Bow v. Plummer

• Decision Date: 04 June 1918
• Citation: 104 A. 35
• Parties: BOW v. PLUMMER, State Treasurer.
• Court: New Hampshire Supreme Court

104 A. 35

BOW

v. PLUMMER, State Treasurer.

Supreme Court of New Hampshire. Merrimack.

June 4, 1918.

Transferred from Superior Court, Merrimack County; Chamberlin, Judge.

Action by one Bow against J. Wesley Plummer, individually and as State Treasurer. Action dismissed as against defendant individually. Motion to dismiss as against defendant as treasurer denied, and defendant excepts. Exceptions sustained.

Assumpsit to recover money paid by the plaintiff to the defendant as state treasurer for its share of the state tax for the year 1914 as claimed by the defendant. The plaintiff insisted that an error had been committed in making the assessment, and that it was legally liable for a much smaller sum than the amount assessed against it, which it paid under protest.

Upon the motion of the plaintiff the court dismissed the action as against the defendant individually. The defendant then moved that it be dismissed as against him as treasurer. This motion was denied, and the defendant excepted. Transferred from the superior court.

Robert W. Upton, of Concord, for plaintiff. James P. Turtle, Atty. Gen., and Joseph S. Matthews, Asst. Atty. Gen., for defendant.

WALKER, J. [1] As the suit has been dismissed as against the state treasurer in his individual capacity, the question is whether the state, so far as it is represented in this action by the treasurer in his official capacity, may be held liable to respond to the plaintiff's claim. That the state cannot be sued in our courts in the absence of a statute authorizing it, or without its consent, either expressly given or clearly implied, is a proposition requiring little discussion. In fact, it is axiomatic. Cooley, Const. Lims. 23, note; Cunningham v. Railroad, 109 U. S. 446, 451, 3 Sup. Ct. 292, 609, 27 L. Ed. 992; Hans v. Louisiana, 134 U. S. 1, 10 Sup. Ct. 504, 33 L. Ed. 842; State v. Kinne, 41 N. H. 238; Opinion of the Justices, 72 N. H. 601, 54 Atl. 950.

No statute has been suggested in argument and none has been found authorizing an action at common law against the state for the recovery of money owed by it to an individual; nor has the Legislature authorized its treasurer to represent the state in litigation of that character, or to disburse its moneys in accordance with a judicial judgment upon the merits. The Constitution (article 55) provides that:

"No moneys shall be issued out of the treasury of this state and disposed of * * * but by warrant under the hand of the Governor for the time being, by and with the advice and consent of the council, for the necessary support and defense of this state * * * agreeably to the acts and resolves of the general court."

Accordingly the Legislature has provided (P. S. c. 16, § 4) that:

The state treasurer "shall pay, out of any moneys not otherwise appropriated, all sums due by virtue of general or special appropriations of the Legislature, on warrants drawn by the executive, and the principal or interest of all loans which may at any time become due."

It thus appears that, if the defendant desired to pay out of the treasury the amount of the plaintiff's claim, he would be unable to do so of his own motion. He could only draw out the money under an executive warrant, which presumably would not be given except in accordance with a statute authorizing it. It would therefore be absurd for the court to give judgment against the defendant in his official capacity which it would have no power to enforce and which the defendant could not perform. Weston v. Dane, 53 Me. 372. This result shows clearly that, while the cause of action is against the state, not the treasurer, the action must fail because the state is not a party.

"Although the state, as such, is not made a party defendant, the suit is against one of its officers as treasurer; the relief sought is a judgment against that officer in his official capacity; and that judgment would compel him to pay out of the public funds in the treasury of the state a certain sum of money. Such a judgment would have the same effect as if it were rendered directly against the state for the amount specified in the complaint." Smith v. Reeves, 178 U. S. 436, 438, 439, 20 Sup. Ct. 919, 920 (44 L. Ed. 1140.)

But it is argued that the appearance of the Attorney General amounts to a consent on the part of the state to submit the cause to judicial investigation and judgment. One difficulty with this argument is that it is based on the erroneous assumption that the sovereign or the Legislature has authorized the Attorney General to bind the state by appearing for the defendant in a suit brought against the head of a governmental department. In other words, the attempt is thus made to bind the state as though it were in fact a party defendant in a suit against the treasurer, upon the ground that the cause of action is against the state and because the Attorney General has appeared. But his appearance cannot have that effect when the state has given him no authority to appear for it. The silence of the Legislature upon this subject is equivalent to a prohibition. As the agent of the state the Attorney General could not exceed the limits of his authorization, and bind the state by proceedings in a suit to which it is not a party and could not be made one.

The cases cited in argument by the plaintiff do not sustain the contention that the state has consented to be bound by the judgment or has waived its immunity from suit. When it is held that there has been such a waiver by the Attorney General or by a state official, the decision is based upon a statute having special reference to the subject-matter of the suit and conferring power upon the official to appear for and represent the state (People v. Railway, 157 Mich. 144, 121 N. W. 814; McKeown v. Brown, 167 Iowa, 489, 149 N. W. 593; Gunter v. Railroad, 200 U. S. 273, 26 Sup. Ct. 252, 50 L. Ed. 477) or the state has voluntarily intervened and become a party (Clark v. Barnard, 108 V. S. 436, 446, 2 Sup. Ct. 878, 27 L. Ed. 780).

Whatever doubt may be entertained as to the right of the Attorney General of this state to enter his appearance for the state in suits to which the state is not a party (P. S. c. 17, §4; Laws...