Paulus v. State of S. Dakota

• Decision Date: 31 December 1924
• Citation: 52 N.D. 84,201 N.W. 867
• Parties: PAULUS v. STATE OF SOUTH DAKOTA et al.
• Court: North Dakota Supreme Court

52 N.D. 84

201 N.W. 867

PAULUS

v.STATE OF SOUTH DAKOTA et al.

Supreme Court of North Dakota.

Nov. 15, 1924.

Rehearing Denied Dec. 31, 1924.

Syllabus by the Court.

The state of South Dakota, by constitutional provision and legislative enactment, declared the mining of coal a public purpose and governmental function, and purchased and began to operate a coal mine in the state of North Dakota. The plaintiff, a resident of South Dakota, was employed in such mine, and was injured while so employed. He brought suit in the courts of North Dakota for the recovery of damages on account of such injury against the state of South Dakota.

Held that, upon principles of comity, the courts of North Dakota should refuse to assume jurisdiction of the suit and that the plaintiff be required to seek such relief as he may be entitled to in the courts of his own state.

Appeal from District Court, Hettinger County; F. T. Lembke, Judge.

Action by Joe Paulus against the State of South Dakota and another. From an order setting aside service of summons and dismissing the action, plaintiff appeals. Affirmed.S. P. Rigler, of Hebron, and Jacobsen & Murray, of Mott, for appellant.

Buell F. Jones, Atty. Gen., of South Dakota, and F. M. Jackson, of Hettinger, for respondents.

NUESSLE, J.

The plaintiff brought this action for damages against the “state of South Dakota, a foreign corporation, and coal-mining commission, a department of the state of South Dakota.” He has appealed from an order setting aside the service of summons and dismissing the action. The order so appealed from was entered on the following record: A complaint in which plaintiff alleged that the state of South Dakota was a foreign corporation engaged in the business of owning, operating and maintaining a coal mine in the state of North Dakota; that the coal-mining commission was a department of the state of South Dakota, by and through which the said state operated and managed said coal mine; that the defendant employed a large number of men in the operation of said mine; that such employment constituted a hazardous employment within the purview of that term as used in the Workmen's Compensation Law of the state of North Dakota (Laws 1919, c. 162), and that the defendant, by virtue of said statute, was obligated to pay to the fund contemplated therein the premium for the purpose of insuring its employees, but failed to do so, and, by reason of such failure, became liable to plaintiff for his injury irrespective of negligence; that the defendant is a resident of the state of South Dakota; that the plaintiff is a resident of the state of South Dakota; that the defendant was not acting, in carrying on and operating said coal-mining business, as a sovereign state, but was acting as a private corporation; that it was thus engaged in the state of North Dakota without the consent of North Dakota, but without any objection on its part; that the plaintiff was employed by the defendant as a coal miner in the properties thus operated by the defendant in North Dakota; that, by reason of negligence on the part of the defendant, the plaintiff was grievously injured, and the plaintiff demanded damages in the sum of $50,000.

The plaintiff filed his summons and complaint in the district court and caused a warrant of attachment to be issued and the real and personal property of the defendant in North Dakota to be attached. Thereafter the plaintiff caused a copy of the summons and complaint to be served upon the members of the coal-mining commission, including the Governor of the state of South Dakota, and upon the Attorney General of the state of South Dakota. Such service was made within the state of South Dakota, excepting upon one of the commissioners, who was served in North Dakota. Subsequently the state of South Dakota and the coal-mining commission of South Dakota, appearing specially, moved the district court to set aside and vacate the service of the summons and to dismiss the action with costs. The grounds assigned for such motion were that the defendant, the state of South Dakota, was a sovereign state over which the district court of the state of North Dakota had no jurisdiction; that the defendant, coal-mining commission, was a department of the sovereign state of South Dakota, over which the district court of the state of North Dakota had no jurisdiction; and that the requirements of the laws of North Dakota, with reference to the issuance and service of the writ of attachment, had not been complied with. In support of such motion, the defendant, by its attorneys, filed affidavits setting forth-

“That the purpose for which the coal-mining commission was established was to furnish coal to the people of the state of South Dakota and the public institutions of the state of South Dakota; that the said coal-mining commission has no property whatever as such. but that said coal-mining commission is now, and has been for some time since its creation, managing and mining coal near Haynes, Adams county, N. D., and which, said coal mine with all of its equipment, is the property of the sovereign state of South Dakota, and that it was created by an act of the Legislature of the state of South Dakota for the purpose of carrying out the provisions of a constitutional amendment to the Constitution of the state of South Dakota; * * * that the property and all of the property attempted to be levied upon is now, and was at all times during the past three years, the property of the sovereign state of South Dakota, used for the purpose of carrying out the provisions of an act of the Legislature of the state of South Dakota for the year 1919; that no property attempted to be attached was other than the property of the state of South Dakota.”

No further showing was made on the part of the plaintiff, and on the record, as thus established, the matter came on for hearing before the district court of Hettinger county. The court, after consideration, entered the order setting aside the service of the summons and dismissing the action, from which this appeal is taken.

Article 13, par. 14, an amendment to the Constitution of the state of South Dakota, adopted in November, 1918, provides:

“The mining, distribution and sale of coal are hereby declared to be works of public necessity and importance in which the state may engage, and the Legislature may enact suitable laws to carry this provision into effect and to empower the state to acquire, by purchase or appropriation, all lands, structures, easements, tracks, rights of way, equipment, cars, motive power, and all other facilities implements, instrumentalities, and materials necessary or incidental to the acquisition, mining, manufacturing and distribution of coal for fuel purposes: Provided, however, that no expenditure of money for the purposes enumerated in this section shall be made except upon a vote of two-thirds of the members elect of each branch of the Legislature.”

The Legislature of South Dakota in 1919 passed an act providing for a coal-mining commission, which was thereafter approved by the Governor. This act is known as chapter 136 of the Session Laws of 1919. Section 1 thereof reads:

“The people having adopted at the last general election amendments to article XIII of the Constitution, to the effect that the mining, distribution and sale of coal are works of public necessity and importance in which the state may engage, and authorizing and empowering the state to engage in the mining, distribution and sale of coal, the mining, distribution and sale of coal are hereby declared to be public purposes impressed with a public use, and as such governmental functions of the state and subject to regulation.”

Section 2 creates a state commission, to be known as the coal-mining commission, to consist of the Governor and two members to be appointed by him and provides for their compensation. Section 3 authorizes the commission thus created to engage in the mining, distribution, and sale of coal and, for that purpose, to acquire real property in the state of South Dakota or adjacent states, either by purchase or appropriation by the exercise of the right of eminent domain, as provided by the laws of South Dakota. Section 4 makes it the duty of said commission to make investigations and locate coal fields suitable in the opinion of the commission for the location and development of coal mines by the state, and to employ the necessary assistance to do this; to provide and supply such equipment as may be necessary for the opening, development, and operation of coal mines, and empowers the commission to do any and all things in the premises requisite and necessary in the performance of their duties under the act. Section 5 provides that, if the commission shall establish and operate coal mines, it is its duty and it is empowered to employ such assistance as is necessary to accomplish that purpose; to provide rules and regulations for the conduct and management of mines; to fix wages and establish prices at which coal should be sold; to distribute and sell coal to the citizens of South Dakota at such prices and on such terms as in its opinion shall be for the best interests and protection of the state and the people thereof, that such coal shall be sold at the lowest possible price consistent with the successful operation of the mines, and that only such profit may be made as shall be necessary to defray the expenses of operation and to repay to the state of South Dakota the moneys appropriated by the act and to set aside a reserve for the replacement of equipment. Section 6 appropriates the sum of $150,000 out of the state treasury to be placed to the credit of the commission for the purpose of carrying out the provisions of the act. It provides that the moneys received...