J. D. Hollingshead Co. v. State Board of Control of Institutions

• Decision Date: 13 November 1923
• Docket Number: 35525
• Citation: 195 N.W. 577,196 Iowa 841
• Parties: J. D. HOLLINGSHEAD COMPANY, Appellant, v. BOARD OF CONTROL OF STATE INSTITUTIONS et al., Appellees
• Court: Iowa Supreme Court

195 N.W. 577

196 Iowa 841

J. D. HOLLINGSHEAD COMPANY, Appellant, v. BOARD OF CONTROL OF STATE INSTITUTIONS et al., Appellees

No. 35525

Supreme Court of Iowa, Des Moines

November 13, 1923

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

ACTION for damages for breach of contract, brought by the plaintiff against the board of control of the state of Iowa, and against the members of such board. The board appeared by the attorney-general of the state and demurred to the petition on the ground that the suit was, in essence, a suit against the state of Iowa. This demurrer was sustained. The plaintiff, standing upon its petition, suffered judgment from which it has appealed.

Affirmed.

George B. Webster and Clark & Byers, for appellant.

Ben J Gibson, Attorney-general, and Herbert A. Huff, Assistant Attorney-general, for appellees.

EVANS, J. PRESTON, C. J., ARTHUR and FAVILLE, JJ., concur.

OPINION

EVANS, J.

The doctrine is universally recognized that a sovereign state may not be coerced by the exercise of judicial power. Much less may it be coerced by process from its own courts. This rule is conceded by the appellant, and we need devote no time to its discussion. The material facts appearing in the petition are that the state of Iowa, through its board of control, is engaged in certain manufactures which are calculated to utilize the labor of convicts in its penitentiaries. The plaintiff, by correspondence with the board of control, contracted to deliver ten carloads of staves, to be used in the manufacture of butter tubs, at an agreed price of $ 53 per thousand. The major part of such subject-matter was delivered and paid for. Before full delivery, the defendants, through the superintendent of the factory, stopped further delivery. The unfilled part of the contract amounted to 175,000 staves. At the time of the refusal, these were worth on the market only $ 20 per thousand. The plaintiff sues for damages for breach of the contract, and claims $ 33 per thousand as the measure of such damages.

The demurrer necessarily admits the allegations of the petition. It raised no question as to the ultimate merit of the plaintiff's claim. It simply challenged the right of the plaintiff to sue the state in its own court. The demurrer was properly sustained. The defendant board acted purely as an agency of the state. It acted strictly within the limitations of its statutory power. Its members incurred no personal liability for the performance of the contract. They could not, therefore, be rendered liable for the consequences of its breach. The contract was entered into professedly on behalf of the state, and the promise to pay thereunder was the promise of the state. Assuming, therefore, that the plaintiff has a just claim upon the conscience of the sovereign state, it still remains that it can realize such claim only through such conscience of the sovereign and by its voluntary action. If it cannot realize thereon by appropriate negotiations with the board of control, its only remedy for the alleged wrong is legislative, and not judicial. The legislative department has the revenue power and the control of the funds of the state, and in that sense is the keeper of the conscience of the sovereign. Through it the state may recognize the justice of the plaintiff's claim, either in whole or in part, and not only may make, but presumably will make just restitution.

The broad principle here announced is well settled by previous decisions of this court: Mills Pub. Co. v. Larrabee, 78 Iowa 97, 42 N.W. 593; Hern v. Iowa State Agric. Soc., 91 Iowa 97, 58 N.W. 1092; Wilson v. Louisiana Purchase Exposition Com., 133 Iowa 586, 110 N.W. 1045; State v. Cameron, 177 Iowa 262, 158 N.W. 470. The following brief excerpts from these cases will be deemed a sufficient discussion of the question involved herein. In Mills Pub. Co. v. Larrabee, 78 Iowa 97, at 100, 42 N.W. 593, we said:

"The contract is designed for the benefit of the state and its people. In entering into it, the executive council act only in a representative capacity in discharging duties pertaining to the executive department of the government. The relief asked by plaintiff is that the executive council be compelled to enter into an agreement for and on behalf of the state of Iowa, giving to the plaintiff a monopoly of the business of making and selling to the people of the state, as well as to others, the reports which should fall within the provisions of the agreement. That which plaintiff seeks would be, for all practical purposes, a contract with the state. Although not nominally a party to the suit, the state is the real defendant. It is well settled that such an action cannot be maintained without the consent of the state. Chance v. Temple, 1 Iowa 179; Ex parte Ayers, 123 U.S. 443 (8 S.Ct. 164, 31 L.Ed. 216); Hagood v. Southern, 117 U.S. 52 (6 S.Ct. 608, 29 L.Ed. 805). and cases therein cited; People v. Canal Board, 13 Barb. 438; * * * State v. Burke, 33 La.Ann. 498; Marshall v. Clark, 22 Tex. 23."

In Wilson v. Louisiana Purchase Exposition Com., we said:

"If the...