To avoid the harsh results sovereign immunity would impose, the court has often employed the legal fiction that such a suit is not a suit against the state, but against an errant official, even though the purpose of the suit is to control state action through state employees. See Undercofler v. Seaboard Air Line R. Co., 222 Ga. 822, 827 ( 152 S.E.2d 878) (1966) (suit seeking to enjoin assessment of property taxes was not suit against the state because complaint alleged tax commissioner was acting contrary to state and federal constitutions). In other instances, the court has scrutinized the challenged act and if the act is legal, found sovereign immunity applies; on the other hand, if the act is illegal, then the court has held that sovereign immunity is no bar.
The evidence presented, without detailing all of it here, illustrates the method and procedure used by the Commissioner including use of sales ratio studies which are now generally accepted as probative evidence in determining assessment levels. See Undercofler v. Seaboard A.L.R. Co., 222 Ga. 822 ( 152 S.E.2d 878) (1966). See also, Southern Bell Tel. Tel. Co. v. County of Dade, 275 So.2d 4 (Fla.
The rule that the state may not be sued without its consent is not applicable to an action where injunction is sought to prevent the commission of an alleged wrongful act by an officer of the state acting under color of office but without lawful authority and beyond the scope of official power. Dennison Mfg. Co. v. Wright, 156 Ga. 789 (1) ( 120 S.E. 120) (1923); Cannon v. Montgomery, 184 Ga. 588 (2) ( 192 S.E. 206) (1937); Holcombe v. Ga. Milk Producers Confederation, 188 Ga. 358 (1) ( 3 S.E.2d 705) (1939); Fleisher v. Duncan, 195 Ga. 309 (1) ( 24 S.E.2d 15) (1943); Ga. Public Service Comm. v. Atlanta Gas Light Co., 205 Ga. 863 (1) ( 55 S.E.2d 618) (1949); Moore v. Robinson, 206 Ga. 27 (2) ( 55 S.E.2d 711) (1949); Ga. Power Co. v. Ga. Public Service Comm., 211 Ga. 223 (2) ( 85 S.E.2d 14) (1954); Murdock v. Perkins, 219 Ga. 756 (2) ( 135 S.E.2d 869) (1964); Undercofler v. Eastern Air Lines, 221 Ga. 824 (1) ( 147 S.E.2d 436) (1966); Undercofler v. Seaboard A.L.R. Co., 222 Ga. 822 (1) ( 152 S.E.2d 878) (1966). We have examined the other contentions of the commissioner as to why the action would be barred, and have found them to have no merit.
See Bunger v. State, 146 Ga. 672 (2) ( 92 S.E. 72) (1917). Undercofler v. Seaboard A.L.R. Co., 222 Ga. 822 (1) ( 152 S.E.2d 878) (1966), relied upon by appellees, is distinguished by its facts. Regents, not the Governor, would stand in the place of the defendant in that case.
AC Corp. v. Myree , 221 Ga.App. 513, 515 (1), 471 S.E.2d 922 (1996) (citations and punctuation omitted). See also Undercofler v. Seaboard A. L. R. Co. , 222 Ga. 822, 829 (7), 152 S.E.2d 878 (1966) (fundamental rule is that an intervenor takes the case as he finds it and cannot inject new issues). "Intervention does not occur until the court enters an order permitting it.
P. F. Moon relies on the general rule that "an intervenor takes the case as he finds it and cannot inject new issues." Undercofler v. Seaboard Air Line R. Co., 222 Ga. 822, 829(7) ( 152 S.E.2d 878) (1966), and the following dicta from AC Corp. v. Myree, 221 Ga. App. 513, 516(2) ( 471 S.E.2d 922) (1996): Should an intervenor seek to litigate issues different from those already pending between the parties, to claim additional damages, or to raise additional defenses, . . . the intervenor's ability to raise these matters would be controlled by OCGA §§ 9-11-21 and 9-11-15(c).
Stoddard v. Bd. of Tax Assessors c., 163 Ga. App. 499, 501 ( 295 S.E.2d 170). Further, we find the results of the various studies in this case which showed assessment to fair market value percentages ranging from 36.9 percent to 38.30 percent vastly different from the disparity condemned by our Supreme Court in Undercofler v. Seaboard Air Line R. Co., 222 Ga. 822 ( 152 S.E.2d 878). Thus, we find no violation of Art. VII, Sec. I, Par. III of the Georgia Constitution of 1983.
ntiff and the department); Irwin v. Crawford, 210 Ga. 222 ( 78 S.E.2d 609) (suit to enjoin members of a county board of education and school superintendent from consolidating high school grades of two schools); Ga. Pub. Serv. Commn. v. Atlanta Gas Light Co., 205 Ga. 863 ( 55 S.E.2d 618) (suit by public utility to enjoin the Public Service Commission and its members from enforcing commission orders); Patten v. Miller, 190 Ga. 105 (6) ( 8 S.E.2d 776) (suit to enjoin claimant to office from interfering with another claimant to office); Stanley v. Sims, 185 Ga. 518 ( 195 S.E. 439) (mandamus to compel chairman and secretary of the Department of Industrial Relations to pay the director his salary); Undercofler v. Eastern Air Lines, Inc., 221 Ga. 824 ( 147 S.E.2d 436) (suit against "Hiram K. Undercofler, who is State Revenue Commissioner . . . and E. J. Olmstead, who is Director of the Sales and Use Tax Unit" seeking injunctive and declaratory relief against sales and use tax assessments); Undercofler v. Seaboard A.L.R. Co., 222 Ga. 822 (1) ( 152 S.E.2d 878) (injunction suit against Hiram K. Undercofler, State Revenue Commissioner, claiming discrimination and disproportionate assessment of its property for ad valorem taxes); Moore v. Robinson, 206 Ga. 27 (2) ( 55 S.E.2d 711) (suit to enjoin members of Georgia Board of Chiropractic Examiners, officially and individually, from issuing licenses to unqualified applicants); Murdock v. Perkins, 219 Ga. 756 ( 135 S.E.2d 869) (suit against members of the State Board of Education, officially and individually, attacking a decision and order of the board). 3. A jailer or other officer owes to a prisoner in his care the duty to exercise ordinary diligence to keep him safe and free from harm, to render him medical aid when necessary, and to treat him humanely and refrain from oppressing him; and where the officer is negligent in the care and custody of his prisoner or fails in the performance of his duty to him, and as a result the prisoner is injured or meets his death, the off
Fourth, IBM v. Evans was wrongly decided because many of the cases it relied upon predate the constitutional ratification of sovereign immunity in 1974. See Undercofler v. Seaboard Air Line R.R. Co., 222 Ga. 822, 152 S.E.2d 878 (1966); Irwin v. Crawford, 210 Ga. 222, 78 S.E.2d 609 (1953); Cannon v. Montgomery, 184 Ga. 588, 192 S.E. 206 (1937). Opinions of Georgia appellate courts dealing with the judicial application of sovereign immunity prior to the 1974 constitutional amendment are not applicable to claims against the State arising after the 1974 amendment because the 1974 amendment created “ ‘an entirely new ball game’ ” with regard to sovereign immunity.