Fairclough v. Salt Lake County

• Decision Date: 14 July 1960
• Docket Number: No. 9140,9140
• Citation: 10 Utah 2d 417,354 P.2d 105
• Court: Utah Supreme Court
• Parties: d 417 Arthur W. FAIRCLOUGH, Fred Fairclough, Anthony M. Crus, Thomas Crus, and John Crus, dba Fairclough & Crus, Plaintiffs and Respondents, v. SALT LAKE COUNTY, Lamont B. Gundersen, William G. Larson and Edwin Q. Cannon, Sr., Road Commission of Utah, C. Taylor Burton, Francis Feltch, Ernest H. Balch, William J. Smirl and Weston E. Hamilton, Defandants and Appellants.

Page 105

354 P.2d 105

10 Utah 2d 417

Arthur W. FAIRCLOUGH, Fred Fairclough, Anthony M. Crus, Thomas Crus, and John Crus, dba Fairclough & Crus, Plaintiffs and Respondents, v. SALT LAKE COUNTY, Lamont B. Gundersen, William G. Larson and Edwin Q. Cannon, Sr., Road Commission of Utah, C. Taylor

Burton, Francis Feltch, Ernest H. Balch, William J. Smirl

and Weston E. Hamilton, Defandants and Appellants.

No. 9140.

Supreme Court of Utah.

July 14, 1960.

Ollie McCulloch, County Atty., Salt Lake City, Walter L. Budge, Atty. Gen., Richard R. Boyle, Asst. Atty. Gen., for appellant.

McBroom & Hanni, Salt Lake City, for respondent.

HENRIOD, Justice.

Appeal from denial of a motion to dismiss filed by Salt Lake County and the Utah Road Commission. Sovereign immunity was claimed as a defense. Reversed.

In November, 1956, defendants completed a highway project where the grade allegedly was reduced about 16 feet below plaintiffs' abutting land. Presumably it was a reasonably and necessary exercise of the police power to benefit the community as a whole.

In June, 1959, two and one-half years later, plaintiffs sued defendants 1): to get damages for depreciation in preventing access, or, alternatively, 2): for a writ of mandamus forcing members of the agencies mentioned to start eminent domain proceedings to assess and adjudge damages in their favor.

As to 2), in a case where the same contention was urged, we held it without merit. ¹

As to 1), consistently and historically we have ruled that the State ² may not be sued without its consent; ³ taken the view that Art. I, sec. 22 of our Constitution ⁴ is not self-executing, nor does it give consent to be sued, implied or otherwise; and that to secure such consent is a legislative matter, a principle recognized by the legislature itself. ⁵ Other states and federal courts have agreed. ⁶

In Lynch v. United States, supra, 292 U.S. at pages 580-582, 54 S.Ct. at page 844, Mr. Justice Brandeis, simply and eloquently announced the principle extant here when he said that

'Contracts between individuals or corporations are impaired within the meaning of the Constitution * * * whenever the right to enforce them by legal process is taken away or materially lessened. A different rule prevails in respect to contracts of sovereigns. * * * The rule that the United States may not be sued without its consent is all-embracing * * *.

* * *

* * *

'* * * For consent to sue the United States is a privilege accorded not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration. * * * The sovereign's immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced. It applies alike to causes of action arising under acts of Congress, * * * and to those arising from some violation of rights conferred upon the citizen by the Constitution, * * *. For immunity from suit is an attribute of sovereignty which may not be bartered away.' ⁷ (Emphasis ours)

The fifth Amendment to the United States Constitution is like Act. I, Sec. 22 of our Constitution, save for the word 'damage.' By no stretch of the imagination could this alter the principle involved.

Many times we have announced the principle.

In Wilkinson v. State, 1913, 42 Utah at page 492, 134 P. at page 630, where Utah was sued for damages caused by flooding of land by State agents, Art. I, Sec. 22 then operative, Mr. Chief Justice Frick said:

'We have neither a statute nor a constitutional provision authorizing a suit against the state. * * * and in the absence of either express constitutional or statutory authority an action against a sovereign state cannot be maintained * * *.'

State by State Road Commission v. Fourth District Court, 1937, supra, 94 Utah at page 389, 78 P.2d at page 504, although conceding that Art. I, Sec. 22 guaranteed that property was not to be taken or damaged for public use without just compensation, nonetheless recognized the rule that statewise:

'The State cannot be sued unless it has given its consent or has waived it immunity * * *.'

Repeating, Campbell Bldg. Co. v. State Road Comm., 1937, supra, 95 Utah at pages 249, 252, 70 P.2d at page 861, said:

'This action may not be maintained unless the state has, through legislative or constitutional action, given consent to be sued. * * * and * * * when there is statutory consent to sue, the statute is the measure of the power to sue.'

In State v. Tedesco, 1955, supra, 4 Utah 2d at page 38, 286 P.2d at page 789, we continued that:

'* * * the defendant could not sue the sovereign for the damages claimed here, and the State's defense of sovereign immunity is well taker * * *.'

In Bingham v. Board of Education, 1950, 118 Utah 582, 223 P.2d 432, where a child was injured on a schoolground, we held the school board not responsible because of sovereign immunity, as we did very recently in Jopes v. Salt Lake County, where, acting in a governmental capacity, we held the County not answerable for injuries suffered by a stumbling golfer for the same reason.

In a similar case, Hjorth v. Whittenburg, 1952, 121 Utah 324, 330, 241 P.2d 907, 909, where the grade was raised four feet, the doctrine of sovereign immunity espoused by us clearly was enunciated, and contentions urged here equally were answered there in a pronouncement by Mr. Justice Crockett:

'The argument of plaintiffs' counsel against the injustice to his clients of sovereign immunity is eloquent and persuasive. The remedy is not to be found in imposing an unreasonable and arbitrary burden upon these public officials. This phase of our law is well established and of long standing. If it is to be changed, that must come through the sovereign power of this commonwealth, the people, speaking through the legislature.'

He also pointed out that one may not be entirely without redress since be could seek legislative relief under the statutes, given a proper case.

It is not what one might like to do in cases where damage results from a warranted exercise of the police power, but to what extent we are bound under existing law.

Reversed with instructions to grant the motion to dismiss. No costs awarded.

CROCKETT, C. J., and CALLISTER, J., concur.

McDONOUGH, J., concurs in the result.

WADE, Justice (dissenting).

I dissent. There are many reasons why I think this decision is wrong: (1) It may cause grave injustice to plaintiffs. (2) It is contrary to Section 22, Article I of our State Constitution. (3) It is contrary to a number of our decisions, which it does not purport to overrule. (4) In none of the Utah cases relied on in the prevailing opinion was the question of whether Article I, Section 22 is self-executing the determining factor. (5) It is contrary to the great weight of authority and the better-reasoned cases. (6) No good reason is pointed out or even suggested why we should revert to this doctrine of sovereign immunity. I will discuss these points in the order stated above.

(1) Plaintiffs' complaint alleges that they were the owners of all of the land in Upland Terrace. They further allege that said land abuts on the north side of 3900 South Street, which, before the defendants changed the road grade, was the same level as that street, but that between July 3 and November 17, 1956, the defendants lowered the grade of the street to 16 or more feet below the level of plaintiffs' land, thereby destroyed plaintiffs' means of ingress and egress and reduced the number of lots which can be made available in plaintiffs' land, destroying its market value to the extent of $43,000. The plaintiffs ask in the alternative for the damages caused, or for a writ of mandamus requiring defendants to institute an action to assess such damage and require them to pay the same. This appeal is from the trial court's refusal to grant summary judgment dismissing plaintiffs' action.

It is not unreasonable that such change in the level of the adjoining street might cause substantial damages to plaintiffs' property. It has long been recognized in this State that such damages are compensable. ¹ If the State had needed an additional narrow strip of plaintiffs' ground in order to make the improvements which it has made, our eminent domain statute would require it to institute a condemnation proceeding in which the jury would be required to assess the resulting damage to plaintiffs' land, including the damages from lowering the level of the street. Yet under this decision, regardless of how great the damages which the change in the grade of the street might cause the plaintiffs, they have no remedy.

(2) The majority decision in this case is directly contrary to Article I, Section 22, Constitution of Utah, which expressly provides that: '[P]rivate property shall not be taken or damaged for public use without just compensation.' This provision should be construed as self-executing and as the sovereign's consent to a direct action by any person whose property is taken or damaged for public use without just compensation. To hold otherwise means that in cases of this kind the sovereign may take or damage private property for public use without paying therefor directly contrary to this constitutional provision. The constitution is the supreme law of the land. It is paramount to and takes precedence over statutory enactments. The state legislature has no authority to enact laws contrary to a constitutional provision and the courts are required to enforce its provision with or without legislative implementation. It certainly is an anomolous situation to hold, as the majority opinion does, that in this case this provision of the Constitution is a complete nullity merely because the legislature has failed to enact implementing legislation authorizing a direct suit to recover damages to property from a public use, when the legislature is powerless to so nullify such provision by...