Dougherty v. Vidal

• Decision Date: 06 April 1933
• Docket Number: No. 3825.,3825.
• Citation: 21 P.2d 90,37 N.M. 256
• Parties: DOUGHERTYv.VIDAL et al.
• Court: New Mexico Supreme Court

37 N.M. 256

21 P.2d 90

DOUGHERTY

v.VIDAL et al.

No. 3825.

Supreme Court of New Mexico.

April 6, 1933.

Appeal from District Court, Santa Fé County; Otero, Judge.

Suit by James T. Dougherty against S. P. Vidal and others, as the Board of County Commissioners of McKinley County, and Frank Butt and others, as the State Highway Commission. From a judgment of dismissal as to defendants constituting the State Highway Commission, plaintiff appeals.

Judgment affirmed, and cause remanded.

Citizen, who sues state agency clothed with corporate powers enabling it to contract, take title, sue, and be sued in its own name, is entitled only to relief he obtains against corporation itself, and state is not bound by judgment.

Hanna & Wilson and William A. Brophy, all of Albuquerque, for appellant.

E. K. Neumann, Atty. Gen., for appellees.

WATSON, Chief Justice.

This suit is against S. P. Vidal and two others, county commissioners of McKinley county, and Frank Butt and four others, constituting the state highway commission. The complaint sets up that, at the instance and request of the highway commission, plaintiff granted to the county an easement for road purposes; to which he was induced by, and the only consideration for which was, a promise of defendants not to change the grade of the then road; and that defendants proceeded to construct a new road on a grade four feet higher than the old, to plaintiff's damage $7,500.

Plaintiff prayed: First, for a cancellation of the grant; second, for injunction against maintaining the new road; and, third, for the appointment of appraisers to assess damages, and for an order directing payment of the damages so to be assessed “out of the state road fund from moneys furnished for that purpose by co-operative agreement between the state, the federal government, and the county of McKinley, or if no moneys are available in such fund, that same be advanced on behalf of said county of McKinley out of money in the state road fund as provided by law.”

Defendant Butt and his associate state highway commissioners demurred on the ground “that said complaint shows upon its face that said action is brought against these defendants in their official capacity as state officials, as the State Highway Commission, and, as such, is a suit against the state, and cannot therefore be maintained.”

The demurrer was sustained and the complaint dismissed as to the demurring defendants. Plaintiff appeals from the final judgment.

In presenting his case here appellant disregards the first and second prayers. His argument is directed solely to establish his right under this complaint to an assessment and recovery of his damages.

“It is a fundamental doctrine at common law and everywhere in America that no sovereign state can be sued in its own courts or in any other without its consent and permission.” State ex rel. Evans v. Field, 27 N. M. 384, 201 P. 1059, 1060. But appellant contends, first, that this is not a suit against the state, and, second, that if a suit against the state, it is one consented to by the state.

Originally appellant must have doubted the capacity of the highway commission to be sued. The nominal defendants are the individual commissioners. However that may be, he now contends that the suit is against the commission, and so not against the state. If the commission may be sued, we can readily accept this view.

[1][2] Where an arm or agency of the state has been clothed with corporate powers enabling it to contract, take title, sue, and be sued in its own name, we have held that the citizen may have his action against it. Locke v. Board of Trustees, 23 N. M. 487, 169 P. 304. Such a suit is not against the state. It is against a corporate entity, engaged in the state's business it is true, but pursuing it on its own responsibility, not on the state's faith and credit. Even in such a case the suitor must rest content with the relief he can obtain as against the corporation itself. The state is in no manner bound by the judgment. State v. Locke, 29 N. M. 148, 219 P. 790, 30 A. L. R. 407.

[3] On the other hand, an arm or agency not endowed with these corporate powers is deemed the state itself. It may not be sued, not only because it lacks the legal capacity, but because the state, of which it is the mere agent, is immune from suit. Looney v. Stryker, 31 N. M. 557, 249 P. 112, 50 A. L. R. 1404.

Thus we have considered the law settled in this jurisdiction. Appellant urges a different rule. He first points out the important functions and broad powers of the highway commission, and then advances this doctrine: “When a state creates a functional or operating unit with broad powers and that unit in the exercise or in excess of its powers, takes or damages private property, the courts will not permit the unit to hide behind the fog of ‘immunity from suit’ but will permit the person injured to sue the unit. This is so even though the statute creating the unit does not expressly allow suit, does not create the unit as a corporation, and although the unit is an operating branch of the state.”

Weyler v. Gibson, 110 Md. 636, 73 A. 261, 17 Ann. Cas. 731, cited by appellant, was held not a suit against the state. But it is not in a class with the case at bar. It was an action in ejectment against the warden of the state penitentiary, and was decided upon the principle of Board of Trustees v. Pooler, 32 N. M. 460, 259 P. 629. Appellant may originally have considered that the present suit was against the individual commissioners as for a tort. If so, he has abandoned that position.

Church v. State Highway Department, 254 Mich. 666, 236 N. W. 900, is a peculiar case. The highway department was authorized by law to condemn private property, but enjoined to purchase by agreement, if possible. It contracted with the owner, leaving the damages to be ascertained by an arbitrator, who should have all the statutory powers of arbitrators. The arbitrator made his award and filed it in court, and the owner moved for confirmation. It was thereupon objected that the proceeding amounted to a suit against the state. The Supreme Court affirmed the confirmation. It said expressly that it was not a suit against the state. The reasoning, however, would seem rather to have been directed toward a conclusion that it was a suit against the state, but one consented to.

Warren Bros. Co. v. Kibbe et al. (D. C.) 43 F.(2d) 582, 584, is also based on distinctive facts. Whether the district judge deemed the suit one against the state may be doubted. He did hold, under the facts, that “the state has impliedly given its consent that the highway commission may be sued.”

In Hollister v. State, 9 Idaho, 8, 71 P. 541, the court's holding that the state had consented to that kind of suit was undoubtedly sound.

In Gross v. Kentucky Board of Managers of World's Columbian Exposition, 105 Ky. 840, 49 S. W. 458, 43 L. R. A. 703, it was held by a divided court that the Legislature had created the board a quasi corporation-a questionable conclusion, as pointed out in the dissenting opinion. It was based upon the fact that the Legislature had endowed the board with a certain amount of money, and had by resolution disclaimed all liability to the public for expenses, charges, arrears, or indebtedness which might remain unpaid after expenditure of the appropriation.

On the authority of this case, but lacking a similar state of facts, a federal District Court upheld a suit for damages for breach of contract against the Kentucky State Board of Charities and Corrections. Bromwell Brush & Wire Goods Co. v. State Board of Charities & Corrections (D. C.) 279 F. 440.

[4] These are the authorities upon which appellant relies. They do not in our judgment strongly support his contention, nor do they persuade us to depart from the rule we consider settled in this jurisdiction. Of course, the Legislature might subject the highway commission to suit without creating it a corporation, or vice versa, as held in the Kentucky cases. But, as respects the New Mexico highway commission, every power distinguishing a separate entity seems to have been withheld. In such a state of facts at least, we see no occasion to depart from Looney v. Stryker, supra.

Concluding that this is a suit against the state, we come to appellant's second proposition, that the state has consented to it.

He first points to certain statutory provisions as evidencing such consent. He then invokes N. M. Constitution, art. 2, § 20, reading, “Private property shall not be taken or damaged for public use without just compensation.” This provision, he says, is self-executing, and necessarily implies consent that the state may be sued by a citizen for damage to his property for a public use.

We find it inconvenient to keep these two points separate. We think that we do no injustice to appellant's able argument to restate his contention thus: The Constitution itself confers on plaintiff the right to sue. But if the court should hesitate to admit this, it will find that the Legislature has consented by its statutory policy in respect to the taking and damaging of private property for road purposes.

The statutory provisions are 1929 Comp. St. §§ 43-115, 43-111, and 64-303(e). Section 43-115 authorizes the state to condemn private property for public use for roads. Section 43-111 reads: “In case property is to be, will be, or has been by any corporation damaged for public use, any person interested may have such damages ascertained. The proceedings for ascertaining and paying such damages shall be the same as are and may be provided by law for assessing damages which owners of land may sustain in consequence of its appropriation for railroad purposes.” Section 64-303(e) authorizes the highway commission, in the state's name, to proceed in condemnation for roads, and provides for payment of the damages assessed.

[5] We do not question that appellant, alleging damage to his property...