Arkansas Game and Fish Commission v. Parker

• Decision Date: 13 April 1970
• Docket Number: No. 5--5202,5--5202
• Citation: 248 Ark. 526,453 S.W.2d 30
• Parties: ARKANSAS GAME AND FISH COMMISSION, Appellant, v. Parker PARKER, Appellee.
• Court: Arkansas Supreme Court

Page 30

453 S.W.2d 30

248 Ark. 526

ARKANSAS GAME AND FISH COMMISSION, Appellant, v. Parker PARKER, Appellee.

No. 5--5202.

Supreme Court of Arkansas.

April 13, 1970.

Rehearing Denied May 18, 1970.

Joe Purcell, Atty. Gen., Don Langston, Mike Wilson, Asst. Attys. Gen., Little Rock, for appellant.

Parker Parker, Russellville, for appellee.

BYRD, Justice.

Appellant, the Arkansas State Game and Fish Commission hereinafter referred to as Commission, filed this action (Cause #3440), to quiet its title to the NE 1/4 Sec. 28, T. 5 N., R. 21 W. against Parker Parker. It based its title upon a warranty deed from Betsy Altman dated March 3, 1953, recorded in Deed Book 73 at page 474 in the Dardanelle District of Yell County. Other allegations in the complaint are as follows:

'That notwithstanding the above allegations the sheriff and collector of Yell County, Arkansas, caused the said described property to be sold to the defendant herein, Parker Parker, at a tax sale on November 8, 1954, and that subsequent to the said sale, the Clerk of the County Court of Yell County, Arkansas, caused a clerk's deed of tax sale to be delivered to the defendant herein, Parker Parker, dated January 15, 1957, and filed for record April 15, 1957, at 10:00 a.m.

That on or about the 17th day of September, 1959, the Chancery Court of Yell County, Arkansas, Dardanelle District, entered a decree confirming the title to the said lands described herein to the defendant herein, Parker Parker, said decree being found in Chancery Record H at Page 303 of the Chancery Records of Yell County, Arkansas, Dardanelle District.

That the said decree and tax title issued pursuant thereto were null and void and of no affect since the property purported to be delinquent and confirmed was legally and equitably owned by the State of Arkansas for the use and benefit of the Arkansas Game and Fish Commission.

That Ark.Stat.Ann. § 10--214 provides that no tax title shall be valid or binding against the equitable or legal interests of this State in or to any real estate whatever, but such tax titles are and shall be void, so far as the same shall conflict with the interests of the State, and shall be treated and considered as null and void in both law and equity in all courts of the State.'

On motion of Parker the case of Parker v. Certain Lands, No. 3101 in the Chancery Court of Yell County, Dardanelle District was consolidated with the action filed by the Commission. In Cause No. 3101 Parker sought to quiet title to numerous tracts of land purchased at tax sales over a number of years. The service obtained there was by newspaper publication. After publication of the notice the Commission voluntarily appeared and claimed four parcels but made no claim to the tract here involved. As a result Parker's complaint in Cause 3101 was dismissed as to those four parcels, but a decree was entered confirming Parker's title to the NE 1/4 Sec. 28, T. 5 N., R. 21 W., here involved.

Cause 3440 was submitted to the Chancellor upon motions by both parties for summary judgment. From a decree holding that the Commission was estopped by the judgment in Cause 3101 from proceeding against the lands here involved, the Commission appeals. We agree with the trial court.

Our Constitution (1874) Art. 5, § 20 provides: 'The State of Arkansas shall never be made defendant in any of her courts.' In St. Louis Southwestern Ry. Co. v. Yates, (CCA 10, 1927), 23 F.2d 283, the foregoing provision was construed to mean, '(T)hat the state cannot be compelled to defend in any action in a court of that state, but that the state may voluntarily appear and ask to be made a party in any action, either in the state or the federal courts.'

In Arkansas State Highway Commission v. Partain, 193 Ark. 803, 103 S.W.2d 53 (1937), in construing the same provision, we said:

'* * * In contending, however, that in no case can the courts render a judgment against the state, counsel misconceive the effect and purpose of the constitutional provision, supra. The prohibition is limited to a denial of any one to sue the state in her own courts. The state, however, by virtue of its sovereignty, may become a suitor in her own courts and, when she has done so, she has the same rights and is subject to like restrictions as a private suitor and must submit to, and abide by, the result. Wilson v. Parkinson, 157 Ark. 69, 247 S.W. 774; * * *'

In King v. Harris, 134 Ark. 337, 203 S.W. 847 (1910), King filed an action as the only heir of Smith to recover possession of land from Harris and Fullerton. The prosecuting attorney appeared and defended on the basis that the lands had escheated to the state and requested that the cause be dismissed as an action against the state. In reversing the trial court's dismissal of the complaint, we said:

'* * * The state has in effect become a party plaintiff to this litigation, and the court should not thereafter have dismissed the complaint for the reason assigned, i.e., that it was a suit against the state. * * *'

The cases from other jurisdictions are to the same effect. See Stoner v. Rice, 121 Ind. 51, 22 N.E. 968 (1889), and Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883).

Therefore, as we understand the law, the Commission as an agency of the State was under no obligation to appear and defend in Cause No. 3101, but when it voluntarily did so it became bound by the decree entered therein like and other private suitor. Consequently, we agree with the Chancellor that the decree in Cause No. 3101 is conclusive of the issues raised by the Commission's complaint here in Cause No. 3440.

Affirmed.

HARRIS, C.J., and BROWN and FOGLEMAN, JJ., dissent.

FOGLEMAN, Justice (dissenting).

I respectfully submit that an improper application of the doctrine of estoppel to divest the state of its title to real estate is being made by the majority. It seems to me that courts should be particularly reluctant to invoke this doctrine against the state acting in its sovereign capacity. See 28 Am.Jur.2d 782, et seq., §§ 122 and 123 and cases cited; also, see Annot. 1 A.L.R.2d 338 (1948) and cases cited. See also United States v. Lee Wilson & Co., 214 F. 630 (E.D.Ark.1914), aff'd, 227 F. 827 (8th Cir. 1915), aff'd, 245 U.S. 24, 38 S.Ct. 21, 62 L.Ed. 128 (1917). We should also be especially hesitant to apply the doctrine to vest title to real property, at least in the absence of actual fraudulent representation, concealment or conduct amounting to fraud in law, especially when the result is divestiture of the state's title. See 28 Am.Jur.2d 723, Estoppel and Waiver, § 81, and cases cited. We recognized these principles when we refused to apply the doctrine of estoppel to bar the state from claiming title to an island, in spite of a positive statement by the State Land Commissioner that the state had no claim thereto. Rankin v. Chancery Court, 221 Ark. 110, 252 S.W.2d 551, cert. denied, Williams v. Rankin, 345 U.S. 956, 73 S.Ct. 938, 97 L.Ed. 1377. We should exercise even greater restraint when we are called upon to apply estoppel based on disclaimer arising solely from inaction or omission of a state agency or official.

In considering the propriety of the chancery court action, we should keep in mind that it was taken by means of summary judgment in appellee's favor. We must also keep in mind that the decree upon which appellee relies was rendered on September 17, 1959, one month after the entry of an order of dismissal as to the lands claimed by the Arkansas Came and Fish Commission in its answer. Consequently, this is not a situation in which a litigant can be said to be barred from attacking the validity of a decree under which he claims benefits, as was the case in Crain v. Foster, 230 Ark. 190, 322 S.W.2d 443. Arkansas Game and Fish Commission does not, did not and has not claimed any benefit under that decree.

The Arkansas authorities cited in the majority opinion and those relied upon by the trial judge to invoke the doctrine of estoppel against the state are all cases in which the state had invoked the jurisdiction of the court as a plaintiff. ¹ I have been unable to find any case in which the state's role has actually been that of a defendant. As a matter of fact, the state cannot become a defendant in its courts. It has uniformly been held that the state's immunity cannot be waived, even by the General Assembly. Roesler v. Denton, 239 Ark. 462, 390 S.W.2d 98; Bryant v. Arkansas State Highway Commission, 233 Ark. 41, 342 S.W.2d 415. Not many years ago we held unconstitutional an act which would have permitted courts to appoint a receiver for the properties and facilities of a state park upon default in the payment of bonds issued by the State Publicity and Parks Commission and secured by revenues from the park. Fairbanks v. Sheffield, 226 Ark. 703, 292 S.W.2d 82. There we said that the provisions of Art. 5, § 20, of our Constitution are mandatory and not...