360 S.W.2d 30 | Tenn. | 1962
delivered the opinion of the Court.
The suit was originally instituted against the City of Nashville, but it was discovered that the City had conveyed any interest that it had in it to the State by a quitclaim deed, and there seems to be no argument or discussion of the fact that the City in acquiring the land in the first instance was merely the acquisition agent on behalf of the State. The City on a proper plea is out of the lawsuit, and the present appellant, Commissioner of Highways, was properly made a defendant to the suit.
The Commissioner filed his motion to dismiss, alleging that this was in effect a suit against the State and was filed against him in an effort to reach property belonging
“No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state, or against any officer of the state acting by authority of the state, with the view to reach the state, its treasury, funds, or property, and all such suits shall be dismissed as to the state or such officers, on motion, plea, or demurrer of the law officer of the state, or counsel employed for the state.”
When this motion of the Commissioner came on to be heard it was overruled by the Chancellor. To his action in overruling the motion the Commissioner excepted and prayed a discretionary appeal. This appeal was granted by the Chancellor, the Chancellor treating the motion as a demurrer under the provisions of sec. 20-1702, T.C.A.
We now are met with a motion on behalf of the appellee to dismiss this appeal because it is premature and does not settle any rights of the parties; that this being true the Chancellor had no discretion or authority to grant the appeal from his ruling disallowing this motion.
Insofar as here applicable the statute, see. 27-305, T.C.A., allowing discretionary appeals provides, as follows:
“The Chancellor * * * may, in his discretion, allow an appeal from his decree in equity causes determin*495 ing tbe principles involved * * * ■ or lie may allow such. appeal on overruling a demurrer; * *
This statute has been before this Court and the Court of Appeals numerous times as will be noted by various decisions cited following this Code Section. Suffice it to say, these decisions clearly support the proposition that the Chancellor may upon sustaining or overruling a demurrer, which determines certain rights of the parties involved in the litigation, grant a discretionary appeal. It is obvious to us that when the Chancellor considered this motion as a demurrer (he had this right, Morgan v. Layne, 165 Tenn. 513, 518, 56 S.W.2d 161, 162). This motion, or demurrer as it was treated, raises the direct question of whether or not it is necessary for the State to defend an action of the kind here (an action to quiet title or to remove a cloud from the title), and if the States does not have to defend the demurrer settles the question entirely; while if it does have to defend this right of the State, it will be settled by the action on this demurrer. Consequently, we think that the Chancellor was well within his rights and that he exercised his discretion in allowing this appeal fairly and on reason and not as an arbitrary or capricious act. Having thus acted, as we see it under this record, the motion to dismiss because the discretionary appeal was improvidently granted will be overruled.
We now come to the merits of the controversy as set forth hereinbefore when we stated the question the demurrer raises, that is, whether or not the State may be sued in an action to quiet title or to remove a cloud from a title claimed by the original complainant, now appellee.
Chumbley v. State, 183 Tenn. 467, 192 S.W.2d 1007, was a suit in which Chumbley sought possession of a tract of land which was at the time of the institution of the suit in possession of the State, and in which he asserted a superior title. This Court held that such an action “being a suit against the State of Tennessee, it is barred by Article I, section 17 of the Constitution, since it is not brought in such manner as the Legislature has directed.”
There is no claim in the present suit that there has been any legislative enactment which would permit the State to be sued in an action of the kind now before us.
“When land sold for nonpayment of taxes has been bought in by the state, the owner cannot bring a bill to remove the cloud upon his title against the comptroller of the state, because such a proceeding is in effect a suit against the state itself.”
As authority for that statement the author cites Sanders v. Saxton, 182 N.Y. 477, 75 N.E. 529, 1 L.R.A.,N.S., 727, 108 Am.St. Rep. 826. This same case is cited in appellant’s brief. We have read the case twice, and think to all intents and purposes it supports the proposition of the Commissioner here.
In the Sanders case the lower courts decided to the contrary but when it was taken to the court of last resort of New York that court unanimously held that it was a suit against the State and could not be maintained. It was said in the Sanders case that the “only object and purpose of a suit in equity to remove a cloud on the title to property is to have any adverse title that may be asserted under such cloud passed on and adjudged void, so that the plaintiff in possession may be forever afterwards free from any danger of the hostile claim, it would seem plain that, where the judgment in an action cannot conclude or bind a party claiming under the adverse title, the action must fail.” In other words it was necessary to have the State a party where it had
The State likewise in support of their proposition that the suit cannot be maintained cites American Trust & Savings Bank of Albuquerque v. Scobee, 29 N.M. 436, 224 P. 788, which was a suit to quiet title and remove a cloud, wherein the State had reseiwed certain mineral rights. The court held such an action could not be prosecuted against the State.
Likewise the State cites Hjorth Royalty Co. v. Trustees of University of Wyoming, 30 Wyo. 309, 222 P. 9. This was a suit against the University to quiet title, and in reading the opinion we find that the court premised its opinion on the fact that this was a suit against the State, and as such could not be maintained and devoted the majority of the opinion to the finding of whether or not the Trustees of the University were in effect standing in the shoes of the State, so to speak, and, if so, it was the same as suing the State. The court so concluded and held that the suit was not maintainable without the consent of the State. The opinion quotes the language of Article I, sec. 8, of the Constitution of Wyoming, which is identical with Article I, sec. 17, of the Constitution of Tennessee herein before quoted.
Counsel for the appellee cites in support of the proposition that such a suit is maintainable. Lyon, etc. v. State of Idaho, 76 Idaho 374, 283 P.2d 1105. Reading certain statements in that case it would seem that the case supports their position. A careful reading of the case though will show, in the second paragraph thereof, this: “Appellants in their brief have evidently abandoned the claimed right to maintain the action against the State of Idaho. We quote from their brief as follows: ‘It is conceded here that the State of Idaho cannot be sued and was so conceded at the time of argument. * * * ’ Hence we shall not discuss or decide whether the respondent State of Idaho is immune because of sovereignty from a suit of this nature, but shall limit the decision to the claimed right to maintain the action against the Board of Edu
Appellee likewise cites Boxberger v. State Highway Department, 126 Colo. 438, 250 P.2d 1007, from the Supreme Court of Colorado, and quotes at length therefrom. This quotation and what this opinion held was nothing more than you couldn’t take private property from a person without giving them just compensation. In other words in this case the State Highway Department of Colorado had taken the property of Box-berger and didn’t want to compensate him for it, thus the court held that this was a violation of sec. 15 of Article II, of the Constitution of Colorado, which provided, “Private property shall not be taken or damaged, for public or private use, without just compensation.” Thus it was that this case is based on the provision of the Constitution of Colorado which is almost identical with the Fifth Amendment to the Constitution of the United States which provides, “* * * nor shall private property be taken for public use, without just compensation.” The same meaning is gotten from Article I, sec. 8, of the Constitution of Tennessee. Thus it is that these authorities are not authority for the proposition that the plea of immunity on behalf of the State is not good. The fact of the business is, we think, under all authorities that we can find, especially including those of Tennessee, that such a plea must be sustained if the factual provision brings it within the inhibitions of the Constitution, Article I sec. 17, and Code Section 20-1702, heretofore cited. Exceptions, of course, have been made as were made in Stockton v. Morris & Pierce, 172 Tenn. 197, 110 S.W.2d 480, wherein the Court cited and quoted from an earlier
The appellee likewise relies on United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171. In this case, the Lee case, it was held that, while the United States conld not be sued without its consent, still an action might be brought in ejectment to recover lands in the possession of the officers and agents of the United States. This case and others support the doctrine that officers and agents of the United States and of the States may be sued for their illegal acts or to recover property illegally possessed by them despite the immunity of their principal. That doctrine does not cover the case before us.
Counsel for the appellee apparently recognized what has been said above and they state that if this plea is right they are not remediless because the refusal to allow them to set up their claim to the abandonment of this property (of course, the burden is on the one who claims abondonment to show the abandonment) is viola-tive of the due process provisions of Article I sec. 8, of the Tennessee Constitution, above referred to, and the relevant portion of the Fifth Amendment to the United States Constitution, above referred to. In making this argument they refer to statements we made in the Brooksbank case, and also they quote from the Boxberger case, supra, as well as the holding of the Supreme Court of the United States in United States v. Lee, supra, and particularly in the case of Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554. This is a very
We think though that here under the particular facts of this case another question arises which isn’t discussed in any of the briefs and probably of greater importance in view of the constitutional provisions referred to and the legislative history of the immunity of the State, and that is that it would be against the public
For reasons herein stated the motion, which is considered as a demurrer, will be sustained and the cause dismissed as to the Commissioner.