*1 363 450, (330 254 706) Ga. (1985), quoting Jones, 452 Calder v. 465 “ 804) 1482, (1984). U. S. 783 SC 79 LE2d ‘There is no objective test which to judge particular the facts of a case to determine if personam assertion of in jurisdiction exceeds the limits of consti ” process.’ tutional due Convoy, Inc., Freeman v. Motor FSupp. 409 1100, (N.D. 1976), 1106 Ga. quoting Benjamin v. Western Boat Building 723, (5th Corp., Cir.), 472 denied, F2d 725 414 cert. U. S. 60, 830 SC cases, 38 LE2d long-arm the court “[I]n must decide if the question activities in scope fall within the Marival, Planes, state . . .” Inc., 201, statute. Inc. v. FSupp. 302 (N.D. 1969). short, by rejecting a rigid application of stare decisis in cases

involving jurisdictional questions, has, effect, the Court invited litigation. more A party, therefore, penalized should not be bring- for ing a suit that upon touches an area of law that even the Court con- cedes has parameters. no fixed There is a fine line attempt- between ing to establish theory a new of law and filing a frivolous action. court must be careful in deciding line, when party a has crossed that especially where the $85,000. decision party nearly costs the July

Ordered July 26, Reconsiderations denied Lord, Brook, Bissell Strueber, & Thomas Athans, J. Michael J. for appellant.

Powell, Goldstein, Frazer & Murphy, Mitchell, Richard C. E. A. Simpson, Jr., appellee.

46642, 46681. B. JAMES BEAM DISTILLING COMPANY v. al.;

STATE OF GEORGIA et and vice versa. Marshall, Chief Justice.

James B. (Beam) Beam Distilling Co. brought seeking this action $2,400,000 refund for paid excise taxes it 1983 and 1984. The taxes paid were pursuant 3-4-60, imposed to OCGA higher tax on alcoholic beverages imported into the state than on those in Georgia. manufactured The statute was amended shortly after the United States Court a similar statute found Dias, be Imports unconstitutional. Bacchus U. S. See 200) (1984).1 proceedings below, the In the LE2d pre-1985 statute was court determined that the trial because it Constitution. of the U. S. violated the Commerce Clause only applied prospec- ruling would The court further held that tively affirm. to a refund. We so that Beam is not entitled pre-1985 appeals that the the trial court’s decision

1. The State *2 find no error. The § was We OCGA 3-4-60 unconstitutional. version of solely products imposed higher because taxes on out-of-state statute purpose origin. and effect that the their The record demonstrates of of the statute virtually simple protectionism, which is was economic per of the U. S. Constitution. se invalid under the Commerce Clause M. applying the erred in decision 2. Beam asserts that the trial court prospectively only. disagree. Co., 250 v. Atlanta Cas. In Flewellen We (300 673) three-pronged (1983), adopted the Ga. 709 SE2d this Court (92 Huson, 404 U. S. 97 test LE2d in Chevron Oil set forth 296) retroactivity (1971), question: applied deciding to be a (1) applied nonret- whether the decision to be Consider by

roactively principle law, either over- established a new of by past precedent litigants ruling ing relied, decid- on which or impression was not an issue of first whose resolution clearly foreshadowed.

(2) by Balance of the merits and demerits each looking pose prior history question, pur- rule in its of the operation retrospective effect, would and whether operation. further or retard its

(3) applica- Weigh inequity imposed the retroactive inequitable produce tion, for, if a decision could substantial retroactively, ample applied if for avoid- results there is basis nonretroactivity. ing injustice hardship by holding judicial application Flewellen, deci- 250 Ga. at 712. Retroactive of a constitutionally unjust compelled re- sion is where or otherwise2 prior justifiably sults would accrue relied on the to those who rule. challenged See Heu constitutional. amended statute has been and found to be blein, 190) (1987). State, Inc. v. 256 Ga. 578 SE2d (a) persuaded by argument mandates retroac We are not Beam’s that OCGA 48-2-35 § taxpayer application provides, “A shall be tive constitutional decision. erroneously illegally refunded to have been and all taxes or fees which are determined be deter how it should assessed and collected from him . . .” The statute does not describe “illegally simply retroactive the issue of mined that a tax was It does not address assessed.” prospective application versus of a constitutional decision. Strickland v. Newton County, 244 Ga. 54 132) (de (1979) cision holding option local applied prospectively sales tax should be results). unjust to avoid Chevron

Applying test, the first prong of the we note that decision does However, not now if establish “new rule.” the decision had been rendered during year the last that the tax was as sessed, it certainly would past precedent. have overruled The tax structure embodied in OCGA 3-4-6Ó had been in effect in Georgia since 1939 the statute was on challenged grounds that it violated the Commerce Clause up of the U. S. Constitution and was State, held. Scott v. (1939), overruled on Resources, Blackston v. Ga. Dept. Natural grounds, other After the Scott decision, import tax Heublein, supra. was not challenged again until 1985. See During the time that the collected, taxes at issue here were the State had no rea son to import believe that the Moreover, taxes were unconstitutional. when it became clear might that there problems Bacchus, with the see supra, legislature promptly moved amend rectify Thus, the defects. appears Chevron prong first test prospective application favors rule.

The second prong of the Chevron application test has no here because the statute at repealed issue was in 1985. We move therefore test, to the prong third balancing equities. involves the Beam seeks 2.4 million paid 1982, dollars that it 1983 and 1984. There are at least two other currently lawsuits pending which other producers alcohol seek over 28 million dollars in tax refunds on the grounds. same Economic inescapable realities lead to the conclusion that the cost of this tax already has or could have been absorbed companies passed Indeed, on to consumers. retroac- application tive of ruling might well to result a windfall producers. alcohol hand,

On the other if retroactively, applied decision is Geor- gia faces liability for over 30 million dollars refunds taxes in good collected faith under unchallenged presumptively an valid statute. Georgia money large would have to refund sums of already it has spent. Prospective application imposing would avoid severe financial burden on In the State and its citizens. such situa- tions, this Court frequently and the courts other de- of states have clined application, retroactive though ruling even allows an un- statute to period remain effect for a limited of time. Federated Mut. Ins. Co. v. See (341 County, DeKalb 255 Ga. 522 3) (1986); Trucking American Gray, Assn. v. 746 SW2d 377 43) (1988) (out-of-state Ark. entitled to refund truckers were not Distributing of taxes Nat. Clause); found violative of the Commerce (Fla. 1988) (prospective Comptroller, Co. v. Office of 523 S2d taxes against refund of equities weighed where ruling appropriate Ins. Co. Metropolitan statute); beverage paid under alcoholic Life 1985) (no Ins., (N.D. refund of Dept. Commr. NW2d 399 to domes preference paid giving under statute taxes companies). tic insurance pre-1985 ver 1939, upheld precursor to the this Court Scott v. Clause against sion of OCGA 3-4-60 Commerce challenge. grounds, Blackston v.

State, on other overruled supra, Ga. Now, Resources, fifty Ga. Natural supra. some Dept. of later, it violates the years its successor because striking we are down Commerce Clause. out, strongly of cases there are a number points

As the dissent was unconstitu- supporting argument that because Wright, Co. v. Mfg. Dennison tional, See, e.g., it was void ab initio. Shivers, (1869). (1923); Battle v. 39 Ga. 405 SE However, an absolute rule. It the rule of voidness ab initio is not exceptions. has is

“The rule an general is that wholly it was void and of no force and effect from the date however, subject exceptions, enacted. rule This harsh where, previous because of the nature of the statute and its application, justifia- who unjust results would accrue to those bly relied on it. . . .” incep-

While their we have declared statutes to be void from time they contrary tion when were the Constitution at the enactment, applicable . . . those decisions are not present . . when controversy, original as the . adopted, court was not violative the Constitution under interpretations period. of that Adams, 518) (1982) (cita

Adams v. 249 Ga. 478-79 County, omitted) Strickland v. Newton tions (quoting 132) (1979) (citations omitted)). cases have held Other *4 Allan v. County, Strickland v. Newton Ga., similarly. supra; E.g., Allan, In all of these 207-08 cases, than ret applied prospectively the Court has rather its decision roactively. Here, state has apply exception

We the rule. the general to the a half cen- predecessors collected taxes under this statute or its over tury in circumstances reliance on a decision of this court. Under these it would and the we hold balancing supra, factors discussed Div. unjust to declare the statute void ab initio. prospective application sum, In we conclude that the decision appropriate. is spects. The decision of trial court is affirmed all re- Judgment except concur, All the Justices Smith and affirmed. Weltner, JJ., who dissent as to Divisions 2 and 3. concurring part part. dissenting Justice, and

Smith, problem simple. The with this is that All case it is too that is unconstitutional, involved is a statute which has declared a been con- provision requires stitutional which this Court to declare the uncon- says erroneously stitutional statute and a statute which taxes illegally gal must be collected refunded. This case involves the state’s ille- readily-identifiable single, party collection of taxes from a on the majority successfully basis of an unconstitutional The has statute. Georgia Georgia Constitution, avoided the clear mandate of the Georgia “complicated exceptions” law, and the refund statute. The pointed majority only simplicity which the out make the of this case pronounced. majority opinion more ple short, is an excellent exam- judiciary attacking of the solid the case rock of established trying constitutional and law law with a and hoe to con- everyone vince that it’s a bulldozer. Rights

Taxpayer’s By emphasis placing on issue of whether the decision in Imports Dias, Bacchus v. S. 468 U. 82 LE2d (1984)3 given application, majority should be a retroactive dis- guises important Georgia the real issue: Which is more state’s —the right protect ill-gotten gains treasury taxpayer’s or the right rights? taxpayer’s to relief a after clear violation of the Right Unconstitutionally Tatarowicz, a

See to Refund for Discriminatory State Taxes Other State Controversial Tax Is- (Fall 1987). Lawyer Clause, sues Under the Commerce 41 Tax majority opinion protect right concludes that the state’s treasury important; right its taxpayer however, is I more believe that of the important.4 agree, I found, more that Imports Dias, S., supra The Court in Bacchus 468 U. at declined to address the refund issue. It remanded the case to determine the Court of Hawaii refund essentially imposition issues ally remedy “which are issues of for the tax that unconstitution of a note, against discriminated interstate given . . .” 468 The Court did “It commerce U. S. at 277. be, may example, discrimination, full refund an is mandated by against unconstitutionally state law.” Here Note 14. the statute discriminated non-resi taxpayers by dent full and a refund is state law. mandated sparks July, As we celebrate Fourth of are reminded that one we ignited Revolutionary being War colonists were was the abusive manner in which the King. independence King fought taxed Our won who extracted forefathers from *5 protec- simple purpose the statute was economic “the and effect of virtually per tionism, Clause which is se invalid under the Commerce S. of the U. Constitution.” majority opinion part

Thus, affirms I in concur of the pre-amendment holding was uncon- statute the trial court’s that the statutory separate stitutional; however, and distinct there are several clearly distinguish in this case that and constitutional issues involved by majority.5 Therefore, I it from the cases that have been cited prospective ap- strongly disagree majority’s “that with the conclusion plication appropriate.” of the decision Majority Opinion

Discussion judi- application adopted for retroactive 1. This Court the test Huson, 404 U. S. 97 cial decisions set forth Chevron Oil 296) (1971) Co., in Flewellen v. Atlanta Cas. 30 LE2d 673) (1983), Flewellen did not declare but unconstitutional.6 application majority 2: of a

The also states in Div. “Retroactive judicial compelled constitutionally where decision is not or otherwise prior unjust justifiably results would accrue to those who relied on question 3, infra, dissent, rule.” As set in Div. of this there is no out application judicial a statute is of “retroactive of a decision” when Georgia. declared Once a statute is declared un- duty judiciary constitutional constitutional becomes the declare the statute void. majority earlier unsuccessful The would have us believe an challenge State, Ga. 702

constitutional in Scott v. (1939), requiring negates somehow the constitutional mandate nothing There is Court to declare the unconstitutional statute void. upon Georgia indicating earlier deci- that reliance way changes sions of mandate of the this Court or modifies the void. constitution to declare unconstitutional statutes taxes, protect people from such abuses. excessive and the Constitution was drafted to 5 Only supports majority allegedly its one case was cited in Div. which period [may] a limited of 3) conclusion that “an unconstitutional remain effect for case, County, time.” This Federated Mut. Ins. Co. v. DeKalb constitutionality (1986), repeal by implication. The dealt with a of a statute or ordinance foreign, did not statute was not involved. The other cases cited were Georgia’s. provisions consti Under our show that those states have constitutional similar to void. The constitu tution a statute is either constitutional and valid holding “partial tion does not mandate a voidness.” application only proper interpretation of state issue in Flewellen involved the insurance statutes. Constitutional Mandate requires 3. Our constitution legisla- us to declare unconstitutional tive I, II, acts void. Ga. Constitution That Art. Sec. Par. V.7 provision does specific not allow this Court to set a upon date which an unconstitutional It inoperative. statute becomes does not allow this Court to determine that a statute is a little bit just void. It does not allow this Court to ignore its clear mandate or the long line of Georgia upheld cases that have the constitutional man- date. rely Nor can this Court on United States Court deci- *6 sions that are point not on and in the Georgia Constitution was (See never 5, infra, discussed or considered. Div. discussion of Chicot County Drainage Bank, (60 District v. Baxter State 308 U. S. 371 317, 329) (1940).) LE84 Instead our require constitution and case law us to declare entirely inception. acts void from their

An statute, form, though having the fea- tures, law, and name of in reality wholly no law. It is void. In legal contemplation it is inoperative as as if it had never passed. been It has been declared that it is a misnomer to call such statute a law. Such a authority statute confers no upon any one, protection and affords to no one. v. Norton Shelby (6 County, 1121, 118 U. S. Sup. 178); 425 Ct. L. 30 ed. Siebold, Ex 371, (25 Parte 717); 100 U. S. [Cits.]; 376 L. ed. Layfield, (99 McCants 877). v. S. E.

In v. States, (6 Osborn Bank of the United 9 Wheat. 738 L. 204), ed. Chief Justice Marshall declared that “it is an ex travagant proposition protection that a void act can afford person Cummins, who executes it.” In Boston v. Ga. 16 102, (60 717), 106 Am. D. this court “The declared that un Federal, acts of the are legislature, State and laws; them, and no court having proper will execute sense obligations its own responsibilities.” Wel Estes, born v. 70 Ga. 390 this court acts in “Legislative said: violation of the constitution of this the United State States are void.” The constitution of this State declares that “Legislative acts violation of this constitution or the con stitution void, of the United judiciary States are and the shall so declare them.” Proceedings under an unconstitu tional statute had before judicially such statute is declared to 7 Paragraph Georgia “Leg V of the 1983 void” states: entitled “What acts islative acts in violation of this Constitution or the Constitution of the United States are judiciary and the shall so declare them.” 370 Franklin, Ga. Jordan v. 131

be unconstitutional are void. Ga. County Crisp County, 139 Worth (52 673); E. v. 487 S. (84 Blakely, (76 Ga. 117 S. James (3) 747); v. 143 S. E. 117 431). supplied part.] [Emphasis E. (120 Wright, 789, Mfg.

Dennison Co. v. 797 SE 156 Ga. Co., 204, Hastings v. H. G. 215 Highway Dept. State 187 Ga. See also (51 Carr, 721, (1938); Tarpley v. (199 793) SE2d 204 Ga. SE2d de 638) (1949) created officers of office (City officers were not facto Harper, Franklin v. charter); 205 Ga. under an unconstitutional (68 (1949); Baggett Linder, (55 221) SE2d 343) Adams, Milam v. 469) (1952); 440, 444 216 Ga. SE2d SE2d Productions, Murray Floyd, K. Gordon Inc. v. (1960); 217 Ga. 207) (1962) (“. remedy provided . . the the ordi is sus petitioner’s nance is if the constitutional attack not even law (1969) Brown, Dobson v. tained.”) 225 Ga. (“ the law de estoppel legalize ‘Not even can or vitalize that which Bank, v. First Ga. Mapp ”); clares unlawful void.’ 765) (1980). (See 7, infra.)8 App. 380 note Although Bacchus may have led this Court to conclude statute, unconstitutional, present it does not case was I, II, pro affect Art. Sec. Par. V the Constitution which inception. Once vides that an unconstitutional statute is void from its unconstitutional, if the statute was it was as no declared law, *7 public policy “The Constitution is had ever been established. can null; irrepealable, any rights and law violation of it is void—is Shivers, Battle v. grow up under such 39 Ga. a law.” (1869). in Once the statute was it became declared Therefore, operative, having if passed. as it had never been no court proper execute it. obligations responsibilities sense of its own will Dennison, authority to assess supra, 156 Ga. at 797. The state had no taxes, authority execute a void collect the and this Court has no to statute.

There Are To Balance Equities No is mis- majority’s equities,” 4. The “balancing discussion of unconstitutional, no placed. there can be When a statute is declared to follow the balancing equities as none exist. are bound “[W]e even when Supreme laws of this state and the decisions of our Court Mapp First . . . ...” resulting hardship. decision effects a firmly cases discuss the few recent 8 Thelaw this area has been so established that issue. 765) (1980).9 App. Bank, 380, 382 Georgia “Exceptions” To The Court Created reading by majority A 5. careful of the three cases cited “exceptions” the weakness. The to the constitutional mandate reveals fundamental the constitutional mandate

first case to deviate from upon and the feeble foundation relied in the other two cited cases is Allan, Allan v. in Al- Court any Georgia long lan, without Constitution or the discussion of the Georgia line of cases that that an stat- have declared upon County by ute is Supreme relied instead dicta set forth the United States Drainage Court Chicot District v. Baxter State supra immediately preceding Bank, S., However, 308 U. at 374. upon, following appeared: Chicot dicta that the relied Congress, having [An] Act of been found to be unconstitu- inoperative, conferring tional, [is] law; [is] not a that it no rights Shelby County imposing Norton v. no duties. . . . Chicago, Ry. 425, 442; Hackett, 118 U. S. I. & L. Co. v. U. S.

Chicot at 374. astonishing discovery reading

An even more Chicot is that Shelby County, Chicot cited Norton v. the exact same case cited (see dissent), supra, proposition Dennison, Div. 3 of that for the any authority upon one, an unconstitutional statute “confers no protection Allan affords to no one.” dissent. The See Div. 3 of this opinion ignored language the above with its two citations quoted completely Court decisions and of a ci- dicta thát was devoid any tation to decision of court.10 26,1976 May appellant Mapp purchased On The car had an automobile from Ed Cook. purchased by Chevrolet, Inc., Hopkins purchased

been Cook from which in turn had Chevrolet, Inc., pursuant Georgia Abandoned automobile from Timmers a sale under the automobile, 26, 1976, repossessed Motor Vehicle Act. On October First Bank claiming perfected security had been created that held a interest in the automobile which Bank, alleging purchase against Mapp at the time of the initial J. suit C. Wilson. filed summary judg illegally granted that the Bank had converted the automobile. The trial court Bank, concluding Mapp’s a 1979 ment in favor of the on the basis of title was invalid Since the which held the Abandoned Motor Vehicle Act to be unconstitutional. *8 unconstitutional, in the sale sale was accordance with an act held to he which was later passed Appeals ruling no an unconstitu title. The Court of affirmed the trial court’s because inception rights tional statute is a accrue thereunder. void statute from its and no the Chicot unnecessary adjudicating language upon by totally Allan was in The relied ¡failed below; respondents in Chicot case. The in the courts to raise a constitutional issue judicata. . . .” therefore, res “appropriately question the case was ... confmefd] at 375.

Reliance on Chicot in unsupported dicta Allan in other totally case is without foundation and substance. The cases that fol- low represent Chicot and Allan abberations that should be overruled they because conflict with the and cases. See also Strickland v. Newton County, 132) (1979) Adams, and Adams v.

(1982) which use Allan and Chicot authority. as their

The Extraordinary Facts The Three Cases Of 6. Assuming arguendo that the cases are not abberations but do represent fact “exceptions,” they then offer the strongest argu- ments for declaring this case is not such “exception.” an Each of the “exception cases” contained unusual extraordinary conditions that are present By this case. applying alleged “exceptions” rule, to the general has “exceptions” made the the rule. In the three represent cases that the “exceptions,” the Court in attempting to equity, do did not face the. mandate head-on. Allan, Strickland, Adams, may there have been other in- may

dividuals who have been past, harmed they were, but practical all purposes, unascertainable. The amount of damage suf- fered other individuals was also impossible almost to determine. In Allan and Adams there was also potential years of disrupting quiet titles and confusing property law. case, This on the hand, other clearly-identified involves one tax- payer paid who the state an money ascertainable amount of in illegal taxes specified over a period time; therefore, difficulty there is no in determining to whom the taxes should be refunded and for what amount. In addition, such a refund would not property disturb law. “exceptions” are built upon faulty foun- dation, they They should fall. court-made, are but not constitu- tionally allowed.

The Constitution Is The People Will Of 7. The supreme power of this state people and the writ- ten constitution is the will of people. The people have decided the judiciary must declare By statutes void. — looking to dicta of United States Supreme Court decisions — which our constitution was not at issue ignores Court the dic- tate of the people as set forth in the Georgia Constitution. *9 Policy Remedy Represents The The State The Statute Public Of By sweeping language remedy employing statute, OCGA any Assembly 48-2-35, and all taxes § the General made clear that erroneously illegally re- and collected shall be which are or assessed taxpayer has success- If the court denies a refund to a who funded.11 fully challenged constitutionality taxing then the of a remedy meaning. This is has no Court has assumed that the statute contrary state will not assume to established law. “The courts of this any provision Legislature to be without of a statute that the meaning.” intended App. Douglas County 270, Anneewakee, Inc., 179 368) (1986). 273 SE2d public policy remedy represents to refund

The the state’s statute any erroneously illegally collected under or assessed and and all taxes voluntarily paid law. includes taxes which are state involuntarily, The statute pro- required of is nor must thus no element duress directory, remedy mandatory rather than test be filed. immunity. Thompson sovereign v. Conti- and it acts as a waiver of 819) (1946). App. Co., nental Gin 73 Ga. Assembly refunds under

Since the General intended to allow many payer tionality incomprehensible circumstances, that the tax- different it is successfully present challenged the constitu- case who recovery. key taxing words

of the statute is barred from remedy erroneously illegally assessed and col- of the or statute are lected. The indicates that the state had “no reason to believe import unconstitutional”; however, were under the taxes language state broad no difference that the statute makes erroneously assessed and collected taxes under the unconstitutional Erroneously be returned. statute. assessed and collected taxes must taxing there Once the was declared legal taxes, been one. was no these nor had there ever collection of prop- taxpayer’s illegally possession Therefore, erty. the state is of the Repayment Require Other Constitutional Provisions Which require provisions the re- 9. There are also constitutional which unconstitutionally can- The state turn of and collected taxes. assessed (a) provides: OCGA 48-2-35 is entitled “Refunds.” Subsection taxpayer to are determined 11 A shall be and all taxes or fees which refunded erroneously laws illegally him under the have been and collected from or assessed state, voluntarily involuntarily, in paid be refunded and shall of this whether percent per annum from terest on the amount of the taxes or fees at the rate of sup [Emphasis payment . . . the date of plied.] tax or fee to the commissioner. of the deprive person property process without due of law. due-process I, I, Constitution Art. Sec. I. Par. The clause ex- every proceeding may deprivation liberty, “life, tends to be a property, process judicial whether the or administrative or exec- Huiet, [Cit.]” utive its nature. Zachos v. 195 Ga. 806) (1943). The assessment and collection of taxes in the absence of taxing deprivation a valid statute constitutes such an unconstitutional property. paramount government protect 10. One of the duties of is to property taxpayers. Georgia I, I, of its Art. Sec. duty government, through Par. II. “It is the mentality right of the State the instru protect property courts, of a citizen and his possess Willis, and control it.” Irwin v. protect taxpayers *10 This Court must who have had property erroneously illegally auspices taken under the of an un taxing by requiring constitutional il the state to refund such legally-collected taxes.12 provisions, The above constitutional Bill all found our Rights, place government protect were enacted to limits on the and to people governmental government’s authority the from abuses. The to powerful. tax fact, is in 1819 Chief Justice Marshall said: “That the power power destroy proposition to tax involves [is a] [] to ... (1819). Maryland, to be denied.” McCulloch v. 17 U. S.

If this Court does not treat the unconstitutional statute as void inception, nothing enacting from its then will deter the state from reaping other unconstitutional statutes and the benefits therefrom. constitutional mandate to declare the statute Ga. Constitu- taxpayer’s protection tion, 1983, I, II, V, Art. Sec. Par. is the from the power sovereign destroy.” McCulloch, “to id. placed great emphasis This Court has a deal of on the fact that taxpayer liquor company. the the in this case a is It does not matter who — — taxpayer liquor company illegally is or an taxed individual taxpayer protection is entitled to under of this As the laws state. Hugo former Court Justice Black said: “Good men and bad men are entitled to trial and sentence accordance with the law.” question An identical is involved Marcus Collins v. and all Retired Fed Waldron Employees Similarly situated, argued employ eral No. 47018 June Retired federal 1989. challenged Georgia’s ees scheme of taxation which income of federal taxes the retirement exempting being retirees while the retirement unconstitutional. income of state retirees as They argued, authority Treasury, _ U. Michigan Department under the S. of Davis v. —, (March 28, 1989), and, 57 U.S.L.W. 4389 scheme is unconstitutional therefore, illegally the taxes were collected.

Conclusion requiring mandate Court to declare the expressed ignored. public policy void has been The state’s remedy just statute, 48-2-35, refund taxes is as the thwarted OCGA trampled reality, repealed by majority’s and, this Court. The in- upon declaring prospectively only,13 ig- sistence void the statute while noring grants victory appel- Constitution, a hollow proved taxing lant who statute was unconstitutional. It also remedy appellant’s taking property, denies disregards for the unlawful remedy mandatory nature of the and sends message Georgia taxpayers protect that this Court will not their rights tionally require nor the state to be for accountable taxes unconstitu- erroneously illegally and collected. assessed July Decided July

Reconsideration denied Chorey, Taylor Taylor, Vincent, Fell,& Jr., John L. Michael A. Siegel, Siegel, appellant. Cole, Schoenstadt, Moses & Morton Attorney Verley Spivey, Bowers, Michael J. General, J. Senior Attorney General, Baker, Assistant Amelia Waller Attor- Assistant ney appellees. General, for 46839. FIELDS v. RAINBOW CARPET INTERNATIONAL &

DYEING CLEANING COMPANY. *11 Justice. Weltner, agreement Fields an entered into with Rainbow International Carpet Dyeing Cleaning granted Co. in which he was a license operate County. a franchise con- of Rainbow’s business in Bibb provided: agreement compete, tract contained an (3) years hereof, . . [Fields] for three after the termination prior not, [Rainbow], will without ei- written consent directly indirectly, principal, agent, ther or or as servant oth- carry engage carpet up- erwise, on or business something applied prospectively How can of non be if statute, existed? The doctrine it never retroactivity may law, dealing law, change in be used or a law when with a valid case public policy. apply It does not and is not used in constitutional cases because law, law, must, public policy required by as constitution and case our as if it treated never existed.