Kentucky State Park Com'n v. Wilder

• Decision Date: 18 June 1935
• Citation: 260 Ky. 190,84 S.W.2d 38
• Parties: KENTUCKY STATE PARK COMMISSION v. WILDER et al.
• Court: Kentucky Court of Appeals

84 S.W.2d 38

260 Ky. 190

KENTUCKY STATE PARK COMMISSION v. WILDER et al.

Court of Appeals of Kentucky

June 18, 1935

As Modified June 21, 1935.

Appeal from Circuit Court, Whitley County.

Action by Samantha Wilder and others against the Kentucky State Park Commission. From an adverse judgment, defendant appeals.

Affirmed.

Bailey P. Wootton, Atty. Gen., and F. M. Burke, Asst. Atty. Gen for appellant.

Stephens & Steely, J. B. Johnson, Pope & Upton, R. S. Rose, and W. B Early, all of Williamsburg, for appellees.

STANLEY Commissioner.

In Kentucky State Park Commission v. Wilder, 256 Ky. 313 76 S.W.2d 4, it was held that Samantha Wilder and others could not maintain a suit against the commission for partition of a tract of land which had been conveyed to the commonwealth of Kentucky for the use and benefit of the commission, in which tract the plaintiffs claimed ownership of an undivided interest. The conclusion was that the suit was in effect against the state and of a character that did not involve the taking of private property for public use or trespass amounting to such taking, or against public officers to compel the discharge of a duty, but was of a nature that required the express consent of the Legislature. Upon a return to the circuit court, the petition was amended. The commonwealth of Kentucky was named a party defendant and process served upon the Governor. It was charged in the amended pleading that the commission had instituted condemnation proceedings against the Cumberland River Power Company and others, including the plaintiffs in this suit that thereafter it purchased the tract of land from the power company, which owned only an undivided one-fiftieth interest therein; that upon acquiring such title the commission entered upon and took actual possession of the entire parcel; that this was without the consent of the plaintiffs and the taking was for public use, without just or any compensation having been paid to the owners; that the taking was of 198 acres belonging to the plaintiffs, and it had been subsequently used as a state park by the commission. All this was pleaded as being in contravention of the Fifth and Fourteenth Amendments to the Constitution of the United States and of sections 13 and 242 of the Constitution of Kentucky. The value of the property alleged to have been taken was stated to be $100,000, for which sum the plaintiffs asked judgment. Their right to maintain this amended action without the consent of the Legislature is the issue now before us.

Absolute immunity from suit is a high attribute and prerogative of sovereignty. The basis and policy of the doctrine has been many times stated. This immunity has come down to us as a part of the fundamental common law and is only indirectly contained in the Constitution. Section 231 of that instrument gives the General Assembly power to direct by law in what manner and in what courts suits may be brought against the commonwealth, the implication, of course, being that they cannot otherwise be maintained. But in the absence of specific legislative consent, suits which involved the taking of property for public use, or trespass amounting to a taking, have been sustained upon the idea that the state had surrendered its immunity or authorized the suit by express constitutional or statutory provisions.

Section 13 of the Constitution declares that no "man's property [shall] be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him." This declaration of an "inherent and inalienable" right has been a part of all four Constitutions of Kentucky, and there is no exception in favor of the state or its subdivisions. Carrico v. Colvin, 92 Ky. 342, 17 S.W. 854, 13 Ky. Law Rep. 603.

Section 242 of the Constitution requires that municipal and other corporations and individuals invested with the privilege of taking private property for public use shall pay or secure the payment of just compensation before the taking thereof. This allows compensation for injury or destruction of property unattended by an actual taking. Both sections prohibit the actual taking of property without payment. Bushart v. Fulton County, 183 Ky. 471, 209 S.W. 499. They have been construed and strictly applied in a number of cases.

We may lay aside consideration of the authorities dealing with the right to sue municipal corporations as emanating from section 242 of the Constitution and confine our thought to the state, its special creatures and counties. The distinction in the character of municipalities and of counties as drawn in Wheatly v. Mercer, 72 Ky. (9 Bush.) 704, brings the latter much closer to absolute immunity from having to answer in the courts. The paramount object of their existence is governmental. They are subordinate political divisions and parts of the sovereignty of the state itself. There is likewise a distinction between the special commissions and bureaus or departments created by the state for convenience of operation or administration along lines not strictly governmental in their essence. In respect of quasi sovereignty, they partake of the same nature as counties.

It may be observed in passing that neither such an agency, even though functioning under special charter giving it power to sue and providing that it may be sued, nor a county is suable for personal injuries or torts not equivalent to a taking of property without express consent granted by the Legislature. Public policy prohibits it. Williamson v. Louisville Industrial School of Reform, 95 Ky. 251, 24 S.W. 1065, 15 Ky. Law Rep. 629, 23 L. R. A. 200, 44 Am. St. Rep. 243; Leavell v. Western Ky. Asylum, 122 Ky. 213, 91 S.W. 671, 28 Ky. Law Rep. 1129, 4 L. R. A. (N. S.) 269, 12 Ann. Cas. 827; Zoeller v. State Board of Agriculture, 163 Ky. 446, 173 S.W. 1143; Ketterer's Administrator v. State Board of Control, 131 Ky. 287, 115 S.W. 200, 20 L. R. A. (N. S.) 274; Pennington's Adm'r v. Commonwealth, 242 Ky. 527, 46 S.W.2d 1079. Dowing v. Mason County, 87 Ky. 208, 8 S.W. 264, 10 Ky. Law Rep. 105, 12 Am. St. Rep. 473; Wheatly v. Mercer, supra; Simons v. Gregory, 120 Ky. 116, 85 S.W. 751, 27 Ky. Law Rep. 509; Forsythe v. Pendleton County, 205 Ky. 770, 266 S.W. 639; Webster County v. Lutz, 234 Ky. 618, 28 S.W.2d 966.

But those state agencies and subdivisions may be sued to enforce recognition of contracts made by them under authority of law. Gross v. Kentucky Board of Managers of World's Columbian Exposition, 105 Ky. 840, 49 S.W. 458, 20 Ky. Law Rep. 1418, 43 L. R. A. 703; Reliance Mfg. Co. v. Board of Prison Commissioners, 161 Ky. 135, 170 S.W. 941; Board of Councilmen of City of Frankfort v. State Highway Commission, 236 Ky. 253, 32 S.W.2d 1008. It is also well established that such administrative agencies may be enjoined from committing a nuisance or trespass and may be made to respond in damages for such invasion of private property. Herr v. Central Kentucky Lunatic Asylum, 97 Ky. 458, 30 S.W. 971, 17 Ky. Law Rep. 320, 28 L. R. A. 394, 53 Am. St. Rep. 414; Herr v. Central Kentucky Lunatic Asylum, 110 Ky. 282, 61 S.W. 283, 22 Ky. Law Rep. 1722; Hauns v. Central Kentucky Lunatic Asylum, 103 Ky. 562, 45 S.W. 890, 20 Ky. Law Rep. 246; Bank of Hopkinsville v. Western Kentucky Asylum for Insane, 108 Ky. 357, 56 S.W. 525, 21 Ky. Law Rep. 1820; Central Kentucky Asylum v. Hauns, 64 S.W. 643, 23 Ky. Law Rep. 1016.

The exemption of a county from suit unless the authority can be discovered in the statutes or found to exist by necessary implication from some express power given or the action is upon a contract which it could make is a well-established doctrine. Breathitt County v. Hagins, 183 Ky. 294 207 S.W. 713. Immunity has been consistently denied where the county was sued for the value of land taken for roads and damages incident to trespass. This responsibility is planted squarely upon section 242 of the Constitution, the reason being that the county could have acquired the property taken (actually or constructively) in a legal manner under its right of eminent domain. Since the exercise of that power must always be in subordination to the constitutional right of a citizen to be first paid the value of his property taken or damages if the county proceeds to deprive him of his property in disregard of the law and not according to legal processes, it must nevertheless render just compensation thereafter. As stated in Layman v. Beeler, 113 Ky. 221, 67 S.W. 995, 996, 24 Ky. Law Rep....