Watson v. Dodge

• Decision Date: 23 October 1933
• Docket Number: No. 4-3175.,4-3175.
• Citation: 63 S.W.2d 993
• Parties: WATSON, State Revenue Commissioner, v. DODGE, Chancellor.
• Court: Arkansas Supreme Court

63 S.W.2d 993

WATSON, State Revenue Commissioner, v. DODGE, Chancellor.

No. 4-3175.

Supreme Court of Arkansas.

October 23, 1933.

Original proceeding instituted by the Attorney General of the State in behalf of Fred Watson, State Revenue Commissioner, for a writ of prohibition against Frank H. Dodge, Chancellor of Pulaski County, and another.

Peremptory writ of prohibition granted in accordance with opinion.

This is an original proceeding instituted by the Attorney General of the state in behalf of Fred Watson, state revenue commissioner, seeking a writ of prohibition against the chancellor of Pulaski county and W. E. Lenon, theretofore appointed receiver, in a certain cause therein pending and arises under the following circumstances:

On June 6, 1933, Bennie S. Mayo and Bernice J. Mercer filed their complaint in the Pulaski chancery court against petitioner herein as revenue commissioner of the state of Arkansas, and the Arkansas state highway commission, alleging in effect: "That on or about the first day of May, 1928, the White River Bridge Corporation issued bonds in the aggregate of $500,000, drawing interest at the rate of 6% per annum payable semi-annually on the first day of November and May, respectively; that to secure the due payment of said bonds, a deed of trust was authorized, executed and delivered by said White River Bridge Corporation covering its property, located in Prairie County, Arkansas, and minutely described certain real estate, a bridge across White river and the right-of-way and easements approaching said bridge. Said mortgage also conveyed, in trust, a certain franchise dated December 19, 1921, which granted to Harry E. Bovey, his successors and assigns, the right and privilege of constructing, maintaining and operating a toll bridge upon said property."

Plaintiffs alleged that they were holders and owners of some of said bonds secured by said deed of trust and bring this suit by reason thereof. It was further alleged that in the year 1930 the state highway commission, by authority of law vested in it, filed in the Prairie circuit court a complaint against the White River Bridge Corporation and the New York Trust Company, trustees, seeking condemnation of the toll bridge, the right of way, easements, and approaches thereto, to the end that the same might constitute a part of the state highway system; that on or about the 18th day of September, 1930, a judgment was entered in said court by which the titles of said bridge and property passed to the state highway commission, subject only to the payment of the outstanding bonds and coupons as evidenced by the deed of trust; that said highway commission assumed the payment of $17,500 on May 1st and November 1st, each year respectively, and in addition thereto assumed to pay on the 1st day of March of each year 50 per cent. of the net

tolls collected from the operation of said bridge, providing the total yearly sum to be paid should not exceed $52,500. It was further alleged that the sum of $17,500, which was due on March 1, 1933, is in default, and that other payments provided for in said deed of trust are past due and unpaid; that tolls accruing in the operation of said bridge are being collected by Fred Watson, state revenue commissioner, and are being paid over by him to the state treasurer to the fund known as the toll bridge fund; that no appropriation has been made by the Legislature for the payment of the obligations assumed under the terms of said deed of trust; that Act No. 2 of the Acts of 1928 (Ex. Sess.) gives to the Pulaski county chancery court jurisdiction of this cause of action. The prayer was that a receiver be appointed by the Pulaski chancery court under directions to take charge of the bridge, right of way, and easements, and to collect the tolls accruing from the operation thereof. The judgment of the Prairie county circuit court, in the condemnation proceeding referred to, recites:

"It is accordingly by the court considered, ordered, and adjudged that the defendant, the White River Bridge Corporation, do have and recover of and from the plaintiff, the State of Arkansas, the sum of One Dollar damages, which, together with the assumption by the State of the above mentioned and described bonded indebtedness, shall be in full payment and compensation for the taking of the above described bridge, franchises, right of way and other properties as set forth above and owned by the defendant, the White River Bridge Corporation, and that the said Bridge, franchise, right-of-way and other properties be and the same are hereby condemned for public use and the title thereto divested out of said defendant, the White River Bridge Corporation, and invested in the State of Arkansas."

On behalf of the state revenue commissioner, the Attorney General appeared and filed a demurrer to the complaint calling in question the jurisdiction of the Pulaski chancery court. The demurrer was overruled, and the chancellor thereupon entered its decree appointing W. E. Lenon as receiver for said bridge, right of way, and easements, with directions to collect the tolls accruing from the traffic crossing said bridge and remit the same to the New York Trust Company of New York City monthly.

Thereupon this suit was instituted.

Hal L. Norwood, Atty. Gen., Roy D. Campbell, of Forrest City, and Walter L. Pope, of Pocahontas, for petitioner.

Lee Miles, of Little Rock, for respondent.

JOHNSON, Chief Justice (after stating the facts).

On the threshold of this controversy, we are met with the contention that the suit pending in the Pulaski county chancery court is one, in effect, against the state, and cannot be maintained.

On behalf of respondent, it is insisted, first, that the suit is not one against the state, and, secondly, that, if so, it may be maintained, the state having expressly consented thereto by legislative enactment.

Adverting to the first contention, is this a suit against the state? In Pitcock v. State, 91 Ark. 527, 121 S. W. 742, 134 Am. St. Rep. 88, this court held that a suit against the penitentiary board to restrain a breach of contract was in effect a suit against the state and could not be maintained.

Again, in the case of Jobe v. Urquhart, 98 Ark. 525, 136 S. W. 663, this court held that a suit against the penitentiary board to reform a contract made in behalf of the state was in effect a suit against the state, and could not be maintained.

Again, in the case of Allen Engineering Company v. Kays, 106 Ark. 174, 152 S. W. 992, this court held that a replevin suit against the board of trustees of a state school could not be maintained, because in effect it was a suit against the state.

From the authority cited, it is perfectly evident that any suit, whether in law or equity, which has the purpose and effect, directly or indirectly, of coercing the state, is one against the state. Our holding in this regard is in full accord with the views of the Supreme Court of the United States. In Hagood v. Southern, 117 U. S. 52, 6 S. Ct. 608, 615, 29 L. Ed. 805, that court held: "Though not nominally a party to the record, it [the state] is the real and only party in interest, the nominal defendants being the officers and agents of the state, having no personal interest in the subject-matter of the suit, and defending only as representing the state. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the state. The state is not only the real party to the controversy, but the real party against which relief is sought by the suit."

The rule announced in the Hagood Case, just cited, was approved by the Supreme Court of the United States in the later case of Murray v. Wilson Distilling Company, 213 U. S. 151, 29 S. Ct. 458, 53 L. Ed. 742.

Based upon reason and authority, we have no hesitancy in holding that the suit pending in the Pulaski chancery court against Fred Watson, revenue commissioner, is one in effect against the state as certainly and effectively as if the state were named and designated as the defendant.

This brings us to the question, Can the state be sued in her own courts? Section 20 of article 5 of the Constitution of 1874, provides: "The State of Arkansas shall never be made defendant in any of her courts."

This provision of the Constitution was before this court in the Pitcock, Jobe, and Allen Engineering Co. Cases, cited supra, and in each of these cases it was specifically held that the state could not be sued in her courts.

In addition to the authorities just cited, this court held in Caldwell v. Donaghey, 108 Ark. 60, 156 S. W. 839, 45 L. R. A. (N. S.) 721, Ann. Cas. 1915B, 133, that the state could not be sued in her courts for specific performance of a contract made in her behalf.

In the more recent case of Linwood & Auburn Levee District v. State, 121 Ark. 489, 181 S. W. 892, this court held that the state could not be made a party defendant in her courts in a condemnation proceeding to condemn lands belonging to the state.

Without going into further details, it may be said that up to the case of Grable v. Blackwood, 180 Ark, 311, 22 S.W.(2d) 41, there had been a uniform holding of this court that the state could not be made a party defendant in her courts, and therefore could not be sued in the state courts. It would be presumptuous for us to elucidate upon the wisdom of this rule. It suffices to say that the Eleventh Amendment to the Constitution of the United States was promulgated in furtherance of this wholesome protection. The effect is that the state courts will not entertain jurisdiction of such suits because of state constitutional prohibition, and the federal courts will not entertain such jurisdiction, because of the prohibition found in...