Alabama Girls' Industrial School v. Adler

• Decision Date: 30 June 1905
• Citation: 144 Ala. 555,42 So. 116
• Parties: ALABAMA GIRLS' INDUSTRIAL SCHOOL v. ADLER ET AL.
• Court: Alabama Supreme Court

42 So. 116

144 Ala. 555

ALABAMA GIRLS' INDUSTRIAL SCHOOL v. ADLER ET AL.

Supreme Court of Alabama

June 30, 1905

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

"To be officially reported."

Action by Morris Adler and others against the Alabama Girls' Industrial School. From a judgment for plaintiffs, defendant appeals. Dismissed.

This suit was instituted to recover $2,500 of advance money paid by Adler & Co., through their agent, on a contract entered into in the name of said agent with the appellant in this cause, for the purchase from it of certain lands donated to it by Congress. There was no objection raised on the trial to the jurisdiction of the court to hear and determine the cause, and upon issue being joined upon the general issue a judgment was rendered for plaintiff. After the submission of the appeal, the want of jurisdiction in the lower court was by brief of counsel, for the first time interposed. Under the views taken by the Supreme Court, as set out in the opinion in this cause, it is unnecessary to notice further the pleadings or evidence in the court below.

Whitson & Dryer and Samuel Will John, for appellant.

Smith &amp Smith and R. J. Low, for appellees.

DENSON J.

Section 14 of article 1 of the Constitution of 1901, which is a literal reproduction of section 15, art. 1, of the Constitution of 1875, expressly prohibits the state from being made a party defendant in any court of law or equity. In the case of Alabama Girls' Industrial School v Reynolds, 42 So. 114, we held that an action or suit against the defendant in this case (appellant here) is really and substantially one against the state, and that it is exempt under the Constitution from all actions or suits. Under the influence of the case above cited, the judgment rendered by the lower court against the defendant (appellant here) must be held void for want of jurisdiction in the court to hear and determine the cause, and the appeal must be dismissed, unless it can be properly held that there was a waiver by the defendant of its immunity from being sued.

The defendant appeared by counsel, and, without making any objection to being sued and without in any way raising the question of the jurisdiction of the court, went to trial on the plea of the general issue. If the defendant had been a person or a corporation liable to suit, by the course adopted by it unquestionably the question of the jurisdiction of the court of the person of the defendant would have been waived. But we must determine the question of waiver here in connection with the constitutional prohibition referred to. "The power to hear and determine a cause is jurisdiction; and it is coram judice whenever a case is presented which brings this power into action. But, before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected, that such complaint has actually been preferred, and that such person or thing has been properly brought before the tribunal to answer the cause of action therein contained." Sheldon's Lessees v Newton, 3 Ohio St. 494; Rhode Island v Massachusetts, 12 Pet. 718, 9 L.Ed. 1233. There is not only no law giving the court capacity to entertain the complaint against the defendant, but there is the section of the organic law of the state which prohibits such capacity. There is no provision in the Constitution by which the exemption of the state from suit may be waived. The Legislature is without competency to enact a statute allowing the state to consent to a suit against itself, and it would seem that, if the lawmaking body has no power to enact a law granting such consent, certainly any action on the part of an attorney, a mere agent of the state, would be...