*1 769 respond insolvent and unable to to that Kleinmaier was judgment might entered in the instant case. We are of that opinion set forth a cause of action an that prosecutingSsaid injunction restraining levy, from the defendants jurisdiction of the Civil Court of DeKalb that, for the reason (Ga. L. County being $1,000 to claims limited not excess her p. 666), plaintiff up could not have set claim for accounting $3,000, an under which she as a setoff claims equity A will Kleinmaier’s suit in that court. court restrain by injunction proceeding judgment, a in a of law after court appears against it will be conscience execute where it that party could judgment, and for defense of which the such Gilbert, Pollock 16 have availed himself in the court of law. v. 732). plaintiff Ga. set 398 Am. D. off against being demand Kleinmaier denied reason her jurisdiction of DeKalb County, of the limited of the Civil Court allegation Kleinmaier, who holds the against the sufficient plaintiff, insolvent, set out facts au equity stay judg thorize the enforcement of against plaintiff ment held Kleinmaier until after her judgment against claim to a Kleinmaier can be settled and de (1); proceeding. Perkins, termined in 32 Waters Ga. Wilson, (2); Lucas v. & Fur Ga. 356 Hecht Snook Austin Co., niture 114 Ga. 921 Evans, S. E. Saffold (2) (91 S. E. sustaining general de- It follows that the court erred in murrer defendant Kleinmaier.

Judgment All reversed. the Justices concur. REDWINE, State Revenue Commissioner, v. SCHENLEY INDUSTRIES, INC.

Argued May 14, 1954 1954 Decided June July 14, Rehearing denied *3 Doug- F. George Sims, Jr., E. Eugene Attorney-General, Cook, Attorneys-General, John W. Hall, H. Assistant King, Robert las Jr., in error. Wilcox, plaintiff Gregory, Jr., C. E. contra. Gregory, Golden &

Arnall, 772 exception Chief Justice. With that the

Duckworth, different, are transactions of this non commodities respects precisely were in all material the same as those resident (59 v. Co., in Suttles Glass 206 Ga. 849 S. E. 2d Owens-Illinois (61 Dan 2d 392); Mills, Redwine v. River 207 Ga. 381 S. E. (75 Redwine v. U. E. Co., S. Tobacco 209 Ga. 725 S. 556). 2d In each of held that there no those cases was was “doing hence, Georgia and, business” this State could not tax arising income from such choses action or business. This case is controlled those decisions unless the contention of commodity being whisky that the here entitles the State to arising privilege tax the income from the but not a right, which protected by not is the commerce clause of the Constitution. reject selling whisky We in conformity this contention. That privilege protected with the law is more than a mere Mayor the Constitution was held in &c. Savannah v. Sa (43 704). Distributing Co., vannah 202 Ga. 559 S. E. 2d While all the that decision does concurrence of Justices supported Schlesinger City v. Atlanta, (129 (43 861), Settle, S. E. and McWhorter Ga. 334 S. 247). twenty-first E. 2d liquor That amendment denies protection the full of the commerce clause of the Constitution regulatory order to allow States to burden it with laws, 260). held in Atkins Manning, 206 Ga. S. E. 2d See Scott State, (3), also 187 Ga. 702 But (a) dealing legality we are not here of the sales of (b) whisky involved, protection whisky of either the or its (c) sale the commerce clause, whether sales were made privilege right. Irrespective under a way of which each may of these decided, matters this case would still con- *4 by a sought trolled decision as whether not the be taxes to paid recovered were done in Therefore, this State. question by we refuse to be diverted from this decisive consid- eration enumerated and other numerous matters irrelevant (Ga. argued by counsel for the State. Since the 1937-38, law L. 103) p. requires whisky Ex. a Sess., license before sale of perfect can State, harmony be made and since throughout law has been in period there force time of by regulation a covered this suit of the Revenue Commissioner requiring whisky that all sold becomes the property of the pur- shipping point, simply illogical chaser f. o. b. is unrea- selling by whisky sonable to contend that a who nonresident upon Georgia no in Georgia, has license to sell it orders taken in approved by conformity reg- Commissioner with the ulations, doing Georgia subjects business in the income arising by Georgia. therefrom tax to income

From been ruled be held what has it must that the did in overruling not err demurrer to the to recover paid, pointed income taxes under the out. Therefore, facts ruling constitutionality on the Code which is sections, unnecessary. petition, raised becomes plea 2. But estop petitioner the Commissioner filed a prosecuting plea upon from based this suit. This a written signed by taxpayer Deputy instrument and a Director Department Tax Income Unit. Had this instru- Revenue, empowered by ment been an official the State, executed plea good, law for it, to execute would the law believes in keeping meeting one’s so obligations, word it will possible. rule when But office of Revenue Commissioner is statutory powers its must conferred statute. The attorneys Am. support State cite 43 Jur. for deputy perform contention that officer can all duties principal. go enough We not even far reach that conten- do very beginning tion because we met at the with the fact that are upon the instrument here relied was executed neither Deputy Revenue Commissioner nor a Revenue Commissioner. Director, empower Deputy law of this State does Tax execute Department Revenue, Unit, Income on behalf upon. here relied The General Assem- of the State the contract bly obviously there would do, construed the statute as we else the amendment of 1951 have been no need for the enactment of given Deputy the office was created and wherein Commissioner powers enough include this contract. L. broad no pp. being binding upon contract, invalid, 616. The plea properly' and the dismissed on one, based thereon was demurrer.

Judgment All the Justices concur, except Head, J., affirmed. who dissents.

774 ruling dissenting. agree I can the Justice,

Head, exception are the different, that the commodities that “with the were in all material of this nonresident business transactions precisely the those in Suttles v. Owens-Illinois respects same as (59 Co., Dan River 392); Glass Ga. 849 S. 2d Redwine v. E. S. E. 2d and Redwine v. U. Mills, S. 556).” contrary, the On Co., Tobacco 209 Ga. may the issue as to what as these cases relate to except in far so they point on their facts “doing business,” are not constitutes ruling In of the above cases made. each and do.-not sustain liability alleged company for the assessed taxes by general this court under rules law. determination Assembly an act of the General present case controlled Tax February as Act 1938, known the “Revenue approved (Ga. and L. Beverages Liquors” Control Alcoholic Legalize and Chapter Code, 58-10), Ann. which 1937-38,pp. 103-124; Supp., beverages liquors and in those sale of alcoholic authorized the majority qualified of this where a voters counties State approved participating in an election authorized under act act, the terms and conditions of this the sale thereof. Under regulations State Revenue Commissioner rules (named Assembly as administrator by the General liquor act) every operation of the nonresident dis- phase of the plaintiffs present strictly regu- in the case, named as tilleries not true of the which is done controlled, lated'and business controlling authority. cited As three as indicative cases pursuant which must com- regulations thereto, be the law liquor every to be offered for plied-with as alcoholic sale quality be approved by brands and must 'distillery, employees rep- Commissioner; the salesmen State. approved must resenting distillery the Commissioner permit; shipment the manner is limited granted and' must the State ware- carrier, common and the destination required by act, warehouses are under the which houses require- control the Commissioner. These management regulations (and many others the act and the not set ments of liquor forth) clearly not, demonstrate that distilleries do employed by operate State the manner not, Owens- can River Company, Mills, Dan U. S. Tobacco Glass Illinois involved in the question no Company.' There is and control the strictly regulate If distilleries. these done in this State nonresident *6 liqiior other than the engaged any in were business distilleries' prescribe, the have the business, State would still may carry corporations foreign these terms under which on.a 113 U. S. Mfg. Ferguson, Cooper in Co. this State. Fire Asso. v. (5 1137); Philadelphia Sup. Ct. 28 L. ed. 739, Hooper (7 342); Sup. L. ed. York, 119 S. 110 Ct. New U. 297); ed. Sup. Ct. 39 L. 155 U. S. 648 California, (19 Sup. Ct. 281, S. 557 Daggs, U. Orient Ins. Co. 43 L. (20 SUp. 177 U. Texas, S. ed. Waters-Pierce Oil Co. v. 657). 518, 44 Ct. L. ed. that, stated since opinion present in the case it is

In the made, whisky can be any sale of requires a before law license in 'has been harmony that láw there perfect “and in since regu- suit .a period covered this throughout the time force whisky requiring that ‘all Revenue Commissioner lation of the purchaser shipping f. b. property o. becomes the sold contend that illogical simply and unreasonable point, it is in license to sell it who has no selling whisky by a nonresident subjects arising therefrom to income Georgia . . . income case, many refuta- I view by Georgia.” are, tax There this might be reasoning. In this connection it particular tions this always in been accord properly suggested that court has this promul- Commissioner to the State Revenue power as to the State, 206 Ga. 734 regulations. Glustrom v. gate rules and See promul- present the rule in the Thus property “whisky sold becomes the that all gated the effect .seriously .ques- point” might be purchaser shipping f.o.b. (cid:127) in rule in effect is conflict legality, tioned as to its when rale, and 96-402. This 18-325, 96-401, 18-324, with Code §§ forth') (as hereinafter set however, other rules well as operations Georgia. began effect at the time distilleries they quali- time did not at the here involved Since the distilleries (in. they nor have -this Georgia' question, since operate fied to otherwise) legality 'pro- rule questioned litigation (but contrary ac- have mulgated by the Commissioner now too late such complied rules), with such it is cepted and time complain any rule effective at the object or distilleries operations. they began their “desig- allege they petition in their that have distilleries representatives.” From and nonresident

nated resident clearly appears that their allegations their other procured permit required representatives or license have beyond question that appears It therefore the Commissioner. through licensed had been distilleries, representatives, their argument Georgia. Any that these whisky in licensed to sell rec- licensed can not sustained were'not so distilleries first they such could not sold the ord, since without license whisky Georgia. bottle their ad- case, I in the should be As view the only York the New verse to the distilleries contention of accept confirm Under authority had orders. sales office regulations promulgated the Commissioner the rulés *7 made during period sales were in effect at all times in which could only the involved, here Commissioner the distilleries not any and “sale” it could approve "sales,” made, when writing in changed modified the consent or without provides: “A li- the Commissioner Commissioner. Rule 904 of li- spirits order from a desiring distilled censed wholesaler in registered producer quadruplicate fill or shall first out censed and by shipping permit prescribed form Commissioner if he who, for to the Commissioner approval forward the same copy, retain one and send one same, shall indorse the approves, to the copy producer, to said and one wholesaler, to said one shipped. spirits are to which said distilled to be State warehouse changed No such the Commissioner’s order shall be without approval; canceled, and order said wholesaler loritten if Department copies producer said return to their and shall (Italics supplied.) approved shipping permit form.” said there quoted, rule above does exist Under the not even a fiction York -the contention that the New sales offices the distil- had control of “sales.” The leries and the Commissioner, passed questions all alone, sales, Commissioner related to here acquiesced distilleries involved at all times operated under rule. this ten alleged para- counts it is In each graph one highest corporate thereof that “its officer resident Georgia.” State maintains his office in Fulton As County, the writer will undertake show in division of this three dis- sent, allegation by every allega- is refuted other material particularly by paragraphs tion of the petition, 9 and 10. This allegation, however, accepted considering must be as true liability the tax here allegation the distilleries involved. This substantially distinguishes most the present case from the three upon. cases cited and relied In neither of the three cases was alleged corporation that the corporate had a officer residing in Fulton Georgia. If, County, as alleged, the main- distilleries corporate tained a officerin Georgia operation for the busi- its County, ness with offices in Fulton then Georgia, clearly and unquestionably “doing such were Georgia distilleries business” in subject imposed. tax contract between distilleries and representa- tives of the State Commissioner, good whether bad, or legal did illegal, purport to relieve the distilleries tax assessed and paid, which I am satisfied was due and required of the distilleries under law, for reasons heretofore forth. set however, appears As to the contract, that the freely distilleries voluntarily entered into it (if, indeed, they did not induce execution), its they this contract “lulled” the State Revenue Commissioner into a course of inaction. Having pro- cured that for (inaction which the distilleries contracted by the Commissioner), it I is, it, contrary view law, equity, and good objection conscience to sustain the of the distilleries to the contract. Whether not Cox had authority to execute the *8 it served the contract, purposes desires and of the distilleries, they procured and benefits which have not and can be re- stored the State. The contract should therefore stand aas distilleries, disposition any final of all of claims the related paid. the taxes jurisdiction the person may While be jurisdic- waived, subject the matter can tion of not be upon conferred any court by waiver, consent, plead or failure to to the jurisdiction, and a judgment rendered a court jurisdiction without subject the wholly matter is void and of no effect. In present the case the Superior County of Fulton Courts did not any have jurisdiction present the case is in matter, and the subject the Assembly cre- In the acts of General void. this reason

for (Ga. Sess., Ex. 1937-38, L. Revenue Department of ating the Supp., pp. Code, Ann. 272-274; 77-103; Ga. L. pp. § taxpayer have the shall provided that (b)), 92-8436 in superior county a refund “in right for to sue appeal judg- from a have a taxpayer would which said By acts Commissioner.” the same by the State ment losing 92-8446) provided that Supp., Ann. (Code, § county of the superior court may appeal “to party railroad or taxpayer unless taxpayer, of the residence in which corporation nonresident¡ event public service other superior court of the party be to appeal of either shall place doing principal business, county in which is located its highest corporate in the resident or in which the chief officer (Italics (Ann. supplied.) In Code maintains his State office.” that “No court shall have provided trial Supp.) 92-8445 it is § question” any by the proceedings to assessment jurisdiction of Chapter pro- “except as in this Commissioner State Revenue any questioning assess- provision There other vided.” is no for the out. Eminent counsel dis- except ment that above set skill, sought bring their tilleries, with adroitness by alleging in provisions paragraph of the law within highest corporate officerresident in the main- that “its State one County.” petition, in in Fulton Elsewhere their his office tains particularly paragraphs these distilleries show corporate County, officer in Fulton that they have no only capacity connected with such distilleries persons authority is to whose sole solicit orders for their are salesmen duly D. Redwine, qualified Honorable Charles products. acting Commissioner, is a Fayette State Revenue resident of Georgia. Capitol Distributing Co. v. County, Redwine, 206 Ga. Every officer, the absence authority statutory contrary, must sued in the some legal and in county residence, case the his General Assembly jurisdiction said that no trial court shall have has “except Chapter granted provided,” and no court is allegations jurisdiction under the other than County, county Fayette of the residence of defendant. *9 Banking Redwine, In & Co. Ga. Railroad the rule to be: “The Justice Candler stated S. E. Mr. 234), give jurisdiction litigation to a court parties to cannot by law; and when a subject matter a when it has none suit subject matter no as to court, trial in a over it has which any judgment except therein one of dis- jurisdiction, renders brought upon here for review writ missal, and the case is judgment own motion reverse the court will of its error, this jurisdiction in exception whether to it for want exceptions or not.” If these dis- below taken in the bill of moneys receive back out tilleries are demand and now to justly believe be taxes due treasury, State all of which I their demand should be sustained Georgia, done in jurisdiction subject judgment having a court of the matter. petition and allegations applicable the law Under Superior my Court of Fulton thereto, County, opinion, subject jurisdiction of the and the matter, judgment had no wholly therefore void and should so declared this court. Commr., 18571. Redwine, Browne-Vintners Co., Inc. respects

Duckworth, In all Chief Justice. material this case is identical Schenley Industries, ante, except plea with Redwine that no consequently estoppel involved; ruling is here division of that controlling requires here and decision affirmance. concur, except Judgment Head, J., All the Justices who affirmed. dissents. May Argued 1954 Decided June George Eugene Attorney-General, Cook, Sims, Jr., Doug- F. Attorneys-General, Assistant John W. King, Wilcox, Jr., las in error. plaintiff

Sutherland, Brennan, Asbill & James H. contra. Wilson, Jr.,