Baker v. State Highway Department

• Decision Date: 15 July 1932
• Docket Number: 13450.
• Citation: 165 S.E. 197,166 S.C. 481
• Parties: BAKER v. STATE HIGHWAY DEPARTMENT.
• Court: South Carolina Supreme Court

165 S.E. 197

166 S.C. 481

BAKER v. STATE HIGHWAY DEPARTMENT.

No. 13450.

Supreme Court of South Carolina

July 15, 1932

Appeal from Common Pleas Circuit Court of Florence County; R. W Sharkey, Judge.

Action by D. Gordon Baker against the State Highway Department. From an order overruling a demurrer to the complaint and denying a motion to vacate an order of injunction, defendant appeals.

Order of injunction reversed and vacated, and complaint dismissed.

John H Daniel, Atty. Gen., Cordie Page and J. Ivey Humphrey, Asst Attys. Gen., and L. M. Cantrell, of Columbia, for appellant.

G. Badger Baker and Sam J. Royall, both of Florence, for respondent.

BONHAM J.

Plaintiff brought his action in the civil court of Florence county, asking that the state highway department of South Carolina, its officers, agents, servants and employees, be enjoined and restrained from interfering with, or molesting the plaintiff, his servants, agents and members of his family, in the operation of his automobiles without displaying thereon the 1932 license plates.

The complaint alleges that plaintiff applied to the state highway department, on forms furnished by it, for licenses for his two automobiles; that he accompanied his applications with cashier's checks in the proper amounts; that defendant received the applications and cashier's checks, and issued licenses to plaintiff, but, before the licenses were mailed to plaintiff, the People's State Bank of South Carolina closed its doors; the Florence branch of this bank issued the cashier's checks which went with the applications. When the bank closed its doors, defendant refused to deliver the license plates to plaintiff, and returned to him the cashier's checks; that defendant has prepared for plaintiff's signature another application for licenses, and demands payment with either post office or express money order, although the new form, like the first one used, states that remittances may be made by cashier's check, or personal certified checks.

Upon this complaint the judge of the civil court of Florence issued his order by which the defendant, its officers, agents, servants and employees, were enjoined and restrained from interfering with the plaintiff, D. Gordon Baker, his servants, agents, employees, members of his family, and any other person in the operation of his automobiles.

The defendant demurred to the complaint because that: (1) The court is without jurisdiction to entertain the suit against defendant, which is a department of the state government, and there is no statute authorizing an action of this kind against the defendant; (2) that the action is one to restrain a criminal proceeding, and the court is without jurisdiction to enjoin such proceeding; (3) to the same purport as 2; (4) that the checks given by plaintiff were never cashed, are now in plaintiff's hands, and are being used by him for his own purposes, and defendant has never realized any proceeds from them, nor has it received from plaintiff any money in payment for said licenses; (5) that the checks tendered in payment for the licenses were not a legal tender, nor payment under the statute, and defendant has no authority to accept anything in payment for such licenses other than lawful money of the United States; (6) that plaintiff has an adequate remedy at law, and is not entitled to injunctive relief.

Defendant also gave notice of a motion to vacate the order of injunction.

The matter was heard by Hon. R. W. Sharkey, judge of the civil court of Florence, the 29th day of January, 1932. On the 9th day of February he filed his order overruling the demurrer and refusing the motion to vacate the order of injunction theretofore granted by him.

From this order defendant appeals upon exceptions which embody, substantially, the questions made by the demurrer. The issues on appeal are presented in defendant's brief in this way:

(1) Did the court have jurisdiction to entertain the action?

(2) Did the court have authority to enjoin the defendant from arresting and prosecuting plaintiff for operating his automobiles under a 1931 license?

(3) Did the cashier's checks tendered by plaintiff, upon which no money was realized by defendant, constitute payment for automobile license fees?

(4) To the same effect as 3.

(5) Has plaintiff such adequate remedy at law as precludes him from asking injunctive relief? That the suit is, in effect, one against the state is not contested. That issue is definitely settled by the cases of United States Casualty Co. v. State Highway Dept., 155 S.C. 77, 151 S.E. 887; Fann v. State Highway Dept., 155 S.C. 219, 152 S.E. 429, and many other cases.

Nor is it denied that the state highway department, being an integral part of the sovereign--the state--cannot be sued except with the consent of the state. No effort is made by the learned judge of the civil court in his decree to point to any statute which authorizes a suit of this nature against the state highway department. No such statute exists.

The order appealed from declares: "This action is not based upon a legislative enactment, but is brought under a provision of the Constitution of South Carolina, to wit: article 1, § 17. 'Private property shall not be taken for private use without the consent of the owner, nor for public use without making just compensation therefor."'

We think this provision of the Constitution has no application to this case. No one is endeavoring to take plaintiff's property for private use, without his consent, nor is any one seeking to take it for public use without making just compensation therefor. Indeed, no one is seeking to take it at all, for any use, private or public. The state is only seeking to require the plaintiff to pay a license fee for the operation of his automobiles on the highways which it has built at great cost, and which it must maintain in safe condition for use at the peril of being mulcted in damages if it fail to do so and one is injured by its failure. It would be just as logical to hold that one who fails to pay the property taxes assessed against him by the state may invoke this same provision of the Constitution, when his property is about to be sold for the collection of the taxes.

The order appealed from holds that that provision of the Constitution is self-executing, and does not need the aid of statutory enactment to sustain an action, and cites the case of Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842, and other authorities in support of the proposition. There is no question of its correctness made here, but it is denied that the facts of this case bring it within the purview of the constitutional provision which is invoked to sustain it.

What constitutes such a "taking" as will bring an action within the protecting scope of the section of the Constitution here under consideration?

The question was considered in the case of Taylor v. Lexington Water Power Co., 165 S.C. 120, 163 S.E. 137, decided by this court March 8, 1932. The opinion in that case cited with approval the opinion of Mr. Justice Stabler in the case of White v. So. R. Co., 142 S.C. 284, 140 S.E. 560-564, 57 A. L. R. 634, which holds that:

"The word 'taken' in the constitutional provision cited is not limited in its meaning and application to cases in which there is an actual physical seizure and holding of property, but is broad enough to include cases in which the access to abutting premises is obstructed by the change of grade of a highway or there is such physical injury to property as results in destruction or substantial impairment of its usefulness." Citing 20 C.J. and cases there cited.

" Any regulation which deprives any person of the profitable use of his property constitutes a taking of property and entitles him *** to compensation, unless the invasion of rights is so slight as to permit the regulation to be justified under the police power." Piper v. Ekern, 180 Wis. 586, 194 N.W. 159, 162, 34 A. L. R. 32.

There has been no taking of plaintiff's property nor deprivation of its use by any state regulation. He may have the unrestrained use of it whenever he complies with the statute law of the state which requires him to pay a fee and obtain a license for the privilege. This requirement of the law, while primarily one for revenue, is also one of police regulation, as an inspection of the statutes discloses.

It is clear that this action may not be maintained under the provisions of article 1, § 17, of the Constitution. It is conceded by the order appealed from that there is no statutory provision under which it may be maintained. It follows, necessarily, that the court was without jurisdiction to entertain it.

This conclusion practically disposes of the appeal, and we might well limit the opinion to it; but there are other questions of serious importance to the administration of the state's interests in connection with the state highway department, made by the appeal, which should be disposed of.

In reference to the issue that the court had no power by its authorities to restrain defendant from proceeding against plaintiff criminally for operating his automobiles without a 1932 license plate, such operating being a criminal offense under section 5909, Code of Laws 1932, we deem it necessary to say, only, the contention of appellant is sustained by the opinion of this court in the case of Palmetto Golf Club v. Robinson, Sheriff, et al., 143 S.C. 347, 141 S.E. 610.

Plaintiff predicates his action, in part, upon the contention that, the defendant having accepted the cashier's checks which he sent with his application, he has paid for his licenses, and is entitled to have them, and cannot be prosecuted for operating his automobiles...