143 Ala. 579 | Ala. | 1904
The averments of' the bill in this case show that a fiduciary relation existed between complainant and respondent, H. 0. Reynolds, for a long period of time, and that during this period he received moneys by virtue of his office as president and agent of complainant for which he has never accounted. The bill seeks an accounting of him for these moneys and the production of certain books of account kept by him as agent or trustee of complainant containing material evidence necessary to a correct statement of the account against him, which it is alleged he wrongfully and secretly took and carried away, etc.
The answer of H. 0. Reynolds admits that, after his deposition as president of complainant’s school and a termination of his agency, he carried the books of account kept by him to his residence, but avers that upon demand he delivered to complainant’s agent all books, papers, etc., to which it was entitled. He also- substantially admits that he has in his possession certain other books of account showing certain private transactions between himself and the pupils of the school.
The first point made by the appellees is that the bill does not allege that Reynolds had possession of the
It appears by the record that complainant also maAe application to the court, in the form of a motion, to compel a delivery of the books of account, etc., to the register, etc., etc., which was supported by depositions of certain witnesses, copies of which were attached to the motion. These depositions clearly and fully establish the possession by the defendant of certain documents which relate to the matter in controversy and the motion should have been granted. It is not contended but that these books of account contain evidence material to complainant’s case. Indeed, without them, a. fair and just accounting between the parties cannot be had. It is an imperative duty of an accounting party, whether agent, trustee, receiver or executor — for in this respect they all stand in
The only other question necessary to be determined on this appeal is, whether the -respondents can maintain a cross-bill seeking affirmative relief against the complainant?
The solution of this question depends upon whether it is immune against being a defendant to any action or suit by that provision of the Constitution which prohibits the State of Alabama from being made a defendant in any court of Liav or equity, (§ 14 of the Bill of Rights) notwithstanding the act of its incorporation contains an express authorization that it may be sued. If the suit instituted against- it is practically and really against the State — if the judgment and decree obtained against it must be satisfied, if at all, out of the property held by it, and this property belongs to the State, though the title is go nomine in the complainant as an agent of the State, — then clearly to permit an action or -suit against it would be doing by indirection that which cannot be done directly. In other words, if the complainant is a mere State agency- — a representative of the State instituted and maintained by the sovereignty for the exercise of a governmental function, — a suit against it is a suit against the State, just as much so- as the action by Comer v. Bankhead, reported in 70 Ala. 493; and Smith v. Reeves (178 U. S. 436), where the relief sought was against the defendant “As treasurer of the State of California” to recover money quid to him as such officer. In that case the Court said: “Although the State, as such, is not made a party defendant, the suit is against one of its officers as treasurer; the relief sought is a judgment against that officer in his official capacity, and that judgment would compel him to pay
In Fitts v. McGhee (172 U. S. 16), where a bill was filed by McGhee as receiver against Pitts as Attorney-General of the State of Alabama, seeking’ to enjoin him from instituting certain proceedings against the complainant, the Court held that the bill could not be maintained because such a suit was in violation of the eleventh amendment of the Constitution of the United States, which provides: “That the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced and prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” The Court among other things said: “To secure -the manifest purposes of the constitutional exemption granted by the eleventh amendment requires that it should be interpreted, not literally and too narrowly, but fairly, and with such breadth and largeness as effectually to accomplish the substance of its purpose. In this spirit it must be held to cover, not only suits brought against a State by name, but those also against its officers, agents and representatives, where the State, though not named as such, is, nevertheless, the only real party against which alone in fact the relief is asked, and against which the judgment or decree effectively operates.” See also In re Ayers, 123 U. S. 436.
That the complainant is a mere agency of the State, instituted and maintained for the purpose of providing for the girls of the State an industrial education, and that all the property interest in it is owned by the State, does not admit of serious doubt. — Acts 1892-3, p. 1002; 1896-7, p. 1174; 1900-01, p. 2247; White v. Ala. Insame Hospital, 138 Ala. 479, and authorities there cited. This being time any action or suit against it is really and substantially one against the State, and it must be held to be protected against all actions or suits where the State is protected.
In Holmes v. State (100 Ala. 291), the bill was filed by the State and the respondents answered and made their answer‘a cross-bill and prayed relief against the State. This case arose while the Constitution of 1875 was in force. The Court speaking to the point said: “By the express provision of the Constitution the State cannot be made a defendant in any court of law or equity. This rule is as applicable to cross-bills seeking affirmative relief against the State, as to original bills.” See also note to Gregg v. Jones, 12 Am. Dec. 153, and note Ib. p. 518.
This was a construction of the provisions of the Constitution under consideration and, with this construction placed on it, the constitutional convention of 1901 re-ordained it. The framers of the present Constitution must be presumed to have retained it with a knowledge of that Constitution and we, therefore, feel bound to adhere to it. — Ex parte Roundtree, 51 Ala. 42; Alford v. Hicks, in MS.
But it- is said that section 240 of the present Constitution definitely and expressly authorizes the complainant to be sued. That section is in these words: “All corporations shall have the. right to sue and shall be subject to be sued in all courts, in like case as natural persons.”
The contention is that the language here employed is general and applies to both public and private corporations. We apprehend that by the use of the broad lan
The case of Lincoln County v. Luning, 133 U. S. 529, relied on by appellees as sustaining their contention that the words of the section above quoted are broad enough to cover all corporations, has no application here. Besides, its holding is opposed to the views expressed by this court in Agnew v. Hale County, 54 Ala. 639.
Reversed and remanded.