The State ex rel. State Highway Commission v. Bates

• Decision Date: 27 June 1927
• Docket Number: 27808
• Citation: 296 S.W. 418,317 Mo. 696
• Parties: The State ex rel. State Highway Commission v. S. W. Bates, Judge of Circuit Court of Jasper County
• Court: Missouri Supreme Court

296 S.W. 418

317 Mo. 696

The State ex rel. State Highway Commission v. S. W. Bates, Judge of Circuit Court of Jasper County

No. 27808

Supreme Court of Missouri

June 27, 1927

Rule made absolute.

North T. Gentry, Attorney-General, and Lue C. Lozier, Edgar Shook and Hugh Dabbs for relator.

(1) It is fundamental that the State, being sovereign, cannot be sued without its consent. 36 Cyc. 911; Merchants Exchange v. Knott, 212 Mo. 616, 647; Hampton v. State Board of Education, 105 So. 323, 42 A. L. R. 1456; Looney v. Stryker, 249 P. 112. (2) No express constitutional or statutory provision is necessary to maintain this immunity. Rather, suit against the State is allowed only under express statutory enactments. People v. Greylock Construction Co., 209 N.Y.S. 735; Smith v. State, 118 N.Y.S 780. (3) Statutes authorizing suits against the State, being in derogation of sovereignty, must be strictly construed. 36 Cyc. 913, 1177; Miller v. Pillsbury, 164 Cal. 199 128 P. 327; Westinghouse Elec. Co. v. Chambers, 169 Cal. 131, 145 P. 1025; Mason v. Cooper, 19 Ga. 543; Village v. State, 181 N.Y.S. 189; Looney v Stryker, 249 P. 112. (4) The suit against relator is one against the State, which is the real party in interest. Laws 1921, 1st Ex. Sess., pp. 126-167; 36 Cyc. 919; Shelby v Blind Comm., 309 Mo. 612; State ex rel. Thompson v. Board of Regents, 305 Mo. 57; Hampton v. State Board of Education, 105 So. 323, 42 A. L. R. 1456; Looney v. Stryker, 249 P. 112; Sherman v. Gage, 279 S.W. 508; Anderson v. Hayes Const. Co., 213 N.Y.S. 513; State to use of Walker v. State Roads Comm. (Md.), 95 A. 956; Carpenter v. Railway Co., 184 N.C. 400, 114 S.E. 693. (5) Relator is not a private corporation, subject to the provisions of Sec. 1180, R. S. 1919, authorizing suits against a corporation, as a single defendant, in any county in which it has or usually keeps a place of business. Laws 1921, 1st Ex. Sess., pp. 131-167; 14 C. J. 72, 73; Heller v. Stremmel, 52 Mo. 309; Morrison v. Morey, 146 Mo. 561; Harris v. Bond Co., 244 Mo. 689; Land & Stock Co. v. Miller, 170 Mo. 240; Fire Alarm Co. v. Board, 285 Mo. 581, 227 S.W. 114; Head v. University, 47 Mo. 220; State ex rel. Thompson v. Board of Regents, 305 Mo. 57; Cloud v. Pierce City, 86 Mo. 357; Kansas City v. Vinyard, 128 Mo. 75; Carr v. School District, 42 Mo.App. 154; Carpenter v. State Highway Comm., 184 N.C. 400, 114 S.E. 693; King v. Board of Pharmacy, 157 Ky. 52, 162 S.W. 561; People v. Dunn, 255 Ill. 287; Looney v. Stryker, 249 P. 112. (6) The official and sole legal residence of relator is at the state capital in Jefferson City, Laws 1921, 1st Ex. Sess., pp. 131-167; State ex rel. Gardner v. Hall, 282 Mo. 425, 221 S.W. 708; Weller v. Mueller, 120 Md. 633, 87 A. 1045; King v. Board of Pharmacy, 157 Ky. 52, 162 S.W. 561; State ex rel. v. Flannelly, 96 Kan. 372, 152 P. 22. (7) Furthermore, the secretary of relator was served in Cole County, not in Jasper County. The Circuit Court of Jasper County, therefore, acquired no jurisdiction. Cases cited in preceding paragraph. (8) Where the General Assembly has intended that a governmental agency might be sued it has expressly so declared. Where suit is authorized: State Highway Commission, Laws 1921, 1st Ex. Sess., pp. 131-167; Public Service Commission, Sec. 10420, R. S. 1919; State Horticultural Society, Sec. 11953, R. S. 1919; State Board of Agriculture, Sec. 11933, R. S. 1919; State Poultry Board, Sec. 12027, R. S. 1919; State Dental Board, Sec. 12627, R. S. 1919; State Prison Board, Sec. 12407, R. S. 1919; State University, Sec. 11523, R. S. 1919; State Teachers Colleges, Sec. 11491, R. S. 1919; Workmen's Compensation Commission, Sec. 13650, R. S. 1919; Blind Commission, Laws 1925, p. 316; Board of Health, Sec. 7336, R. S. 1919. Where suit is not authorized: Board of Pharmacy, Sec. 4718, R. S. 1919; Board of Nurses, Laws 1923, p. 287; Board of Osteopathy, Laws 1921, p. 532; Board of Permanent Seat of Government, Laws 1923, p. 302; Board of Education, Sec. 11398, R. S. 1919; State Highway Board (Predecessor of Relator), Art. XI, Chap. 98, R. S. 1919.

A. G. Young for respondent.

(1) A suit against the State Highway Commission is not a suit against the State and may be maintained without the consent of the State. 24 Ency. P. & P. 65, 67; 14 C. J. 75, sec. 45; 29 C. J. 567, sec. 286; 36 Cyc. 919; Gross v. World's Columbian Exposition, 105 Ky. 840, 49 S.W. 458; Stern v. State Dental Examiner, 50 Wash. 100, 96 P. 693; Reagan v. Farmer's L. & T. Co., 154 U.S. 362, 388; Rolston v. Mo. Fund Comm., 120 U.S. 390; Railroad Commissioners v. Pensacola & A. Railroad Co., 24, Fla. 417, 466; City of Chicago v. Chicago, 207 Ill. 37, 69 N.E. 919; Butterfield v. State Ind. Acc. Comm., 11 Ore. 149, 223 P. 941, 226 P. 216; Bromwell Brush & Wire Goods Co. v. State Board, 279 F. 440; Sinking Fund Commissioners v. Northern Bank, 1 Met. (Ky.) 174; R.G. Packard Co. v. Pal. Interstate Park, 240 F. 543; Granville Co. Board of Education v. State Bd. of Ed., 106 N.C. 81, 10 S.E. 1002; Watkins Boating Co. v. State, 175 N.Y.S. 310; Ward v. State Agriculture, 70 C. C. A. 512, 138 F. 372; Interstate Const. Co. v. University of Idaho, 199 F. 509; Dunn v. University of Oregon, 9 Ore. 357; U'Ren v. State Bd. of Control, 31 Cal.App. 6, 159 P. 615; State ex rel. Thompson v. Board of Regents, 305 Mo. 57, 264 S.W. 698. (2) In order to constitute the State Highway Commission a corporation, it was not necessary to call it by that name. The powers conferred upon it determine its corporate character. Hancock v. Railroad Co., 12 U.S. 969; Gross v. Kentucky Bd. of Man., 49 S.W. 458. (3) The State Highway Commission being a corporate entity, capable of suing and liable to be sued even without legislative consent, it may be served with summons at any business office in the State, as is provided in Sections 1180 and 1192, Revised Statutes 1919. 29 C. J. 567, sec. 286. Also cases supra. (4) The Legislature in creating the State Highway Commission expressly provided that it may sue and be sued. Sec. 12. Act of 1921. It may then be sued as any other corporation for two reasons: (a) It is a corporate entity and may be sued without its consent, and (b) Consent is expressly given. (5) This being a transitory action suit may be brought wherever jurisdiction may be obtained, regardless of where the contract was made or where it was performed. 15 C. J. 738. (6) When a state submits itself to the jurisdiction of the courts, the law should be so interpreted as to give it the fullest effect. 36 Cyc. 914; 14 Ency. P. & P. 68; Rodgers v. National Council, 172 Mo.App. 725.

OPINION

Graves, J.

Original action in prohibition. The facts are undisputed, because the pleadings nisi were so framed as to make questions of law only. It appears that J. Frank Todd and Ben C. Aylor, partners, doing business under the name of Highway Construction Company, sued the relator herein (State Highway Commissioner of Missouri) in Jasper County, Missouri, for damages on a contract. The damages claimed were $ 26,000. The contract out of which it is claimed that these damages arose, was one entered into by relator, and the plaintiffs in the action brought in Jasper County, for the construction of a certain state highway in Howard County, Missouri.

In the Jasper County suit the plaintiffs sued out two writs of summons, one to Jasper County, and one to Cole County. Both were served. The one to Jasper County was served: "By delivering a duly certified copy of said original writ and certified copy of the petition to one Dean Wilson, assistant division engineer of relator, at one of the offices of relator, said office being one usually had and maintained by relator in the transaction of its usual, ordinary and customary business in said county, and the said Dean Wilson at that time being in charge of said office; that return of the alleged service upon relator as aforesaid was made by the sheriff to the Clerk of the Circuit Court of Jasper County, at Joplin."

The writ directed to Cole County was served: "By delivering a true copy of the same, with a petition thereto attached, as certified to by A. E. Taggart, Circuit Clerk of Jasper County, Missouri, to E. J. McGrew, secretary of relator; that return of said service upon relator, as aforesaid, was made by the Sheriff of Cole County to the Clerk of Circuit Court of Jasper County, at Joplin."

The relator here (defendant nisi) filed, in the lower court, both a special and limited motion to quash the service, and a special and limited motion or plea to the jurisdiction. We mean by special, that defendant entered its appearance only for such motions, and not generally.

The trial court (respondent herein) sustained the motion to quash the service, so far as the service in Jasper County was concerned, but overruled the motion as to the service in Cole County. The motion or plea to the jurisdiction was overruled. Such are the facts, and we have left but a few knotty propositions of law.

I. It is first contended by the relator, that: "It is fundamental that the State, being sovereign, cannot be sued without its consent." If such is the status of this case, i.e., that the State is being sued, without its consent, then, as Lamm, J., said in Merchants Exchange v. Knott, 212 Mo. l. c. 647, "that the sovereign State may not be sued is a truism." It should be added that the sovereign may, by law, give consent to the citizen to sue it. But this ruling does not dispose of the point, because there are two questions left open. They are, (1) is the State the real party, and (2) if so, has the State not given consent to be sued?

Relator was sued in Jasper County (according to the terms of the petition, attached to relator's petition for our writ in the instant case) "as a corporation created by the...