Aland v. Graham, 7 Div. 892

• Court: Supreme Court of Alabama
• Writing for the Court: MERRILL
• Citation: 287 Ala. 226,250 So.2d 677
• Parties: Leon ALAND v. Joe W. GRAHAM, etc. et al.
• Docket Number: 7 Div. 892
• Decision Date: 08 July 1971

Page 677

250 So.2d 677 287 Ala. 226 Leon ALAND
v.
Joe W. GRAHAM, etc. et al. 7 Div. 892. Supreme Court of Alabama. July 8, 1971.
Rehearing Denied Aug. 5, 1971.

[287 Ala. 227]

Page 678

Samuel Tenenbaum and John N. Randolph, Birmingham, for appellant.

[287 Ala. 228] William J. Baxley, Atty. Gen., Robert A. Macrory, William G. O'Rear and Wayne P. Turner, Asst. Attys. Gen., for appellees.

MERRILL, Justice.

This is an appeal in a declaratory judgment proceeding in which the trial court dismissed complainant's bill of complaint. No evidence was presented as the cause was dismissed after an argument and hearing on a plea styled a plea in abatement.

The bill showed that appellant owns 120 acres in the northwest corner of Section 19, Township 19, Range 1 West, that his property adjoins Oak Mountain State Park and that his property 'is landlocked and that it has no access, except through said public park.' It is not contended that appellant's land is surrounded on all sides by Oak Mountain State Park, but on the sides of his property not adjacent to the park, the topography of appellant's land would make it very difficult for him to get to and from his property without going through the park. The desired road in the park property is in the SE 1/4 of the SE 1/4 of Section 13, Township 19 South, Range 2 West. It would start at the point where the properties touch each other at the northwest corner of Section 19 and the southeast corner of Section 13.

It is alleged that all the properties once belonged to Alabama Mineral Land Company, that it was sold to various owners, that various owners sold the park land in Section 13 to the United States and the United States conveyed same to the State of Alabama for use as a public park retaining reversionary rights. Other facts and the prayer of the bill appear later in the opinion.

The main question to be decided is whether complainant's suit is a suit against the State. If so, is it in violation of Sec. 14 of the Constitution of 1901 which provides: 'That the State of Alabama shall [287 Ala. 229] never be made a defendant in any court of law or equity.'

The question of whether a suit is against the State has been raised by demurrer--Dunn Construction Co. v. State Board of Adjustment, 234 Ala. 372, 175 So. 383; by motion--State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So.2d 342, and by brief of counsel for the first time on appeal--Alabama Industrial School v. Adler, 144 Ala. 555, 42 So. 116.

We have held that the circuit court is without jurisdiction to entertain a suit against the State because of Sec. 14 of the Constitution. J. R. Raible Co. v. State Tax Commission, 239 Ala. 41, 194 So. 560. And this court has said that it will take notice of the question of jurisdiction at any time or even ex mero motu. Horn v. Dunn Brothers, Inc., 262 Ala. 404, 79 So.2d 11; Scott v. Alabama State Bridge Corporation, 233 Ala. 12, 169 So. 273. Therefore, it appears that a trial court or an appellate court should, at any stage of the proceedings, dismiss a suit when it becomes convinced that it is a suit against the State and contrary to Sec. 14 of the Constitution.

On oral argument both sides to this controversy asked us to overlook any technical omissions in pleading and nomenclature and decide the main question as to whether this is a suit against the State. Here, the question of a suit against the State was first raised in a pleading denominated 'Plea in Abatement' which, prior to a ruling thereon, was later amended to contain a plea in bar. This ordinarily would have waived the subject of the plea in abatement--proper venue--because by pleading in bar before the plea in abatement

Page 679

is determined by the trial court, or attempting to plead in abatement and in bar together amounts to a waiver of the plea in abatement. Rhode Island Ins. Co. of Providence, R.I. v. Holley, 226 Ala. 320, 146 So. 817; Jones v. Baker, 34 Ala.App. 108, 41 So.2d 191.

But acceding to the requests of the parties, and because it is not material how the question of jurisdiction is raised, we treat the action of the trial court in sustaining the plea in abatement and dismissing the cause as being predicated solely on its decision that the instant case was a suit against the State.

In determining whether an action against a State officer is a suit against the State in violation of the constitutional prohibition, the court considers the nature of the suit or the relief demanded. State v. Norman Tobacco Co., 273 Ala. 420, 142 So.2d 873; Wallace v. Board of Education, 280 Ala. 635, 197 So.2d 428.

In Southall v. Stricos Corporation, 275 Ala. 156, 153 So.2d 234, the court said:

'Section 14 of the Constitution provides that the State shall never be made a defendant in any court of law or equity. The State cannot consent to such a suit. Section 14 not only prevents a suit against the State, but against its officers and agents in their official capacity, when a result favorable to the plaintiff or complainant would directly affect a contract or property right of the State. State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581, and cases cited; Mead v. Eagerton, 255 Ala. 66, 50 So.2d 253.'

Without professing to cover every situation that has arisen, there are four general categories of actions that we have held do not come within the...