Ex parte State ex rel. Attorney General

• Decision Date: 26 November 1943
• Docket Number: 4 Div. 313.
• Parties: Ex parte STATE ex rel. ATTORNEY GENERAL.
• Court: Alabama Supreme Court

16 So.2d 187

245 Ala. 193

Ex parte STATE ex rel. ATTORNEY GENERAL.

4 Div. 313.

Supreme Court of Alabama

November 26, 1943

Rehearing Denied Jan. 13, 1944.

Wm. N. McQueen, Acting Atty. Gen., and John W. Rish and H. Grady Tiller, Asst. Attys. Gen., for petitioner.

Horton H. Little, of Luverne, for claimant.

LIVINGSTON Justice.

Petition for writ of mandamus by the State of Alabama on relation of William N. McQueen, acting Attorney General, to require Hon A. E. Gamble, as Judge of the Circuit Court of Crenshaw County, Alabama, to set aside and vacate certain orders or judgments entered by him in the case of State of Alabama versus J. D. Yates, Austin Hamilton, claimant, overruling the State's motion to dismiss the claim suit of Austin Hamilton.

The facts are, J. D. Yates is a merchant engaged in the retail grocery business at Luverne in Crenshaw County Alabama, and was so engaged on and prior to March 1, 1937 and continued to be so engaged through March 31, 1941. On, to-wit, August 4th and August 18, 1941, the State Department of Revenue made and entered, under and in accordance with the Sales Tax Act, final assessments against Yates for sales tax, aggregating the sum of to-wit, $1,395.87, and from which assessments no appeal was taken or perfected. Yates failed to pay said assessments, and on February 11, 1942, the State Department of Revenue issued executions against Yates, and placed same in the hands of L. F. Horn, the sheriff of Crenshaw County, to be levied on the property of Yates. Horn delivered copies of the executions to the clerk of the Circuit Court of Crenshaw County, who entered same upon the minutes and upon the execution docket of said court. Thereafter, on to-wit, April 10, 1942, Horn executed said writs of execution by levying on a stock of goods alleged to be owned by and in the possession of Yates. On the same day Austin Hamilton, under and in accordance with the provisions of section 1168, Title 7, Code of 1940, made claim to the property levied on. The State of Alabama, by and through its Attorney General, filed a motion to dismiss the claim of Hamilton. The trial court entered a judgment overruling the motion, hence this petition for writ of mandamus to compel the trial judge to vacate and set aside said judgment.

Petitioner insists, first, that the claim filed by Hamilton is in effect a suit against the State of Alabama in violation of section 14 of the Constitution of Alabama, which provides "That the State of Alabama shall never be made a defendant in any court of law or equity." Second, that the Circuit Court of Crenshaw County, Alabama, has no jurisdiction of the parties to the suit, nor over the subject matter involved.

It was said in the case of State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So.2d 342, 345: "That by virtue of section 14 of the Constitution of Alabama of 1901, under no circumstances and in no sort of suit can the State of Alabama ever be made a defendant in any court of law or equity. This prohibition cannot be waived, and it cannot be avoided by suing a State agency when the substance and effect is a suit against the State. Alabama Girls' Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114; Cox v. Board of Trustees University of Alabama, 161 Ala. 639, 49 So. 814; State Docks Comm. v. Barnes, 225 Ala. 403, 143 So. 581; State Tax Comm. v. Commercial Realty Co., 236 Ala. 358, 182 So. 31; Barlowe v. Employers Ins. Co., 237 Ala. 665, 188 So. 896."

And in Riddick v. Employers Ins. Co., 236 Ala. 323, 182 So. 45, it was held that a bill of interpleader could not be maintained against the State of Alabama, by a surety on the official bond of a circuit clerk, in which it was alleged that the State and others claimed the penalty of the bond. It was held in Holmes v. State, 100 Ala. 291, 292, 14 So. 51, that section 14 of the Constitution applies to a cross-bill seeking affirmative relief against the State. See, also, Alabama Girls' Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114; White v. Governor, 18 Ala. 767.

But the above authorities do not decide the question here presented.

To enforce its rights or redress its wrongs, as a political corporation, a state may ordinarily avail itself of any remedy or form of action which would be open to a private suitor under similar circumstances. Wolffe v. State, 79 Ala. 201, 58 Am.Rep. 590. And when it has brought suit it is generally subject to, and its right to relief is usually determined in accordance with, the ordinary rules of law which have been established for the administration of justice between private litigants, except in so far as such rules have been modified by statute in favor of the state, or they have been held inapplicable because of the state's sovereignty, or because their strict application against the state would be unreasonable. 56 Corpus Juris 315, § 469.

Sections 1168 and 1169, Title 7, Code of 1940, are as follows:

"1168. Personal property levied on may be claimed by a stranger to the writ; when delivered to claimant.-When an execution, attachment, or other like writ issued from any court or by any officer, is levied on personal property as to which any person not a party to the writ claims to own the title, legal or equitable, or a lien paramount to the right, title, or interest in the property of the defendant in the writ, such person may try the right to such property before a sale thereof upon making affidavit by himself, his agent, or attorney, which may be taken by the officer levying the writ, or any officer authorized to administer oaths, that he holds such title to or such lien upon, the property claimed, and executing bond with two good and sufficient sureties to be approved by the officer making the levy and payable to the plaintiff in double the value of the property levied on and claimed, the value thereof to be determined by the officer making the levy; but in no case to be more than double the amount of the writ levied, with condition to have the property forthcoming for the satisfaction of the judgment or claim of the plaintiff, if it be found liable therefor, and also for the payment of such costs and damages as may be recovered for interposing the claim for delay; whereupon the property levied upon must be delivered into the possession of the claimant.

"1169. Papers returned; issue made up; burden of proof.-The officer making the levy must, except as otherwise provided in sections 1173 and 1175 of this title, return the writ, affidavit, and bond to court to which it is returnable, when an issue must be made up between the plaintiff in the writ and the claimant, in which the former must allege that the property claimed is the property of the defendant in the writ and is liable to its satisfaction; and on the trial of such issue, the burden of proof is on the plaintiff."

This Court has settled the following rules as applicable to every trial of the right of property, in an issue formed under the foregoing statutes be...