Megee v. Barnes

• Citation: 160 N.W.2d 815
• Decision Date: 05 September 1968
• Docket Number: No. 53015,53015
• Parties: Mary MEGEE, Appellant, v. B. L. BARNES, as Dean of the College of Business Administration of the University of Iowa, and Ray B. Mossman, as Business Manager and Treasurer of the University of Iowa, Appellees.
• Court: United States State Supreme Court of Iowa

Page 815

160 N.W.2d 815

Mary MEGEE, Appellant, v. B. L. BARNES, as Dean of the College of Business Administration of the University of Iowa, and Ray B. Mossman, as Business Manager and Treasurer of the University of Iowa, Appellees.

No. 53015.

Supreme Court of Iowa.

Sept. 5, 1968.

Nolan, Lucas & Nolan, Iowa City, for appellant.

Richard C. Turner, Atty. Gen., and Arthur O. Leff, Special Counsel, Iowa City, for appellees.

GARFIELD, Chief Justice.

Plaintiff brought this action in mandamus against two officials of the University of Iowa to compel payment of her claim for alleged breach of contract at employment as a research associate at the institution. The trial court ruled the action was in reality one against the state which would not lie without its consent. Plaintiff has appealed from judgment dismissing the action pursuant to the ruling. We affirm.

Plaintiff's petition alleges she was employed by the University as research associate in the College of Business Administration for one year commencing July 1, 1966 as shown by copy of the memorandum of employment (exhibit A) made part of the petition; on September 12, 1966 the University, through the dean of the college, wrongfully breached the contract by discharging plaintiff as shown by letter, (exhibit B) also made part of the petition; plaintiff has attempted without success to get like employment; the contract was valid and it was the duty of defendants, the dean and business manager-treasurer of the University, to carry it out; plaintiff attempted to perform her part of the contract but was prevented from doing so by the breach above referred to; there is owing plaintiff the amount specified in exhibit A for the period from October 12, 1966 to July 1, 1967; plaintiff has no speedy or adequate remedy at law.

Prayer of the petition is that a writ of mandamus issue compelling defendant dean to certify to the business manager-treasurer of the University the amount claimed to be owing plaintiff under her contract exhibit A and directing the latter official to pay such amount, and for such other relief as is equitable.

Exhibit A is a letter from the president of the University to plaintiff dated July 1, 1966 informing her she had been appointed, subject to law and general University policies, 'Res. Assoc.' in the College of Business Administration, Bureau of Business and Economic Research, at a current salary of $12,000 with certain deductions for a retirement program, insurance and social security. Nothing in the exhibit refers to the period of plaintiff's employment unless it be the amount of her current salary.

Exhibit B, the letter from the dean, dated September 12, 1966, notifies plaintiff her employment by the University would terminate October 12, 1966 as the result of her failure to function cooperatively and effectively with the director and staff of the Bureau of Business and Economic Research; her work in the Bureau would cease immediately and she would be on vacation until the termination date.

The first ground of defendants' motion to dismiss is that the University is the educational arm of the state and as such is not subject to suit. The second ground asserts plaintiff's action is actually against the University and the individual defendants as officers thereof are within the immunity which covers it.

Plaintiff's resistance to the motion asserts in part that her right to payment for her services was legally agreed upon by the State of Iowa through defendants and others on behalf of the University.

As before indicated the court ruled plaintiff was attempting to recover for breach of contract from the state which was immune from suit and the action would not lie.

I. We have held many times the state is not subject to suit without its consent. The immunity is from suit, not from liability.

Rule 9 of the Rules of Civil Procedure, reported by us to the legislature in January, 1943, effective July 4, 1943, gives recognition to the rule just stated in this language: 'The state may sue in the same way as an individual. * * * It may be sued as provided by any statutes in force at the time.' No statute has been cited or come to our attention which provides the state may be sued in such an action as this.

The legislature must be held to have known the language of Rule 9 and to have approved it. We have repeatedly held these rules have the force and effect of statutes. Krebs v. Town of Manson, 256 Iowa 957, 960, 129 N.W.2d 744, 746 and citations; Kutrules v. Suchomel, 258 Iowa 1206, 1211, 141 N.W.2d 593, 596 and citations.

The legislature has given the consent of the state, upon the conditions provided in section 613.8 Code 1966 for its protection, that it be made a party to any action involving (1) the title to real estate, (2) partition thereof, (3) foreclosure of liens or mortgages against real estate or (4) the determination of priorities of liens or claims against real estate, for the purpose of obtaining an adjudication as to any such mortgage or other lien or claim. (Section 613.8)

Section 613.12 provides the state waives immunity from suit and consents to the jurisdiction of any court in which an action is brought against the state highway commission respecting any claim, right or controversy arising out of the work performed or by virtue of the provisions of any construction contract entered into by the commission.

It is at once apparent the present action is not of the kind in which the state has waived its immunity from suit in either 613.8 or 613.12. It is also apparent that if the state enjoyed no such immunity both these statutes were wholly unnecessary.

Further, by express mention of the forms of action in which the state consents to be sued and waives its immunity from suit the legislature impliedly excluded others. 'The legislative intent is expressed by omission as well as by inclusion.' State v. Flack, 251 Iowa 529, 533--534, 101 N.W.2d 535, 538, and citations; Dotson v. City of Ames, 251 Iowa 467, 471--472, 101 N.W.2d 711, 714; North Iowa Steel Co. v. Staley, 253 Iowa 355, 357, 112 N.W.2d 364, 365. See also Graham v. Worthington, 259 Iowa 845, 855, 146 N.W.2d 626, 633.

Immunity of the state from suit without its consent is widely recognized. We refer to some of the general statements of the rule.

81 C.J.S. States § 214, reads in heavy type 'A state, by reason of its sovereign immunity, is immune from suit and it cannot be used without its consent in its own courts * * *.'

Collins v. State Board of Social Welfare, 248 Iowa 369, 372--373, 81 N.W.2d 4, 6, cites the above section of C.J.S., Rule 9 R.C.P., supra, and several Iowa decisions for this:

The law is well settled, and conceded by Appellee, that in the absence of specific consent by the State, it or its agencies may not be sued in an action to obtain money from the State or to interfere with its sovereignty or the administration of its affairs through proper agencies.'

Wittmer v. Letts, 248 Iowa 648, 653, 80 N.W.2d 561, 564, holds there is no immunity from liability of a county hospital for injury to a paying patient from negligent maintenance of the hospital. The opinion thus points up the difference between such an action against a county and one like this which is really against the state: 'Under the ancient common law the Sovereign, generally speaking, could not be sued and this policy has come down to us and is now found in our statutes. 58 I.C.A. Rule 9, R.C.P., and Section 613.8, Code 1950 I.C.A. Thus the State is immune from suit rather than from liability.' (page 650 of 248 Iowa, page 562 of 80 N.W.2d)

Montandon v. Hargrave Construction Co., 256 Iowa 1297, 1299--1301, 130 N.W.2d 659, 660--661, quotes with approval 81 C.J.S. States § 214, supra, and cites Wittmer v. Letts for the proposition 'Except where consent has been given by the legislature the state is immune from suit.' The Montandon opinion also points out that abrogation of the doctrine of governmental immunity 'has generally applied to municipal corporations and not to the State except where legislative consent appears. * * *

'The statutes and decisions relating to municipal corporations do not apply to a suit against the State. Section 368.2, Code of Iowa, I.C.A., authorizes suits against cities and towns. There is no such statute authorizing suits against the State.

'The (highway) commission is an arm of the State, and unless legislative consent appears is not subject to suit in this case. Rhodes v. Iowa State Highway Commission, 250 Iowa 416, 419, 94 N.W.2d 97, 99.'

Referring to what is now Code Section 613.12, summarized supra herein, the Montandon opinion quoes with approval this rule from 82 C.J.S. Statutes § 391, for construction of statutes in derogation of state sovereignty:

'Statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed, and should not be permitted to divest the state or its government of any of its prerogatives, rights or remedies, unless the intention of the legislature to effect this object is clearly expressed.' (page 1303 of 256 Iowa, page 662, 130 N.W.2d). To like effect are United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 85 L.Ed. 1058, 1063 and citations, (Stone, J.). See also Dalehite v. United States, 346 U.S. 15, 24, 31, 73 S.Ct. 956, 97 L.Ed. 1427, 1438; Ford Motor Co. v. Department of Treasury of State of Indiana, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389, 396.

Graham v. Worthington, supra, 259 Iowa 845, 861, 146 N.W.2d 626, 637, repeats with approval the quotation set out supra from Wittmer v. Letts, supra, 248 Iowa 648, 650, 80 N.W.2d 561, 562. The Graham opinion also points out the distinction between political subdivisions of the state such as cities, school districts and counties and officers, agents and employees thereof, on the one hand, and officers, agents and employees of the state acting within the scope of their...