Roberts v. Barwick

Decision Date16 February 1939
Docket Number12633,12636.
PartiesROBERTS, Commissioner of Agriculture, et al. v. BARWICK et al. BARWICK v. ROBERTS, Commissioner of Agriculture, et al.
CourtGeorgia Supreme Court

Rehearing Denied March 10, 1939.

The state, by establishing the Department of Agriculture and operating a State Farmers' Market, wherein concession booths, stalls, etc., were sublet by Commissioner of Agriculture, did not strip itself of sovereignty and subject itself to suit without its consent by assignor of leases on which market was located, and who assigned leases to Commissioner of Agriculture, to recover monthly payments due under assignment contract.

Syllabus by the Court.

1. The State can not be sued in any event without its express consent.

2. 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.

3. The State has the right to engage in any activity its legislative branch might choose, unless prohibited by the State or Federal Constitutions, and all such activities are governmental functions.

On April 19, 1937, J. W. Barwick filed an equitable petition against Columbus Roberts, individually and as commissioner of agriculture of the State of Georgia, and Draper-Owens Company, seeking the appointment of a receiver to take charge of the State Farmers' Market located in Atlanta, an accounting, an injunction, and other relief. By an amendment the original petition was designated as count 1, and two other counts were added. Defendant Roberts demurred generally and specially to the petition as amended. The court sustained the general demurrers to counts 1 and 2, and struck these portions of the petition. The general demurrers to count 3 were overruled but several paragraphs of this count were stricken on special demurrer. The defendant excepted to the overruling of the general demurrers to count 3, and the plaintiff filed a cross-bill in which he excepted to the sustaining of the general demurrers to counts 1 and 2 and the striking of portions of count 3 on special demurrer. In this court the plaintiff has abandoned counts 1 and 2.

The material allegations of count 3 are as follows: During the summer of 1935 petitioner obtained leases from the different owners of the city lots comprising the tract of land in the City of Atlanta on which is now located the State Farmers' market. Petitioner obtained the leases for the purpose of himself operating a farmers' market, and began improvements for that purpose. Before all of the negotiations covering the leases had been completed Tom Linder, as commissioner of agriculture of the State of Georgia, had a conference with the petitioner, and it was agreed that the plaintiff should transfer the leases that he had already obtained and any others that he might obtain in the immediate future to Tom Linder, as commissioner of agriculture, 'and that in consideration thereof petitioner would be paid the sum of $100 each month during the life of said estates for years in said property, said payments to continue until the expiration of the lease extending over the longest period of time.' In pursuance of this agreement the plaintiff assigned 17 leases to Tom Linder, as commissioner of agriculture, the assignment reciting that it was made 'for the sum of one and no one-hundredths dollars and other valuable consideration.' The leases covered a period of about five years. The State of Georgia began operation of the State Farmers' Market on the leased property about two months after the transfer of the leases, and from about January 1, 1936, to December 31, 1936, petitioner received monthly payments of $100. On January 1, 1937, the defendant, Columbus Roberts, succeeded Tom Linder, as commissioner of agriculture, and is now in charge of the operation and control of the farmers market. Since defendant Roberts took office he has refused to pay petitioner the $100 monthly installments, and 18 installments are now due and unpaid. In the operation of the market, the commissioner of agriculture subleases concession booths, houses, stalls, etc., and several thousand dollars a month are received from these subleases. The payment of the monthly installments to plaintiff is a valid indebtedness against the State Farmers' Market, and constitutes a lien against it and its income, and is an indebtedness which the legislature, in authorizing the commissioner of agriculture to operate farmers' markets, contemplated shoudl be paid from the proceeds or profits received by the Department of Agriculture from the operation of the market. 'The defendant, Roberts, and his predecessor in office in acquiring and operating said market engaged in the operation of a produce marking lot, farmers' market, and landlord, in competition with other similar private businesses, one of which being on the same street about four blocks south, which is privately owned and operated. * * * Said business was engaged in by defendant's predecessor and is engaged in by defendant for the purpose of pecuniary gain to said department and is operated for profit, in that said properties are subleased for a greater sum than the actual operating expenses and costs of acquisition and maintenance. * * * The said defendant is operating in said market a restaurant and cafe business, wherein foods, drinks, and other commodities are sold in competition with other private businesses in the surrounding territories. * * * By such operation of the market, the Department of Agriculture, the defendant commissioner of agriculture, and the State of Georgia were operating a private and competitive business disconnected and disassociated with State sovereignty in entering into said contracts and operating said market as herein set out.' The plaintiff has no remedy at law because of the complicated nature of this action. The prayers were as follows: '(a) that the defendant be compelled to pay by way of damages or otherwise the unpaid monthly installments already accrued in plaintiff's favor under his contract; (b) and/or that the plaintiff's contract be rescinded and cancelled and that the possession of his property be returned to him.'

The grounds of general demurrer to the amended petition were, (a) that no cause of action was set out; (b) that no ground for equitable relief was stated; (c) the plaintiff's remedy at law was adequate and complete, if any he had; and (d) the suit was one against the State and the petition failed to show that the State had consented to be sued.

No. 12633:

M. J. Yeomans, Atty. Gen., and Ellis A. Arnall, Asst. Atty. Gen., for plaintiffs in error.

J. Ira Harrelson, of Anderson, S. C., McElreath, Scott, Duckworth & DuVall, of Atlanta, for defendants in error.

No. 12636:

J. Ira Harrelson, of Anderson, S. C., Cecil V. Whiddon and C. E. Moore, both of Atlanta, for plaintiff in error.

Ellis A. Arnall, Asst. Atty. Gen., and McElreath, Scott, Duckworth & DuVall, of Atlanta, for defendants in error.

DUCKWORTH Justice.

The pleadings and record in this case present three questions for determination, to wit: (1) Can the State be sued in any event without its consent? (2) Is the present suit against Roberts as commissioner of agriculture a suit against the State? (3) Are the activities of the commissioner of agriculture here involved State functions, and, if not, does not State by engaging therein lose its immunity to suit without its consent?

1. In the year 1860, this court in the case of Georgia Military Institute v. Simpson, 31 Ga. 273, at page 277, said 'The appeal, therefore, for compensation must be to the public authority, and not to the Courts. We have no Court of Claims in this State, nor petition of right, as in England. But whoever contracts with the State trusts to the good faith of the State, unless the State sees fit to disrobe itself of its sovereignty.' Since that time this court has consistently followed the rule announced in that case. Printup v. Cherokee Railroad Co., 45 Ga. 365; Brunswick and Albany Railroad Co. v. State, 48 Ga. 415; Peeples v. Byrd, 98 Ga. 688, 25 S.E. 677; Stewart v. Atlanta Beef Co., 93 Ga. 12 18 S.E. 981, 44 Am.St.Rep. 119; Western Union Telegraph Co. v. Western and Atlantic R. Co., 142 Ga. 532, 83 S.E. 135; Cannon v. Montgomerty, 184 Ga. 588, 192 S.E. 206. And the Supreme Court of the United States has also recognized this rule. North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849; Louisiana v. Steele, 134 U.S. 230, 10 S.Ct. 511, 33 L.Ed. 891; Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140. This has been so often laid down and acknowledged by the courts of this State, of other States, and of the United States, that it is hardly necessary to again formally assert this rule. The sovereignty of the State is supreme, and to maintain that sovereignty the supremacy must also be maintained, and to do that the State must never be subjected to suit without its expressed consent. It should be notied that what we say here, which is in harmony with what this court and other courts have consistently held, is that the State can not by the courts be required to submit to being sued against its express consent. A careful and thoughtful consideration of the full import of this ruling will disclose that any attempt to force the State to submit to suit, if carried to the ultimate, would be futile, for the reason that there are no facilities or powers anywhere to be found to enforce a judgment thus rendered. If this is a harsh rule, and if it does not have the approval of the people of the State there is a definite way, a plain way, and a legal way, whereby it can be changed. This court has...

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