State Bd. of Equalization v. Trailer Train Co.

• Decision Date: 01 October 1984
• Docket Number: 41249,Nos. 41248,s. 41248
• Citation: State Bd. of Equalization v. Trailer Train Co., 253 Ga. 449, 320 S.E.2d 758 (Ga. 1984)
• Parties: STATE BOARD OF EQUALIZATION et al. v. TRAILER TRAIN COMPANY et al. (two cases)
• Court: Georgia Supreme Court

Page 758

320 S.E.2d 758

253 Ga. 449

STATE BOARD OF EQUALIZATION et al. v.TRAILER TRAIN COMPANY et al.(two cases)

Nos. 41248, 41249.

Supreme Court of Georgia.

Oct. 1, 1984.

Rehearing Denied Oct. 29, 1984.

Michael J. Bowers, Atty. Gen., Warren R. Calvert, Asst. Atty. Gen., for State Bd. of Equalization.

James D. Levine, Powell, Goldstein, Frazer & Murphy, Nickolas P. Chilivis, Terrance J. Benshool, David C. Garrett III, James R. Schulz, Atlanta, for Trailer Train Co. et al.

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 rezone.DeKalb County v. Post Properties, 245 Ga. 214, 218, 263 S.E.2d 905(1980);Board of Comm'rs v. Agri-Bio Corp., 249 Ga. 112, 113, 288 S.E.2d 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 S.E.2d 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, 245 Ga. at 218, 263 S.E.2d 905.

That rationale is equally as applicable to constitutional...