Central of Georgia Ry. Co. v. McLendon

• Decision Date: 30 November 1907
• Citation: 157 F. 961
• Parties: CENTRAL OF GEORGIA RY. CO. v. McLENDON et al.
• Court: U.S. District Court — Northern District of Georgia

157 F. 961

CENTRAL OF GEORGIA RY. CO. v. McLENDON et al.

United States Circuit Court, N.D. Georgia.

November 30, 1907

Lawton & Cunningham, for complainant.

John C Hart, Atty. Gen., James K. Hines, Wimbish, Watkins & Ellis and Hopper Alexander, for respondents.

NEWMAN District Judge.

This suit was brought originally by the Central of Georgia Railway Company against H. Warner Hill, O. B. Stevens, S. G McLendon, F. E. Calloway, and George Hillyer, members of the Railroad Commission of Georgia, and against the Railroad Commission, and against John C. Hart, Attorney General of the state of Georgia, and James K. Hines, attorney for the Railroad Commission. By amendment the complainant seeks to make Hon. Hoke Smith, Governor of Georgia, and George F Montgomery, secretary of the Railroad Commission, parties defendant. The purpose of the bill is an injunction restraining the defendants from putting into effect circular 334, promulgated by the Railroad Commission of Georgia on June 7, 1907, to become effective on September 2, 1907, by which circular the passenger rate which complainant company was allowed to charge over its lines in Georgia for local business was reduced from 3 cents per mile to 2 1/2 cents per mile. The circular also provided varying rates for the other railroads in the state on local business. When the application for leave to amend by making the Governor and the secretary of the Railroad Commission parties defendant, the court was unwilling without argument and full hearing to allow the same, and so at that time the following order was made:

'Ordered that the hearing be postponed until Monday, October 7, 1907, at 10 o'clock a.m., at which time the court will determine whether or not Honorable Hoke Smith, Governor of Georgia, can and should be made a party defendant to this cause, and whether or not injunction pendente lite shall issue against him and the other defendants, as prayed in the bill.' The defendants requested that the question of making the Governor a party should be decided in advance of the determination of the other matters involved at the hearing; but it was agreed that the whole case should be heard together, and this question of making the Governor a party be determined in advance of the other important questions presented. This branch of the case, as well as the entire case, has been argued by both sides with thoroughness and very great ability. The argument has been worthy of the very important issues involved. The objection to making the Governor a party, of course, is based upon the proposition that to do so would make the proceedings a suit against the state of Georgia, in violation of the eleventh amendment to the Constitution of the United States. The necessity of making the Governor a party defendant and the right to do so is based by complainant upon the provisions of the act of the Legislature approved August 23, 1907 (Laws Ga. 1907, p. 72), increasing the number of the Railroad Commission of Georgia, and enlarging its powers. The provision referred to is contained in section 12 of the act, which, naming the penalties to which railroads and other public corporations coming within the provisions of the act shall subject themselves for a violation of the provisions of the act, and of the order, directions, and requirements of the Railroad Commission, provides that the proceeding to recover such penalties shall be brought in the name of the state of Georgia by direction of the Governor. The contention is that the Governor is made by this provision of the act of the Legislature a mere ministerial officer, to enforce the penalties provided for in the act. The principal case relied upon by the complainant to support this contention that the Governor of the state may properly be made a party without violating the eleventh amendment is the case of Davis v. Gray, 83 U.S. 203, 21 L.Ed. 447. In that case Davis, the Governor of the state, and the Commissioner of the General Land Office, were enjoined from signing patents to land to which the complainant made claim under former grants. The decision of the Circuit Court enjoining the Governor and the Commissioner of the General Land Office was affirmed by the Supreme Court, the Chief Justice and Mr. Justice Davis dissenting. This case has been frequently referred to since. In the case of Cunningham v. M. & B. Railroad Co., 109 U.S. 446, 3 Sup.Ct. 292, 609, 27 L.Ed. 992, it was discussed by Mr. Justice Miller, delivering the opinion of the court as follows:

'But it is clear that in enjoining the Governor of the state in the performance of one of his executive functions the case goes to the verge of sound doctrine, if not beyond it, and that the principle should be extended no further.'

In Pennoyer v. McConnaughy, 140 U.S. 1, 11 Sup.Ct. 699, 35 L.Ed. 363, in the opinion by Mr. Justice Lamar, it is said of the case of Davis v. Gray that:

'Some of the expressions in the opinion in that case were criticised in the subsequent case of United States v. Lee, 106 U.S. 196, 244, 1 Sup.Ct. 240, 27 L.Ed. 171, and also in Re Ayres, 123 U.S. 443, 487, 488, 8 Sup.Ct. 164, 31 L.Ed. 216, where the objectionable expressions were examined and held to have been mere dicta. It has not been overruled, however, but, on the contrary, it has been cited with approval and relied upon as authority in a number of subsequent cases; and the underlying principles of it are regarded as sound.' Even allowing, therefore, that the case of Davis v. Gray while going 'to the verge of sound doctrine' still stands as authority, it is not in my judgment applicable to the present case and to the question presented here of the right to make the Governor a party defendant. In no case has it been held that the Governor of a state can be made a party to any suit seeking to interfere with him in the discharge of his duties as the chief executive of the state, or as to acts proposed to be performed in his capacity as Governor. Certainly this is true where the acts involve the exercise of discretion in the executive. It is only where a mere ministerial duty devolves upon the Governor by a legislative act, such as the duty imposed in Davis v. Gray, supra, and in Louisiana et al. v. McComb, 92 U.S. 531, 23 L.Ed. 623. In this latter case Louisiana v. McComb the Governor of the state and other state officers were made members of a board of liquidation with power to issue bonds of the state to a named amount, and by a subsequent act of the Legislature of Louisiana the board thus constituted was authorized to issue a portion of the bonds provided for to the Louisiana Levee Company in liquidation of a debt claimed to be due it under a contract with the state. The bill was brought by McComb to enjoin the board of liquidation from issuing bonds to the levee company. In the opinion in this case by Mr. Justice Bradley, he makes the distinction between acts of the executive officers of the state that will and will not render such officers subject to mandamus or injunction, as follows:

'A state, without its consent, cannot be sued by an individual, and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have mandamus to compel its performance; and, when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the nonperformance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void. Osborn v. Bank of the United States, 9 Wheat. 859, 6 L.Ed. 204; Davis v. Gray, 16 Wall. 220, 21 L.Ed. 447.'

So that the question is really resolved against the complainant, and against the allowance of the amendment, if the Governor of Georgia under the recent act of the Legislature acts as the chief executive of the state, with discretionary powers in directing the enforcement of the penalties provided for in the act. It seems clear to me that it was never intended that the Governor should be made, as it is claimed, a mere ministerial officer, to direct penalties whenever it was reported to him by the Railroad Commission that any order, etc., of the commission had been violated.

The argument assumes that the Governor in every instance must under the provisions of this act at once direct suits for penalties to be brought. I do not believe this assumption is justified either by the language of the act or by its intent or purpose. When penalty suits are directed to be brought in the name of the state, it is done, of course, following the act by the direction of the Governor; but is the Governor shorn of all his discretionary power as the constitutional chief executive of the state by this provision of the act, and shall it be said that he must blindly and without investigation or consideration direct the institution of penalty suits? I think not. It is clear to me that it was never intended by this act to confer any power upon the Governor beyond that he would otherwise have as chief executive of the state. And it might not be unfair, indeed, to hold, as has been contended for here, that this provision was intended as a limitation upon the power to bring penalty suits; that is, that they should only be brought in...