Paulus v. State
| Decision Date | 16 August 1929 |
| Citation | 227 N.W. 52,58 N.D. 643 |
| Court | North Dakota Supreme Court |
Rehearing Denied October 22, 1929.
Appeal from the District Court of Grant County, Berry, J.
Affirmed.
S P. Rigler and Jacobsen & Murray, for appellant.
A state engaging in private industry beyond its own borders lays down its robes of sovereignty and takes upon itself the character of a private corporation. Georgia v. Chattanooga, 264 U.S. 472, 68 L. ed. 796, 44 S.Ct. 369.
The state may prescribe that such shall be subject to action, or it may create such powers and obligations for such agency that the right of action against it is implied from the status created. Sargent County v. Bank of North Dakota, 47 N.D. 561, 182 N.W. 270.
Mast, F. & Co. v. Stover Mfg. Co. (U.S.) 44 L. ed 856.
"Where the state creates a commission or other agency, which it authorizes to conduct ordinary business ventures, such agency may be sued, regardless whether the state expressly authorizes suit against it, inasmuch as such liability arises from the business which it conducts."
F. M. Jackson and M. Q. Sharpe, Attorney General of South Dakota (of counsel), for respondents.
"In this jurisdiction it is settled beyond all controversy that an order dismissing an action is nonappealable." Grain Growers Grain Co. v. State, 52 N.D. 785, 204 N.W. 838. See also Malherek v. Fargo, 49 N.D. 123, 190 N.W. 176.
"The legislature shall by law direct in what manner and in what courts suit may be brought against the state." N.D. Const. art. 3, para. 27.
"No sovereign state is liable to be sued without her consent." Hans v. Louisiana (U.S.) 33 L. ed. 842.
"The power of eminent domain is an attribute of sovereignty and inheres in every independent state." East Tenn., V. & G. Ry. Co. v. Nashville, C. & St. L. Ry. Co. 51 S.W. 202.
"The state is a body politic and not a society or corporation." State v. Taylor, 7 S.D. 533, 64 N.W. 548.
A corporation is purely a creature of the sovereign power and has none of the attributes of sovereignty. A sovereign remains sovereign outside of his own domains as well as within. Van Steuben v. Central R. Co. 34 L.R.A. 577.
A state cannot be sued in tort in any event unless by express consent. McElroy v. Swart, 57 Mich. 500, 24 N.W. 769; Zoellers v. State Bd. of Agriculture, 173 S.W. 1143; Diebrick v. Palisades Park Ave. 187 N.Y. 454; Re Wausau Ins. Co. (Wis.) 158 N.W. 81.
A real sovereign, a state, a nation, is always sovereign. In none of its activities is it ever subject to a higher human will, individual or collective. Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562, 70 L. ed. 1088, 46 S.Ct. 611.
This is an action for damages for personal injuries. The action was dismissed in the district court and the plaintiff appeals. The cause was before this court upon a former occasion when, upon grounds of comity, it was dismissed. Paulus v. State, 52 N.D. 84, 201 N.W. 867. In the complaint which was then before the court, the plaintiff alleged that he was a resident of South Dakota. In the present complaint he alleges he is a citizen of Poland but that for the last twenty years or more he has been a resident and taxpayer of the state of North Dakota and has declared his intention to become a citizen of the United States. The defendant, state of South Dakota, is alleged to be a foreign corporation engaged in its proprietary capacity in the private business of owning, operating and maintaining a coal mine in Adams county in this state; that the other defendant, the Coal Mining Commission of the state of South Dakota, was and is a department and agency of the state of South Dakota, by and through which it operated and managed the coal mine. It is alleged that in the operation of the coal mine the defendants entered into contracts in North Dakota employing laborers; that they employed the plaintiff in a hazardous employment and in circumstances which assured to him the protection of the North Dakota Workmen's Compensation Law; -- that the defendants did not pay premiums to the North Dakota workmen's compensation fund and have failed to comply with the act and by reason of such failure they were not entitled to the benefits and protection afforded employers by said law; that on the 6th day of October, 1922, the plaintiff was in the performance of his duties mining coal for the defendants in Adams county, North Dakota, and in the course of his employment was injured by an explosion of a keg of powder. It is to recover for these injuries that the action is brought.
It is the contention of the appellant that when the state of South Dakota undertook to operate a coal mine in this state it embarked upon a private business and must be considered to have abandoned for all purposes connected with the business its sovereign character; that it must be considered to have subjected itself to the laws of North Dakota enacted for the protection of employees and consequently to have become liable according to the terms of the Workmen's Compensation Law the same as a private employer. Then the further contention is advanced that the state of South Dakota has consented to be sued, expressing its consent in such terms as to authorize the instant action.
The principal authorities relied upon to sustain the first contention are Sargent County v. State, 47 N.D. 561, 182 N.W. 270, and Georgia v. Chattanooga, 264 U.S. 472, 68 L. ed. 796, 44 S.Ct. 369. In the Sargent County Case, supra, this court was called upon to construe the constitutional and statutory enactments under which the Bank of North Dakota was chartered to determine whether the bank had a distinct status separate and apart from the state, so that it might be subjected to garnishment proceedings. In the course of the opinions in that case the constitutional and statutory provisions, which seemed clearly to point to the separate status, were quoted and relied upon as showing that the bank should be treated, for purposes of suit, as having a distinct status and as not being identical with the state. We of course took judicial notice of all the constitutional and statutory provisions defining the charter powers of the bank. In the instant case the law under which the defendant, the Coal Mining Commission of the state of South Dakota, is organized is the law of a sister state and one of which we cannot take judicial notice. It is not pleaded. (36 Cyc. 1240.) Neither is the legal status of the defendant, the state of South Dakota, pleaded further than to say that it is a foreign corporation engaged and engaging, in a proprietary capacity, in the private business of owning, operating and maintaining a coal mine in this state. We take judicial notice of the fact that the state of South Dakota is a sovereign state of the United States. This fact is deemed part of the pleadings and not a mere matter of evidence. (Comp. Laws 1913, para. 18, § 7937.) Therefore, the allegation that the state of South Dakota is a foreign corporation is necessarily qualified by the fact of which the court takes judicial notice. In the absence of allegations showing by what statutory authority the state proceeds in the acquisition, maintenance and operation of the coal mine, we cannot assume that it has altogether abandoned its governmental sovereignty for the limited purpose. Whether it has done so obviously depends more upon the law under which it operates than upon the character of the activity. Modern society furnishes numerous examples of the state or other governmental agencies directly engaging in activities which but for the governmental end sought to be accomplished would be regarded as private businesses.
Obviously, any discussion in the Sargent County Case of the character of the business in which the state was engaged was pertinent to a consideration of the true meaning of the constitutional and statutory provisions defining the charter powers. But it is not authority for the assumption of the appellant here that the operation directly by the sovereign authority of what is generally regarded as a private enterprise is necessarily accompanied in every instance by a complete surrender for the purpose of the attributes of sovereignty, among which is immunity from suit. The Sargent County Case does not so hold. Therefore, in the absence of allegations as to the law of the sister state showing a consent to be sued, the courts of this state must necessarily regard a sovereign sister state as immune to the same extent that this state would be immune in the absence of a consenting statute.
Furthermore when this case was before this court upon the former appeal (52 N.D. 84, 201 N.W. 867) the constitutional and statutory provisions of South Dakota authorizing the state to engage in the business in question were quoted, and the argument of counsel to the effect that the state had laid aside its...
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