Nikas v. Oxford, 38682

• Decision Date: 21 April 1961
• Docket Number: No. 38682,3,Nos. 1,2,38682,s. 1
• Citation: 120 S.E.2d 677,103 Ga.App. 721
• Parties: A. G. NIKAS v. Dixon OXFORD, Commissioner
• Court: Georgia Court of Appeals

Page 677

120 S.E.2d 677

103 Ga.App. 721

A. G. NIKAS v. Dixon OXFORD, Commissioner.

No. 38682.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 21, 1961.

Rehearing Denied May 18, 1961.

Syllabus by the Court

Where the Commissioner of Revenue modifies an original executive order in a material manner so as to be tantamount to a new determination, the modification has the effect of superseding or vacating the earlier judgment with respect to the computation of time allowable for appeal under Code Ann. § 92-8446.

The State Revenue Commissioner cited the appellant as operator of a wholesale liquor business to show cause who his license or permit to operate the business should not be canceled or suspended because of violation of the rules of the Revenue Department. After a hearing, the Revenue Commissioner on July 26, 1960, issued an executive order finding the appellant guilty of various violations of the laws, rules, and regulations pertaining to the sale of alcoholic beverages in the State of Georgia, and imposed as penalties a fine of $7,500 and an indefinite suspension of the appellant's license. On August 8, 1960, the prior order was amended by another executive order lifting the indefinite suspension for the purpose of permitting the orderly liquidation of the appellant's business, and further providing that on September 6, 1960, the appellant's license would stand canceled and revoked. A third executive order modified these two prior orders on September 6, 1960, again lifting the indefinite suspension of the license and providing that the license cancellation would not take effect until the close of business on September 10, 1960. The fourth and final executive order was issued on September 12, 1960, again lifting the indefinite suspension of the license and providing that the cancellation would not take effect until the close of business on September 24, 1960.

The appellant being dissatisfied with the ruling of September 12, 1960, appealed to the Superior Court of Fulton County on September 26, 1960. The Revenue Commissioner made a motion to dismiss the appeal on the grounds that the record shows on its fact that the appeal was not timely filed in the Superior Court of Fulton County. After a hearing, the motion to dismiss was sustained, to which order the appellant excepted.

John P. Kanes, James M. Roberts, Atlanta, for plaintiff in error.

Eugene Cook, Atty. Gen., Ben F. Johnson, Robert W. Goodman, Deputy Asst. Attys. Gen., for defendant in error.

BELL, Judge.

The only question to be determined in this case is whether the appellant's appeal to the Superior Court of Fulton County was filed within the time limit of 15 days from the date of decision by the Commissioner. Code Ann. § 92-8446 provides that except with repect to claims for refunds either party may appeal from any order, ruling, or finding of the Commissioner to the superior court of the county of residence of the taxpayer, and that the procedure provided by law for applying for and granting appeal from the court of ordinary to the superior court shall apply as far as suitable to the appeal authorized, except that the appeal may be filed within 15 days from the date of decision by the Commissioner. Code, § 92-8426.4 provides that, with one exception, all matter, cases, claims, and controversies of whatever nature arising in the administration of the revenue laws, or in the exercise of the jurisdiction of the State Revenue Commissioner or the Department of Revenue shall be subject to review by the courts, as provided for by Section 92-8446. Section 92-8426.4 provides further, 'The effct of this section shall be that, except as hereinafter provided, all final rulings, orders and judgments of the State Revenue Commissioner shall be subject to appeal and review under section 92-8446.'

The controversy here is simply as to the effective date of the decision by the Commissioner from which the 15 days allowed for appeal are to be computed.

The Commissioner insists that the date from which the time for appeal is to be measured is the date of the first executive order, or July 26, 1960. The appellant's contention is that the date of decision is the date of the last of the series of amending executive orders, or September 12, 1960. The appeal was taken within 15 days from September 12, 1960. We have found no case in the Georgia reports exactly in point so as to govern the issue. The Commissioner's position is that the modification of the initial executive order by the three subsequent executive orders amended or modified only with respect to the execution of his administrative judgment, and cites in support of this view the case of Moody v. Muscogee Mfg. Co., 134 Ga. 721, 730, 68 S.E. 604, 608, 20 Ann.Cas. 301, where the Supreme Court states 'A decree which settles all of the substantial equities in a case must be regarded as a finality upon such question. A decree may be partly final and partly interlocutory; final as to its determination of all issues of fact and law, and interlocutory as to its mode of execution * * *

'Every substantial had been established and adjusted between the parties * * *. All subsequent orders * * * related simply to the mode of executing the decree * * * The rule is well established that a final decree disposing of the substantial equities of the case is not made interlocutory by the mere reservation of the right to direct the made of its execution.' The...