Hall v. State, 79 Miss. 38

Hall v. State

79 Miss. 38 | Miss. | 1901

Teeral, J.,

delivered the opinion of the court.

Appellant brought suit against the State of Mississippi for $6,000 damages alleged to have been inflicted upon his plantation in Sharkey county during the years 1897, 1898 and 1899, *41rented by him for that time to the board of control of the state penitentiary, and which said damages were alleged to have been inflicted upon said plantation by reason of the breach of said contract of lease that the property should be used and cultivated in a reasonable and careful manner. A bill of particulars of said damages is attached to the declaration. A demurrer to the declaration was sustained, and the plaintiff below appeals.

It is too well settled to need -citation of authority that a sovereign state cannot be sued except by its consent. The general rule is not questioned by the learned counsel of the appellant, but he insists such consent is found in § 4248, code of 1892. That section reads as follows: “§4248. When the State May be Sued. — Any person having a claim against the State of Mississippi, after demand made of the auditor of public accounts therefor and his refusal to issue a warrant on the treasurer in payment of such claim, may, where it is not otherwise provided, bring suit therefor against the state, in the court having jurisdiction of the subject-matter which holds its session at the seat of government.” The statute must be taken as a whole, and construed so as to give every part of it.reasonable effect. The clause that a demand must first be made on the auditor of public accounts can, it seems to us, have no effect unless the claim be one which the law prescribes for audition and allowance by him. While the declaration here alleges that his claim has been presented to the auditor of public accounts for allowance, and that he has refused to issue a warrant thereon, yet it is not insisted that the auditor failed of any duty in respect to this claim. It is for unliquidated damages arising from bad husbandry on' a contract of lease, and needs evidence and counter-evidence for its adj ustment, and the adjudication of some tribunal for fixing the same. It is not like the ordinary claims upon which the auditor may pass, such as salaries, or fees of officers, or fixed sums under express contracts; but it is of a wholly different nature. And so it is *42contended that the presentation of it to the auditor of public accounts is a matter of mere form; not in the expectation that he will issue upon it, but as the mere incident to the bringing of a suit upon it. But we think this clause of the statute is a substantial part of it, and fundamental in relation to suits under it. . If it is to have any operation in the interpretation of the statute, then the auditor of public accounts is required to examine and adjust the claim, and it is upon his refusal so to do that a suit may be brought against the state. The auditor could not audit this claim, and it is not insisted in argument that he could do so ; and, because it is not a claim which he could audit, we think it is not capable of supporting a suit. In Whitney v. State, 52 Miss., 732, a suit was sustained against the state, but the claim there was one for which the act authorizing its creation expressly required the auditor to issue his warrant.

Affirmed.