One who would strike down a state statute as violative of the federal constitution must bring himself by proper averments and showing within the class as to whom the act thus attacked is unconstitutional. He must show that the alleged unconstitutional feature of the law injures him, and so operates as to deprive him of rights protected by the federal constitution.
Plaintiff widow brought a wrongful death suit against defendant railroad company, asserting that it was negligent in violating Ga. Code Ann. § 2222 because it failed to check and to keep checking the speed of its train while approaching the crossing at which plaintiff's husband was killed. The trial court entered judgments against defendant. The appellate court affirmed the judgments and defendant sought further review by writ of certiorari. The state supreme court affirmed the order of the lower court.
Could defendant seek a further review of a judgment by writ of certiorari, based on a simple claim that a state law (Ga. Code Ann. § 2222) violated the commerce clause of the federal constitution?
Defendant railroad company failed to set forth facts that would make the operation of the statute unconstitutional. Defendant's amended answer did not set up a legal defense. Because there were no facts setting up a situation showing the unreasonable character of the statute as it applied to defendant, the lower court did not err in sustaining a demurrer to defendant's amended answer.