State Board of Equalization v. TRAILER TRAIN COMPANY

Supreme Court of Georgia

State Board of Equalization v. TRAILER TRAIN COMPANY

320 S.E.2d 758, 253 Ga. 449, 1984 Ga. LEXIS 942

CourtSupreme Court of Georgia

DecidedOctober 1, 1984

Docket41248, 41249

StatusPublished

Cited by8 cases

This text of 320 S.E.2d 758 (State Board of Equalization v. TRAILER TRAIN COMPANY) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Board of Equalization v. TRAILER TRAIN COMPANY, 320 S.E.2d 758, 253 Ga. 449, 1984 Ga. LEXIS 942 (Ga. 1984).

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Opinion

Weltner, Justice.

The State Board of Equalization and the Department of Revenue appeal from a judgment holding that former OCGA § 48-2-18 (which provided that the Board shall be composed of three officeholders from the executive branch and two from the legislative branch) violated the separation of powers provision of the 1983 Georgia Constitution, Art. I, Sec. II, Par. III.

This constitutional issue was not raised before the agency, but on appeal to the superior court.

We have required litigants to raise the constitutionality of applicable zoning classifications before that body having authority to re *450 zone. DeKalb County v. Post Properties, 245 Ga. 214, 218 (263 SE2d 905) (1980); Board of Commrs. v. Agri-Bio Corp., 249 Ga. 112, 113 (288 SE2d 206) (1982). This same rule has been applied to constitutional challenges first raised in the superior courts, rather than in the state agency in which proceedings commenced. Waller v. State Constr. Indus. Licensing Bd., 250 Ga. 529, 530 (299 SE2d 554) (1983). The reason for this requirement is to give to the appropriate body — at the first instance — an opportunity to “rectify the situation.” Post Properties, supra at 218.

Decided October 1, 1984 Rehearing denied October 29, 1984. Michael J. Bowers, Attorney General, Warren R. Calvert, Assistant Attorney General, for appellants. Powell, Goldstein, Frazer & Murphy, James D. Levine, Nicholas P. Chilivis, Terrence J. Benshoof, David C. Garrett III, James R. Schulz, for appellees.

That rationale is equally as applicable to constitutional challenges to the composition of a public body as it is to other constitutional attacks.

As the constitutional issue had not been raised before the Board of Equalization, it was beyond the reach of the superior court.

Judgment reversed.

All the Justices concur, except Bell, J., who dissents.

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Weltner, Justice.

The State Board of Equalization and the Department of Revenue appeal from a judgment holding that former OCGA § 48-2-18 (which provided that the Board shall be composed of three officeholders from the executive branch and two from the legislative branch) violated the separation of powers provision of the 1983 Georgia Constitution, Art. I, Sec. II, Par. III.

This constitutional issue was not raised before the agency, but on appeal to the superior court.

We have required litigants to raise the constitutionality of applicable zoning classifications before that body having authority to re *450 zone. DeKalb County v. Post Properties, 245 Ga. 214, 218 (263 SE2d 905) (1980); Board of Commrs. v. Agri-Bio Corp., 249 Ga. 112, 113 (288 SE2d 206) (1982). This same rule has been applied to constitutional challenges first raised in the superior courts, rather than in the state agency in which proceedings commenced. Waller v. State Constr. Indus. Licensing Bd., 250 Ga. 529, 530 (299 SE2d 554) (1983). The reason for this requirement is to give to the appropriate body — at the first instance — an opportunity to “rectify the situation.” Post Properties, supra at 218.

Decided October 1, 1984 Rehearing denied October 29, 1984. Michael J. Bowers, Attorney General, Warren R. Calvert, Assistant Attorney General, for appellants. Powell, Goldstein, Frazer & Murphy, James D. Levine, Nicholas P. Chilivis, Terrence J. Benshoof, David C. Garrett III, James R. Schulz, for appellees.

That rationale is equally as applicable to constitutional challenges to the composition of a public body as it is to other constitutional attacks.

As the constitutional issue had not been raised before the Board of Equalization, it was beyond the reach of the superior court.

Judgment reversed.

All the Justices concur, except Bell, J., who dissents.

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320 S.E.2d 758, 253 Ga. 449, 1984 Ga. LEXIS 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-board-of-equalization-v-trailer-train-company-ga-1984.

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