The constitutionality of the act under which the appeal from a tax assessment was made being attacked for the first time in an exception to a charge of the court in an amended motion for new trial, and not in an appropriate direct proceeding, a constitutional attack is not properly made on such section so as to give this court jurisdiction of the case, and it is therefore transferred to the Court of Appeals.
No. 16426. NOVEMBER 18, 1948. Southeastern Textile Company filed a request for review with the Board of Commissioners of the City of Griffin from an assessment *Page 580 made by the tax assessors of the city on the ad valorem property of the company. The action by the board of commissioners was adverse to the textile company and an appeal was filed by the company to the Superior Court of Spalding County, pursuant to provisions of section 28 of the charter of the city (Ga. L. 1921, p. 959). The trial resulted in a verdict by the jury reducing the assessed value of the property of the company in the amount of $10,000. A motion for new trial, as amended, of the city of Griffin was overruled, and the exception is to that judgment. In the bill of exceptions it is stated that the amended motion for new trial involves the construction of the Constitution of the State of Georgia and the constitutionality of section 28 of the charter of the City of Griffin.
Ground five of the amended motion for new trial assigns error on the following extract from the charge of the court: "I charge you, gentlemen of the jury, that this appeal under investigation and which you are to pass upon is a de novo investigation, which simply means that you are not bound by anything the City Tax Assessors did or the City Commissioners did. It is a de novo investigation, as far as you are concerned, and it is your duty to pass upon the right or wrong of this transaction without regard to what the Tax Assessors did or the City Commissioners did. You are not bound by anything they did. This is a new and distinct trial. What someone else may have done in connection with this matter should have no bearing on what you do, and in making up your verdict in this case you should not consider anything they did over there as a criterion to place your verdict upon. You will make up your verdict in this case solely from the evidence as delivered from the witness stand and the law as given you in charge by the court."
It is contended by the movant that this charge was prejudicial error, because section 28 of the charter of the City of Griffin is in conflict with the Code, § 92-4001; that under the general law the decision of the assessors was final and conclusive, and the provisions of the local act would be unconstitutional as being in violation of the Constitution, art. 1, sec. 4, par. 1 (Code, Ann., § 2-401), which provides: "No special law shall be enacted in any case for which provision has been made by an existing general law." *Page 581 In this case section 28 of the charter of the City of Griffin (Ga. L. 1921, pp. 959-971) was the sole authority for an appeal to the Superior Court of Spalding County. Whether or not the charge of the court excepted to relates to section 28 of the charter of the city, the proper method to attack such section (where it was the basis for the relief sought) was by a direct proceeding for this purpose, rather than by an exception to a portion of the court's charge in a motion for new trial.
"A litigant, who knows that a statute is directly involved and forms the basis of the litigation, can not be permitted to wait until after the trial has ended to bring in question its constitutionality, which he must necessarily have known would govern the court in its instructions to the jury. The rule would be different if the litigant could not know or could not reasonably anticipate that the substance of the statute would be given in charge to the jury." Boyers v. State, 198 Ga. 838,843 (33 S.E.2d 251); Loomis v. State, 203 Ga. 394 (47 S.E.2d 64). In this case the authority for the appeal was contained in the charter of the city, and the city will be presumed to know its charter powers.
A constitutional question is not properly made in the present case, and it must be transferred to the Court of Appeals, which has jurisdiction of the other assignments of error contained in the motion for new trial. Stone v. State, 202 Ga. 203 (42 S.E.2d 727).
Transferred to the Court of Appeals. All the Justicesconcur.