Duty of courts to declare unconstitutional Acts invalid.

- It is the duty of the courts to declare invalid all legislative Acts which violate the Constitution, and this court has repeatedly held invalid municipal ordinances which deal with matters covered by the general law. Jenkins v. Jones, 209 Ga. 758, 75 S.E.2d 815 (1953).

No valid claim can be based upon an Act of the legislature which contravenes the Constitution. Such Acts are by the state Constitution declared void, and it is made the duty of the judiciary to declare them so. International Bus. Machs. Corp. v. Evans, 213 Ga. 333, 99 S.E.2d 220 (1957); Guhl v. Davis, 242 Ga. 356, 249 S.E.2d 43 (1978).

Power is inherent in court.

- The power to test an Act by comparison with the Constitution is one inherently residing in the courts, and it is unnecessary for the Act itself to recite such power. Coleman v. Board of Educ., 131 Ga. 643, 63 S.E. 41 (1908).

Unconstitutional statute is inoperative.

- A legislative Act of a general nature, and intended to have uniform operation throughout the state, duly adjudicated to be unconstitutional and inoperative, cannot be given effect in any part or subdivision of the state or of any county. Wellborn v. Estes, 70 Ga. 390 (1883); Green v. Hutchinson, 128 Ga. 379, 57 S.E. 353 (1907).

The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and in legal contemplation is as inoperative as if it had never been passed. Grayson-Robinson Stores, Inc. v. Oneida, Ltd., 209 Ga. 613, 75 S.E.2d 161, cert. denied, 346 U.S. 823, 74 S. Ct. 39, 98 L. Ed. 348 (1953).

Paragraph indicative of supreme power of judiciary.

- Whether or not this provision has reference solely to laws enacted by the legislature, it is indicative of the supreme power of the judiciary in its field of construction. Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947).

Paragraph applies to ordinances.

- Generally, a municipal ordinance passed in pursuance of express legislative authority is a law within the meaning of the Constitution. Jenkins v. Jones, 209 Ga. 758, 75 S.E.2d 815 (1953).

Construction of O.C.G.A.

§ 48-5-2(3) regarding fair market value of property with local constitutional amendment. - Trial court properly determined that no conflict existed between a local constitutional amendment (LCA) and O.C.G.A. § 48-5-2(3) because the statute focused on the market-determined value of property on the actual date the property was acquired, rather than the property's value as much as a year later and was entirely consistent with the LCA, which froze the ad valorem tax value of homestead property in the county at the property's fair market value at the start of the year after a homestead exemption was allowed or after ownership of the property changed. Columbus Bd. of Tax Assessors v. Yeoman, 293 Ga. 107, 744 S.E.2d 18 (2013).

Clause did not grant action against state officials otherwise immune.

- Suit by physicians against state officials alleging that O.C.G.A. § 31-9B-1 et seq., regulating abortions, violated the state constitution, was barred by sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX, because there was no consent to such a suit. The Due Process Clause, Ga. Const. 1983, Art. I, Sec. I, Para. I, did not provide a private remedy for its enforcement, and the Judicial Review Clause, Ga. Const. 1983, Art. I, Sec. II, Para. V, did not conflict with sovereign immunity. Lathrop v. Deal, 301 Ga. 408, 801 S.E.2d 867 (2017).

Cited in Boston v. Cummins, 16 Ga. 106, 60 Am. Dec. 717 (1854); Wright v. Southwestern R.R., 64 Ga. 783 (1880); Howell v. State, 71 Ga. 224, 51 Am. R. 259 (1883); Dougherty v. Boyt, 71 Ga. 484 (1883); Scoville v. Calhoun, 76 Ga. 263 (1886); Fullington v. Williams, 98 Ga. 807, 27 S.E. 183 (1896); Cutcher v. Crawford, 105 Ga. 180, 31 S.E. 139 (1898); Epping v. City of Columbus, 117 Ga. 263, 43 S.E. 803 (1903); Griffin v. Sanborn, 127 Ga. 17, 56 S.E. 71 (1906); Hall v. Tarver, 128 Ga. 410, 57 S.E. 720 (1907); Sawyer v. City of Blakely, 2 Ga. App. 159, 58 S.E. 399 (1907); Butts County v. Jackson Banking Co., 129 Ga. 801, 60 S.E. 149, 121 Am. St. R. 244, 15 L.R.A. (n.s.) 567 (1907); Coleman v. Board of Educ., 131 Ga. 643, 63 S.E. 41 (1908); Clark v. Eve, 134 Ga. 788, 68 S.E. 598 (1910); Hammond v. Clark, 136 Ga. 313, 71 S.E. 479, 38 L.R.A. (n.s.) 77 (1911); Strickland v. State, 137 Ga. 1, 72 S.E. 260, 36 L.R.A. (n.s.) 115, 1913B Ann. Cas. 323 (1911); White v. Mayor of Forsyth, 138 Ga. 753, 76 S.E. 58 (1912); McWilliams v. Smith, 142 Ga. 209, 82 S.E. 569 (1914); Cutsinger v. City of Atlanta, 142 Ga. 555, 83 S.E. 263, 1915B L.R.A. 1097, 1916C Ann. Cas. 280 (1914); Dorsey v. Wright, 150 Ga. 321, 103 S.E. 591 (1920); Ross v. Jones, 151 Ga. 425, 107 S.E. 160 (1921); Jones v. State, 151 Ga. 502, 107 S.E. 565 (1921); Smith v. City of Atlanta, 161 Ga. 769, 132 S.E. 66, 54 A.L.R. 1001 (1926); Speer v. Martin, 163 Ga. 535, 136 S.E. 425 (1927); Roberson v. Roberson, 165 Ga. 447, 141 S.E. 306 (1928); Taliaferro County v. Edwards, 171 Ga. 289, 155 S.E. 180 (1930); Southern Cotton Oil Co. v. Raines, 171 Ga. 154, 155 S.E. 484 (1930); Meyers v. Whittle, 171 Ga. 509, 156 S.E. 120 (1930); Threatt v. American Mut. Liab. Ins. Co., 173 Ga. 350, 160 S.E. 379 (1931); Von Schmidt v. Noland Co., 176 Ga. 784, 169 S.E. 11 (1933); Toole v. Anderson, 177 Ga. 814, 171 S.E. 714 (1933); De Kalb County v. Grice, 179 Ga. 458, 175 S.E. 804 (1934); McCaffrey v. State, 183 Ga. 827, 189 S.E. 825 (1937); Elder v. Home Bldg. & Loan Ass'n, 188 Ga. 113, 3 S.E.2d 75 (1939); Black v. Jones, 190 Ga. 95, 8 S.E.2d 385 (1940); Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (1947); Price v. State, 202 Ga. 205, 42 S.E.2d 728 (1947); Mayor of Savannah v. Harvey, 87 Ga. App. 122, 73 S.E.2d 260 (1952); Cox v. GE Co., 211 Ga. 286, 85 S.E.2d 514 (1955); Frankel v. Cone, 214 Ga. 733, 107 S.E.2d 819 (1959); Williams v. State, 217 Ga. 312, 122 S.E.2d 229 (1961); Baggett Transp. Co. v. Barnes, 108 Ga. App. 68, 132 S.E.2d 229 (1963); Calhoun v. State Hwy. Dep't, 223 Ga. 65, 153 S.E.2d 418 (1967); Brissette v. Munday, 115 Ga. App. 131, 153 S.E.2d 606 (1967); First Nat'l Bank v. Rowley, 224 Ga. 440, 162 S.E.2d 294 (1968); Pharr Rd. Inv. Co. v. City of Atlanta, 224 Ga. 403, 162 S.E.2d 333 (1968); Warren v. Walton, 231 Ga. 495, 202 S.E.2d 405 (1973); Cadle v. State, 136 Ga. App. 232, 221 S.E.2d 59 (1975); City Council v. Mangelly, 243 Ga. 358, 254 S.E.2d 315 (1979); Sikes v. Candler County, 247 Ga. 115, 274 S.E.2d 464 (1981).

Duty of court to declare Act unconstitutional.

- When the conflict between a statute and the Constitution is plainly apparent, the Constitution places upon the courts the duty and responsibility of holding the Act invalid. Atlantic Loan Co. v. Peterson, 181 Ga. 266, 182 S.E. 15 (1935).

When an Act of the legislature is clearly in conflict with the Constitution, it is the duty of the Supreme Court to declare it so. Davis v. Board of Educ., 203 Ga. 44, 45 S.E.2d 429 (1947).

O.C.G.A.

§ 16-5-9 violated confrontation right. - O.C.G.A. § 16-15-9 was declared unconstitutional on the statute's face under the Sixth Amendment's confrontation clause to the extent that the statute authorized the admission of the convictions of non-testifying non-parties as evidence of a criminal street gang; the exclusion of other alleged gang members' convictions in the defendant's trial was upheld. State v. Jefferson, 302 Ga. 435, 807 S.E.2d 387 (2017).

Constitutional decision not made if decision on merits can be reached.

- Inquiry will not be made into the constitutionality of a statute involved in a proceeding before the court, if a decision of the merits can be reached without reference thereto. Western & Atl. R.R. v. Gray, 172 Ga. 286, 157 S.E. 482, appeal dismissed, 283 U.S. 811, 51 S. Ct. 654, 75 L. Ed. 1428 (1931).

Court confined to settled principles of law in deciding constitutional question.

- An Act cannot be declared void on the ground that it is contrary to the principles of justice and equity. Gray v. McLendon, 134 Ga. 224, 67 S.E. 859 (1910).

In determining constitutional questions, like others, the courts are not permitted to concern themselves with the wisdom of an Act, or to apply or obtrude the personal views of the judges as to such matters, but are confined to settled principles of law. Shadrick v. Bledsoe, 186 Ga. 345, 198 S.E. 535 (1938); State Ports Auth. v. Arnall, 201 Ga. 713, 41 S.E.2d 246 (1947).

Constitution prevails over conflicting law.

- When there is a variance between an Act of the General Assembly and a constitutional provision, the constitutional provision prevails. Whitman v. State, 96 Ga. App. 730, 101 S.E.2d 621 (1957).

Conflict must be plain and palpable.

- To authorize the court to set aside a statute as repugnant to the Constitution, the conflict must be plain and palpable. Wright v. City of Atlanta, 50 Ga. App. 244, 177 S.E. 753 (1934); Shadrick v. Bledsoe, 186 Ga. 345, 198 S.E. 535 (1938); State Ports Auth. v. Arnall, 201 Ga. 713, 41 S.E.2d 246 (1947).

The Supreme Court will not declare an Act of the legislature unconstitutional unless the conflict between the Act and the Constitution is clearly manifest. Atlantic Loan Co. v. Peterson, 181 Ga. 266, 182 S.E. 15 (1935).

Before an Act of the legislature will be declared unconstitutional, the conflict between the Act and the fundamental law must be clear and palpable. Davis v. Board of Educ., 203 Ga. 44, 45 S.E.2d 429 (1947).

The violation must be clear and unequivocal. Wellborn v. Estes, 70 Ga. 390 (1883).

Law in its formative state cannot be declared void. Clayton v. Calhoun, 76 Ga. 270 (1886).

Constitutionality is favored.

- It is a general rule governing the validity and construction of ordinances that their constitutionality is favored and courts are reluctant to declare an ordinance unconstitutional. Hart v. Columbus, 125 Ga. App. 625, 188 S.E.2d 422 (1972).

Presumptions are made in favor of constitutionality.

- Since the legislature is bound by the Constitution, and the members of the legislature are sworn to maintain it, all presumptions are in favor of the constitutionality of an Act of the legislature. Wright v. City of Atlanta, 50 Ga. App. 244, 177 S.E. 753 (1934); Shadrick v. Bledsoe, 186 Ga. 345, 198 S.E. 535 (1938); State Ports Auth. v. Arnall, 201 Ga. 713, 41 S.E.2d 246 (1947); Flynn v. State, 209 Ga. 519, 74 S.E.2d 461 (1953).

Every presumption will be made in favor of the constitutionality of an Act of the legislature. Davis v. Board of Educ., 203 Ga. 44, 45 S.E.2d 429 (1947).

Reasonable construction to preserve constitutionality must be adopted.

- If a reasonable construction can be placed upon a statute which will preserve its constitutionality, it is the duty of the courts to adopt such construction. Turman v. Cargill & Daniel, 54 Ga. 663 (1875); Cutsinger v. City of Atlanta, 142 Ga. 555, 83 S.E. 263, 1915B L.R.A. 1097, 1916C Ann. Cas. 280 (1914); Bennett v. Wheatley, 154 Ga. 591, 115 S.E. 83 (1922); Atlantic Loan Co. v. Peterson, 181 Ga. 266, 182 S.E. 15 (1935).

Court will not declare law unconstitutional in doubtful case.

- Supreme Court will not set aside a solemn Act of the legislature in a doubtful case. Wright v. City of Atlanta, 50 Ga. App. 244, 177 S.E. 753 (1934); State Ports Auth. v. Arnall, 201 Ga. 713, 41 S.E.2d 246 (1947); Davis v. Board of Educ., 203 Ga. 44, 45 S.E.2d 429 (1947); Flynn v. State, 209 Ga. 519, 74 S.E.2d 461 (1953).

Vague and uncertain attacks on constitutionality will not stand.

- Since all presumptions favor the constitutionality of an Act of the legislature, it is a grave matter for the courts to set aside as being void an Act of that coordinate department of government, and vague, uncertain, and indefinite attacks on such Acts will not be considered. Flynn v. State, 209 Ga. 519, 74 S.E.2d 461 (1953).

Constitutional attack must be clear and definite.

- The Supreme Court will not pass upon the constitutionality of a statute when the particular provisions of the Constitution alleged to have been offended by the statute are not clearly designated. Williams v. McIntosh County, 179 Ga. 735, 177 S.E. 248 (1934).

Until a clear, definite, and specific attack is made upon the constitutionality of an Act as a whole, or upon the constitutionality of a specifically pointed out part or parts of it, the Supreme Court will decline to deal with its validity. Flynn v. State, 209 Ga. 519, 74 S.E.2d 461 (1953).

Pleading must point out the part of the Constitution violated. Jones v. Oemler, 110 Ga. 202, 35 S.E. 375 (1900).

When the charge was made that an ordinance was void for violating specified constitutional provisions, without stating wherein it violated the provisions, it was too indefinite to invoke a ruling that the ordinance was unconstitutional. Curtis v. Town of Helen, 171 Ga. 256, 155 S.E. 202 (1930).

Unless the attack under this paragraph specifies the statute and provisions of the Constitution violated, the Supreme Court will not rule upon the issues. Morris v. State, 200 Ga. 471, 37 S.E.2d 345 (1946).

Constitutional question must be first raised in trial court.

- The constitutionality of an Act must be raised in the lower court. Savannah, Fla. & W. Ry. v. Hardin, 110 Ga. 433, 35 S.E. 681 (1900); Anderson v. State, 2 Ga. App. 1, 58 S.E. 401 (1907); Griggs v. State, 130 Ga. 16, 60 S.E. 103 (1908).

Before a reviewing court is authorized to pass upon the constitutionality of an Act of the General Assembly, it must appear that the question was made or presented in the court below and was passed upon by the trial judge. Borough of Atlanta v. Reynolds, 43 Ga. App. 516, 159 S.E. 607 (1931).

A constitutional question will not be decided by the Supreme Court in the absence of the question being raised in the trial court. Morris v. State, 200 Ga. 471, 37 S.E.2d 345 (1946).

The constitutionality of no law can be drawn in question for the first time in a motion for new trial, and the fact that the laws were declared unconstitutional pending appeal does not require a different result. Konscol v. Konscol, 151 Ga. App. 696, 261 S.E.2d 438 (1979), cert. denied, 449 U.S. 875, 101 S. Ct. 218, 66 L. Ed. 2d 97 (1980).

Exceptions to a judgment can present no constitutional question. Cohen v. State, 7 Ga. App. 5, 65 S.E. 1096 (1909); Johnson v. Ware, 135 Ga. 365, 69 S.E. 481 (1910).

Motion for new trial contending that a verdict is contrary to law can present no constitutional question. Hill v. State, 112 Ga. 400, 37 S.E. 441 (1900).

Declaring portion of Act invalid.

- If sections, provisions, sentences, or phrases of a legislative Act can be stricken therefrom without destroying the general legislative scheme, courts should strike them, if necessary to preserve the constitutionality of the Act, and leave the remainder thereof intact. Bennett v. Wheatley, 154 Ga. 591, 115 S.E. 83 (1922).

Unless invalid portion too connected to general scheme of Act.

- Part of an Act may be so connected with the general legislative scheme embodied in the Act, that it cannot be so stricken. Futrell v. George, 135 Ga. 265, 69 S.E. 182 (1910); Zachry v. Mayor of Harlem, 138 Ga. 195, 75 S.E. 4 (1912).

Effect of severability clause.

- A severability clause does not change the rule that in order for one part of a statute to be upheld as severable when another is stricken as unconstitutional, they must not be mutually dependent on one another. City Council v. Mangelly, 243 Ga. 358, 254 S.E.2d 315 (1979).

Court of appeals may refuse to certify improper proceedings. Tooke v. State, 4 Ga. App. 495, 61 S.E. 917 (1908); Parker-Hensel Eng'r Co. v. Schuler, 7 Ga. App. 396, 66 S.E. 1038 (1910); Logue v. Hancock County, 8 Ga. App. 208, 68 S.E. 866 (1910).

Am. Jur. 2d.

- 16 Am. Jur. 2d, Constitutional Law, § 113 et seq. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 40.