Arnold v. State.

• Decision Date: 16 December 1944
• Docket Number: No. 4866.,4866.
• Citation: 48 N.M. 596,154 P.2d 257
• Parties: ARNOLDv.STATE.
• Court: New Mexico Supreme Court

48 N.M. 596

154 P.2d 257

ARNOLD

v.STATE.

No. 4866.

Supreme Court of New Mexico.

Dec. 16, 1944.

Appeal from District Court, Santa Fe County; William J. Barker, Judge.

Suit by Herman Arnold against the State of New Mexico to have a statute declared unconstitutional. From a judgment overruling defendant's motion to dismiss the suit on ground that state was sued without its consent, defendant appeals.

Reversed and remanded with direction to sustain defendant's motion.

The statute, providing that state or any official thereof may be sued and declaratory judgment entered when parties' rights, status or other legal relations call for construction of State Constitution or statute, is not a general consent by the state to be sued under its provisions. 1941 Comp. § 25-603.

C. C. McCulloh, Atty. Gen., and Robert W. Ward, Asst. Atty. Gen., for appellant.

J. Benson Newell, of Las Cruces, for appellee.

SADLER, Chief Justice.

The decisive question, if answered negatively, is whether 1941 Comp. § 25-603 constitutes a general consent on the part of the state to be sued under the provisions of the Declaratory Judgments Act, L.1935, c. 143. Our former decision in Taos County Board of Education v. Sedillo, 44 N.M. 300, 101 P.2d 1027, supplies a negative answer to the question and we adhere to that decision on this appeal.

The plaintiff, who is appellee before this court, sued the state, securing service on the Governor and the Attorney General pursuant to Trial Court Rule 57(b), 1941 Comp. § 19-101, Rule 57(b). The petition disclosed that one Louise M. Arnold died on December 30, 1943, at Alamogordo, New Mexico, at the age of 92; that she was the widow of plaintiff's deceased brother and that the deceased husband and wife had acquired substantial real and personal community property during their marriage; that Louise M. Arnold had never remarried after the death of her husband; that during her lifetime and apparently after her husband's death she had executed a last will leaving practically her entire estate to the plaintiff but that all efforts to locate it had failed, the implication of the petition being that it had been secreted or destroyed by certain persons, husband and wife, who lived with decedent some months prior to her death and for whose benefit decedent had transferred substantially all her property in trust in exchange for their promise to care for, support and furnish her decent burial.

The petition further alleged that decedent had on deposit in a certain bank in Alamogordo at the time of her death, seemingly not subject to the trust, the sum of $500. It also alleged facts which, if true, would take certain personal property described in the trust deed, out from under the terms of the trust and render it, along with the cash in bank, subject to descent. Then, followed an allegation that under the provisions of 1941 Comp. § 31-116, purportedly repealed by L.1943, c. 17, there being no issue, where the surviving spouse shall die intestate as in this case, the community property of the marriage descends to the heirs of the husband and wife, the implication being that he is the sole heir of the deceased husband. The repeal of section 31-116, under which the plaintiff hopes to inherit, was assailed upon the constitutional ground that the subject of the repealing act was not clearly expressed in the title in that it referred only to the specified section of the 1941 Compilation embracing the act sought to be repealed, in alleged violation of Art. IV, § 16 of the state constitution. The state's interest was made to rest on the allegation that if the repealing act was effective, then all property of the decedent, including the bank balance of $500, would escheat to the state in that she must be deemed to have died intestate and without heirs.

[1] With this background, the plaintiff then set forth in a concluding paragraph of his petition the language relied upon to invoke relief under the Declaratory Judgments Act, as follows: “Plaintiff alleges that there is an actual existing controversy over the constitutionality of said Chap. 17 of the Laws of 1943, between him and the State of New Mexico,-the State contending that said law is constitutional and that said Sec. 31-116 of the 1941 Code is repealed; and the plaintiff contending same is effective because of the unconstitutionality of the repealing act.”

The state appeared by the Attorney General and filed its motion to dismiss, setting up several grounds, the first of which is as follows: “That plaintiff's petition shows on its face that this Court is without jurisdiction over the defendant in that defendant is the State of New Mexico and that plaintiff is attempting to sue the State of New Mexico without its consent.”

[2] In State ex rel. Evans v. Field, 27 N.M. 384, 201 P. 1059, 1060, we said: “It is a fundamental doctrine at common law and everywhere in America that no sovereign state can be sued in its own courts or in any other without its consent and permission.”

Indeed, so fundamental is the lack of consent that it was treated as jurisdictional in the foregoing case and permitted to be raised for the first time in this court.

The plaintiff relies upon the following language found in 1941 Comp. § 25-603 of the Declaratory Judgments Act as constituting general consent on the part of the state to be sued under the provisions of the act, subject to the conditions therein stated, to-wit: “For the purpose of this act, the state of New Mexico, or any official thereof, may be sued and declaratory judgment entered when the rights, status or other legal relations of the parties call for a construction of the constitution of the state of New Mexico, or any statute thereof.”

In Taos County Board of Education v. Sedillo, 44 N.M. 300, 101 P.2d 1027, 1032, in a case decided only a few years following enactment of this legislation, the likelihood that this language would soon be relied upon as constituting a general immunity on the part of the state...