Lowey v. Comm'rs Of Sinking Fund

• Decision Date: 22 November 1886
• Citation: 25 S.C. 416,1 S.E. 141
• Parties: Lowey v. Commissioners of Sinking Fund.
• Court: South Carolina Supreme Court

1 S.E. 141

(25 S.C. 416)

Lowey

v.Commissioners of Sinking Fund.

Supreme Court of South Carolina.

November 22, 1886

States and State Officers—Action Against Commissioners of South Carolina Sinking Fund—Jurisdiction.

An action against the commissioners of the sinking fund of South Carolina to recover property in the possession of the secretary of state, held and claimed by him as the property of the state, subject to the control of the commissioners of the sinking fund, is in fact and substance, though not in form, an action against the state, and as such is not maintainable in any of the courts of the state. Simpson, C. J., dissenting.¹

Appeal from circuit court, Richland county.

Action to recover possession of deeds. Judgment for plaintiff. Defendants appealed.

C. R. Miles, Atty. Gen., for defendants and appellants.

Pope dt Haskell, for plaintiffs and respondents.

McIver, J. Tbia action was brought by the plaintiff against the commissioners of the sinking fund of the state of South Carolina to recover the possession of two papers in the form of deeds, purporting to be conveyances of certain tracts of land in the county of York, by the plaintiff to C. P. Leslie, as land commissioner of the said state, the consideration mentioned therein aggregating the sum of $17,599. The case as made for the plaintiff was, in substance, this: Some time inthe year 1870, the plaintiff agreed to sell to the said Leslie, as land commissioner, the said tracts of land at the price named as the consideration in the said papers, to be paid in cash. Accordingly the papers were drawn up, signed, and sealed, but not delivered, and were placed by the plaintiff in the hands of one Gulick, to be delivered to the said land commissioner when the balance of the purchase money should be paid; the plaintiff having previously received $2,400 on account thereof. While the papers were thus in the possession of Gulick, the said Leslie applied to him for them, so that they might be submitted to the attorney general for examination and approval, alleging that this was necessary in order to enable him to pay the balance of the purchase money. Gulick delivered the papers to the agent of Leslie for the purpose of examination, with the understanding that they were to be returned to him after they had been examined. They never were returned, but the said Leslie, upon various pretexts, neglected to do so, although repeated demands were made upon him for their return, both by plaintiff and the said Gulick, and, on the contrary, the same were surreptitiously put upon record in the proper office in York county. By the act of fifteenth February, 1872, the office of land commissioner was abolished, and in the second section of that act it was provided "that all books and papers pertaining to the office of the land commissioner be turned over to the secretary of state on and after the passage of this act. And the secretary of state shall execute the duties heretofore devolving upon the land commissioner."

By the act of 1878, now section 60 of the General Statutes, it was provided that "the secretary of state shall take charge of all property of the state, the care and custody of which is not otherwise provided for by law. He shall hold the same subject to the directions and instructions of the commissioners of the sinking fund." Section 61: "Hereafter no grants of vacant lands shall be issued, except to actual purchasers of the said lands for value, and all vacant lands, and lands purchased by the late land commissioners of the state, shall be likewise subject to the directions and instructions of the commissioners of the sinking fund." And then, by section 62, which is but a re-enactment of the act of 1870, the several public officers mentioned in the title of this action are constituted the commissioners of the sinking fund, "to receive and manage the incomes and revenues set apart and applied to the sinking fund of the state. And by section 63 it is made the duty of the said commissioners "to sell and convey, for and on behalf of the state, all such real and personal property, assets, and effects belonging to the state as is not in public use, " with certain exceptions which need not be mentioned here, and apply the proceeds as therein directed. It seems that the papers in question, together with the other books and papers pertaining to the office of land commissioner, were, when that office was abolished, turned over to the secretary of state, and the same are now in thepossession of that officer. On the eighteenth of October, 1883, the plaintiff made a formal demand upon the commissioners of the sinking fund for the papers in controversy, which not being complied with, this action was commenced for their recovery. As the secretary of state has not been made a party, the action seems to be based upon the theory that, though the papers in question are in the actual possession of the secretary of state, yet they are only held by that officer as the mere hand of the commissioners of the sinking fund, and, being subject entirely to their control, the action is brought against them alone, as they alone can direct the disposition of them.

The circuit judge held that the land commissioner originally obtained possession of these papers by fraud, and the subsequent fraudulent holding of them by that officer "followed the papers into the hands of the present defendants, his successors, who still bold, but should not be allowed to retain, possession of the same, " and that the value of the papers to the plaintiff should be measured by his liability under the covenants of warranty therein, to-wit, the sum of seventeen thousand five hundred and ninety-nine dollars. He therefore rendered judgment that the plaintiff do recover from the defendants the papers in question, and, in case the specific property cannot be delivered up, that he recover the value thereof, to-wit, the sum of seventeen thousand five hundred and ninety-nine dollars. From this judgment defendants appeal upon the several grounds set out in the record, which need not be mentioned here. Upon the argument of that appeal the court suggested a question of jurisdiction not raised by the parties, to-wit, whether the action was not in fact, though not in form, an action against the state, and as such not maintainable in any of the courts of the state, and ordered a reargument upon that question, which has been had.

It will be necessary first to dispose of the question of jurisdiction; for, if it shall be determined that the court has no jurisdiction, then it would be not only unnecessary, but improper to undertake to decide any of the other questions in the case.

That a state cannot be sued in any of its courts without its express consent, which can only be given by the legislative authority, is a proposition so universally conceded as to render any argument or authority to support it wholly unnecessary. If, however, authority should be asked for, it will be found in almost every case which will be hereinafter cited, where it will be found that the proposition has either been distinctly decided or expressly recognized, and we are not aware of any authority to the contrary. As it is not pretended that any such consent was given in this case, the first inquiry is whether this is really an action against the state. The fact that the state is not named as a party to the record is not conclusive of this inquiry, though at one time it seems to have been so held in the case of Osborn V. United States Bank, 9 Wheat. 738, followed by Davis v. Gray,, 16 Wall. 203; but these cases, so far as this particular point is concerned, are entirely inconsistent with the more recent decisions of the supreme court of the United States, where the rule seems to be now well settled that an action, though in form against an officer of a state, if it is in fact a suit against the state itself, cannot be maintained, even though the state is not made a party on the record. Louisiana v. Jumel, 107 U. S. 711; S. C. 2 Sup. Ct. Kep. 128; Cunningham v. Macon & B. R. Co., 109 U. S. 446; S. C. 3 Sup. Ct. Rep. 292; Hagood v. Southern, 117 U. S. 52; S. C. 6 Sup. Ct. Rep. 606. Indeed, it being universally conceded that a state cannot be sued without its consent, except in the limited class of cases in which a state may be sued in the original jurisdiction expressly granted to the supreme court by the constitution of the United States, it is only in cases where the state is not named as a party defendant in the record that any real question of jurisdiction can arise; for, if the state is named as a party defendant in the record, that precludes further inquiry, and the court, it is universally conceded, cannot take jurisdiction.

In Cunningham v. Macon & B. R. Co., supra, Mr. Justice Miller reviews this whole subject, and admits that it is not an easy matter to reconcile the various decisions of the supreme court of the United States upon the subject; and, while disavowing any attempt to do so, he proceeds to deduce from them certain general principles. After laying down the general principle that a state cannot be sued without its consent, except in the limited class of cases above alluded to, he says: "This principle is conceded in all the cases; and, whenever it can be clearly seen that the state is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction;" and, after adding that the courts have, "in some instances, gone a long way in holding the state not to be a necessary party, though some interest of hers may be more or less affected by the decisions, " he proceeds to classify the cases in which this has been done, as follows:

"(1) It has been held in a class of cases where property of the state, or property in which the state has an interest, comes before the court, and under its control, in the regular course of judicial administration,...