No. 79-1308.United States Court of Appeals, Fifth Circuit.
July 23, 1980.

Page 1302

Durwood T. Pye, Pye, Groover Dailey, Atlanta, Ga., Emmett P. Johnson, Baxley, Ga., for plaintiffs-appellants.

L. Clifford Adams, Jr., Atlanta, Ga., Thomas S. Gray, Jr., Savannah, Ga., Robert P. Edwards, Jr., James E. Joiner, Atlanta, Ga., for Municipal Electric Auth. of Ga.

Appeal from the United States District Court for the Southern District of Georgia.

Before GEE, FAY and RANDALL, Circuit Judges.


[1] On the basis of the order of the district court, a copy of which is appended hereto, the above cause is AFFIRMED.



DAVID BURKE, * NO. 278-66

Plaintiffs *

VS. *


Defendants *

Page 1303


The above-styled action involves the collection of ad valorem
taxes in Appling County, Georgia. Plaintiffs, the County, itself,
and individual citizens and taxpayers of Appling County, seek to
impose ad valorem taxes on that portion of the Edwin I. Hatch
Nuclear Plant located in Appling County, which is owned by the
Municipal Electric Authority of Georgia, hereinafter (MEAG). To
this end, plaintiffs seek declaratory relief pursuant to
28 U.S.C. § 2201, alleging that MEAG’s interest in Plant Hatch is in
fact not tax-exempted “property” and that defendant, Georgia
Power, should pay taxes on Plant Hatch in its entirety.
Plaintiffs allege further that the defendants have in combination
“misused” MEAG’s statutory exemption from taxation and have
thereby deprived plaintiffs of due process and equal protection
of the law. Defendants are also said to have violated the
contract impairment clause in Article I of the Constitution.
Plaintiffs pray that the Court declare that the entirety of Plant
Hatch is subject to taxation, that MEAG’s 17.7% interest is not
exempt from taxation, or alternatively that the 17.7% interest is
not exempt from taxation for the payment of principal and
interest on certain County bonds. The case is presently before
the Court on defendants’ motions to dismiss on various grounds.

The purpose of the Municipal Electric Authority of Georgia
which was created by the Georgia Legislature, Ga. Code Ann. §
34B-401 et seq., is:

“. . . to acquire and construct, and operate and
maintain or cause to be constructed, operated, and
maintained electric generation and transmission
facilities, and to take all other necessary or
desirable action, in order to provide or make
available an adequate, dependable, and economic
supply of electric power and energy and related
services for such of said political subdivisions of
the State of Georgia as are hereinafter identified in
section 34B-427, as may desire the same and,
incidentally and so as to take advantage of economies
of scale in the generation and transmission of
electric power and energy, to other persons and

Ga. Code Ann. § 34B-403. The property of the Authority is
declared by statute to be public property and is statutorily
exempted from taxation by the State or any of its political
subdivisions, Ga. Code Ann. § 34B-406. Pursuant to Ga. Code
Ann. §§ 34B-407, 34B-408 and 34B-427, MEAG purchased from
Georgia Power a 17.7% undivided interest in the Hatch Nuclear
Plant. MEAG supplies electrical power to 47 political
subdivisions in Georgia, though not to Appling County.

Defendants move to dismiss on grounds, inter alia, that the
Court lacks subject-matter jurisdiction of the action. Of course,
the fact that the plaintiffs seek declaratory relief under
28 U.S.C. § 2201, does not absolve them of the necessity of bringing
themselves within a jurisdictional statute. See 6A J. Moore,
Federal Practice ¶ 57.23 (2d ed. 1974); Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876,
94 L.Ed. 1194 (1950). Plaintiffs attempt to bring themselves within the
Court’s federal question jurisdiction under 28 U.S.C. § 1331, and
they also allege subject-matter jurisdiction under 42 U.S.C. § 1983
and its jurisdictional counterpart, 28 U.S.C. § 1343.


28 U.S.C. § 1341

Defendants argue that the Tax Injunction Act, 28 U.S.C. § 1341,
deprives the Court of jurisdiction and requires dismissal of the
complaint. The Act provides:

“The district courts shall not enjoin, suspend or
restrain the assessment, levy or collection of any
tax under State law where a plain, speedy and
efficient remedy may be had in the courts of such

28 U.S.C. § 1341. While a suit seeking declaratory relief can
fall within the scope of § 1341’s prohibition, Coon v.
Teasdale, 567 F.2d 820, 821 n. 2 (8th Cir. 1977), under Fifth
Circuit precedents, § 1341 is inapplicable to the present action
because it seeks

Page 1304

not to inhibit the collection of taxes, but to require the
collection of additional taxes. See Hargrave v. McKinney, 413 F.2d 320
(5th Cir. 1969). See also Bland v. McHann, 463 F.2d 21,
26 n. 21 (5th Cir. 1972), cert. denied 410 U.S. 966,
93 S.Ct. 1438, 35 L.Ed.2d 700 (1973); Battle v. Cherry, 339 F. Supp. 186
(N.D.Ga. 1972).

Apart from 28 U.S.C. § 1341, a judicially created doctrine of
abstention appertains to cases in federal court involving state
tax administration. See, e.g., Great Lakes Dredge Dock Co. v.
Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943).
However, this judicial abstention doctrine has also been held
inapplicable where the suit seeks to require additional taxes.
Hargrave v. Kirk, 313 F. Supp. 944 (M.D. Fla. 1970) (three-judge
court), reversed on other grounds sub nom., Askew v. Hargrave,
401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). Accord
Cornelius v. Benevolent Protective Order of Elks,
382 F. Supp. 1182 (D. Conn. 1974).


28 U.S.C. § 1331

Defendants cite L N R.R. v. Mottley, 211 U.S. 149,
29 S.Ct. 42, 53 L.Ed.2d 126 (1908), for the proposition that a federal
district court has subject-matter jurisdiction under § 1331 only
when plaintiff’s statement of his own cause of action shows that
it is based on federal law. See also Phillips Petroleum Co. v.
Texaco, Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209
(1974). Defendants argue that there is no federal question
jurisdiction under § 1331 because the plaintiffs’ Constitutional
claims are alleged only in anticipation of a defense which the
defendants will assert, i.e., MEAG’s statutory exemption from
taxation. The allegations that Georgia Power did not really
transfer any taxable “property” to MEAG when it conveyed the
17.7% interest in Plant Hatch, and that the defendants have
“misused” MEAG’s statutory tax exemption are clearly based on
state law. However, plaintiffs’ Constitutional claims cannot be
characterized as merely anticipating the defense of MEAG’s
statutory exemption. Plaintiffs seek to impose ad valorem taxes
on Plant Hatch in its entirety, alleging that under the status
quo, they are being deprived of their constitutional rights of
due process and equal protection. Compare Bell v. Hood,
327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

There remains, however, the question of whether the
Constitutional claims are so insubstantial as to defeat
jurisdiction. Compare Hagans v. Lavine, 415 U.S. 528, 538-539,
94 S.Ct. 1372, 1380, 39 L.Ed.2d 577 (1974). The Court concludes
that the question must be answered in the affirmative and that
plaintiffs’ Constitutional claims can fairly be characterized as
insubstantial. From plaintiffs’ complicated and lengthy
pleadings, their Constitutional claims can be distilled to the

1. The fact that the County cannot tax the 17.7% of
Plant Hatch which was conveyed to MEAG, coupled
with the fact that MEAG’s share of the electric
power generated at Plant Hatch is transmitted to
political subdivisions other than Appling County
deprive plaintiffs of equal protection or due
process, or both. (Under Ga. Code Ann. § 34B-427,
MEAG is authorized to contract to provide an
electric power supply only with those political
subdivisions of the state which ” . . . on the date
this Chapter becomes law own and operate an
electric distribution system. Appling County is not
among those political subdivisions.)[1]

Page 1305

2. The plaintiffs claim that their inability to tax
Plant Hatch in its entirety constitutes a violation
of the contract impairment clause because the
County must pay the principal and interest on
certain outstanding bonds from ad valorem
proceeds, previously pledged to bond retirement.

The insubstantiality of plaintiffs’ Constitutional claims is
evident from well established Supreme Court precedents:

“This Court has repeatedly held that inequalities
which result from a singling out of one particular
class for taxation or exemption infringe no
constitutional limitation.

* * * * * *

“A legislature is not bound to tax every member of a
class or none. It may make distinctions of degree
having a rational basis, and when subject to judicial
scrutiny they must be presumed to rest on that basis
if there is any conceivable state of facts which
would support it.”

Carmichael v. Southern Coal Coke Co., 301 U.S. 495, 509,
57 S.Ct. 868, 872, 81 L.Ed. 1245 (1937). The Supreme Court expounded
on this principle in the recent case of Lehnhausen v. Lake Shore
Auto Parts Co., 410 U.S. 356, 359-360, 93 S.Ct. 1001, 1004,
35 L.Ed.2d 351 (1973), a case involving an Illinois tax scheme which
imposed a personal property tax on corporations, but not on

“The Equal Protection Clause does not mean that a
State may not draw lines that treat one class of
individuals or entities differently from the others.
The test is whether the difference in treatment is an
invidious discrimination. Harper v. Virginia Board
of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079,
1081, 16 L.Ed.2d 169. Where taxation is concerned and
no specific federal right, apart from equal
protection, is imperiled, the States have large
leeway in making classifications and drawing lines
which in their judgment produce reasonable systems of
taxation. As stated in Allied Stores of Ohio v.
Bowers, 358 U.S. 522, 526-527, 79 S.Ct. 437, 440,
3 L.Ed.2d 480:

`The States have a very wide discretion in the
laying of their taxes. When dealing with their
proper domestic concerns, and not trenching upon
the prerogatives of the national Government or
violating the guaranties of the Federal
Constitution, the States have the attribute of
sovereign powers in devising their fiscal systems
to ensure revenue and foster their local interests.
Of course, the States, in the exercise of their
taxing power, are subject to the requirements of
the Equal Protection Clause of the
Fourteenth Amendment. But that clause imposes no iron rule of
equality, prohibiting the flexibility and variety
that are appropriate to reasonable schemes of state
taxation. The State may impose different specific
taxes upon different trades and professions and may
vary the rate of exercise upon various products. It
is not required to resort to close distinctions or
to maintain a precise, scientific uniformity with
reference to composition, use or value.’

“In that case we used the phrase `palpably
arbitrary’ or `invidious’ as defining the limits
placed by the Equal Protection Clause on state

See also Desco Products Caribbean, Inc. v. Government of Virgin
Islands, 511 F.2d 1157, 1160 (3d Cir. 1975); Byrd v. Blue Ridge
Rural Electrical Cooperative, Inc., 215 F.2d 542 (4th Cir.
1954), cert. denied, 348 U.S. 915, 75 S.Ct. 295, 99 L.Ed. 717
(1955); South Carolina Power Co. v. South Carolina Tax
Commission, 52 F.2d 515 (E.D. S.C. 1931), aff’d, 286 U.S. 525,
52 S.Ct. 494, 76 L.Ed. 1268 (1932).

The Fifth Circuit has recently held that:

” . . . a complaint which alleges the existence of a
federal question establishes jurisdiction, so that a
dismissal for lack of jurisdiction is appropriate
only when the court decides that a claim is frivolous
or insubstantial, i.e., a claim that has no plausible
foundation, or when the court concludes that a prior
Supreme Court decision clearly forecloses the claim.
See Bell v. Health-Mor, Inc., 549 F.2d 342, 344
(5th Cir. 1977); Hilgeman v. National Ins. Co.,
547 F.2d 298, 300 (5th Cir. 1977).”

Page 1306

Olivares v. Martin, 555 F.2d 1192, 1195 (5th Cir. 1977). Here,
under standards well-established by the Supreme Court, MEAG’s
statutorily conferred exemption is valid unless irrational and “.
. . when subject to judicial scrutiny [the exemption] must be
presumed to rest on [a rational] basis if there is any
conceivable state of facts which would support it.” Carmichael
v. Southern Coal Coke Co., supra. Under this standard, the
plaintiffs’ Constitutional claims are clearly insubstantial, and
lack any plausible foundation. The Georgia statutes creating and
governing MEAG, Ga. Code Ann. § 34B-401 et seq., are patently
rational and are free from arbitrary discrimination.[2]

A strikingly similar case is Blackman v. City of Big Sandy,
Texas, 377 F. Supp. 771 (E.D.Tex. 1974), aff’d, 507 F.2d 935
(5th Cir. 1975). In that case, the owners of a service station
challenged on Constitutional grounds a zoning ordinance which
prohibited the sale of alcoholic beverages within 300 feet of any
hospital, church or school. The Standard for determining the
Constitutional validity of the zoning ordinance was the same
standard applicable to the tax exemption in the instant case,
i.e., is the ordinance rational or is it arbitrarily
discriminatory? The district court held that the ordinance was
clearly not arbitrary, and it dismissed the complaint, finding
that no substantial federal question was presented. The Fifth
Circuit affirmed.

The plaintiffs’ contention under the Contract Clause of Article
I, Section X, of the Constitution [“No state shall . . . pass any
. . . law impairing the obligation of contracts”] is frivolous.
Plaintiffs allege in Paragraph 31 of the complaint that from 1966
to 1974, Appling County has issued various general obligation
bonds for hospital, courthouse, and school purposes. Plaintiffs
allege further that:

“These bonds are all now in the hands of purchasers
who acquired the bonds in good faith, relying upon
the contracts which resulted from the issuance and
sale of the bonds, including the contract obligation
which bound all the taxable property of Appling
County for the payment of the principal and interest
on said bonds according to the laws then of force. *
* The actions of defendants whereby they undertake to
exempt from taxation for the payment of said bonds
the aforesaid 17.7% interest is in derrogation of the
aforesaid contract. It is violative of the
Constitution of the United States, Article I, Section
X, providing that no State shall pass any law
impairing the Obligation of Contracts, for the
Authority acts as an instrumentality of the State of
Georgia, pursuant to said Act of 1975 creating it,
and Georgia Power Company confederates, combines and
contracts to such unlawful end. So much of said Act
of 1975, approved March 19, 1975 (Georgia Laws 1975,
p. 107) as in Section 6 thereof provides that `all of
the property * of the Authority * are declared to be
nontaxable for any and all purposes by the State or
any of its political subdivisions’; so far as the
same applies to taxation for the payment of the
principal and interest on said bonds according to the
tenor thereof, is null and void as violative of said
Article I, Sec. X, of the Constitution of the
United States, for the reason that there would be an
impairment of the Obligations of Contracts if
tangible property in Appling County subject to
taxation for the payment of said bonds were exempted

Page 1307

said taxation after their issuance and sale, . . .”

Paragraph 31 of Plaintiffs’ Complaint. The plaintiffs’ theory
seems to be that all property which was “taxable property” when
the bonds were issued, must remain in the County tax base, at
least for the payment of principal and interest on the
aforementioned bonds.

Generally, when a political subdivision is authorized to
contract and to exercise the power of taxation to meet its
contractual obligations, the power to tax must continue until the
obligations are satisfied. See Louisiana v. Pilsbury, 105 U.S. 278,
26 L.Ed. 1090 (1882); Louisiana ex rel. Hubert v. New
Orleans, 215 U.S. 170, 30 S.Ct. 40, 54 L.Ed. 144 (1909); W. B.
Worthen Co. v. Kavanaugh, 295 U.S. 56, 55 S.Ct. 555,
79 L.Ed. 1298 (1935). But not every impairment of a contract violates the
Contract Clause. That Clause does not prohibit a state from
repealing or amending statutes generally or from enacting
legislation with retroactive effects. The strictures of the
Contract Clause must be reconciled with the “essential attributes
of sovereign power.” Home Building Loan Association v.
Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934). See
also United States Trust Co. v. New Jersey, 431 U.S. 1,
97 S.Ct. 1505, 52 L.Ed.2d 92 (1977). Here, the exemption of 17.7% of Plant
Hatch from taxation certainly reduces the ad valorem taxes
which the County takes in, but there is no allegation that this
reduction seriously impairs the County’s ability to meet its
obligations on the bonds.

Moreover, the complaint alleges that the bonds are held by
unspecified good faith purchasers. The Court concludes that no
plaintiff has standing to challenge MEAG’s exemption on the basis
that it impairs the rights of the holders of County bonds.
Compare Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197,
2205, 45 L.Ed.2d 343 (1975).

The claims of the individual plaintiffs cannot be based on
federal question jurisdiction under 28 U.S.C. § 1331 for the
additional reason that they fail to allege that their individual
claims exceed $10,000. The complaint does allege that if the
County could tax MEAG’s interest in the Plant, it could collect
an additional $831,550 in ad valorem taxes. The impact that
this would have on individual taxpayers is unclear. Indeed,
unless the millage rates were reduced there would be no apparent
impact on individual taxpayers. Defendants note correctly that
each plaintiff must meet the amount in controversy requirement.
These claims are “several and distinct.” Alvarez v. Pan American
Life Insurance Co., 375 F.2d 992 (5th Cir. 1967), cert. denied
389 U.S. 827, 88 S.Ct. 74, 19 L.Ed.2d 82 (1967). See also
Schreiber v. Lugar, 518 F.2d 1099 (7th Cir. 1975); Buckingham
v. Lord, 326 F. Supp. 218 (D.Mont. 1971); Allanson v. Camp,
324 F. Supp. 734 (N.D.Ga. 1971). See generally, Annot., 2 A.L.R.Fed.
855, 868 (1969).

Citing Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534,
67 L.Ed. 937 (1923), MEAG argues that the County’s claims should
also be dismissed because the County has no standing to invoke
the federal Constitutional guarantees of due process and equal
protection against an enactment of the State of Georgia. The
Court finds this argument persuasive. Plaintiffs allege that by
virtue of the fact that the County cannot impose ad valorem
taxes on MEAG’s 17.7% interest of Plant Hatch, it is deprived of
due process and equal protection. This allegation cannot be
construed as anything other than a constitutional challenge to
MEAG’s state-conferred tax exemption, at least as applied to
MEAG’s interest in Plant Hatch. In City of Safety Harbor v.
Birchfield, 529 F.2d 1251, 1254-1255 (5th Cir. 1976), the Court

“Ever since the Supreme Court’s landmark decision
in Dartmouth College v. Woodward, 17 U.S. (4
Wheat.) 518, 4 L.Ed. 629 (1819), it has been apparent
that public entities which are political subdivisions
of states do not possess constitutional rights, such
as the right to be free from state impairment of
contractual obligations, in the same sense as private
corporations or individuals. 17 U.S. (4 Wheat.) at
660-61, 4 L.Ed. at 664.

Page 1308

Such entities are creatures of the state, and possess
no rights, privileges or immunities independent of
those expressly conferred upon them by the state.
Id.; Williams v. Mayor and City Council of Baltimore,
289 U.S. 36, 40, 53 S.Ct. 431, 432, 77 L.Ed. 1015,
1020 (1933); see Railroad Commission v. Los Angeles
R. R., 280 U.S. 145, 156, 50 S.Ct. 71, 73-74,
74 L.Ed. 234, 329 (1929); Risty v. Chicago, R. I. P. R.
R., 270 U.S. 378, 390, 46 S.Ct. 236, 241, 70 L.Ed. 641, 651
(1926); City of New York v. Richardson, 2 Cir. 1973,
473 F.2d 923, 929, cert. denied sub nom. Lavine v. Lindsay,
412 U.S. 950, 93 S.Ct. 3012, 37 L.Ed.2d 1002 (1973).
Thus, in Trenton v. New Jersey, 262 U.S. 182,
43 S.Ct. 534, 67 L.Ed. 937 (1923), the Supreme Court
held that a city which had obtained its water
resources by acquiring a private water company
through proper exercise of its proprietary authority
could not assert the right to freedom from impairment
of contractual obligations because of the difference
in the relation of private and public entities to the
state. In contrast to private individuals and
entities, municipal corporations have repeatedly been
denied the right to challenge state legislation
allegedly violative of the Federal Constitution.
Williams v. Mayor and City Council of Baltimore,
supra; Pawhuska v. Pawhuska Oil Gas Co., 250 U.S. 394,
398, 39 S.Ct. 526, 528, 63 L.Ed. 1054, 1057
(1919) (“as respects grants of political or
governmental authority to cities, towns, counties,
and the like the legislative power of states is not
restrained by the contract clause of the
Constitution”); City of New Orleans v. New Orleans
Water Works Co., 142 U.S. 79, 12 S.Ct. 142,
35 L.Ed. 943 (1891).”

The County argues that it is a person within the meaning of
the Fourteenth Amendment:

“Nor shall any state deprive any person of life,
liberty, or property without due process of law nor
deny to any person . . . the equal protection of the

The County relies on the Supreme Court’s recent decision in
Monell v. Department of Social Services of the City of New
York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), in
which the Court held that a municipality was a “person” within
the meaning of 42 U.S.C. § 1983. However, Monell is inapposite
to the present controversy. A County or City’s lack of standing
to challenge state legislation on federal Constitutional grounds
is based on the rationale that:

“A municipal corporation, created by a state for the
better ordering of government, has no privileges or
immunities under the federal Constitution which it
may invoke in opposition to the will of its creator.”

Williams v. Mayor and City Council of Baltimore, 289 U.S. 36,
40, 53 S.Ct. 431, 432, 77 L.Ed. 1015 (1933).

The Supreme Court’s holding in Monell is that by enacting
42 U.S.C. § 1983, Congress intended to make municipalities and other
political subdivisions amenable to suits brought under that
section. The Monell decision does not call into question the
principle that a city or county cannot challenge a state statute
on federal Constitutional grounds.


42 U.S.C. § 1983 and 28 U.S.C. § 1343

There is no amount in controversy requirement under § 1983, but
this statute restricts only “state action.” Despite plaintiffs’
conclusory allegations of concerted, combined and conspiratorial
actions by the two defendants, with respect to their
constitutional claims, plaintiffs do not sufficiently allege that
defendant, Georgia Power Company, has acted under color of state
law. See generally, Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). The state action
requirement is satisfied as to defendant MEAG, an official arm of
the State.

However, the attempt to base jurisdiction on § 1343 also fails
as to defendant MEAG because, as discussed above, the plaintiffs’
Constitutional claims are patently insubstantial. This lack of
substantiality undermines § 1343 jurisdiction as well as § 1331
jurisdiction. See, e. g., Howard v.

Page 1309

State Department of Highways of Colorado, 478 F.2d 581
(10th Cir. 1973).

In sum, the Rule 12(b)(1) motion to dismiss for lack of
subject-matter jurisdiction is hereby granted in favor of both
defendants. The clerk is directed to enter an appropriate

So Ordered, this 4th day of January, 1979.

/s/ Anthony A. Alaimo
Chief Judge, United States District
Court, Southern District of Georgia

[1] Plaintiffs emphasize that they are not challenging the constitutionality of MEAG’s statutory exemption itself. According to plaintiffs, the exemption is not properly applicable to MEAG’s 17.7% interest in Plant Hatch. Plaintiffs contend that it is th application of the exemption in this situation which deprives them of due process and equal protection. As discussed above, the contentions that the exemption has been “misused” and that MEAG’s interest in Plant Hatch is not tax-exempt property, are governed by state law. But whether the plaintiffs challenge the statutory tax exemption on its face, or only the operation of the exemption in this particular situation, the federal Constitutional question, as discussed below, is the same, i.e., is the exemption rational or is it “palpably arbitrary?”
[2] The Supreme Court of Georgia has so held. See Thompson v. Municipal Electric Authority of Georgia, 238 Ga. 19, 231 S.E.2d 720 (1976). Ga. Code Ann. § 34B-408(j) allows any Georgia citizen to become a party to proceedings involving the validation of the Authority’s revenue bonds. In Thompson, supra, a citizen intervened in such proceedings and maintained essentially the same positions which plaintiffs take in the case sub judice,
though the case did not involve Plant Hatch specifically. The Supreme Court rejected these arguments under the state Constitution. In this context, the uniformity provisions of the Georgia Constitution are substantially similar to the equal protection concept of the Fourteenth Amendment to the United States constitution. See 71 Am.Jur.2d, State and Local Taxation § 158 (1973). This Court does not base its ruling on the Georgia decision and does not hold that the Thompson case has any res judicata effect on plaintiffs herein, who were not parties to that litigation. But Compare Battle v. Cherry, 339 F. Supp. 186, 191-193 (N.D.Ga. 1972) for a case in which res judicata principles were applied on facts not greatly dissimilar from these.