State Bd. of Equalization v. Trailer Train Co., s. 41248
| Decision Date | 01 October 1984 |
| Docket Number | 41249,Nos. 41248,s. 41248 |
| Citation | 320 S.E.2d 758,253 Ga. 449 |
| Parties | STATE BOARD OF EQUALIZATION et al. v. TRAILER TRAIN COMPANY et al. (two cases) |
| Court | Georgia Supreme Court |
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.
The State Board of Equalization and the Department of Revenue appeal from a judgment holding that former OCGA § 48- 2-18 () 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 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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