Arthur W. FAIRCLOUGH, Fred Fairclough, Anthony M. Crus, Thomas Crus, and John Crus, dba Fairclough & Crus, Plaintiffs and Respondents, v. SALT LAKE COUNTY, Lamont B. Gundersen, William G. Larson and Edwin Q. Cannon, Sr., Road Commission of Utah, C. Taylor Burton, Francis Feltch, Ernest H. Balch, William J. Smirl and Weston E. Hamilton, Defendants and Appellants.
No. 9140.
Supreme Court of Utah
July 14, 1960
354 P.2d 105
CALLISTER, J., having disqualified himself, does not participate herein.
McBroom & Hanni, Salt Lake City, for respondent.
HENRIOD, Justice.
Appeal from denial of a motion to dismiss filed by Salt Lake County and the Utah Road Commission. Sovereign immunity was claimed as a defense. Reversed.
In November, 1956, defendants completed a highway project where the grade allegedly was reduced about 16 feet below plaintiffs’ abutting land. Presumably it was a reasonable and necessary exercise of the police power to benefit the community as a whole.
In June, 1959, two and one-half years later, plaintiffs sued defendants 1): to get damages for depreciation in preventing access, or, alternatively, 2): for a writ of mandamus forcing members of the agencies mentioned to start eminent domain proceedings to assess and adjudge damages in their favor.
As to 2), in a case where the same contention was urged, we held it without merit.1
As to 1), consistently and historically we have ruled that the State2 may not be sued without its consent;3
In Lynch v. United States, supra, 292 U.S. at pages 580-582, 54 S.Ct. at page 844, Mr. Justice Brandeis, simply and eloquently announced the principle extant here when he said that
“Contracts between individuals or corporations are impaired within the meaning of the Constitution * * * whenever the right to enforce them by legal process is taken away or materially lessened. A different rule prevails in respect to contracts of sovereigns. * * * The rule that the United States may not be sued without its consent is all-embracing * * *.
* * * * * * * * *
“* * * For consent to sue the United States is a privilege accorded, not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration. * * * The sovereign‘s immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced. It applies alike to causes of action arising under acts of Congress, * * * and to those arising from some violation of rights conferred upon the citizen by the Constitution, * * *. For immunity from suit is an attribute of
sovereignty which may not be bartered away.”7 (Emphasis ours)
The
Many times we have announced the principle.
In Wilkinson v. State, 1913, 42 Utah at page 492, 134 P. at page 630, where Utah was sued for damages caused by flooding of land by State agents,
“We have neither a statute nor a constitutional provision authorizing a suit against the state. * * * and in the absence of either express constitutional or statutory authority an action against a sovereign state cannot be maintained * * *”
State by State Road Commission v. Fourth District Court, 1937, supra, 94 Utah at page 389, 78 P.2d at page 504, although conceding that
“The State cannot be sued unless it has given its consent or has waived it immunity * * *”
Repeating, Campbell Bldg. Co. v. State Road Comm., 1937, supra, 95 Utah at pages 249, 252, 70 P.2d at page 861, said:
“This action may not be maintained unless the state has, through legislative or constitutional action, given consent to be sued. * * * and * when there is statutory consent to sue, the statute is the measure of the power to sue.”
In State v. Tedesco, 1955, supra, 4 Utah 2d at page 38, 286 P.2d at page 789, we continued that:
“* * * the defendant could not sue the sovereign for the damages claimed here, and the State‘s defense of sovereign immunity is well taken * * *”
In Bingham v. Board of Education, 1950, 118 Utah 582, 223 P.2d 432, where a child
In a similar case, Hjorth v. Whittenburg, 1952, 121 Utah 324, 330, 241 P.2d 907, 909, where the grade was raised four feet, the doctrine of sovereign immunity espoused by us clearly was enunciated, and contentions urged here equally were answered there in a pronouncement by Mr. Justice Crockett:
“The argument of plaintiffs’ counsel against the injustice to his clients of sovereign immunity is eloquent and persuasive. The remedy is not to be found in imposing an unreasonable and arbitrary burden upon these public officials. This phase of our law is well established and of long standing. If it is to be changed, that must come through the sovereign power of this commonwealth, the people, speaking through the legislature.”
He also pointed out that one may not be entirely without redress since he could seek legislative relief under the statutes, given a proper case.
It is not what one might like to do in cases where damage results from a warranted exercise of the police power, but to what extent we are bound under existing law.
Reversed with instructions to grant the motion to dismiss. No costs awarded.
CROCKETT, C. J., and CALLISTER, J., concur.
MCDONOUGH, J., concurs in the result.
WADE, Justice (dissenting).
I dissent. There are many reasons why I think this decision is wrong: (1) It may cause grave injustice to plaintiffs. (2) It is contrary to
(1) Plaintiffs’ complaint alleges that they were the owners of all of the land in Upland Terrace. They further allege that said land abuts on the north side of 3900 South Street, which, before the defendants changed the road grade, was the same
It is not unreasonable that such change in the level of the adjoining street might cause substantial damages to plaintiffs’ property. It has long been recognized in this State that such damages are compensable.1 If the State had needed an additional narrow strip of plaintiffs’ ground in order to make the improvements which it has made, our eminent domain statute would require it to institute a condemnation proceeding in which the jury would be required to assess the resulting damage to plaintiffs’ land, including the damages from lowering the level of the street. Yet under this decision, regardless of how great the damages which the change in the grade of the street might cause the plaintiffs, they have no remedy.
(2) The majority decision in this case is directly contrary to
(3) The holding of the prevailing opinion is contrary to our previous decisions which it does not purport to overrule:
Webber v. Salt Lake City, 1911, 40 Utah 221, 120 P. 503, 504, 37 L.R.A.,N.S., 1115, was an action to recover damages to abutting property from a change in the grade of a street. A statute expressly authorized such action with a limitation statute requiring that such action be commenced within one year. The action was commenced after the year had expired and it was claimed that the action was not maintainable. We quoted
Also in State by State Road Commission v. Fourth District Court the State sought to enjoin further proceedings in the trial of another action pending in that court. The plaintiffs in the pending action were abutting landowners to a public highway on which the State proposed to construct a viaduct. They sought to enjoin such construction until they were compensated for the damages to their abutting lands which would result from such construction, or until eminent domain proceedings were instituted. We held that the plaintiffs in the pending action were entitled to the injunctive relief sought against the members of the State Road Commission and the construction contractor. In so holding we said:
“We think it is clear that the framers of the Constitution did not intend to give the rights granted by section 22, and then leave the citizen powerless to enforce such rights. * * * (94 Utah 397, 78 P.2d 508)
* * * * * * * * * * *
“The State Road Commission is * * * an agency of the State, and suit against it is suit against the State. Suit against the State cannot be maintained without its consent, and that consent is not ordinarily implied. It
may be argued that by adopting the provisions of section 22 of article 1 of the Constitution, the State has impliedly granted consent to be sued in the case of a taking or damaging of private property for state use without compensation. Such a rule has been declared in at least one jurisdiction, Chick Springs Water Co. v. State Highway Dept., 159 S.C. 481, 157 S.E. 842. * * * (94 Utah 398, 78 P.2d 508) “We think if a case arises where there is no other method of enforcing a constitutional right except by suit against the State, then it must be considered that the State has given its consent to be sued in such a case. In this case, however, we hold that the Road Commissioners individually may be enjoined from proceeding in a manner forbidden by the Constitution—and that it is therefore unnecessary to permit suit against the State * * *” (94 Utah 399, 78 P.2d 509)
The only purpose or effect of that decision was to enjoin the State from proceeding with the viaduct project without arranging to compensate the abutting landowners for the damage from such public use of that property. Further, we approved the holding in the Chick Springs Water Company case by stating that if there was no other method of enforcing that constitutional right except by a direct suit against the State, such consent would be implied. There, we approved the method of enforcing this constitutional provision claimed in that action. Direct recovery of damages for public use of private property was not sought in that action against the State, but to make sure that the decision could not be misunderstood, it was pointed out that where there is no other way to obtain such relief other than by direct suit, the State had by implication given its consent thereto. Under the prevailing opinion there is no other way in the present case to recover just compensation for the damage to plaintiffs’ property. So that holding is contrary to the present decision, which denies the right of a direct suit against the State although it has conclusively precluded any other method of obtaining such relief.
(4) In none of the Utah cases cited in the prevailing opinion was the question of whether
Before discussing these cases, I will try to clarify my position because Mr. Justice Henriod in Note 9 in the Springville Banking Co. case seems to have misconceived my meaning. I do not now nor have I ever advocated the complete elimination of the sovereign immunity doctrine, either by
In Wilkinson v. State,7 a landowner sued the State, the State Road Commission, its individual members and the State Engineer and his assistant for damages to his land from a flood, and the enlargement of an irrigation canal and diversion of some waters from their nature course. The trial court awarded damages to plaintiff purportedly not against the State, but directed payment from the State Reclamation Funds. This court reversed that award, holding that the injuries were accidental, but that there was no pleading or proof of negligence for the flood was so unusually large that the injuries were unavoidable. It was further held that this award was in fact against the State, that the State cannot be sued without its consent, and there was no statutory or constitutional provision consenting to such suit. No mention was made of
Most of the other cases cited in the prevailing opinion also have no bearing on our problem. Thus, we allowed a suit under statutory consent by a road construction contractor against the State Road Commission for damages for breach of a contract,9 but we denied a suit for a child against the school board to recover damages from personal injury through negligently maintaining an incinerator on the school property;10 we denied the right of an abutting landowner to recover from the individual members of the State Road Com-
(5) In my opinion the prevailing opinion is contrary to the great weight of authority and better reasoning. I have extensively set forth my views on this question in my dissent in the Springville Banking Company case,15 which I will not repeat here.
(6) After extensive research on this problem I have yet to learn of one good reason why we should revert to the sovereign immunity doctrine in view of this constitutional provision. This is especially true in view of our previous positive decision to the contrary. Under the present decision I think the people of this State are in great need of a legislative enactment allowing such a suit against the State, and of a liberalization of the law in general where the doctrine of sovereign immunity applies. The need for such enactment is the same as the need for the eminent domain statute was before its enactment, except that since the enactment of the eminent domain statute, the problem does not arise so often. However, in cases where the State can get possession of private property, or can damage it for public use without resort to condemnation under the eminent domain statute, the damage and injustice to the private individual is just as great as it would be if the State could take private property by condemnation under the eminent domain statute for public use without just compensation. I realize and am thankful that some of the harshness and injustice of this type of holding may be alleviated by an application to the State Board of Examiners for