Under the facts of this case the Court of Appeals, and not the Supreme Court, has jurisdiction of the writ of error.

No. 13756. JUNE 20, 1941. On November 5, 1940, Durham Iron Company Incorporated sued out an attachment against "Florida State Hospital for the Insane (Fred P. cone as Governor of the State of Florida, R. A. Gray as Secretary of the State of Florida, J. M. Lee as Comptroller of the State of Florida, W. V. Knott as Treasurer of the State of Florida, Colin English as Superintendent of Public Instruction of the State of Florida, and Nathan Mayo as Commissioner of Agriculture of the State of Florida, as and constituting the Board of Commissioners of State Institutions)," the grounds for attachment, as averred in the affidavit, being indebtedness to the plaintiff and non-residence of the "debtor." The attachment was issued by a justice of the peace of Decatur County, and was made returnable to the city court of Bainbridge. The attachment was levied by the sheriff of Decatur County on described tracts of land situated in that county. On November 16, 1940, the plaintiff in attachment filed a declaration, and on the same day the "defendants" filed a motion to quash the attachment proceedings and dismiss the levy. On March 21, 1941, the motion to quash the attachment and dismiss the levy came on for hearing before the judge of the city court, without a jury. On that date and during the hearing the plaintiff, by leave of the court, amended its declaration, and after hearing evidence from both sides the judge entered an order overruling the motion. To this judgment the defendant or defendants named in the attachment proceeding excepted as "plaintiffs in error." The following is a copy of the motion filed in the city court:

"Come now the defendants in the above-stated case, at this the appearance term, and without admitting the jurisdiction of this court and by protestation, and without waiving its sovereign rights and immunity from suit, file this motion to quash the affidavit, bond, and to dismiss the levy on the lands described and embraced within the entry of service by the officer executing the same, on the following grounds: *Page 460

"1. Because it appears from the allegations set forth in the attachment, bond, and writ, issued from the justice court of the 513th district G. M. of Decatur County, Georgia, the same constitutes and is a suit manifestly against the officers of the sovereign State of Florida in their official capacity, and not as individuals, and it nowhere appears that the sovereign State of Florida has given its consent to the filing of said suit.

"2. Because the complaint and the allegations embraced therein constitute and are in their purport against the officers of the sovereign State of Florida in their official capacity, and not as individuals, and is as to a matter in which the officers have no personal interest as individuals, but to compel them to do the acts which constitute a performance by it of its contracts, and is in its very nature and effect a suit against the State itself, and the State is the real party against which the relief is asked, and the judgment sought is designed to be satisfied, discharged, and paid off out of property belonging to and the title of which is vested in the State.

"3. Because said suit is against Fred P. Cone as Governor of the State of Florida, R. A. Gray as Secretary of the State of Florida, J. M. Lee as Comptroller of the State of Florida, W. V. Knott as Treasurer of the State of Florida, Colin English as Superintendent of Public Instruction, and Nathan Mayo as Commissioner of Agriculture of the State of Florida, as and constituting together the Board of Commissioners of State Institutions, which board are by virtue of article IV, section 17, of the [constitution of the] State of Florida, the officers in charge of and having control of the properties of the Florida State Hospital for the Insane, and against them in their official capacity, and the levy made on the property described under such levy as consisting of all of lots of land Nos. 416, 419, and 420, containing 250 acres, more or less, each, and all of lot No. 385, except the right of way of the A. C. L. Railroad, containing 246.1 acres in the 21st district of Decatur County, Georgia, was on the date said attachment was sued out and levied and now is the property of the sovereign State of Florida, and said attachment, fi. fa., and levy is a suit against the State of Florida; and movant insists that the State of Florida is immune to suit without its express consent, which appears not to have been granted.

"4. Because it is manifest that a judgment for the plaintiff, Durham Iron Company Inc., in the instant case for any amount, *Page 461 if satisfied at all, would be satisfied from the sale of the lots and fractional lots described in the foregoing paragraph, which consist of and are assets of the sovereign State of Florida, and which under the constitution of said State, as provided by article IV, section 17, of the constitution of Florida, are needful and necessary for the control, maintenance, and continued operation of the Florida State Hospital, for the proper treatment and care of the lunatics and feeble-minded citizens of said State, comprising more than four thousand persons committed in and who are now patients of said Florida State Hospital, and which is an institution under the management and control of the defendants as officers of said State, under its constitution and statutory enactments as provided in sections 2296, 2297, etq., of the Revised General Statutes of the State of Florida, aforesaid.

"5. Because said lots of land levied upon by virtue of said attachment consist of and constitute property which is used by said Florida State Hospital as an institution for the care and protection of the lunatics and feeble-minded of said asylum, as a public institution, are devoted to a great public use, the same lying close to and adjacent to the administration buildings and hospital and consisting of a portion of the hospital farm whereon are grown necessary crops for the sustenance and maintenance of the patients of said institution, and those in control of the operation and management of the same.

"6. Because the stream of water which flows through the lands used by said hospital is a necessary creek or stream of water known as `Mosquito Creek,' which is located upon the lots levied upon, and said hospital receives its water for drinking, cooking, and other purposes from said stream; and to permit the plaintiff to subject the same to levy and sale under said attachment would dismember the property of said hospital seriously and interfere with the ability of these defendants as officers in discharge of the public duties incumbent upon them as officers of said State, and in the operation of the hospital belonging to said State.

"7. Because the sovereignty of the State of Florida is supreme, and to maintain that sovereignty the supremacy must also be maintained; and in order to continue its proper and necessary functions, the sovereign State of Florida should not be subjected to this suit without its expressed consent. *Page 462

"8. Because, as movants contend and here and now insist, that under the eleventh amendment to the constitution of the United States, said amendment was designed for the express purpose of preventing the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of either private individuals, firms, or corporations; and this sovereign State, as such, should not be summoned into court or its property seized for the payment of debts, without its consent."

The bill of exceptions contains the following recital: "Plaintiffs in error bring this bill of exceptions to the Supreme Court, and not to the Court of Appeals, for the reason the question involved is title to real estate, the construction of article 11 of the amendment to the constitution of the United States, the construction of article IV, section 17, of the constitution of the State of Florida, and also involves matters concerning the comity of States, in which the rights of a sister State are involved; and for these reasons the Supreme Court has jurisdiction over the errors complained of." 1. Under the facts of this case, the Court of Appeals, and not the Supreme Court, has jurisdiction of the writ of error. Under the constitution of Georgia, the Supreme Court has jurisdiction "in all cases that involve the construction of the constitution of the State of Georgia or of the United States," "in all cases in which the constitutionality of any law of the State of Georgia or of the United States is drawn in question; and, until otherwise provided by law, in all cases respecting title to land." See Code, § 2-3005, where still other classes of cases, not here material, are enumerated. It has been held: "The Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the constitution to a given state of facts, and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the State or of the United States, and that do not involve the constitutionality of any law of the State or of the United States or any treaty." Gulf Paving Co. *Page 463 v. Atlanta, 149 Ga. 114 (99 S.E. 374). In the present case no statute is attacked as unconstitutional, nor is there any reference to the constitution of this State, either as to construction or application. The motion to quash and dismiss was based in part, however, on the eleventh amendment to the United States constitution, by which it was provided, "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign State." Code, § 1-811. Ground 8 of the motion stated the contention of "movants" as to the purpose of this amendment, which contention is repeated in the bill of exceptions as assignment of error (d), wherein it is averred that "said suit is [in] violation of and repugnant to the eleventh amendment to the constitution of the United States, which eleventh amendment was designed for the express purpose of preventing the indignity of subjecting a sovereign State to the coercive process of judicial tribunals at the instance of either private individuals, firms, or corporations of this or any other State, and as such officers should not be summoned into court or its property seized for the payment of its debts without its consent." The case does not by these features present any question of construction within the meaning of the decision inGulf Paving Co. v. Atlanta, supra.

The meaning and purposes of the eleventh amendment have been stated in numerous decisions by the Supreme Court of the United States. In re Ayers, 123 U.S. 443, 505 (8 Sup. Ct. 164,31 L.ed. 216), it was stated: "The very object and purpose of the 11th amendment were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private individuals. It was thought to be neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons, whether citizens of other States or aliens, or that the course of their public policy and the administration of their public affairs should be subject to and controlled by the mandates of judicial tribunals, without their consent, and in favor of individual interests." Similar extracts from other decisions might be quoted. But after all, the State immunity thus *Page 464 discussed is immunity from suit in the Federal courts, because the amendment itself was clearly intended as a mere limitation upon Federal jurisdiction, and not as a restriction upon courts of other jurisdictions. "The eleventh amendment is an explicit limitation upon the judicial power of the United States. . . However important that power, it can not extend into the forbidden sphere." Missouri v. Fiske, 290 U.S. 18, 25 (54 Sup. Ct. 18, 78 L. ed. 145). The amendment was in no sense the source of the rule that a State can not be sued without its consent; for the rule was already in existence as a principle applicable to sovereignties generally, and the only purpose of the amendment was to force its recognition by the Federal courts with respect to the several States. For instance, in Beers v. Arkansas,61 U.S. 527, 529 (15 L. ed. 564), we find the following: "It is an established principle of jurisprudence in all civilized nations that the sovereign can not be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or another State. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it." We quote this statement only for its historical value, and not as approving all or any part of it as a rule to be applied in the present case; for the case itself is not for decision by this court. On the general subject, see 25 R. C. L. 412, § 49; 59 C. J. 300, § 459; and as to history of the eleventh amendment, see Chisholm v. Georgia, 2 Dall. 419 (1 L. ed. 16); Hollingsworthv. Virginia, 3 Dall. 378 (1 L. ed. 644); Governor of Georgiav. Madrazo, 26 U.S. 110 (7 L. ed. 73); In re Ayers, 123 U.S. 443,462-464 (31 L. ed. 216); Supreme Court of the United States in History (Charles Warren), vol. 1, pp. 90-104.

It follows from what has been said that the eleventh amendment has no relevancy whatever to the present case, and to this extent at least it is so clear in meaning as not to require construction within the rule as to jurisdiction stated in Gulf Paving Co. v.Atlanta, supra. The fact that a party may invoke either application or construction of a totally irrelevant constitutional provision manifestly *Page 465 could not serve to place the case within the jurisdiction of this court. It has been held several times that jurisdiction is not vested in this court merely because it is contended that anaction or judgment is or would be contrary to some provision of the State or Federal constitution. Dunn Motors v. GeneralMotors Acceptance Corporation, 174 Ga. 743 (163 S.E. 906);Thompson v. State, 174 Ga. 804 (164 S.E. 202); Campbell v. Atlanta Coach Co., 186 Ga. 77 (196 S.E. 769); MethodistEpiscopal Church v. Decell, 187 Ga. 526 (1 S.E.2d 432);Head v. Edgar Brothers Co., 187 Ga. 409 (200 S.E. 792). A fortiori, such jurisdiction would not attach where the provision invoked is palpably irrelevant. Courts are established and exist, not for the purpose of deciding theoretical law, but for adjudication of the rights of litigants; and surely a constitutional question which bears no reasonable relation to the case in hand could not be considered as determining jurisdiction. The question must at least be so related to the particular case that a decision thereon will be necessary unless it shall become unnecessary because of rulings on other questions raised. Burns v. State, 191 Ga. 60 (1, 4), 64 (11 S.E.2d 350). For illustration, a person indicted for the offense of fishing on Sunday could not, by pleading that his conviction would be in violation of the constitutional provision as to freedom of the press, and asking for a construction of such provision, bring the case within the jurisdiction of this court. This is of course an extreme example, but it illustrates the principle as to jurisdiction, and the present case is similar to the extent that it plainly does not involve any constitutional question a decision of which could ever become necessary or pertinent in determining the rights of the parties under the facts of the instant record.

This does not mean, however, that the case presents no question as to applicability of the general law regarding State immunity, nor does it mean that decisions of the United States Supreme Court applying or declining to apply the eleventh amendment may not be relevant and helpful as persuasive authority in determining the questions presented. The point is that the questions whether this case is in effect a suit against the State of Florida, and whether, if so, it is maintainable, do not, within themselves and without more, bring the case within any class of which this court has jurisdiction under the foregoing provision of the constitution of this *Page 466 State. Compare Code, § 40-209. Since the adoption of the amendment containing that provision (Georgia Laws 1916, p. 19), this court has taken jurisdiction in cases involving similar questions, not because of the inherent character of the questions themselves, but because the cases were otherwise of such character that jurisdiction was fixed in this court. DennisonManufacturing Co. v. Wright, 156 Ga. 789 (120 S.E. 120);Cannon v. Montgomery, 184 Ga. 588 (192 S.E. 206); Aiken v. Armistead, 186 Ga. 368, 386 (198 S.E. 237); Barwick v.Roberts, 188 Ga. 655 (4 S.E.2d 664).

2. Nor does the reference to the constitution of the State of Florida confer jurisdiction upon this court. The provision of the Georgia constitution (Code, § 2-3005) declaring the classes of cases of which this court shall have jurisdiction does not include cases involving either construction or application of the constitution of a different State. Compare Maner v. Dykes,183 Ga. 118 (187 S.E. 699); Jollie v. Hughes, 184 Ga. 860 (193 S.E. 769).

3. If the case involves in any manner title to land, it does so not directly but incidentally only; and therefore it is not a case respecting title to land, within the clause of the constitution, Code, § 2-3005, relating to the jurisdiction of this court. Colley v. Atlanta West Point Railroad Co.,156 Ga. 43 (118 S.E. 712); Radcliff v. Jones, 174 Ga. 324 (162 S.E. 679). In the brief of counsel for the plaintiffs in error, it is conceded that if jurisdiction is in this court, it is only because the plaintiffs in error "invoked the eleventh amendment to the Federal constitution." It is insisted that the case depends on how this provision is construed. For this reason, it is urged that jurisdiction should be retained regardless of whether the meaning of the amendment should be considered as free from doubt. From what has been said, we can not sustain this contention. The Court of Appeals, and not the Supreme Court, has jurisdiction. Code, § 2-3009.

Transferred to the Court of Appeals. All the Justicesconcur.