State Highway Commission v. Coahoma County

• Decision Date: 25 October 1948
• Docket Number: 36585.
• Citation: 37 So.2d 287,203 Miss. 629
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. COAHOMA COUNTY et al.

37 So.2d 287

203 Miss. 629

STATE HIGHWAY COMMISSION v. COAHOMA COUNTY et al.

No. 36585.

Supreme Court of Mississippi

October 25, 1948

Greek L. Rice, Atty. Gen., E. R. Holmes, Jr., of Jackson, Reece O Bickerstaff, of Gulfport, and Green & Green, of Jackson for appellant.

Watkins & Eager, of Jackson, Bob Smallwood, Jr., of Oxford, D Hilton Waits of Leland, Roach & Jones, of McComb, Stone & Stone, of Coffeeville, Jones & Ray, of Jackson Campbell & Campbell, of Yazoo City, Kermit Cofer, of Water Valley, Ray, Spivey & Cain, of Canton, Creekmore & Creekmore, of Jackson, Geo. W. Currie, of Hattiesburg, Robt. R. Buntin, Jo Drake Arrington and Geo. R. Smith, all of Gulfport, Heidelberg & Roberts, of Hattiesburg, J. V. Gipson, Russell Wright, and Broach & Ethridge, all of Meridian, Roberson & Luckett, of Clarksdale, D. W. Houston, Sr. & Jr., of Aberdeen, V. B. Montgomery, of Belzoni, Beard & Pack, of Laurel, Guy Mitchell, Sr. & Jr., of Tupelo, Lester G. Fant, Jr., of Holly Springs, Carroll Kemp and Henley, Jones & Woodliff, all of Hazlehurst, Fred M. Belk, of Holly Springs, Gex & Gex, of Bay St. Louis, Evelyn C. Ortte, of Marietta, Ga., Heidelberg & Watts, of Pascagoula, Bidwell Adam, of Gulfport, Means Johnston, of Greenwood, H. V. Watkins and Avery & Putnam, all of Jackson, Owen Roberts, Brookhaven, and C. E. Johnson and H. G. Stamper, both of Union, for appellee.

SMITH, Justice.

The Court has carefully examined the suggestion of error in this case, and carefully considered each point and argument made therein. The majority of the Court is of the opinion that the suggestion of error should be overruled, and it is accordingly so ordered.

We add, by way of precaution and only because some question has been raised about it on the suggestion of error, that, although our former order was one of reversal and remand, the original opinion is to be regarded as the law of the case on any similar facts or issues upon a rehearing in the trial court. It is suggested that a careful consideration of the concluding two paragraphs of the opinion should bemove any uncertainty as to the holding of this Court.

Suggestion of error overruled.

ROBERDS, Justice (dissenting).

On the merits I adhere to my separate opinion as it appears in the report of the case in 32 So.2d 555, which opinion, although designated a separate opinion, was in fact a dissent from the holding of the majority.

I do not think the action of the Legislature at its 1948 session was an adoption of the majority opinion, first, because Sections 8035 and 8036, Code 1942, were not re-enacted but were merely permitted to remain as the law unchanged, and, second, because a suggestion of error was pending in this case and no final decision or judgment therein had been rendered.

McGEHEE Justice (dissenting).

In the former opinion rendered herein on November 10, 1947, reported in 32 So.2d 555, the decree of the Chancery Court of Hinds County was reversed by a three to two decision here, owing to the absence and illness of the then Chief Justice. The views of Justice Roberds and the writer hereof, who were not in accord with the majority as to the proper construction of the statutes involved, were expressed in a separate and a specially concurring opinion respectively. These two opinions would have been more appropriately designated if they had been rendered as dissents from the majority view, for the reason that they show that we were in accord in the main with the views of the chancellor to the effect that the statutes mean only what their language expressly declares.

The writer hereof, in specially concurring in the view that the counties were entitled to appraisement of the roads built at local expense, inadvertently assumed that he was bound by the decision in the case of State Highway Commission v. McGowan ex rel., 198 Miss. 853, 23 So.2d 893, 24 So.2d 330, to such an extent that he would not be justified in dissenting from the majority opinion written in the present case. It now develops that in that case there was no issue as to what should be appraised other than the pavement on the highway, and in my opinion it is also now shown that this Court is without jurisdiction to entertain a suit against the State or its Highway Commission where an appropriation by the Legislature would be required to give any ultimate effect to its decision.

On the coming in of the Suggestion of Error herein, it became necessary for the Chief Justice, who had then resumed his duties, to take part in its consideration for the reason that his vote would have been controlling as to whether or not the chancellor should be affirmed if the other five judges should have adhered to their former views.

We therefore sent out a memorandum wherein we requested a response to the Suggestion of Error and for briefs on the question as to whether or not any suit could be maintained against the State in regard to the subject matter of this litigation. This question had not been theretofore raised by the Highway Commission, and consequently had not been previously briefed or specifically dealt with in any of our prior decisions involving the alleged right of the counties to recover as a debt claimed to be owing to them from the State.

After a careful study of the prior decisions of the courts and the rules announced by the textwriters cited in the briefs of counsel, it is my humble judgment that the whole subject matter of this litigation should be left to the determination of the Legislature for an entire want of jurisdiction thereof by the courts; that in the absence of an express statutory consent from the Legislature no suit can be maintained either against the sovereign or one of its governmental agencies where the ultimate object and purpose of such suit is, as here, to compel and payment of a debt alleged to be due from the State, and which must be paid, if at all, by funds provided by the Legislature; and it will be found that no such statutory consent is given in Sections 13 and 14 of Chapter 47, Laws 1930, now Sections 5003 and 5004, Code of 1930, and Sections 8035 and 8036, Code 1942, known as the Stansel Act, or in any other statute, which would confer upon the twenty-three counties and the several municipalities the right to sue and compel and appraisal by the State Highway Commission of the links of 'pavement on' highways built at local expense prior to 1930, and of certain 'paved highways' built at local expense subsequent thereto.

The majority decision has held the above quoted words, in each instance, to mean also rights of way, road beds, gravel and dirt roads built at local expense, whether paved at local or state expense, and the bridges, culverts, drains, and ditches, road signs and guard rails thereon, where they have become a part of a continuous paved highway; and that the counties are entitled to compel an appraisement thereof with the view of having adjudicated the amount of the State's alleged liability therefor, as a debt due them by the State, upon a failure of the Commission to cause the same to be appraised and pay the appraised value thereof, aggregating the probable sum of from $10,000,000 to $30,000,000--an estimate made in the briefs on behalf of the Highway Commission and not seriously challenged by opposing counsel--resulting in a probable loss of approximately $15,000,000 in Federal Aid Funds to the State, since the reimbursements claimed by the counties are to a great extent for funds already once matched by the United States for local Federal aid projects.

If such authority to sue is asserted by these political subdivisions of the State on the ground that we took jurisdiction of the previous suits of certain counties in that behalf in the cases of Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808; Madison County v. Mississippi State Highway Commission, 191 Miss. 192, 198 So. 284; State ex rel. Cowen, v. State Highway Commission, 195 Miss. 657, 13 So.2d 614; and State Highway Commission v. McGowen, 198 Miss. 853, 23 So.2d 893, 24 So.2d 330; it is upon the theory that this Court would have authority to destroy the State's immunity from suit, which the Legislature had not surrendered. The legislative department, instead of the judicial, has the sole power or jurisdiction to grant such consent to sue the State where an appropriation by the Legislature would be necessary to make such a suit effective.

Moreover, in the Hancock County case, supra, we merely held that the remedy sought therein by mandamus could not be maintained in the name of the county but could only be maintained for any purpose upon the relation of the Attorney General or a District Attorney, in any matter affecting the public interest.

In the Madison County case, supra, the Court withdrew a former opinion in order to pretermit any decision on the point now under consideration, since it had not been briefed and the suit there was for a mandatory injunction, and was not maintainable as such in any event; and it was there said [191 Miss. 192, 198 So. 286]: '* * * Assuming for the purpose of this decision, and for that purpose alone, that the legislature * * * intended to create a liability and cause of action in favor of a local unit * * * the writ of mandamus (and not an injunction) is appropriately designed to afford the necessary remedy for that purpose.' And we expressly said therein that 'We pretermit the decision of any question pertaining to the right of appellant to any relief by appropriate proceedings in the premises * * *.'

In the Cowen case the question of whether or not the State had given its consent to be sued in such a case was neither raised nor discussed.

Thereafter the writer of the opinion in the Madison County case, supra, wrote a dissenting ...