Sigwald v. State
| Decision Date | 05 April 1926 |
| Docket Number | 5582 |
| Parties | C. G. SIGWALD, Plaintiff, v. STATE OF SOUTH DAKOTA, Defendant. |
| Court | South Dakota Supreme Court |
STATE OF SOUTH DAKOTA, Defendant. South Dakota Supreme Court Original Proceedings #5582--Demurrer sustained Sterling, Clark & Grigsby, Redfield, SD Attorneys for Plaintiff. Buell F. Jones, Attorney General Benj. D. Mintener, Assistant Attorney General, Pierre, SD Attorneys for the State. Opinion filed April 5, 1926
Purporting to act pursuant to the provisions of section 2109, Rev. Code 1919, plaintiff filed a complaint against the state in the office of the clerk of the Supreme Court, and served the notice to answer or demur pursuant to section 2110. The Attorney General has demurred to the complaint, and the matter is now before us thereon. The complaint alleges an advertisement for bids by the state highway commission in 1920 for the construction of 7 miles of state and federal aid highway in Union county; that separate bids were required. (a) for grading and (b) for surfacing with gravel; that plaintiff and another (both of whom we will hereafter refer to as plaintiff, because the other assigned his interest to plaintiff) were the lowest bidders for each; that on September 21, 1920, plaintiff was notified that his bid for each was accepted; that on September 23, 1920, formal contract was entered into for the grading, but that no formal contract was entered into for the surfacing; that the grading was completed in June, 1921; that in April, 1921, the highway commission returned to plaintiff the certified check accompanying his bid for surfacing, and notified him that such work had been let to other persons, and that' plaintiff would not be permitted to do the surfacing; that plaintiff suffered damages thereby in the sum of $25,000 largely by loss of prospective profits in the job of surfacing. The complaint further alleges the presentation of a claim in the sum of $25,000 therefor to the state auditor and its rejection.
For the purposes of this case we assume, without deciding, that this is an action for damages for breach of contract, and that the state is as much liable for the breach of its contract as would be an individual.
It is contended by the Attorney General that this is not the kind of claim contemplated by section 2109; that said section applies only to cases where an appropriation is available out of which to pay the claim, and relies on section 9 of article 11 of the Constitution, which provides:
"No indebtedness shall be incurred or money expended by the state, and no warrant shall be drawn upon the state treasurer except in pursuance of an appropriation for the specific purpose first made."
The plaintiff contends that the general appropriation for highway construction is available for the payment of a judgment that may be rendered, but that, even if such appropriation is not available, yet a judgment could be rendered which would, of course, be unenforceable, unless and until the Legislature, in its discretion, made an appropriation for its payment.
The right to sue the state is not an inherent right. It is a permission given by the Legislature pursuant to the directions of Const., art. 3, § 27. Manifestly no such right exists except as declared by the Legislature.
Sections 2109-2112 of our present Code were first enacted by chapter 1, Laws 1890. Section 4 of that act,...
To continue reading
Request your trial
-
Darnall v. State
... ... Board of County Commissioners, 62 S.D. 86, 251 N.W. 816. That an action cannot be maintained against the state in the absence of statutory or constitutional authority has been long accepted by the courts. Griffis v. State, 68 S.D. 360, 2 N.W.2d 666. It is not an inherent right. Sigwald v. State, 50 S.D. 37, 208 N.W. 162. We have had occasions to deal with it in several other cases. Kansas City Bridge Co. v. State, 61 S.D. 580, 250 N.W. 343; Alexander v. State, 74 S.D. 48, 48 N.W.2d 830 ... Division II. Art. VI, Sec. 13 of the State Constitution declares ... ...
-
State Highway Commission v. Knight
... ... 416; Classidy v. St. Joseph's, ... 152 S.W. 306; Story on Agency (9 Ed.), section 319; ... Carpenter v. R. R. Co., 114 S.E. 693; Gunther v ... County Road Commission, 396 N.W. 386; Watkins v ... State Roads Commission, 95 A. 956; Looney v. Stryker ... et al., 249 P. 112; Sigwald v. State, 208 N.W ... 162; Strickfadden et al. v. Green Creek Highway District et ... al., 49 A. L. R. 1057 ... Section ... 17 of the Constitution of Mississippi of 1890 is not ... self-executing, so as to entitle the appellee to recover ... damages from the appellant, an agency of ... ...
-
Hurley v. State
... ... Mullen & Rouke v. Dwight, 42 S.D. 171, 173 N.W. 645; Mackey v. Reeves, 44 S.D. 153, 182 N.W. 700; Sigwald v. State, 50 S.D. 37, 208 N.W. 162; Wisconsin Granite Co. v. State, 54 S.D. 482, 223 N.W. 600; Fransen v. State, 59 S.D. 432, 240 N.W. 503; Griffis v. State, 68 S.D. 360, 2 N.W.2d 666 ... In Mullen & Rouke v. Dwight, supra, this court considered an action commenced in the circuit ... ...
-
Barnsdall Refining Corp., v. Welsh
... ... Under the provisions of this statute the operation of any store within this state without a license is made unlawful. The license fees to be paid are graduated according to the number of stores to be operated “under the same ... This section, however, does not authorize the bringing of an action upon a claim for the payment of which no appropriation has been made. Sigwald v. State, 208 N.W. 162; Brams v. State, 262 N.W. 89 ... Section 11 of the act in question reads as follows: “Any and all expenses incurred by ... ...