Barker v. Hufty Rock Asphalt Co.

• Decision Date: 28 January 1933
• Docket Number: 30891.
• Parties: BARKER v. HUFTY ROCK ASPHALT CO. (DAVIS et al., Interveners).
• Court: Kansas Supreme Court

18 P.2d 568

136 Kan. 834

BARKER v. HUFTY ROCK ASPHALT CO. (DAVIS et al., Interveners).

No. 30891.

Supreme Court of Kansas

January 28, 1933

Syllabus by the Court.

Proceeding against state highway commission wherein plaintiff, rendering services to highway contractor, sought to attach warrants issued to contractor, held, in effect, proceeding against state not maintainable without's state's consent.

State's consent to be sued on contracts of state highway commission held not to include consent to attachment of warrants, held by state highway commission, payable to highway contractor (Rev. St. 1923, 60--901 et seq., 68--301; Rev. St. Supp 1931, 74--2001).

Public funds, raised for construction of highway, cannot be used to pay highway contractor's private debts.

1. An attachment proceeding against the state highway commission in its official capacity to seize and apply public money is in effect a proceeding against the state.

2. Such a proceeding cannot be maintained against the state unless its consent has been given in plain and positive legislative declarations to that effect, and from the record it is held that such consent has not been given.

3. Public funds raised for a specific purpose cannot be devoted to private or other purposes or used to pay a private debt owed by one who has a contract relation with the state highway commission.

Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.

Action by Mary Barker against the Hufty Rock Asphalt Company and others, in which third parties intervened. From an adverse judgment, plaintiff appeals.

Frank H. McFarland, of Topeka, for appellant.

Wint Smith, Asst. Atty. Gen., and Edward F. Arn, Asst. Atty. for State Highway Commission, of Topeka, for appellees.

JOHNSTON C. J.

The plaintiff, Mary Barker, was an employee of the Hufty Rock Asphalt Company, which owed her $350 for services as stenographer, and, payment not having been made upon demand she brought this action against the Hufty Rock Asphalt Company to recover the amount due. On the same day she procured the issuance of an attachment to be levied upon the property, including the goods, chattels, credits, moneys, and effects of the defendant in Shawnee county. The sheriff to whom the writ was directed served it upon the auditor of the state highway commission, who had in his hands two warrants drawn upon the treasurer of the state of Kansas in favor of the Hufty Rock Asphalt Company for supplies furnished to the state highway commission by that county. Shortly afterward the state highway commission came into the case and filed a motion to vacate the attachment for the reasons: First, that the attachment of the warrants drawn upon the state treasurer was in effect an action against the state, and could not be maintained without permission of the state, which had not been given; second, that the warrants were not the property of the defendant, and did not constitute any of the things authorized by statute as being subject to attachment.

Upon a hearing of the motion, the district court decided, first that there is no authority under the attachment statute (R. S. 60--901 et seq.) to issue an attachment against the state; second, that there is no authority for a third party to sue the state of Kansas; third, that the attachment in the present action does not come within the provisions of R.S.Supp. 1931, 74--2001, providing that the state highway commission may sue and be sued, but that such statute referred to R. S. 68--301; fourth, warrants that have not been delivered are not a proper subject of attachment. For these reasons the order of attachment was set aside.

Later a citizen of Kansas City, Mo., intervened in the action by leave of court, setting up a claim and rights to the funds represented by the warrants which he alleged were paramount to the attachment. As no decision was made on his claim, it is no present concern in this appeal which was taken by plaintiff from the order vacating the attachment.

This proceeding was an attempt by a third party to attach warrants issued to a contractor for material furnished by it in carrying out a contract in the construction of a highway, and plaintiff seeks to appropriate funds provided for a state purpose for her services to the contractor. She was not an officer nor an employee of the state or of the highway commission. The salary for which she sued was the private obligation of the contractor. The warrants attached had not yet come into the hands of the contractor. It is contended by the plaintiff that the warrants drawn upon the treasury of the state were subject to attachment, and that the order vacating the attachment was erroneous. The state highway commission is contending that it is an agency of the state, a branch of the state government, and cannot be sued or its funds appropriated in a proceeding without the consent of the state, which it is asserted has not been given. The Legislature which created the highway commission declared it to be a body corporate, with power to sue and be sued, and its functions were declared to be to establish, construct improve, and maintain highways throughout the state, and funds for these purposes were provided by the state. In the act prescribing the powers and duties of the commission, it was authorized to enter into contracts with others to accomplish the designated purposes. All parties concede that under the law the state cannot be made a defendant or be sued in any court unless it has consented to be sued. The Legislature may give such consent, but, before it can be regarded as having...