Thomas v. State

• Citation: 16 Idaho 81,100 P. 761
• Parties: J. H. THOMAS and D. M. FARIS, Partners Under the Firm Name and Style of THOMAS & FARIS, Plaintiffs, v. STATE, Defendant
• Decision Date: 03 March 1909
• Court: United States State Supreme Court of Idaho

100 P. 761

16 Idaho 81

J. H. THOMAS and D. M. FARIS, Partners Under the Firm Name and Style of THOMAS & FARIS, Plaintiffs, v. STATE, Defendant

Supreme Court of Idaho

March 3, 1909

STATE NORMAL SCHOOL-BOARD OF TRUSTEES-RIGHT TO SUE AND BE SUED-CLAIMS AGAINST THE STATE-JURISDICTION OF COURT TO HEAR AND DETERMINE.

1. The state cannot be sued without its express consent, and this consent must be found either in the constitution of the state or legislative enactment.

2. Where the statute gives consent that the state may sue and be sued and prescribes the court in which actions, involving claims against the state, must be brought, then such court is the only court having jurisdiction of such actions.

3. Under the statute, creating the Albion State Normal School consent is given that the board of trustees may sue and be sued; and this, taken in connection with art. 5, sec. 10, of the constitution, gives jurisdiction only to the supreme court in actions involving claims against the state.

4. An action against the board of trustees of the Albion State Normal School to recover a money judgment is in fact an action against the state, as the board of trustees are the mere agents of the state in the administration of the affairs of such school.

5. The state board of examiners is given power, under sec. 18, art 4 of the constitution, to examine all claims against the state except salaries or compensation of officers fixed by law; and such power cannot be exercised by a district court in entering judgment against the state, and thereby bind or control the action of the state board of examiners.

6. A judgment rendered in the district court against the board of trustees of the Albion State Normal School is in fact a judgment against the state, and is not sufficient as a claim to be filed against the state with the state board of examiners.

7. An action in this court against the state, based upon a judgment rendered in a district court of the state, fails to state a cause of action, and a demurrer thereto will be sustained.

(Syllabus by the court.)

An original proceeding in this court for a recommendatory judgment. Action dismissed.

Motion and demurrer sustained and action dismissed.

K. I Perky, for Plaintiffs, files no brief.

D. C McDougall, Attorney General, J. H. Peterson, and Morrison & Pence, for Defendant.

There is no question but what the judgment of the district court against the trustees of the Albion State Normal school, though invalid, was a judgment against the state of Idaho. ( Board of Public Works v. Gannt, 76 Va. 455; Alabama Girls' Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114.) The state cannot be sued in the courts of the state without her consent; as this cannot be done directly, so it cannot be done indirectly by suing, for example, an agent of the state as nominal defendant in an action really involving the interests of the state. ( Printup v. Cherokee R. R. Co., 35 Ga. 365; Tate v. Salmon, 79 Ky. 540; Treasurer v. Wygall, 46 Tex. 447.)

"Where jurisdiction over a particular subject matter is conferred in express terms by the constitution of a state upon one court and not upon another, it will be presumed that it was the intention that the jurisdiction thus conferred should be exclusive." (11 Cyc. 982; Armstrong v. Mayer, 16 Neb. 423, 83 N.W. 401; Messner v. Giddings, 65 Tex. 301.) Sec. 10, art. 5 of the constitution, is the only authority in the constitution authorizing an action against the state. (Hollister v. State, 9 Idaho 13, 71 P. 541.)

"Where the state prescribes the mode by which it can be sued, this mode must be strictly followed, even as to apparent nonessentials." (Whaley v. Gaillard, 21 S.C. 560; Dunnington v. Ford, 80 Va. 177.) "The state can be sued in its own courts only in the manner indicated by its consent." (Hosner v. De Young, 1 Tex. 764; Commonwealth v. Dunlop, 89 Va. 431, 16 S.E. 273.)

"There is no power in any of the state courts to entertain a suit brought against the state itself except authorized by the statute." (Kiersted v. People, 1 Abb. Pr. 385; People v. Doe, 36 Cal. 220; People v. Miles, 56 Cal. 401; People v. Lee Chuck, 74 Cal. 32, 15 P. 322; Melvin v. State, 121 Cal. 22, 53 P. 416.) "An act authorizing suits against the state being in derogation of its sovereignty must be construed strictly." (Rose v. Governor, 24 Tex. 496; Chicago v. State, 53 Wis. 509, 10 N.W. 560; Ex parte Green, 29 Ala. 52.)

STEWART, J. Sullivan, C. J., concurs. Ailshie, J., dissents.

OPINION

STEWART, J.

J. H. Thomas and D. M. Faris, partners under the firm name and style of Thomas and Faris, made a contract with the board of trustees of the Albion State Normal School for the construction of a dormitory. Upon the completion of said contract a difference arose between the plaintiffs and the board of trustees as to the amount due, and the board of trustees declined to pay the amount claimed by plaintiffs. Upon the board of trustees declining to pay the amount claimed by plaintiffs, plaintiffs commenced an action in the district court of the third judicial district for the amount claimed to be due and the board of trustees made no appearance in said case and a judgment by default was entered. After said judgment was entered, plaintiffs filed the same as a claim with the state auditor for presentation to and allowance by the state board of examiners and the state board of examiners disallowed the same; whereupon, plaintiffs brought this action in this court upon said judgment, for the purpose of securing a recommendatory judgment. In this court the state demurred to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action, and also moved to strike out of the complaint all that part consisting of the certified copy of the judgment rendered in the district court. Upon this record two questions are presented for decision:

First: Did the district court of Ada county have jurisdiction to try said case and enter a money judgment against the board of trustees? Second: Was the judgment entered in the district court sufficient as a claim to be presented to the state board of examiners?

As to the first question, it is a well-recognized principle of state sovereignty that a state cannot be sued without its express consent, and this consent must be found either in the constitution of the state or legislative enactment. ( Hollister v. State, 9 Idaho 8, 71 P. 541; 26 Am. & Eng. Ency. of Law, 486, and the authorities there cited; Board of Public Works v. Gannt, 76 Va. 455.) The rule also seems to be that the provision, by which it is claimed such consent is given, is to be strictly construed, and must be clear and unambiguous. (26 Am. & Eng. Ency. of Law, 487.)

If, then, the suit in the district court was an action against the state, in order to uphold the judgment rendered in that court, it is necessary to find express consent that the state might be sued in the manner therein attempted, either in the constitution of the state or legislative enactment. The act creating the Albion State Normal School, among other things, provides (Rev. Codes, sec. 517):

"The Albion State Normal School shall be under the direction of a nonpartisan board of trustees, consisting of six members--exclusive of the state superintendent of public instruction, who is ex officio a member of said board--no more than four of whom shall be of the same political party. Said board shall be known as the 'Board of Trustees of the Albion State Normal School.'"

Sec. 519 provides: "Said board of trustees may sue and be sued."

Sec. 520 provides: "The said board of trustees are hereby authorized, and it is made their duty, to take and at all times to have general supervision and control of all buildings and property appertaining to said normal school, and to have general charge and control of the construction of all buildings to be built. They shall have power to let contracts for building and completion of any such buildings, and the entire supervision of their construction."

From these statutory provisions the plaintiffs in this case claim that the district court of Ada county had jurisdiction to hear and determine any claim against the board of trustees arising out of a contract entered into with them; and that the judgment therein entered binds the state, and is sufficient as a claim to be presented to the state board of examiners for their allowance, and is a sufficient cause of action upon which suit may be maintained in this court for a recommendatory judgment, and that this court is concluded by such judgment.

On the other hand the defendant contends that while the state has given consent that suit may be brought against the board of trustees, yet consent is only given that the case may be brought in the supreme court of the state, when the action is a claim against the state.

It will thus be seen that in the act creating the Albion State Normal School it is provided that the board of trustees "may sue and be sued." This, it seems to us, is sufficient as an express consent by the legislature of the state that the board of trustees, acting for and in behalf of the state, may sue and be sued. This statutory provision, however, must be taken in connection with the provisions of the constitution, art. 5, sec. 10, as follows:

"The supreme court shall have original jurisdiction to hear claims against the state, but its decision shall be merely recommendatory; no process in the nature of execution shall issue thereon; they shall be reported to the next session of the legislature for its action."

Taking this provision of the constitution in connection with the statute creating the Albion State Normal School, it seems clear that while the legislature has...