City of Atlanta v. Smith

• Docket Number: 5845.
• Decision Date: 15 November 1927
• Citation: 140 S.E. 369,165 Ga. 146
• Parties: CITY OF ATLANTA v. SMITH.
• Court: Georgia Supreme Court

140 S.E. 369

165 Ga. 146

CITY OF ATLANTA v. SMITH.

No. 5845.

Supreme Court of Georgia

November 15, 1927

Syllabus by Editorial Staff.

Rulings of Supreme Court on questions of law, on interlocutory order of trial judge granting an injunction, become "law of case," in so far as it depends on such questions of law in view of Civ. Code 1910, § 4336.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Law of the Case.]

Principle in a decision constituting law of case may be reviewed and overruled in another case between different parties, but as between the parties decision stands.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by C. S. Smith against the City of Atlanta. Judgment for plaintiff, and defendant brings error. Affirmed.

J. L. Mayson and C. S. Winn, both of Atlanta (H. A. Alexander, of Atlanta, representing parties at interest, not parties to record), for plaintiff in error.

Spence & Spence, of Atlanta, for defendant in error.

Syllabus OPINION.

GILBERT, J.

1. The rulings of the Supreme Court on questions of law, upon the interlocutory order of the trial judge granting an injunction, become the law of the case, in so far as the case depends upon such questions of law. Ingram v. Trustees of Mercer University, 102 Ga. 226, 29 S.E. 273; Allen v. Schweigert, 113 Ga. 69, 38 S.E. 397; Western, etc., R. Co. v. Third Nat. Bank, 125 Ga. 489, 54 S.E. 621; Southern Bell Telephone, etc., Co. v. Glawson, 140 Ga. 507, 79 S.E. 136; Georgia Railway, etc., Co. v. Decatur, 153 Ga. 330 (2), 111 S.E. 911; Towers v. City Land Co., 159 Ga. 486, 125 S.E. 837; Civil Code 1910, § 4336.

2. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case. Southern Bell Telephone, etc., Co. v. Glawson, supra, at page 509 (79 S.E. 136) and citations. We are satisfied with the correctness of the decisions of this case when it was formerly here, and the request to review and overrule the same is therefore refused.

Judgment affirmed. All the Justices concur.

GILBERT J. (specially concurring).

Since the decision of the case when it was formerly before this court, the Supreme Court of the United States decided the case of Village of Euclid v. Ambler, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Counsel for plaintiff in error urge upon us that, on account of the decision in that case, this court should reverse its ruling in this case. Counsel also point out a change in the rules and practice of taking cases to the Supreme Court of the United States, and insist that the reasons for following the rulings of the Supreme Court of the United States are now more urgent and compelling upon this court, even when strictly and technically such rulings are not controlling. The United States Supreme Court itself declared, in Barbier v. Connolly, 113 U.S. 27, 30, 5 S.Ct. 357, 359 (28 L.Ed. 923), that its jurisdiction in such cases as this "is confined to a consideration of the federal question involved, which arises upon an alleged conflict" with the Constitution of the United States. Due, however, to our high regard for the strength and wisdom of its decisions, this court should follow that court, not only when such decisions are controlling, but also when by their reasoning and logic they furnish us with persuasive authority. We should decline to follow in cases not on federal questions, and where we cannot bring our minds to accept the reasoning. Our Constitution declares:

"Legislative acts in violation of this Constitution, or the Constitution of the United States, are void, and the judiciary shall so declare them." Article 1, § 4, par. 2 (Civil Code 1910, § 6392).

This mandate we are sworn to obey. In the Euclid Case the trial court in Ohio had rendered a decision to the effect that the restricting ordinance was unconstitutional; that is, that it was in conflict with the Fourteenth Amendment to the federal Constitution; that it denied equal protection of the law; and that it offended against certain provisions of the Constitution of the state of Ohio. The Supreme Court of the United States held that the ordinance was not in conflict with said amendment, and did not deal with the question whether it was contrary to said state Constitution. Although the provisions of the two Constitutions were substantially the same, the decision of the United States Supreme Court under its own proper view of its jurisdiction was controlling only on the question of conflict with the federal Constitution.

The case was decided on its own facts, which were in some respects widely different from those of the case now before ...