VIGIL v. PENITENTIARY OF N.M.

• Decision Date: 19 July 1948
• Docket Number: No. 5105,5105
• Citation: 195 P.2d 1014,52 N.M. 224
• Parties: VIGIL et al. v. PENITENTIARY OF NEW MEXICO.
• Court: New Mexico Supreme Court

52 N.M. 224

195 P.2d 1014

VIGIL et al.

v.PENITENTIARY OF NEW MEXICO.

No. 5105.

Supreme Court of New Mexico.

July 19, 1948.

[195 P.2d 1014, 52 N.M. 224]

Bigbee & Kool and F. A. Catron, all of Santa Fe, for appellants.

C. C. McCulloh, Atty. Gen., William R. Federici and Robert V. Wollard, Asst. Attys. Gen., and Seth & Montgomery, of Santa Fe, for appellee.

McGHEE, Justice.

The first question raised by the appeal in this case is whether an individual may maintain an action in tort against The Penitentiary of New Mexico, a corporation, for damages.

Section 1, Article 14 of the New Mexico Constitution provides:

'The Penitentiary at Santa Fe, the Miners' Hospital of New Mexico at Raton, the New Mexico Insane Asylum at Las Vegas, and the New Mexico Reform School at Springer, are hereby confirmed as state institutions.'

Chapter 55, Laws of 1939 (Sec. 45-101, N.M.Stats.1941 Ann.), makes the Penitentiary of New Mexico a corporate body with the right to sue and be sued, and reads:

'The general government and management of the penitentiary shall be vested in five [5] commissioners, who shall be appointed by the governor as in the constitution provided, and the governor shall have power at any time to remove any of said commissioners and appoint their successors. Said commissioners, and their successors in office, shall constitute a body corporate under the name and style of 'The Penitentiary of New Mexico,' and said corporation shall have the right as such to sue and be sued, to contract and be contracted with, to buy, own hold, manage, lease, sell and otherwise handle and dispose of all such real, personal and mixed property as in the judgment of the commissioners may be necessary and proper for the operation and management of the penitentiary, including the right to acquire, maintain and operate any necessary farm, or farms, at such places in this state as the commissioners shall designate.'

The trial court held that the action was one against the state and that it was immune from liability in an action of tort, absent specific consent for such action.

By the overwhelming weight of authority from other states such an action against a corporation like the defendant in this case is held to be an action against the state which cannot be maintained under the general power given such corporations to sue and be sued, absent specific legislative permission. Indeed, the cases hold that a cause of action for tort does not exist against the state or such a corporation as this defendant, in the absence of a specific statute authorizing it. 49 A.J. p. 288, Sec. 76; 59 C.J. p. 194, Sec. 337; Riddoch v. State, 68 Wash. 329, 123 P. 450, 42 L.R.A.,N.S., 251, Ann.Cas.1913E, 1033; Clodfelter v. State, 86 N.C. 51, 41 Am.Rep. 440.

The appellants frankly concede these rules in other jurisdictions, but assert thatunder the holdings of this court in Locke v. Trustees of New Mexico Reform School, 23 N.M. 487, 169 P. 304; State v. Locke, 29 N.M. 148, 219 P. 790, 30 A.L.R. 407, and Dougherty v. Vidal et al., 37 N.M. 256, 21 P.2d 90, 93, to the effect that an action instituted against a corporation created to handle the state's institutions is not one against the state, allows them to maintain this action.

The first Locke case was an action in ejectment for the possession of real estate, which it was claimed the corporation withheld. As we now read that case the plaintiff was allowed to maintain it for the reason that it was the corporation that was in possession of the real estate, not the individual trustees. The opinion quotes numerous authorities to the effect that an action in ejectment may be maintained against an officer of the United States in possession of premises, and that such an action is not deemed one against the government in the constitutional sense.

Based on such statement it was held in the later case of State v. Locke, supra, which was a quiet title action by the state, that the judgment in the ejectment suit was not res judicata. Dougherty v. Vidal was an action against State Highway Commission and its individual members for damages claimed to have resulted from failure to carry out a promise to build a road on the old grade, in consideration of which Dougherty had donated a right of way. It was held that the commission had not been made a corporation, and that the legislature had not authorized actions against it. In the course of the opinion, although not necessary to a decision in the case, the statement in the Locke case that an action against such a public corporation is not an action against the state was repeated. It is well, however, to note that neither of these cases was a tort action. We quote from another part of the Dougherty case:

'Moreover, a question of jurisdiction arises. This court is the creature of the sovereign state. It can have no natural or presumptive jurisdiction over its creator. Such jurisdiction as we have over the state we must trace to the Constitution or to that branch of government which declares the state's public policy. In the absence of plain consent, to entertain a suit against the state is judicial usurpation.

'Furthermore, 'It is usually said that statutes authorizing suits against the state are to be strictly construed, since they are in derogation of the state's sovereignty.' 59 C.J. 303, 25 R.C.L. 416, Lewis' Sutherland, St.Const., 2d Ed., § 558.'

Notwithstanding the language just quoted and the result reached in the Dougherty case, we find further evidence of the liberal policy of this court in allowing actions against the state by reference to the case of Board of Commissioners of Guadalupe County v. State et al., 43 N.M. 409, 94 P.2d 515, where not a voice was raised questioning the right of the commissioners to maintain an action against the State and the State Treasurer for a declaratory judgment on the validity of a bond issue, although we had previously held in State ex rel. Evans v. Field, 27 N.M. 384, 201 P. 1059, and in State ex rel. Otto v. Field, 31 N.M. 120, 241 P. 1027, that an actionagainst a state officer, except to compel the performance by him of a ministerial duty, is an action against the state. Apparently the fact that the suit was against the state went unnoticed in this court. See also State ex rel. Del Curto v. District Court Fourth Judicial Dist., 51 N.M. 297, 183 P.2d 607. It was evidently considered by counsel in the Guadalupe county case, supra, that the provision of the Declaratory Judgment Act, Sec. 25-603 of the 1941 Compilation, reading:

'For the purpose of this act, the state of New Mexico, or any official thereof, may be sued and declaratory judgment entered when the rights, status or other legal relations of the parties call for a construction of the constitution of the state of New Mexico, or any statute thereof.'

was a grant of permission to sue the state.

Notwithstanding the language just quoted, this court in State v. Arnold, 48 N.M. 596, 154 P.2d 257, which involved the constitutionality of our descent and distribution statutes, held it not to be a general consent to sue the state, and that express consent of the legislature must be obtainedbefore the state could be sued under the act. This decision evidenced a marked reversal of our former liberal policy in allowing actions to be maintained against the state, as in Locke v. Trustees of New Mexico Reform School and in some of the language in Dougherty v. Vidal, both supra; and placed us in line with the great majority of the courts in other states in holding that statutes authorizing suits against the state are to be strictly construed.

Is this suit against a governmental agency in fact a suit against the state, and, if so,...