Bd. of Trustees of Town of Casa Colo. Land Grant v. Pooler

• Decision Date: 05 September 1927
• Docket Number: No. 3024.,3024.
• Parties: BOARD OF TRUSTEES OF TOWN OF CASA COLORADO LAND GRANTv.POOLER, U. S. District Forester, et al.
• Court: New Mexico Supreme Court

32 N.M. 460

259 P. 629

BOARD OF TRUSTEES OF TOWN OF CASA COLORADO LAND GRANT

v.POOLER, U. S. District Forester, et al.

No. 3024.

Supreme Court of New Mexico.

Sept. 5, 1927.

Syllabus by the Court.

A complaint alleging that plaintiff owns lands, which defendants, in official capacities, have seized and are administering as national forest, and praying injunction, states a cause of action against individuals, and not one against the United States.

Appeal from District Court, Valencia County; Owen, Judge.

Suit by the Board of Trustees of the Town of Casa Colorado Land Grant against Frank C. W. Pooler, United States District Forester, and others, for an injunction. From a judgment of dismissal, plaintiff appeals. Reversed and remanded, with direction.

A complaint alleging that plaintiff owns lands, which defendants, in official capacities, have seized and are administering as national forest, and praying injunction, states a cause of action against individuals, and not one against the United States.

Reid, Hervey & Iden, of Albuquerque, for appellant.

John W. Wilson, of Albuquerque, for appellees.

WATSON, J.

Appellant, by its complaint alleged that it was the owner of certain described lands which had been patented to it by the United States in 1909; that appellees were, respectively, United States forester, forest supervisor of Manzano national forest, and forest ranger of said forest; and that appellees, “in their respective capacities hereinbefore stated, have entered into possession of the lands described * * * and are administering said lands as part of the Manzano national forest; collecting income therefrom, and denying plaintiff (appellant) the use thereof, to the great damage of plaintiff.” Claiming irreparable injury, for which there was no adequate remedy at law, appellant prayed “that this court grant a writ of perpetual injunction commanding said Frank C. W. Pooler, United States district forester, K. C. Kartchner, forest supervisor Manzano national forest, and L. H. Laney, forest ranger Manzano national forest, and all persons claiming to act under their authority, or the authority, direction, or control of either of them, to absolutely desist and refrain from entering upon or administering as part of the Manzano or other national forest, or collecting income from the lands described. * * *”

On the ground that, as it appeared upon the fact of the complaint that the defendants were in possession of the lands only as agents of the United States, the suit was in reality one against the United States, and so one of which the court had no jurisdiction, appellees' demurrer was sustained. Final judgment was rendered dismissing the complaint. The appeal raises the single question of the correctness of the ruling on the demurrer.

Appellant, of course, does not contend that the United States can be sued unless it has, either by general enactment or by voluntary appearance, submitted itself to the jurisdiction. Its position is that the complaint does not state a cause of action against the United States, nor one to which the United States is an indispensable party, and that the judgment prayed for would not bind nor conclude the United States should it see fit thereafter in any manner to litigate its rights or title with appellant.

The demurrer admits that the title to the lands in question is in the plaintiff. The demurrer also admits a trespass, which, as private individuals, appellees could not defend. It is, of course, not contended that the United States by any of its agencies, even by Congress itself, could constitutionally authorize the taking of private lands to be administered as national forests, without making compensation therefor. But it is contended that although such wrong be admitted, there is no remedy in the courts because of the immunity of the United States from suit.

Whether a suit nominally against individuals is really against the state is not always easy to decide. The question has given the courts much trouble, and in some situations its consideration has disclosed contrariety of opinion. See case notes 108 Am. St. Rep. 830 and 44 L. R. A. (N. S.) 189. Fortunately the principles controlling in the case at bar seem to be well established. This court has dealt with the question on at least three occasions: Locke v. Board of Trustees, 23 N. M. 487, 169 P. 304; State ex rel. v. Field, 27 N. M. 384, 201 P. 1059; American Trust & Savings Bank v. Scobee, 29 N. M. 436, 224 P. 788. If appellees, in seizing the land in question, had acted as agents of this state, it may be that the decision would be ruled by Locke v. Board of Trustees, supra. Whether this is a suit against the United States involves the same principles. Yet it is, no doubt, a federal question, concerning which the decisions of the United States Supreme Court are controlling.

The leading case is United States v. Lee, 106 U. S. 196, 1 S. Ct. 240, 27 L. Ed. 171. It was a suit to recover possession from individual officers actually in charge of land in Virginia occupied by the government as a national cemetery and for military purposes; the government's title and right of possession resting upon a tax sale which the court found to be void. The principle or import of that decision is well stated by Mr. Justice Harlan in his dissenting opinion in Cunningham v. Macon & B. R. Co., 109 U. S. 446, 3 S. Ct. 292, 609, 27 L. Ed. 992, where he said:

“Upon examination of the doctrine that, except where Congress has provided, the United States cannot be sued, we held that it had no application to officers and agents of the United States, who, holding possession of property for public uses, are sued therefor by a person claiming to be the owner thereof or entitled thereto; but the lawfulness of that possession and the right or title of the United States to the property may, by a court of competent jurisdiction, be the subject-matter of the inquiry, and adjudged accordingly.”

Appellees comment on the fact that a different conclusion was reached only a year later in Cunningham v. Macon & B. R. Co., supra-both opinions having been delivered by Mr. Justice Miller. That very fact is enough to suggest that there must have been a distinction in principle. That distinction is not hard to find, and we think that the case at bar is clearly in a class with the Lee Case rather than with the Cunningham Case. In the latter case it was remarked that the questions raised when the contention is that a suit is one against the state “have rarely been free from difficulty, and the judges of this court have not always been able to agree in regard to them;” and it was said that it is not “an easy matter to reconcile all the decisions of the court in this class of cases.” Classifying the decisions, it was said:

“Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government.

In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him.”

To this class, as Mr. Justice Miller said, United States v. Lee, supra, belongs-not that it was an action in tort, but because it was “in its essential character, an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment.” He then said, still speaking of United States v. Lee:

“* * * The defendants, Strong and Kauff man, being sued individually as trespassers, set up their authority as officers of the United States, which this court held to be unlawful, and, therefore, insufficient as a defense. The judgment in that case did not conclude the United States, as the opinion carefully stated, but held the officers liable as unauthorized trespassers, and turned them out of their unlawful possession.”

In Poindexter v. Greenhow, 114 U. S. 270, 5 S. Ct. 903, 962, 29 L. Ed. 185, an action of detinue was held to lie against a Virginia collector who had seized plaintiff's office desk to satisfy a tax; his defense being a law of Virginia which the court held to impair the state's contract with the plaintiff. Such a case was held to be within the principle of United States v. Lee, supra. Mr. Justice Matthews, who delivered the opinion, said:

“The ratio decidendi in this class of cases is very plain. A defendant sued as a wrongdoer, who seeks to substitute the state in his place, or to justify by the authority of the state, or to defend on the ground that the state has adopted his act and exonerated him, cannot rest on the bare assertion of his defense. He is bound to establish it.”

Pennoyer v. McConnaughy, 140 U. S. 1, 11 S. Ct. 699, 35 L. Ed. 363, is an instructive case. There the Governor and other state officers of Oregon, comprising the board of land commissioners, were enjoined from selling state lands for which the plaintiff had a contract of purchase, which the board, acting under unconstitutional legislation, had assumed to cancel. Mr. Justice Lamar, classifying the cases, said:

“The other class is where a suit is brought against defendants who, claiming to act as officers of the state, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the state. Such suit, whether brought to recover money or property in the hands of such defendants, unlawfully taken by them in behalf of the state, or for compensation in damages, or, in a proper case where the remedy at law is inadequate, for an injunction to prevent such wrong and injury, or for a mandamus, in a like case, to enforce upon the defendant the performance of a plain, legal duty, purely ministerial, is not, within the...