Bryant v. Prior Tire Company

196 S.E.2d 14, 230 Ga. 137, 1973 Ga. LEXIS 838

• Court: Supreme Court of Georgia
• Decided: February 8, 1973
• Docket: 27675
• Status: Published

Opinions

Nichols, Justice.

This appeal arises from the refusal of the State Court of DeKalb County to declare invalid a statute permitting service of process by leaving a copy at the defendant’s most notorious place of abode where the amount involved in the litigation is less than two hundred ($200) dollars. The defendant was served and timely filed her answer and counterclaim. A motion to dismiss because of the alleged unconstitutional service was filed and overruled, and the appeal is from this judgment upon a certification of immediate review prior to any determination of the merits of the action. Held:

"Before a statute can be attacked by anyone on the ground of its unconstitutionality, he must show that its enforcement is an infringement upon his right of person or property, and that such infringement results from the unconstitutional feature of the statute upon which he bases his attack. Reid v. Mayor &c. of Eatonton, 80 Ga. 755 (6 SE 602); Plumb v. Christie, 103 Ga. 686 (30 SE 759, 42 LRA 181); Wallace v. City of Atlanta, 200 Ga. 749 (38 SE2d 596); Villyard v. Regents of University System of Ga., 204 Ga. 517 (50 SE2d 313); West v. Housing Authority of Atlanta, 211 Ga. 133, 136 (84 SE2d 30); Southern R. Co. v. King, 217 U. S. 524, 534 (30 SC 594, 54 LE 868); Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 (34 SC 359, 58 LE 713). He must show that the alleged unconstitutional feature of the statute injures him, and so operates as to deprive him of rights protected by the Constitution of this State or by the Constitution of the United States, or by both. Cooper v. Rollins, 152 Ga. 588 (110 SE 726, 20 ALR 1105); Harrell v. Cane Growers Co-op Assn., 160 Ga. 30, 72 (126 SE 531); 19 RCL 109; and Mallinckrodt Chemical Works v. Missouri, 238 U. S. 41, 54 (35 SC 671, 59 LE 1192), in which the Supreme Court of the United States held: 'As has been often pointed out, one who seeks to set aside a state statute as repugnant to the Federal Constitution must show that he is within the class with respect to whom the act is unconstitutional, and that the alleged unconstitutional feature injures him.’ ” South Ga. Natural Gas Co. v. Ga. Public Service Commission, 214 Ga. 174 (1) (104 SE2d 97).

Submitted January 9, 1973 Decided February 8, 1973. Lee Payne, for appellant. D. Robert Autrey, for appellee.

While the amount in litigation may be sufficient to bring the defendant within the class with respect to whom the Act is allegedly unconstitutional, yet the purported unconstitutional provision cannot be said to have injured her. Accordingly, the judgment of the trial court refusing to declare such Act unconstitutional must be affirmed.

Judgment affirmed.

All the Justices concur, except Gunter, J., who concurs specially.