Heiser v. Severy

Citation117 Mont. 105
Decision Date16 May 1945
Docket NumberNo. 8482.,8482.
PartiesHEISER v. SEVERY et al.
CourtMontana Supreme Court

117 Mont. 105

HEISER
v.
SEVERY et al.

No. 8482.

Supreme Court of Montana.

March 19, 1945.
Rehearing Denied May 16, 1945.


Appeal from First District Court, Lewis and Clark Counties; George W. Padbury, Jr., Judge.

Claim and delivery action by William Heiser against J. W. Severy and others, as and being the duly appointed, qualified and acting Montana State Fish and Game Commission, and others, to recover a gun confiscated by defendant Jack Thompson, a deputy game warden. Judgment for plaintiff, and defendants appeal.

Reversed and remanded, with directions.

ANGSTMAN and MORRIS, JJ., dissenting.

[117 Mont. 107]


R. V. Bottomly, Atty. Gen., and Fred Lay, 1st Asst. Atty. Gen., for appellants.

Frank T. Hooks, of Townsend, and Edmund G. Toomey, Edgar M. Hall, and Toomey, McFarland & Hall, all of Helena, for respondent.

[117 Mont. 109]


ADAIR, Justice.

This is an action of claim and delivery. It is captioned, ‘William Heiser, Plaintiff, v. J. W. Severy, William C. Carpenter, A. C. Grande, Elmer Johnson and E. G. Vedova, as and being the duly appointed, qualified and acting Montana

[117 Mont. 110]

State Fish and Game Commission, J. S. McFarland, as Montana State Fish and Game Warden, and Jack Thompson, as Deputy Game Warden, Defendants.’

The Attorney General of the state of Montana appeared for defendants and filed demurrers on their behalf. The demurrers were overruled and time was granted for the defendants to answer but they declined to plead further and their default was entered followed by judgment for plaintiff. This appeal is from that judgment.

Plaintiff's right to maintain this action depends upon whether the action is against the state of Montana or against individuals.

The complaint alleges: That plaintiff, a citizen of the United States and of the state of Montana, procured a hunting license for the year 1942 from the Montana State Fish and Game Commission; that on November 15, 1942, he owned and possessed a shotgun of the value of $50 with which he was hunting game birds in a field in Broadwater county, at which time and place ‘the defendant Jack Thompson, as a deputy game warden for the state of Montana, acting under and pursuant to orders from the other defendants above named, and all of them, did wrongfully * * * seize and take said chattel from the possession of this plaintiff, with the intent and purpose of confiscating the same’; that ‘thereafter the chattel was turned over to and came into the possession of the other defendants above named, as such officers, and that before the commencement of this action, to-wit: on or about the 17th day of November 1942, demand was made upon the defendant J. S. McFarland, as Montana State Fish and Game Warden, that he deliver said chattel over to plaintiff herein; that said defendant refused so to do and on the contrary still, unjustly and unlawfully, detains the same from this plaintiff’ and that ‘plaintiff has been damaged by said unlawful detainer of said property in the sum of $50.’

The complaint further alleges that the seizure and taking of the gun from the possession of the plaintiff was ‘wrongful and unlawful, and in violation of the Fifth Amendment, and section 1

[117 Mont. 111]

of the Fourteenth Amendment of the Constitution of the United States, and in violation of section 14 of Article III of the Constitution of the state of Montana, and of the laws of Montana’; and ‘that said chattel was not seized or taken for tax, assessment, or fine pursuant to statute, or seized under an execution of attachment against the property of the plaintiff nor held as a fine or forfeiture.’

Other than above stated, there are no allegations in the complaint as to the facts which led up to or occasioned the alleged seizure of plaintiff's gun. In determining the correctness of the trial court's ruling on the demurrers, the only facts that stand admitted are those properly pleaded in the complaint. On this appeal the court is limited to the ultimate facts pleaded and we may not go beyond the allegations of the complaint for the facts of the case.

The prayer is for ‘judgment against the defendants herein as such officers for recovery of the possession of said chattel or for the sum of $50.00, the value thereof, in case delivery cannot be had, together with $50.00 damages and for costs of this action.’

It is elementary that a state cannot be sued in its own courts without its consent or be compelled against its will to discharge any obligation. Langford v. King, 1 Mont. 33;Fisk v. Cuthbert, 2 Mont. 593; State ex rel. Journal Pub. Co. v. Kenney, 9 Mont. 389, 24 P. 96;State ex rel. Robert Mitchell Furniture Co. v. Toole, 26 Mont. 22, 66 P. 496,91 Am.St.Rep. 386, 55 L.R.A. 644;Mills v. Stewart, 76 Mont. 429, 247 P. 332, 47 A.L.R. 424;Johnson v. City of Billings, 101 Mont. 462, 54 P.2d 579;State ex rel. Freebourn v. Yellowstone County, 108 Mont. 21, 88 P.2d 6;Tongue River and Yellowstone River Irr. Dist. v. Hyslop et al., 109 Mont. 190, 96 P.2d 273;State v. Rathbone, 110 Mont. 225, 100 P.2d 86.

The state's immunity from suit extends to the boards, commissions and agencies through which the state must act. See

[117 Mont. 112]

Berman v. Minnesota State Agricultural Society, 93 Minn. 125, 100 N.W. 732;Wilbrecht v. Babcock, 179 Minn. 263, 228 N.W. 916;Linder v. Foster, 209 Minn. 43, 295 N.W. 299;Gottschalck v. Shepperd, 65 N.D. 544, 260 N.W. 573;Nelson v. McKenzie-Hague Co., 192 Minn. 180, 256 N.W. 96, 97 A.L.R. 196;Ahern v. Iowa State Agricultural Society, 91 Iowa 97, 58 N.W. 1092,24 L.R.A. 655;De Votie v. Iowa State Fair Board, 216 Iowa 281, 249 N.W. 429;De Votie v. Cameron, 221 Iowa 354, 265 N.W. 637;Lord & Polk Chemical Co. v. State Board of Agriculture, 111 N.C. 135, 15 S.E. 1032; 46 C.J. 1043; 23 Am. & Eng.Ency. 375; Throop, Public Officers, secs. 713, 715, 736; Mechem Public Officers, sec. 613.

‘The state may and must commit the discharge of its sovereign political functions to agencies selected by it for that purpose. Such agencies, while engaged exclusively in the discharge of such public duties, do not act in any private capacity, but stand in the place of the state, and exercise its political authority.’ Berman v. Minnesota State Agricultural Society, supra.

In Johnson v. City of Billings, 101 Mont. 462, 54 P.2d 579, 580, this court said that ‘as the sovereign cannot be sued without its consent, its arms or branches are likewise immune, unless liability is specifically imposed upon them by statute.’

‘It is fundamental that a state cannot be sued in its own courts without its consent, and it is a further rule that a litigant will not be permitted to evade the general rule by bringing action against the servants or agents of the state to enforce satisfaction for claims.’ Wilson v. Louisiana Purchase Exposition Commission, 133 Iowa 586, 110 N.W. 1045, 1046,119 Am.St.Rep. 646.

Wilbrecht v. Babcock et al., supra, was a suit against C. M. Babcock as State Commissioner of Highways and another. A demurrer was interposed on the grounds that the complaint failed to state a cause of action against the defendant Babcock in his official capacity as commissioner of highways. This contention was sustained by the Supreme Court of Minnesota which held that it was error for the trial court to overrule the demurrer.

[117 Mont. 113]

Looney v. Stryker et al., 31 N.M. 557, 249 P. 112, 113, 50 A.L.R. 1404, was a suit against the members of the State Highway Commission. In that case the court said: ‘The allegations of appellant's complaint would bring him within the exceptions, were this a controversy solely between individuals, but here we have a suit against state officials which, in effect, is a suit against the state. The complaint alleges that ‘this action is instituted against the above-named officials as such officials, and not in their individual capacity.’ Mr. Pomeroy, in his work, supra, at section 1749, says: ‘* * * In determining whether the state is a party, the courts will look beyond the parties to the record and decide according to the real effect. ‘Where it is manifest upon the face of the record that the defendants have no individual interest in the controversy, and that the relief sought against them is only in their official capacity as representatives of the state, which alone is to be affected by the judgment or decree, the question then arising whether the suit is not substantially a suit against the state is one of jurisdiction.’''

In Omes v. Department of Conservation of Louisiana et al., La.App., 187 So. 342, 343, the court said: ‘That the State of Louisiana or a political subdivision thereof cannot be sued, ex delicto, does not admit of argument and it seems to us equally clear that the action of the agents and employees of the Department of Conservation in destroying plaintiff's shrimp was a delict or tort. Plaintiff's counsel in referring to this action on the part of the agents of the Conservation Department characterizes it as ‘wilful and malicious, premeditated and not in the exercise of an ordinary governmental function.’ The unauthorized acts of a State Official are his individual acts for which he alone and not the State is responsible.'

Sayers v. Bullar et al., 180 Va. 222, 22 S.E.2d 9, was an action for damages against employees of the state for tort arising from work being done by them for the state. The appellate court held that the immunity of the state from actions for tort extends to the state's agents and employees where they are acting legally within the scope of their employment. Of course the rule is

[117 Mont. 114]

otherwise if they exceed their authority and go beyond the sphere of their employment or if they step aside from it. In such cases they no longer enjoy such immunity and become individually liable for their wrongful acts.

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