Stockton v. Morris & Pierce

• Citation: 110 S.W.2d 480
• Parties: STOCKTON et al. v. MORRIS & PIERCE.
• Decision Date: 27 November 1937
• Court: Supreme Court of Tennessee

110 S.W.2d 480

STOCKTON et al. v. MORRIS & PIERCE.

Supreme Court of Tennessee.

November 27, 1937.

Error to Circuit Court, Knox County; Hamilton S. Burnett, Judge.

Suit in replevin by Morris & Pierce against George L. Stockton and another, employees of the Department of Finance and Taxation of the State of Tennessee. To review an adverse judgment, the defendants bring error.

Affirmed.

Roy H. Beeler, Atty. Gen., and Kennerly & Key, of Knoxville, for George L. Stockton et al.

Joe C. Thomason and S. E. Hodges, both of Knoxville, for Morris & Pierce.

CHAMBLISS, Justice.

Morris & Pierce is a partnership handling tobacco products at wholesale. Stockton and Dossett are employees in the Department of Finance and Taxation of this state, who, while engaged on February 9, 1937, in enforcing collection of revenue under chapter 58 of the Pub.Acts of 1933 and chapter 46 of the Acts of Extra Session of 1935, seized on the premises of Morris & Pierce, in Knoxville, as contraband a quantity of tobacco to which no state revenue stamps had been affixed. Thereupon this suit in replevin was brought by Morris & Pierce and, on the fiat of the circuit judge, the tobacco was restored to their possession. A declaration was filed alleging ownership and a value of $3,295.04; that they had been duly licensed, and were proceeding lawfully in all particulars; that, while the particular lot of tobacco had not been stamped when seized, there had been no purpose to evade the tax, but that their employees were busily engaged in affixing stamps to all such goods as received; that this particular lot had just arrived by shipment from beyond the State and had not been stamped only because they had not been in the warehouse a sufficient time; that they assured the defendants of their good faith and purpose to comply with the law and offered to do so if given opportunity; that nevertheless and wrongfully the goods were seized and taken from them for confiscation. It was further charged that the act of 1933, carried into Williams Code as sections 1242.1 and 1242.2, and the amendatory act of 1935, chapter 46, by virtue of which the defendants asserted the right to seize and confiscate these tobacco products without notice or opportunity for hearing of any kind, were unconstitutional, and void and afforded no lawful authority to these parties so to proceed; that these enactments violated section 8 of article 1 of the State Constitution, and the Fifth and Fourteenth Amendments to the Federal Constitution, particularly in that they purported to authorize employees of the Department of Finance and Taxation to seize and confiscate tobacco products without providing any mode, method, or procedure by which the owners of the property might be heard; that they failed to provide for any notice and hearing and adjudication in any court or tribunal where the owners might have opportunity to make a showing or present evidence in their behalf.

The defendants first interposed a motion to dismiss on the ground that the suit was one against the state and that the circuit court was without jurisdiction, and followed this defense with a demurrer on substantially the following grounds:

"First: That this was an action against The State, and that the Court was without jurisdiction to try it;

"Second: That there was no property right or right of possession to such tobacco products in the plaintiffs because the same did not bear stamps;

"Third: Because plaintiffs' rights, if any they had, were only by way of petition for a writ of certiorari in the Chancery or Circuit Court;

"Fourth: That Chapter 58, Acts of 1933, and Chapter 46, Special Session, Acts of 1935, were constitutional and valid."

Pending the proceedings, the defendants, by agreement and without prejudice, paid into the registry of the court $3,295.04, the appraised value of the tobacco, to await the determination of the suit.

The trial judge overruled the motion and demurrer and entered judgment for plaintiffs. Defendants appealed.

Two questions are presented by plaintiffs in error: First, it is said that the suit is one against the state and may not be maintained because of inhibitions found in the State Constitution, art. 1, § 17, providing that, "Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct," and Code, § 8634, (which originated with the act of 1855), providing as follows:

"No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with a view to reach the state, its treasury, funds, or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state."

Second, that the acts challenged are constitutional and afford authority for the seizure and confiscation.

Counsel for plaintiffs in error rely for the first insistence on the well-recognized general rule that the state cannot be sued in its own courts without its own consent, a rule announced in State v. Bank of Tennessee, 62 Tenn. (3 Baxt.), 395, 398, State v. Sneed, 68 Tenn. (9 Baxt.) 472, 473, and other early cases since followed. Counsel cite particularly as so construing the constitutional provision, or the statute, or both, Insurance Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 157; Quinton v. Board of Claims, 165 Tenn. 201, 54 S.W.2d 953; Phillips v. Marion County, 166 Tenn. 83, 85, 59 S.W.2d 507; Peerless Construction Co. v. Bass, 158 Tenn. 518, 14 S.W.2d 732; Walters v. State, 2 Shan. Cas. 69; Riddle, Coleman & Co. v. State, 3 Shan.Cas. 529; State v. Odom, 93 Tenn. 446, 25 S.W. 105; and General Oil Company v. Crain, 117 Tenn. 82, 95 S.W. 824; Id., 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754. Reliance is placed on the dissenting opinion of Mr. Justice Harlan in the last styled case.

However, we are not of opinion that these cases following the general rule have controlling application here for two reasons:

First, to quote from the opinion of Caldwell, J., in Insurance Co. v. Craig, above cited, "This is not a suit against the state eo nomine, nor is it a suit against an officer of the state in such sense and for such purpose as to be within the inhibition of the statute. It is a suit against the officer of the state, the defendant being that state's official representative, * * * but it is not brought `with a view to reach the state, its treasury, funds, or property,' and consequently is not of the inhibited class." This language is even more directly applicable in the instant case than to the facts of the case in which it was employed. This suit in replevin seeks to recover possession of property of the plaintiffs below to which neither the state nor its employees assert any claim of ownership or of possession, except the right of confiscation.

Second, by its express terms, the inhibition of the statute has application only when the "officer of the State [is] acting by authority of the State," and, by the great weight of authority, "an officer while executing an unconstitutional act, is not acting by authority of the State." This distinction was recognized in the memorable state debt case of Lynn v. Polk, 76 Tenn. (8 Lea) 121, from which the above quotation is taken, in which each member of the court wrote an opinion. In that case the right to enjoin the execution of the measure by the designated state officials was challenged on the ground relied on here, that the suit was one against the state. While differing among themselves on certain other questions considered, it is noteworthy that the four regular justices of the court, Turney, McFarland, Freeman, and Deaderick, C. J. (who thought the act constitutional) all agreed that a suit to enjoin action under the authority of an unconstitutional act could be maintained. The great Chief Justice thus tersely expressed himself: "The Court may inquire if there exists legal authority for the act; if so, it will not impede or obstruct it. On the other hand, if it appears it is prohibited by the fundamental law, it should restrain it — upon the ground that the injurious act about to be done is unauthorized by law."

The rule is thus stated in Supreme Court Law (Honnold), p. 2332:

"A suit against individuals, for the purpose of preventing them, as officers of a state, from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff, is not a suit against the state."

Ruling Case Law (volume 25, page 413) sets out the general rule invoked by plaintiffs in error and the exception applicable, we think, to the instant case, in these words:

"The immunity of a state from suit is absolute and unqualified, and the constitutional provision securing it is not to be so construed as to place the state within the reach of the process of the court. Accordingly, suits against officers of a state as representing the state in action and liability, where the state, although not a party to the record, is the real party against which relief is sought, and where a judgment for the plaintiff, although nominally against the defendant as an individual, could operate to control the action of the state or subject it to liability, are suits against the state. The rule does not, however, afford immunity to an officer where the action is for relief against statutes claimed to be unconstitutional."

And see, to the same effect, 59 C.J. § 465, at page 310; Tennessee Procedure in Law Cases, § 309, p. 110. This terse statement is made by the annotator in 43 A.L.R. p. 408: "A suit against state officers attacking the constitutionality of a statute of the State is not a suit against the State."

The courts of other states take the same view. For example, White Eagle Oil, etc., Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614, 43 A.L.R. 397; Dennison Manufacturing Co. v. Wright, 156 Ga. 789, 120 S.E. 120; Coal...