Standard Steel Works Co. v. Williams, 158 Ga. 434

158 Ga. 434 | Ga. | 1924

Lead Opinion

• Beck, P. J.

(After stating the foregoing facts.) The statement of facts in the case of Standard Steel Works Co. v. Williams, 155 Ga. 177 (116 S. E. 636), should be read in connection with the somewhat lengthy statement of facts set forth above, in order that all the questions now made may be clearly understood; and we refer to that statement of facts made in the case when it was here before, just as if the facts were here restated.

The plaintiffs in error insist that the judgment of this court on the former appeal of the case is res adjudicata as to the present controversy, and that the defendants in error were concluded thereby, and that the court below erred in refusing to make application of the doctrine of res adjudicata to the questions and issues presented when the amendments and the new intervention were allowed and passed upon. If new parties had not appeared in the case below as intervenors, the contention of plaintiffs in error would seem to be sound. If the receiver alone, or the receiver and those who were parties when the case was heard in the court below prior to the first appeal to this court, were the only parties to this record, it would seem that the doctrine of res adjudicata would be conclusive as to them, although the amendments offered by the receiver and certain other parties at the former hearing of the case might have set up by way of amendment new facts and new grounds of attack upon the provisions in the act approved February 28, 1876 (Acts 1876, p. 122), relating to the duties and liabilities of receivers for railroad companies, which act was the foundation in law of the claims made by the plaintiffs in error as intervenors in the receivership proceeding pending in the superior court of Kichmond County; for it is a settled principle of law that a party seeking to enforce a claim legally or equitably must present to the court, either by the pleadings or proofs, or both, all the grounds upon which he expects a judgment in his favor. He is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion, and leave the rest to be presented at a second suit if the first fail. Conwell v. Neal, 118 Ga. 624 (45 S. E. 910). Our statute declares that “The judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the case wherein the judgment was rendered.” Civil Code, § 4336. And in the case of Perry v. McLendon, 62 Ga. 598, Justice Bleckley emphasizes in the following language the extent of the conelusiveness of a former judgment as .to matters “put in issue, or which under the rules of law might have been put in issue in the case where the judgment was rendered:” “The effect of a judgment cannot be avoided by a difference in the pleadings when these, in the first case, could or should have been as full as those in the second, though in fact they were not. No party, plaintiff or defendant, is permitted to present his case before the court on some of its allegations, and, if it fails, set it up again on the rest in a subsequent proceeding, and thus evade the bar of the former judgment. It is the body of the case, and not certain of its limbs only, that the final judgment takes hold upon. . . He must discharge all of his weapons, and not reserve a part of them for use in a future encounter. He must realize that one defeat will not only terminate the campaign, but end the war.” This same doctrine, in its full extent, is recognized in numerous cases, which it is unnecessary to cite here, because the principle is a familiar one. Nor is it necessary to restate in detail the facts alleged in the original answer of the receiver for the purposes of a comparison between the original answer and the amendments thereto. We content ourselves with 'saying that a comparison of the original answer and the amendments shows that no material facts are pleaded in the amendments which might not “under the rules of law” have been put in issue in the case wherein the judgment' was rendered. Nor is any question made in the amendments as to the constitutionality of section 2797 of the Civil Code, which embodies the provisions in the act of February 28, 1876, that might not have been made at the hearing of the case wherein was rendered the judgment reviewed when this case was here before. And the fact that these amendments were offered before the remittitur from this court was made the judgment of the court below would not have availed the receiver and those who were parties at the time of the former trial, had new parties come in and been made parties to the case as intervenors; for if new parties were made, they had the right to have the case adjudicated upon the issues presented in their intervention. The former judgment was conclusive between the parties and their privies, but not conclusive upon those who were not parties at the former trial and who were not privies to those who were actually parties. A party to be bound by a judgment must be a party to the judgment and have notice of the proceeding, so that he can be heard; else he is not bound by the judgment, and the doctrine of res adjudieata is not applicable to him nor to the questions made when he is permitted subsequently to become a party to the suit by intervention or otherwise. Certain of the parties who became so by intervention subsequently to the former judgment of this court were not parties to the case at the prior hearing. Central Union Trust Company, Mrs. Anna ,Anderson, and certain others were not parties on a former appeal, nor are they privies to parties on a former appeal. Central Union Trust Company is the holder of receiver’s certificates, and as such filed its intervention; and it is insisted in the brief of counsel for plaintiffs in error that the certificate-holders were served by publication upon request of the receiver, and that this service was duly perfected by order of the superior court. And it appears from the record that the receiver did petition that there should be service by publication upon the certificate-holders; and the judge of the superior court of Richmond County, on the 19th day of Januarjq 1922, upon that petition passed the following order:

“The within petition read and considered. The facts stated therein have been shown to my satisfaction to be true. It is ordered and adjudged that the clerk of this court shall issue a citation in the following form, which citation shall be published in the Augusta Herald twice a month for two months, that is, twice in January and twice in February, 1922, namely:

“ ‘Baltimore Trust Company

(Richmond Trust Company, Successor)

vs.

Georgia & Florida Railway |

Superior Court,

Richmond County,

Georgia.

May Term, 1915.

“ ‘To all those owning or holding certificates of indebtedness of the Receivers of the Georgia and Florida Railway, dated January 31st, 1921, and maturing January 31, 1924.

“ ‘You are hereby notified that the II. L. Cory Coal Company, the Baldwin Locomotive Works, and certain other intervenors in the above-stated case have alleged and insisted that some of the purposes for which the aforesaid certificates were issued are unlawful, and that none of the said certificates are entitled to a lien or priority over uncertificated creditors, and are seeking to require the application of the gross income of the Receiver of the Georgia and Florida Railway to the payment of uncertificated indebtedness existing prior to January 1, 1921. You and each of you are hereby notified that a hearing will be had upon the aforesaid interventions and all objections by you, at the courthouse of Richmond County, Georgia, at 10 a. m., on the 20th day of March, 1922.

“ ‘Witness the Honorable Henry C. Hammond, Judge of the Superior Court of Richmond County, Georgia, and the seal of said court, this 19th day of January, 1922. D. Kerr, Clerk of Court.’

“It is further ordered that John Skelton Williams, Receiver of the Georgia and Florida Railway, shall furnish to the clerk of this court a list of the known names and addresses of the owners or holders of any of said certificates of indebtedness, and said clerk shall mail to the said owners or holders of said certificates, at such addresses, copies of the foregoing citation.

“It is further ordered that the said John Skelton Williams, Receiver, shall, through his General Counsel, notify all intervenors interested in such matters óf the time and place of such hearing, such notice to be given by mailing or delivering to counsel for intervenors. This 16th day of-January, 1922.

“Ilenry C. Hammond, J. S. C. A. C.”

And on the 11th day of March, 1922, the following order was made: (After stating the case) “It having been made to appear to my satisfaction that the citation ordered to be published by an order of this court, passed January 16, 1922, has been published in accordance with such order, it is hereby ordered and adjudged that all those owning or holding certificates of indebtedness of the Receivers of the Georgia and Florida Railway, dated January 31, 1921, and maturing on January 31, 1924, have been properly served and are now parties to the above proceeding in the matter of such interventions, and all others that had been filed prior to the 16th of January, 1922, contesting the validity or priority of said certificates or seeking to enforce alleged rights under section 2797 of the Code of the State of Georgia, 1910.

“This 11th day of March, 1922.

“Henry C. Hammond, J.S.C.A.C.”

Neither the petition nor the order named the defendants to be made parties, and we do not think that it was sufficient compliance with the provisions of the law as contained in sections 5556, 5557, and. 5558 of the Civil Code. The petition and the order referred to the certificate-holders as a class; and it is insisted in the brief of counsel that the Richmond Trust Company intervened and was made a party, and that it was a representative of the class of certificate-holders, and that the former judgment of this court binds all the members of the class. Nor do we think that all the certificate-holders as a class became parties, as there was no attempt to show that the members of the class are so numerous that it would be impossible or impracticable to make them all parties; nor does it seefn that there was any attempt to have certain named certificate-holders made parties as representatives of a class. Moreover, we do not think that the Richmond Trust Company represented any of the certificate-holders except itself. It was plaintiff in the case as trustee of the first-mortgage bondholders, and the interest of those bondholders was in no way identical with the interest of the holders of receivers’ certificates. We have dealt with only one of the certificate-holders, to show that new parties were introduced. There were others. It is not necessary to take up each one, to show that they were not parties to the former suit, and that they were not privies to the parties, and were not represented as members of a class. We are of the opinion, therefore, that the court properly overruled the plea of res adjudicata.

Another question presented by the record is, did the superior court of Richmond County have jurisdiction to issue the injunction sought? Or, stated in another form, is it necessary for the plaintiffs in error to move in the proper Federal Court to set aside the order of the Interstate Commerce Commission approving the issue of the receiver’s certificates, before they can obtain the relief which is here sought in the form of an injunction to restrain the receiver from paying interest on the underlying bonds and on the receiver’s certificates until he has paid their claims? Counsel for defendants in error in their brief and written argument lay down the proposition that suits to restrain the enforcement, operation, or execution of orders of the Interstate Commerce Commission are required to be brought in the United States district court, and the United States is an indispensable party; that in such a case the State court is without jurisdiction, and that the superior court of Richmond County was without jurisdiction to grant the injunction sought in this case. As a basis for the contention thus set down, they quote the following from the Federal deficiencies appropriation act of October 22, 1913, c. 32, 38 Stat. L. 219-220, wherein the commerce court was abolished and its functions transferred to the United States district court: “The venue of any suit hereafter brought to enforce, suspend, or set aside, in whole or in part, any order of the Interstate Commerce Commission shall be in the judicial district wherein is the residence of the party or any of the parties upon whose petition the order was made, except that where the order does not relate to transportation or is not made upon the petition of any party the venue shall be in the district where the matter complained of in the petition before the commission arises, and except that where the order does not relate either to transportation or to a matter so complained of before the commission the matter covered by the order shall be deemed to arise in the district where one of the petitioners in court has either its principal office or its principal operating office. . . No interlocutory injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any order made or entered by the Interstate Commerce Commission shall be issued or granted by any district court of the United States, or by the judge thereof, or by any circuit judge acting as district judge, unless the application for the same shall be presented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application. When such application as aforesaid is presented to a judge, he shall immediately call to his assistance to hear and determine the application two other judges. Said application shall not be heard or determined before at least five days’ notice of the hearing has been given to the Interstate Commerce Commission, to the Attorney-General of the United States, and to such other persons as may be defendants in the suit.” And as matter to be construed in connection with the foregoing provisions of the act just referred to, they quote a part of section 308 of the Judicial Code, as follows: “Suits to enjoin, set aside, annul, or suspend any order of the Interstate Commerce Commission shall be brought in the district court against the United States.”

We agree with counsel for defendants in error that it is manifest, from the foregoing, that the enforcement, operation, or execution of orders of the Interstate Commerce Commission may be enjoined, set aside, annulled, or suspended, in whole or in part, for good cause and in a proper proceeding brought for that purpose; and that it is equally manifest that such proceeding, seeking wholly or partially to interfere with any order of the Interstate Commerce Commission, must be brought in the district court of the United States, and that the United States is an indispensable party to the proceeding. Bnt we do not agree with them in their contention that the petition of the Standard Steel Works and the other appellants, in view of the relief sought by them in their intervention, is an attack upon the order of the Interstate Commerce Commission, or that that order would be impaired if the relief sought were granted. The position taken by the defendants in error in reference to this order is expressed in paragraph 36 of the amendment filed by the receiver to his answer, which is in the following language: “That the aforesaid effort of the Standard Steel Works Company to enjoin the receiver from using any part of the gross income of the said railway for the payment of interest on said receiver’s certificates, as was authorized and required by the said order of the Interstate Commerce Commission of March 33, 1931, is an attack on said order; is an effort to set it aside, in whole or in part, in this State Court, and defendant shows to this honorable court that it is without jurisdiction to entertain said application; that exclusive jurisdiction'to set aside or prevent the carrying out of an order of the Interstate Commerce Commission, in whole or in part, is vested by the interstate commerce law in the district courts of the United States having jurisdiction of the parties, and in this instance the proper district court of the United States to which the Standard Steel Works Company and others should make their application is the district court for the northeastern division of the southern district of Georgia, and to all such application the United States must- be a party, and it is not such a party here.”

The order referred to in this paragraph of the amendment and which it is claimed is being attacked by the effort of the Standard Steel Works Company to enjoin the receiver from using any part of the gross income of the railroad for the payment of interest on the receiver’s certificates was passed by the Interstate Commerce Commission at a'session held on the 33d day of March, 1931, and was passed on the application of the receiver of the Georgia and Florida Bailway for authority to issue $1,600,000 of their certificates of indebtedness and to pledge, sell, and otherwise dispose of these certificates. In part the application for authority to issue the certificates was as follows: “The present and prospective ability of the applicant to repay the loan and to meet its obligations in regard thereto. . . That the extent to which the public convenience and necessity will be served by the loan is that by maintaining credit the receivers will be enabled to prevent abandonment of the road, and that by making the contemplated improvements they will be enabled more efficiently to meet the transportation demands upon them.” Referring to the application, the report of the Interstate Commerce Commission proceeds as follows :

“The application was accompanied by statements showing such facts in detail as we required with respect to the physical situation, ownership, capitalization, indebtedness, contract obligations, operation, and earning power of the property in control of the receivers, together with such other facts in relation to the propriety and expediency of granting the loan applied for, and the ability of the receivers to make good their obligation, as we deemed pertinent to the inquiry. The receivers have proposed to dispose of $800,000 of receivers’. certificates at par, to aid in maintaining their credit and continuing the operation of the property in their custody and to finance part of the estimated cost of additions and betterments to be made; so that in effect they will provide one dollar for each dollar of loan requested to further the aforesaid purposes. After investigation we find that the making in whole of the proposed loan by the United States for the purpose and in the amounts hereinbefore set forth is necessary in order to enable the receivers properly to meet the transportation needs of the public; that the prospective earning power of the receivers, and the character and. value of the security offered, afford reasonable assurance of their ability to repay the loan within the time fixed therefor, and to meet their other obligations in connection with such loan, and reasonable protection to the United States; and that the receivers are unable to provide themselves with funds necessary for the aforesaid purposes from other sources.”

Following several pages of recitals which cover the details of the proposed loan and issue of receiver’s certificates, the report and certificate of the Interstate Commerce Commission continued as follows:

“The application was made under oath, signed and filed by the receivers in accordance with authority conferred on them by an order of the aforesaid superior court, entered on January 25, 1921. As required by section 20-a of the interstate-commerce act, notice of the filing of the application has been given to, and a copy thereof filed with, the Governor of each of the States of Georgia and Florida, the only States in which the applicants operate. No objection to the granting of the application has been offered by the railroad, public service or utilities commission, or other authority of either of the States mentioned. We find that (1) the proposed issue of $1,600,000.00, principal amount, of receiver’s certificates to be dated January 31, 1921, $800,000.00 to be designated series A, and $800,000.00 to be designated series B, both series to bear interest at the rate of eight per cent, per annum and to mature January 31, 1924; (2) the pledge of- $800,000.00, principal amount, of said receiver’s certificates, series A, with the Secretary of the Treasury as security for a loan from the United States under section 210 of the transportation act, 1920, as amended, and (3) the sale of $600,000.00, principal amount, of said receiver’s certificates series B, at par, and the distribution of $200,000.00, principal amount, of said series B certificates as payment on account pro rata of the uncertificated indebtedness of the receivers incurred prior to January 1, 1921, (a) are for lawful objects within the duly authorized purposes of the applicants and compatible with the public interest, which are necessary and appropriate for, and consistent with, the proper performance by the applicants of service to the public as a common carrier, and which will not impair their ability to perform that service, and (b) are reasonably necessary and appropriate for such purposes.”

Then follows the order of the Interstate Commerce Commission referred to above, and that order is in part as follows:

“It is ordered, that W. R. Sullivan, L. M. Williams, and J. F. Lewis, receivers of the Georgia and Florida Railway, be and they are hereby authorized (1) to issue '$1,600,000.00 principal amount of receiver’s certificates, to be dated January 31, 1921, of which $800,000.00 principal amount shall be designated series A, and $800,000 principal amount shall be designated series B, said certificates to-bear interest at the rate of eight per cent, per annum, payable quarterly, to mature January 31, 1924, to be payable to bearer and to be substantially in the form submitted with the application; (2) to pledge $800,000.00 principal ¿mount of said receiver’s certificates, series A, with the Secretary of the Treasury as security for a loan in the sum of $800,000.00 from the United States under section 210 _ of the transportation act, 1920, as amended; (3) to sell $600,000.00 principal amount of said receivers’ certificates, series B, at par; and (4) to distribute $200,-000.00 principal amount of said receivers’ certificates, series B, as payment on account pro rata of uncertificated indebtedness of the receivers incurred prior to January 1, 1921. It is further ordered, that, except as herein authorized, said receiver’s certificates shall not be sold, pledged, repledged, or otherwise disposed of by the applicants, unless and until otherwise ordered by us.”

The order which we have set forth was issued under the authority of section- 20-a of the transportation act of 1920. In paragraph or subdivision (2) it is provided that “it shall be unlawful for any carrier to issue any share of capital stock or any bond or other evidence of interest in or indebtedness of the carrier (hereinafter in this section collectively termed ‘securities’), or to assume any obligation or liability as lessor, lessee, guarantor, indorser, surety, ■ or otherwise, in respect of the securities of any other person, natural or artificial, even though permitted by the authority creating the carrier corporation, unless and until, and then only to the extent that upon application by the carrier, and after investigation by the commission of the purposes and uses of the proposed issue and the proceeds thereof, or of the proposed assumption of obligation or liability in respect of the securities of any other person, natural or artificial, the commission by order authorizes such issue or assumption. The commission shall make such order only if it finds that such issue or assumption: (a) is for some lawful object within its corporate purposes, and compatible with the public interest, which is necessary or appropriate for or consistent with the proper performance by the carrier of service to the public as a common carrier, and which will not impair its ability to perform that service, and (b)" is reasonably necessary and appropriate for such purpose.” Paragraph (6) provides that the commission, upon receipt of any application for authority to issue securities, shall notify the Governor of each State in which the applicant carrier operates, of the application, and authorizes the Railroad Commission, the Public Utilities Commission, or other appropriate State authorities, to make representations to the Commission. Paragraph (7) makes the jurisdiction of the commission exclusive and plenary. Paragraph (8) says that “nothing herein shall be construed to imply any guaranty or obligation as to said securities on the part of the United States.”

There is nothing in the order itself as granted that can be construed as a requirement or direction to the receiver to pay the interest on receivers’ certificates issued in pursuance of the order; nor is there anything in section 30-a of the act quoted above which would authorize an order containing such requirement or direction. And in the absence of anything in the order that might be construed into such a direction, requirement, or pledge, the prayers of the intervention of the Standard Steel Works Company and the other creditors joining with it cannot be construed as an attack on the order. The intervention does not seek to set aside the order, nor in any way qualify or limit its effect. It may impair the ability of the receiver to pay the interest due on the certificates, if the relief sought is granted, but it does not impair the order itself, nor the rightful claims of the holders of certificates under the terms of the order. In the certificate itself we find this stipulation: “The certificates, of which this is one, shall be and remain a first lien and claim on all the property, real, personal and mixed, including net income (but such net income may at all times be applied to the making of additions and betterments to the property of such receivers so long as these certificates are not in default) now, or that may hereafter be, in the hands of the receivers of the Georgia and Florida Railway and belonging to them as such receivers, whether originally acquired by and belonging to said railway, or acquired by said receivers, and all immunities and franchises, subject to court costs, counsel fees, trustees’ fees, and the like, that have arisen or that may arise in the pending suit in which said receivers were appointed, as against all debts, obligations, or liabilities of said receivers now existing or that may arise, subject to the qualifications set forth in said orders.” And in the order of the superior court of Richmond County we find the same provision. In paragraph (6) of the same order we find the following: “The said receivers shall at no time hereafter issue any certificates of indebtedness or enter into any obligations or contracts that will have a superior or equal rank or dignity with such certificates now to be issued, or that will in any way disturb or impair the validity, lien, or integrity of the certificates now to be issued.” And paragraph (9) of the same order contains the following provision: “In the event of the sale under an order of this court of the property now or that may hereafter be in the hands of such receivers and upon which the said certificates shall have a lien or claim, there shall be fixed an upset price at such sale of such an amount as will be sufficient to pay the expenses of all amounts that may be entitled to payment prior to such certificates, and the payment of certain certificates in full, both as principal and interest.”

The pleadings in the superior court of Kiehmond County leading up to the passage of the order of January 25, 1921, authorizing the issue of these receiver’s certificates, and that order itself, were both submitted to the Interstate Commerce Commission when the receiver made application, under the terms of the transportation act, for authority to issue certificates. And in the order of the Interstate Commerce Commission of March 23, 1921, authorizing the issue of the receiver’s certificates, the pleadings in Kiehmond superior court were specifically referred to, and it was stated that it was the certificates issued under the order of January 25, 1921, which were then being authorized. It would seem from the provisions we quote above, that it was recognized that other debts might “be entitled to payment prior to said certificates,” and that arrangements must be made upon a sale of the property for .the payment of those prior claims. Again, it was provided that the receivers “shall at no time hereafter issue any certificates of indebtedness or enter into any obligations or contracts” that should have priority over the receiver’s certificates. The debts of the Standard Steel Works Company and the other intervenors, supply creditors, existed before the order of January 25, 1921. That order provided that “hereafter” (that is, after the date of the order) no obligations should be incurred by the receiver that would have priority over the receivers’ certificates. The priority of debts previously incurred is not impaired. And the relief sought by the intervention of the supply creditors is in accordance with their rights as established under the act of February 28, 1876, supra, with which there is nothing inconsistent in the order of • the Interstate Commerce Commission set forth above, construed in connection with their report, which is also set forth, and the application for the order and the orders of the superior court of Richmond County, set forth in part above. The orders of the commission and the terms of the receivers’ certificates, and the order of the superior court, construed altogether, can be given a construction, without putting any strain upon the language of any of these documents, consistent with the rights of the Standard Steel "Works Company and the other supply creditors, for the enforcement of which their intervention was filed; — a construction that is inconsistent with the theory of the defendants in error that renders that intervention and the relief sought by it an attack upon the order of the Interstate Commerce Commission, or into an effort to impair that order.

We have referred to the rights of the intervening supply creditors under the provisions of section 2797 of the Civil Code, which embodies the provisions of the act of February 28, 1876 (Acts 1876, p. 122), thereby assuming that the act just referred to was a valid, controlling statute of the State. But its validity and constitutionality is attacked. It is attacked as being unconstitutional on the grounds, that, as construed by this court, it unreasonably interferes with interstate commerce and imposes a direct burden thereon; that if the act was ever valid, it has been superseded by subsequent Federal legislation, and is now void as applied to interstate commerce; and because of its uncertainty, and because there is po provision for its enforcement. It is urged that section 2797 of the Civil Code gives a lien on the gross income of the receiver; and that, as the gross income of the receiver arises from interstate commerce as well as intrastate commerce, section 2797 is unconstitutional, for State legislation may not create a lien on gross income arising from interstate commerce. It was also said that to enforce section 2797 would interrupt, if not stop, the interstate commerce of the Georgia and Florida Railway, and so that section is unconstitutional as being in violation of the commerce clause of the Federal constitution. The receiver, it was said, had not sufficient income to pay his operating expenses and continue the operation of the railroad, pay interest on the underlying bonds and on the receiver’s certificates, and have any surplus with which to pay the intervening creditors. He had to pay his current expenses, to manage to continue operations. If he did not pay interest on the underlying bonds and the receiver’s certificates, there would be foreclosures which, it was claimed, would interrupt and possibly stop interstate commerce; and as be had not sufficient income above current operating expenses to pay both this interest and the intervening creditors, he must pay the interest to the exclusion of the intervening- supply creditors. As construed by this court when this case ivas before it on the former hearing, it is argued, section 2797 required payment of the claims of the intervenors before payment of the interest on the underlying bonds and the receiver’s certificate's-. Thus construed, it was said section 2797 was unconstitutional, for if it was followed and the limited funds in the hands of the receiver used to pay the intervening creditors to the exclusion of payment of the interest, foreclosures resulting in a dismemberment of the railroad would follow that would interrupt interstate commerce. The receiver also asserted that he owed about $290,000 on old debts, similar to those due Standard Steel Works Company and others for supplies furnished to him for the operation of the railroad. These debts accrued prior to January, 1921, and had gone unpaid for a long time. There had been a change in receivers; and if the receiver was required to pay these old claims in chronological order, as required by the last sentence of section 2797, it would require all of the funds in his hands, and more besides, so that the receiver would have to cease operating the railroad for lack of funds. Thus construed, it was said section 2797 is unconstitutional, for its enforcement would result in interruption and cessation of interstate commerce. The receiver of the Georgia and Florida Eailway has permitted a large accumulation of debts for supplies bought for the continued operation of the railroad. These debts were not paid as they matured. By his act of purchasing the supplies for which they were incurred the receiver agreed to a lien on the gross income coming into his hands to secure their payment. This was by force of section 2797 of the Civil Code. This lien continued and was subject to enforcement at any time. The supply creditors at any timé had a right to require that the funds of the receiver be used to pay them. Section 2797 provides that “It shall be the duty of said receiver to apply the income of said railroad to the payment of the incidental expenses necessary to carrying on said business.” But the receiver used his income to pay other debts, the claims in question here. He paid the interest on the underlying bonds and on the receivers’ certificates and permitted the accumulation of $290,000 of unpaid debts for incidental expenses. Section 2797 makes it his official duty to pay incidental expenses, and also gives to those to whom are due debts for incidental expenses a lien to insure performance of that duty. The present situation of the receiver results from failure to pay off the claims of those creditors who have a lien under the provisions of section 2797 of the Civil Code.

It is also further urged by the receiver that if he had paid these debts for incidental expenses, there would not have been money enough to pay the interest on the underlying bonds and the receiver’s certificates, and there would long ago have been foreclosures that would have caused a sale and dismenberment of the railroad, and it would not longer be operated as a unit. That interstate commerce would be interrupted is clearly a conclusion of the receiver, alleged in his pleading. The filing of suits for the foreclosure of the underlying mortgages would not necessarily interrupt interstate commerce, nor would the enforcement of the liens claimed under section 2797 necessarily interrupt interstate commerce.. Nor would any proceedings for the enforcement of the statutory liens or contractual'liens necessarily interrupt interstate commerce; for, even if the proceedings to foreclose should result in a judgment of foreclosure and an order for the sale of the railroad, the natural consequence of such a sale would cause the control and operation of it to pass out of the hands of the present receiver, but it would pass into the hands of the purchasers, and if they failed to manage it successfully, it might pass again into the hands of another receiver. The result in the long run might be that it would be impossible to operate the railroad profitably, and its operation might become so burdensome to the owners into whose hands it would pass that it might finally be scrapped; and in one sense of the word an interference with interstate commerce might result. But this would be only incidental, and would not tend to establish the conclusion urged by the receiver in his pleadings, that the intervention of the supply creditors seeking to set up their lien under section 2797 of the Code was an interference with interstate commerce.

In another branch of the argument attacking the constitutionality of section 2797, because in conflict with the commerce clause of the Federal constitution, it is urged that a statute creating a lien on the gross income arising from interstate commerce is such an interference Avith interstate commerce as to render the act unconstitutional; and as to this proposition numerous authorities are cited in the brief of counsel for the defendants in error; and especial stress is laid on certain cases holding that it is unconstitutional for a State to impose a tax on the gross receipts of a carrier where the gross receipts arise from interstate commerce. But the lien created here, under section 2797, is a lien in favor of certain creditors who haAre furnished supplies essential to the operation of the railroad. It gives a security to the vendor of the supplies, and arises out of the implied contract to pay on the part of the purchaser when supplies Avere furnished and accepted; and Ave think there is an essential difference between the statutory lien created by the section of the Code under consideration as security for the price, and a tax imposed by the State. The tax is imposed without the agreement of the taxpayer; there is no bargain; there are no negotiations between the tax-imposing power and the taxpayer. The taxpayer has no voice as to the creation of the lien in favor of the taxing power. The taxing power without the consent, while exercised to raise money for public purposes, has no limit except constitutional restrictions, and may become a power to destroy; whereas the lien created under section 2797 grows out of a bargain between the operator of the railroad and the supplying creditor. Presumably the bargain was entered into for the purpose of building up and maintaining the railroad property. And AAre do not think the rulings made in the cases dealing with the imposition of a tax by the legislatures of States upon the gross income of a railroad are applicable to the question as to whether the legislature could create a lien like that provided for in section 2797. The case of Southern Flour &c. Co. v. Northern Pac. Ry. Co., 127 Ga. 626 (56 S. E. 742, 9 L. R. A. (N. S.) 853, 119 Am. St. R. 356, 9 Ann. Cas. 437), grew out of the attachment of a car which it was insisted was employed in interstate commerce, and it was contended that to allow the attachment Avould be a violation of the interstate-commerce clause of the Federal constitution. In deciding the question thus marls it Avas said: “It may sometimes happen that the prosecution of such right for the legitimate purpose of collecting a debt may incidentally affect interstate commerce, but it does not follow that, merely because of such incidental effect, the courts will always enjoin the prosecution of the otherwise legitimate right. This principle has been recognized a number of times by the Supreme Court of the TTnited States, though not in any case involving the collection of a debt. A case involving'the application of the principle to the right of levy for the collection of a debt has not been before that court. The cases in which they have applied the principle are those involving occupation tax, public morals, public convenience, and health of people and animals, and similar cases. See Williams v. Fears, 179 U. S. 270 (21 Sup. Ct. 128, 45 L. ed. 186); Lake Shore Ry. Co. v. Ohio, 173 U. S. 285 (19 Sup. Ct. 465, 43 L. ed. 702); Missouri Ry. Co. v. Haber, 169 U. S. 613 (18 Sup. Ct. 488, 42 L. ed. 878); Hennington v. Georgia, 163 U. S. 299 (16 Sup. Ct. 1086, 41 L. ed. 166); New York R. Co. v. New York, 165 U. S. 628, 631 (17 Sup. Ct. 418, 41 L. ed. 853); Chicago Ry. Co. v. Solan, 169 U. S. 133 (18 Sup. Ct. 289, 42 L. ed. 688); Richmond R. Co. v. Patterson Tobacco Co., 169 U. S. 311 (18 Sup. Ct. 335, 42 L. ed. 759), and authorities cited in each case. But, after all, the argument in each case leads to the conclusion that if the thing attempted is in pur^ suanee of a valid State law, its enforcement will not be stayed only because it may incidentally affect interstate commerce. The principle is applicable to the case at bar, and the plaintiff should not be precluded from collecting his debt by impounding the car in the manner attempted, because of the incidental effect it may have on the general use of the car in the matter of transporting interstate freight. To hold otherwise would in effect be to render immune from the payment of debts all property of railroads employed in interstate traffic.”

And in the case of Southern Ry. Co. v. Brown, 131 Ga. 245 (62 S. E. 177), this court said: “The fact that a creditor, in the prosecution of his right to collect a debt by attachment of the property of his debtor, a non-resident railroad corporation, which is a common carrier, may, by the levy and sale of an empty and idle freight-car of the debtor, incidentally affect future interstate commerce, will not render such proceeding illegal. If such empty and idle freight-car was not subject to levy in Georgia because it was an instrument of interstate commerce, it would not be subject to levy in the State of the residence of the Mobile and Ohio Railroad Company, because, if it is an instrument of interstate commerce, it would be such instrument in one place as well as another. A local corporation whose line did not extend beyond the State would likewise hold its rolling-stock immune from levy and sale if it permitted it to be used in interstate commerce and it was liable in the future to be so used, if the law were different from the rule above announced.” And in the case of Johnson v. Union Pac. R. Co., 29 R. I. 80 (69 Atl. 298, 132 Am. St. R. 799), it is said: “The fact that an indebtedness due to a non-resident railroad company arose out of the conducting of interstate commerce does not exempt it from garnishment under a foreign attachment.” See also Starkey v. Cleveland &c. Ry. Co., 114 Minn. 27 (130 N. W. 540, L. R. A. 1915F, 880); Cavanaugh v. Chicago &c. Ry. Co., 75 N. H. 243 (72 Atl. 694); Rosenbush v. Bernheimer, 211 Mass. 146 (97 N. E. 984, Ann. Cas. 1913A, 1317); DeRochemont v. New York &c. R. Co., 75 N. H. 158 (71 Atl. 868, 29 L. R. A. (N. S.) 529); Johnson v. Union Pac. (R. I.), 145 Fed. 249. From the case of Johnson v. Chicago &c. Elevator Co., 119 U. S. 388 (7 Sup. Ct. 254, 30 L. ed. 447), it appeared that the Chicago and Pacific Elevator Company owned a warehouse on land on the bank of the Chicago River. Johnson owned a tug-boat that «was engaged in towing vessels on that river. Johnson’s tug was the cause of damage to the warehouse when it caused a schooner that it was towing to run into the warehouse. An Illinois statute gave a lien on the tug for damages to property. The statute was attacked as unconstitutional. Of this the United States Supreme Court said: “There being no lien on the tug, by the maritime law, for the injury on land inflicted in this case, the State could create such a lien therefor as it deemed expedient, and could enact reasonable rules for its enforcement, not amounting to a regulation of commerce. Liens under State statutes, enforceable by attachment, in suits in personam, are of every-day occurrence, and may even extend to liens on vessels, when the proceedings to enforce them do not' amount to admiralty proceedings in rem, or otherwise conflict with the constitution of the United States. There is no more valid objection to the attachment proceeding to enforce the lien in a suit in personam, by holding the vessel by mesne process to be subjected to execution on the personal judgment when recovered, than there is in subjecting her to seizure on the execution. Both are incidents of a common-law remedy, which a court of common law is competent to give. This disposes of the objection that, the vessel being engaged in commerce among the States, and enrolled and licensed therefor, no lien on her could be enforced by attachment in the State court. The proceeding to enforce the lien, in this case, was not such a regulation of commerce among the States as to be invalid, because an interference with the exclusive authority of Congress to regulaté such commerce, any more than regulations by a State of the rates of wharfage for vessels, and of remedies to recover wharfage, not amounting to a duty of tonnage, are such an interference, because the vessels are engaged in interstate commerce. Cannon v. New Orleans, 20 Wall. 577, 582; Packet Co. v. Catlettesburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691.”

In the case of The Winnebago, 205 U. S. 354 (27 Sup. Ct. 509, 51 L. ed. 836), the U. S. Supreme Court said: “It is urged that the attempt to enforce the lien on the vessel was while she was engaged in interstate commerce, and therefore proceedings against her were unlawful and void, in view of the exclusive control of this subject by Congress under the constitution and laws of the United States. But it must be remembered that, concerning contracts not maritime in their nature, the State has authority to make laws and enforce liens, and it is no valid objection that the enforcement of such laws may prevent or obstruct the prosecution of a voyage of an interstate character. The laws of the States enforcing attachment and execution in cases cognizable in State courts have been sustained and upheld. Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388-398. The State may pass laws enforcing the rights of its citizens which affect interstate commerce but fall short of regulating such commerce in the sense in which the constitution gives exclusive jurisdiction to Congress. Sherlock et al. v. Alling, 93 U. S. 99, 103; Kidd v. Pearson, 128 U. S. 1, 23; Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477.”

And in the case of Martin v. West, 222 U. S. 191 (32 Sup. Ct. 42, 56 L. ed. 159), the court said: “Lastly, it is contended that the statute, as interpreted by the Supreme Court of the State, offends against the commerce clause of the constitution of the United States, in that the creation and enforcement of such a lien against a foreign vessel engaged in interstate commerce is an unwarranted interference with such commerce. We do not perceive in the statute, as interpreted añd applied in the present case, any basis for this contention. As interpreted, the statute embraces all vessels, whether domestic or foreign and whether engaged in intrastate or interstate commerce, and therefore it cannot be said that its purpose is to regulate the latter. Its enforcement may occasionally and temporarily interrupt or prevent the use of a vessel in such commerce, as in this instance, but such an interference is incidental only, is almost inseparable from the compulsory enforcement of liabilities of the class in question, is not in conflict with any regulation of Congress, and does not in itself offend against the commerce clause of the constitution. Johnson v. Chicago & Pac. E. Co., 119 U. S. 388-400; The Winnebago, 205 U. S. 354, 362; Davis v. Cleveland, Cincinnati, Chicago & St. L. Ry. Co., 217 U. S. 157, 179.”

We are of the opinion that while these cases do not rule the precise question which we have presented here, they do rule questions similar in principle and are applicable to the question which we now have under consideration, and that the principles ruled in them should be applied rather than the rule laid down in the cases cited by defendants in error, wherein it is held that a State may not levy a direct tax on the gross receipts derived from interstate commerce. And applying the doctrine stated in the cases from which we have made the quotations above, we have reached the conclusion that section 2797 of the Civil Code is not void on the ground that its enforcement in the proper case would be an interference with interstate commerce. And we have also reached the conclusion that section 2797 is not unconstitutional because of any uncertainty in its terms; nor is it void on the ground that it is in conflict with the due-process clause of the State and Federal constitutions. It is true that the act in itself does not contain provisions for the enforcement of such liens, which seems to have been contemplated in the caption; but the fact that the act itself is not as broad as the caption would seem to indicate does not offend any provision of our constitution. Proceedings for the enforcement of the lien might appropriately have been provided for in the act; but, as we have said, no such provision is made in it. But it does clearly create a lien in favor of parties coming within, the class of creditors contemplated in the act, and it creates that lien “on the gross income of said road” (the road placed in the hands of the receiver for the benefit of creditors or stockholders), and contains direction to the receiver to pay claims of the classes designated. It establishes a clear right to payment of the claims of such creditors out of the gross income. No machinery in the act being there provided for enforcement of the lien, the right given may be adequately enforced in the forum to which the plaintiffs in error here have appealed. The statement of their claim shows that they come within the class of creditors in whose favor the lien was created by section 2797; and by a resort to a court of equity, where an opportunity to contest the claims will be given the receiver and other parties interested, due process of law is accorded to those who oppose the establishment of the lien and the enforcement of the rights of these supply creditors.

Tt follows from what we have said above that while the court below properly overruled the plea of res adjudieata filed by intervenors, the Standard Steel Works Company and other supply creditors, the court erred in overruling the demurrers of the plaintiffs in error to the answer of the receiver as amended and to the interventions of Central Union Trust Company and Mrs. Anderson and others; and also erred in sustaining the plea to the jurisdiction of Biehmond superior court, and in dismissing the interventions of Standard Steel Works Company and the other supply creditors.

Judgment reversed.

All the Justices concur.

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Concurrence Opinion

Bussell, C. J.

I concur in the result reached by the court, and agree that what is said in the opinion is sound law aptly stated; but in my opinion the plea of res adjudieata should have been sustained, which would have obviated any further ruling of the court below.

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Concurrence Opinion

Hines, J.,

concurs in the second and third divisions.