Milner v. Burson, Civ. A. No. 14104.
| Decision Date | 14 April 1971 |
| Docket Number | Civ. A. No. 14104. |
| Citation | 326 F. Supp. 1251 |
| Parties | Kent MILNER d/b/a Belvedere Driving School and David Jett d/b/a Georgia Driving School and Taggart International, Inc., a Delaware corporation, t/a Taggart's Driving School, and Frank D. Paulk et al. v. Colonel R. H. BURSON, Director of the Georgia Department of Public Safety, Hinson McAuliffe, Solicitor General of the Criminal Court of Fulton County, Georgia, Herbert T. Jenkins, Chief of Police of the City of Atlanta, Georgia; and J. B. Angelo Crowe, Consultant, Driver and Safety Education, Georgia Department of Education. |
| Court | U.S. District Court — Northern District of Georgia |
Westmoreland, Hall & Bryan, Atlanta, Ga., for plaintiff.
Hinson McAuliffe, James L. Webb and Frank A. Bowers, Atlanta, Ga., for Hinson McAuliffe.
Henry L. Bowden and John E. Dougherty, Atlanta, Ga., for Herbert T. Jenkins.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, Ga., for Burson & Crowe.
Paul A. Martin, Atlanta, Ga., for Charles Harry Miller, Leslie Cole, Louie Newton Dowis, James R. Craig, Robert Frank DeArmon, Michael C. Moon, Thomas Sherwood Meads, Sullivan Reed, Charles H. Miller, Jr., Ken Bayne, Driving Instructors for Tall Man Driver Training & Ins. Agency Corp.
This order is a one-judge sequel to a three-judge order entered in this case on December 30, 1970. The original complaint attacked the constitutionality of the Georgia Driver Training School License Act, Ga. Laws 1968, pp. 436, 441, Ga. Code Ann.Supp. § 92A-1101 et seq. All of the plaintiffs were either owners or drivers (instructors) at various private driver training schools in and around Atlanta and the defendants were the state officers charged with the duty of enforcement. It was brought as a class action on behalf of the plaintiffs and all others similarly situated.
The only serious bone of contention as stated in the original complaint was the provision of the Act requiring driving instructors at private schools to present evidence of college credits in driver education and safety from an accredited college or university equivalent to those required of driving instructors in the public schools of Georgia. Another section of the Act, § 92A-1109, exempted all public schools and colleges conducting driver programs from the requirements of the Act.
At the three-judge hearing it was urged by defendants, without dispute, that the State Department of Education already had regulations requiring its driving instructors to have a certificate showing three quarter-hours credit in driver education and safety from an accredited college or university, and that the purpose of the present Act was merely to exact of private instructors the same standards as those already required of instructors in the public schools and colleges. This was offered as justification for exempting the public schools and colleges from the statute.
While the action was pending and on September 29, 1970, the plaintiffs filed an amendment alleging that the Act, in addition to being unconstitutional on its face, was also being applied in a discriminatory fashion in that driving instructors in the public schools and colleges where such instruction was offered were not being required to comply with the educational requirements referred to. Subsequent to the filing of this amendment and on October 8, 1970, plaintiffs sought to begin extensive discovery of the defendants for the purpose of showing that the educational requirements were not being required of public school driving instructors. At that time, the Act in question had not become effective so that there was no way of ascertaining how the Act would be applied once it went into effect. For this reason, and since an unconstitutional application of the Act would not be a matter for a three-judge court in any event, the court declined to allow such discovery to proceed at that time but announced that such ruling would be without prejudice to the right of plaintiffs to bring the matter of an unconstitutional application before a single judge of the court at a later time if it appeared that such discrimination was in fact being practiced.
After a hearing, the three-judge court concluded that the statute was a valid exercise of the police power and was not unconstitutional on its face for any of the reasons assigned.1 An order of the three-judge court was entered to this effect but with a provision that such ruling should be "without prejudice to plaintiffs' right to contest an unconstitutional application of the Act by state officials should such appear."
Thereafter, on March 23, 1971, plaintiffs filed a motion in the case renewing their contention that the Act was being unconstitutionally applied in that instructors in private driving schools were being charged with violating the educational requirements of the Act and the schools themselves with being put out of business, whereas public school and college driving instructors were not being required to comply with the educational requirements and were not being prosecuted or threatened with prosecution. On this basis the plaintiffs in their motion seek a temporary restraining order and an injunction against the enforcement of the Act.
A full hearing was held on this motion on March 31 and April 1, 1971, at which time evidence was...
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Milner v. Burson
...McGuire v. Sadler, 337 F.2d 902 (5th Cir., 1964); 1A J. Moore, Federal Practice ¶ 0.205 at 2238 (2nd ed. 1965). The district court, 326 F.Supp. 1251, subsequently held that the statute was being applied in an unconstitutional manner. The court did not declare the statute unconstitutional ho......
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In re Wallace Lincoln-Mercury, Inc., 20743.
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