Petition for Writ of Certiorari — Crisp County v. Seaboard Air Line Railroad (No. 557)

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7

a

°

. “NOV 30) 1950

en Court of a United GALES. prowins

Clerk

OCTOBER TERM, 1960 § ~

_ No. Do0¢

COUNTY OF CRISP ‘OF THE STATE OF GEORGIA,

"ET AL., |

Petitioners,

versus

SEABOARD AIR LINE RAILROAD COMPANY,

‘Respondent.

6

-

———s

PETITION FOR WRIT OF CERTIORARI TO THE -

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT AND BRIEF IN SUPPORT THERE.

OF. |

3

H. H. PERRY, JR.,

P. O. Address: _

‘ “P.O. Box 747,

Albany, Geérgia.

GRAYDON REDDICK,

GEORGE WRIGHT,

; Attorneys tor Petitioner.

P. O. Address: ) |

Cordele, Georgia.

¥

ee

rn eee

3 .

Selle eo INDEX.

Page

SUMMARY STATEMENT QF THE M ATTER IN-

: VOLVED ..:.. EE Cae Coy i eae lca aces 6 4e }

dy Opinion of the Circuit Court of a ]

( 2) Jurisdictional Matters »...... Prag Soak oer 2

(3) Questions Presented For Review -.......... 2

*(4) Statutes Involved ............ Se Eee 4

(5) Statement of the Case ............0....... 7

5B Fase ee path, Shek ah ARSE cae ae, CRP et a ne 7

Construction ef Section 10 of the Federal Power

Sea ee ee races eae eden ee eceseanwes i

The. Validity of the Contract .....¢..... peer 16

ES ae eeo ae Nercceactr bees hooends Sree

APPENDIX ....... Ceettweter sees tes ecieeerae tk ae

- : Pe —_ -

Re rere A ae ee woe ae

GRU occ. re ee oo oe

LIST OF AUTHORITIES:

Cases: |

Albany Bottling serait v. Watson. 103 Ga.

SE ee oe cue oa eoag He y's B as 18 -

> Alabama Power Compans vs. Smith. 229 Ala.

105, 155. i scape castes tuna ee eaen _ 15°

Arnold v. Walt 05 Ga. 606, 54 S.E. 2d 424.. -. 20

Bibb County vs. Green. 42 Ga. App. 552 (156 .

ES sb Lp isbdi e ds Glial n wibs'y ui cn ks a ache’ 17

City of Atlanta vs. Due. 42 Ga. App. 797-804

57 IEE, RA 5, SRE cea tea an 17

a

au ze F tf

LIST OF “AUTHORITIES— (Continued)

. , ; Page

Cases—- ( Continued) .

City Council of Augusta VS. hse 37 Ga. App.

ae eee rere ee

City Council of Augusta v. ‘Richmond Co., 178

ROOD 6 ee Fs Se rem ew ne sas wan ees. 23

City Council of Dawson v. Dawson Waterworks _

Co., 107 Ga, 696 (1899) ................. ~ 13

City Council of Dawson v. Dawson _ Waterworks |

Company, 106 Ga.: 696 (32 SE 907) ...2. 3

Decatur County v. Praytor Inc. Co.. 163 Ga. 929

Shot. REAL. oa ye eS - 13.

Federal Power Commission: vs, State of Oregon,

‘349 U. S. 435, 75 S. Ct. 832. 99 L. Ed. 1215

First Iowa Hydro-Electric Co-operative ° vs.

Federal Power Commission, 328 U. S.

152, 66 S. Ct. 906, 90. L. Ed. 1143. Reh den

328: U.S. 897, 66 S. Ct. 1337, 96 L. Ed?

Ford & Son; Inc. vs. Little Falls’ Fiber Company.” a

supra, 280 U.S: 369. 50 S. Ct-140, 74 L. Ed.

Se CT ORIIOE ES ee eee ee a

Great Northern RwsCo. vs. W akan Eelectric. :

Co., 107 Wash. 627, 86 Pa. 24 208 ........ 14

Georgia Power Company vs. Federal Power Com-

| mission (Fifth Circuit) 152 F..2d 908 ....

Georgia Power Compans vs. EFelly. 182 Ga. 33

SE ED ea cans kx: 5 Vln aoe wists Te

Georgia Power. Company vs. Mocre, 47 Ga. App. a,

411-413 (170 SE 520) ...... et py oe 17

Henry Ford & Son, Inc. vs. Little Falls Fiber.

Company, 280 U. S. 369,.50 S: Ct. 140, 74

PM 8 £6 s 5 Gi nt kcke suas Uxecedbaes 12

Harkan vy. City of Moultrie, 136. Ga. 561 (1911)

Howard vs. County of Bibb. 127 Ga. 291 (156 :

MS COC Chieu e type a tue wees awe i

i)

UI -

LIST OF AUTHORITIES—(Continued )

Cases— (Continued):

_ Lavin vs. Philadelphia Electric Power Company,

(Decd Pa.) 34 F.2d 224 ............0.4..-

Neal vs. Town of Decatur, 142 Ga. 205 (1914) .

Oliver v. Hall County Memorial Hospital, 62 Ga.

> MUN. oss d Mess cosy sacha bse baey Cat

Rice Hope Plantation vs. South Carolina Public

Service ‘Authority, 216 S. Ct. 500, 59 SE.

- i ete SN dace nee Te Wyre rnin nee an

Screws v. City of Atlanta, 189 Ga. 839 (1940)...

Smith vs. Floyd County, 85 Ga. 420, (11 SE 850) »

Town, of Decatur v. Dekalb County, 130 Ga. 929

¢ PRE Noss catunwen sees ccasemnesans ane

Turner v.’Fulton County, 109 Ga. 633, (1900) ..

United States vs. Central Stockholders ay eer

tion. of Vallejo (Ninth Circuit) 52 F. 2d

> RES Pe rename rite! Bh eae ss

Page

13

Wright v. Flotd Conny, 1 Ga. App. 582, 585 . °

(1007) ..-..- enero sd SE pe appen

OTHER AUTHORITIES. |

Article VII, Section VII, Paragraph 1 of the Con-

stitution of the State cf Georgia ,.......

Article I, Section III. Para; graph 1 of the Con-

stitution of the State of Georgia ........

“Act (See Section 27. 16 USCA. Section 821) ..

Crisp County (Georgia Laws 1925, page 72. et

MEE IS taecc nwa bags aes «aes abkeepesys ‘,

Rule 23 (19 (i) ......< cicatay oak Rane Ome Tt oe

ee rere ry. eee ates Gawd cee yo

Section 1254. (1) oitle 28 of the Vajted States

Code Annotated GE eee Pee Re EE

Section 10 of the Federal Power Act (16 U. S. C.A.

18

a ee eee ee Ye

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;

‘

Fein PREME COURT OF Tae U NITED STATES.

re

OCTOBER TERM, 1960

. =

COUNTY’ OF CRISP OF THE STATE OF GEORGIA,

ET AL.., 2

Petitioners,

versus

SEABOARD AIR LINE RAILROAD COMPANY,

© Respondent.

PETITION. FOR WRIT OF CERTIORARI TO. THE -

_SUNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT AND BRIEF IN SUPPORT THERE-

OF. ee :

, TO HONORABLE EARL WARREN, CHIEF JUSTICE

OF THE UNITED STATES, AND THE ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

Your petitioner respectfully shows:

1.

SUMMARY STATEMENT OF THE MATTER INVOLVED.

(1) ‘Opinion of the Circuit Court of Appeals.’

‘The opinion- ‘of the Fifth Circuit Court of Appeals is

weit ah in n 280 F 2d, page 873. A’ copy of the opiriion

a .

. .

; 2 . ; °

5 ? .

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: and judgment of the ‘Cousk is ‘attached hereto as'an Ap-

: pentlix to this petition.

(2) Jurisdictional Matters, .

The original judgment and opinion of the Fifth Circuit.

Court of Appeals was rendered July 12, 1960.- A re-

_ hearing was filed in due time within the rules of that)

court and the same was denied one September 1, 1966.

The jurisdiction of this court is Anvoked under the pr<-.

visions of Section 1254 (1), rile of the United State:

Code Annotated. ;

(3) Questions Presented For Review.

The questions presented are these:

(1) Does Séction 10-of the Federal Power Act (1

U.S.C.A., Sec. 803° (c)) impose upon a licensee under that

act liability for damages for injury to property arising

oui of ‘the maintenance of the licensed dam, even

though the licensee would not be liable for damages of

tne character claimed under the laws of the state in

which are located the dam and the property said to

have been injured? To state the matter different!y:

Does Section 10 of-the Federal. Power Act (16 US.C.A.

Sec. 803 (c) ) simply preserve to property owners such

causes of action for injury to their. property resulting

from the licensed dam as. are authorized under the

‘laws of the adhaat states, or does this section enlarge

the liability of such li¢ensee so- as to authorize a

~~

3

—— to recover damages which could not be

recovered under applicable state laws?

(2) — if Section 10 of the Federal Power Act

enlarges: the liability of the licensee by making such

licensee liable for any and all injuries to property re-

sulting from the construction or maintenance of a dam

whether or not damages therefor would be recoverable

under state laws, would this statutory liability validate |

a contract . by a county of the State of Georgia under |

which the county in. effect agreed to be responsible for

‘damages done to the property of an owner rotwith-

standing the fact that such contract constituted a “debt”

“which the county was prohibited from contracting under

Article 7, Section 7, Paragraph 1 of the Constitution of

the State ‘of Georgia. In other words, ‘would it not be

true in such case that the liability of the county, if any —

there was, would h4ve to rest solely upon the statutory

provisions ‘of \the Federal Power Act and all laws in-

cluding statutes of limitatjon applicable thereto, rather

than upon a contract of thd counts and all laws including |

statutes of limitation appli able to the construction and |

enforcement of such contract?

(3) If ro liability ee Secticn 10 of the Federal

Power Act (16 U.S.C.A., Sec. 803 (c) ) of the licensce

under that Act for “damages occasioned to the propeity

_ of others by the construction, maintenance or operation

of the project works” means no more than that the

licensee shall be liable .for recoverable damages as

: recognized by the laws of the state «where the dam and

a |

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the property claimed to nave been injured are, located,

then: was Crisp County, a political subdivision ‘of the

“State of Georgia, liable under the laws of the State of

Georgia for repairs to ‘thes respondent railroad’s eni-

bankment resulting, as alleged, from the continuous

wave action and ebbing and flowing of the backwater

. and, if “not, was the contract of Crisp County under

which it undertook to perpetually make such repairs a

valid and. binding contract as against the county when

considered in connection’ with the state constitutional

prohibition against counties incurring such a debt and.

the general limitations relating to the power of countics

to enter into contracts?

~

(4) ‘Statutes Involved.

Section 10 of the Federal Power Act (16 U.S. C. A., Sec.

803. (c) ) provides: ;

4 .

“Each licensee hereunder shall be liable

for all damages occasioned to the’ property of

others by the construction, maintenance, or opera-

tion of the project works or ofthe works appur-

tenant or accessory thereto, constructed under the «

license, and in no event shall the United States be

liable therefor.” .. ©

Article VII, Section VII, Paragraph 1 of the Constivi-

. tion’ of the State of Georgia (Sec. 2-6001 Annotated Code

of Georgia) provides:

“The debt hereafter ihcurred by ary coun‘y.

municipal corporation or political division of this

State except as in this Constitution provided for,

shall never exceed. seven per centum of the as-

@ o&,

)

F ; eo c °

sessed value of all the taxable property therein,

and no such county, municipality or division shall .

incur any new debt except for a temporary loan or

loans, to supply casual deficiencies of revenue, not:

to exceed one-fifth of'one percentum of the as-

sessed value of the taxable property therein, with-

out the assent of a majority of the qualified voters

of the county, municipality or other political sub-

division voting in an election for that purpose to

be hefd as prescribed by law.”

The amendment to the abave constitutional provision

relating to Crisp County (Georgia Laws 1925, page 72,

et seq.) provides: | Ree

“Be it enaeted by the General Assembly of the .

State of Gerogia and-it is hereby enacted by au-

thority of the same, that Article 7, Section 7, Para-

graph 1, of the Constitution of Georgia as herei?-

fore amended, shall be further amended, by adding -

' at the end thereof a new sub-paragraph in the

following words, to-wit: ‘And except that the

County of Crisp may incur a bonded indebtedness

in addition to debts hereinbefore. in-this paragraph

allowed to be incurred, to the amount in the aggie-

gate not. to exceed the sum of one million two

hundred and fifty thousand dollars and at a rate

of interest not to exceed five per centum per an-

num; which said: bonds shall run for a period or

periods of time not. to exceed thirty years and may

be issued from time to time and in such denomi-

nation as_may be determined by the county authori-

ties of said. county, to be signed y the Chairmen

and the Clerk of the Board of: tgmmissioners# of*

Roads and Revenues of said county and shall be

known and designated as Hydro-Efectric Power

’ Bonds; and which said bonds shall be sold and the

proceeds thereof used and handled by the Power °

Commission hereinafter provided for. The proceeds

of all bonds issuéd and sold under this authority

shall be used for the purpose of acquiring water.

power sites and locations. on the Flint . River

within and, or without Crisp County, including the

necessary overflow lands; and for the purpose of

acquiring rights-of-way for power transmission

lines; and for the purpose of improving, building,

constructing, equipping, maintaining, leasing, or op-

erating the necessary power dams, pondg plants.

machinery, transmission lines and distribution s‘a-

‘tions, including ali necessary machinery and ap-

paratus for .the manufacture, - - generation, trans-

- mission, sale and distribution of water power and

electric current. The right of eminent domain is

conferred upon said County of Crisp for the pur-

pose of acquiring ‘such sites, locations, overfiow

lands, and rights-of-way necessary for the proper

exercise of the rights conferred by this amend-

ment. Said County of Crispeis fully authorized

hereby to engage inj the manufacture, generation

and sale of water power and electric currerit for

purposes of promoting the agricultural, industrial,

and civic interests of said County and for any and

all other purposes and to make all necessary ccn-

tracts relating to the sale and disposition thereof

including the right to fix the rate or rates tc be

charged for all water power and.electric current

used for” lighting, heating, aggoaid and other pur-

poses in said county . 7

‘ 7

Article I, Section III, Paragraph ! of the Constitution

of the State of Georgia (Section 2-301 Annotated Cede |

-of Georgia) provides: . be

. “Private property shall not be taken, or

damaged, for public _purposes without just and

adequate compensation being first “paid.”

(5) ‘Statement of the Case. ms

The Facts.

The questions above stated arise under the following

facts:

“=

Seaboard Air Line Railroad Compariy, respondent

herein, instituted an action in the United States District

Court for the Middle District of Georgia dgainst Crisp

County, a governmental subdivision of the State of

Georgia, and its governing officials for the recovery of

$54,286.18 representing the alleged cost to the railroad

of repairing erosion to its fill and embankment:serving ,

as an approach to a trestle across the Flint River, it

being alleged by the respondent railroad that the injury. -

to its fill and embankment was due to the ntinuous

wave action and ebbing, and flowing of the baskwater |. -

of-an electric power dam on the Flint River owned end |

operated by Crisp County under a license from the Fed-

eral Power Commission pursuant to the Federal Power

Act. .

It further appeared from_.the allegations of the com- .

plaint that Crisp County constructed the dam in ques-

‘tion sometime between 1925 and .1930 and that as ‘a

8 ; . e

result of the construction of the dam water was hacked

against the respondent railroad’s fill and embankmen:

which served as an approach to a trestle over which

the tracks. of the respondent railroad crossed the Flint

_ River. It was alleged that in 1939 Crisp County and the

‘respondent railroad entered into a contract which. i1

substance, required the county to repair existing dam-

age to the embankment, to install rip rap along ‘he

slope of the embankment, and, finally, insofar as ma-

terial here, required the county to protect the embeuk-

ment against future damage. : :

There is no contention, nor has the respondent at any

time contended that the water level ef the backwater

created by the dam has been increased since the .cun-

tract of 1939. The complaint sought recovery: of the ex-

pense incurred by the reSpondent railroad in-repairing

the erosion to the embankment. *

It was the contention’ of the railroad that the pe-

tition embodying the foregoing facts stated a cause 9f

action (1) under the provisions of the Constitution of

the State of Georgia providing for “just and adequate

compensation” for property taken’ or damaged for public

purposes (Article I, Sec. 3, Paragraph 1 of the Consti-

tution of Georgia of 1945, Sec. 2-301 Georgia Code An-

notated); (2) under Section 10 of the Federal Powe:

Act. (16 U.S.C.A. sec. 803 (c) ) heretofore quoted, and

(3) under the terms of. the contract. |

The petitioners herein filed. a motion to dismiss tho

complaint for. failure to state a claim under Rule .

7 9

of the Federal Rules of Civil Procedure, contending in

connection therewith in substance (1) that when the

-county backed water against the respondent railroad’s

embankment the only right of action which the railrvad

had against the county under the laws of the State of

Georgia was an action to recéve: “just compensation”.

under the Constitution of the State of Georgia; that the -

only damages recoverable’ under. such constitutional

provision was, in effect, for the difference between the

. market value of the embankment before and after ihe

water was backed against the embankment, and the

respondent railroad could not sue the county there-

under for consequential damage in the nature of the

‘cost of repairs to the embankment due to injury brought

‘about by the backwater, and further that the cause of

action for proper damages under the'constitutional pro-_

vision was barred by the statute of limitations; (2) that

the contract sued upon was invalid because the county

thereby incurred a “debt” in violation of Article VII,

Seciion VII, Paragraph 1, of the Constitution of the

State of ‘Georgia (Sec. .2-6001, Annotated Code of

Georgia) and, further, because the county otherwise

had no authority to enter into a contract assuming an

obligation to pay to the ‘respondent railroad damages

in a different amount than it would haxe been liable

for under the “just compensation” provisions. of the

Constitution of the State of Georgia; (3) that Section 10

of the Federal Power Act (16 U.S.C.A., Sec. 803 (c) )

does not-.create a liability against a licensee for dam-

ages which were not recov erable under the laws of the

State of. Georgis.

10

The District Judge rendered ar. opinion in accordante

with petitioner’s contentions and dismissed the cem-

plaint. . :

_ Upon an appeal, the Court of Appeals for the Fifth

Circuit reversed the District Court, holding that the

complaint stated a. cause of action. under Section 10 of

the Federal Power Act and on the contract. In so doing.

the Circuit Court ruled in effect that Section 10 of the

Federal Power Act (16 U.S.C.A., Sec. 803 (c) ) creates

against a licensee under that act, such as Crisp County,

a liability for all damages to: the ‘property of others,

such as the cost of repairs of erosion of the embank-

ment, and this irrespective of whether such damage

would be recoverable: under. rules of law applicable

‘under the laws of the State of. Georgia, and that the

contract by the county recognizing its liability under

the statite for the payment of any damage done to the .

property of the respondent railroad was valid notwith-

standing general rules of law limiting its right to con-

_tract or to create a “debt” as found in the laws of the

State of Georgia. Hence, the piv otal question presented

is whether the Circuit Court was correct in construing

Section 10 of the Federal Power Act (16 US.C.A., Sec.

803 (c) ) as not only preserving to a landowner ali

causes of action which the landowner might have for

damages under the laws of the state, but as also im-

posing upon a licensee an additional and greater lia-

bility for damages than is — by the laws of the

several ‘States.

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e

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Construction of Seetion 10 of the 7 on Power Act.

The decision of the Circuit Court is clearly erroneous.

Decisions cited by the Circuit Court not only fail to

support, but are in principle in conflict_ with its rulings.

In the case of First lowa Hydro-Electric Co-operative vs.

Federal Power Commission, 328 U.S. 152, 66 S. Ct. 906.

90 L. Ed. 1143:-Reh. den. 328 U.S. 897, 66 S. Ct. 1337, 90°

L. Ed. 1647, this court simply held that the Federal!

Power Commission ‘had the authority to grant a license

~fora dam notwithstanding no permit had been obtained

by the licensee from the State of Iowa. The Ceurt

‘pointed out” that ‘the Federal Government's power with

respect to the grant or denial of permission. to construct

a dim was paramount and exclusive and that Congress

did not intend to give a state a veto power on this sub-

ject.

In Georgia Power Company vs. Federal Power Com-

mission (Fifth Cirenit) 152 F. 2d 908, the court simply

ruled that the findings of the Federal Power ‘Commis-

sion upon the question of the navigability of the

streams there involved was supported by the evidence

and affirmed the power of the commission to pass upon

the question of the grant or denial. of a license for a

dam at a point where the stream was pot navigable if

the dam would affect the navigable portion of the

stream.

In Federal Power Commission’ vs. State of Oregon, 349

U.S. 435, 75 S. Ct. 832, 99 L. Ed. 1215, the holding of the

court Was to the effect that the Federal Power Commis- °

12

sion had authority to grant a license for a dam on

reserved land of the United ee.

iy

oo

a

Section: 10 of the Federal Powe Act was hot inv olv ed

in any of the above decisions.

In Henry Ford & Son, ray vs. Little Falls Fiber Com-

pany, 280.US. 369, 50 S. Ct. 140, 74'L. Ed. 483, the

licensee who, pursuant to authority granted .under the

license, had placed flash boards on .a federal’ dam

‘thereby raising the backwater of the dam approx.-

mately two feet, was held liable for damages to the

owner of .a factory whose dam and power facilities

were impaired as a result of the increased water levei.

There. was no claim that the licensee was not hiable fur

Such damage under the state law. On the contrary,

this. court distinctly recognized that the licensee was

responsible for the’ damage claimed’ under the laws: of |

the state. The licensee undertook -to claim that the

right of the damaged party tc have the river flow in

its natural. manner, without obstruction, PSugh recoq-

nized by state law, was subordinate’ to the power of the

Federal. Government exerted by the power commission

through its licensee and therefore that the damage in-

” curred by the property owner was damum absque i:-

juria. Howeyer, this court held that under Section 10

of the Power Act, Coagress did not intend to lend to

‘the licensee the Federal Government's sovereign im-

munity and hence that the injured party could assert

against the licensee any action for damages availeble.

under the state law.

&

13

‘te United States vs. Central Stockholders Corporation

of Vallejo (Ninth Cirguit) 52 F. 2d 322; the facts were

that the Federal Government: undertook to have the .

court declare that its licensee was not liable to a lower

riparian owner, for use of waters of the San Joaquin °

River for power purposes notwithstanding decisions of

the California Supreme Court upholding the right of

a lower owner of riparian lands to annual overflow

of waters of that river. The court pointed out that the

case involved, as did the case.of Ford & Son, Inc. vs.

Little Falls Fiber Company, supra, 280 U.S. 369, 50 S.Ct.

_ 140, 74 L. Ed. 483, an interference by a licensee for. a

private right “recognized by state law” and citing Sec-

tion 10, he'd that a licensee was not exempt under the

Federal‘ Power Act from paying compensation to a

lower riparian owner whose water ree under state

law were interferred with.

‘

In Lavin vs. Philadelphia Electric Pocer Company,

(Deed Pa.) 34 F. 2d. 224, the court held that-the com.

plaint stated no cause of action under Section 10 be-

cause that section applied only to damages arising from

the construction and operation of the dam and the >

generation of electricity therefrom whereas the dam-

ages claimed in the petition related to the power line

distribution system b:: which the generated electricity

was transmitted and delivered. No question was there

presented as to whether damages not recoverable under

State law could be recovered by a property owner

against a licensee by virtue of the, provisions of Section

_ 4

14

Ne

In Great Northern Rw..Co..vs. Washington Electric

Co., 107 Wash. 627, 86 Pa. 2d 208, the railroad sued the ° -

electric company, a licensee under the Federal Power

Act, for damage for the erosion of its fill. The eleciric

company made the point that the railroad’s fill was

‘illegally situated’ in the Columbia River, a navigable

stream; that the railroad had no title or proprietary

interest in the fill so situated as against the United

_ States and that it had no fitle or proprietary interest

therein as against the railroad which was acting as a

licensee’ or agent of the United States government.

The court held that*the railroad had a sufficient prop-

erty interest in the fill to warrant a recovery of* dam-

ages. There was no claim made that the railroad was

not entitled to recover for such damage unf@er the state

law. On the’ contrary, the opinion apparently recug-

nized that such.a right and cause\of action did exist

“under the state law.

The rulings in the foregoing cases that. a licensee

under the Federal Power Act, is not protected under

the license against liability for damage to property

rights recognized under state law do not justify the con-

clusion reached by the Circuit Court here to the affect

that under Section 10 of the Power Act. a licensee, such

as Crisp County, is liable for censequential damages to

property, notwithstanding such licensee wotild not be

liable for such damages under state ldw. On the cor-

trary, under the terms of the Act- (See Section 27, 16

USCA, Section 821) and all of the decisions above cited.

it is clearly recongized that it was the purpose of

@ Congress" to leave in force al] state laws pertaining to

e

Pay

+ ae

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15

property and other rights unless they conflict with the

dominant power of the Federal Government thereunder

to promote the development of power on navigable

streams and their tributaries. The enlargement of the

liability of a licensee under the laws of the several

states with respect to damage to property is in no

. sense essential to the-purpose of that act. If the Fed-

eral Government had not assumed. jurisdiction cver

navigable streams under the Federal Power Act, the

_ construction of dams on such streams would have been

jeft to regulation by the several states and in such

case a licensee would have been responsible only for

such damages that were approprfate under the laws of

the several States. The fact that the Federal Govern-

tment has assumed jurisdiction to grant licenses does.

not argue for the imposition upon a licensee of any

greater liability.

In two State Court Decisions. the Supreme Court of

South Carolina and of Alabam: fave. as is recognized

by th ie Circuit Court in its cpirion, distinctly ruled -

contrary to the ruling made by the Circuit Court. |

See: Rice Hope Planiation xs. South Corolina Public

Service Authority, 216 S. C. 500) 59 SE 2d 132: Alabama

Power Company rs. Smith, 229 Ala. 105, 155 So. 601.

A proper constructicn of Section 10 of the Federal

Power Act requires only that a licensee respond: in

damages for injury tc property in accordance‘with the

laws of the state notwithstanding the grant of the

' licensee to build the dam under the Fedeve)] Power Act.

+

16

_ If the rule adopted by the Circuit Court is established.

then Federal Courts will have to develop a federa!

body of law relating to damages arising ‘as the result

of a federally licensed project and the rules to covern

their recovery. Sound reasoning indicates that. the

word “damages” as used in Section 10 means legally

recoverable “damages” and since there is no federa)}

body of law governing damages, it is reasonable to

conclude that legally recoverable “damages” has rela-

tion to the laws of the state where the project and the

property are located.

The Validity of the Contract

If the position takeh above concerning the proper

_.interpreation of Section 10 of the.Federe] Power Act is

.correct,- the act cannot be sustained, as ‘the Circuit

Court decided, upon that section, as distinguished: fren

- the law of the State of Georgia with respect to the

damag? sued for nor can it be sustained on the contract

on the Circuit Court’s theory that the contract was

valid because it simply recognized contractually the

liability of the County under Section 19.

‘

Under. the Constitution of the State of Georgia. as

shown ‘by the provision above quoted. property (can

not be taken or damaged without just compensation

_ being paid therefor. Where a ‘public authority having

the power of eminent domain takes or damages prop-

erty, the question of damage may be settied by eminent

domain proceedings or, if the taking and damaging is

done without the initiation by such ‘public authority 6°

4

_ —

17

eminent domain proceedings, in an action brought by

the owner against the public authority. In both instances,

the damages and the only damages recoverable as just:

compensation is the market value of the land taken and

damaged. Hence, where land is taken. or damaged b:

a public authority having the’ power of eminent domain.

the law of Georgia permits a recovery only for

permanent. damage to the realty and prohibits. under

al] circumstances, recover against a public authcrity for _

consequential damages such as is involved in the .

present case consisting of cost of repairing crosion to

the respondent railroad’s embankment due tno the

normal wave action of the backwater | |

See: City Council of Augusta rs.-Lamar. 297 Ga. App

418, (140 SE 763); Bibb County vs. Green, 42 Ga. App

552 (156 SE 745); City of Atlanta rs. Due. 42 Ga. Apo

797-804, -(157 SE 256): Georgia Power Company r-

Moore, 47 Ga. App. 411-413, (170 SE 529): Smith rs. Floy¢

County, 85 Ga. 420, (11 SE 850); Howard vs. County oF

Bibb, 127 Ga. 291, (156 SE 745): Georgia Power Company.

rs. Kelly, 182 Ga. 33, (184 SE 861). )

Under the laws of Georgia, a County i. not suable

as for a continuing abatable nuisance:

Bibb County vs. Green, 42 Ga. App. 352 (156 SE 745

e Hence. under the laws of Georgia. Crisp Count’ could

' not have been liable for the conseauential damages here

Ah

While “(e)very. county is a body corporate with

power to sue or be sued in anv court’, 23 Ga. Ann. sec.

18:

1501, this means that a county can “be sued successfully

only -upon liabilities against it created by statute or for

breach of a valid contract which it is authorized by law

to.make. |. ' eee

ae Decatur County v. Praytor &c. Co., 163 Ga. 929 (1927);

Town of Decatur v. Dekalb County, 130 Ga. 929 (1908);

Turner v. Fulton County, 109 Ga. 633, (1900); Hotkan ¥.’

. City of Moultrie, 136 Ga. 561 (1911); Neal vs: Town of

Decatur, 142 Ga. 205 (1914); City Council of Augusta ©.

Richmond Co.; 178 Ga. 400 (1934); Screws. v, City of

Atlanta, 189 Ga. 839 (1940); City Council of Dawson’v..

Dawson Waterworks Co:, 107 Ga. 696 (1899).

Express‘ authority to a county to do a particular thing

will imply authority to employ such means’ as may be

necessary to accomplish the act, Olirer vr. Hall County; ’

Memorial Hospital, 62 Ga. App. 95, but counties ‘can

"exercise no powers except those which are conferred |.

upon them by legislative action, or such as are neces-

sary for the exercise of their .corpofate powers the

performance of their corporate duties. and the per-

‘formance -of the purposes of their association.”

Albany Bottling Company v. Watson, 103 Ga. 503, 595:

Wright v. Floyd. County, 1.Ga. App. 582, 585 11907). .

“There is no general statutory authority in Georgia

which would authorize Crisp County to enter into a

contract, as was here done, under which the County

assumed a liability for the taking and d imaging of

priv ate Property for public purposes bevond the liabili-

} 19 ;

ty provided by the’ Cgnstitution: nor can anything be

found in the Constitutiona! provision hereinbefore

“quoted relating to the establishment by Crisp County

_ of the.power facility in question authorizing the county

to enter“into such contract. Such a contract is not-only

clearly against public policy as held by the: district

court but it establishes a debt prohibited by the Consti-

tutional provisions hereinabove quoted, which debt ad-

mittedly was not incurred in accordance with the pro-.

visions of that section. :

See? City Council of Dawson vu. Dawson Water W orks s

Company, 106 Ga. 696, (32 SE 967».

The Constitutional amendment authorizine Crisp'

County to establish the power facility provided for the

establishment of a bonded debt the proceeds from’

which were to be used for acquiring water power sites

and locations and since the county had the power of

eminent domain, there could have been no. reasonable

necessity for a contract placing the County under a

perpetual obligation to repair the respondent railroad's

embankment such as were involve‘!

The express provisions of the constitutional amend-

ment relating to the power of Crisp County to enter’

into contracts refers to the sale and disposition of

power and, under the foregoing circumstances, the

right to enter into the contract here involved can not be

said to have been reasonably implied in the power of

Crisp County to use the proceeds of the. bonded in-

debtedness there authorized in acquiring property for *

' 20

the dam dnd backwater. The Circuit Court does not

suggest that the judgment “which might be obtained in

‘this case is to be paid oul of the proceeds of-the bonded

indebtedness and the difficulty can not be .surmounted

by the direction, as stated in the Circuit Court's

opinion, that such judgment should be satisfied solely

out of revenues from the operation of the power plant:

The principle as stated in the decision of the Circuit

‘Court that:

“Where a governmental entity is*authorized to,

exercise non-governmental powers and engages in

an activity of a business nature such as is genera'-

ly’ engaged in by individuals or private corporatiors.

it acts as a corporation and not in an¥ sovereign

capacity. In such instance the law ldans to the

theory that the governmental entité has the ful!

power to function in such capacity as a private

person might do,”

is not applicable to counties of the State of, Georgia

avoid v. Walton, 205 Ga. 606. 54 S.E. 24 424.

The contract being invalid, it follows ‘t) that even if

Section 10 of the Federal Power Act imposed upon the

‘county liability for the damages sued for, such liability

would have to be asserted solely under the Federal

Power Act and not.under the contract: (2) ‘that since

Section 10 of the Federal Power Act does rot in fact

make the county liable for damages which it would

not otherwise be liable for under the laws of the state.

the action can not be upheld ‘under the Federal Power

Act, nor can it be upheld under the contract on the

eae

21

theory that it was simply a recognition of a liabiljty

imposed by the Federal Power Act.

For the foregoing reasons, the decision oi the Circuit

‘~ Court of Appeals is erroneous and should be reversed.

While the petition contained no express allegations

showing the basis for federal jurisdiction in the lower

court, it might be properly construed as being based

upon diversity of citizenship and as 2n action to enforce

a liability under a federal statute.

The decision of the Circuit Court involves matters o

public importance in that such decision constitutes an

f errgnéous interpretation of an important federa! statute.

namely, the Federal Power Act. whieh in view of in-

- creased develodpment of public power

and. governmental agencies. is ef widespread signifi-_

cance; the decision is contrary in.rinciple to decisions

of this court and other Circuit Courts cf Appeal, and it

impinges upon state laws regulating property rights and

damages with referénce to public improvements by in-

strumentalities of the state having the power cf eminent,

domain. |

vy both private

22

Conclusion.

It is therefore respectfulty submitted that this case

is one calling for the exercise by .this court of its.

supervisory powers, by granting a Writ of Certiorari

and thereafter’reviewing and reversing said decision.

H. H. PERRY, JR. 3

Albany, Georgia,

(GRAYDON REDDICK and. GEORGE

WRIGHT, Wright & Reddick.

Cordele, Georgia, on the Petition

Counsel for Petitioner.

.

~ .

; ‘

‘ .

23

; _ APPENDIX.

IN THE

“WNITED STATES. COURT OF APPEALS

FOR THE FIFTH CIRCUIT |

No. 18171 ; '

SEABOARD AIR LINE RAILROAD COMPANY,

- Appellant,

versus

COUNTY OF CRISP OF THE STATE OF en

ET AL.;

Appellees.

Appeal from the United States District Court for the

. Middle District of Geergia.

‘ (July 12, 1960.)

Before TUTTLE, CAMERON and JONES, Circuit Judges

JONES, Circuit Judge: Crisp County, Georgia, herein

called the County, was empowered by an amendment to

the Constitution of Georgia' to build a dam across the

Flint River; and to erect and operate a hydro-electric

generating plant at a site upon the river specified in

. Georgia 1 Laws 1925, p. TA et seq. °

24

‘ ¢ the constitutional provision. A crisp County Power

Commission was created, a bond issue was authorized,

and the Commission was empowered by the consti-

tutional provisions to acquire rights of way for trans-’

mission linés,and for the purpose of building, main-

‘taining and operating dams, ponds, plants and ma-

chinery. The Power Commission was “authorized, and

empowered to employ such agents, servants, and em-

ployees, and to make and enter into such contracts as

are reasonable and proper in the exercise of the duties

and powers herein conferred upon said Commission.”

-

The Flint River, at the site where the dam and

generating plant were built, is a navigable stream. The

County was required under the Federal Power Act to

procure a license. See 16 U.S.C.A. §§ 19la et seq. The.

statute, among other things, provides: :

“Each licensee hereunder shall be liable for

all damages occasioned to the property of

others by the construction maintenance, or op-

eration of the project works or of the works

appurtenant or accessory thereto, constructed

- under the license, and in no event shal! the

United States be liable therefor.” 16 U.S.C.A.

$ 803(c). .

The dam and hydro-electric plant was built during or

before: 1930. Since the completion of. the dam and

power plant, the County has been generating and

marketing electric power. ° .

The appellant, Seaboard Air Line Railroad saunad,

and its predecessors, operated a line of railroad in

interstate commerce bétween Savannah, Georgia, and -

Montgomery,’ Alabama. This line of rail had been in

operation for many years before the County's dam was

| built. The Seaboard’s tracks crossed the Fiat River”

.

about eight miles upstream from the site of the dam.,

by a fill or embankment and a trestie or bridge. The

building of the dam and the consequent raising of the

water level damaged the embankment ot the Seaboard

over which its track; were laid. In 1939 a written

ugreement was made between the Receivers. of the

Seaboard’s then predecessor anc the County. In the

-preambie to this contract it w as recited that “the pool

of water impounded by the said dam eXtends to and

beyond the said ‘line’ of railroad crossing Fi:nt River

and has submerged a portion of the embankment .¢gnsti- _

tuting part of said railroad line, and the - ufmergence

of the said railroad embankment bs .he aforesaid poo!

of water has occasioned injury to the said embank-

ment; and the parties hereto have agrced on the terms

and conditions pursuant to which said injury shail be

repaired and. future ‘injury protected against” = In-

cluded in the agreement. and’stating the terms and con-

ditions for protecting the Seaboard’s.ersbankiment fror

further iftjury, was Section 3, which provided

“Should the normal hich water leve’ of the.

said pool of water be raised by the County or:

sheuld any chahke :n xi. sting cona.tiors re-

quire, whether due to increase in the herght or

other structural changes in the dais. filure ef

the rip-rap to he installed hereunder Droperl:

o protect the said embankment from injury.

or otherwise, County vil! at its exper-e take

2

%

tea Pe,

5 ee ee .

es m r

such action as may be ne¢essary to protect said

railroad embankment from injury.”

4

By its terms the agreement inured to the benefit of the

successors of the then railroad company and its Re-

c€ivers.

On January 29, 1957, the Seaboard gave notice to the

County that the embankment was in a bad state of re-

pair and had beén seriously damaged by being under-

mined by water impounded by the dam. Seaboard made

demand upon the County to protect the embankment

The County refused to repair the embankment. On—

June 28, 1958, the Seaboard brought stiit against the

County alleging that the Seaboard had made repairs to

the embankment at a cost of $54,286.18 for which :t

prayed judgment. The Seaboard -asserted that the

County was _ liable ‘both under the agreement and by

reason of the provisions of ‘the Federal Statute under,

‘which the Federal Power Commissicn granted a license

‘a9 the County. In its answer the County denied some

.f the Seaboard’s factual averments but admitted that

t had refused ‘to make repairs on the embankment

The County asserted that the Seaboard’s complaint |

failed to state a claim upon which relief could” be

cranted; and specifically alleged that the contract’ wes

ultra vires and unenforceable so far. as the County is

concerned, that the Federal Statute imposed no liability

on the County. and if it undertook to do so it would be

unconstitutional and void, and that the cause of action

of the Seaboard, if any it had. was in eminent domain

for damage resulting from a taking when the dam wae:

q

¢

27

built, but ‘that any such claim had long since itis

barred by limitations. - . *

The district court held with the County. F was of

the opinion that the Federal Power Act imposed no

liability on the County: for injuries inflicted upon the

property of others by the County’s operations. The

court held that, under the Georgia Constitution and the

decisions construing it, there was no authorization for

the County to enter into the contract with the Seaboard,

and that the County was prohibited from assuming the

obligations which it had undertaken by its contract to

discharge. The complaint was dismssed, judgment was

entered for the County, and the Seaboard has. appealed.

We think the district court has misconceived the meaiy-

ing and purpose of the provision of the Federal Power

Act which provided for liability of Jicensees for damage

- to property of others, although its conclusion that the

liability imposed relates only to legal liabilities already

existing has‘support in two state court decisions. Rice

flope Plantation rv. South Carolina Public Se--cice Au-

thority,.216 S. C. 500, 59S. E. 2d 132: Alabama Powér Co.

v. Smith, 229 Ala. 105, 155 So. 601. If the County had not

_ obtained a license from the Federal Power Commission

it would have had no right to build the dam and con-

Struct the generating plant. Federal Power Commission

v. Oregon, 349 U. S. 435, 75 S. Ct. 832, 991... Ed. 1215; First

Iowa Hydro-Electric Cooperative :. Federal Power Com-

mission, 328 U. S. 152, 66 S. Ct. 906, 90 L. Ed. 1143, reh.

den. 328 U. S. 897, 66 S. Ct. 1337. 90 L. Ed. 1647: Georgia

Power Co. v. Federal Power Commissiox, sth Cir. 1946.

152 FF. 2d 908. The license is conditioned upon the ac-

28

ceptarice of the terms of the Act.. 16 USCA. $ 799. It

scems to us unlikely that the Congress intended by the

language it used to do no more than to disclaim liability

on the part of the United States for the acts of the

licensee. When the Federa\ Power Act wes passed in

1920, sovereign ifmmunity from suit would have proctect-

ed the United States from any liability. Cf. Phi'1delphia

Co. v. Stimson, 223 U.S. 605, 32 S. Ct. 340, 56 L. Ed. 570.

The waiver of ‘the Federal, Tort Claims Act did not be-

come effective until many years later. The control of the

‘United States over navigable streams empowers Con-

“ress: to condition the licenses in any manner it deems

proper: No impropriety can‘be inferred from a require-

ment that a licensee protect the property’ of others.

That this.requirement was imposed by the Act as a.con-

dition of a license has been recognized by the Supreme

Court. Henry Ford & Son, Inc. r. Little Falls Fiber Co..

280 U. S. 369, 50 S. Ct. 140, 74 L. Ed. 483. Seé& alsa Grand

River Dam Authority v. Federal Power-Commissio?.

10th Cir. 1957, 246 F. 2d 453; United States v. Central

Stockholders Corp., 9th Cir. 1931, 52 F. 2d 322; Levin r

Philadelplria Electric Power Co., D. C. E.D.Pa. 1929, 34°

F. 2d 224. In the year 1939, the same vear that the -

County made its contract with the Seaboard to protect

‘the embankment from injury, the Supreme Court of

Washington held that, under the provision of the Fed-

eral Power Act, a licensee whichSerected a’ dam was

liable to a railroad for damages to\an embankment.

Great Northern Railway Co. r. Washington Electric Co.

107 Wash. 627, 86 Pac. 2d 208. We are unable to reach .

any ‘different conclusion. . :

een

29

The district court decided that the provision of the

Federal Power Act, 16 U.S.C.A. ; 803(c), imposing lia-

bility upon licensees for damage to the. property of

others means. merely that if legal liability exists it shall '

be the liability of the licensee and: not that of the Fed:

eral Government. The district court concluded that,

under the precedent of Bibb County v. Green, 42 Ga.

App. 552, 156 S.E. 745, the Seaboard was barred from

recovery by limitations upon the expiration of twelve

months from the completion of the dam. In the Bibb

County case it was said that the right to compensation:

for injury to private property inflicted by a. county

exists, under the Georgia Constitution, only where the.

enjoyment of a right of the property owner is inter-

fered with and the property is thereby- rendered less

valuable. The doctrine of soyereign immunity was con-

Strued as prohibiting . suits against counties for con-

tinuing or recurring injuries resulting from the con-

structing of a public improvement.

It is not asserted that the right of ‘the Seaboard to

qwn ane use-the embankment for the carrying of its

rail over which its trains operate was not a right which

_ Was recognized by the laws of Georgia. It is. though,

contended, and the district court*so held, that the right

is one which could be protected. if at all, by eminent

domain. It*is not apparent whether the extent of the

future damage could have been estimated at the time

the dam was built. ‘Indeed, it may be doubted that it

was contemplated by either the Seaboard er the County

that the raising of the water level by the dam would

30

cause damage tothe dam. Eight years or more elapsed

after the dam was completed before the contract was

made for the repair of the embankment. In that agree-

ment it was recognized that the damage might recur.

Also in the agreement was the recognition of the lia-.

bility of the ‘County for the protection of the embank-

ment from. future injury. ‘It seems doubtful, under the

circumstances existing when the dam w as built and for |

two vears thereafter, that the power of eminent domain

could have been invoked by the County for the acqui-

sition of the rigit to undermine the Seaboard's embank-

ment in-the futur¢ and at recurring intervals. Cf. Henry

‘Ford & Son v. Little Falls. Fibre Co., supra.

The County did not ebisiinat to acquire i eminent do-

main the right to inflict damage upon the embankment

and to continue inflicting damage from time to time

Neither did the Seaboard seek any remedy having its

origin ina taking of or damage to property such as

right have been made the basis for a condemnation

award. But whether or not the right of eminent domain

might have been invoked, it does not follow that the

County can, for that reason, evade the liability that the

statute imposes for the damage to the Railroad’s em-

bankment. If it had been intended ‘that this liability

_ could be asserted only by a proceeding in eminert

domain the statutory provisions would have been cast

in different form. It is apparent, we think, that in pro-

viding for liability of a licensee for all damages oc-

casioned by the maintenance or operation of the proj-

ect works, as well as by construction, Congress contem-

plated damage inflicted after as well as at the time

31

of the construction. The Seaboard’s right was not. re-

stricted to an award in eminent domain.

Where a “governmental entity is ; authorized to exer-

cise non-governmental powers and engages in an ac-

. tivity of a business nature such as is Generally engaged

- in by individuals or private corporations, it acts as a

corporation and not in any soavereign capacity. In such

instances the law leans to the theory that the govern- ~

. mental entity has the full: power to function in such ca-

. pacity as a private person might do. 37 Am. Jur. 748,

Municipal Corporations § 132; Miami Beach Airline

Service v. Crandon, 159 Fla. 504, 32 So. 2d 153, 172

A.L.R. 1425. — | .

As was stressed in the opinion of the district ¢ourt,

it is the general rule in Georgia ‘that counties can

exercise no powers except those: ‘granted to them by the

State, and can be held liabie upon their contracts only

when the State has. authorized the incurring of the

liability which is asserted ‘against them. Crisp County,

like other Georgia Counties, is a body corporate under

the Georgia law. Ga. Code § 23-1501. It is expressly

authorized by a constitutional grant of power to build

and maintain a dam and to construct and operate a-

hydro-electric generating plant. It has built the dam--

and has constructed the plant. It is now maintain: ng and -.

operating them. Incident to these specific non-govern-

mental powers, the constitutional amendment gave, in

broad and comprehensive terms, the power to contract.

The general limitations upon the contractual powers of

counties as contained in the gereral provisions of the

‘32

State Constitution must yield to the specific Crisp

County amendment to such extent as may be required

in order to give full effect to the grant of power to

make and enter into such contracts as are reasonable

‘and proper in exercise of the duties and powers cén-

ferred upon the County. See Stewart v. Bacon County,

148. Ga. 105, 95 S.E. 983.

The statute imposed a liability upon the County for

‘damage ‘to the Seaboard’s embankment. In recognition

of that liability the County made the 1939 agreement for

* the repairing’then of the embankment, which was done.

‘and for the future protection of the embankment, which

it refuses to do. The operation of the hvdro-electric.

plant is a business operation. It is separate from the

rormal governmental funetions. of the County. The

power of the County to make ‘ontracts, implied by law

as well as conferred by the constttutional amendmen.

is full authorization for the contract mede in the ;

sumption of the duty as ifmposed by the federal sta

See Crisp County v. S. J. Groves &* Sons Co., St

1934, 73 F. 2d 327, 96 A.L.R. 391. The order of t

trict court must be reversed: and the cause remanded

for further proceedings.

In the event 2 judgment is ultimately rendered tor

the Seuboard, it’seems that it should not be discharged

out of the genera!-tax revenues of the County. Po)!

County v. Lincoln National Life Insurance Co., 5th Cir

-1959, 262 F. 2d 486. However, the revenues of the

hydro-electric plant can be made available for such

purpose. Cf. Crisp County v. S. J. Groves & Sons Co.,

supra, | .

°

- 33 +

‘Our holding here does not in any wa conflict arith:

the decision in Seaboard Air Line Railroad Co > Sare-

sota-Fruitville Drainage District, 5th Cir 1952, 251 F

583, reversed on —- 255 F. 2d 622, cert. den 3

U. S. 836, 79 S. Ct. 60, 3 L. Ed. 2d 73. Seaboard Air Line

Railroad Co: v. Sarcsota-Fruitrille Dramege Distroes.

Sth Cir 1958, 255 F. 2d 626.,In that case the statute cre. .

ating the drainage district prohibited the district: from

expending its tax revenues except for improvement anc

maintenance of the drainage district. Since the distric’

had no other source of funds, it could. not be compeile«

to respond in damages for tort, nor could it make 4

valid agreement to indemnify against tort liabili tv. Here

the County was under a duty imposed by the Federa

Power Act to protect the Sedboard’s property, and thus

the Act created a tort liability.

In

30

The order of the district court, Is reversed and the

cause 1s remanded.

| , REVERSED AND REMANDED:

A true copy

Test: ; oF

+ EDWARD W. WADSWORTIi?.

Clerk, U. S. Court of Anpeal;

Fifth Circuit.

By CLARA R. SES.

; Deputy.

New Orleans, Louisiana. Nov. 25. 1969

34

JUDGMENT.

Extract from the Minutes’ of July 12, 1960.

No. 18171,

SEABOARD AIR LINE RAILROAD COMPANY,

‘ e.

versus

COUNTY OF CRISP OF THE STATE OF GSCGnA.

ET AL.

This cause came on to be heard on the transcript of

che record from the United States District Court for the

‘Middle District of Georgia, and was argued by counsel.

_ ON CONSIDERATION WHEREOF, Ii is now here

ordered and adjudged by this Court that the order of

the said District Court appealed from in this cause be

und the same is hereby, reversed: and that this cause

be. and it is hereby, remanded to the said District

Court for further proceedings:

, It is further ordered and adjudged that the eppellees.

County of Crisp of the State of Georgia. and others. be

condemned, in solido, to pay the costs of this cause

in this Court for which executior. may: be issued out of

the said District Court.

ees

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

No. 18171.

e

SEABOARD AIR LINE RAILROAD COMPANY,

Appellant,

}

i

versus

cou NTY OF cRIsP OF THE STATE OF GEORGIA.

os | ET AL.

re eee emer a

Appeal from‘ the United States District Court for the

Middle District of Georgia. -

. | Septerhber 1, 1969 -

Before TUTTLE, CAMERON and JONES. Cireust Judes

. PER CURIAM.

IT IS ORDERED That the petition for rehear: Ingen the

‘above entitled and numbered cause be. and it is hereb~

DENIED.

_

: EF COPY | aa a ee Court. U.S,

=. rFil-FD

CLS 295

Supreme Court al the United States

DaMes

_ OCTOBER TERM, 1960. - . BROWNS Clerk

~

" : | ane ”

No. DD %

cou NTY OF CRISP OF THE STATE OF GEORGIA.

ET AL..,

Petitioners,

versus

SEABOARD AIR LINE RAILROAD COMPANY,

Respondent. |

.

ee

. Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit. |

BRIEF ON BEHALF OF SEABOARD AIR LINE

RAILROAD COMPANY, RESPONDENT.

JC. McDONALD.

P ©. Address:

PO Box 408,

Fitveerald., Georgia

* CHARLES T. ABELES

Attorneys for Respondent

P ©. Addréss: ,

S600 West Broad Street.

Richmond. Virginia

INDEX.

STATEMENT OF THE CASE-.......... on

1) Jurisdictional Matters ..... SaAbnnaesveoess

2) Questions Presented. for Review

ARGUMENT:

Ce Ge I a os oe ot cg nesvise

(2) Liabrhty of County Under Federa! Power Act

(3) Liabthty Under Georgia Constit .ion and

Reme ..... cae eas fh TH . eiaevahecnees

CONCLUSION 2... .......

CASES CITED.

Atlanta Terra Cotta Co. v. Ga. Ry. & Elec. Co, 132

Ga. 537, (64 S. mm SOB) ...-----:.

Barfield v. Macon County, 49 Ga. ap 239, 175 S.

: ER eb S oak aad iy SOU RE ea ees Oe owe oe ah

Bates v. Madison County, 32 Ga. App. 370, -( 123 S.

9 EN eee ee Of pap ae

Central Georzia Power Company ‘v. Butts County,

139 Ga. 490, (77 S. E.-380° ............ Ae

Central Georgia Power Co. v. Mays, 127 Ga. 120, (72

ge ee ee nee

Decatur Ceuntv v. Prawtor, Howton & Wood Con-

tractin¢ Company, 163 Ga. 929. (137 S. E. 247)

Elberton Southern Railway Company v. State High-

wav Department of Georgia, 211 Ga. 838, (89

S.E. 2d 645) ....... PP ary be ee Ree Ce OE

14

15

14

14

rs U

CASES CITED—(Continued)

Federal Power Commission vy. Oregon, 349 U. S. 435,

73 S.Ct. 832, 99 L. Ed. 1215 ........

Felton Farm Co. y. Macon County, 49 Ga. “App 239.

Coo. 4 ene

First Iowa _Hydro- Electric Cooperative’ v. ‘Federal

Power Commission, 328 U. S. 152, 66 S. Ct. 906:

Se ORO ote en pee a ee

Georgia Power Co. v. Federal — er Commission, 5th

. Cir. 1946, 158 F. 2d 908 ....... ferry: |

Grand River Dam Authority v. Federal Bower,;Com-

" mission, 10th Cir. 1957, 246 F. 2d 453. *

Great Northern Railway Co. v. Washington Electric

Co., 107 Wash. 627 (86 P. 2¢ 208) ..........

Gwinnett Courty v. Allen, 56 Ga. App. 753, (194 S

FE. 38) Ren

‘Henry Ford & Son’ Ine. x. Little Falls Fiber Co, 280)

U. S. 369, 50 S. Ct. 140, 74° L. Ed. 483 |.

Lavne & Bowler Corp. v. Western Well Workeri, Inc.

261 U. S. 387, 67 L. Ed. 712, 43S. Ct. 422 ...

Levin v. Philadeiphia neo Power .Cc., D.C. E.D

Pa. 1929, 34 F. 2d 2 a

Lynch, et al. v. a eal et al., 188 Ga. 651, a

S. E. 2d 3 OE apy

McArthur, et - \. State ‘Highway Department. 85

Ga. App. 500, (69 S. _* & -eeteee

McCrea v. Georgia Power Co., 46 Ga. App. 276 (167

ec Ao a te ct Uy, ee

Miami Beach Airline Setiice v. Crandon, 159 Fla

$04, (32 So. 2d 153) .......... i

Oliver v. Hall County Memorial Hospital, 62 Ga “App

Ff 5 S & Errno

Page

12

14

~-

~

4

Rice v. Sioux City Memoria! Park Cemetery, U. S

Towa 1955, 75 S. Ct. 614, 349 U.S. 70, 99 L. Ed

897 . 7

a)

ul

CASES CITED—(Continued)

FN _ Page

. Smith v. Flovd County, 85 Ga. 420 (11'S. E. 850)... 8,14

Testa v. Katt, 330 US. 386, 67 S. Ct. 810, 91 L. Ed.

967 | Se POR e Pe ye EE ee ee 13

United States v: + Carel Stockholders Cots. 9th Cir.

| 9031, 82 F. 2d 322 2... cece ee ee ae

Was ningion County v. Sheppard. 46 Ga. bias 240

‘167 'S. E. 339)... 7

Willams y. State Highway Board of Georgia, 195 Ga. ana

18. (22S, E. 24 #21) Ee Peet ek ert eae 8

» Wright v. Flovd County. 1 Ga. App. S82, (S8S.E.72) °§7

STATUTORY CITATIONS. |

Section 10 of the Federal Power Act {16 U.S.C.A.°

° Sec. 803 (c)} 22... eee Ft

Georgia Laws 1925 (pp. 272 ¢ et seq.)_ Sh Peeters a

‘Georgia Laws 1894 (p. 95) ......... Pe vaes sa wee ye

Georgia Code Annotated, Sec. 36-301 ............., 6

Georgia Code Annotated; Sec. 36-302 ....._.. Tere 6

Georgia Code Annotated, _. Oe ok oss Corde 14

Foe ees (Pay tess Dateien rie eee

* SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1960.

o3 COUNTY OF CRISP OF THE STATE OF GEORGIA,

ET AL.,

Petitioners,

versus

. SEABOARD AIR LINE RAILROAD COMPANY,

Respuudent.

«

——_————

Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth-Circuit. -

BRIEF ON BEHALF OF, SEABOARD AIR LINE

RAILROAD COMPANY. RESPONDENT.

I.

The petitioners in their brief have succinctly stated”

. the questions to be decided in this case and have correct-

ly set out the opinion of the Fifth Circuit Court of

Appeals. and the applicable law as well as statement

of the case, and we shall address our reply to the

2

_ propositions which are argued in the brief of peti-| ©

_ tioners. |

At the outset we think that the decisicn of the

Fifth Circuit Court of Appeals. stated clearly the law

involved in this case and that said decision is em-

inently correct. ms

<a

While we recognize that the granting of a writ of

certiorari is a matter of sound judicial discretion, we

submit that the present petition does not come within

the purview of Rule 19 of the Supreme Court Rules,

and this court has held that certiorari should not be

granted except in cases involving ‘principles, the settle-

ment of which is of importance to the public, as dis-

tinguished from that of parties, and in cases. where

there is a real and embarrassing conflict of opinion

~ and “authority between the circuit courts of appeal. .

_ Rice v. Sioux City Memorial Park Cemetery, U.. S.

Iowa 1955;°75 S. Ct. 614, 349 U. S. 70, 99 L. Ed. 89%.

Layne & Bowter Corp. v. Western Well Works Inc., 261.

U. S. 387, 393,.67 L. Ed. 712, 714, 43 S. Ct. 422.

Petitioners on page 21 of their, brief state:

“The decision of the circuit court involves mat-

ters of public importance in that such decision

constitutes an erroneous interpretation of an ini-

portant federal statute, namely. the Federal Power

Act.» which, in view .of: increased development

of public power by both private and governmental

agencies, is of widespread significance; the deci-

ane 3

sion is contrary in principle to. decisions of this

‘court and other circuit courts of appeal, and it.

impinges upon state laws re-regulating property

' rights and damages with reference to public im-

provements by instrumentalities of the state havi ing

the. power of eminent domain.”

However, from reading the petition and the brief

‘in supporf thereof, we submit this statement is not

substantiated, as is apparent from reading the citations

set out in the bri ef, and the opinion of the Fifth

Circuit Court of Appeals. :

iil.

| There are really three questions involved in, this

case.

1. The validity of, the contract between Crisp

County, Georgia, acting through its power commission,

and. the Seaboard Air Line Railroad ial it +?

2. What liability exists’ under Section 10 of the

Federal Power Act. as contained | in 16 US.C.A. Sec-

tPon 803 (c).

a. "Liability under the Georgia constitution -and

_laws. ae ‘ ya

; IV. i

THE CONTRACT IN THIS CASE IS VALID.

By amendment to the constitution of the State of .

Georgia, Crisp County, through its power commission®

4

_ was given among other powers the right to make and

enter into such contracts aS are reasonable and proper

in the exercise of the duties and ‘powers conferred

upon said commission. See Georgia law 1925, pp. 272.

ét.seg. Thus, it will be seen that Crisp County stands

on a different footing from other counties in Georgia,

in that it is the only county in Georgia which has

the right to operate. a hydro-electric power . plant,

and this authority was given to it under an ‘amend-

ment to the cunstitution of the State of Georgia. If

it had not been for the cdhistitutional amendment,

Crisp County wou'd not be in the power | business, but

_ having been given authority to ‘engage in the: genera-

- tion of hydro-electric power, and having been given

authority to make all contracts necessary to carry

out such powers. it is reasonable to say that the

county through its power commission was given au-

thority to make the contract in question.

The railroad company had been crossing the Flint

River for many years prior to the time the dam was

built therein by Cri sp County and its commission, an‘

in order to lawfully engage in the manufacture, sale

and distribution. cf hydro-electric energy, two things »

had to be done by Crisp County. First, a constitutional!

amendment to the constitution of Georgia had to be -

obtained, pertiitting the dam and power plant to be

built and secc..d, a license had to be procured from

the Federal Pov.er Commission to erect and maintain

a dam in the Flint River. the same being a navigable

stream... ,

5

After tne dam. was built, it became apparent to all

the parties that the high water caused by the dam in

Saic river was going to have an adverse effect upon

the trestle and embankment of the railroad.

It was Well known that the railroad, which is a

gu&Si puble corporation, would be forced to operate

tS raurocad across the Flint River, and it could not

ceuse Go.ng so even if it so desire?. unless authority

Was given by the triterstate Commerce Commission

tor tie Seaboard to abandon the operation of said

a wae

rauroac across the said river.

‘Certa.niy, no one would vontend ‘that merely be-

cause Crisp County was getting the authority to build

a Gam that it would have the right to destroy the

trestie ena embankment of the railroad.

The Sapreme Court of Georgia recognizes this’ fact

ind heic that where the condemnor is the one exer-

Gs.nl & *celecated power of-eminent domain. the rule

vs strscy construction is applied in determining whether

there has been conferred eats the condemnor the

express cr iniplied authority to. divert property al-

ready devo oted to public use to a new and different

public use. Elberton Southern Railway Company r.

State Highway Department of Georgia, 211 Ga. 838,

&9 SE. 2d. 645). See also: 29 C.I.S., Sec 80. pp. 872

The parties to this action recognized the mutual

mehts ‘of each other and attempted to settle the same

by contract rather- than” by litigation. The Georgia

Code recognizing that this should be. done, provides

“All corporations or persons authorized to take

or damage private property for public. purposes

shall proceed as herein set forth’ (Acts 1894. p

a Section 96-301, Georgie Code ‘Annotated.

Then the code states:

“If said corporation 15 Or persons cannot by. con-

tract procure the land, easement, right of way.

waterway, franchise, or other interest or propert,

useful, needful, and necessary for public purposes.

and authorized by law to be taken or damaged.

said corporation or person may take or damage

said property, upon paying or tendering to the

owner thereof just and adequate compensation

for the land, franchise, or other interest or prop-

erty to be taken or used. ‘Acts 1894, p95)”.

Section 56-502, Georgia Code- Annotated:

Thus, it will be seen that the Georgia law provide>

that these matters shou!d be settled by agreement :f

possible. |

The Court of Appeals of Georgia which ordinarily

is a court of equa! authority with the Supreme Court

of Georgia in its particular sphere, has held that ex-

press authority to a county board to do a particular

thing will imply authority to employ such means an‘

agencies as may be necessary to accémplish the act

| Olirer r. Hal! County Memorial Hospital, 62 Ga App

95 (1940). 1° SE. 24. 138

7

One of the leading Georgia cases on the ‘question

of a county's powers is that of Wright v.° Floyd

County, | Ga. App. 582 (58 S.E. 72). This decision is

very exhanstive and: discusses rather fully the rights

of counties in Georgia to make contracts. Another

case dealing with the authority of the counties ‘in

Georgia to enter into a contract is that of Washington

County r. Sheppard, 46 Ga. App. 240 (1933), (167 SE.

* 3:39). .

The Supreme Court of Georgia has heid.

“A written contract duly entered on the minutes

of the county board, between the commissioners

of roads and revenues ofa county and a power

company intending to use water to be contained

a large reservoir as its. source of power, that _

if the county will suffer the flooding of a certain

road, the power company will make the necessary

changes of location and erect the necessary

bridges, ail ut its own expense, before the reser-

voip is filled, is an enfogceable contract: and if

for any cause specific performance of it is im-

possible, damages for its breach may be recovered.

“la: The written application by the power com-

pany, its acceptance’ uy the proper county au-

thorities, and the entry of beth on the minutes.

are sufficient to constitute a contract." Central

Georgia Power Company ~. Butts County, 129

Ga. 499, \77 S.E. 380

The law in Georgia 1s that a counts*:s liable for

the breach of a valid authorized contract, notwith-

-tanding the fact no Statute express!+ suthorizes the

. .

8

same. Decatur County v. Praytor, Howton & Woo

Contracting Company, 163 Ga. 929, (137 S.E.247). See

ulso: Lynch .et al. v. Harris County, et al., 188 -Ga.

651, (4 SE. 2d°573). |

The Supreme Court of Georgia, in an early case,

held that where ‘a county has damaged private prop-

erty by constructing an embankment and trestle as

an approach to a public bridge the county would be

able to the owner for such damages although there .

Was no statute authorizing such action based on the

ground that the constitution declares that . private

property shall not’ be taken or damaged for public

purposes without just and adequate compensation be-

ing first paid. Smith v. Floyd County, 85 Ga. 420. (11

S.E. 850). , %

The Court of Appeals of. Georgia in the case of

McArthur, et al. v. State Highway Department,. 85 Ga.

App./500, 169 S.F. 2d 781) expressly héld that conse-

quential damages to property caused by the negligent

proper construction of the improvement are not

proper cOnsideration’in a condemnation proceeding but

ure the subject for a separate suit for damages, citing

the following cases: Atlanta Terra Cotta Co. v. Ga.’

Ry. & Elec. Co.: 132 Ga. 537 (5) (64.S.E. 563); Centra!

Georgia Puwer Co. v. Mays, 137 Ga. 129.14) (72 SE

900i: McCrea’ r. Ga. Power Co., 46 Ga. App. 276 (3)

167 SE. 540:: 29 C.J.S. 1029. Sec. 161... -

_ This is followed-up in the case ‘of Williams rv. State

Highweay PRoard of Georgia, 195 Gu. 18 (22 S.E.: 2d

.

621), which held where a petition sought consequential

damages against a county resulting from the manner. -

in which a highway was constructed stated a cause

of action and certainly, this would answer any con-

tention that suit could not be brought for Gamages

against the*County of Crisp.

/

p

it is to be semembered that Crisp County was given

the right to operate a hydro-electric generating piant

and was given full authority to make all contracts

necessary to Carry on this business. The Fifth Circuit

Court of Appeals has very succinctly stated the real

trend of mouern law, quoting from the opinion as

follows: ae

.

"Where ‘a bese iceomten entity is authorized to

P ‘€NOreise non-lovernmental powers and engages

im” cn sstivity of a ‘business nature such as is:

generail. engaged in by individuals or private cor-

poratiors. it actS as a cprporation and not in any

sovereign eapacity. In ‘such instances the law

ieang t) the theory that the governmental entity

has‘the Dl power to function in sych capacity as

a pYivate rerson might do. 37 Am. Jur. 748, Mu-

nicipa: Corporations Sec. 132: Miami Beach Air-

line Service v. Crandon, 159 Fla. 504, 32 So. 2d 153,

172 ALR. 5. :

The quest.cns in this ‘case ‘could fot have been de:

termined ty eminent domain. According to ‘the con-

-fentions oz ine petitioners herein, the County of Crisp,

cting through the’ power commission, should have

ates the right to destroy the Seaboard trestle and

embankment Sy eminent domain. It is yéry doubtful

10

that any court,would have permitted this to have been _

done. It is doubtful if the Seabeard suffered any dam- :

age at the time the dam was originally built. Can

it be truthfully said that, because the Seaboard would

not have suffered any damages at the time the dam

was built, 1t would be forever barred from asserting

any claim for damages Which may have occurred at

a subsequent date? The parties in this case simply

did what ordinary people would do. and that is to

attempt to settle their .differences by contract. The

parties dealt at arm’s length and both fully understood

their respective obligations, and we respectfully sub-

mit that the contract in question is not ultra vires, but

it was a binding, enforceable agreement and that the

Fifth Circuit Court of Appeals Was correct: in’ so

finding.

Vv.

THE SEABOARD. HAD RIGHTS UNDER SECTION 10

OF THE FEDERAL POWER ACT, AS FOUND IN

16 U.S.C.A. SECTION 803 (¢).

This succinctly states:

“Each licensee he+2under shal! be® liable.

for all damages occasioned to the property of

others by the construction. maintenance, or ceper-

ation of the project works. or of the works ap-

rurtenant or accessory thereto. constructed under

the license”

It is our contention that the law of Georgia protected

the Seaboard in its right-of-way. trestle and embank-

ll

ment across the Flint River and that when this was’

damaged, owing to the construction,- maintenance and

operation of the dam built by Crisp County in the Flint

River, that it became liable for all damages to. the

‘Seaboard.

All the decisions cited by petitioners in their brief.

hold that under the Section 10 of the. Federal Power

Act the licensee is liable for any damages due to the

construction, maintenance and operation of the proij-

ect works.

The Fifth Circuit Court of Appeals did not predicate

its decision solely on the liability under Section 10

of the Federal Power Act. The court in its cpinion

stated as follows:

“It is not pein that the right of the —

board ‘to own and use the embankment for the

carrying of its rail over which its trains operate

Was not a right which was recognized by the laws

of Georgia. It is, though, contended. and the

district court so held, that.the right is oné which

could: be protected, if at all, by eminent domain.

‘It is not apparent whether the extent of the future

damage could have been estimated at the time

the dam was built.~Indeed, it may be doubted

that it was contemplated by either the Seaboard

or the County that the raising of the water® level

by the dam would cause damage to the dam.

Eight years or more elapsed after the dam was —

completed before the contract was made for the

repair of the embankment. In that agreement it |

was recognized that the damage might recur.

12

te

Also in the agreement was the recognition’ of the

liability of the county for the protection of the

embankmenj from future injury. It seems doubt:

ful, under the circumstances existing when the

dam was built and for two-years thereafter, that

the power of eminent.domain could have -been

invoked by the county for the acquisition of the

- right to undermine the Seaboard’s embankment |

in the future and at recurring intervals. Henry

Ford & Sons, Inc. v. Little Falls Fiber Co., 280 U.S

369, 50 S. Ct. 140, 74 L. Ed. 483.”

”

This Court, and other courts have recognized rights

exist under Section 10 of the Federal Power Act

Henry Ford & Son, Inc. v. Little Falls Fiber Co.,

supra; Grand River Dam Authority v. Federal. Power

Commission, 10th Cir. 1957, 246 F. 2d 453; United Stqtés

v. Central Stockholders Corp.; 9th Cir. 1931, 52 F. 2d

322; Levin v. Philade'phia Electric Power Co., D. C

ED.P:. 1929, 34 F. 2d 224.

Particular attention is called to the. fact that in

the year 1939, the same year Crisp County made its

~ contract with the Seaboard, that tne Supreme Cour:

of Washington held that, under the provisions of the

Federal Power Act, a licensee which erected a dam

was liable to a railroad for damages to an embank-

ment. Great Northern Railroad Co. v. Washingt’

Electric Co... 1097 Wash. 627, 86 Pac. 2d 28.

It was pointed out by the Circuit Court of Appeals

if the county ad not obtained a license from the

Federal Power Commission it would not have had the

13

right to build the dam and construct the generati ig

pliant. The court cited ss authority for this statem-:nt

the following cases: . Federal Power Commission v.

Oregon, 349 U. $. 425, 75 S. Ct. 832, 99 L. Ed. 1215; First

lowa Hydro-Electric Cuoperative v. Federal Power

Commission, 328 U. S. 152, 66 S. Ct. 906, 90 L. Ed.

1143, reh. den. 328 U. S. 897, 66 S. Ct. 1337, 90 L. Ed:

1647; Georgia Power Co. v. Federal ‘Power Cammis-

ston, Sth Cir. 1946, 152 F. 2d 908.

The Seaboard in its coraplaint alleges that its trestle

and embankment had been undermined by the ebbing

and flowing of the waters of the Flint River against

its trestle and embankment, and darn’... to the

extent of some $50,096 that the deter vat recog-

nized their liability by entering into a cuntract agr. --

ing to remedy and pay for such damage. The plaintiff

railroad acting and relying upon this contract. re-

naired the damage to its trestle and embankment and

called upon ‘the defendants’ for reimbursement. and

_payment in accerdarce with the terms of the contract.

The defendants’ liability became fixed under the con:

‘tract and also under Section 10 of the Federal Power

Act

The United States Coxstitution and the laws passed

pursuant. to it are the supreme laws of the land

tinding alike upon states, courts and the people, anv-

‘hing in the constitution or laws of any state to. the:

ontrary notwithstanding “USCA. Constitution, Art

6. Sec. 2 Testa v. Katt, 67 S. Ct. 810, 220 U.S. 386 91

L. Ed. 967, 172 4.L.R. 223." |

14

VI.

THE DEFENDANTS ARE ALSO LIABLE UNDER THE

CONSTITUTION OF THE STATE OF GEORGIA,

WHICH PROVIDES THAT PRIVATE PROPERTY

SHOULD NOT BE TAKEN OR DAMAGED FOR

PUBLIC PURPOSES WITHOUT JUST AND ADE-

-QUATE COMPENSATION BEING FIRST PAID.

GEORGIA CONSTITUTION, PAR. 1, SECTION .3,

ARTICLE 1, GEORGIA CODE ANNOTATED, ‘SEC-

TION 2-301.

There are numerous decisions in Georgia which hold

that a‘county is liable for damages resulting from the

taking or damaging ,f private property for public

purposes. See Smith v. Floyd County, 85 Ga. 420, (11

S. E. 850) (1890); Bates r. Madison County, 32 Ga

App. 370, (123 S. E. 158) (1924); Gwinnett County vr

-Ailen, 56 Ga. App. 753, 755, (194 S. E. 38) (1937); Bar-

field vr. Macon County, 109 Ga. 386, (34 S. E. 596) (1898 |

and finally it was held in Felton Farm Co. v. Macon

County, 49 Ga. App. 239, (175 S. E. 29) (1934), that a _

county can be held liable to the extent of an injury:

sustained by property through public works, not on

the theory that the county is liable, as are other tort-

’ feasors. for the negligent’ acts and conduct of its

acents while acting within the scope of their authority.

but for the reason that it cannot, either with or with-

out the guise of contractual authority, damage the

property of another for the public use without jus:

and adequate compensation being paid ,

15

CONCLUSION.

We therefore respectfully submit that this case .was

carrectiy decided by the Fifth Circuit Court of Appeals

and that the writ of eettiorari should be denied.

J.C. McDONALD,

P O. Address

. P.O. Box 498,

-F zgerald, Ga., : ; a

CHARLES T. ABELES,

° Attornevs for Respondent.

P O. Address. | * |

3600 West Broad Street.

Richmond, Virginia.

I. CHARLES T.’ ABELES. do hereby certify that [

have this dav served the petitioners in the within

case with copies of the foregoing brief of respondent,

by mailing-a copy of the same to Honorable H. H.

Perry, Jr.. P. O. Box 747,-Albany, Georgia, and a copy

to Honorabie Graydon Reddick and Honorable George

Wright, Cordele. Georgia, they being attorneys of rec-

ord for petitioners.

All of this on the - ... dav 'of December, 19609.

| /

CHARLES T ABELES