Opinion
No. 10059.
October 30, 1941. Rehearing Denied December 15, 1941.
Appeal from the District Court of the United States for the Northern District of Georgia; E. Marvin Underwood, Judge.
Action by the State of Georgia, through its Attorney General, against Hiram W. Evans and others under the Sherman Anti-Trust Act, §§ 1-7, 15 U.S.C.A., §§ 1-7, and 15 note, for treble damages. From a judgment dismissing the action, the plaintiff appeals.
Affirmed.
Ellis Arnall, Atty. Gen., of Georgia, for appellant.
Marion Smith, E.W. Moise, Morgan Belser, and Hal Lindsay, all of Atlanta, Ga., Barry Wright, of Rome, Ga., and Benj. B. Taylor, of Baton Rouge, La., for appellees.
Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.
The state of Georgia, through its Attorney General, brought this suit against American Bitumuls Co., Shell Oil Co., Inc., Emulsified Asphalt Refining Co., Hiram Wesley Evans, a dealer in emulsified asphalt and John W. Greer, Jr., purchasing agent for the State Highway Board of Georgia, to recover damages, alleging the parties named and others had engaged in a conspiracy to control the sale of emulsified asphalt throughout the United States, in violation of the Sherman Anti-Trust Act of July 2, 1890, 15 U.S.C.A. §§ 1- 7, 15 note. The complaint further alleged that the state of Georgia had been damaged in the amount of $128,027.13, through the payment of excessive prices for asphalt purchased. The prayer was for recovery of $384,081.39. Defendants moved to dismiss the suit on the ground that the state of Georgia is not a "person" entitled to bring such an action under the provisions of Sec. 7 of the Sherman Anti-Trust Act, 15 U.S.C.A. § 15. The motions were granted and the suit dismissed.
The state of Georgia is a sovereign. The case is controlled by the decision of the Supreme Court in United States v. Cooper Corporation, 312 U.S. 600, 61 S.Ct. 742, 85 L.Ed. 1071. On the authority of that decision the judgment is affirmed.