288 N.W. 525 | Neb. | 1939
Eifel Anstine, on February 28, 1936, filed her petition against the state of Nebraska, department of banking, in the compensation court, to recover benefits under the workmen’s compensation law, with praecipe attached, directed to the clerk of the compensation court to issue a summons for service upon the defendant as provided by law. Summons was issued and no return made thereon. The state of Nebraska, department of banking, by B. N. Saunders as superintendent, answered; the answer being signed by “F. C. Radke, C. G. Miles, Their Attorneys.” An amended petition was filed by plaintiff, summons issued thereon and no return of summons made to the court. The answer to the
It is conceded that the department of banking of the state of Nebraska is a governmental agency of the state, and that suit brought against such governmental agency is, in fact, a suit against the state, and it is also not questioned that the state cannot be sued in its own courts without its consent.
The voluntary appearance made by the attorneys representing the state of Nebraska and the department of banking is of prime importance. However, the appellee first raises a point in reference to the issuance and service of summons in the following language: That the compensation court had no jurisdiction for the reason that no service was ever had upon the state of Nebraska or the department
Subdivision 2, sec. 48-174, Comp. St. Supp. 1937, provides: “Upon the filing of such petition a summons shall issue and be served upon the adverse party, as in civil causes, together with a copy of the petition.” Section 20-503, Comp. St. 1929, contains the requisites for a summons as in civil cases, a-nd provides that it “shall be directed to the sheriff of the county, and command him to notify the defendant or defendants named therein that he or they have been sued.”
Section 22, art.' V of the Constitution of Nebraska, reads: “The state may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought.”
A state may, of course, lay its sovereignty aside and consent to be sued on such terms and conditions as it may prescribe. The provision of the Constitution in relation to bringing of suits against the state (art. V, sec. 22) is not self-executing. Legislative action is necessary to make it available. See State v. Mortensen, 69 Neb. 376, 95 N. W. 831.
Appellee directs the court’s attention to section 27-319, Comp. St. 1929, under the heading: “(b) Jurisdiction in Actions Against State,” and more especially to section 27-321, Comp. St. 1929, which provides for the service of summons in suits against the state. Section 27-321, supra, designates how the summons will be served, as follows: When a petition is filed, summons shall issue and be served upon the state by the sheriff of the county where the petition is filed, “by serving the same upon the governor and attorney .general; and in any action, the subject-matter of which, in whole or in part, relates to or grew out of the conduct of .any special department or institution of the government, summons shall also be served by such sheriff upon the chief officer of such department or institution.”
The compensation law contains no language designating upon what officers of the state service is to be had, in the
“It is a general rule that the state is not bound by the general words of a statute, which, if applied, would operate to trench (encroach) on its • sovereign rights, injuriously affect its capacity to perform its functions, or establish a right of action against it, unless the contrary is expressly declared or necessarily implied.” 2 Lewis’ Sutherland, Statutory Construction (2d ed.) 953, sec. 514.
It is obvious that section 27-321, Comp. St. 1929, does not apply, nor is said section made a part of the compensation act by express language or otherwise, but refers specifically to actions authorized by the state, as reflected by section 27-319, Comp. St. 1929, wherein the district court is made a forum for actions against the state. The use of the general language, “defendant or defendants,” as appearing in section 48-174, Comp. St. Supp. 1937, and section 20-503, Comp. St. 1929, as constituting service against the state, would operate to encroach upon the state’s sovereign rights, injuriously affect its capacity to perform its functions, and would establish a right of action against it in the manner which should not be permitted.
Referring again to the language contained in section 22, art. Y of the Constitution, “in what manner,” it is apparent that the legislature had not provided a proper manner of obtaining service upon the state in compensation cases. Section 48-174, Comp. St. Supp. 1937, uses this language, “or the voluntary appearance of a defendant is equivalent to service:”
Section 84-205, Comp. St. 1929, defines the specific duties of the attorney general to appear and defend actions and claims against the state. Section 84-203, Comp. St. 1929, refers to the powers and duties of the attorney general as follows: “The attorney general is hereby authorized to appear for the state and prosecute and defend in any court or before any officer, board, or tribunal, any cause or matter, civil or criminal, in which the state may be a party or interest (ed) .”
In Custer County v. Chicago, B. & Q. R. Co., 62 Neb. 657, 87 N. W. 341, the county attorney entered a voluntary appearance on behalf of the county, and confessed judgment. His authority was a resolution of the county board, authorizing him to confess judgment against the county. The resolution did not authorize him to make a voluntary appearance. This court held that the judgment confessed, under such circumstances, was void. It was said (p. 661) ; “Where there has been no service of process to give the court jurisdiction to render judgment by confession, the law requires the personal appearance of the party or of his attorney, acting under a warrant of attorney. Code of Civil Procedure, secs. 433-437.”
The duties of a county attorney are defined in section 26-901, Comp. St. 1929, and correspond to the duties of the attorney general, as heretofore stated. Section 26-901 provides in part: “It shall be the duty of the county attorney, * * * to appear in the several courts of their respective counties and prosecute and defend, on behalf of the state and county, all suits, applications or motions, civil or criminal, arising under the laws of the state, in which the state or the county is a party or interested.”
The case of Custer County v. Chicago, B. & Q. R. Co., supra, clearly held that, in the absence of a resolution by
In Chicago, B. & Q. R. Co. v. Hitchcock County, 60 Neb. 722, 84 N. W. 97, the statute provided for service of process upon a municipal corporation under the provisions of section 57, ch. 14, art. 1, Comp. St. 1899. While required to be served upon the mayor, chairman of the board of trustees, or, in his absence, upon the clerk, etc., the chairman of the board of trustees and the city attorney entered a voluntary appearance. The court held: “A chairman of the board of trustees of a village defendant is not empowered to waive the issuance and service of summons, and to enter the voluntary appearance of the defendant in an action, without authority of the village board acting in its corporate capacity as a body politic.” The court said in the opinion that the authority of the attorney and chairman of the board of trustees of a village to waive the issuance and service of summons in an action against the village, and thereby give the court jurisdiction to render a valid and binding judgment against the village, was the question to be determined. The court further said (p. 725) : “There is certainly no direct authority for such action, nor does it appear to us to be based on any well recognized rule of construction to hold that such authority is lodged in a presiding officer of a municipal corporation (even though he be the officer upon whom service is required to be had) as
The following Oklahoma case presents the logical rule: In Faught v. City of Sapulpa, 145 Okla. 164, 292 Pac. 15, it was said (p. 183) : “In the absence of a statute authorizing the officers of a political subdivision of the state to waive the issuance and service of summons for that political subdivision, this court must hold that a court does not obtain jurisdiction over a political subdivision of the state by the waiver of the issuance and service of a summons by its officers.” We know of no statute that authorizes the officers of a state to waive service of summons for a political subdivision thereof.
In 24 Standard Ency. of Procedure, p. 73, it is said: “The attorney general is commonly required to prosecute and defend all actions in which the state is a party or is interested. But he cannot waive the immunity of the state from suit and enter an appearance to make it a party defendant, unless statute authorizes him to do so.” Cases cited under note 15.
In opposition to the foregoing, 59 C. J. 327, is cited, wherein it is said: “Where proceedings are authorized against the state but there is no express provision as to the service of process, the state may properly be brought into court by service upon the governor and attorney general,
In California Securities Co. v. State, 111 Cal. App. 258, 295 Pac. 583, cited, the attorney general was permitted to voluntarily appear for the state. This was an action brought to recover a corporation license tax, paid by the company under protest to the secretary of state, sued in his individual and in his official capacity. We believe that the nature of the liability created against the state by the compensation law and its effect present an entirely different situation.
Our attention is called to the case of Keil v. Farmers Irrigation District, 119 Neb. 503, 229 N. W. 898, wherein it was said (p. 508) : “The reference to the Civil Code is manifest. So far as applicable to the transaction, and not inconsistent with the workmen’s compensation act, by the language quoted the terms of this Civil Code must be considered as part of the statute.” The inapplicability of the rule announced in the Keil case to the instant case is apparent, for the reasons hereinbefore given. The Keil case, in which the language was used, applied to correction of a mistake in the summons.
We conclude that the legislature has failed to provide, as required by section 22, art. V of the Constitution of Nebraska, the manner in which service of process may be had against the state, or a department of the state government, in a compensation case, or upon what officers of the state service is to be had. We further conclude that there is no statutory provision authorizing the attorney general, as the law officer of the state, to enter a voluntary appearance, binding the state, in compensation cases.
The great weight of authority is that statutes should receive a broad and liberal construction, but howsoever worthy the end to be accomplished, courts may not amend statutes under their power to liberally construe them. Such power to amend is possessed only by the legislature, and to that authority the salutary reasoning of the court and the like argument of counsel in this case might be properly addressed.
The appellee in its special appearance contends that the state of Nebraska has never waived its sovereignty and consented to be sued in actions arising under the workmen’s compensation act.
The workmen’s compensation law was passed by the Nebraska legislature in 1913. Laws 1913, ch. 198- The title to the act reads: “An act prescribing the liability of an employer to make compensation for injuries received by
“(1) The state and every governmental agency created by it.” Comp. St. 1929, sec. 48-114.
Section 15, ch. 198, Laws 1913, reads in part:
“The terms 'employee’ and 'workman’ are used interchangeably and have the same meaning throughout this act; * * * and shall be construed to mean:
“(1) Every person in the service of the state or of any governmental agency created by it, under any appointment or contract of hire, express or implied, oral or written, but shall not include any official of the state, or of any governmental agency created by it, who shall have been elected or appointed for a regular term of office, or to complete the unexpired portion of any regular term.” Comp. St. 1929, sec. 48-115.
Section 9, ch. 198, Laws 1913, provides in part: “If both employer and employee become subject to Part II of this article (Comp. St. 1929, secs. 48-109 to 48-115), both shall be bound by the schedule of compensation herein provided.”
Section 48-172, Comp. St. Supp. 1937, reads: “All disputed claims for workmen’s compensation shall be submitted to the Nebraska workmen’s compensation court for a finding, award, order or judgment.”
59 C. J. 303, is cited as follows: “It is usually said that statutes authorizing suit against the state are to be strictly construed, since they are in derogation of the state’s sovereignty. Consequently, it is generally essential that the consent of the state to be sued be given expressly and by clear implication.” See, also, State v. Mortensen, supra.
“The legislative intent is the cardinal rule in the construction of statutes.” King of Trails Bridge Co. v. Plattsmouth Auto & Wagon Bridge Co., 114 Neb. 734, 209 N. W. 497; City of Lincoln v. Nebraska Workmen’s Compensation Court, 133 Neb. 225, 274 N. W. 576.
“In construing a statute the legislative intent is to be gathered from the necessity or reason for its enactment, and its several provisions should be construed together, in the light of the general objects and purposes of the act, so as to give effect to the main intent. * * * People v. City of Chicago, 152 Ill. 546.” Kearney County v. Hapeman, 102 Neb. 550, 167 N. W. 792.
In 59 C. J. 303, it is further said: “But a statute giving a court jurisdiction to hear and determine actions against the state is sufficient authority for the bringing of an action without any special statute expressly giving the consent of the state to be sued.”
Appellee contends further that even though liability is created on the part of the state (see Eidenmiller v. State, 120 Neb. 430, 233 N. W. 447) there must be in each case a special or general statute waiving the immunity of the state, in addition to a statute creating liability, if none existed at common law. On this proposition appellee did cite cases wherein the state in each instance, by statutory provision, waived its immunity and consented to be sued. However, an act creating a liability against the state in favor of em
Other matters are raised in the special appearance and in the argument of appellee, which, in view of the foregoing, are not necessary to discuss.
For the reasons given in this opinion, the special appearance is sustained.
Special appearance sustained.