Florida State Hospital v. Durham Iron Co. , 66 Ga. App. 350 ( 1941 )

The court did not err in overruling the motion to quash the attachment and dismiss the levy.

DECIDED OCTOBER 25, 1941. REHEARING DENIED DECEMBER 11, 1941. The Durham Iron Company Inc., a Georgia corporation, called the plaintiff, procured the issuance of an attachment against Florida State Hospital for the Insane, Fred P. Cone, as Governor, R. A. Gray, as Secretary, J. M. Lee, as Comptroller, W. V. Knott, as Treasurer, Colin English, as Superintendent of Public Instruction, and Nathan Mayo, as Commissioner of Agriculture, of the State of Florida, and together constituting the Board of Commissioners of State Institutions, called the defendants. The grounds for attachment were averred to be indebtedness by a non-resident debtor. The attachment was levied on several lots of land in Decatur County, Georgia, which lands were then in the possession of the defendants. The attachment proceedings were returned to the city court of Bainbridge, Decatur County. The plaintiff duly filed its declaration which was later amended. The declaration as amended alleged: "That Florida State Hospital for the Insane (Fred P. Cone, as Governor of the State of Florida, R. A. Gray, as Secretary of the State of Florida, J. M. Lee, as Comptroller of the State of Florida, W. V. Knott, as Treasurer of the State of Florida, Colin English, as Superintendent of Public Instruction of the State of Florida, and Nathan Mayo as Commissioner of Agriculture of the State of Florida, as and constituting together the Board of Commissioners of State Institutions), is and are non-residents of the State of Georgia. (2) That said named defendants have detained from the plaintiff its property as follows; to wit: three boilers, . . of the value of . . $2500, and although demand has been made on the defendants by the plaintiff for a return of the same, the defendants fail and refuse to return said property, to which plaintiff is entitled and have thereby rendered themselves indebted to the plaintiff to the extent of the market value thereof, to wit, . . $2500. (3) That on the 5th day of November, 1940, plaintiff procured the issuance of an attachment, . . against [the defendants named above]. (4) Said attachment was . . levied on all of lots of land Nos. 416, 419 and 420, containing 250 acres, more or less, each; also all of lot of land No. 385, except the right of way of the A. C. L. Railroad, containing 246.1 acres; all of said lots lying in . . Decatur County, Georgia (5) [Substituted by amendment.] That the defendants acquired said lands above stated in the State of Georgia, without the consent of the State, and for the purpose of operating a farm thereon; that said defendants thereby subjected themselves to the laws of Georgia in the same manner and to the same extent as any private citizen thereof and are subject to attachment in the courts of this State. Wherefore, plaintiff prays judgment against the defendants with a special lien against the lands levied on. . ."

The defendants filed their motion to quash the attachment proceedings and to dismiss the levy, as follows: "Because it appears from the allegations set forth in the attachment, bond and writ, . . the same constitutes and is a suit manifestly against the officers of the sovereign State of Florida, in their official capacity, and not as individuals, and it nowhere appears that the sovereign State of Florida has given its consent to the filing of said suit. (2) Because the complaint and the allegations embraced therein constitute and are in their purport against the officers of the sovereign State of Florida, in their official capacity and not as individuals, and is as to a matter in which the officers have no personal interest as individuals, but to compel them to do the acts which constitute a performance by it of its contracts, and is in its very nature and effect a suit against the State itself, and the State is the real party against which the relief is asked and the judgment sought is designed to be satisfied, discharged and paid off out of property belonging to and the title of which is vested in the State. (3) Because said suit is against Fred P. Cone, as Governor of the State of Florida, R. A. Gray, as Secretary of the State of Florida, J. M. Lee, as Comptroller of the State of Florida, W. V. Knott, as Treasurer of the State of Florida, Colin English, as Superintendent of Public Instruction of the State of Florida, and Nathan Mayo, as Commissioner of Agriculture of the State of Florida, as and constituting together the Board of Commissioners of State Institutions, which board are by virtue of article IV, section 17, of the [constitution of the] State of Florida, the officers in charge of and having control of the properties of the Florida State Hospital for the Insane, and against them in their official capacity, and the levy made on the property described under such levy . . was on the date said attachment was sued out and levied, and now is the property of the sovereign State of Florida, and said attachment, fi. fa. and levy is a suit against the State of Florida, and movant insists that the State of Florida is immune to suit without its express consent, which appears has not been granted. (4) Because, it is manifest that a judgment for the plaintiff, . . if satisfied at all, would be satisfied from the sale of the lots and fractional lots described in the foregoing paragraph, which consist of and are assets of the sovereign State of Florida, and which under the constitution of said State, as provided by article IV, section 17, of the constitution of Florida, are needful and necessary for the control, maintenance, and continued operation of the Florida State Hospital, for the proper treatment and care of the lunatics and feeble-minded citizens of said State, comprising more than 4000 persons committed in and who are now patients of said Florida State Hospital, and which is an institution under the management and control of these defendants, as officers of said State under its constitution and statutory enactments as provided in sections 2296, 2297, et seq., of the Revised General Statutes of the State of Florida, aforesaid. (5) Because said lots of land levied upon by virtue of said attachment consist of and constitute property which is used by said Florida State Hospital as an institution for the care and protection of the lunatics and feeble minded of said asylum, as a public institution, are devoted to a great public use, the same lying close to and adjacent to the administration buildings and hospital and consisting of a portion of the hospital farm whereon are grown necessary crops for the sustenance and maintenance of the patients of said institution, and those in control of the operation and management of the same. (6) Because the stream of water which flows through the lands used by said hospital is a necessary creek or stream of water known as `Mosquito Creek,' which is located upon the lots levied upon, and said hospital receives its water for drinking, cooking and other purposes from said stream, and to permit the plaintiff to subject the same to levy and sale under said attachment would dismember the property of said Hospital seriously and interfere with the ability of these defendants, as officers in discharge of the public duties incumbent upon them as officers of said State and in the operation of the hospital belonging to said State. (7) Because the sovereignty of the State of Florida is supreme, and to maintain that sovereignty the supremacy must also be maintained, and in order to continue its proper and necessary functions, the sovereign State of Florida should not be subjected to this suit without its expressed consent. (8) Because as movants contend and here and now insist, that under the eleventh amendment to the Constitution of the United States, said amendment was designed for the express purpose of preventing the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of either private individuals, firms or corporations, and this sovereign State, as such, should not be summoned into court or its property seized for the payment of debts without its consent."

The issue thus made was presented for determination to the judge without a jury. The defendants introduced the following documentary evidence: Florida Constitution, art. IV, section 17: "The Governor and the administrative officers of the executive department shall constitute a Board of Commissioners of State Institutions, which board shall have supervision of all matters connected with such institution in such manner as shall be prescribed by law." Revised General Statutes of Florida, section 2296: "Control of Asylum. . . The Board of Commissioners of State Institutions shall have the management and control of the Florida State Hospital." Section 2297: "Employment of superintendent. . . They shall employ a superintendent and such physicians and other medical attendants and such other persons as may be necessary for the proper management and care of the lunatics, and of such asylum, and of the properties herein or thereto belonging or appertaining." Section 2298: "Board to prescribe duties of employees, and bond of superintendent. Said board of commissioners shall prescribe the powers and duties of the superintendent and of all the other employees and shall require of the superintendent bond with sureties, conditioned to properly apply and fully account for all supplies, property and moneys which may be intrusted to or received by him, and for the faithful performance of his duties, as they may from time to time be prescribed by such board." Sections 1, 2, 3, art. 10, of the constitution of the State of Florida: "Public Institutions. . . Institutions for the benefit of the insane, blind, and deaf, and such other benevolent institutions as the public good may require, shall be fostered and supported by the State, subject to such regulations as may be provided by law. . . A State prison shall be established and maintained in such a manner as may be fixed by law. Provision may be made by law for the establishment and maintenance of a house of refuge for juvenile offenders, and the legislature shall have power to establish a home and workhouse for common vagrants. . . The respective counties of the State shall provide in the manner fixed by law for those of the inhabitants who by reason of age, infirmity, or misfortune may have claims upon the aid and sympathy of society." Fla. Laws, 1874, chapter 2012: "An act to provide an asylum for the indigent lunatics of the State of Florida. . . Section 1. That the Governor of this State be, and he is hereby, required to set apart a portion of the public buildings of this State at Chattahoochee, in Gadsden County, for the purposes of an indigent lunatic asylum, to which all indigent persons who may be found to be insane, lunatics, or non compos mentis by the courts of this State having jurisdiction of the subject, may be confined for safe keeping and treatment. Section 2. That until otherwise provided by law the said asylum shall be under the control and government of a physician, subject to such rules and regulations as the board of managers may prescribe, who shall appoint such physician and regulate his salary. Section 3. The Governor of the State of Florida and his cabinet officers, and the Lieutenant-Governor, are hereby constituted a board of managers of said asylum, with power to prescribe all needful rules and regulations for the government thereof." Fla. Laws, 1885, chapter 3578: "An act to provide for the management of the State asylum for the indigent lunatics. . . Section 1. That the Board of Commissioners of State Institutions shall have the management and control of the asylum for indigent lunatics of the State, and shall employ a superintendent and such physicians and other medical attendance and such other persons as may be necessary for the proper management and care of the lunatics, and of such asylum, and of the properties therein or thereto belonging or appertaining. . ."

The court overruled the motion to quash and dismiss, as follows: "After hearing from counsel for both sides, the court being of opinion that the defendants are subject to suit in this proceeding, it is by the court considered, ordered, and adjudged that the motion be and the same is hereby overruled. So ordered, this 21 day of March, 1941." 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. DurhamIron 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 calling 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 his 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 on 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 Rights 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 attempted 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 Ga. 599, 605 (15 S.E. 678); State ex rel. Taggartv. Holcomb, 85 Kan. 178 (116 P. 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 cases 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." "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.' 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.'"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 "citizen" or "subject," 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.

ON MOTION FOR REHEARING.