Ex parte Carter

• Decision Date: 19 December 1980
• Citation: 395 So.2d 65
• Parties: Ex parte W. E. CARTER. (Re: W. E. CARTER v. Richard A. FORESTER, as Commissioner of the Department of Conservation of the State of Alabama). 79-604.
• Court: Alabama Supreme Court

Page 65

395 So.2d 65

Ex parte W. E. CARTER (Re: W. E. CARTER v. Richard A. FORESTER, as Commissioner of the Department of Conservation of the State of Alabama).

79-604.

Supreme Court of Alabama.

Dec. 19, 1980.

Dissenting Opinion Jan. 9, 1981.

Robert M. Hill, Jr., Florence, for petitioner.

Charles A. Graddick, Atty. Gen. and Robert A. Macrory, Asst. Atty. Gen., for respondent.

SHORES, Justice.

W. E. Carter brought this action against the Commissioner of the Department of Conservation, seeking compensation for 243 raccoons, his private property, which he alleged were taken for public use by the defendant, which he contends entitles him to compensation under the doctrine of inverse condemnation.

The facts were stipulated as follows:

1. Plaintiff, prior to and during the time this cause of action arose, was duly licensed by the State of Florida to raise raccoons for stocking and propagation purposes.

2. On or about May 21, 1977, Plaintiff had in his possession 243 live raccoons, which were being transported under Interstate Health Certificates issued by the State of Florida to a consignee in Lauderdale County, Alabama. Said Interstate Health Certificates were issued by the Florida Department of Agriculture, Division of Animal Husbandry, and were executed by an accredited veterinarian who certified that said raccoons were healthy.

3. On or about May 21, 1977, Plaintiff was arrested by two Alabama Department of Conservation law enforcement officers and charged with "possession of coons during closed season without a permit" and with "selling or offering for sale live raccoons."

4. At the time of the arrest, Plaintiff was consummating the sale of said raccoons to the consignee in Lauderdale County.

5. Plaintiff advised the arresting officers he could not return the raccoons to Florida.

6. Plaintiff was advised that each raccoon could be considered a separate offense but that only one case would be made if Plaintiff released said raccoons in Lauderdale County, Alabama.

7. Plaintiff, in the presence of said officer, released all 243 raccoons in various locations of Lauderdale County at the suggestion of the arresting officers.

8. Plaintiff avers that the release of said raccoons in Lauderdale County, Alabama, constituted a benefit for the State of Alabama, Department of Conservation and Natural Resources and the general public, which Defendant does not deny.

9. The fair market value of said raccoons was $15.00 each.

10. The arresting officers neither requested nor received any instructions from Commissioner John W. Hodnett nor from Commissioner Richard A. Forester concerning the disposition of said 243 raccoons.

The trial court held that the doctrine of inverse condemnation was inapplicable to these facts and further, that the action was in reality a suit against the State and, thus, was barred by § 14 of Article I of the Alabama Constitution. The Court of Civil Appeals affirmed the trial court's judgment, and we granted Carter's petition for writ of certiorari. We affirm the decision of the Court of Civil Appeals and hold that this suit does not lie under an inverse condemnation theory and is barred by Article I, § 14, of the Constitution.

It has been said that an action claiming inverse condemnation is very limited and that all elements must be present. Inverse condemnation is defined as the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by a governmental agency or entity which has the right or power of condemnation. Feder and Wieland, Inverse Condemnation A Viable Alternative, 51 Denver L.R. 529, 530 (1974). These elements are not all present in this case as the last element is missing. Although the animals were indisputably Carter's private property and the action of the officers was an uncompensated taking without condemnation proceedings, which interfered with Carter's property rights in the raccoons and inured to the public benefit, the Department of Conservation does not have the right or power to condemn animals.

Although the Department has the express power to acquire real property by condemnation for state parks and parkways under § 9-2-3 of the Alabama Code of 1975, nowhere is it expressly authorized to acquire privately-owned animals or other personal property by condemnation. A grant of the power of eminent domain, which is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice, can never pass by implication. When the power is granted, the extent of its exercise is limited to the express terms or clear implication of the statute in which the grant is contained. City of Birmingham v. Brown, 241 Ala. 203, 207, 2 So.2d 305 (1941). The legislature has given the Department express power to seize commercial fishing gear used in violation of the provisions of § 9-11-140, et seq., of the Alabama Code of 1975, to hold it for a reasonable time to be claimed by the owner and, in the event that it is not claimed, to confiscate it as the property of the Department, § 9-11-151. Clearly, the legislature has delegated to the Department the police power to seize this particular type of private property and has provided procedural steps for its safe enforcement. This underscores its deliberate non-delegation of the power to condemn privately-owned animals. Although we have said in Denson v. Alabama Polytechnic Institute, 220 Ala. 433, 126 So. 133 (1930), that the right of eminent domain is the offspring of political necessity and is inseparable from sovereignty, and that a state agency has the power to condemn property without express statutory mandate, in that case, unlike the present one, we were able to find a "legislative recognition of this power ... in (the agency) and ... provision for its proper enforcement," 220 Ala. at 435, 126 So. 133. There is no such legislative recognition here and we can only conclude that the legislature did not intend to delegate to the Department such a power. We cannot confer the power by implication. We, therefore, affirm the holding that inverse condemnation did not apply to this case.

The remaining and dispositive issue is whether Carter is prohibited by Article I, § 14, of the Constitution of 1901, from suing the Commissioner of the Department of Conservation for compensation. That section states "that the State of Alabama shall never be made a defendant in any court of law or equity." In determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought. Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So.2d 428 (1967). This Court has held that § 14 prohibits suit against State officers and agents in their official capacity or individually when a result favorable to the plaintiff would directly affect a contract or property right of the State. Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963).

There are four general categories of actions which in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), we stated do not come within the prohibition of § 14: (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; and (4) actions brought under the Declaratory Judgments Act, Tit. 7, § 156, et seq., seeking construction of a statute and its application in a given situation. 287 Ala. at 229-230, 250 So.2d 677. Other actions which are not prohibited by § 14 are: (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law. Wallace v. Board of Education of Montgomery County, supra, 280 Ala. at 639, 197 So.2d 428; Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962).

The plaintiff's inverse condemnation action which would not have been barred by § 14 will not lie for the reasons stated earlier. The plaintiff did not base an action on the theory that Richard Forester had exceeded his authority nor did he elect to sue the two individual officers. We agree with the Court of Civil Appeals' finding that if Forester had acted at all, it was as the State pursuant to his statutory authority. The acts complained of were committed by two Department law enforcement officers without any instructions from Forester. They acted either beyond the scope of their authority or under a mistaken application of law. Although the officers might be individually liable for their actions, as a matter of basic agency law, neither the Department nor the Commissioner is liable if the individual officers were acting in violation or excess of their authority. Although a suit against the officers individually is not barred by § 14, Forester is not liable for their actions when they are beyond the scope of their authority either intentionally or by mistaken application of the law, and suit against him is barred by § 14.

We, therefore, affirm the holding of the Court of Civil Appeals.

AFFIRMED.

TORBERT, C. J., and FAULKNER, EMBRY, BEATTY and ADAMS, JJ., concur.

MADDOX and JONES, JJ., dissent.

ALMON, J., not sitting.

MADDOX, Justice (dissenting).

Article I, Section 23, Constitution of Alabama, 1901, provides, in part:

... Private property shall not be taken for, or applied to public use, unless just compensation be first made therefor....

The 'coons here involved were the private property of Mr. Carter. They were taken from him and released and were "applied to public use" in the...