Baer v. Arkansas State Highway Commission

• Decision Date: 11 April 1932
• Docket Number: No. 245.,245.
• Citation: 48 S.W.2d 842
• Parties: BAER et al. v. ARKANSAS STATE HIGHWAY COMMISSION et al.
• Court: Arkansas Supreme Court

48 S.W.2d 842

BAER et al. v. ARKANSAS STATE HIGHWAY COMMISSION et al.

No. 245.

Supreme Court of Arkansas.

April 11, 1932.

Rehearing Denied May 16, 1932.

Appeal from Circuit Court, Pulaski County, Second Division; Richard M. Mann. Judge.

Actions by H. G. Baer and others against the Arkansas State Highway Commission and others. After consolidation for trial, judgment was entered dismissing the complaint, and the plaintiffs appeal.

Affirmed.

G. L. Grant, of Ft. Smith, G. T. Fitzhugh, and L. T. Fitzhugh, both of Memphis, Tenn., and R. W. Wilson, of Pine Bluff, for appellants.

Hal L. Norwood, Atty. Gen., Claude Duty, Asst. Atty. Gen., and Sam Rorex, of Little Rock, for appellees.

HUMPHREYS, J.

These are consolidated cases for the purposes of trial brought separately in the Second division of the Pulaski circuit court by appellants against the Arkansas state highway commission to recover from it for damages on account of personal injuries received by the several appellants on account of the alleged negligence of the employees of appellee while engaged in repairing certain state highways. The action sounded in tort.

Demurrers were filed to the several complaints on the ground that appellee was and is not liable in damages for the negligence of its employees.

The court sustained the demurrers to the several complaints and dismissed same, from which is this appeal.

This court ruled in the case of Highway Commission v. Dodge, 181 Ark. 540, 26 S.W. (2d) 879 that highway contractors might maintain actions against the state highway commission for the amount due under their highway construction contracts. The ruling was based upon the construction of the statute creating the commission. The majority of the court interpreted the statute as authorizing the institution and maintenance of that class or character of suits. It was not ruled in that case that suits sounding in tort might be instituted and maintained against the Arkansas state highway commission, as that act created no such authority. After a careful examination of the statute creating the commission, a majority of the court find no authority therein for the institution and maintenance of suits for torts against said commission. It is the opinion of a majority of the court that the Arkansas state highway commission cannot be sued for damages resulting from the negligence of its employees when engaged in the construction or repair of state highways. The writer and Mr. Justice MEHAFFY do not concur in this view, but agree with the CHIEF JUSTICE on this point in his dissenting opinion.

The judgment is therefore affirmed.

BUTLER, J. (concurring).

In Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S.W.(2d) 879, Justices Kirby, McHaney, and the writer registered our dissent. In that case we did not express the reasons for the dissent, but it was on the ground that in our opinion the Arkansas state highway commission was an agency of the state and therefore the Legislature was without power to authorize it to be made defendant in the courts of the state.

As the General Assembly is the representative of the sovereign, it would unquestionably have the power to permit citizens to sue the state in its courts, unless its authority was limited in this respect by express prohibition of the Constitution. I think this is what the Constitution has done. Article 5, § 20, provides: "The State of Arkansas shall never be made defendant in any of her courts." As the state can only act through its agents, it necessarily follows that a suit against any agency of the state would be a suit against the state itself, which the General Assembly is not authorized to permit by reason of the section of the Constitution, supra.

I therefore concur for the reason stated.

I am authorized to say that Mr. Justices KIRBY and McHANEY agree with the views above expressed.

HART, C. J. (dissenting).

Mr. Justice HUMPHREYS and myself think that the state highway commission is an agency of the state, and not a separate body corporate.

We do not, however, construe our constitutional provision that the state of Arkansas shall never be made defendant in any of her courts to mean that she shall never be defendant. If so, the word "made" might just as well not have been used.

We construe the provision to mean that a state which consents to be sued may prescribe the court, the terms, and conditions. The extent of the recovery and manner of proceeding are to be governed by the statutes giving the right to sue the state.

Our views are expressed in a more extended way in our concurring opinion in Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S.W.(2d) 879. It is no answer to say that this view would be but declaratory of the well-settled principle of constitutional law that a sovereign state is incapable of being sued without some legislative provision authorizing such a proceeding. Auditor v. Davies, 2 Ark. 494.

Other constitutional provisions are but declaratory of existing rights. To illustrate, the provision that private property shall not be taken for public use without just compensation is implied from the nature and structure of our government and is generally regarded as founded in the fundamental principles of natural rights and justice, and as lying at the basis of all wise and just government, independent of all written constitutions or positive law. Cairo & Fulton R. R. Co. v. Turner, 31 Ark. 494, 25 Am. Rep. 564.

It seems anomalous to us to say that the framers of the Constitution meant to say that the state, through its Legislature, could not provide the particular court or courts in which claims might be established but could provide for their establishment before the highway commission or other board, or court of claims. Such course would be unnecessarily cumbersome, and expensive, and less in keeping with the dignity of the state than to allow itself to be sued in its own constitutional courts upon such terms and conditions as its legislative body may prescribe.

"When a state does abdicate this attribute of sovereignty, and permits itself to be sued, the citizen who benefits by such an act of grace acquires no vested right thereby, but simply a privilege voluntarily granted by the state, which may be hedged about with terms and conditions, and may be withdrawn as freely as it was given." In re Hoople, 179 N. Y. 308, 72 N. E. 229, 230.

We do not think that the act limits claims to those founded on contract. If the highway...