Gulf Export Co. v. State

• Decision Date: 23 December 1916
• Docket Number: 19345
• Court: Mississippi Supreme Court
• Parties: GULF EXPORT CO. v. STATE ET AL

73 So. 281

112 Miss. 452

GULF EXPORT CO. v. STATE ET AL

No. 19345

Supreme Court of Mississippi

December 23, 1916

Division B

APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR Chancellor.

Bill by the Gulf Export Company against the state of Mississippi and others. From a decree dismissing the suit as to the state and a change of venue as to the other defendants, plaintiff appeals.

Appellant instituted this action in the chancery court of Hinds county against the state in its sovereign capacity and against Earl Brewer, at that time Governor, and W. A. Montgomery, P. E Matthews, and J. F. Thames, trustees of the state penitentiary. The bill claims damages for the alleged breach of contract charged to have been entered into between complainant and Earl Brewer as the Governor of the state, by the terms of which complainant was to transport on the steamship "Huso" a cargo of cotton grown on the state farms. The cotton was to be carried from Gulfport to Copenhagen. The bill charged that the contract is evidenced by certain correspondence and telegrams set forth in the bill. There does not appear to be any express contract with the trustees of the state penitentiary to ship the cotton in question, and the trustees declined to ship the cotton after some disagreement between themselves and complainant about the insurance on the cargo. The bill does not show any authority on the part of the Governor of the state to enter into the contract, but charges that "Brewer had assumed to bind the state of Mississippi," and at another point that "said Earl Brewer, assuming to act for said state sought to change the contract made as aforesaid, but said complainants declined so to do." Another paragraph of the bill avers that "the liability is either upon the said Earl Brewer or the state, but which is liable your orators are unable to say, but aver that this depends upon the solution of a question of fact as to which there is no adequate remedy at law, and said suit cannot be safely determined, except in equity where all of the facts may be heard and the liability may be imposed in accordance with the law." It is charged complainants would have received seventy-eight thousand three hundred and seventy-five dollars for the tonnage if the state had carried out its contract, but that when it refused to make the shipment, complainant sold the tonnage to Boyce & Co. of Memphis, Tenn., for forty-five thousand six hundred dollars, and the latter company bought the cotton from the state and diverted the shipment to other points. The trustees of the penitentiary were made defendants, but there is no prayer for relief against them individually. The bill claims the right to recover the sum sued for "either from the state of Mississippi or from the said Earl Brewer." It is alleged that demand was made upon the auditor for an audit and allowance of the claim sued for, but the auditor had failed and refused to allow the claim.

The state in its sovereign capacity filed a motion to dismiss the suit as against the state for want of jurisdiction in the court to entertain the suit made by the facts stated in the bill, and because there is no statute authorizing any such suit against the state, the claim sued on being one which the auditor has no authority to audit and allow and the suit made by the pleadings not being such as is contemplated and allowed by section 4800 of Code authorizing suits against the state. No one of the individual defendants sued is a resident of the first district of Hinds county where the suit was instituted, and these defendants entered a motion for a change of venue. The chancellor sustained, the motion to dismiss the suit as against the state and also changed the venue to Coahoma county where the defendant Earl Brewer is domiciled. An appeal was prayed for and granted from the decree entered in order to settle the principles of the case.

Affirmed and remanded.

Green & Green, for appellant.

Geo. H. Ethridge, Assistant Attorney-General for the state.

OPINION

STEVENS, J.

Section 4800 of the Code defines and measures the right of any one to sue the state in its sovereign capacity. This section of our Code has been judicially interpreted by our court, and it only remains for us to follow the path which our legislature and court has surveyed and blazed out. To support a suit against the state, the claim must be a claim which the auditor has authority to audit and to allow.

The claim here sued on is not of that character. The bill in the first place does not show any binding contract on the part of the state; and in the second place, should we concede the validity of the contract, the action here is one for damages for the breach thereof and the determination of the amount of damages would require "evidence and counter evidence for its adjustment, and the adjudication of some tribunal for fixing the same." As stated by TERRAL, J., in Hall v. State, 79 Miss. 38, 29 So. 994:

"The auditor could not audit this claim, and it is not insisted in argument that he could do so; and, because it is not a claim which he could audit, we think it is not capable of supporting a suit."

Before the decision in the Hall Case was announced our court by TERRAL, J., announced in State v. Dinkins, 77 Miss. 874, 27 So. 832, that:

"A claim against the...