Sigwald v. State
| Decision Date | 05 April 1926 |
| Docket Number | No. 5582.,5582. |
| Parties | SIGWALD v. STATE. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Action purporting to be pursuant to Rev. Code 1919, § 2109, by C. G. Sigwald against the State. Demurrer to complaint sustained.Sterling, Clark & Grigsby, of Redfield, for plaintiff.
Buell F. Jones, Atty. Gen., and Benj. D. Mintener, Asst. Atty. Gen., for the State.
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 said 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.
[1] 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.
[2] Sections 2109-2112 of our present Code were first enacted by chapter 1, Laws 1890. Section 4 of that act, which is identical with section 2112, Rev. Code 1919, reads:
“No execution shall issue against the state on any judgment, but whenever final judgment against the...
To continue reading
Request your trial