dissenting. I respectfully and most vigorously dissent from the judgment and ruling of the majority. The appellant was respondent in an election contest petition filed by his opponent. Appellant, in his responsive pleadings filed before the Mayor and Councilmen of the City of Canon, raised the question of the constitutionality of Ga. L. 1968, pp. 885, 979 (Code Ann. § 34A-1501), as amended by section 12 of the Act approved March 20, 1970 (Ga. L. 1970, pp. 341, 345). The majority finds no fault with the procedural attack on the above Acts of the General Assembly. The majority holds that, by appealing the case from the mayor and council to the superior court, the appellant waived the right to contest the validity of a hearing which he had waived by the act of appealing the contest case from the mayor and council to the superior court. I have never heard of such a contention. If the principle contended for by the majority is true and sound, nothing would ever be tried on appeal from an inferior court to a superior court by the consent of the parties because both sides would be deemed to have waived whatever they contended for in the tribunal from which the case is appealed.
The majority cite as authority for their holding that the constitutional question was waived, the case of Lamar v. Prosser, 121 Ga. 153 (48 SE 977). I respectfully contend that that case is not authority for the majority holding. It simply holds that one charged with a crime cannot expressly waive a jury trial and after a conviction in a trial conducted before the judge, claim that he has been deprived of his constitutional right of trial by a jury. If that is authority for the majority’s ruling, I have a strong suspicion I am in the wrong place.