co., 217 Ga. 226 (122 SE2d 100). In those cases this court refused to rule on an abortive and futile attempt to attack the validity of legislative Acts; and in the absence, as here, of any attack on the constitutionality of the 1957 Act, this court ought to give its provisions full force and effect. The Bagsdale case, supra, cited and relied on by the majority was decided prior to the 1957 Act which gave the City of East Point the right to prohibit the sale of alcoholic beverages in that municipality and for that reason the decision in Bagsdale is not here controlling.