State v. Lain

• Decision Date: 15 September 1960
• Docket Number: No. 3719,3719
• Parties: STATE of Texas et al., Appellants, v. T. W. LAIN et al., Appellees.
• Court: Texas Court of Appeals

Page 272

339 S.W.2d 272

STATE of Texas et al., Appellants, v. T. W. LAIN et al., Appellees.

No. 3719.

Court of Civil Appeals of Texas, Waco.

Sept. 15, 1960.

Appellants' Motion for Rehearing Denied Oct. 13, 1960.

Will Wilson, Atty. Gen., Thomas Burrus and Hon, James H. Rogers, Asst. Attys. Gen., for appellants.

Preston Shirley, Galveston, for appellees.

WILSON, Justice.

Plaintiffs, alleging fee simple ownership of land adjacent to the south jetty right of way and Galveston Ship Channel, brought this action in trespass to try title against the State of Texas, the State Highway Commission and its members, the State Highway Engineer and District Engineer, the Galveston ferry manager and several ferry boat captains of the State Highway Department, all as individuals and in their official capacities. In the alternative, they alleged defendants constructed a ferry landing and dredged a channel over the property for operation of a ferry and sought to enjoin the asserted trespass. The trial court dismissed the State as a party on its plea to the jurisdiction.

The remaining defendants presented similar pleas to the jurisdiction, asserting they acted in official capacities as agents or employees of the State, pleading sovereign immunity and that legislative consent to suit had not been granted. These pleas were overruled. They filed a not guilty plea; alleged in abatement that the land in controversy lay within a navigable harbor of a port of entry, and the Federal Government was an indispensable party; that contractual rights had intervened; that the public had acquired an easement over the submerged land. The land involved is within the boundaries of the Menard patent considered in City of Galveston v. Menard, 23 Tex. 349. Plaintiffs and defendants presented motions for summary judgment. The motion of defendants was overruled; that of plaintiffs was sustained. Judgment for title and possession was rendered for plaintiffs, and defendants were enjoined from operating ferry boats over, or from going on the land.

The determinative question in this case is whether this is a suit against the State without its consent. If it is, the court was without jurisdiction.

There is language in Whatley v. Patten, 1895, 10 Tex.Civ.App. 77, 31 S.W. 60, writ. ref., and in Imperial Sugar Co. v. Cabell, Tex.Civ.App.1915, 179 S.W. 83, no writ hist., which supports the contention that this is not a suit against the sovereign and is maintainable without legislative consent. Refusal of the application in the Whatley case in 1895 merely meant the Supreme Court approved the result. It did not necessarily mean the reasoning was approved. It is to be noted that in that case the State voluntarily intervened to assert title, thereby taking the present question out of the case. That suit was against defendant solely as an individual, although the record established he held possession only in an official capacity. The Cabell case was likewise against defendants solely as individuals. Both cases bottomed the decision on United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (a 5-4 decision) and the Texas decision in Stanley v. Schwalby, 1892, 85 Tex. 349, 19 S.W. 264. Subsequent to the Whatley decision and United States v. Lee, the Supreme Court of the United States in Stanley v. Schwalby, 1896, 162 U.S. 25, 16 S.Ct. 754, 40 L.Ed. 960, in which only individual defendants were sued in a Texas trespass to try title action (although they disclaimed, alleging they were possessed as officers of the United States), pointed out that in United States v. Lee the defendants were sued for possession only; and that a Texas trespass to try title action involved title as well as possession. The Lee case was distinguished by showing the judgment there 'was simply a judgment that the plaintiffs recover against the individual defendants the possession of the lands * * * that the United States could not be sued directly * * * as a defendant except by virtue of an express act of congress, and that the United States would not be bound or concluded by the judgment.' The court then held that the trespass to try title suit in Texas 'was directly against the United States and against their property, and not merely against their officers.' The judgment directed the Texas courts to dismiss as against the United States, and render judgment for the individual defendants. Comments by the Texas Supreme Court on Imperial Sugar Co. v. Cabell, and United States v. Lee are contained in W. D. Haden Co. v. Dodgen, Tex.Sup., 308 S.W.2d 838. The fact that the distinction in Stanley v. Schwalby was not made by Whatley v. Patten or by Imperial Sugar Co. v. Cabell is discussed in 160 A.L.R. 339.

We think the rule applicable here is that announced in Walsh v. University of Texas, Tex.Civ.App.1942, 169 S.W.2d 993, writ ref., a trespass to try title action in which the University of Texas and its Board of Regents were defendants. The named defendants were not sued as individuals. The court held:

'If the plaintiffs recover the title they pray to recover the recovery is against the State. Likewise the damages which plaintiffs seek to recover are not damages against the parties named as defendants but against the State * * * Since the property of the University of Texas is the property of the State, a judgment against any party other than the State would be an empty, useless thing * * * Of course, no officer of the State can commit a wrong in the name of the State and avoid personal liability, neither can a party recover a judgment affecting the rights, title and property of the State in a suit brought against its officers and in which it is not properly made a party * * *. In our opinion * * * the suit is one against the State and all the relief sought is against the State without an allegation and showing of consent and, therefore, the court without jurisdiction to hear it.'

No relief is sought against defendants as individuals other than that prayed for against them in their official capacities. We believe this is such a suit against the State as is not maintainable without consent. The judgment of the trial court is reversed and judgment is here rendered that the injunction be dissolved and that the action be dismissed for want of jurisdiction.

On Motion for Rehearing

TIREY, Justice.

Appellees, in their Motion for Rehearing, assail the judgment entered in this Court on April 28, 1960, and assert in effect that the judgment entered by this Court reversing and remanding the judgment of the trial court and dissolving the injunction there granted enables the State employees or officials to take appellees' land for public use without consent, and without adequate compensation contrary to the provisions of Article 1, Section 17, of the Texas Constitution, Vernon's Ann.St. and contra to the provisions of the Fourteenth Amendment of the Constitution of the United States, which provide in effect that no State shall deprive any person of life, liberty or property without due process of law; that the effect of this Court's holding is to authorize the State Highway Commission of Texas, its officers and agents to take private property without the necessity of the institution of condemnation proceedings prior to the taking of private property, and that appellees are powerless to seek judicial relief restraining the State officials in so doing.

The majority of this Court are of the view that these contentions must be sustained for reasons hereinafter briefly stated.

First of all, the decree states that the plea to the jurisdiction filed by the State of Texas as defendant is sustained and the State of Texas is no longer a party to this suit. It is true that the appellants filed a plea of not guilty and, in so doing, they admitted their possession and put in issue appellees' cause of action. See Permian Oil Co. v. Smith et al., 129 Tex. 413, 107 S.W.2d 564, 567, Point 11, at page 570. However, their proof showed that they were acting only in their official and representative capacities, and that they had no title. Since the State is not a party to this action, and since the appellants are claiming to act solely in their official capacities, are they entitled to immunity in judicial proceedings where they are alleged to be trespassing on the property of appellees whose title is not in question except by a plea of not guilty, and where the testimony tendered is without dispute that the State Department for which appellants claim to be acting has made an admission as to title and possession of the property to be in the appellees? We think the answer to this question is 'No' under the holding of our Supreme Court in Cobb v. Harrington, 144 Tex. 190, 190 S.W.2d 709, 712, Points 2 and 3, 172 A.L.R. 837. In that opinion we find this statement of the Rule:

'The acts of officials which are not lawfully authorized are not acts of the State, and an action against the officials by one whose rights have been invaded or violated by such acts, for the determination and protection of his rights, is not a suit against the State within the rule of immunity of the State from suit.' Citing many cases.

In Lockhart, State Treasurer et al. v. A. W. Snyder & Company et al., 139 Tex. 411, 163 S.W.2d 385, 391, our Supreme Court, through Justice Critz, made this statement of the Rule:

'That where State officers act without...