Reed v. Evans

• Decision Date: 24 August 1976
• Docket Number: No. 49075,49075
• Citation: 342 So.2d 290
• Court: Mississippi Supreme Court
• Parties: Jack K. REED, Superintendent, Mississippi State Penitentiary v. Monroe H. EVANS.

Page 290

342 So.2d 290

Jack K. REED, Superintendent, Mississippi State Penitentiary v. Monroe H. EVANS.

No. 49075.

Supreme Court of Mississippi.

Aug. 24, 1976.

Rehearing Denied Oct. 12, 1976.

A. F. Summer, Atty. Gen., by James M. Ward, Special Asst. Atty. Gen., Jackson, for appellant.

Ronald Reid Welch, Herman (Tex) Wilson, Jackson, for appellee.

Before GILLESPIE, SMITH and WALKER, JJ.

SMITH, Justice, for the Court.

The State of Mississippi appeals from the action of the Circuit Court of Sunflower County which would have required payment to appellee, Monroe Harold Evans, of $314.66 from State funds.

In 1973, while Evans was an inmate of Camp 8 of the penitentiary at Parchman, Camp 8 was made a 'close confinement camp' under special rules and regulations. A 'shakedown' of the Camp followed, in the course of which all personal property of the convicts was inventoried and removed. An electric fan, a portable radio, an electric stencil, several shirts, a coffeepot, a portable typewriter, and a radio tape player, were taken from Evans. An official receipt was issued to him for these articles. The receipt introduced into evidence, bears a stipulation 'O.K.' and 'not returned.' The record shows that these notations were made in the course of an investigation and do not indicate a return of the property to Evans.

All of the personal property, including that of Evans, was stored in the boiler room at the penitentiary. A few days later, the circumstances which had brought about the above measures, no longer existing, penitentiary officials undertook to return to the prisoners the articles which had been taken from them. It is stipulated in the record in this case that the radio, tape player and typewriter were not returned to Evans.

At the trial of the case the court found that the typewriter, radio, tape player and coffeepot had not been returned to Evans. The record makes it clear that these articles had disappeared while in official custody of penitentiary authorities and could not be found. There seems to be no question but that Evans was permanently deprived of his property through negligence on the part of penitentiary employees who failed to make any provision whatever for its protection from theft or loss. This is not controverted by the State.

On appeal there is only one assignment of error. The circuit court erred in directing payment to Evans of $314.66, the undisputed value of the property, from public funds appropriated by the State of Mississippi for the express purpose of operating the penitentiary since such an award is barred by the sovereign immunity of the State of Mississippi, the State's consent to the suit not having been obtained.

This Court has said:

That an arm or agency of the state cannot be sued except by express statutory or constitutional authority has been too long and too well settled to be further debatable now, . . ..

(Smith v. Doehler Metal Furniture Co., 195 Miss. 538, 545, 15 So.2d 421 (1943).

In the case above cited (State Mineral Lease Commission et al. v. Lawrence et al., 171 Miss. 442, 157 So. 897 (1934)), the Court after stating the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except upon the express statutory consent of the state, as held in State v. Woodruff, 170 Miss. 744, 150 So. 760, therein declared that 'It does not apply when the suit is against an officer or agent of the state, and the relief demanded by the suit requires no affirmative official action on the part of the state nor the affirmative discharge of any obligation which belongs to the state in its political capacity, even though the officers or agents who are made defendants disclaim any personal interest in themselves and claim to hold or to act only by virtue of a title of the state and as its agents and servants. Thus it will be found, as illustrative of what has been above said, that all the cases, wherein the rule of immunity from suit against the state, or a subdivision thereof, has been applied and upheld, are those which demanded a money judgment, and wherein the discharge of the judgment, if obtained, would require an appropriation or an expenditure therefrom, which being legislative in its character is a province exclusively of the political departments of the state. And in the less frequent number of cases where no money judgment is demanded, and the rule of immunity is still upheld, it will be found in them that the relief demanded would be, nevertheless, to require of the state or its political subdivision the affirmative performance of some asserted obligation, the nature of which, and the process of its discharge, belong to the state in its political capacity.'

(171 Miss. 442, 157 So. 898). (State v. Sanders, 203 Miss. 475, 490-491, 35 So.2d 529, 532-533 (1948)).

In Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the United States Supreme Court quoted Hamilton in Federalist No. 81:

'It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the states, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the state governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting state, and to ascribe to the federal courts by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.'

(134 U.S. at 13, 10 S.Ct. at 506, 33 L.Ed. at 846).

After quoting extensively from Madison and Marshall, the Court, in upholding the sovereignty doctrine, said:

It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they apply equally to the present case as to that then under discussion. . . .

The suability of a state, without its consent, was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. . . .

(134 U.S. at 14-16, 10 S.Ct. at 507, 33 L.Ed. at 847).

The Court quoted Chief Justice Taney in Beers et al. v. Arkansas, 61 U.S. 527, 529, 20 How. 527, 529, 15 L.Ed. 991 (1858):

It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it. . . . The prior law was not a contract. It was an ordinary act of legislation, prescribing the conditions upon which the state consented to waive the privilege of sovereignty. It contained no stipulation that these regulations should not be modified afterwards if, upon experience, it was found that further provisions were necessary to protect the public interest; and no such contract can be implied from the law, nor can this court inquire whether the law operated hardly or unjustly upon the parties whose suits were then pending. That was a question for the consideration of the legislature. They might have repealed the prior law altogether, and put an end to the jurisdiction of their courts in suits against the state, if they had thought proper to do so, or prescribe new conditions upon which the suits might still be allowed to proceed. In exercising this power the state violated no contract with the parties.' The same doctrine was held in Railroad Co. v. Tennessee, 101 U.S. 337, 339; Railroad Co. v. Alabama, 101 U.S. 832; and In re Ayers, 123 U.S. 443, 505, 8 Sup.Ct.Rep. 164 (31 L.Ed. 216).

(134 U.S. at 17-18, 10 S.Ct. at 508, 33 L.Ed. at 848).

And concluded:

To avoid misapprehension it may be proper to add that, although the obligations of a state rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the state consents to be sued or comes itself into court, yet, where property or rights are enjoyed under a grant or contract made by a state, they cannot wantonly be invaded. Whilst the state cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts may be judicially resisted, and any law impairing the obligation of contracts under which such property or rights are held is void...