*1 539- prescribed change ballot of the attempted the form act would the act provision of 'Constitution, requirements contravening the void, because null No. act lastly, said itself, and, the Constitution reason for the regulate the election control 294 did not election time at the in effect not same that the was held. was point malíes raised the last. on conclusion Our questions other unnecessary discuss decide appellee correct opinion being- presented, our '294 namely; No. was that act contention, last in his County. in Sevier election time of at the in effect of both records judicial notice take We Assembly know we from General branches adjourned 14, and March Legislature emergency question contained act in while the that, therеon, had separate call was or roll vote no clause, adopted, and emergency never was clause said therefore ninety days after go effect until into act did Imp. 16No. Dist. Legislature. Road adjournment of the Graves, v. Foster 825; 243 S. W. Sale, 551, 154 Ark. v. Mortgage Security v. 653; Crow 275 S. W. Ark. 1033, Ramsey, (2d) Kendall v. 346; W. 1139, Ark. 5 S. Co., 176 (2d) 1020. S. W. 984, 19 179 Ark. May held involved was the election Since prescribes the form Amendment 4 of the Constitutional § act and, election, used at the was of ballot what be immaterial it would effect, not then in- validity they might have. provisions or what affirmed. is therefore below judgment of the court Dodge. Commission Arkansas April Opinion 7, 1930. delivered *2 Attorney Hal L. Duty Norwood, G-eneral, Claude Pope, $ and Walter L. Assistants, Pace Davis and Tom Campbell, W. appellant. Spence, Dudley Dudley
W. E. <& and Charles D. aрpellee. Frierson, for doing- partners E. L. J. and E. Lahar, W.
Smith, brought business under the firm name of Lahar Brothers, Chancery this ag'ainst suit the Pulaski Court the chair- man and Highway members Arkansas Com- State alleged mission, and for their cause of action follow- ing facts: they That had entered into a written with contract
the State por- Commission to construct certain system, pursuant tions of the they*- highway State which to large money, had pay- earned a sum of which was able to them under their but the contract, commission proper had refused to make estimates of the work and upon had treasury, declined to issue vouchers they duty whereby were in plaintiffs bound to do, deprived compensation were legally of due them. they prayed Wherefore appointed that- a master -bе state the account highway between themselves and the they judgment commission, and that for the amount alleged to be due them. The commission filed a complaint demurrer ground plaintiffs “that right are without file maintain reality suit, this because it inis a suit against the prohibited Arkansas, is by § 20, of article 5, of the Constitution of the Arkansas, and the court jurisdic- is therefore without herein, complaint filed hear determine the tion to Arkansas because prohibited suit section of the Constitution said of Arkansas.” whereupon defend- overruled,
The demurrer was prohibition petition writ for a filed court ants proceeding chancery further prevent from court exercising jurisdiction cause. in said with or appears that practice when it that, well settled proceed a matter over is about to inferior court any state entirely jurisdiction under without it is Supreme then the exist, of facts shown *3 supervisory inferior exercising over control Court, proceeding may prevent unauthorized such court, Imp. prohibition. MonetteRoad of a writ issuance Dudley, 59. 169, 144 Ark. 222 S. W. v. Dist. reads of the Constitution 20 article
Section 5 made never be “The of Arkansas shall follows: any her courts.” in defendant provision argument of the Con- this
The made is always .merely declaratory what has is stitution may simply not that the State law, and that means think, consent. We in her her courts without own sued quoted purport language however, that the provision have the thus limited. Numerous States to be brought in their that no suit shall Constitution except course, held it is, with its consent, may brought consent he when suits in those States that brought givеn, forum suits must be but such provided prosecuted authorized, manner and be in forum no other or manner. declaratory merely not, however,
Our Constitution is sovereignty. goes de further and this attribute defendant clares that the State shall never be made any provision courts, under of her nowhere is whereby immunity be waived. the Constitution this 742, v. 121 Am. 535, Pitcock 91 Ark. S. W. 134 St. Rep. 88.
542 provision
The contains a Constitution of Alabama our Constitution on almost identical with that of own subject, and in the this case of Alabama Industrial School Rep. 58, Am. St. Addler, 116, Ala. Sou. headnote): (to quote held a “If the Constitution being prohibition against the made a contains a party provide any suit, defendant to and does exemption, Legislature has no waiver such power pass permitting can the waiver, nor law agent exemption State or its waive such failure plead jurisdiction con- feel or otherwise.” We provi- give strained to same construction to the same sion in our own Constitution. question therefore, is, whether the decision, prohibit
suit which are a suit is, fact, we asked to against the State.
Any question requires answer to consideration under statutes which the contracts sued were Assembly ‘At executed. its 1929 session General passed codify an act entitled, “An Act to amend and relating highways.” p. laws Acts 1929, 264. Commission, This act recreated the State and the commission as recreated 1929 con- act of of five members, chairman, sists with *4 vice-chairman and secretary. policy This act declared it to the the of repair, “to over, State take construct, maintain and con- public comprising trol all the the roads in the State highways authority as defined hereinafter,” and was given to make such contracts as were needful these for purposes. By passed No. act 38, at the 1929 session Assembly p. (3, 26), the General Acts the sum 1929, appropriated of fifteen million was for con- dollars bridges struction of and roads embraced in highway system year beginning fiscal March 1, ending day February, and 1929, 1930, the last and appropriation year begin- similar made for fiscal was February, ning ending day 1, 1930, March and the last placed money disposal 1933, the act at the pro- commission, to be disbursed tbe manner therein policy vided. These acts-were a continuation of adopted passage road construction the State (Acts 17), page of act No. 11 of the Acts of 1927 сommonly known as “Martineau Boad Law,” money appropriated large sums of act to effect its purposes.
Upon passage of the Martineau Boad Law, provisions, arose, in the execution numerous suits hampered the work of the and at the commission, Assembly of the General No. was act, extra session approved passed 3, 1928, “An act October entitled, require affecting in certain administra- bonds suits highway tion of the State laws.” of this act Section reads as follows: Highway
“Suits the State Commission, any Note members or member Board, State of involving any any either, act officer, proposed to done in done or of*the administration Highway Department, pertaining or of law system, highway brought only shall be at the ” government County. seat in Pulaski passed special This at a session called act, special road-building purpose considering the State’s program, recognized pending the existence of suits, probability being brought, of others and fixed government, venue the seat of in Pulaski thereof at County, highway where commission has its domicile keeps its records. special designate highway
While this act did corporation, recognized commission as a en- was an tity, juristic person, making purpose created for the large contracts for the distribution of sum of appropriated, which had been and which it antici- pated appropriated constructing, would be later main- *5 taining, repairing purposes. and for roads, other The highway authority given commission was no in the to acts which we have referred to make contracts in the name making of authority was limited Its
of the State. appropriations which specific relating to the contracts com- discharge the contracts which made to had special act The to make. authorized mission was might between contemplated arise differences contro- contracting parties, care of such take and to whereby these provided wherein forum was versies a might settled. differences be judgment provided proceedings for a
In there highway against liability might fixing rendered a be a judgment rendered would not be commission, a so but judgment against en- could not be such, and the State-as property forced seizure sale of private judgment liti- be enforced as gant. could specifi- only Satisfaction can be had out fund regard cally appropriated purpose in which the for the to highway to contract. commission was authorized appropriation
The of the commission is for the use specific highway purpose. for a a fwnd set aside entity, juristic person, commission to dis- is an created money payment burse this author- work appropriation ized to contract while for, and, specifically satisfy judgments to rendered contemplated judgments it 'was commission, might appropriation rendered, and is the State’s provision payment. contemplated for their It was not highway every that the commission should accede to de- every contemplated yet mand of contractor, it was expenditure large high- а sum of so way protect might commission, fund, zeal positions persisted injustice which, take if in, would work who contractor, some could sue the State as such. Therefore, forum where was constituted these differ- adjusted applicable according legal ences principles, being gov- this forum the courts at the seat County. in Pulaski ernment judgment pursuant
A
rendered
act
would not
“judgment against
only
be a
the State.”
It would be
*6
adjudication that
adjudged
the sum
was due on the con-
tract out of
litigation
-which the
paid
had aiisen, to -be
out of
appropriation
made for’ this
pur-
and other
poses.
be said
§
20 of article 5 of the Con-
stitution of the
gave
the State no immunity which
it would not otherwise have had,
immunity
and that this
with,
is absolute,
exceptions
named in the Federal
Constitution, which are
applicable
here. And it is
also well settled that
this immunity applies,
onty
where the 'State
actually
named
party
aas
defendant
on the record, but to cases
proceeding,
where the
though
nominally against an officer of the
against
really
the State itself, or is one to which the State is an indis-
pensable party. And,
as was said Mr..Justice Lamar,
speaking for
Supreme
Court of the United States
Hopkins
case of
College,
Clemson
sion make ap- involved, here one "like the name, own in its *7 when and discharge contracts, money to such propriated ascertained been has obligations contracts such of the imposed discharged burden no and previously assumed. had Highway Commission recent ease of State In the of 49 194, U. 278 S. Co., Wyoming Construction v. Utah upon contract based a’suit, that was held 104, it S. Ct. of of the highway, by commission the made Wyoming against that suit and in fact effect inwas the under a citizen was not a State as that, State, and no v7as there States, the United of judiciary acts of plaintiff, citizen gave citizenship the diversity as of the But the suit. rig’ht maintain to State, another name executed on was sued there contract on sued hero contract Wyoming’, whereas entity agency or of the by the name and made was ap expend Assembly to designated General purpose. for that made through contracts propriation recent similar somewhat case is instant (2d)W. S. 23 Ark. Urquhart State, v. case case, in that stated facts appears from As 963. liability extent really was the point in issue purchase a. State contract to upon a interest appropriation sufficiency farm, convict obligation discharge the passage to of its manner Pulaski adjudged the courts was extent when Upon this purpose. for that agency created County, Legislature “The there said: we feature prin amount, both ascertained might have itself appropriation ac an made interest, cipal and agency to another constitute to elected but cordingly, appropriation fact, finding of make pay both amount sufficient abe assumed what the remittitur under and, interest, principal ’’ sufficient. appropriation is entered, act brought suit was is time provided it should be, but provided the act also that the State’s vendor litigate his claim for interest, and party either should right appeal have the from an unfavorable decision. The instant case is more like that of Grable Black wood, 180 Ark. (2d) S. W. 41. The facts case were that brought Grable suit in the Pulaski Chan cery (and Court another claimant in the Pulaski Circuit Court) against the Commission and the individual members thereof to payment enforce the an outstanding prior January indеbtedness incurred 3, 1927, improvement a road organ duly district ized under the laws of the State of Arkansas. We there right said that the *8 depended to upon recover the con given struction to of passed act 153 Legislature the (1, p. 1929 785). Acts of 1929, Section 1 of this act provided: highway “That the commission as shall, soon possible, as ascertain amount the of valid outstand ing prior January indebtedness incurred to 1, 1927, against any road district in the State of or Arkansas, ganized prior passage to the of act No. of acts of the the Assembly General Arkansas for the * * * year 1927, and paid shall draw vouchers to be appropriation already out provided the for in act No. Forty-seventh 18 of the Assembly General pay for the ment of road obligations; district bonds and interest pеrson vouchers shall be delivered to the authorized to proper receive the same, on satisfaction of such indebt * * edness provision We pay- that, there held the while for the ment the claim involved in case was a donation, we person held holding also that a a claim of the class de- scribed highway maintain a suit the com- although mission to it, enforce the funds out of which plaintiff Grable and payment the other demanded were derived from the identical source plain- out of which the payment, tiffs here ask of- all the the State. against the suit aas case the Grable treat did not We highway compel the to money. purpose was although its treated we But pay out State’s commission legislative declaration being a appropriation as ap- upon and passed had been claims the merit proved provision as- appropriation itself discharge demand. for the Grable far appropriation, so In that Here donation. awas concerned, were claimants
similar obligation contractual plaintiffs assert require the they seek itself, highway commission dol million fifteen portion of devote commission in all it was purpose appropriation lar obligations of the payment to-wit, the tended, construction incurred highway commission pur appropriation system. The highway are plaintiffs here already made, pose has they obligation State; impose an seeking to devote highway commission pray, rather, obliga discharging the purpose intended fund for previously Legislature had which the the contract tion of also, See, make. highway commission authorized Kerby, Ark. Highway Commission Arkansas 377. 300 S. W. iden- case is respect instant controlling In this *9 perceive no sound can we case, Grable the tical with highway right the to sue Grable’s between distinction claim, compel pay his thereby to commission, object of both The plaintiffs here to sue. right the the purpose of consummate is, identical, that suits dona- a make case, was one which, appropriation, in comply contracts tion, with other, and, in make authorized highway had been commission ihe name. own and had Highway Commission rel. ex State case of The State Judge, 317 Mo. Circuit Bates, Missouri the writer principle which involves S. W. applied and is control- Meicaeey should think Justice ling here, quote that reason we somewhat ex- tensively opinion from the in that case, which was a opinion unanimous Supreme Court of Missouri sitting in banc. That against case involved two High- suits way damages being Commission, arising claimed in each out of contracts plaintiffs entered into with the Highway State Commission. One of these suits was brought county where the .construction contract performed; was county other high- where the way commission kept had its domicile and its records— county capitol which the State was located. opinion begins quotation with a from a former opinion Supreme Court of that State, where Jus- tice speaking Lamm, for the court, had said: “That sovereign not be sued is a truism,” and while it was added sovereign may, by (under law Constitution Stаte), give of that consent to the citizen to point sue it, the expressly decided and made the basis of the decision that the suit was not against in fact State. Immunity from the suit high- was claimed way commission in that ground that, agency was an of the State, against a suit it was, in fact effect, and in against a suit State, and could not be maintained for that reason. In overruling the contention that a suit Commission was a suit the
Mr. Justice speaking'for Graves, a unanimous court, said: (State “It Highway Commission) entity, is an with powers of a corporation, established and controlled specific public for a purpose, but that does legal make entity sovereign State. No contract it is authorized to make is made in the name of this -State, but in the name of the commission. The sovereign could hаve contracted for building public high- of its ways in its own name, but it chose to legal entity create a *10 for this gave work. This act legal entity to this part no of the State’s sovereignty, but proceed authorized it to by which, done could the work do certain has Thus the State. with direct
private contract page 75: J., at in C. said been well “ not public, corporation ‘Although a by the State and controlled established private, because necessarily follow purposes, it does public for not sub- and so State, the corporation in effect is such ject corporations, g-overning other of law rules the business particular engaging ain may, by for itself corporation, divest instrumentality aof through the render toas sovereign character, so pro of haс vice pri- governing subject of law rules corporation to the the incorporated banks, although corporations. Thus, vate purposes and public its own established un- entirely State, are controlled owned they held corporations, doubtedly public attributes with the invested reason are subject gen- corporations, and sovereignty, -mere but are ” corporations.’ other governing erally of law rules quo- opinion above incorporating into Alter say: proceeded to judge learned J., 14 C. tation from ‘‘ is not commission. the status is Such spe State, for entity by the created mere State, but building of State contracting for the purpose cific same, bridges, maintenance highways and pertaining In the things thereto. doing other all Regents, Board in language Walker, J., legal ‘a constituted 701, it was 264 W. S. loc cit. Mo. sov lessening State’s anywise entity, without immunity from entitled no sense ereignty.’ It is fact, State, created In State. suit, is statutory express subjected sued it to be commission, in fact and it hand, provisions. other on the If, con ego, State has alter the State’s State, law brought. being is not The commission to suit sented thereof), any part sovereignty (or State, the State’s with ex created for a mere creature but press fully specific caseA performing a work. purpose *11 point is the case of Kentucky Gross v. Board Man agers Exposition, Ky. World’s Columbian S. W. 458, R. 43 L. A. 703.” jurist The learned then cites and a number reviews of cases to the effect party that the not the real legal where it entity has thing's created a to do the to he сlone. here,
So the State of Arkansas not contracted to huilcl entity roads. It has purpose, created an for that appropriations and has made discharge in advance to obligations incurred in Building that behalf. roads is, public purpose, course, a accomplishment for the of which public may expended, revenues be hut it is not work only in which sovereign may engage. Other agencies may build roads, and do build them, cities improvement and towns and counties and road dis- tricts. Here the entity State has created an and con- upon power ferred make not in contracts, name of the State, but in appropriated its own name, and has obligations with which the of these contracts discharged. holding After that suit, based contract Commission, be maintained against the commission, Supreme it was said Court of Missouri in the quoted from which have we highway entity commission as an inwas a class dif- pure corporations, ferent from that, as was created public purely purpose, provide the State could place of a suit it and the manner of service, by making permanent that this was done domicile of City the commission in capitol Jefferson —-the —and brought only county could, suit therefore, in the capitol in which the was located. Here, said, as we have special act of 1928 malíes County the courts of Pulaski —the domicile highway of our commission—the forum in brought.. suits,must be nothing There is unusual about those contracts, nothing there legislation authorizing them 55'2 they do tliem one bidder prospective
awarn аre contracts, attributes usual not mutually contrary, the theOn enforcible. -binding *12 engage busi- a in entity to agency or has created function, sovereign any necessarily related not ness this whether case in controlling question and agency as contracts, its perform compelled to may it should intended State, acting Assembly, G-eneral com- as and given, was contract power to when do being without do power to unquestionably mission con- perform the proper to saw commission If sued. obtaining without power to do so it has on, sued tract Assembly General authority from further com- therefore, conclude,- purpose, we and principles applicable power if the pelled to exercise duty. enjoin this contracts law v. Casualty Co. Maryland opinion case The inappli not 1003, is S. W. 103, 291 173 Ark. Rainwater, funds that State were in that facts here. cable insolvent, became which -bank deposited ain been had right enforce had claimed it was preference in bank assets demand we contention ag'ainst that holding creditors, in but other deposit, was making such in “The there said: engaged only function, but exercising governmental regard to the attitude with ordinary Its business. in assumed might have just such as transaction corporation, private individual said and, bank; lend its chosen to steps a 88: Ark. ‘When Cossart, Callaway inor concert business common arena clowninto of her goes divested she her citizens competition with ’ con such presume, under cannot sovereignty. The State king prerogative of the ancient exercise ditions, mollejas repayment her preference and claim against all in, bank, as- deposited failed to, or loaned having no thereof, depositors creditors other relating in her laws no intention declared intimation thereto that such would will be done. She be held to have right, prerogative waived or abandoned can- existing be exercised under laws.” (cid:127) opinion It is therefore the writer Jus- Mehapey tice for the reasons herein that, stated, the writ prohibition should be and as the Chief Justice denied, Humphreys ground, and Mr. Justice concur on another petition it is ordered that the for the writ be denied. J., J., C. concur.
Hart, Humphreys, MoHaney and Butl-er, JJ., dissent. Kirby, (concurring). Judge Humphreys C. J., Hart, myself judgment only. concur in the perplexing question
The most difficultand
in the case
*13
present
against
is whether or nоt the
is a
action
suit
the
High
State. On the one hand, it is claimed that the State
way
entity
legal
corporate powers
Commission is a
with
subject
Supreme
by
as such is
as decided
the
suit,
Highway
Court of
rel
Missouri
State ex
Com
State
mission v. Bates, 317 W.
296
the
696,
S.
S. W. 418. On
other
it is claimed that the
Commission
hand,
agency
separate body politic
is an
of the
State,
not a
against
corporate,
or
and that a suit
the Commission is
Looney
Stryker,
against
a
v.
suit
State itself.
31
High
N.
Pac.
L. R.
and State
1404;
M.
249
50 A.
557,
112,
way
Co.,
v.
194,
Utah Construction
278 U. S.
Commission
ho New parte State Ex In its consent. State without own York, said: court 588, 41 S. Ct. S. 256 U. consent without sued not a State “That having im- so jurisprudence rule 'fundamental is a Constitu- of the bearing the construction portant a established become that States United tion of the judicial entire that by repeated court decisions au- embrace by does power granted the Constitution parties by private brought thority a suit to entertain brought given; nor'one against without consent a State subjects by citizens by State, of another citizens Amendment; foreign the Eleventh because of a because brought citizens, its own even one and not is but Amendment which the rule of the fundamental ’’ еxemplification. thor it is now also said court In that suit deemed to be oughly what is settled mere question determined, to be is a nature essential parties, but titular name en appears proceeding from itas and effect Pennoyer v. Mc quoted from The court record. tire effect Connaughy, Ct. 1, 11 S. S.U. brought against officers the suit where liability, thus representing action the State’s party real party record, though making not a it, operate, is, with suit judgment will action Amendment, an meaning of the Eleventh *14 operates so suit where too, against So, the State. pecuniary satisfaction require make the State as to against State. liability, suit any it would a for 619. 436, Ct. 20 S. U. S. Reeves, v. 178 Smith Highway of will be noted Ct. 49 S. Wyoming 194, Utah, 278 S. U. Commission of citizen, a expressly is not that a State held court 104, corpora- citizens the State suit between a and that jurisdiction of within the is another tions of citizenship. diversity involving as courts Federal controlled must be stated, we above While, opinion question, still on decisions own our 555 Supreme on Court of the United States the identical question very persuasive, is, and we in line with think, question, our on the own decisions and should be followed. obligation adequate public maintain to build and highways, bridges pri including across devolves rivers, marily recognized on the and we have State; delegate may discharge obligation State itself duty agency. to an Bush v. Martineau, subordinate Ark. 174 296 S. 9. 214, W. Urquhart,
In Jobe v.
Ark.
525,
98
In the suit a require pecuniary Commission would the State to make liability, opinion, satisfaction for the and we are against that it is effect suit the State. That this principles view inis accord with the declared the Su preme Court will United States be further seen Hopkins quotation Agricultural from v. Clemson College, Sup. Rep. 636, S. 55 890, U. L. Ed. Ct. (N. S.) L. A. R. reads as follows: exception every "'With named in the Constitution, immunity State has absolute from suit. Without any by any person, consent it be sued in court, cannot looking through cause action whatever. And, form to the Eleventh substance, Amendment has been only apply, actually -where held to the State is named party pro as a defendant on but record, where the though ag’ainst ceeding, nominally really an officer, indispens State, or is one to it- is an party. suit, able No therefore, can be maintained compel public seeks to officer, which him to exercise power pay or to taxation, the State’s out its *15 556 obligations, to exe- possession on the 'State’s lais
in any which affects do act or to affirmative cute a contract, rights.” property political or the State’s brings consideration of whether article This us to a providing that the of the 5, § 19 Constitution any party in defendant Arkansas shall never be made merely prohibition, or declara- of her courts contains a tory general sued rule not be that a 'State p. A. L. R. without its consent. ease notes 42 See p. A. 1408. The of Alabama L. R. at and, in her and it was Constitution, contains similar clause Legis- prohibitory, held that section was and that allowing lature could enact a statute consent to itself. Alabama In- a suit Girls’ Adler, dustrial v. 116. School So. controlling.
doWe
not consider that case as
The
State Alabama had a
in
clause
its Constitution which
provided
passed
no
that
local
shall be
law
notice
unless
apply
published
of the intention to
therefor should be
county
in
where the matter
to be effected was sit-
uated, which notice should state the
substance of
proposed
published
law, and
least
at
once a week for
publication
county
four consecutive
weeks
some
in such
prohibition
and the court
counties,
held that was
mandatory,
noncompliance
and with it rendered the
Kumpe
act void.
140 Ala.
Irwin,
460,
This
a similar
is contained in
§
article of our
Constitution, held
contrary.
directly to
long
'begin
In a
of cases,
line
ning with Davies v. Gaines,
557 applicable, general law can be made a cases in all -where uniformly has special court enacted, be shall no law merely cautionary Legis- to the was that the section held judge Legislature and that the lаture, necessity special statute. a provides §19, held that which 9, article Assembly power to create have no shall
that the General expressly provided any permanent office not provisions by Constitution, falls the class within special Legislature a to enact forbids like that which (Const. applicable general law a be law where can class, pro 24) held § the court has 5, article merely cautionary directory visions Legislature. & Bank, v. Merchants’ Planters’ 114
Greer Ft. Dist. Ark. Smith Sebastian 212, 802, 169 W. S. County v. Eberle, 125 821. We do 350, Ark. S. W. regard v. State, 527, 742, Pitcock 91 Ark. 121 S. as W. expressed the because was there authoritative, what said judges only. views of two of the opinion reasoning the better is
We are of effect that section of 'Constitution was not merely prohibitory, but that in it was intended that, not be sued tended аs a declaration reasoning provision its a such without consent. well is stated Mr. Justice Holmes in a Constitution Supreme the United Kawana Court of States for the Polyblank, 526, n ako U. S. 27 S. Ct. as follows: expressed have been as to the source “Some doubts immunity sovereign power from suit without permission, public prop- but the answer has been its own days days (Leviathan erty of Hobbes before the since the exempt 2). sovereign from suit, A because c. conception theory, or obsolete but formal on ground legal practical .logical no there can be authority right that makes on law depends.” right which sovereign enacts its own laws and
A jurisdiction defines courts and their its own creates necessity exempt jurisdiction of these courts from the perceive goоd no except can own We consent. being why sued not consent should reason her conditions as terms and her courts own Legislature might prescribe. that the think do not We Legislature, except given can be consent *17 public policy the If of the State. the alone can declare power building sovereign roads, is to exercise its navigable bridges it constructing streams, and in across somewhere, should be a tribunal would that there seem pass upon might those with whom claims of the agency reference of State had with contracted ap- could be a more matter, to the and what tribunal propriate equal protection guaranty and safe by the State for the the laws than protection courts established citizens, . for such citizens who its аnd gain. pleasure or come its borders for within general is' to rule State which consents may prescribe methods, be sued terms, condi- p. Note to A. L. tions it sees fit. Case R. as 1477. Among support the numerous cases cited of the doc- Davies, Auditor v. trine is that of Ark. 494. beyond controversy
It is settled
that the State can
not be sued in its own courts without its consent.
In
through
Legislature,
granted
case,
the right
privilege
or
to claimants to
actions
institute
upon
the Commission
certain
persons
corporations
conditions;
terms and
and all
seeking
right
to
privilege
avail themselves of so
subject
granted must do so
to the terms and conditions
part
right
granted by
Whichform
Legis
words,
In other
lature.
the suits instituted must be
contemplated
such claims as
limited to
are
the act
authorizing the State to be sued. Indiаna v.
Co.,
Mutual
Ins.
In State can be sued consent; when a claimant and, own avails himself of the pre pursue remedy in the court must consent, he granting- privilege, scribed the statute 'by provided statute. is the terms and conditions as it by all conceded It must be remembered it provision regard under that, without constitutional validity may recognize Legislature consideration, the appropriate claim designate right pay to have the and that it would it; or other claims agency court of such as a a subordinate validity pass upon claims. board above *18 declaratory sovereign principle is that State a legislative provi- incapable being sued without some proceeding; authorizing that statute and sion such strictly followed, Davies, be in Auditor must as stated general may be stated, it also this, Ark. 494; may subject. draw the on All matters rale these sting sover- of those who fear that the out of the minds may eignty or that effi- diminished, State be may by per- ciency government be lessened of the State Legislature mitting pass permitting to acts upon its such and condi- to be sued in own courts terms prescribe. put It form above tions as it would say Legislature might permit that substance to by brought courts to be in the created such suits before create other tribunals whom State, but could judicial adjudica- At least be established. claims could way guarantee and reasonable to safe tion deprived property person his shall be without due process of law. up, may High-
To said when the sum it way was created construct Commission State roads expend
and. money selected to make contracts to State’s agent became the State’s to do so. therefor, it entity, corporate Whether be called a commission agency it is for the none the less an board, State; may only improve highways public construct discharge only sovereign of a function, and can power by committing discharge exercise that of it agencies by Legislature purpose. selected its for that Therefore, the contracts which the State 'Com- obligates High- mission enter into way the State and not the or its 'Commission members. Actions it -are purposes to all intents and suits the State. property rights is the State’s be affected will judgment, required and the will be make pecuniary any liability. satisfaсtion for It seems to us sovereignty preserved that the State’s bewill better protected by holding may through Legis- that a 'State immunity lature waive its from suit and select the forum prescribe the terms and conditions which it may Legislature parcel sued than to allow the out sovereign the State’s functions to bodies, various thereby called, whatever name sued, allow them to be accomplishing thejr say indirection what directly. not do v. No Norton Fence District 2. No.
Opinion April 14, 1930. delivered notes seen from too, it Then, will application that, in cited that is a rule universal subject, in- provision on the absence of a sovereignty not be that a State herent attribute of many have States its consent; sued without Constitutions, authorizing express provisions their immunity Legislature pass waiving the State’s laws provisions held from suit; and such