1. This court is without constitutional authority to determine the constitutionality of a statute as being null and void unless such question has been decided by the Supreme Court in an issue involving the same question.
2. The plea to the effect that the former judgment of the court was a final determination of the case is without merit, under the record.
3. The judge of the superior court on a hearing of the certiorari did not err in remanding the case for a new trial instead of entering a final judgment determining the case.
DECIDED JANUARY 31, 1945. REHEARING DENIED FEBRUARY 13, 1945. The grand jury of Fulton County returned an indictment against Ike Sneed, in three counts. He was charged with violating the prohibition law on July 25, 1943. The first count charged him with selling intoxicating liquors to G. A. Carter and I. M. Eason without first obtaining a license from the revenue commissioner of the State. In the second count he was charged with selling intoxicating liquors on the Sabbath day, and in the third with selling the same liquors within a radius of three miles of a church. The indictment was filed in the office of the clerk of the superior court on August 10, 1943, and thereafter transferred to the criminal court of Fulton County. On May 23, 1944, he was convicted in the criminal court of Fulton County on count 1. Counts 2 and 3 were abandoned by the State after the joining of issue. When the case was called, and before pleading to the *Page 103 merits of the indictment, the defendant filed a plea in bar. The plea contained two grounds as follows: "1st. At the November term, 1943, of the criminal court of Fulton County, the defendant was charged in an accusation filed in said court with the offense of engaging in and selling as a retail dealer, spirituous liquors and alcohols, without first obtaining a license from the State Revenue Commissioner, alleged to have been committed August 15th, 1943. A copy of said accusation is hereto attached, marked Exhibit A. [Copy was not attached and not shown as a part of the record.] To this accusation defendant, on the 30th day of November, 1943, filed his written demand for trial, said demand having been allowed and ordered spread upon the minutes of the court by Hon. Jesse M. Wood, judge of said court, said demand reciting that defendant should be fully acquitted and discharged of said offense if not tried at that term or at the next succeeding term of said court, a copy being hereto attached, marked Exhibit B. There were jurors empaneled and qualified to try the defendant at both the November term and December term 1943 of said court, and defendant, at both terms of said court insisted on his demand for trial. Defendant was not tried at either of these terms of court; therefore, in accordance with the laws of the State of Georgia, provided for the discharge and acquittal of said defendant after the expiration of two terms of court after a demand for trial has been filed, defendant has been automatically discharged of said offense named in said accusation and any offense or offenses alleged to have been committed within two years prior to the finding of said accusation, consisting of the same or similar offense or offenses. Defendant shows that he had therefore been placed in jeopardy for the very same offense for which he is now being charged with, and to try him for this offense now would be a violation of his rights as secured to him by the United States and Georgia constitution. Defendant alleges that the evidence that will be introduced in order to convict defendant in this case would have been sufficient to convict him of the previous offense for which he has already been acquitted, and is therefore the same offense. 2nd. For further plea in bar, this defendant alleges that on the 14th day of September, 1943, defendant was arraigned, tried, and convicted on this indictment for which he is now being required to stand trial again for. Said trial was held in this court, before a *Page 104 jury, who was duly sworn, and said defendant was found guilty of all three counts of said indictment and sentenced by this court to twelve months on the public works. Defendant obtained a writ of certiorari from the superior court of this county and after having a hearing in the superior court, that court, having then and there jurisdiction to entertain the petition for certiorari, did, after argument of counsel, enter up an order sustaining the writ of certiorari, thereby terminating this case once and for all in favor of defendant, Ike Sneed, and terminating the further jurisdiction of this court to proceed. The following is a copy of said order: "The foregoing certiorari coming on to be heard, and after argument of counsel, it is hereby sustained. This 4th day of May, 1944. Walter C. Hendrix, judge superior court Atlanta circuit.'" The plea was properly verified. The demand referred to in the plea is as follows: "The State v. Ike Sneed. In the criminal court of Fulton County. November term, 1943. Demand for trial. Now comes Ike Sneed, the defendant in the above-stated case, at this, the November term, 1943, of this court, and there being jurors having been empaneled and qualified to try the case, defendant makes demand here and now for trial and asks that the demand be placed upon the minutes and that he be tried at this term or at the next term and in default of a trial, that he be fully acquitted and discharged of said offense. This 30th day of November, 1943. [Signed by defendant's attorney.] The above and foregoing demand having been made and same being true, it is hereby allowed. Let it be spread upon the minutes. This 30th day of November, 1943. [Signed] Judge, criminal court of Fulton County."
The solicitor of the criminal court of Fulton County in response to the plea in bar, filed the following response: "Now comes Lindley W. Camp, solicitor-general of the criminal court of Fulton County, and for the State of Georgia, moves to strike ground one (1) of the plea in bar filed by the defendant Ike Sneed, on the ground that the act creating the criminal court of Fulton County provides, among other things, that the defendant shall not be discharged after putting his demand for trial on the minutes until the next term after the expiration of six months from the date of his demand. Said solicitor moves to strike ground two (2) of the defendant's plea in bar upon the ground that the same is insufficient *Page 105 in law and as a matter of law. Wherefore, the State prays that this demurrer be sustained and that the defendant's plea in bar be dismissed. [Signed] Lindley W. Camp. solicitor, criminal court of Fulton County." The court, on the issue thus brought before it, passed the following judgment: "The above plea in bar coming on for hearing, and the solicitor having filed a written motion to strike, it is ordered that the plea in bar be and the same is hereby dismissed. Ground one by reason of the provision of the acts of 1891, page 936, providing that no defendant shall be discharged after putting in his demand for trial until the next term after the expiration of six months from the date of the demand, and ground two upon the ground that the sustaining of the certiorari by superior court remanded this case back to the criminal court of Fulton County for a new trial. This May 23, 1944. John S. McClelland, Judge, C. C. F. C."
The charge against the defendant then went to trial on the merits, and as stated, a verdict of guilty was returned against him and sentence was passed by the court thereon. He made application to the superior court of Fulton County for certiorari, which was granted. In his petition for certiorari he assigns error on the order sustaining the demurrer to the plea in bar and dismissing such plea. He further assigns error on the verdict of the jury and the judgment based thereon as being contrary to law, without evidence to support it, and contrary to the principles of justice and equity. On the final hearing of the certiorari the judge of the superior court sustained the certiorari and ordered a new trial. That order reads: "The court being of the opinion that the testimony of witness, Capt. H. T. Jenkins, was improperly admitted and highly prejudicial, the certiorari is sustained and a new trial ordered." The defendant assigns error on the above order and judgment because, under the record as above set forth, it was the duty of the judge of the superior court to enter up a final judgment discharging him.
The contentions of the defendant are presented here in the following order: First, the ruling of the trial court on the first ground of his plea in bar of former jeopardy; second, regarding the ruling of the trial court on the second ground of his plea in bar to the effect that the order of the court on the previous certiorari *Page 106 was an order of acquittal; third, that the order of the court on the last petition for certiorari should have been a judgment of a final nature discharging the accused. We will treat the contentions in the order presented. 1. It will be noted that no proper attack was made in the pleading in the trial court as to the constitutionality of the legislative act (Ga. L. 1890-91, vol. 2, p. 935), providing, among other things, that the defendant shall not be discharged in the criminal court of Fulton County, after putting in his demand for trial, until the next term after the expiration of six months from the date of such demand. It is conceded that such is a provision of the act creating that court. But the defendant contends that this court has authority, nevertheless, to consider such provision as to demand under the cited act of 1891 null and void, as being a special law in direct conflict with the general law on the question of demand contained in the Code, § 27-1901. As to the conflict of these two statutes, this brings into consideration a constitutional question under our State constitution (art. 1, sec. 4, par. 1), as follows: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law." We have been unable to find any case where the Supreme Court has ruled directly on the identical question here argued, and we have been cited to no such authority. The only decision cited is Cain v.State, 166 Ga. 539 (144 S.E. 6). The question argued is not identical with that in Cain v. State.
This being true (Gormley v. Walton, 47 Ga. App. 466,170 S.E. 706), this court is without constitutional authority to determine that the provisions of the act of 1891 above cited as to a demand for trial is unconstitutional and in conflict with the general law as contained in the Code, § 27-1901. The lack of authority of this court on this question is found in § 2-3005. The Supreme Court corrects all errors from superior courts, "in all cases in which the constitutionality of any law of the State of Georgia . . is drawn in question." Therefore it follows that this court is without authority to reverse this case for any of the *Page 107 reasons assigned on this contention of the first ground of the plea in bar of the accused.
2. We come next to consider the second ground. It will be noted that the allegations of the petition for certiorari, as mentioned therein, were not set forth or referred to as an exhibit. No facts are therein alleged on which to conclude that the order of the superior court sustaining the certiorari terminated the case. The order simply states: "The foregoing certiorari coming on to be heard, and after argument of counsel, it is hereby sustained. This 4th day of May, 1944. Walter C. Hendrix, judge superior court Atlanta circuit." To state the question differently, it does not affirmatively appear from the allegations of this ground of the plea in bar that the question presented to the superior court in the petition for certiorari was a prevailing question of law on which the court was required, under the Code, § 19-501 (a part of which is hereinafter quoted), to enter up a final order or judgment determining the case; it does not affirmatively appear from this ground of the plea that the judgment of the court sustaining the certiorari did not involve a question of fact. In the absence of such affirmative averments it will be assumed by this court that the allegations of the petition for certiorari were not based on the ground of a question of law which controlled the final determination of the case. But on the other hand, it will be presumed, in the absence of such affirmative allegations, that the trial judge acted within the jurisdiction of the court in ordering the defendant to trial again. Under the Code, § 19-501, it is provided, among other things, that: "In all cases when the error complained of is an error in law which must finally govern the case, and the court shall be satisfied there is no question of fact involved which makes it necessary to send the case back for a new hearing before the tribunal below, it shall be the duty of the said judge to make a final decision in said case, without sending it back to the tribunal below." The allegations of fact in the second ground of the defendant's plea in bar, in our opinion, are insufficient as a matter of law to show that the judgment of the superior court set out in the plea was a final termination of the case "once and for all in favor of the defendant Ike Sneed, and terminated the further jurisdiction" of the criminal court of Fulton County to try the case again. In our view, under this *Page 108 record, the order of the court as set out in this ground of the plea in bar was merely the grant of a new trial. The court therefore did not err in the judgment dismissing this ground of the plea as being insufficient in law.
3. We come next to consider whether the judge of the superior court erred in not entering a final judgment discharging the defendant. The record reveals that on the hearing the certiorari was sustained because of the illegal admission of testimony over objections of the accused. In view of what we have said above, the court did not err in sustaining the certiorari for the reason mentioned in the judgment, and in ordering a new trial of the defendant (Porterfield v. Thompson, 4 Ga. App. 524, 61 S.E. 1055; Tuten v. Towles, 36 Ga. App. 328, 136 S.E. 537;Murphy v. Drum Bugle Corps, 55 Ga. App. 293,190 S.E. 67), and in not entering a final judgment terminating the case.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.
ON MOTION FOR REHEARING. We are asked to transfer this case to the Supreme Court in order that the constitutionality of the act of 1891 (supra), creating the criminal court of Fulton County in regard to demand for trial may be passed upon by that court. There was no proper constitutional question raised in the court below as to the constitutionality of this provision of the act. Therefore it follows that no constitutional question thereon was raised in the court below. Consequently there is no question to transfer to the Supreme Court. It was our intention to make this point clear in the beginning of our original opinion.