State, State Road Commission v. District Court

• Decision Date: 15 October 1937
• Docket Number: 5897
• Citation: 94 Utah 384,78 P.2d 502
• Court: Utah Supreme Court
• Parties: STATE, by STATE ROAD COMMISSION, et al. v. DISTRICT COURT, FOURTH JUDICIAL DIST. IN AND FOR UTAH COUNTY et al

78 P.2d 502

94 Utah 384

STATE, by STATE ROAD COMMISSION, et al. v. DISTRICT COURT, FOURTH JUDICIAL DIST. IN AND FOR UTAH COUNTY et al

No. 5897

Supreme Court of Utah

October 15, 1937

Rehearing Denied April 13, 1938.

Original application by the State, by and through the State Road Commission of Utah, and E. E. Howe, Chairman, and others members of the commission, for a writ of prohibition against the District Court of the Fourth Judicial District in and for the County of Utah, and the Judges thereof, the Honorable Abe Turner and Honorable Dallas H. Young, and others, to prohibit the defendants from further proceeding with a trial, wherein defendants filed a demurrer.

ALTERNATIVE WRIT OF PROHIBITION MODIFIED, AND WRIT MADE PERMANENT AS AGAINST THE STATE ROAD COMMISSION.

Joseph Chez, Atty Gen., and John D. Rice, Deputy Atty. Gen., for plaintiffs.

George W. Worthen, of Provo, for defendants.

HOYT District Judge. FOLLAND, C. J., and MOFFAT, J., concur. WOLFE and HANSON, JJ., dissent. LARSON, J., being disqualified, HYOT, District Judge, sat.

OPINION

HOYT, District Judge.

In this case the plaintiffs have applied for a writ of prohibition to prohibit the defendants from further proceeding with the trial of an action pending in the district court of Utah county, in which the defendants J. P. Gourley, Bessie Gourley, Charles A. Smith, Rachel Daniels, and Christian P. Andreasen, administrator of the estate of Kate Andreasen, deceased, are plaintiffs, and the State Road Commission of Utah and L. A. Young et al., doing business as L. A. Young Construction Company, are defendants. The action filed in the district court was brought to enjoin the defendants therein, State Road Commission and L. A. Young et al., from constructing a viaduct along a portion of Center street in Provo City until the plaintiffs as abutting owners have been compensated for damages to their properties by reason of such construction, or until the defendant Road Commission shall have secured the right to proceed under an order of the district court in eminent domain proceedings. The plaintiffs in that action, J. P. Gourley et al., are owners of lots abutting upon Center street on the north side of the section of the street where the viaduct is to be constructed. The complaint in the injunction suit, a copy of which is attached to the application for writ of prohibition herein, sets out among other things: That Center street is an improved street in the city of Provo, 116 1/4 feet wide; that the State Road Commission has determined to construct a viaduct over railroad tracks which cross said street between the Daniels property and the Andreasen property, and has let a contract for such construction to the defendant L. A. Young Construction Company; that the plans and specifications call for a viaduct 38 feet wide with a maximum height of 30 feet above the present grade of Center street; that this construction will deprive the plaintiffs of their present convenient access to their property, will darken and dampen the street in front of plaintiff's properties; will deprive plaintiffs of their easement of light, air, and view; will cause the grade of the street to be raised in front of their properties; and will prevent continuous travel on Center street past the properties of the plaintiffs, except over the proposed viaduct. It is also alleged that the interurban railway tracks now located in the middle of the street will be moved 22.2 feet north to a line in close proximity to plaintiffs properties. The complaint further alleges that the threatened acts of the defendants, if not enjoined by the court, will constitute a taking and damaging of plaintiffs' properties; that the defendant Road Commission has not instituted any condemnation proceedings; that if such construction is proceeded with the plaintiffs will have no remedy at law; that the Revised Statutes of Utah provide that the Road Commission may be sued only on written contracts made by it or under its authority, and unless an injunction is issued the plaintiffs will have no remedy and will suffer irreparable injury.

The defendant Road Commission was served with summons and complaint, and it thereafter filed in the district court a motion to quash the proceedings upon the ground (1) that the court had no jurisdiction over the road commission; (2) that the commission may not be sued except upon a written contract.

This motion was denied by the district court, and the present application for writ of prohibition was then filed in this court and an alternative writ of prohibition was issued. The defendants herein have appeared and filed a motion to quash and a demurrer to this writ and the application and affidavit therefor.

The Attorney General, on behalf of the State and State Road Commission, plaintiffs herein, asserts that the injunction suit pending in the district court of Utah county is in reality a suit against the State of Utah, that the State has not consented to be sued in such a case, and that further proceedings in the suit should therefore be prohibited by this court. Counsel for defendants argue to the contrary, that the injunction suit is not a suit against the State.

It is to be noted that in the injunction suit the individual members of the State Road Commission are not named as defendants, and that the service of summons was made upon the commission by service upon one member.

The State Road Commission is an agency of the State. It is clothed with certain powers in the nature of corporate powers, but cannot be considered to be a corporation. It may sue in its own name, and section 36-2-1, R. S. Utah 1933, as amended by Laws of Utah 1935, c. 35, provides that it may be sued only on written contracts. Being an unincorporated agency of the State, a suit against it is a suit against the State. The State cannot be sued unless it has given its consent or has waived its immunity. Wilkinson v. State, 42 Utah 483, 134 P. 626, 631; Campbell Building Co. v. State Road Commission, .. Utah..., 70 P.2d 857. Defendants do not argue in their briefs that consent has been given by the State or that there has been any waiver of the State's immunity from suit. Their argument is that the injunction suit is not against the State. We cannot agree with this argument in so far as the Road Commission as such is concerned. It is an agency of the State, and a suit against it is a suit against the State. Campbell Building Co. v. State Road Commission, supra. In so far, however, as the defendant contractor is concerned, a different question is presented. Also, if the individual members of the Road Commission are personally made parties defendant in the injunction suit the case will be different than if prosecuted against the Road Commission as a body.

Can the injunction suit be maintained against the contractor--or against the individual members of the Road Commission--where the effect of a restraining order, if issued, will be to coerce the State into paying defendants damages, or to temporarily or permanently prevent the State from carrying out the proposed highway improvement?

The State unquestionably has the right to take or damage private property when necessary for public use. There are, however, conditions attached to this right. Article 1, § 22 of the State Constitution provides that private property shall not be taken or damaged for public use without just compensation. The State and Federal Constitutions, each forbid the State to deprive a person of his property without due process of law. Const. Utah art. 1, § 7; Const. U.S. Amend. 14 Chapter 61, of title 104, R. S. Utah 1933, sets forth the procedure by which the right of eminent domain may be exercised in this State. The process required by that chapter, where property is to be taken for public use, is that a proceeding must be instituted in the district court of the county where the property is situated; that a verified complaint must be filed setting forth the name of the commission or person in charge of the public use for which the property is sought, the names of the owners of the property if known, a statement of the right of the plaintiff, a description of the property, etc. It is provided that all persons having or claiming an interest in any of the property described or in the damages for the taking thereof, though not named, may appear, plead, and defend 104-61-8. The court or judge is given the power to determine the necessity of the taking and to hear and determine all adverse and conflicting claims to the property sought to be condemned, and to the damages therefor. The plaintiff, by a summary proceeding, may obtain an order of the court permitting occupation of the premises pending trial of the action. It is further provided, section 104-61-11, that "the court, jury or referee must hear such legal evidence as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess * * * the value of the property sought to be condemned * * * and of each and every separate estate or interest therein; and * * * if the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages"; also, that "as far as practicable compensation must be assessed for each source of damages separately." It is to be noted that this procedure provided for the exercise of the right of eminent domain differs from that adopted by many of the states, in that the landowner is given the right to have his damages assessed by a court or jury, whereas in many of the states such damages are assessed by a board of arbiters.

By the provisions of section 36-2-6, R. S. Utah 1933. as amended by chapter 28, Laws of Utah 1933, the State Road Commission is authorized...