DuBose v. City of Lumpkin

Court of Appeals of Georgia

DuBose v. City of Lumpkin

147 S.E.2d 837, 113 Ga. App. 297, 1966 Ga. App. LEXIS 1041

CourtCourt of Appeals of Georgia

DecidedFebruary 23, 1966

Docket41756

StatusPublished

This text of 147 S.E.2d 837 (DuBose v. City of Lumpkin) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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DuBose v. City of Lumpkin, 147 S.E.2d 837, 113 Ga. App. 297, 1966 Ga. App. LEXIS 1041 (Ga. Ct. App. 1966).

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Opinion

Nichols, Presiding Judge.

Section 128 of the Act of 1953, supra, provides in part: “Nothing -herein shall prevent incorporated cities and towns from requiring by ordinance that the owners of motor vehicles residing within the corporate limits of such cities and towns to register the numbers of State licenses with the clerk or council or other officer to be designated by such city or town, together with a brief description of such motor vehicle, and requiring the- payment of a registration fee, and to provide a penalty for the violation of such ordinance; provided, however, that no municipality shall charge a license fee (as distinguished from a registration fee) in addition to that charged by the State, except commercial vehicles.”

No attack was made on the validity of such Act in the trial court but such question was first raised in the petition for certiorari. Accordingly, no constitutional question was presented to the superior court by the petition for certiorari or to this court on appeal as to the validity of such Act. See Brackett v. City of Atlanta, 51 Ga. App. 92 (1) (179 SE 584); Bolton v. City of Newnan, 147 Ga. 400 (94 SE 236).

The power granted municipalities by the General Assembly in the above quoted Act is not the.grant of a “power to legislate concerning an offense which is fully covered by the penal laws of the State,” Moran v. City of Atlanta, 102 Ga. 840, 844 (30 SE 298), but is an expressed power to provide for a separate registration of vehicles with municipalities by the owners residing in such municipalities. Therefore, the contention of ■ the appellant that the ordinance covered a matter pre-empted by the General Assembly and therefore was a special law in viola[299]*299tion of the constitutional provisions of Art. I, Sec. IV, Par. I, Constitution of 1945 (Code Ann. § 2-401), is without merit.

Judgment affirmed.

Hall and Deen, JJ., concur.

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Nichols, Presiding Judge.

Section 128 of the Act of 1953, supra, provides in part: “Nothing -herein shall prevent incorporated cities and towns from requiring by ordinance that the owners of motor vehicles residing within the corporate limits of such cities and towns to register the numbers of State licenses with the clerk or council or other officer to be designated by such city or town, together with a brief description of such motor vehicle, and requiring the- payment of a registration fee, and to provide a penalty for the violation of such ordinance; provided, however, that no municipality shall charge a license fee (as distinguished from a registration fee) in addition to that charged by the State, except commercial vehicles.”

No attack was made on the validity of such Act in the trial court but such question was first raised in the petition for certiorari. Accordingly, no constitutional question was presented to the superior court by the petition for certiorari or to this court on appeal as to the validity of such Act. See Brackett v. City of Atlanta, 51 Ga. App. 92 (1) (179 SE 584); Bolton v. City of Newnan, 147 Ga. 400 (94 SE 236).

The power granted municipalities by the General Assembly in the above quoted Act is not the.grant of a “power to legislate concerning an offense which is fully covered by the penal laws of the State,” Moran v. City of Atlanta, 102 Ga. 840, 844 (30 SE 298), but is an expressed power to provide for a separate registration of vehicles with municipalities by the owners residing in such municipalities. Therefore, the contention of ■ the appellant that the ordinance covered a matter pre-empted by the General Assembly and therefore was a special law in viola[299]*299tion of the constitutional provisions of Art. I, Sec. IV, Par. I, Constitution of 1945 (Code Ann. § 2-401), is without merit.

Judgment affirmed.

Hall and Deen, JJ., concur.

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147 S.E.2d 837, 113 Ga. App. 297, 1966 Ga. App. LEXIS 1041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dubose-v-city-of-lumpkin-gactapp-1966.

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