Jurisdictional Statement — Griffin v. Sims

Supreme Court brief1982

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Text

No.

In the Supreme Court of the United f

October Term, 1982

WILLIAM N. GRIFFIN, B & B BEVERAGE CO., CLASSIC

CITY BEVERAGES, INC., GEORGIA CROWN DISTRIB-

UTING CO., NORTHEAST SALES DISTRIBUTING, INC.,

PREMIUM DISTRIBUTING CO., INC., GEORGIA BEER

WHOLESALERS ASSOCIATION, INC., TOWN OF

BALDWIN, GEORGIA, and TOWN OF MOUNT AIRY,

GEORGIA, Appellants,

vs.

BURNES E. SIMS, JAMES HOLCOMB, CHARLES

ENGLISH, FRED HOLBROOKS, MARTHA SIKES,

Individually and as Members of the BOARD OF

EDUCATION OF HABERSHAM COUNTY, GEORGIA,

and THE BOARD OF EDUCATION OF HABERSHAM,

COUNTY, GEORGIA, Appellees.

On AppeaAL From THE SuprREME Court

OF GEORGIA

JURISDICTIONAL STATEMENT

Hersert H. Gray, III

(Counsel of Record)

K. Morcan Varner, III

VARNER, STEPHENS, WINGFIELD, McINTYRE

& HUMPHRIES

1000 Grant Building

Atlanta, Georgia 30303

404/522-2020

Attorneys for Appellants, William

N. Griffin, B & B Beverage Co.,

Classic City Beverages, Inc., Geor-

gia Crown Distributing Co., North-

east Sales Distributing, Inc. Pre-

mium Distributing Co., Inc, and

Georgia Beer Wholesalers Associa-

tion, Inc.

(Other Counsel on Inside Cover)

E. L. Mewnomwnat, Iwc., 996 Cherry Street, Kansas City, Mo. 44106, (816) 421-3080

Epwarp E. Srrai, III

Dennis T. CATHEY

Catuey & STRAIN

P. O. Box 689

Corneiia, Georgia 30531

404/778-2601

Attorneys for Appellants, Town of

Baldwin and Town of Mount Airy

QUESTIONS PRESENTED BY THE APPEAL

1. Whether the decision of the Supreme Court of Georgia

that a territorial classification does not require a rational

basis violates the equal protection guarantee of the Four-

teenth Amendment?

2. Whether equal protection under the Fourteenth

Amendment is denied by an amendment to the Georgia

Constitution which creates a territorial classification which

has been determined to have no rational basis in fact?

3. Whether the classification of one county in a State

separate and apart from all other counties in that State

must have a rational basis in order not to violate the

equal protection clause of the Four‘eenth Amendment?

4. Whether equal protection of the law is violated by an

amendment to the Georgia Constitution which taxes only

citizens of certain municipal corporations within a County

while allowing residents of the County outside those mu-

nicipalities to receive benefits but not pay the same tax?

PARTIES

There are two separate cases involved in this Appeal

from a single decision of the Supreme Court of Georgia.’

Because of the identity of issues between the two cases, a

single Jurisdictional Statement is being filed pursuant to

Rule 10.6 of this Court.

1. Sims et al. v. Griffin et al. Se SES, Se ae

21, 1982; Sims et al. v. Town of Baldwin et al., Case No.

dec. April 21, 1982.

The first case appealed is that which was styled Sims

et al. v. Griffin et al., Case Number 38360, decided on

April 21, 1982 by the Georgia Supreme Court. The cap-

tion of this case contains the names of all parties to that

case in the Supreme Court of Georgia.

The second case appealed is that which was styled

Sims et al. v. Town of Baldwin et al., Case Number 38359,

also decided on April 21, 1982 by the Georgia Supreme

Court. There were several parties to that case who have

not joined in bringing this Appeal.’

Except for B & B Beverage Co., none of the corpora-

tions which are parties hereto have any parent, subsidiary

or affiliated companies other than wholly-owned sub-

sidiaries.*

This proceeding draws into question the constitution-

ality of a provision of the Georgia Constitution of 1976,

as amended. Neither the State of Georgia, nor any agency,

officer or employee thereof is or has been a party to this

proceeding at any stage of the litigation. Thus 28 U.S.C.

§2403(b) may be applicable to this action, and a copy of

this Jurisdictional Statement is being served upon the

Honorable Michael Bowers, Attorney General of Georgia.

Bobby Joe Caudell, Mrs. N: Elsner, J. D. Loudermilk,

nee l O. Loudermilk. and J.P. Keller ha have not appealed that

3. e Co. has been purchased by Northeast Seles Distributing

Beverage Co. has been by Northeast Sales Distributing,

Inc., another Appellant Griffin action.

TABLE OF CONTENTS

Questions Presented by the Appeal .........................

Statutes and Constitutional Provisions Involved ..........

Statement of the Case

(a) Parties be

(b) Georgia Constitutional Amendment Procedure

Georgia Laws 1980, pp. 2280 et seq. .................... 4

(d) Allegations of Appellants’ Complaints in the

Superior Court of Habersham County, Georgia 6

mawewewne.t Bw m=

(e) Proceedings Below .... 6

Reasons the Questions Presented Are Substantial So

As to Require Plenary Consideration 9

(a) The Decision of the Georgia Supreme Court

That a Territorial Classification Does Not

Need a Rational Basis to Withstand Constitu-

tional Scrutiny Is Contrary to the Principles

of Constitutional Requirements for Territorial

Classifications Indirectly Recognized by This

Court in Other Decisions ..0000..0.0.0........cccccccoe 10

(b) The Decision of the Georgia Supreme Court

Directly Conflicts With the Decisions of Other

Courts Which Have Addressed This Issue ........ 13

Protection Clause by Taxing Residents of Cer-

tain Municipalities Only While Enabling Those

Residing Outside Those Municipalities to Re-

ceive the Benefit of the Tax ...0.....................00. 16

Conclusion =

Appendix A—Opinion of the Supreme Court of Georgia

(April 21, 1982) Al

Appendix B—Unreported Opinion of the Superior

Court of Habersham County, Georgia, Mountain

Judicial Circuit (August 7, 1981) ... All

Appendix C—Judgment on Remittitur A27

Appendix D—Notice of Appeal—Sims v. Griffin ............ A29

Appendix E—Notice of Appeal—Sims v. Town of

SEED cennanritlinenenaninsntiaenstiianihiiapnisnasiniamptininiene A31

Appendix F—Ga. Laws 1980, pp. 2280 et seq. ................ A33

Table of Authorities

CasEs

Caldwell v. Mann, 157 Fla. 633, 26 So.2d 788 (1946) ... 14

Gordon v. Lance, 403 U.S. 1, 91 S. Ct. 1889, 29 L. Ed.2d

273 (1970) 12

Harper v. Galloway, 58 Fla. 255, 51 So. 226 (1910) ........ 15

Lewis v. State, 110 Ark. 204, 161 S.W. 154 (1913) ...15, 16

Manes v. Goldin, 400 F. Supp. 23 (S.D. N.Y. 1974) aff’d

423 U.S. 1068, 96 S. Ct. 851, 47 L. Ed.2d 80 ........12, 15, 16

Matter of Rosenthal v. Hartnett, 36 N.Y.2d 269, 367

N.Y.S.2d 247, 326 N.E.2d 811 (1975) 15

Moseley v. Welch, 218 S.C. 242, 62 S.E.2d 313 (1950) ... 16

Opinion of the Justices to the Senate and House of Rep-

resentatives, 341 Mass. 760, 168 N.E.2d 858 (1960) ... 16

Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed.

2d 506 (1964) 12

Richards v. Townsend, 303 F. Supp. 793 (1969) mod.

9th Cir. 444 F.2d 528 16

Richmond County v. Richmond County Business Asso-

ciation, 228 Ga. 281, 185 S.E.2d 399 (1971) —............. 18

Salsburg v. Maryland, 346 U.S. 545, 74 S. Ct. 280, 98

L. Ed. 281 (1954) 15

State ex rel. Clarkson v. Philips, 70 Fla. 340, 70 So. 367

(1918) 15

State v. Hill, 98 Miss. 142, 53 So. 411 (1910) ............ 15

Strube v. Sumner, 385 N.E.2d 948 (Ind. App. 1978)

app. dismissed 444 U.S. 1063, 100 S. Ct. 1002, 62

L. Ed.2d 745 16

Supermarkets General Corp. v. State, 286 Md. 611, 409

A.2d 250 (1979) app. dismissed 449 U.S. 801, 101

S. Ct. 45, 66 L. Ed.2d 5 16

Walker v. Board of Supervisors, 224 Miss. 801, 81 So.2d

225 (1955) cert. denied 350 U.S. 887, 76 S. Ct. 142,

100 L. Ed. 782 10, 11, 13, 14

Weissman v. Evans, 82 A.D.2d 441, 442 N.Y.S.2d 80

(1981) 15, 16

STATUTES

CC EE 20

Ga. Code §5A-4302 .. in 17

Ga. Laws 1980, pp. 2280 et 86q. eee eceeceeceeeevenveed passim

Ga. Laws 1981, p. 2174 ................... 5

28 US.C. §1257(2) ....................... Ss eS 2

28 U.S.C. §2403(b) ....... 1

RULES AND REGULATIONS

Supreme Court Rule 10.6 22ers 1

No.

In the Supreme Court of the United States

October Term, 1982

WILLIAM N. GRIFFIN, B & B BEVERAGE CO., CLASSIC

CITY BEVERAGES, INC., GEORGIA CROWN DISTRIB-

UTING CO., NORTHEAST SALES DISTRIBUTING, INC.,

PREMIUM DISTRIBUTING CO., INC., GEORGIA BEER

WHOLESALERS ASSOCIATION, INC. TOWN OF

BALDWIN, GEORGIA, and TOWN OF MOUNT AIRY,

GEORGIA, Appellants,

BURNES E. SIMS, JAMES HOLCOMB, CHARLES

ENGLISH, FRED HOLBROOKS, MARTHA SIKES,

Individually and as Members of the BOARD OF

EDUCATION OF HABERSHAM COUNTY, GEORGIA,

and THE BOARD OF EDUCATION OF HABERSHAM,

COUNTY, GEORGIA, Appellees.

On Appear From tHe Supreme Court

or GEORGIA

JURISDICTIONAL STATEMENT

William N. Griffin, B & B Beverage Co., Classic City

Beverages, Inc., Georgia Crown Distributing Co., North-

east Sales Distributing, Inc., Premium Distributing Co.,

Inc., Georgia Beer Wholesalers Association, Inc., Town of

Baldwin, Georgia and Towpr of Mount Airy, Georgia (Ap-

pellants) respectfully request that this Court note juris-

diction of this Appeal from the Supreme Court of Georgia.

The opinion of the Supreme Court of Georgia, attached

as Appendix A, is reported at 249 Ga. 293, 290 S.E.2d 433

(1982). The unreported Findings of Fact, Conclusions of

Law, and Order of the Superior Court of Habersham

County, Georgia, Mountain Judicial Circuit, which were

entered on August 7, 1981, are attached to this Jurisdic-

tional Statement as Appendix B. The unreported Judg-

ment on Remittitur entered in the Superior Court of Haber-

sham County on May 14, 1982 is attached hereto as Ap-

pendix C.

This Appeal is taken from a single decision of the Su-

preme Court of Georgia which was entered in two com-

panion cases on April 21, 1982.‘ That decision reversed the

Trial Court and upheld the constitutionality of Ga. Laws

1980, pp. 2280 et seq. against a challenge by Appellants.*

The Notice of Appeal in Sims et al. v. Griffin et al. was

timely filed on June 7, 1982 in the Supreme Court of Georgia

and is attached hereto as Appendix D. The Notice of Ap-

peal in Sims et al. v. Town of Baldwin et al. was timely

filed on June 18, 1982 in the Supreme Court of Georgia, and

is attached hereto as Appendix E. The jurisdiction of this

Court is invoked under 28 U.S.C. §1257(2) (1976).

4 249 Ga. 293, 290 S.E.2d 433 (1982).

5. Appendix A at p. Alw.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Georgia Laws 1980, pp. 2280 et seq. are set forth in

Appendix F.

The Fourteenth Amendment to the United States Con-

stitution provides in relevant part as follows:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE

(a) Parties

Appellant William N. Griffin is an individual resident

of DeKalb County, Georgia.* Appellants B & B Beverage

Co., Classic City Beverages, Inc., Georgia Crown Distrib-

uting Co., Northeast Sales Distributing, Inc., and Premium

Distributing Co., Inc., are wholesalers of malt beverages

licensed under Georgia law to sell malt beverages in Haber-

sham County, Georgia.” Appellant Georgia Beer Whole-

salers Association, Inc. is a Georgia not-for-profit corpora-

tion whose members are malt beverage wholesalers in

Georgia.* Appellants Town of Baldwin and Town of Mount

Airy are municipalities located within Habersham County,

6. Appendix B at p. Al5.

7. Appendix B at p. Alé.

8. Appendix B at p. Al’.

Georgia in which the sale of alcoholic beverages is autho-

rized under Georgia law.*

The Appellees herein are members of The Board of

Education of Habersham County, Georgia named in their

individual capacities as well as jointly as the Board of

Education. The Board of Education itself is also named

as an Appellee in this Appeal.

(b) Georgia Constitutional Amendment Procedure

Under the Georgia Constitution of 1976 as amended,

there exist two types of constitutional amendments.” The

first is the “general” amendment which has effect through-

out the State." The second is the “local” amendment

which has effect in a limited geographical area, usually

within one or two political subdivisions.”

The ratification procedure for “local” amendments is

different from that for “general” amendments.” General

amendments must be ratified by the statewide electorate,

while local amendments need only be ratified in the polit-

ical subdivision directly affected by the proposed amend-

At its 1980 session, the Georgia General Assembly

passed a resolution which placed upon the General Election

9. Appendix B at p. Al5.

10. Artich XII, Section I, Paragraph I (Ga. Code Ann.

§2-6901).

11.

12.

13.

14.

FERRE

ballot of Habersham County in November, 1980, a proposed

local constitutional amendment (the “Proposed Amend-

ment”) which, if ratified, purportedly authorized the Board

of Education of Habersham County to direct the Haber-

sham County Commission to levy and collect excise taxes

at varying rates on all alcoholic beverages sold within

Habersham County, Georgia.” These taxes were to be

levied in addition to all excise taxes already imposed on

the sale of alcoholic beverages statewide,"* and were to

be levied in no other county in Georgia except Habersham

County.”

The Proposed Amendment was submitted to the elec-

torate of Habersham County, Georgia.“ No voters in

Georgia, other than those residing in Habersham County,

were permitted to vote on the Proposed Amendment.”*

At the November, 1980, General Election, the Proposed

Amendment was ratified by the voters of Habersham

County and purportedly became part of the Georgia Con-

stitution.” On February 9, 1981, the Habersham County

Board of Education met, and upon resolution, directed the

County to levy and begin collecting the additional excise

taxes.“ On March 2, 1981, the Habersham County Com-

mission met, and upon resolution, voted to impose the

taxes effective April 1, 1981.”

15. A at p. Al, Appendix B at p. Al2, Appendix

F at pp. -A35.

16. Appendix B at p. Al2, Ald.

17. Appendix B at p. Al7.

18. Appendix B at p. Ald.

19. Appendix B at p. Ald.

Ann $2-000 Ge Lowe eee ete 6, Se Ge

21. Appendix A at p. A2, Appendix B at p. Al3.

22. Appendix A at p. A2, Appendix B at p. Al3.

(d) Allegations of Appellants’ Complaints in the

Superior Court of Habersham County, Georgia

Appellants originally brought two separate but similar

actions in the Superior Court of Habersham County,

Georgia against Appellees and others for a declaratory

judgment and preliminary and permanent injunctive relief

seeking, inter alia, to have Ga. Laws 1980 pp. 2280 et seq.,

declared violative of the equal protection clause of the

Fourteenth Amendment to the United States Constitution,

and to prevent the imposition and collection of the tax

purportedly authorized by said Amendment.”

In their Complaints, Appellants alleged that the Pro-

posed Amendment created a classification (purchasers and

sellers of malt and other alcoholic beverages in Habersham

County, Georgia) which had no rational basis.*

Because the territorial classification lacked any such

basis, Appellants asked the Court to declare the Proposed

Amendment and all resolutions enacted pursuant to it void

and without effect because they were in violation of the

Fourteenth Amendment.” Appellants alleged that they

would suffer irreparable injury because of the equal pro-

tection violation.”

(e) Proceedings Below

In the Superior Court of Habersham County, the sep-

arate actions filed by Appellants were consolidated, and a

Appendix A at Griffin Complaint, ad damnum

canner Sonn af Rutiuin Commlnind. od > ay

gg OLS SOROS EGR N ON

are See, 66 Cannan cau, Senn of Eulbyin

oushna tan

a” Griffin Complaint 115-22, Town of Baldwin Complaint

plenary trial on the merits of the issue of the constitu-

tionality of the Proposed Amendment and the subsequent

resolutions was conducted.” After receiving evidence, the

Superior Court of Habersham County, Gunter, J., presiding,

agreed with Appellants that in fact the challenged terri-

torial classification had no rational basis; thus the Proposed

Amendment making the classification should be struck

down as violating the equal protection clause of the Four-

teenth Amendment.”

Judge Gunter’s Findings of Fact, Conclusions of Law

and Order point out at length the constitutional deficiencies

in the Proposed Amendment.” Judge Gunter found as a

matter of fact that the Proposed Amendment classifies

sellers and purchasers of alcoholic beverages into two cate-

gories and thereby creates a territorial classification which

differentiates between sellers and purchasers of alcoholic

beverages in Habersham County and sellers and purchasers

of alcoholic beverages in all other counties in the State.”

The Court also found as a matter of fact that since the

Proposed Amendment applies only to Habersham County,

no other county or counties of this State can come within

the class consisting of Habersham County alone, regardless

of whether or not other such counties have the same needs

or face the same problems which were supposedly dealt

with by the Proposed Amendment." The Trial Court

further found as a matter of fact that “the Proposed

Amendment would impose a burden upon those who sell

and purchase alcoholic beverages in Habersham County

which is not imposed on such purchasers ‘and sellers in

Appendix B, p. Al2.

Appendix B, pp. Al2-A26.

Id.

Appendix B, pp. Al7-A18.

Appendix B, p. Als.

SSsSs 5

other counties; to purchasers, in the form of additional

tax; to sellers in the form of increased administrative and

operational costs and sales losses. This burden would

apply nowhere else in this State (Georgia)”.* Turning

from the classification created by the Proposed Amend-

ment, the Trial Court then analyzed the question of

whether the classification was supported by a rational basis.

After a review of all possible justifications and bases

for and in support of the classification, the Trial Court

finally found, as a matter of fact:

there is no factual support or factual basis for classi-

fying purchasers and sellers of alcoholic beverages in

Habersham County separate and apart from all other

purchasers and sellers in this State.”

Applying the law of equal protection to these facts

established by the Plaintiffs’ evidence, the Court struck

down the Proposed Amendment,™ and permanently en-

joined the collection of the excise taxes.”

Appellees in this Court filed a Notice of Appeal of

the Superior Court’s Order and pursued an Appeal to the

Supreme Court of Georgia.”

In an Order dated April 21, 1982, the Supreme Court

of Georgia reversed the order and judgment of the Trial

Court by holding that Ga. Laws 1980, pp. 2280 et seq.

did not violate the equal protection clause of the Four-

teenth Amendment.”

Appendix B, p. Alé.

Appendix B, p. A18.

Appendix B, pp. A22-A23.

Appendix B, pp. A25-A26.

Appendix A, p. A2.

Appendix A, p. A5.

SSSS88

Appellees argued to that Court that sufficient basis

existed to support the classification. Without reversing

the Trial Court’s factual determination that there was no

rational basis to support the classification, the Georgia

Supreme Court nevertheless reversed the Trial Court’s

holding that the classification violated the equal protection

clause of the Fourteenth Amendment.” The Georgia Su-

preme Court reasoned that since the Proposed Amendment

treated alike all persons similarly situated within the area

covered by the Amendment (Habersham County), then it

did not matter whether the classification of Habersham

County apart aud by itself had any rational basis or not.”

The Supreme Court of Georgia held that the Proposed

Amendment could not, by creating a classification con-

sisting of one county alone, violate the equal protection

clause of the Fourteenth Amendment unless those persons

within the County itself were not treated equally by the

Amendment.’ The Georgia Supreme Court thus in effect

placed local constitutional amendment procedures under

the Georgia Constitution beyond the reach of the Four-

teenth Amendment by holding that a classification of a

county or counties made by the Georgia General Assembly

needs no rational basis to support it.

REASONS THE QUESTIONS PRESENTED ARE

SUBSTANTIAL SO AS TO REQUIRE PLENARY

CONSIDERATION

The decision of the Georgia Supreme Court holds

that a local amendment to the Georgia Constitution which

38. Appendix A, p. Aé.

39. Appendix A, p. A5.

40. Appendix A, p. Aé.

41. Appendix A, p. Aé.

creates a territorial classification having no rational basis

in fact does not violate the equal protection guarantee

of the Fourteenth Amendment.“ Such holding is in direct

conflict with decisions of a number of state courts and

at least one United States District Court which have held

that territorial classifications, just as all other classifica-

tions by legislative act, must be founded upon a rational

basis in order to be valid.“ Although this Court has never

specifically made such a determination, it has indirectly

recognized the principle that territorial classifications are

no different from any other type of classification with

regard to constitutional requirements.“ This case pro-

vides the Court with the opportunity to recognize explic-

itly the above principle, and thereby to make a much

needed correction to the decision of the Georgia Supreme

Court.

(a) The Decision of the Georgia Supreme Court

That a Territorial Classification Does Not

Need a Rational Basis to Withstand Constitu-

tional Scrutiny Is Contrary to the Principles

of Constitutional Requirements for Territorial

Classifications Indirectly Recognized by This

Court in Other Decisions.

The Georgia Supreme Court held that as long as all

persons within the territory classified were treated equally,

then there can be no denial of equal protection resulting

from the classification of the territory itself“ It cer-

43. Walker v. Board of Supervisors, 224 Miss. 801,

a Sa @ ) cert. denied 350 U.S. 887, 76 S. Ct. 142, 1

45. Appendix A at p. Aé.

tainly cannot be denied that a classification of a territory

which results in persons within the territory classified

being treated unequally would be unconstitutional unless

there was a rational basis for such unequal treatment.

It is equally true, however, that the territorial classifica-

tion itself must have a rational basis. That is to say

that there must exist a rational basis for classifying one

county, such as Habersham County, apart from the re-

maining 158 counties in Georgia. If there is no rational

basis for the classification of a county apart from the

others, then the classification is not valid.

Therefore, the primary issue presented to this Court

is fundamental and straightforward: Must a territorial

classification created by an amendment to a state consti-

tution have a rational basis in order to withstand scrutiny

under the equal protection clause of the Fourteenth

Amendment? Although not specifically articulated, past

decisions of this Court indicate that a territorial classifica-

tion, just as any other classification, must have a rational

basis to be valid under the Fourteenth Amendment.

In Walker v. Board of Supervisors,“ the Supreme

Court of Mississippi held that territorial classifications

must be properly based on differences between the areas

and peoples within the classification and those without

the classification in order to be valid. A petition for

certiorari seeking to have this decision reversed was

denied by this Court.“

Similarly, in a case involving the validity of a terri-

torial classification the U.S. District Court for the South-

ern District of New York recently held that:

46. 224 Miss. 801, 81 So.2d 225 (1955) cert. denied 350 U.S.

887, 76 S. Ct. 142, 100 L. Ed. 782.

47. 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782.

A territorial distinction which has no rational basis

will not support a state statute. See Reynolds v.

Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed.2d 506

(1964); Gordon v. Lance, 403 U.S. 1, 4, 91 S. Ct. 1889,

1891, 29 L. Ed.2d 273 (1970).

This Court affirmed the holding without opinion.”

A critical fact of the case sub judice which was deter-

mined by the Trial Court based upon the evidence sub-

mitted to it was that there was no rational basis to sup-

port the classification of Habersham County separate and

apart from the remaining 158 counties in Georgia.” The

Georgia Supreine Court apparently felt this fact was

irrelevant if the population of Habersham County were

all treated equally.

Left uncorrected, therefore, the decision of the Geor-

gia Supreme Court will result in the law in Georgia being

that territorial classifications established by local amend-

ment to the Georgia Constitution do not need a rational ~

basis. Such a rule would clearly be contrary to the equal

protection requirements for territorial classifications which

this Court has implicitly recognized. This Court should,

therefore, note jurisdiction of this case and explicitly set

forth the Constitutional requirements for territorial classi-

fications.

48. Manes v. Goldin, 400 Z, Cae. © 8 2 Cee. 1974)

aff'd 423 US. 1068, 96 S’ Ct. 85i, 4 Ed.2d 80

49. Id.

50. Appendix B, pp. Al7-A19.

(b) The Decision of the Georgia Supreme Court

Directly Conflicts With the Decisions of Other

Courts Which Have Addressed This Issue.

As indicated above, the question of whether a terri-

torial classification must be rationally based has been

addressed by numerous other courts, both State and

Federal. The Courts have uniformly held that terri-

torial classifications must be rationally based in order

to be valid. The opinion of the Supreme Court of Georgia

in the case sub judice is the only opinion which holds

otherwise.

In Walker v. Board of Supervisors, the Supreme Court

of Mississippi struck down a territorial classification as

not being properly based.” The factual circumstances in

Walker were almost identical t» those of the case sub

judice. The Mississippi legislature had enected a law

which levied an additional gasoline tax in one county

only.” After a thorough analysis of the question of why

that particular county was singled out, it became apparent

to the Supreme Court of Mississippi that, in fact, there

was no reason for the county to have been so classified.™

Since the additional tax imposed a burden upon those

purchasing gasoline in the county which was not imposed

elsewhere in the State, and since there was no reason

or basis for this burden to be suffered in that particular

county, the Court struck down the tax as unconstitu-

tional.”

51. P. 10, supra.

81 So.2d 225 at 231-234.

81 So.2d at 228, 229, 232-233.

81 So.2d at 232-233.

81 So.2d at 234.

SS 25

The parallels between Walker and this case are ob-

vious. The only true difference between the cases is

that in Walker the tax was on gasoline, and in the case

at bar, the tax is on alcoholic beverages. Appellants

maintain that the overpowering logic of the well-reasoned

Mississippi decision is a correct analysis of the issue pre-

sented by this case. Thus this Court should note juris-

diction and reverse the opinion of the Georgia Supreme

Court which holds to the contrary.

While Walker presents a practically identical fact

situation, it is certainly not the only case in which a terri-

torial classification without a rational basis has been struck

down. In Caldwell v. Mann,™ the Florida Supreme Court

reached the same result.

Caldwell involved a challenge to an enactment which

prohibited the possession, purchase, sale or offer for sale

of certain fish and fish products between December 1 and

January 20 of the succeeding year.” The purpose of this

legislation had been to protect the fish population of the

State.”

After the passage of the initial Act, however, several

particular counties were removed from its coverage.” Suit

was then brought to have the Act declared unconstitutional

as creating a territorial classification lacking in rational

basis.” In holding that the classification did in fact not

have a rational basis and therefore did violate the equal

protection guarantee, the Florida Supreme Court wrote:

157 Fla. 633, 26 So.2d 788 (1946).

26 So.2d at 789.

26 So.2d at 791.

26 So.2d at 789.

Classifications by counties or otherwise for the purpose

of prescribing regulations or exactions that in effect

impose burdens on some citizens of the state that in

kind or extent are not imposed upon other citizens

of the state under practically similar conditions, with

no conceivably just basis for the classifications or

discriminations, constitute a denial to those injuriously

affected of the equal protection of the laws in violation

of the Fourteenth Amendment to the Federal Consti-

tution. Harper v. Galloway, 58 Fla. 255, 51 So. 226,

26 L.R.A., N.S., 794, 19 Ann. Cas. 225; State ex rel.

Clarkson v. Philips, 70 Fla. 340, 70 So. 367, Ann. Cas.

1918A, 138; Lewis v. State, 110 Ark. 204, 161 S.W.

154; State v. Hill, 98 Miss. 142, 53 So. 411, 31 L.RA.,

N.S., 490; 27 C.J. $47; 12 R.C.L. 694."

Two other recent cases reaching conclusions on this

issue contrary to that reached by the Georgia Supreme

Court are Manes v. Goldin,” and Weissman v. Evans.“

Manes has been discussed above“ In Weissman, the

Appellate Division of the New York Supreme Court held

exactly as the Georgia Supreme Court should have held

in this case:

It has been stated that equal protection does not re-

quire territorial uniformity of law within a State

(See Matter of Rosenthal v. Hartnett, 36 N.Y.2d 269,

367 N.Y.S.2d 247, 326 N.E.2d 811; see, also, Salsburg v.

Maryland, 346 U.S. 545, 74 S. Ct. 280, 98 L. Ed. 281).

However, a territorial distinction, without any ra-

61. 26 So.2d at 791.

400 F Te, 2 Sort. 1974) aff'd 423 US. 1068,

62. A

96 S. Ct. 851, 47 L.

63. 82 A.D.2d 441, 442 N.Y.S.2d 80 (1981).

64. Pp. 11, 12, supra.

tional basis, cannot withstand constitutional scrutiny

(see Manes v. Goldin, 400 F. Supp. 23, 29, aff'd 423

U.S. 1068, 96 S. Ct. 851, 47 L. Ed.2d 80; Richards v.

Townsend, 303 F. Supp. 793, mod. 9th Cir. 444 F.2d

528.% [Emphasis added. ]

The same result has been reached by Courts in Mary-

land,” Arkansas,” Indiana,“ South Carolina® and Massa-

chusetts.”° The opinion of the Supreme Court of Georgia

is an aberration.

This Court should note jurisdiction of this case and

correct the reasoning of the Georgia Court. The inter-

pretation of the equal protection guarantee of the Federal

Constitution should be universally the same, and not dif-

ferent in Georgia than in the remaining states.

Protection Clause by Taxing Residents of Cer-

tain Municipalities Only While Enabling Those

Residing Outside Those Municipalities to Re-

ceive the Benefit of the Tax.

As to the citizens of the Town of Baldwin and the

citizens of the Town of Mt. Airy, the Proposed Amend-

ment violates the equal protection clause of the Fourteenth

Amendment for an additional reason. For the first time a

county in the State of Georgia, which does not allow the

“ 442 N.Y.S.2d at 82.

2d’ 280 (78) app. diomissed 448 US 801 801, iol 01S. a Ct ab, 66

ry EE EN 154 (1913).

68. Strube 985 N.E.2d 1978

Gemined 400 U5. 1008 100 © Ch ieee, aL I _—

69. Moseley v. Welch, 218 S.C. 242, 62 S.E.2d 313 (1950)

of the Justices to the Senate and the House of

aun ob 341 Mass. 760, 168 N.E.2d 858 (1960).

sale of alcoholic beverages, voted to impose a tax upon

certain specified municipalities which do allow the sale of

alcoholic beverages." The undisputed evidence at trial

showed that the voters in all of Habersham County voted

to impose a tax which would be collected only within the

corporate limits of Baldwin and Mt. Airy.” No tax could

be collected within the unincorporated areas of Habersham

County nor within the other municipalities which do not

permit the sale of alcoholic beverages.”

The constitutional evil in this type of voting pro-

cedure is both inherent and obvious. When tie municipal

voter in Baldwin or Mt. Airy stepped into the voting booth

and cast his vote he voted, in essence, to impose or not to

impose a tax which would apply to the political subdivision

in which he resided. The reverse was true of tne voters

who resided either in the unincorporated areas of Haber-

sham County or in the dry municipalities. These voters

voted to impose a tax upon other political subdivisions in

which they did not reside and of which they were not a

would be used to benefit those who did not pay the tax.”

71. Appendix B at pp. Al5, A24-A25.

72. Id

73. Id

74. Appendix F at pp. A33-A34.

75. Ga. Code §5A-4302.

76. Appendix F at p. Al5.

77. Appendix B at pp. A24-A25.

the State of Georgia in that Habersham County is singled

78. Appendix B at pp. A24-A25.

79. Appendix B at pp. Al7-Ai8.

80. See Richmond v. Richmond

Association, 228 Ga. ey A 399 (1971).

CONCLUSION

For the reasons set forth in this Jurisdictional State-

ment, jurisdiction of this appeal should be noted, and the

decision of the Georgia Supreme Court reversed.

Respectfully submitted,

Hersert H. Gray, III

(Counsel of Record)

K. Morcan Varner, III

VaRNER, STEPHENS, WINGFIELD, MCINTYRE

& HUMPHRIES

1000 Grant Building

Atlanta, Georgia 30303

404/522-2020

Attorneys for Appellants, Town of

Baldwin and Town of Mount Airy

APPENDICES

APPENDIX A

IN THE SUPREME COURT OF GEORGIA

38359

BURNES E. SIMS et al.

Vv.

THE TOWN OF BALDWIN et al.

At its 1980 session the General Assembly passed a

1gL CHIEN

fai

ie Ht if

it iit

peisllepiet

were adopted by a majority of voters in Habersham

County. Code Ann. § 2-6901; Ga. Laws 1981, p. 2174.

Following certification of the election results, the

Board of Education of Habersham County adopted a reso-

lution directing the Board of Commissioners to impose

the excise taxes on alcoholic beverages as authorized by

the local amendment. Ga. Laws 1980, pp. 2280. The

Board of Commissioners adopted a resolution making the

excise taxes effective April 1, 1981. Prior to the effective

date of the taxes, appellees filed separate suits in superior

court, seeking to have this local amendment declared un-

constitutional under the due process and equal protection

clauses of the 14th Amendment. The cases were consol-

idated for trial. The trial court determined that the

local amendment violated the 14th Amendment to the

U. S. Constitution and permanently enjoined the collection

of the taxes. This appeal followed.

(1) The procedure for amending the Georgia Con-

stitution, either by general or by local amendment, is set

out in Article XII, Section I, Paragraph I of the Georgia

Constitution; Code Ann. § 2-6901. The Georgia Constitu-

tion requires the General Assembly to approve a resolu-

tion to propose an amendment to the Constitution by the

votes of two-thirds of the elected members of each branch.

Then the “Governor, the Attorney General, and the Secre-

tary of State shall meet and determine whether a proposed

amendment is general, and if not general, shall determine

what political subdivision or subdivisions are directly af-

fected by such proposed amendment.” If the proposed

amendment is general, it must be published in one news-

paper of general circulation in each Congressional District

in the state once weekly for three consecutive weeks pre-

ceding the election at which it is to be submitted. If the

proposed amendment is local, it need only be published

for three consecutive weeks “in the newspapers of general

circulation in each county in which the directly affected

political subdivision or subdivisions are located.” A gen-

eral amendment must be submitted “to the people of the

entire State,” while a local amendment “shall only be

submitted to the people of the political subdivision or

subdivisions directly affected.” In either case the pro-

posed amendment must be ratified by a majority of the

electors before it becomes a part of the Constitution.

The tendency to amend the Georgia Constitution by

amendments which apply solely to an isolated political

subdivision of the State has met considerable criticism.

It has been calculated that between 1947 and 1967, the

See Ga. Laws 1981, pp. 2155-2187. In Roberts v. Suttles,

212 Ga. 138, 141-2 (91 SE2d 32) (1956), this court cau-

tioned “that [the local amendment] is a very dangerous

way in which to deal with the fundamental law of our

state, and that the Constitution is rapidly becoming a

(2) (a) Im an order making lengthy findings of fact,

the trial court determined that, if imposed, the excise

tax would raise the malt beverage tax in Habersham

County to the highest such tax in the United States; that

only three municipalities in Habersham County authorize

the sale of alcoholic beverages; that the unincorporated

areas of Habersham County do not authorize the sale of

alcoholic beverages; that sales of alcoholic beverages in

Habersham County will decline “50-55%” if the tax is

imposed; and that ail residents of Georgia will be “irrep-

arably damaged” by being required to pay a higher tax

on alcohol when purchased in Habersham County than

when purchased in any other county in the state. The

trial court also found that the local amendment classifies

Habersham County in a manner different from all other

counties in the state, and imposes a burden on those who

sell and purchase alcoholic beverages in Habersham

County which is not imposed on similarly situated sellers

and purchasers located elsewhere in the state. The trial

court determined that “since the Defendants [appellants]

have pointed out no unique need or other characteristic

possessed by Habersham County which distinguishes the

County from other counties of the State and justifies

special classification . . . the additional excise tax on alco-

holic beverages levied pursuant to the Proposed Amend-

ment denies equal protection of the laws under the United

States Constitution.”

(b) We note at the outset that the trial court erred

in placing the burden of showing the reasonableness of

the local amendment on the appellants. “[I]n taxation,

even more than in other fields, legislatures possess the

greatest freedom in classification... There is a presump-

tion of constitutionality which can be overcome ‘only by

the most explicit demonstration that a classification is a

hostile and oppressive discrimination against particular

persons and classes’... The burden is on the one attack-

ing the legislative arrangement to negative every con-

ceivable basis which might support it.” Lehnhausen v.

Lake Shore Auto Parts Co., 410 U. S. 356, 364 (93 SC

1001, 35 LE2d 351) (1972), rehearing denied 411 U. S.

910 (1972); Madden v. Kentucky, 309 U. S. 83 (60 SC 406,

84 LE 590) (1940). Thus, while it was not the legislature,

but the electors of Habersham County who classified the

county in a manner different from other counties in the

state, the burden at trial was on appellees to “negative every

conceivable basis which might support” the local amend-

ment. Lehnhausen, supra, at 364.

the local amendment the legislature intended to insure

that revenues generated from the excise taxes on alcoholic

beverages would offset the deficit created in ad valorem

school taxes by the simultaneously proposed homestead

exemption. Therefore, appellants urged, the classifica-

tions created by the local amendment authorizing an excise

tax on alcohol were “founded on material differences and

substantial distinctions which bear a proper relation to

the matters . . . dealt with by the [amendment] and to the

purpose sought to be accomplished.” Richmond County

v. Richmond County Business Association, 228 Ga. 281,

283 (185 SE2d 399) (1971). Appellants argue that the

subdivision of the State. Code Ann. § 2-6901. Each time

the electors of a county vote to adopt a local amendment

directly affecting that county, they classify their county

in a manner different from other counties in the State.

The fact that the Georgia Constitution is different in

Habersham County than it is in any other county in the

State is inescapable.* The Constitution provider that a

local amendment shall apply only to the political sub-

division “directly affected” by the amendment. Ga. Const.

Art. XII, Sec. I, Para. I; Code Ann. § 2-6901. Conversely,

counties or other politica] subdivisions outside the terri-

torial application of the amendment are not “directly af-

fected” by the amendment. If a local amendment is other-

wise valid under Code Ann. § 2-6901, there can be no

claim that the amendment violates equal protection of

the laws because it classifies a county in a manner dif-

ferent from other counties in the state. By local ordi-

nances or pursuant to the authority of the County Home

Rule Amendment, a county may classify itself in a manner

different from all other counties in the state. The fact

that County A authorizes the sale of liquor while County

B does not does not mean that County B has been denied

by the amendment in an arbitrary manner. Thus we

hold the trial court erred in concluding that the local

amendment classifies Habersham County in a manner

violative of the equal protection clause.

(d) Appellees also argue that the local amendment

creates an impermissible classification by placing a higher

tax on liquor sold in that portion of the City of Baldwin

located in Habersham County than that portion of the

City of Baldwin located in Banks County. “It has been

of the class which includes all persons and property sim-

ilarly situated, it is not subject to any objection that it

is special or class legislation.” McLennan v, Aldredge,

223 Ga. 879, 886 (156 SE2d 682) (1967). The “class”

to which the local amendment applies in this case, as

found above, is Habersham County. Clearly the local

amendment applies only within Habersham County’s terri-

torial limits. Appellees concede that all liquor sold within

Habersham County is uniformly subject to the excise taxes

authorized by the local amendment. Thus, while the

effect of the excise taxes may be to raise the price of

liquor in Habersham County higher than in other counties,

all similarly situated persons and property within the

county are treated equally. We find no violation of equal

protection.

(3) While appellees urge that the local amendment

violates the due process clause of the 14th Amendment,

they have articulated no rationale under which the due

process clause is applicable. Therefore, we do not reach

this argument. e, Ingalls Iron Works Co. v. Chilivis,

237 Ga. 479 (228 SE2d 866) (1976).

(4) The trial court determined that the challenged

local amendment “affects all citizens of this State” and,

as such, was a general rather than local amendment. The

trial court concluded that since the amendment was not

advertised throughout the state nor voted on by the entire

state it was not lawfully ratified as required by Code Ann.

§ 2-6901. We do not agree. While it is true that persons

residing outside Habersham County may purchase alco-

holic beverages there and thus be subject to a higher tax

than elsewhere in the state, it is clear that the proposed

amendment is a local amendment within the meaning of

Code Ann. § 2-6901. Habersham County is the political

subdivision “directly affected,” and the amendment was

properly submitted to Habersham County voters alone.

Thus the trial court erred in determining that because

the amendment was not submitted to the entire state, it

was not properly ratified.

(5) The only alcoholic beverages sold in Habersham

County are sold in the towns of Baldwin, Mt. Airy and

Clarkesville. The trial court found that “the amendment

taxes only the citizens of Baldwin, Mt. Airy and Clarkes-

ville while allowing the residents of the other areas of

the county to receive the same benefits as those within

these municipalities but not pay the same tax.” Relying

on City of Lithonia v. DeKalb County Board of Education,

231 Ga. 150 (200 SE2d 698) (1973), the trial court deter-

mined that allowing the residents of the unincorporated

areas of the county to vote to impose a tax on the residents

of the municipalities violates equal protection of the laws.

The trial court’s reliance on this case is misplaced. In

City of Lithonia, alcoholic beverages were sold both in

the municipalities of DeKalb County and in unincorpo-

rated DeKalb County. Lithonia challenged the propriety

of the ratification of a local amendment authorizing the

imposition of an excise tax on the sale of alcoholic bev-

erages throughout the county. The local amendment pro-

vided that half of the revenues generated from this tax

were to be used to “provide local education.” 231 Ga.

at 151. Lithonia contended that the amendment could

not be validly ratified without the approval of the majority

of voters in each municipality in DeKalb County. We

rejected this argument, finding “(t]he proposed amend-

ment could not have been properly submitted [to the

voters} in this manner. It would have permitted the

municipalities situated in the school districts to reject

it, while permitting the licenses and taxes to be levied

in the unincorporated areas of DeKalb County. Such a

result would be a patent violation of the due process and

Al0

holic beverages. Allied Stores of Ohio v. Bowers, 358 U. S.

522, 526 (79 SC 437, 3 LE2d 480) (1958); Carmichael v.

Southern Coal &c., 301 U. S. 495 (57 SC 868, 81 LE 1245)

(1937); Ingalls Iron Works v. Chilivis, 237 Ga. 479 (228

SE2d 866) (1976).

(6) Because of the result we reach in this opinion,

we do not reach appellants’ remaining enumeration of

error.

Judgment reversed. All the Justices concur.

April 21, 1982

All

IN THE

SUPERIOR COURT OF HABERSHAM COUNTY

STATE OF GEORGIA

CIVIL ACTION FILE NO. 107-81

WILLIAM N. GRIFFIN, et al.,

DAVID BURRELL, et al.,

Defendants.

FINDINGS OF FACT

CONCLUSIONS OF LAW

ORDER

The above-styled cases were filed in this Court seek-

Al2

and the Habersham County Commission. As the actions

involved common questions of law and fact, and as all

parties through their counsel of record consented to the

consolidation of these two cases, they were consolidated

and were heard by this Court on April 27, 1981. For

the reasons that follow, the Court holds that the Proposed

Amendment found at Georgia Laws 1986, pp. 2280 is in-

deed unconstitutional, violative of the Due Process and

Equal Protection clauses of the Fourteenth Amendment of

the United States Constitution, as well as Article I, Sec-

tion I, Paragraph I (Code §2-101) and Article I, Section II,

Paragraph III (Code §2-203) of the Georgia Constitution.

The Proposed Amendment was improperly ratified and

thus did not become part of the Constitution of the State.

The Court thus permanently enjoins the collection of any

tax purportedly authorized to be levied thereunder.

FINDINGS OF FACT

Based upon the evidence presented to this Court, it

finds the following matters to be true as facts:

Background Facts

(1) The Georgia General Assembly in its 1980 ses-

sion passed a resolution proposing a local constitutional

amendment authorizing the levying of an additional ex-

cise tax on ail alcoholic beverages sold within Habersham

County, Georgia Laws 1980, pp. 2280; (the “Proposed

Amendment”).

(2) The Proposed Amendment authorized the Haber-

sham County Board of Education (“Board of Education”)

to direct by resolution the Habersham County Commission

(“Commission”) to levy additional taxes upon alcoholic

beverages sold in Habersham County at the following

rates:

Al3

(a) Five cents per 12 ounces and a proportionate

tax at like rate on bottles, cans, and containers of

various sizes on the sale of malt beverages within

Habersham County. A tax on tap or draft beer sold

within Habersham County at a rate of $6.00 for each

barrel or bulk container containing 15 1/2 gallons, and

a proportionate tax at like rate for containers of vari-

ous sizes.

(b) Twenty-five cents per gallon, and a pro-

portionate tax at like rate on fractional parts of a gal-

lon, on the sale within Habersham County of wines,

whether produced from fruits or berries grown within

or without the State, having an alcoholic content of 14

percent or more by volume.

tax at like rate on fractional parts of a gallon, on the

sale within Habersham County of distilled spirits or

spiritous liquors. ~

(3) The revenue raised by the imposition of these

taxes was to be paid to the County which would then re-

mit it to the Board of Education to be used for school

purposes.

(4) On February 9, 1981, the Board of Education met

and adopted a resolution directing the Commission to im-

pose the additional alcoholic beverage excise taxes pur-

portedly authorized by the Proposed Amendment.

(5) On March 2, 1981, the Commission adopted a

resolution levying the additional taxes effective April 1,

1981.

(6) The Proposed Amendment and the resolutions

enacted pursuant thereto proposed to levy a tax on all in-

Al4

dividuals legally able to purchase alcoholic beverages in

Habersham County at the following rates:

(a) Five cents per 12 ounces and a proportionate

tax at like rate on bottles, cans, and containers of

various sizes on the sale of malt beverages within

Habersham County. A tax on tap or draft beer sold

within Habersham County at a rate of $6.00 for each

barrel or bulk container containing 15 1/2 gallons, and

a proportionate tax at like rate for containers of various

sizes.

(b) Twenty-five cents per gallon, and a propor-

tionate tax at like rate on fractional parts of a gal-

lon, on the sale within Habersham County of wines,

whether produced from fruits or berries grown within

or without the State, having an alcoholic content of 14

percent or more by volume.

tax at like rate on fractional parts of a gallon, on the

sale within Habersham County of distilled spirits or

spiritous liquors.

(7) Alcoholic beverages sold within Habersham

County are subject to normal state and local taxes in ac-

cordance with Title 58 of the Georgia Code, and after July

1, 1981 in accordance with Title 5A of the Georgia Code.

(8) The State of Georgia currently has the highest

tax rate on malt beverages of any state in the United

States.

(9) The additional malt beverage tax which would

be imposed pursuant to the Proposed Amendment would

raise the malt beverage tax in Habersham County to the

highest rate in the United States.

Al5

(10) Habersham County is a “dry” county in which

alcoholic beverages may not be legally sold.

(11) Habersham County contains three (3) “wet”

municipalities in which some or all alcoholic beverages may

be sold, Baldwin, Mt. Airy and Clarkesville.

(12) The Town of Baldwin, Georgia, lies both in

Habersham County and Banks County.

(13) The governing officials of Habersham County

have refused to issue alcoholic beverage licenses in unin-

corporated Habersham County.

(14) The governing officials of Habersham County

presently show no inclination to issue alcoholic beverage

licenses in unincorporated Habersham County in tue future.

(15) The ordinance of the Town of Baldwin per-

mitting the sale of alcoholic beverages within the municipal

limits of Baldwin requires that the licensee reside in

Baldwin.

(16) The ordinance of the Town of Mt. Airy per-

mitting the sale of alcoholic beverages within the munic-

ipal limits of Mt. Airy requires that the license reside in

Mt. Airy.

(17) Approximately forty (40) cents per case would

be added to the price of malt beverages sold in Habersham

County by the retailers in the three towns where malt

beverages may legally be sold.

Facts Dealing With Parties and Damage Which Would Be

Suffered

(18) Plaintiff William N. Griffin (“Griffin”) is a

resident of DeKalb County, Georgia and is at least nineteen

years of age.

Al6

(19) Griffin is not a habitual drunkard.

(20) Griffin does not labor under any disability

which would prevent him from purchasing alcoholic bev-

erages.

(21) The residents of Georgia purchasing alcoholic

beverages in Habersham County, including Griffin, will be

irreparably damaged by the levying of the additional al-

coholic beverage excise tax due to their being required to

pay an increased price caused by such tax.

(22) The Wholesaler Plaintiffs in this action are all

lawfully licensed to sell and do sell malt beverages within

Habersham County.

(23) If the additional tax on malt beverages is im-

posed, Wholesaler Plaintiffs will incur increased admin-

istrative and operational costs.

(24) If the additional excise taxes were levied, sales

of malt beverages in Habersham County would drop 50-55

percent.

(25) If sales of malt beverages decrease in Haber-

sham County, wholesalers selling to retailers in Habersham

County will experience a net loss of sales revenue which

will not be compensated for by increased sales in surround-

ing counties.

(26) The excise tax on malt beverages sold in South

Carolina is approximately 50 percent of what the tax would

be in Habersham County if the additional tax were levied.

(27) If the additional malt beverage tax is imposed,

a portion of malt beverages currently purchased in Haber-

sham County will be purchased in South Carolina, and boot-

legged into Georgia for resale and consumption, because of

the lower price in South Carolina.

Al?

(28) The additional excise tax will cause the Whole-

saler Plaintiffs to lose sales which they cannot recoup else-

where, as well as increasing their operational and admin-

istrative expenses, and thus the Wholesaler Plaintiffs will

be irreparably and permanently damaged by the imposi-

tion of such additional excise tax.

(29) Georgia Beer Wholesalers Association, Inc.

(“GBWA”) is a Georgia not-for-profit corporation which

receives its revenues from its members, licensed beer

wholesalers in Georgia. Dues of members in GBWA are

based in part upon the sales of member wholesalers.

(30) If wholesalers of malt beverages in Habersham

County lose sales, the revenue of the Plaintiff GBWA will

decrease.

(31) If revenue of GBWA decreases there will be no

corresponding reduction in costs incurred by GBWA.

(32) GBWA would thus be forced to curtail a por-

tion of its activities which affect not only Wholesaler

Plaintiffs, but all member wholesalers, including those not

selling in Habersham County.

(33) GBWA will thus be irreparably and perma-

nently damaged by the imposition of the additional malt

beverage excise tax.

Facts Pertinent to Equal Protection Issue

(34) The Proposed Amendment applies only to Hab-

ersham County.

(35) The Proposed Amendment classifies sellers and

purchasers of alcoholic beverages in Georgia into two

categories and thereby creates a territorial classification

which differentiates between sellers and purchasers of

alcoholic beverages in Habersham County and sellers and

Als

purchasers of alcoholic beverages in all other counties in

this State.

(36) Since the Proposed Amendment applies only

to Habersham County, no other county or counties of this

State can come within the class consisting of Habersham

County alone, regardless of whether or not other such

counties have the same needs or face the same problems.

(37) The Proposed Amendment would impose a bur-

den upon those who sell and purchase alcoholic beverages

in Habersham County which is not imposed on such pur-

chasers and sellers in other counties; to purchasers, in the

form of additional tax; to sellers, in the form of increased

administrative and operational costs and sales losses. This

burden would apply nowhere else in this State.

(38) There is no factual support or factual basis for

classifying purchasers and sellers of alcoholic beverages

in Habersham County separate and apart from all other

such purchasers and sellers in this State.

(39) Habersham County possesses no unique need

for educational funds which distinguishes it from all other

counties in Georgia.

(40) Habersham County ranks economically in the

top 29 percent of the counties in the State of Georgia

according to the master economic rank of the State Rev-

enue Commissioner (State Revenue Commissioner’s 1980

Statistical Report).

(41) Proposed local amendments increasing prop-

erty tax exemptions were proposed in 63 municipalities

and counties at the 1980 General Election, and were rat-

ified in 58.

(42) None of said 63 municipalities and counties

are able to generate additional revenue through the im-

Al9

position of the malt beverage excise tax proposed by

the Proposed Amendment since said Amendment applies

only to Habersham County.

(43) The Proposed Amendment contains no sever-

ability clause.

Facts Pertinent to Adoption and Ratification Issue

(44) On November 4, 1980 the Proposed Amendment

was presented to the electorate of Habersham County

for its approval.

{45) On November 4, 1980, at the general election

for the State of Georgia, the above referenced amendment

was submitted to the voters of Habersham County. In

said election votes were cast by voters both within and

without the municipalities located within Habersham

County. The votes were tabulated according to voting

districts which were not coterminous with the boundaries

of the municipalities so that it is impossible to determine

whether a majority of the voters in any municipality

voted in favor of said amendment. A majority of the

voters in Habersham County voted for the amendment.

(46) The Proposed Amendment was approved by

the electorate of Habersham County.

(47) The Proposed Amendment was not submitted

to the statewide electorate nor was it advertised in the

manner required of general constitutional amendments.

The Proposed Amendment affects the residents of the

entire State, and not the residents of Habersham County

only, because it requires all residents of Georgia, including

Griffin, who would purchase malt beverages in Haber-

sham County, to pay $1.60 more per case for malt bever-

ages purchased in Habersham County.

A20

CONCLUSIONS OF LAW

Equal Protection

(1) Equal protection of the law requires that the

law operate alike on all persons or property similarly

situated. McLennan vs. Aldredge, 223 Ga. 879 (5) (1979),

Blackmon vs. Monroe, 233 Ga. 656, 659 (1975).

This basic tenet of constitutional law does not mean,

of course, that the Georgia General Assembly cannot

create classifications for tax purposes and impose different

tax rates on different classes. Furthermore, classifications

for tax purposes may be made by territory (e.g. by county

or other political subdivision), and where no specific fed-

eral right apart from equal protection is imperiled, the

States have a large amount of discretion in making classi-

fications and drawing lines in producing what they view

as a reasonable system of taxation. Ingalls Ironworks Co.

vs. Chilivis, 237 Ga. 469 (1976), Great Northern Nekoosa

Corp. vs. Board of Tax Assessors of Early County, Georgia,

244 Ga. 624 (2) (1976), Lehnhausen vs. Lakeshore Auto

Parts Co., 410 U.S. 356, 359 (2), 93 S.Ct. 1001 (1974).

(2) As held by the Supreme Court of Georgia, how-

ever, in order to be constitutional and non-violative of the

Equal Protection Clause of the Fourteenth Amendment,

classifications must be “founded on material differences

and substantial distinctions which bear a proper relation

to the matters or persons dealt with by the legislation and

to the purpose sought to be accomplished”” Richmond

County vs. Richmond County Business Association, 228 Ga.

281, 283; 185 S.E. 2d 399, 401.

The Supreme Court of Mississippi also voiced the above

principle more directly concerning the classification of one

county separate and apart from all other counties of the

State when it stated that,

A21

. . » [T]he classification must be based on some rea-

sonable ground which distinguishes the county or

counties to which it is intended to apply from other

counties in the state; that is to say, it must bear some

reasonable relation to the problem involved to dis-

tinguish the county for special classification. Walker

vs. Board of Supervisors, 81 So. 2d 225 at 234.

See also McCarthy vs. Jones, 449 F. Supp. 480 (1978).

(State statute providing for taxation of property in the

same class at different ratios in different counties on a

purely arbitrary basis held to violate the Equal Protection

Clause of the Fourteenth Amendment of the United States

Constitution).

The Proposed Amendment singles out Habersham

County for unique treatment. It creates a class consist-

ing of Habersham County alone. [See Findings of Fact

No. 34 and 35]. Furthermore, the class is closed; no other

county may ever become a member of that class regardless

of whether or not such other county might have the same

characteristics as does Habersham County. [See Findings

of Fact No. 36]. Thus another county of the State which

might be similarly situated as Habersham County will not

receive the same treatment under the law as will Haber-

sham County.

The critical question for this case becomes, then,

whether or not the territorial classification of Habersham

County separate and apart from all other counties in the

State is “founded on material differences and substantial

distinctions which bear a proper relation to the matters

or persons dealt with by the legislation and to the purposes

sought to be accomplished.” Or, using the language of the

Supreme Court of Mississippi, is the classification of Haber-

sham County based on some reasonable ground which dis-

A22

tinguishes it from the other counties of the State, and does

the basis for the classification bear some reasonable rela-

tion to the problem involved so as to distinguish the

county for special classification?

cerning the economic status of Habersham County indi-

cated that Habersham ranks economically within the top

29 percent of counties in Georgia. [See Findings of Fact

{

(

;

[

A23

Habersham County which distinguishes the County from

other counties of the State and justifies special classifi-

cation, and since the Court has been unable to find such a

distinguishing characteristic, the Court is compelled to hold

that the classification of Habersham County separate and

apart from all other counties of the State is not founded

on material differences and substantial distinctions which

bear a proper relation to the additional taxation of malt

beverages in said County or to the generation of revenue

for the County’s educational system. There is nothing

which distinguishes Habersham County’s need for educa-

tional funds from the similar need of other counties in the

State. Habersham County has no need or characteristic

which justifies special classification. Therefore this Court

holds that the additional excise tax on alcohclic beverages

levied pursuant to the Proposed Amendment denies equal

protection of the laws under the United States Constitu-

tion.

Adoption and Ratification

(4) The Georgia Constitution provides that general

proposed constitutional amendments should be approved

by the voters of the entire State in a general election in

order to become part of the Constitution. Ga. Code Ann.

§2-6901.

(5) Proposed amendments which are not general

need only be approved by the voters of the “political sub-

division or subdivisions directly affected.” Ga. Code Ann.

§2-6901.

(6) Similarly, while general proposed amendments

must be advertised throughout the State, nongeneral pro-

posed amendments must be advertised only in the “di-

rectly affected political subdivision or subdivisions.” Ga.

Code Ann. §2-6901.

A24

(7) Therefore, whether a proposed constitutional

amendment is or is not general would appear to hinge on

whether the proposed constitutional amendment directly

affects citizens of the State as a whole or merely affects

citizens of one or more political subdivisions within the

State. The Proposed Amendment impacted the population

of the entire State. [See Findings of Fact No. 46).

(8) Constitutional provisions regarding amendment

procedures must be followed to the letter for the Proposed

Amendment to be valid. McCullers vs. Williamson, 221

Ga. 356; 144 S.E. 2d 911, 915 (1965); Seago vs. Richmond

County, 218 Ga. 151, 154; 126 S.E. 2d 657 (1962). The Pro-

posed Amendment in the case at bar was not voted upon

by the population of the State, and was not submitted and

advertised as required by law. [See Findings of Fact No.

46).

(9) Since the Proposed Amendment in this action

affects all citizens of this State, but since it was submitted

only to the electorate of Habersham County, and since it

was not properly advertised in each congressional district

as required for general constitutional amendments by the

State Constitution, it was improperly ratified. The en-

forcement of taxation legislation passed pursuant to a

state constitutional amendment not ratified by the “directly

affected area” would violate the Due Process and Equal

Protection clauses of the Georgia and United States Con-

stitutions. City of Lithonia vs. DeKalb County Board of

Education, 231 Ga. 150; 200 S.E. 2d 698 (1973).

(10) The manner in which the amendment levying

the tax upon alcoholic beverages was voted upon violated

the Due Process and Equal Protection clauses of the State

and Federal Constitutions. The amendment taxes only the

citizens of the Towns of Baldwin, Mt. Airy and Clarkes-

ville while allowing the residents of the other areas of

A25

the County to receive the same benefits as those within

these municipalities but not pay the same tax. City of

Lithonia vs. DeKalb County Board of Education, 231 Ga.

151; 200 S.E. 2d 698 (1973).

(11) Thus said amendment is without effect, and the

taxes purportedly levied by the resolutions of the County

Commission and Board of Education enacted pursuant

thereto are ultra vires and are without authority. DeKalb

County vs. Brown Builders Co., 227 Ga. 777, 183 S.E. 2d 367

(1977), Commissioners of Chatham County vs. Savannah

Elec. etc. Co., 215 Ga. 636, 637; 112 S.E. 2d 655, 657 (1960).

Even if it is later held that the proposed amendment was

properly adopted and thus not subject to state constitu-

tional attack, Hammond vs. Clark, 136 Ga. 313 (10), 71

S.E. 479 (1911). State vs. Ashmore, 236 Ga. 401, 404, 224

S.E. 2d 334 (1976), the amendment could still be attacked

as in violation of the United States Constitution. A state

constitutional amendment can violate the United States

Constitution even if it is not held to violate the state’s

constitution. 16 Am. Jur. 2d §32, Constitutional Law, p.

346. Pope vs. City of Atlanta, 240 Ga. 177, 178, n.1 (1),

240 S.E. 2d 241 (1977).

THEREFORE, IT IS ORDERED AND ADJUDGED

that the Proposed Amendment found at Georgia Laws 1980,

pp. 2280 and any taxes purportedly ievied pursuant thereto

by the resolutions of the Board of Education and Commis-

sion be and hereby are declared unconstitutional, violative

of the Due Process and Equal Protection clauses of the

Fourteenth Amendment of the United States Constitution

as well as Article I, Section I, Paragraph I (Code §2-101)

and Article I, Section II, Paragraph III (Code §2-203) of

the Georgia Constitution. The Proposed Amendment au-

thorizing the imposition of said taxes was improperly rati-

fied and consequently is not part of the Constitution of

the State. Thus the resolutions and taxes are ultra vires

and void.

The Habersham County Commission is, therefore,

permanently enjoined from collecting said taxes and from

attempting to reimplement said taxes. The Habersham

County Board of Education is also permanently enjoined

from attempting to reimplement said taxes.

SO ORDERED this 7th day of August, 1981.

/s/ Jack N. Gunter

Jack N. Gunter, Judge

Mountain Judicial Circuit

Superior Courts

OF HABERSHAM

STATE OF GEORGIA

CIVIL ACTION FILE NO. 107-81

WILLIAM N. GRIFFIN, B & B BEVERAGE Co., BILL

NORTHEAST SALES DISTRIBUTING, INC., PREMIUM

DISTRIBUTING CO., INC., AND GEORGIA BEER

WHOLESALERS ASSOCIATION, INC.,

Plaintiffs,

vs.

DAVID BURRELL, FRANK FERGUSON, JAY McNABB,

Individually and as Members of the HABERSHAM

COUNTY COMMISSION, HOYT F. ADAIR, Individually,

and as the TAX COMMISSIONER OF HABERSHAM

JUDGMENT ON REMITTITUR

of Georgia, at the March Term, 1982, having reversed

the decision of this Court and having declared the Local

Amendment to the Constitution of Georgia authorizing

the levy of an excise tax on alcoholic beverages sold in

A28

Habersham County, with such taxes to be used for educa-

tional purposes, to be valid and not in violation of the

Constitution of Georgia or the Constitution of the United

States.

Upon motion for Counsel for Defendants, IT IS HERE-

BY ORDERED, ADJUDGED AND DECREED that the

judgment of the Supreme Court of Georgia is hereby

made the judgment of this Court and judgmer.t is hereby

entered in favor of defendants on all issues in regard to

said Constitutional Amendment.

IT IS FURTHER ORDERED, ADJUDGED AND DE-

CREED that the defendant members of the Board of

Education of Habersham County do have and recover

from the Plaintiffs in the above styled case the sum of

ONE HUNDRED THIRTY-SIX AND NO/100 ($136.00)

DOLLARS, costs, expended in the defense of the above

styled case and in prosecution of their appeal to the Su-

preme Court of Georgia.

Entered this 13th day of May, 1982.

/s/ Jack N. Gunter

JUDGE, Superior Court of Hab-

ersham County, Georgia

A29

APPENDIX D

(Filed June 7, 1982)

IN THE SUPREME COURT OF GEORGIA

CASE NO. 38360

BURNES SIMS, et al.,

Appellants,

WILLIAM N. GRIFFIN, et al.,

Appellees.

NOTICE OF APPEAL

NOTICE IS HEREBY GIVEN that William N. Griffin,

B & B Beverage Co., Classic City Beverages, Inc., Georgia

Crown Distributing Co., Northeast Sales Distributing, Inc.,

Premium Distributing Co., Inc. and Georgia Beer Whole-

salers Association, Inc. hereby appeal to the Supreme

Court of the Untied States that Judgment, Order and

Decision of the Supreme Court of Georgia entered April

21, 1982 in the above-styled case which Judgment, Order

and Decision reversed the Superior Court of Habersham

County, Georgia and upheld, inter alia, the validity of Ga.

Laws 1980, pp. 2280 et seq. as not being violative of the

Fourteenth Amendment to the United States Constitution.

This Appeal is being taken to the Supreme Court of

the United States under 28 U.S.C. §1257(2).

A30

This 4th day of June, 1982.

/s/ Herbert H. Gray, III

Herbert H. Gray, III

/s/ K. Morgan Varner, III

K. Morgan Varner, III

Attorneys for Appellees

OF COUNSEL:

Varner, Stephens, Wingfield,

McIntyre & Humphries

1000 Grant Building

Atlanta, Georgia 30303

404/522-2020

A31

APPENDIX E

(Filed June 18, 1982)

IN THE SUPREME COURT OF THE

STATE OF GEORGIA

CASE NO. 38359

BURNES SIMS, et al

Appellants

TOWN OF BALDWIN, et al

Appellees

NOTICE OF APPEAL

NOTICE IS HEREBY GIVEN that THE TOWN OF

MT. AIRY, GEORGIA, and THE TOWN OF BALDWIN,

GEORGIA, hereby appeal to the Supreme Court of the

United States that Judgment, Order and Decision of the

Supreme Court of Georgia entered April 21, 1982, in the

above styled case which Judgment, Order and Decision

reversed the Superior Court of Habersham County,

Georgia, and upheld, inter alia, the validity of Ga. Laws

1980, pp. 2280 et seq. as not being violative of the Four-

teenth Amendment to the United States Constitution.

This Appeal is being taken to the Supreme Court of

the United States under 28 U.S.C. § 1257(2).

A32

This 16th day of June, 1982.

/s/ Dennis T. Cathey

Dennis T. Cathey

Attorney for Appellee

Town of Mt. Airy, Georgia

/s/ Edward E. Strain, III

Edward E. Strain, III

Attorney for Appellee

Town of Baldwin, Georgia

CATHEY & STRAIN

P.O. Box 689

Cornelia, Georgia 30531

(404) 778-2601

A33

APPENDIX F

HABERSHAM COUNTY—TAXES FOR EDUCATIONAL

PURPOSES.

Proposed Amendment to the Constitution.

No. 248 (House Resolution No. 754-1776).

A RESOLUTION

Proposing an amendment to the Constitution so as to

aut).viize the Board of Education of Habersham County to

direct the governing authority of Habersham County to

impose throughout the entire county certain excise taxes

on alcoholic beverages sold within Habersham County and

to authorize said Board to receive funds derived from such

taxes and expend same for educational purposes within

the Habersham County school district; to provide for the

submission of this amendment for ratification or rejection;

and for other purposes.

BE IT RESOLVED BY THE GENERAL ASSEMBLY OF

GEORGIA:

Section 1. Article [X, Section V, Paragraph II of the

Constitution is hereby amended by adding at the end

thereof the following:

“The Board of Education of Habersham County, upon

the adoption of a resolution by said Board for such pur-

pose, is hereby authorized to direct the governing au-

thority of Habersham County to impose, on behalf of said

Board of Education, any one or more of the following taxes:

(1) An excise tax not exceeding five cents per

12 ounces, or a proportionate tax at like rate on bottles,

cans, and containers of various sizes, on the sale of

malt beverages within Habersham County. Such tax

may also be imposed on tap or draft beer sold within

A34

Habersham County at a rate not exceeding $6.00 for

each barrel or bulk container containing 15 1/2 gallons,

or a proportionate tax at like rate for containers of

various sizes.

(2) An excise tax not exceeding 25 cents per

gallon, or a proportionate tax at like rate on fractional

grown within or without the state, having an alcoholic

content of 14 percent or more by volume.

A35

this Constitution, and receiving such funds shall not modify,

restrict, limit or supersede the authority of said Board of

Education to cause the levy of ad valorem taxes for edu-

cational purposes as provided by law and this Constitu-

tion. The governing authority of Habersham County shall

be authorized to deduct from the proceeds of any tax im-

posed hereunder a reasonable amount, not to exceed five

percent of such proceeds, for administrative expenses in-

curred by the county in imposing and collecting any such

tax on behalf of the Board of Education. Any tax au-

thorized hereunder may be imposed and collected at either

the wholesale or retail level, but such tax may not be im-

posed at both the wholesale and retail level on the same

alcoholic beverages. Any tax authorized hereunder shall

be imposed throughout the territorial limits of Habersham

County, both within and without any incorporated areas

in the county, and shall be in addition to any such tax

heretofore or hereafter imposed or authorized to be im-

posed by the state or by counties and municipalities.

Any action taken by the Board of Education of Haber-

sham County and the governing authority of said county

to carry out and implement the powers hereinabove granted

shall not be repealed, modified or superseded by any gen-

eral or local law, whether presently existing or hereafter

enacted. Such powers may be exercised by said Board of

Education and county governing authority from time to

time, and any tax imposed within Habersham County pur-

suant to such powers may be repealed, modified or super-

seded by subsequent action of said Board of Education and

county governing authority.”

Section 2. The above proposed amendment to the

Constitution shall be published and submitted as provided

in Article XII, Section I, Paragraph ' of the Constitution.

A36

The ballot submitting the above proposed amendment

shall have written or printed thereon the following:

“{ ] YES Shall the Constitution be amended so as

authorize the Board of Education of Haber-

{ ] NO sham County to direct the governing au-

thority of Habersham County to impose

certain excise taxes on alcoholic beverages

sold within all parts of Habersham County

and to authorize said Board to receive

funds derived from such taxes and ex-

pend same for educational purposes within

the Habersham County school district?”

All persons desiring to vote in favor of ratifying the

proposed amendment shall vote “Yes.” All persons de-

siring to vote against ratifying the proposed amendment

shall vote “No.”

If such amendment shall be ratified as provided in said

Paragraph of the Constitution, it shall become a part of the

Constitution of this state.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.