Schrader v. Veatch
| Decision Date | 15 April 1959 |
| Parties | R. A. SCHRADER, doing business as Schrader Construction Company, Appellant, v. John C. VEATCH, Robert L. Jones and O. H. Hinsdale, Commissioners constituting Oregon State Fish Commission, Respondents. |
| Court | Oregon Supreme Court |
Roscoe C. Nelson, Portland, argued the cause and filed a brief for appellant.
Lloyd G. Hammel, Asst. Atty. Gen., argued the cause for respondents. With him on the brief was Robert Y. Thornton, Atty. Gen.
Before PERRY, * C. J., and ROSSMAN, LUSK, WARNER, McALLISTER ** and SLOAN, JJ.
The plaintiff commenced this action to recover moneys he claimed to be due him under and by virtue of a contract entered into between himself and John C. Veatch, Robert L. Jones and O. H. Hinsdale, as commissioners of the Oregon State Fish Commission.
The contract was entered into for the purpose of erecting the Bonneville Fish Hatchery located in Multnomah County. The contract when fully completed in accordance with the plans and specifications apparently called for a payment to the plaintiff of $229,850. Plaintiff was paid only $195,390, hence this action.
The defendants demurred to plaintiff's complaint and the demurrer having been sustained by the trial court, the plaintiff appeals.
The defendants demurred upon the ground that the action is in fact against the state and not against them as individuals and the state not consenting to be sued, the action cannot be maintained.
The plaintiff admits the state has not consented to be sued, but contends that this is not in fact a suit against the state, but is against the commissioners; that the state has consented to the commissioners being sued when acting within their official capacity, and, if the state believes the commissioners acted within the scope of their authority, the state should ameliorate their plight by reimbursing them for their loss. Plaintiff grounds his argument upon the following:
ORS 30.400.
Immunity from suit is a sovereign right and statutes which are claimed to be in derogation of rights of sovereignty are to be strictly construed. Engle v. State Land Board, 164 Or. 109, 99 P.2d 1018; Federal Land Bank of Spokane v. Schermerhorn, 155 Or. 533, 64 P.2d 1337; 3 Sutherland Statutory Construction, 3d Ed., Horack 183, § 6301; Statutory Construction, Crawford, p. 477, § 244.
This statute (ORS 30.400) speaks in a mandatory manner, stating that if recovery is had against the officer 'the amount thereof shall be allowed to him in his official accounts.' It, therefore, refers only to a recovery in actions for liabilities created within the official scope of the officer for which the state has consented to be bound. Nowhere therein do we find words from which it can be said there is a clear legislative intent to permit generally a suit or action against an officer to be a binding obligation upon the state in the absence of the state's consent. It would be an anomaly to permit a personal judgment to be had and enforced solely against an officer of the state for carrying out the duties imposed upon him by statute.
This is purely a procedural statute setting forth the nominal party to the suit when no such provision has been made in a statute permitting suit to be brought against the state. We think this view is borne out by the fact that this statute has never been interpreted to permit suits or actions generally against the state in the absence of an express waiver of sovereign immunity or unless in conflict with a constitutional limitation placed upon the sovereign power. Tomasek v. Oregon State Highway Comm., 196...
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