Summary
In Ellis v. Wyoming Game and Fish Commission, 74 Wyo. 226, 286 P.2d 597, we held that an action against an agency of the state engaged in a governmental function does not lie without the consent of the state.
Summary of this case from Jivelekas v. City of WorlandOpinion
No. 2648
August 2, 1955
Appeal from the District Court of Fremont County, the Honorable Franklin B. Sheldon, Judge.
Heard before Riner, Chief Justice; Blume, Justice; and Parker, District Judge.
For the plaintiff and appellant, the cause was submitted upon the brief of John J. Spriggs, Sr., and John J. Spriggs, Jr., both of Lander, Wyoming, and oral argument by John J. Spriggs, Sr.
For the defendants and respondents, the cause was submitted upon the brief of Howard B. Black, Attorney General, Paul T. Liamos, Jr., Deputy Attorney General, James L. Hettinger and Robert A. McKay, Assistant Attorneys General, all of Cheyenne, Wyoming, and W.A. Smith, County and Prosecuting Attorney, Fremont County, Wyoming, of Lander, Wyoming, and oral argument by Mr. Black.
POINTS OF COUNSEL FOR APPELLANT.Immunity of the state from suit does not afford relief against an unconstitutional statute or against a duty imposed on a state officer by statute, nor does it afford a state officer relief for trespassing on the rights of an individual even if he assumes to act under legal authority. It will not relieve the state against an illegal act for depriving a citizen of his property; neither will it be permitted to defeat the recovery of land or other property wrongfully taken by the state through its officers and held in the name of the state. It will not be permitted as a city of refuge for a state agency which appropriates private property before the value has been fixed and paid. Sec. 22, Art. 3 of the Constitution authorizes provisions by general law for bringing suits against the state for all liabilities now or hereafter existing but it has no application to the case at bar; and if it did, it should be read in connection with Section 4 of the Bill of Rights providing that all courts be open in order that every person may seek redress for injury done in his lands, goods, person or reputation. If a state agency can deliberately trespass on and destroy the property of the citizen in the manner chosen to have been done here, and then be relieved from making restitution on the plea of nonliability of the state from suit, then the constitutional guaranty of the right to own and dispose of property becomes nothing more than the tinkling of empty words. Such a holding would raise administrative boards above the law and clothe them with an air of megalomania that would eternally jeopardize the property right of the citizen. U.S. v. Lee (Kaufman v. Lee) 106 U.S. 196, 27 L Ed. 171; Hopkins v. Agricultural College, 221 U.S. 636, 55 L Ed. 890, 35 L.R.A., N.S. 248; Drainage District v. Richardson, 237 Mo. 49, 139 S.W. 576.
POINTS OF COUNSEL FOR RESPONDENTS.No suit can be maintained against the state until the legislature has made provision therefor. Hjorth Royalty Company v. Trustees of University, 30 Wyo. 309, 313, 222 P. 9. It is generally held, and almost without dissent, that a suit against an agency of the state engaged in a governmental function does not lie without the state's consent. Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 32, 177 P.2d 397; State Highway Commission v. Utah Construction Company, 278 U.S. 194, 49 St. Ct. 104, 73 L.Ed. 262; Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309; Utah Construction Company v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951.
OPINION
Appellant, plaintiff below, brought action against the Governor, State Game Commissioner, State Game Warden, two wardens, the Wyoming Game and Fish Commission and the members thereof in their official capacity and also as individuals. The petition alleged, inter alia, that plaintiff owned certain lands in Fremont County, that she trapped and destroyed ten beaver which had been damaging her property and stored the pelts in a storeroom in Lander, Wyoming, and that defendants, without right, seized the pelts. Plaintiff prayed for $10,000 actual damages, and $5,000 punitive damages from each of the defendants.
This appeal presents one question to the court: May a state agency or commission be sued without first securing the consent of the state?
It may be noted at the inception that any right to injunctive relief is eliminated from consideration in this court, such relief being granted by the lower court.
After some preliminaries in the district court, a special demurrer was filed by the Wyoming Game and Fish Commission on the ground that the agency and the members in their official capacity were immune from the suit and that the court was without jurisdiction. This demurrer was sustained and the matter has been appealed to this court. The situation as to the individual liability of defendants was not resolved, and the lower court specifically overruled the defendants' demurrer as it related to injunctive relief. Appellant has urged various points of constitutional and statutory interpretation.
The basic question herein raised is: Does a suit against an agency of the state, engaged in a governmental function, lie, without the consent of the state?
This court in the past has had occasion to comment on the subject in several cases. In Hjorth Royalty Co. v. Trustees of University, 30 Wyo. 309, 313, 222 P. 9, the court says:
"* * * no suit can be maintained against the state until the Legislature has made provision therefor * * *"
In Utah Const. Co. v. State Highway Commission, 45 Wyo. 403, 417, 19 P.2d 951, 952, the court says:
"The state constitution (article 1, § 8) provides that 'suits may be brought against the state in such manner and in such courts as the legislature may by law direct.'"
In Price v. State Highway Commission, 62 Wyo. 385, 396, 167 P.2d 309, 312, the court says:
"Generally speaking and without undertaking in the least an all inclusive definition, a tort has a meaning somewhat similar to wrong and is an unlawful act injurious to another independent of contract. * * *
It is quite clear from the constitutional and statutory provisions quoted above that this state has never given its consent that it or the Commission might be sued for a tort."
In the case of Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 32, 177 P.2d 397, 402, the court says: "* * * it is generally held, and almost without dissent, that a suit against an agency of the state engaged in a governmental function does not lie without the state's consent."
In view of the positive, unequivocal past holding of this court, little will be accomplished by here pursuing a further study of these cases. The rule is clear and unmistakable. If the legislature desires law to the contrary, it will so state.
Appellant has relied in oral argument upon the case of State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868. A study of the case shows it to be a suit against the State Road Department of Florida to restrain continuing of a trespass by water raised by the building of a bridge and fill. Since there was no element of damages in the Tharp case, we think the holding is not in point here. Certain views therein expressed do, however, as dicta, present an interesting philosophy which probably forms some of the basis for the rule which exists quite generally and especially in this State.
"The doctrine of the nonusability of the State rests on public policy and should be liberally construed to effectuate the purpose for which it was designed. If the State could be sued at the instance of every citizen, the public service would be disrupted and the administration of government would be bottlenecked." (State Road Department of Florida v. Tharp, 146 Fla. 745, 747, 748, 1 So.2d 868, 869.)
The judgment is affirmed.
Affirmed.
RINER, C.J., and BLUME, J., concur.
ON PETITION FOR REHEARING
An application for rehearing was filed in this case and was denied without Opinion on November 8, 1955.