85 F.Supp. 749 (N.D.Ga. 1949), C.A. 185, Georgia R.R. & Banking Co. v. Redwine

Docket Nº:C.A. 185
Citation:85 F.Supp. 749
Party Name:Georgia R.R. & Banking Co. v. Redwine
Case Date:July 29, 1949
Court:United States District Courts, 11th Circuit, Northern District of Georgia
 
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Page 749

85 F.Supp. 749 (N.D.Ga. 1949)

GEORGIA RAILROAD & BANKING CO.

v.

REDWINE, State Revenue Commissioner.

C.A. No. 185.

United States District Court, N.D. Georgia

July 29, 1949

Rehearing Denied Oct. 3, 1949.

SCARLETT, District Judge, dissenting.

Page 750

Spalding, Sibley, Troutman & Kelley and Furman Smith, all of Atlanta, Ga., for plaintiff.

Eugene Cook, Attorney General of Georgia, and Claude Shaw, Assistant Attorney General of Georgia, for defendant.

Before McCORD, Circuit Judge and RUSSELL and SCARLETT, District judges.

RUSSELL, District Judge.

This suit is another phase of litigation which has been presented to the courts by various proceedings, in various forms, for more than seventy years. Past litigation, and the present, centers around an exception granted to the present complainant by the Act of the Georgia Legislature in 1833. Laws 1833, p. 264. Full reference to the facts and the questions ultimately involved need not be stated here except by reference to phases of the former litigation which are directly involved here, to-wit: State of Georgia v. Georgia Railroad and Banking Company, 54 Ga. 423; Georgia Railroad and Banking Company v. Wright, C.C., 132 F. 912; Wright v. Georgia Railroad and Banking Company, 216 U.S. 420, 30 S.Ct. 242, 54 L.Ed. 544; Musgrove v. Georgia Railroad and Banking Company, 204 Ga. 139, 49 S.E.2d 26.

In the present proceeding the complainant proceeds against Charles D. Redwine, State Revenue Commissioner of Georgia, to enjoin the assessment and collection of ad valorem taxes which is alleged would be contrary to the provisions of complaint's legislative charter, and thus impair the obligation of the contract. The complainant also seeks to enforce against Redwine, Revenue Commissioner, a previous decree of this Court entered in the case of Georgia Railroad and Banking Company v. Wright, Comptroller General, in 1907, 132 F. 912, supra.

Page 751

The defendant has filed a motion to dismiss, presenting various questions, the one now primarily for determination asserting that the present suit is in effect one against the State of Georgia, and of which this Court has no jurisdiction because of the provisions of the 11th Amendment to the Constitution of the United States.

Complainant has moved for a judgment on the pleadings and for a summary judgment, and seeks to meet the attack of the defendant's motion upon the ground, principally, that as the result of participation by the Attorney General of Georgia in the former proceeding of 1907 the State waived its immunity from suit, and further, that the suit against the public officer to restrain the enforcement of an unconstitutional Act is not a suit against the State within the provisions of the 11th Amendment.

It seems proper to first consider the effect of the former adjudication of this Court in its decree of 1907 which restrained the defendant from assessing or collecting any taxes contrary to the terms of that decree. If bound thereby, the effect of the decree would require that the threatened assessment and collection of taxes by the defendant be likewise now restrained. That proceeding adjudged the validity of the exemption now involved.

This former suit was between the present complaint, a corporation created under the laws of the State of Georgia, and 'William A. Wright, a citizen of the State of Georgia.' The defendant was represented by counsel who was the Attorney General of Georgia. He acknowledged service of the subpoena 'William A. Wright, by John C. Hart, Attorney at Law and Attorney General for Georgia.' However, the pleadings were signed merely by the named counsel as 'Counsel for defendant' and the pleadings for the defendant were entered in the name of William A. Wright as an individual. However, the opinion of the Court designates the defendant as 'Wm. A. Wright, Comptroller General of the state of Georgia.' These references have been made to show that there is no clear course of designation or conduct which would lead to the conclusion without doubt that the respective parties considered the suit one against Wright in his official capacity and as a representative of the State, or whether he was proceeded against as an individual, to restrain an illegal act threatened to be consummated under color of office.

Without regard, however, to whether the defendant was sued in his individual or official capacity, it is conceded that he was the official of the State charged with the assessment and collection of the taxes in question and, counsel for the complainant, relying upon the principle ruled in Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 26 S.Ct. 252, 50 L.Ed. 477, contends that the State in that proceeding waived its immunity from suit by participation in behalf of the defendant by the Attorney General of Georgia, and the tacit adoption of the litigation by a subsequent Governor in his message to the Legislature. To ascertain the validity of this contention it becomes necessary to determine the power of the Attorney General of Georgia, and perhaps of the Governor of the State also, to waive the immunity of the State from suit by participating in, or the utterance of statements concerning, litigation against a State officer which seeks to control his official acts. It is of course established that the State's waiver of immunity from suit, or its consent to suit, must be expressed by a statute. It becomes necessary then to consider the statutes of the State of Georgia.

The provisions of the statutes in effect at the time of the former suit, which more clearly than any other expresses the power of the Governor or Attorney General to consent to suit, are sections 23 and 220 of the Georgia Code of 1895, which provide:

Sec. 23. 'When any suit is instituted against the State, or against any person, in the result of which the State has any interest, under pretense of any claim inconsistent with its sovereignty, jurisdiction or rights, the Governor shall, in his discretion, provide for the defense of such suit, unless otherwise specially provided for.'

Sec. 220. 'It shall be the duty of the attorney-general * * * to represent the

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State * * * in all civil and criminal cases in any court when required by the Governor.'

As to suits against the Comptroller General, this officer was authorized 'when the services of a solicitor-general are necessary in collecting or securing any claim of the State, in any part of the State; * * * to command the services of said attorney-general in any and all of such cases * * * .' Section 222.

It will be observed that this statute has reference to 'collecting or securing any claim of the State,' and not broadly to defense of suits against the Comptroller General.

It may be noted that these are...

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