Chilivis v. Dasher

• Decision Date: 07 April 1976
• Docket Number: 30903,Nos. 30902,s. 30902
• Citation: 225 S.E.2d 32,236 Ga. 669
• Parties: Nick P. CHILIVIS, Commissioner v. Billy West DASHER et al. LOWNDES COUNTY, Georgia, et al. v. Billy West DASHER et al.
• Court: Georgia Supreme Court

Page 32

225 S.E.2d 32

236 Ga. 669

Nick P. CHILIVIS, Commissioner v. Billy West DASHER et al.

LOWNDES COUNTY, Georgia, et al. v. Billy West DASHER et al.

Nos. 30902, 30903.

Supreme Court of Georgia.

April 7, 1976.

Rehearing Denied April 20, 1976.

Arthur K. Bolton, Atty. Gen., David A. Runnion, Asst. Atty. Gen., Atlanta, for appellant in No. 30902.

Bennett & Wisenbaker, Reginald Wisenbaker, James T. Bennett, Jr., Oris D. Blackburn, Jr., Valdosta, for appellees in No. 30902.

Reginald Wisenbaker, Blackburn & Bright, Oris D. Blackburn, Jr., Valdosta, for appellants in No. 30903.

James T. Bennett, Jr., Valdosta, Arthur K. Bolton, Atty. Gen., David A. Runnion, Asst. Atty. Gen., Atlanta, for appellees in No. 30903.

INGRAM, Justice.

This litigation began after a Lowndes County grand jury imposed a penalty against the county tax commissioner pursuant to Code Ann. § 92-5106 and the State Revenue Commissioner issued an execution for collection of the penalty and the additional sums authorized by that Code section. The Tax commissioner filed an equitable complaint in Lowndes Superior Court seeking injunctive and other relief from the presentment of the Lowndes County grand jury and the action of the State Revenue Commissioner. The tax commissioner later amended his complaint to allege a violation of his state and federal constitutional rights. The trial court ruled in favor of the tax commissioner on the statutory issues in the case but made no specific ruling on the constitutional issues in the case. On appeal this court reversed in Dasher v. Blackmon, 229 Ga. 289, 191 S.E.2d 82 (1972). The tax commissioner then made application for a writ of certiorari from the U. S. Supreme Court but it was denied. Dasher v. Blackmon, 409 U.S. 1107, 93 S.Ct. 900, 34 L.Ed.2d 687 (1973).

Thereafter, the tax commissioner filed a complaint in the U.S. District Court for the Middle District of Georgia alleging the same facts and seeking the same relief as the equitable complaint in Lowndes Superior Court. The U.S. District Court held that the tax commissioner's case was barred by the doctrine of res judicata and granted summary judgment in favor of the State Revenue Commissioner and the other defendants. This decision was appealed by the tax commissioner to the U.S. Circuit Court of Appeals for the 5th Circuit and that court summarily affirmed the district court's dismissal based on the doctrine of res judicata.

The tax commissioner next attempted to revive his original action in Lowndes Superior Court and to pursue an affidavit of illegality to the execution issued against him by the Revenue Commissioner based on the same constitutional issues that had been raised previously. The trial court held that the constitutional issues had not been actually decided in the prior state court litigation and these issues should be ruled upon and were not barred by the doctrine of res judicata. After considering these constitutional issues, the trial court found they had merit and granted a summary judgment in favor of the tax commissioner.

We first examine the threshold issue as to whether the tax commissioner is barred from raising the constitutional issues argued in this appeal or whether they should be decided as no specific ruling was made on them earlier.

The...