Fleisher v. Duncan

• Decision Date: 14 January 1943
• Docket Number: 14389.
• Citation: 24 S.E.2d 15,195 Ga. 309
• Parties: FLEISHER et al. v. DUNCAN et al.
• Court: Georgia Supreme Court

24 S.E.2d 15

195 Ga. 309

FLEISHER et al. v. DUNCAN et al.

No. 14389.

Supreme Court of Georgia

January 14, 1943

J. Herbert Johnson and Eza E. Phillips, both of Atlanta, for plaintiffs in error.

Geo D. Stewart, Sp. Asst. Atty. Gen., and Augustine Sams, both of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

JENKINS Justice.

1. While a sovereign State cannot be sued in one of its courts unless by statute or other proper authority the State consents thereto, and any suit against an officer or agent of the State, in his official capacity, in which a judgment can be rendered controlling the action or property of the State in a manner not prescribed by statute, is a suit against the State (Roberts v. Barwick, 187 Ga. 691(2), 695, 1 S.E.2d 713, and cit.), yet a suit against a State officer or agent as an individual is not a suit against the State, and generally may be maintained either at law or in equity whether it be to recover the plaintiff's property wrongfully withheld, or damages in tort, or to enjoin a threatened wrong, on account of unauthorized or illegal acts. Fla. State Hospital v. Durham Iron Co., 194 Ga. 350 21 S.E.2d 216, and cit. Accordingly, where the plaintiff attacks an act of the legislature as unconstitutional, and he shows that he is threatened with 'irreparable injury to his property' by the actions of one claiming to proceed under and by virtue of such an act, the suit against the officer as an individual cannot be considered as one against the State; but in such a case the court will take jurisdiction and proceed to determine the validity of the act. Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358(1), 3 S.E.2d 705; Dennison Mfg. Co. v. Wright, 156 Ga. 789, 120 S.E 120. Under the preceding rules, the instant petition by milk consumers against the members of the State Milk Control Board as individuals, to enjoin their actions under the milk-control act of March 30, 1937, Ga.L.1937, p. 247, as amended, on account of the alleged unconstitutionality of those statutes under provisions of the State and Federal Constitutions, was not subject to general demurrer as being a suit against the State without its consent.

2. Under the general rule as recognized in the Holcombe case supra, the writ of injunction 'may be sought only where there is a manifest necessity therefor to prevent irreparable injury to some right of the plaintiff, by reason of impending acts or conduct of another.' Zaring v. Adams, 188 Ga. 97, 98, 3 S.E.2d 635; Cox v. Linder, 191 Ga. 790, 792, 14 S.E.2d 93; Miller v. Head, 186 Ga. 694, 715, 198 S.E. 680; Blanton v. Merry, 116 Ga. 288, 42 S.E. 211; Code, § 55-104. Under this rule, the petition was properly dismissed on general demurrer, as failing to show any actual past or impending irreparable injury to the plaintiff consumers, since, while the petition alleged orders by the Milk Control Board increasing the cost of milk, and that the plaintiffs were thereby 'compelled to pay higher prices * * * in violation of the rights of said complainants...