27 Wash. 288 | Wash. | 1902
The opinion of the court was delivered by
This action was "instituted to recover from the state of Washington damages alleged to have resulted by reason of delay on the part of the commissioner of public lands in issuing to plaintiff (appellant here) a contract of sale of certain tide lands. It appears from the complaint herein that on January 7, 1897, the plaintiff made application in writing, in due and regular form, to the commissioner of public lands, to purchase certain described tide lands in Island county owned by the state and subject to sale; that plaintiff’s said application was duly filed in the office of the commissioner of public lands; that thereafter, and prior to the 12th day of March, 1897, the plaintiff did and performed all the acts and things necessary to entitle him to a contract of purchase of said tide land from defendant, including the payment to defendant of the part of the purchase price of the same required by law; that on March 25, 1897, and continuously thereafter until March 7, 1900, the plaintiff was entitled to have and receive from the defendant a contract of purchase of all of said tide land, which contract would have entitled this
Eo objection is made here to the jurisdiction of the superior court. Eor is there any controversy in regard to the facts of the case. The sole question to be determined is whether the complaint herein states a cause of action
The state, by consenting to be sued, did not waive the right to defend, upon any legal ground, such actions as any person or corporation having a claim against it might thereafter see fit to “begin” in the superior comrt of Thurston county. In other words, the state has retained all its legal rights as a defendant in an action, and has waived nothing but its former immunity from suits. It has not consented, either expressly or impliedly, to become responsible for the misconduct or negligence of its officers or agents; and, in the absence of a statute making it liable in damages therefor, no such action as the present one can be maintained against the state. Story, Agency, § 319 ; Gibbons v. United States, 8 Wall. 274; Clodfelter v. State, 86 N. C. 51 (41 Am. Rep. 440) ; Clark v. State, supra; State v. Hill, supra; Langford v. United States, 101 U. S. 341. Touching the liability of a state for the wrongful acts of its public officials, the supreme court of North Carolina, in Clodfelter v. State, supra, said:
“That the doctrine of respondeat superior, applicable to the relations of principal and agent created between*294 other persons, does not prevail against the sovereign in the necessary employment of public agents, is too well settled upon authority and practice to admit of controversy. ‘No government,’ says Mr. Justice Miller, ‘has ever held itself liable to individuals for the misfeasance, laches, or unauthorized exercise of power by its officers and agents.’ Gibbons v. United States, 8 Wall. 269. And Judge Story declares in his work on Agency, section 319 : ‘The' government does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments and difficulties and losses, which would he subversive of the public interests.’ ”
The language of Judge Story, quoted in the Clodfelter Case above cited, is also quoted and approved by Mr. Justice Miller in Gibbons v. United States. It is further stated in the opinion of the court in Gibbons v. United States, that “The general principle which we have already stated as applicable to all governments forbids, on a policy imposed by necessity, that they should hold themselves liable for the unauthorized wrongs inflicted hy their officers on the citizen, though occurring while engaged in ihe discharge of official duties.” The constitution of the state of Tennessee provided that “suits may he brought against the state in such manner and in such courts as the legislature may by law direct,” and the Code of the state provided that “actions may he instituted against the state under the same rules and regulations that govern actions between private persons.” In determining the scope and 'effect of those provisions, the supreme court of that state, in Clark v. State, supra, expressed its views upon the subject as follows:
“The .constitutional and statutory provisions provide a remedy for any existing cause of action, hut do not change the relation between the state and the citizen so as to create any liability or responsibility on the part of the state. The*295 relation of the state to the citizen is not one of contract, which implies an undertaking upon good consideration, on the part of the state, that all the functions of government shall he duly performed, or that it will employ none hut capable and faithful agents. If an officer or agent of the state, in violation of law, commits an act to the injury of the citizen, it is an act beyond the scope of his agency, unauthorized by his principal; and the state is not liable therefor to the party injured.”
And the same doctrine is clearly announced by the supreme court of Alabama in State v. Hill, supra, and is recognized as established law in the other cases above cited. In fact, we have not been able to find any case in which a contrary rule has been enunciated under a statute such as ours. The case of Green v. State, 73 Cal. 29, is cited, among others, and especially relied on by counsel for appellant as an authority sustaining his contention, but we do not think that the case is in point here. That action was brought under a statute expressly authorizing the plaintiffs to institute an action against the state for damages alleged to have been caused to their property by reason of the construction of a canal by the levee commissioners of the city of Sacramento. And even in that case the court held that the act of the legislature authorizing the bringing of the action was not an admission by the state of its liability for the alleged damages, nor a waiver of any legal defense it might have to the action, except its immunity from suit. The case of Ballou v. State, 111 N. Y. 496 (18 N. E. 627), is also cited by appellant in support of his alleged right of recovery in this action. That was an appeal from an award of the “board of claims.” The claimant presented a claim to the board for damages caused by an obstruction in a sewer belonging to the state by which water was forced through claimant’s drain, connecting with the sewer, into his cellar. The
It is ingeniously argued by counsel that appellant is not suing the state because of the wrongful act or omission of one of its officers, but is suing it as a party to a contract, and that the fact that the damage claimed resulted because of an act or omission on the part of an officer of the state is merely incidental. But it must be remembered that the statute applicable to this case provides that the commissioner of public lands shall execute in writing a contract of sale, upon the conditions therein specified, of certain lands of the state, including its tide lands, which, if complied with by the purchaser, shall entitle the latter to a patent from the state. It is admitted that such a contract has in fact been executed and received by appellant, and it therefore follows that, if it was not executed as soon as it should have been, and the appellant was damaged thereby, such damage was caused by the misconduct or laches of the commissioner, for which the state never agreed to become responsible.
The judgment is affirmed.
Reavis, C. J., and Fullerton, Dunbar and Mount, JJ.. concur.