Automobile Sales Co. v. Johnson

• Decision Date: 17 December 1938
• Citation: 122 S.W.2d 453,174 Tenn. 38
• Parties: AUTOMOBILE SALES CO. v. JOHNSON et al.
• Court: Tennessee Supreme Court

122 S.W.2d 453

174 Tenn. 38

AUTOMOBILE SALES CO. v. JOHNSON et al.

Supreme Court of Tennessee.

December 17, 1938

Appeal from Circuit Court, Shelby County; Harry Adams, Judge.

Action by the Automobile Sales Company against J. C. Johnson and others to recover gasoline taxes which had been paid under protest. From an adverse judgment, plaintiff appeals.

Affirmed and dismissed.

Hal S Buchanan and William G. Cavett, both of Memphis, for appellant.

Dudley Porter, Jr., and Edwin F. Hunt, Asst. Attys. Gen., for appellees.

CHAMBLISS Justice.

This suit was brought by the Automobile Sales Company in the Circuit Court to recover gasoline taxes which had been paid under protest to the Commissioner of Finance and Taxation. The Commissioner and the constable, J. C. Johnson, who served a distress warrant issued by the Commissioner to compel payment of the tax, and the surety upon the bond of the constable, were made parties defendant. Johnson and the surety, the Fidelity and Casualty Company of New York, filed a demurrer on the ground that the suit was one to recover State tax which had been collected more than thirty days prior to the institution of the suit. The Commissioner filed a plea in abatement averring that the summons was executed on him in Shelby County, while he was in that County as a member of the State Board of Equalization in attendance upon hearings of that Board, pursuant to law; that Shelby County was not his residence or domicile, and that his sole business in that County when served was in the discharge of his official duties as before set forth. A demurrer was interposed to this plea.

The case was heard by the trial Judge upon an agreed statement of facts, and a demurrer of Johnson and the Surety Company was sustained and the plea in abatement of the Commissioner was likewise sustained, the demurrer thereto being overruled.

We consider, first, the question presented by the demurrer filed by Johnson and the Surety Company presenting the defense that the suit was not brought within the thirty days prescribed by the statute. It was shown by the stipulation that the Sales Company had filed a bill to recover this same tax in the Chancery Court of Shelby County within thirty days from the date of the payment of the tax, and this suit was dismissed without prejudice, the Chancellor having sustained a demurrer and a plea therein.

It is well settled that a suit to recover an allegedly illegal State tax, although nominally brought against the collecting officer, is a suit against the State. New England Mutual Life Insurance Co. v. Reece, 169 Tenn. 84, 96, 97, 83 S.W.2d 238; General Oil Company v. Crain, 117 Tenn 82, 95 S.W. 824, 121 Am.St.Rep. 967; Smith v Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140; 23 R.C.L., page 413.

It will not be questioned that no suit against the State can be maintained unless authorized by the Constitution or a statute. The statute authorizing a suit to recover an illegally paid tax is Code Section 1792, which reads as follows: "The person paying said revenue may, at any time within thirty days after making said payment, and not longer thereafter, sue the said officer having collected said sum, for the recovery thereof." (Italics inserted.)

It is also well settled that statutes permitting suits against the State must be strictly construed. State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858; New England Mutual Life Ins. Co. v. Reece, supra; Beers, to Use of Platenius v. Arkansas, 20 How. 527, 15 L.Ed. 991; Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140; 25 R.C.L., p. 416.

It is conceded that the suit at bar was not brought within thirty days after the payment was made. It is, however, insisted that, since the Sales Company had brought a former suit to recover this tax, within the thirty days after payment to the officer, and this former suit had been dismissed upon grounds not concluding the right of action, Code, Section 8572, has application. This presents the determinative issue. The section invoked reads as follows:

"If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within one year after the reversal or arrest."

It is insisted for the State that this statute is a general procedural statute and that such statutes do not apply to the State unless the State is specifically named therein. As authority for this insistence, Quinton v. Board of Claims, 165 Tenn. 201, 54 S.W.2d 953, is cited, wherein, on page 215, 54 S.W.2d on page 957, it was said:

"General procedural statutes in which the State is not specifically named, and which, if applied, would operate to restrict the state's sovereignty, cannot be invoked against the state.

"The last clause of article 1, § 17 of the Constitution provides that suits may be brought against the state in such manner and in such courts as the Legislature may by law direct. This provision carries the positive implication that suits shall not be brought otherwise, or at all, unless the authority be affirmatively given by statute. Insurance Co. v. Craig, 106 Tenn. [621], 629, 62 S.W. 155."

The general rule is thus set forth in Sutherland on Statutory Construction (2d), Volume 2, page 953, Section 514, as follows:

"It is a general rule that the State is not bound by the general words of a statute, which, if applied, would operate to trench on its sovereign rights, injuriously affect its capacity to perform its functions, or establish a right of action against it, unless the contrary is expressly declared or necessarily implied."

Cases from other jurisdictions supporting this view are: State v. Kinne, 41 N.H. 238; Schuyler County v. Mercer County, 9 Ill. 20, 4 Gilman 20; Seton v. Hoyt, 34 Or. 266, 55 P. 967, 43 L.R.A. 634, 75 Am.St.Rep. 641; Mayrhofer v. Board of Education et al., 89 Cal. 110, 26 P. 646, 23 Am.St.Rep. 451.

In the New Hampshire case, above cited, this very pertinent language is found:

"We find that it is a principle of the common law as old as the law itself, that 'the king is not bound by any statute, if he be not expressly named to be so bound.' Broom Leg.Max. 51. 'Roy n'est lie per ascun statute, si il ne soit expressement nosme.' It is said to be inferred, prima facie, that the law made by the crown, with the assent of the Lords and Commons, is made for subjects and not for the crown; but this rule seems to apply only where the property or peculiar privileges of the crown are affected, and this distinction is laid down, that where the king has any prerogative, estate, right, title, or interest, he shall not be barred of them by the general words of an act, if he be not named therein. The rule which is thus applied to the crown is applicable to the State, or other supreme power and function of legal authority."

In the Illinois case, supra, the Court said:

"Ordinarily a law, which, in general terms, speaks of plaintiffs and defendants, applies to persons only; and States ** are not affected by its provisions, unless expressly named and brought within them."

In the Oregon case, supra, the Court held that a county, being an agent and arm of the State, was not liable to pay interest under a general statute, which did not expressly purport to embrace the State or County. Discussing the principle involved, it was said [page 968]:

"Nor is the state within the purview of a general law regulating the rate of interest upon money due or to become due, and this goes upon the ground that a sovereign is not bound by the words of a statute unless it is expressly named", citing cases.

In the Mayrhofer Case, supra, in which the Supreme Court of California held that a public building was not subject to the mechanic's lien laws provided for by a general statute, the Court said that the argument made "ignores the rule of statutory construction, that the state is not bound by general words in a statute which would operate to trench upon its sovereign rights, injuriously affect its capacity to perform its functions, or establish a right of action against it. Says Mr. Justice Story in United States v. Hoar [Fed.Cas. No. 15, 373], 2 Mason [311], 314: 'In general, acts of the legislature are meant to regulate and direct the acts and rights of citizens; and in most cases the reasoning applicable to them applies with very different, and often contrary, force to the government itself. It appears to me, therefore, to be a safe rule, founded in the principles of the common law, that the general words of a statute ought not to include the government or affect its rights, unless that construction be clear and indisputable upon the text of the act.' To the same effect are the following cases: [Booth and Rench, Ex'rs of] Swearingen v. U. S., 11 Gill. & J., 373; Com. v. Baldwin, 1 Watts, [Pa.], 54 ; Dollar Sav. Bank v. U. S., 19 Wall. [227], 239, [22 L.Ed. Md., 80]; United States. v. Davis, [Fed.Cas.No.14,929], 3 McLean [483], 484; United States. v. Williams, [Fed.Cas.No.16,721], 5 McLean, 133; Com. v. Johnson, 6 Pa. 136; Josselyn v. Stone, 28 Miss. 753; People v. Herkimer, 4 Cow. [N.Y.], 345 ; and a great many others."

And, again, that Court said:

"One cannot sue the state, unless expressly authorized by statute, and this principle is embodied in our constitution. General statutes creating new remedies for individuals have never been held to authorize such suits."

Not only, as heretofore shown, is it held that general...