Mullen v. Dwight

• Decision Date: 22 July 1919
• Docket Number: 4399.
• Citation: 173 N.W. 645,42 S.D. 171
• Parties: MULLEN et al. v. DWIGHT et al., Regents of Education.
• Court: South Dakota Supreme Court

173 N.W. 645

42 S.D. 171

MULLEN et al. v. DWIGHT et al., Regents of Education.

No. 4399.

Supreme Court of South Dakota

July 22, 1919

Appeal from Circuit Court, Lawrence County; James McNenny, Judge.

Action by Barney M. Mullen and another, copartners doing business under the firm name and style of Mullen & Rourke, against T W. Dwight and others, as members of and constituting the Board of Regents of Education of the State. Judgment for plaintiffs, and defendants appeal. Reversed, and plaintiffs' action dismissed.

Clarence C. Caldwell, Atty. Gen., and Byron S. Payne, Asst. Atty Gen., for appellants.

Kellar & Stanley, of Lead, for respondents.

McCOY J.

Plaintiffs engaged in general contracting business, entered into a contract for the construction of a power house, alterations and repairs in the buildings of the state normal school at Spearfish, with defendant, as the board of regents of education of the state of South Dakota, for which construction, necessary work, labor, and materials, therefor the said board of regents promised and agreed to pay to plaintiffs the sum of $9,367. Plaintiffs, by their complaint, claim that they have fully completed the said construction according to contract, and that the board of regents have failed and refused to pay $1,477 of said contract price. This suit was instituted in the circuit court of Lawrence county to recover said balance. There was trial before the court, without a jury, which resulted in findings and judgment in favor of plaintiffs, from which the defendant board of regents appeals.

By demurrer to the complaint, by motion at the beginning of the trial, and by proper exceptions to the adverse rulings of the trial court, the appellants present the question that the circuit court had no jurisdiction of the cause; that this action against the board of regents, a governmental agency of the state, is in effect an action against the state; and that the state had not consented that it be sued in such an action in the circuit courts of this state.

We are of the opinion that this contention of appellant is well grounded. It is a fundamental principle of government that a state, being sovereign, cannot be sued in its own courts without its consent, and then only in the cases, manner, and courts prescribed by it. Michel Brewing Co. v. State, 19 S.D. 302, 103 N.W. 40, 70 L. R. A. 911; 36 Cyc. 913, 914. In Butler v. Ellerbe, 44 S.C. 256, 22 S.E. 425, the court, among other things, said:

"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."

In considering a case involving this proposition, it becomes necessary to determine whether or not the action is one against the state. Many actions and judicial proceedings may be instituted, in any courts having jurisdiction, against state officers and state agencies which are not deemed actions or suits against the state. An action against state officers to compel them by mandamus, or other similar process, to perform official duties of a purely ministerial nature, involving the exercise of no discretion of political or governmental power, is not a suit against the state, and may be maintained without its consent. Likewise, state officials may be restrained or prohibited by appropriate action or procedure, in any court having jurisdiction, from performing unlawful acts as such officials, without the consent of the state, as such procedure is not deemed a suit against the state. 36 Cyc. 916, 917; Greenwood Cemetery Co. v. Routt, 17 Colo. 156, 28 P. 1126, 15 L. R. A. 369, 31 Am. St. Rep. 284; Rolston v. Missouri Fund Com., 120 U.S. 390, 7 S.Ct. 599, 30 L.Ed. 721; German Ins. Co. v. Van Cleve, 191 Ill. 410, 61 N.E. 94; Gunter v. Ry. Co., 200 U.S. 273, 26 S.Ct. 252, 50 L.Ed. 477. The act as to whether a particular suit is a suit against a state is not always to be determined by reference to the nominal parties to the record, and, although the contrary was once held, the fact that the state is not named as a party defendant is not conclusive that the suit is not a suit against the state, and a suit in form against a state official may be in fact a suit against the state, although the state is not a party to the record. 36 Cyc. 915; Salem Mills v. Lord, 42 Or. 82, 69 P. 1033, 70 P. 832; Butler v. Ellerbe, supra; Blue Jacket Co. v. Scherr, 50 W.Va. 533, 40 S.E. 514; State v. Supr. Court, 86 Wash. 685, 151 P. 108; Norwood v. Confederate Home, 172 Ky. 300, 189 S.W. 225. As stated in many of the decisions, a like question in principle arises under the eleventh amendment to the federal Constitution. In Osborn v. Bank, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204, it was held that unless the state was a party to the record the suit was not against the state, although against a state officer; but the rule announced in that case has been overruled in many subsequent cases. In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216; Pennoyer v. McConnaughy, 140 U.S. 1, 11 S.Ct. 699, 39 L.Ed. 336; Pointdexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185. In the Ayers Case and in Butler v. Ellerbe, supra, it was in substance held that a suit brought against officers and agents of a state, where the state, although not named as such, was nevertheless the only real party against which alone in fact the judgment could effectively operate, was a suit against the state. In State v. Supr. Court, supra, involving a contract with certain state officers, the Supreme Court of Washington said:

"The suit in question, while in form a suit against certain of its executive officers in their representative capacities, is in essence and effect a suit against the state. The suit is instituted to restrain these officers, the one from certifying that certain sums payable out of the state treasury have been earned in the performance of a contract in which the state has an interest, and the other from drawing warrants on the state treasury for the payment of such certificates, if any are so presented to him. The funds involved are the funds of the state. The officers sought to be enjoined have no interest in the funds. They are merely the agents of the state by and through whom the state acts. They are not charged with acting in excess of the authority conferred upon them by law; nor is it charged that the law under which they are acting is for any reason void. The charge is, on the contrary, that a contract in which the state has an interest, and which if valid makes a charge upon the state's funds, is void because of fraud in its inception. Clearly we think such a suit, even though brought against its officer, must in effect be a suit against the state."

Title to state-owned educational property in this state is in the state, and not in the board of regents. The funds appropriated to pay the contractual obligations of the board of regents in relation to such state-owned property are the state's moneys and under the direct control of the state through its state auditor and state treasurer. The board of regents, although styled a corporation, with certain powers and duties prescribed by statute law, is nevertheless only a state agent having only a nominal interest. They are not personally liable for the fulfillment of their contractual obligations-where not charged with acting unlawfully or in excess of their authority. Any judgment that might be rendered in favor of plaintiff in a case like this could effectually operate only against the state funds under the control and in the hands of the state auditor and treasurer. We are therefore of the view that this suit is in essence and fact a suit against the state and is one of those cases which can only be maintained under the circumstances disclosed in that court in which the state has consented to...