Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299 (1952)

342 U.S.
299
72 S.Ct. 321
96 L.Ed. 335
GEORGIA RAILROAD & BANKING CO.

v.
REDWINE, State Revenue Commissioner.
No. 1.
Reargued Nov. 26, 1951.
Decided Jan. 28, 1952.
Mr. Furman Smith, Atlanta, Ga., for appellant.

Mr. M. H. Blackshear, Dublin, Ga., for appellee.
Mr. Chief Justice VINSON delivered the opinion of the Court.
Appellant was incorporated in 1833 by a Special Act of the Georgia General

Assembly that included a provision for exemption from taxation.1 In 1945, the
Georgia Constitution was amended to provide that 'All exemptions from
taxation heretofore granted in corporate charters are declared to be henceforth
null and void.'2 According to appellant's complaint, appellee, who is State
Revenue Commissioner, is threatening to act pursuant to this amendment by
proceeding against appellant for the collection of ad valorem taxes for the year
1939, and all subsequent years, on behalf of the State and every county, school
district and municipality through which appellant's lines run.3 Appellant claims
that this threatened taxation would be contrary to its legislative charter and
would impair the obligation of contract between appellant and the State of
Georgia, contrary to Article I, Section 10 of the Federal Constitution.4
This latest phase5 of appellant's frequent litigation over the tax exemption
provision of its 1833 charter began when appellant filed suit against appellee's
predecessor in a Georgia state court seeking injunctive and declaratory relief.
Relief was denied without reaching the merits of appellant's claim when the
Georgia Supreme Court held that the action was, in effect, an unconsented suit
against the State which could not be maintained in the state courts. Musgrove v.
Georgia Railroad & Banking Co., 1948, 204 Ga. 139, 49 S.E.2d 26. We
dismissed an appeal from that judgment because it was based upon a nonfederal
ground adequate to support it. 1049, 335 U.S. 900, 69 S.Ct. 407, 93 L.Ed. 435.
3
Thereafter, appellant filed this action in the District Court to enjoin appellee
from assessing or collecting ad valorem taxes contrary to its legislative charter.
Appellant also asked that appellee's threatened acts be adjudged in violation of
prior decree also entered by the court below and affirmed by this Court. Wright
v. Georgia Railroad & Banking Co., 1910, 216 U.S. 420, 30 S.Ct. 242, 54 L.Ed.
544. A court of three judges6 dismissed appellant's complaint for want of
jurisdiction, holding that the State of Georgia had not submitted itself to the
jurisdiction of the court so as to be barred by the Wright decree and that this
action against appellee is in effect an unconsented suit against the State
prohibited by the Eleventh Amendment.7 D.C.1949, 85 F.Supp. 749.
The Attorney General of Georgia stated at the bar of this Court that 'plain,
speedy and efficient' state remedies were available to appellant, particularly by
appeal from an assessment by appellee. We ordered the cause continued to
enable appellant to assert such remedies. 1950, 339 U.S. 901, 70 S.Ct. 472, 94
L.Ed. 1331. After the District Court modified the restraining order which it had
entered pending appeal to permit assessment, appellee held appellant liable for
the full ad valorem tax and appellant appealed to the state courts. The Georgia
Supreme Court dismissed the appeal for want of jurisdiction, holding that such
remedy was not available to appellant. Georgia Railroad & Banking Co. v.
Redwine, 1951, 208 Ga. 261, 66 S.E.2d 234. Following this decision, appellant
moved for termination of the continuance of its appeal in this Court and we
ordered reargument.
First. On reargument, the Attorney General of Georgia again maintained that

'plain, speedy and efficient' remedies were available to appellant in the state
courts. If so, the District Court is without jurisdiction under 28 U.S.C. (Supp.
IV) 1341, 28 U.S.C.A. 1341.8 The remedies now suggested are: (1) suit for
injunction in the Superior Court of Fulton County, Georgia; (2) arresting tax
execution by affidavits of illegality; and (3) suing the State for refund after
payment of taxes. The first route was tried by appellant without success in the
Musgrove litigation, supra. The second remedy, the present availability of
which was doubted by the three Justices of the Georgia Supreme Court that
considered the matter in the appeal case,9 would require the filing of over three
hundred separate claims in fourteen different counties to protect the single
federal claim asserted by appellant.10 The third remedy, suit for refund after
payment, is applicable only to taxes payable directly to the State and amounting
to less than 15% of the total taxes in controversy.11 We cannot say that the
remedies suggested by the Attorney General afford appellant the 'plain, speedy
and efficient remedy' necessary to deprive the District Court of jurisdiction

under 28 U.S.C. (Supp. IV) 1341, 28 U.S.C.A. 1341.
6
Second. Passing to the jurisdictional ground upon which the District Court
rested its decision, we note that the State of Georgia was not named as a party
in the District Court. But, since appellee is a state officer, the court below
properly considered whether the relief sought against the officer is not, in
substance, sought against the sovereign.12 If this action is, in effect, an
unconsented suit against the State, the action is barred.13
The District Court characterized appellant's action as one to enforce an alleged

contract with the State of Georgia, and, as such, a suit against the State. But
appellant's complaint is not framed as a suit for specific performance. It seeks
to enjoin appellee from collecting taxes in violation of appellant's rights under
the Federal Constitution. This Court has long held that a suit to restrain
unconstitutional action threatened by an individual who is a state officer is not
a suit against the State.14 These decisions were reexamined and reaffirmed in
Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, and have
been consistently followed to the present day.15 This general rule has been
applied in suits against individuals threatening to enforce allegedly
unconstitutional taxation, including cases where, as here, it is alleged that
taxation would impair the obligation of contract. Gunter v. Atlantic Coast Line
R. Co., 1906, 200 U.S. 273, 26 S.Ct. 252, 50 L.Ed. 477; Pennoyer v.
McConnaughy, 1891, 140 U.S. 1, 11 S.Ct. 699, 35 L.Ed. 363; Allen v.
Baltimore & O.R. Co., 1885, 114 U.S. 311, 330, 5 S.Ct. 925, 962, 29 L.Ed.
200, 207.
In re Ayers, 1887, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216, relied upon below,
is not a contrary holding. In that case, complainant had not alleged that officers
threatened to tax its property in violation of its constitutional rights. As a result,
the Court held the action barred as one in substance directed at the State merely
to obtain specific performance of a contract with the State.16 Since appellant
seeks to enjoin appellee from a threatened and allegedly unconstitutional
invasion of its property, we hold that this action against appellee as an
individual is not barred as an unconsented suit against the State.17 The State is
free to carry out its functions without judicial interference directed at the
sovereign or its agents, but this immunity from federal jurisdiction does not
extend to individuals who act as officers without constitutional authority.
Accordingly, we find that the District Court was not deprived of jurisdiction in
this case on either the ground that it is a suit against the State or that 'plain,
speedy and efficient' remedies are available to appellant in the state courts.
Since the District Court did not determine whether appellee was bound by the
Wright decree and did not address itself to the merits of appellant's claim, we
do not pass upon these questions but remand the case to the District Court for
further proceedings.
10
Reversed and remanded.
11
Mr. Justice DOUGLAS, concurring.
12
It is my view that appellant's suit is in reality against the State of Georgia to

enjoin a breach of contract. It is the same contract that was involved in Wright
v. Georgia R. & Banking Co., 216 U.S. 420, 30 S.Ct. 242, 54 L.Ed. 544. In that
case the Court held that the Contract Clause of the Constitution barred Georgia
from breaching her agreement granting appellant tax immunity by legislative
act.
13
The suit in the Wright case was against a state officer. But the Attorney
General appeared and defended the case on the merits. It is clear to me that the
Attorney General represented and spoke for the interests of Georgia in the
lower court and in this Court. The Georgia Constitution and statutes authorized
the Governor to allow the Attorney General to defend suits involving the State's
interests. See Ga.Code of 1895, 23, 220; Ga.Const. of 1877, Art. VI, X,
par. II, Code, 23802. The decree that was entered adjudicated the rights of
Georgia, declaring her bound by the contract, stating that the Acts of the
Georgia Legislature involved in the litigation were 'a valid and binding contract
between the State of Georgia' and the present appellant. There were no special
circumstances, as in Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed.
1209, that would keep the suit from being res judicata against the State.
14
I would conclude that Georgia is bound by the decree in the Wright case.
Therefore, relief is now available in the form of an ancillary exercise of the
District Court's equity jurisdiction to protect appellant's rights secured under the
prior decree. Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 26 S.Ct. 252,
50 L.Ed. 477.
Ga.Laws 1833, pp. 256, 264.
Ga.Const. Art. I, III, par. III. See Ga.Laws 1945, No. 34, pp. 8, 14.
Ga.Code Ann.1937, cc. 9226, 9227, 9228, as amended, contains the
taxation provisions which appellee is allegedly threatening to invoke against

appellant.
4
'No State shall * * * pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, * * *.' U.S.Const. Art. I, 10, cl. 1.
The cases concerning this exemption that have reached this Court are collected
in Atlantic Coast Line R. Co. v. Phillips, 1947, 332 U.S. 168, 173, 67 S.Ct.
1584, 1587, 91 L.Ed. 1977.
Required under 28 U.S.C. (Supp. IV) 2281, 2284, 28 U.S.C.A. 2281,

2284. Query v. United States, 1942, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed.
1616.
'The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State or by Citizens or Subjects of any Foreign State.'
U.S.Const. Amend. XI.
'The district courts shall not enjoin, suspend or restrain the assessment, levy or
collection of any tax under State law where a plain, speedy and efficient remedy
may be had in the courts of such State.'
208 Ga. at page 272, 66 S.E.2d at page 241.
10
Compare Greene v. Louisville & Interurban R. Co., 1917, 244 U.S. 499, 520,
37 S.Ct. 673, 61 L.Ed. 1280, with Matthews v. Rodgers, 1932, 284 U.S. 521,
529530, 52 S.Ct. 217, 221, 76 L.Ed. 447. See also Graves v. Texas Co.,
1936, 298 U.S. 393, 403, 56 S.Ct. 818, 822, 80 L.Ed. 1236.
11
An adequate remedy as to only a portion of the taxes in controversy does not

deprive the federal court of jurisdiction over the entire controversy. Greene v.
Louisville & Interurban R. Co., note 10, supra. See Hillsborough v. Cromwell,
1946, 326 U.S 620, 629, 66 S.Ct. 445, 452, 90 L.Ed. 358.
It was also suggested that appellant's federal claim could be raised in defense to
a suit brought by appellee to recover taxes, but this is hardly a remedy that
could have been invoked by appellant.
12
Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, 687
688, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628; In re Ayers, 1887, 123 U.S. 443, 8
S.Ct. 164, 31 L.Ed. 216.
13
Appellant is incorporated in Georgia and a suit by it against the State of
Georgia is not expressly barred by the language of the Eleventh Amendment.

Nevertheless, a federal court may not entertain the action if it is a suit against
the State. Hans v. Louisiana, 1890, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842.
14
Gunter v. Atlantic Coast Line R. Co., 1906, 200 U.S. 273, 26 S.Ct. 252, 50
L.Ed. 477; Prout v. Starr, 1903, 188 U.S. 537, 23 S.Ct. 398, 47 L.Ed. 584;
Smyth v. Ames, 1898, 169 U.S. 466, 518 519, 18 S.Ct. 418, 423, 42 L.Ed. 819;
Tindal v. Wesley, 1897, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137; Reagan v.
Farmers' Loan & Trust Co., 1894, 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014;
Pennoyer v. McConnaughy, 1891, 140 U.S. 1, 11 S.Ct. 699, 35 L.Ed. 363, and
numerous cases cited therein.
15
Alabama P.S.C. v. Southern R. Co., 1951, 341 U.S. 341, 344, 71 S.Ct. 762,
765, 95 L.Ed. 1002; Sterling v. Constantin, 1932, 287 U.S. 378, 393, 53 S.Ct.
190, 193, 77 L.Ed. 375, and cases cited therein; Greene v. Louisville &
Interurban R. Co., note 10, supra, 244 U.S. at page 507, 37 S.Ct. 677, and cases
cited therein. See Larson v. Domestic & Foreign Commerce Corp., note 12,
supra, 337 U.S. at pages 690691, 704, 69 S.Ct. 1462, 1468.
Appellant in this case merely seeks the cessation of appellee's allegedly
unconstitutional conduct and does not request affirmative action by the State.
Compare Ford Motor Co. v. Department of Treasury, 1945, 323 U.S. 459, 462
463, 65 S.Ct. 347, 649350, 89 L.Ed. 389; Great Northern Life Ins. Co. v.
Read, 1944, 322 U.S. 47, 5051, 64 S.Ct. 873, 874875, 88 L.Ed. 1121;
State of North Carolina v. Temple, 1890, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed.
849; Hagood v. Southern, 1886, 117 U.S. 52, 6 S.Ct. 608, 29 L.Ed. 805.
16
That there is no inconsistency between the decision in Ayers and the cases
above cited is shown by the careful differentiation of Allen v. Baltimore & O.R.
Co., supra, an opinion also written by Mr. Justice Matthews. See also Pennoyer
v. McConnaughy, note 14, supra.
17
The fact that the Georgia Supreme Court has considered that appellee acts with
official immunity does not, of course, impart immunity from responsibility to
the supreme federal authority. Ex parte Young, supra, 209 U.S. at page 167, 28
S.Ct. 457. See also Graves v. Texas Co., note 10, supra, 298 U.S. at pages 403
404, 56 S.Ct. 822823.
We do not find it necessary to consider whether the State of Georgia had
submitted itself to the jurisdiction of the District Court in the Wright litigation.
Unlike Gunter v. Atlantic Coast Line R. Co., supra, where additional parties
were brought into the second action, appellant has limited its complaint to a
request for relief against appellee alone.

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Georgia Railroad & Banking Co. v. Redwine, 342 U.S. 299 (1952)

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342 U.S.

GEORGIA RAILROAD & BANKING CO.

Mr. Furman Smith, Atlanta, Ga., for appellant.

Appellant was incorporated in 1833 by a Special Act of the Georgia General

First. On reargument, the Attorney General of Georgia again maintained that

and efficient remedy' necessary to deprive the District Court of jurisdiction

The District Court characterized appellant's action as one to enforce an alleged

Reversed and remanded.

Mr. Justice DOUGLAS, concurring.

It is my view that appellant's suit is in reality against the State of Georgia to

Ga.Laws 1833, pp. 256, 264.

Ga.Code Ann.1937, cc. 9226, 9227, 9228, as amended, contains the

taxation provisions which appellee is allegedly threatening to invoke against

Required under 28 U.S.C. (Supp. IV) 2281, 2284, 28 U.S.C.A. 2281,

208 Ga. at page 272, 66 S.E.2d at page 241.

An adequate remedy as to only a portion of the taxes in controversy does not

Appellant is incorporated in Georgia and a suit by it against the State of

Georgia is not expressly barred by the language of the Eleventh Amendment.

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