Fairclough v. Salt Lake County

354 P.2d 105, 10 Utah 2d 417, 1960 Utah LEXIS 199

• Court: Utah Supreme Court
• Decided: July 14, 1960
• Docket: 9140
• Status: Published

Opinions

HENRIOD, Justice.

Appeal from denial of a motion to dismiss filed by Salt Lake County and the Utah Road Commission. Sovereign immunity was claimed as a defense. Reversed.

In November, 1956, defendants completed a highway project where the grade allegedly was reduced about 16 feet below plaintiffs' abutting land. Presumably it was a reasonable and necessary exercise of the police power to benefit the community as a whole.

In June, 1959, two and one-half years later, plaintiffs sued defendants 1) : to get damages for depreciation in preventing access, or, alternatively, 2) : for a writ of mandamus forcing members of the agencies mentioned to start eminent domain proceedings to assess and adjudge damages in their favor.

As to 2), in a case where the same contention was urged, we held it without merit.¹

As to 1), consistently and historically we have ruled that the State² may not be sued without its consent;³ taken the view that Art. I, Sec. 22 of our Constitution ⁴ is not self-executing, nor does it give consent to be sued, implied or otherwise; and that to secure such consent is a legislative matter, a principle recognized by the legislature itself.⁵ Other states and federal courts have agreed.⁶

In Lynch v. United States, supra, 292 U.S. at pages 580-582, 54 S.Ct. at page 844, Mr. Justice Brandéis, simply and eloquently announced the principle extant here when he said that

“Contracts between individuals or corporations are impaired within the meaning of the Constitution * * * whenever the right to enforce them by legal process is taken away or materially lessened. A different rule prevails in respect to contracts of sovereigns. * * * The rule that the United States may not be sued without its consent is all-embracing * * *.

* * * * * *

“* * * For consent to sue the United States is a privilege accorded, not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration. * * * The sovereign’s immunity from suit exists zvhatever the character of the proceeding or the source of the right sought to be enforced. It applies alike to causes of action arising under acts of Congress, * * * and to those arising from some violation of rights conferred upon the citizen by the Constitution, * * *. For immunity from siát is an attribute of sovereignty which may not be bartered away.”7 (Emphasis ours)

The Fifth Amendment to the United States Constitution is like Art. I, Sec. 22 of our Constitution, save for the word “damage.” By no stretch of the imagination could this alter the principle involved.

Many times we have announced the principle.

In Wilkinson v. State, 1913, 42 Utah at page 492, 134 P. at page 630, where Utah was sued for damages caused by flooding of land by State agents, Art. I, Sec. 22 then operative, Mr. Chief Justice Frick said:

“We have neither a statute nor a constitutional provision authorizing a suit against the state. * * * and in the absence of either express constitutional or statutory authority an action against a sovereign state cannot be maintained * * *.”

State by State Road Commission v. Fourth District Court, 1937, supra, 94 Utah at page 389, 78 P.2d at page 504, although conceding that Art. I, Sec. 22 guaranteed that property was not to be taken or damaged for public use without just compensation, nonetheless recognized the rule that statewise:

“The State cannot be sued unless it has given its consent or has waived it immunity * *

Repeating, Campbell Bldg. Co. v. State Road Comm., 1937, supra, 95 Utah at pages 249, 252, 70 P.2d at page 861, said:

“This action may not be maintained unless the state has, through legislative or constitutional action, given consent to be sued. * * * and * * * when there is statutory consent to sue, the statute is the measure of the power to sue.”

In State v. Tedesco, 1955, supra, 4 Utah 2d at page 38, 286 P.2d at page 789, we continued that:

“* * * the defendant could not sue the sovereign for the damages claimed here, and the State’s defense of sovereign immunity is well taken * * *»

In Bingham v. Board of Education, 1950, 118 Utah 582, 223 P.2d 432, where a child was injured on a schoolground, we held the school board not responsible because of sovereign immunity, as we did very recently in Jopes v. Salt Lake County, where, acting in a governmental capacity, we held the County not answerable for injuries suffered by a stumbling golfer for the same reason.

In a similar case, Hjorth v. Whittenburg, 1952, 121 Utah 324, 330, 241 P.2d 907, 909, where the grade was raised four feet, the doctrine of sovereign immunity espoused by us clearly was enunciated, and contentions urged here equally were answered there in a pronouncement by Mr. Justice Crockett:

“The argument of plaintiffs’ counsel against the injustice to his clients of sovereign immunity is eloquent and persuasive. The remedy is not to be found in imposing an unreasonable and arbitrary burden upon these public officials. This phase of our law is well established and of long standing. If it is to be changed, that must come through the sovereign power of this commonwealth, the people, speaking through the legislature.”

He also pointed out that one may not be entirely without redress since he could seek legislative relief under the statutes, given a proper case.

It is not what one might like to do in «as-es where damage results from a warranted exercise of the police power, but to whát extent we are bound under existing law.

Reversed with instructions to grant the motion to dismiss. No costs awarded.

CROCKETT, C. J., and CALLISTER, J., concur. McDONOUGH, j., concurs in the result.

1 . Springville Banking Co. v. Burton, 1960, 10 Utah 2d 100, 349 P.2d 157.

2 . Plaintiffs’ brief concedes that action against Salt Lake County or the Road Commission is one against the State.

3 . Wilkinson v. State, 1913, 42 Utah 483, 134 P. 626; State by State Road Commission v. Fourth District Court, 1937, 94 Utah 384, 78 P.2d 502; Campbell Bldg. Co. v. State Road Comm., 1937, 95 Utah 242, 70 P.2d 857; Bingham v. Board of Education, 118 Utah 582, 223 P.2d 432; Hjorth v. Whittenburg, 1952, 121 Utah 324, 241 P.2d 907; State v. Tedesco, 1955, 4 Utah 2d 31, 286 P.2d ; Jopes v. Salt Lake County, 1959, 9 Utah 2d 297, 343 P2d 728; Springville Banking Co. v. Burton, supra.

4 . “Private property shall not be taken or damaged for public use without just compensation.”

5 . Hjorth v. Whittenburg, supra. It is to be noted that the legislature has permitted suits ex contractu against the Road Commission (Title 27-2-1, Utah Code Annotated 1953), and against the Liquor Commission generally, with the consent of the Governor (Title 32-1-28, Utah Code Annotated 1953), and against the State itself in certain cases involving realty where consent specifically is given to sue (Title 78-11-9, Utah Code Annotated, 1953: “Upon the conditions herein prescribed the consent of the state of Utah is given to be named a party in any suit * * * for the recovery of any property real or personal * * *”); The U. S. Congress has recognized the principle by enacting legislation giving consent to be sued, — which legislation need not be noted here.

6 . Dougherty v. Vidal, 1933, 37 N.M. 256, 21 P.2d 90; Arkansas State Highway Comm. v. Partain, 1936, 192 Ark. 127, 90 S.W.2d 968; Westmoreland Chemical & Color Co. v. Public Service Comm., 294 Pa. 451, 144 A. 407; Chumbley v. State, 1946, 183 Tenn. 467, 192 S.W.2d 1007; Lynch v. United States, 1934, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434; Cook v. United States, 6 Cir., 1940, 115 E.2d 463; United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Vol. 63A Fed.Dig., Actions, &wkey;125.

7 . In Dougherty v. Vidal, supra [37 N.M. 256, 21 P.2d 92]: “A sovereign is exempt from suit * * * on the * * * ground that there can be no legal right as against the authority that makes the law on which the right depends.” Mr. Justice Holmes in Kawananakoa v. Polyblank, 205 U.S. 349, 27 S.Ct. 526, 51 L.Ed. 834; in Arkansas State Highway Comm. v. Partain, supra [192 Ark. 127, 90 S.W.2d 970]: “The property owner lias no cause of action * * * against the state * * *. If he permits an agency of the state * * * to appropriate his property, he is limited to such relief as the state may provide. Bor the loss of his property, or for damage to it, which he sustains, this act gives him an unliquidated demand against the state, to be satisfied at the pleasure of the state.”