Florida State Hospital for the Insane v. Durham Iron Co.

17 S.E.2d 842, 66 Ga. App. 350, 1941 Ga. App. LEXIS 211

Opinions

Gardner, J.

1. The eleventh amendment to the United States constitution (Code, § 1-811), with reference to State immunity from suit, is immunity from suit in the Federal courts, not the State courts. Florida State Hospital for the Insane v. Durham Iron Co., 192 Ga. 459 (15 S. E. 2d, 509), and cit.

2. Much is said and many authorities are cited in the arguments for both sides to the effect that a citizen may not maintain a suit against his sovereign State without permission from the sovereignty so to do. This is the general rule and is well settled. As to the case before us, it would be of little historical or other value to enlarge on this question. The decisions, with the exception of a very few, which we will hereinafter examine, cited by both the plaintiff and the defendants from this and other States, are suits either in law or in equity by citizens of a State, seeking recovery in law or in equity of relief against the State through its officers. They reflect very little light on the issues involved in this case, except they do illuminate the question that in wrongdoing the officer does not act for the State on the theory that a State or sovereign does no wrong. In this connection it is interesting to note that in recent years, when so many governmental functions have been delegated to so many governmental agencies designed to compete in industrial activities which were formerly considered fields for activities of subjects or citizens only, the Congress, along with the granting of such privileges to the government, likewise with such privileges and obligations, granted permission to sue and be sued as a subject. To our minds this was but just. Keifer v. Reconstruction Finance Cor., 306 U. S. 381, 385 (59 Sup. Ct. 516, 83 L. ed. 784). Then, too, in many of our State jurisdictions, the State has not been wont to restrain its citizens from cailing into assistance the power of its courts of equity to prevent an official of the State, in the name of his office and in behalf of the State, from dealing unjustly with one of its citizens or subjects in Ms private rights guaranteed to him by the constitution, on the ground that the sovereign State was immune from suit. This is based on the theory that the constitutional guarantee to the citizen would prevail over the wrongdoing of the State officials, even though the rights of the citizen had been invaded by the officer in the name of and for the benefit of the sovereign State, notwithstanding the immunity from suit of the sovereign State. A recent and very enlightening decision oh this point was rendered by the Supreme Court of Florida in State Road Department of Florida v. Tharpe (Fla.), 1 So. 2d, 868. A distinction is sought to be drawn between the case just cited and the case at bar, on the ground that that' case was one at equity and the case before us is one at law. While this is true, the cited case is illustrative of the trend, and we feel, in justice to the cause, that it is a ruling principle of our government that the sacred constitutional rights of citizens to be secure in their property rights are to be respected by officials of a State equally so much as by a fellow citizen or subject. The underlying principle from the day of the Magna Charta, now embodied in the Bill of Eights in all of our constitutions is that the sovereign (State) must do no wrong. A subject of a State may not sue his sovereign without its consent, express or implied, yet only in rare instances has the State refused through its courts to give its injured subjects relief in its courts of equity. This is the foundation of a democratic or representative form of government. But what has been said in this division of our opinion is dealing with the relation of the Federal government regarding its delegated function in relation to its subjects and a State with reference to its immunity from suit of its own citizens or subjects. Such is not the case before us.

3. Thus we come to face the controlling issue in the case at bar. Succinctly the facts are as follows: the Governor of Florida and his 'cabinet, as such, purchased land within the boundaries of Georgia, without the consent of the State of Georgia and without legislative authority from the State of Florida, for the purpose of carrying on operations thereon in connection with and aid of a sanitarium for the care of the insane of Florida. It will be observed from the evidence introduced by the defendants that the constitution of Florida does not provide for the purchase of land in the State of Georgia,, and the legislature of Florida has never at tempted to authorize the defendants to purchase it, and so far as the evidence shows there was no warrant or authority for the defendants to do so. Neither does the evidence show that the State of Florida ever sought or received permission from the State of Georgia to acquire land within the domain of the sovereign State of Georgia, and to establish within the confines of Georgia the sovereignty of Florida, by the Governor and his cabinet or otherwise. We have been unable to find any authority to the effect that one State can extend its sovereignty into another State, by acquiring property without permission or authority, and claim immunity of sovereignty, through its State officials, from any liability to which the citizens or subjects of the State in which the property is purchased are subject. But there are cases to the contrary import, where municipalities of one State have gone into another State, acquired property, and operated a business for profit. City Council of Augusta v. Hudson, 88 Ca. 599, 605 (15 S. E. 678); State ex rel. Taggart v. Holcomb, 85 Kan. 178 (116 Pac. 251, 50 L. R. A. (N. S.) 243, Ann. Cas. 1912D, 800). It is contended by the plaintiffs in error that these cases are not applicable, for the reason that there is a vast difference between a State and a subdivision thereof, one being a sovereign and the other not. This is granted. But the principles pronounced afford an appealing approach to the question before us. The question before us is, when a State enters the territorial limits of another State under such facts as are here presented, does it enter as a sovereign or a subject? The following decisions of the Supreme Court were not dealing with this question: Osborn v. Bank of the United States, 22 U. S. 738 (6 L. ed. 204); United States v. Lee, 106 U. S. 196 (1 Sup. Ct. 240, 27 L. ed. 171); Poindexter v. Greenhow, 114 U. S. 270 (5 Sup. Ct. 903, 962, 29 L. ed. 185). The questions there presented were, do the facts of each case show that the State was the real party ? If so, the suit could not be maintained in the Federal court in violation of the eleventh amendment to the United States constitution. If not a suit against the State, it could be maintained in the Federal court. The dissenting opinions quoted at length by learned counsel for plaintiffs in error simply hold that under the facts of these cases the State was the real party and not the officers as individuals, and the majority opinions hold contrariwise under the facts. Whether they were suits at law or in equity, sheds little, if any, light on the question before us. Our Supreme Court has held that the eleventh amendment applies only to the Federal courts. Florida State Hospital for the Insane v. Durham Iron Co., supra. We are aware of no provision in either the Federal or the State constitution to the effect that one State can not be sued in the courts of another State when the State being sued has voluntarily left its own domain and engaged in the operation of an enterprise along with other subjects within the jurisdiction of the court into which such State has come as a subject and not as a sovereign; and it makes no difference that the activity engaged in is the use of lands in aid of an eleemosynary undertaking seated within the State’s own confines, or relates to some other business for gain to support the State by proprietorship operations in another State.

We come next to consider those cases which we think bear more directly on the contention that, in the transaction now under consideration, the State of Florida entered Georgia as a subject and not as a sovereign. It is unthinkable that there can exist two State sovereigns within the territorial confines of one State. Suppose the State of Florida should acquire all of the business activities of Decatur County, Georgia, and begin operations for the benefit of the insane asylum at Chattahoochee, Florida, and in the operation of such varied enterprises involve the rights of the subjects of Georgia, or violate contracts made with the citizens of Decatur County,—could it be successfully contended that Florida would be immune from suits in the courts of Georgia? We think not. But counsel for the plaintiffs in error contend that this is a matter for the State of Georgia to handle and not its citizens or subjects. We think not. The State of Georgia does not frown on a sister State for carrying on activities for profit as a subject. There are many instances of such activities; but what here is of concern is, in effect, that the sister State is seeking immunity from suit because of her sovereignty. She can not bring her sovereignty with her. Therefore it is immaterial whether the suit is against the State of Florida or not. See State ex rel. Taggart v. Holcomb, supra; Georgia v. Chattanooga, 264 U. S. 472 (44 Sup. Ct. 369, 68 L. ed. 796). “When a state . . comes within the boundaries of another State it does not carry with it any of the attributes of sovereignty, and is subject to the laws of such other State the same as any State, proprietor.” State ex rel. Taggart v. Holcomb, supra. “Land acquired by one State in another State is held subject to the laws of the latter, and to all the incidents of private ownership." As to such property “it can not claim sovereign privilege or immunity." Georgia v. Chattanooga, supra.

4. It appearing that the defendants as non-residents are subject to process of attachment as provided by the Code, .§ 8-101(1), then, with reference to debt or demand, whether arising ex contractu or ex delicto, there inheres in the cause no failure of the right, jurisdictional or otherwise, to maintain the action. The Code, § 8-102, provides: “In all eases of money demands, whether arising ex contractu or ex delicto, the plaintiff shall have the right to sue out the attachment when the defendant shall have placed himself in such situation as will authorize a plaintiff to sue out attachment.55 “Since the act of 1799 (Cobb, 69, 70) the remedy by attachment, with an immediate seizure of the property on the filing of the case, has existed where a debtor is a non-resident with property in this State. Code, §§ 8-101 to 8-114, inclusive. ' That remedy now exists ‘in all cases of money demands, whether arising ex contractu or . . ex delicto.5 Code, § 8-102; Acts 1857, p. 23. ‘Where, in obedience to a writ of attachment, the officer executing the same seizes certain property as the property of such a non-resident debtor, and so makes his return to the court, it acquires such jurisdiction as will enable it to proceed to judgment subjecting his interest in the property to the payment of the debt.5 55 Grimmett v. Barnwell, 184 Ga. 461, 470 (192 S. E. 191, 116 A. L. R. 257); Earle v. Sayre, 99 Ga. 617 (25 S. E. 943); Harmon v. Wiggins, 48 Ga. App. 469, 473 (172 S. E. 847). .The defendants having come into the State of Georgia as a “citizen55 or “subject,55 and not as a sovereign, the cause of action was maintainable as laid, in rem.

It having been made to appear that Fred P. Cone as Governor and W. V. Knott as Treasurer of the State of Florida, have been succeeded in their offices by Spessard L. Holland and J. Edwin Larson, respectively, who are incumbents currently with the rendition of this opinion, it must be considered that the judgment rendered is binding on said successors in office, to the same extent and force as the same would have been on their predecessors in office, had they continued as parties to the within cause.

Judgment affirmed.

Broyles, C. J., and MacIntyre, J., concur.