We granted a writ of certiorari to the Court of Appeals questioning whether that court had appellate jurisdiction of the most recent appeal filed in this litigation between DeKalb County and several of the municipalities located within the county, and questioning the Court of Appeals’s interpretation of “services,” as that term is used in the Intergovernmental Contracts Clause of the Georgia Constitution. 1983 Ga. Const., Art. IX, Sec. III, Par. Ia. DeKalb County v. City of Decatur , 287 Ga. App. 370 651 SE2d 774 2007. We conclude that the appeal falls within the appellate jurisdiction of the Court of Appeals because the trial court did not make a specific, distinct ruling on the constitutionality of the intergovernmental agreement, thus taking the case out of this Court’s exclusive appellate jurisdiction of a case which requires the construction of a constitutional provision that has not been construed previously; however, we also conclude the Court of Appeals erred when, in reviewing the trial court’s denial of summary judgment, it construed a provision of the Georgia Constitution. Accordingly, we vacate the judgment of the Court of Appeals and remand the case to that court with direction that it consider the trial court’s denial of summary judgment without addressing the constitutional issue that was not ruled on by the trial court. In January 1998, DeKalb County and the municipalities located within the county entered into a 49-year agreement for the expenditure of tax revenue generated by a Homestead Option Sales and Use Tax “HOST” approved by county voters in 1997. In March 2000, after a dispute arose between the county and the municipalities concerning the method of calculating the monies to be disbursed by the county to the municipalities, several of the municipalities1 filed a lawsuit seeking damages from the county for breach of contract, conversion, and attorney fees. In City of Decatur v. Dekalb County , 277 Ga. 292 589 SE2d 561 2003, we held that the HOST Act OCGA § 48-8-100 et seq. did not prohibit the parties’ intergovernmental agreement and noted that the trial court had made no ruling on whether the parties’ agreement was authorized under the state constitutional provision for intergovernmental agreements. Id., at 294. See 1983 Ga. Const. Art. IX, Sec. III, Par. I. Upon return of the remittitur to the trial court, DeKalb County sought summary judgment on the ground that the parties’ agreement violated the state constitutional provision regarding intergovernmental agreements. The clause provides that “The state, or any institution, department, or other agency thereof, and any county municipality, school district, or other political subdivision of the state may contract for any period not exceeding 50 years with each other or with any other public agency, public corporation, or public authority for joint services, the provision of services, or for the joint or separate use of facilities or equipment; but such contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide. . . .” 1983 Ga. Const., Art. I, Sec. III, Par. Ia. The trial court denied summary judgment, finding there were “genuine issues of material fact as to whether the requirement to expend the monies disbursed pursuant to the agreement between the county and the municipalities for capital outlay projects is considered an agreement to provide service or an agreement for the joint or separate use of facilities or equipment.” The trial court found there was “a factual dispute regarding whether the agreement ‘is a tax-sharing agreement that sets out an intention to share the HOST revenues the County receives according to the calculation set out in the Agreement,’ . . . or whether the Cities’ expenditure of funds to undertake capital outlay projects is a service to the County.” In the same order, the trial court granted summary judgment to the municipalities on the county’s counterclaim.2
1. The Georgia Supreme Court has exclusive appellate jurisdiction over all cases involving the construction of the state constitution. Ga. Const. Art. VI, Sec. VI, Par. II; Fulton County v. Galberaith , 282 Ga. 314 647 SE2d 24 2007. “However, in order to invoke that jurisdiction, the record must show that the trial court specifically passed on the constitutional issue.” Id., at 315. See also City of Atlanta v. Columbia Pictures Corp. , 218 Ga. 714, 719 130 SE2d 490 1963 “This court will never pass upon constitutional questions unless it clearly appears in the record that the point was directly and properly made in the trial court below and distinctly passed upon by the trial judge.” When the appellate record fails to show that the trial court ruled on the constitutional question, this Court is without jurisdiction of an appeal in which this Court’s exclusive appellate jurisdiction of constitutional issues is invoked, and the appeal is transferred to the Court of Appeals. Marr v. Ga. Dept. of Education , 264 Ga. 841 452 SE2d 112 1995. See also Atlanta Indep. School Sys. v. Lane , 266 Ga. 657 1 469 SE2d 22 1996 “This Court does not have exclusive appellate jurisdiction over a case where the constitutional issue asserted on appeal has not been raised in and ruled upon by the trial court”; Campbell v. J. D. Jewell Co. , 220 Ga. 400 139 SE2d 161 1964. As the appellate record clearly reflects that the trial court did not specifically or directly pass upon the question of whether the agreement between the county and the municipalities violated the state constitution’s Intergovernmental Contracts Clause, this Court’s exclusive appellate jurisdiction of constitutional issues was not invoked and the appeal properly was filed in the Court of Appeals.
