*1 168
in his have such sold possession, outcry at property public . .” . (Emphasis supplied). in Clark the Fourth Court
Similarly, Circuit Appeals Pou, Co., 20 at Bros. & Inc. v. F. 74 76 stated : (2d) “The or worker lien artisan given upon property worked, due which he amount him for work done, law, established in common but clearly possession of the lien. is essential to the Surrender posses- property sion and of credit to the owner of the the giving property lien.” destroyed Headden, E.
See also 188 S. C. 199 S. Bouknight 35d; 61A Motor 8 Bailments (1938); § C.J.S. C.J.S. Vehicles 747(1). §
As lien when it prior appellant’s expired relinquished vehicle, entitled judg- possession respondent ment as a matter of law.
Affirmed. Littlejohn, Gregory,
Lewis, Rhodes C. J., JJ., concur. INC., COMPANY, Respondent, v. SOUTH CONSTRUCTION
KINSEY HEALTH, Appel- MENTAL OF DEPARTMENT CAROLINA lant. COMPANY, Respondent, v. SOUTH
RELIANCE INSURANCE HEALTH, MENTAL Appel- DEPARTMENT OF CAROLINA lant. 900) (249 (2d) S. E. *2 A McLeod Asst. Gen. Attys. Daniel R. Gen.
Atty. Columbia, Kaminski, Jr., Lewis Nathan Camden for appellant. Columbia, Quinn, respondent.
Michael H. December
Per Curiam: Company, Construction Kinsey Plaintiffs-respondents, Company (Reliance), and Reliance Insurance Inc. (Kinsey) De- Carolina the South instituted actions against separate re- seeking of Mental Health Department), (the partment The De- contract. of building for an breach covery alleged their order overruling from a lower court’s partment appeals of contract causes breach demurrers Department’s identical, the cases are issues involved actions. Since the of this appeal. were consolidated purposes *3 6, and Con- the Phillips On November 1972 Department sum con- entered into a lump struction Company (Phillips) the construction of of $2,665,507.00 in the amount tract in Richland County, and addiction center an alcoholic drug Reliance executed and deliv- Subsequently, South Carolina. bond labor a and a ered to the Department performance by was later assigned Phillips bond. The contract material Kin- of the Department. the written consent to with Kinsey, until December contractor remained the prime sey Thereafter, 1975, Reliance and the Department in February memorandum, Reliance would under- that agreed written by work, Reliance nominated Kinsey the take to complete reason These actions resulted by its obligations. to perform work as the of Kinsey refusal accept of the Department’s complete. issue in this In- are at appeal. of demurrer
Two grounds be sus- its demurrer should argues the Department itially Carolina, of an of the State South agency tained because ex contractu. the Secondly, from suits immunity it enjoys should have been sustained demurrers its asserts Department
171 III, the South of that Article on the ground suits contracts dam- Carolina Constitution precludes the contract above ages price. of immunity sovereign
With to the respect question has often held that the State cannot this Court its v. Commission- Lowry sued without consent. See Fund, 141; State v. S. E. ers 25 S. C. Sinking of Corbin, Harris 178 S. C. Fulp, 16 S. C. 533. the that sovereign
S. E. 158 further supports proposition However, ex we in actions contractu. while immunity applies absent a the assertion that waiver concur with appellant’s an cannot maintain an action against individual immunity im- State; do not that a waiver sovereign we agree be obtained from a self-executing can munity only provision enactment. 72 statutory the Constitution express States, Territories, and Am. Sec- Dependencies, (2d), Jur. an statement of the con- tion contains apt principles the case at bar. trolling
. . . has statute authorized legislature [W]here contracts, State, to enter into certain State entering contract, consents to-be sued if it thereby such breaches to the the other contracting party. contract damage contract, the benefits Thus, when a State secures itself of a it liabilities. corresponding assumes implicitly that the may
Our conclusion
waive
impliedly
its
and consent to be sued for
immunity
sovereign
breaches of its contractual
alleged
responsibilities
County
in the case of
v. State
finds support
Chesterfield
There,
181 S. C.
sion to and fuel. gasoline contracts purchase Suppose such are made commission and it purchases refuses to for the articles Will it be neglects pay purchased. con- that it tended cannot be sued to the contract pur- enforce chase consent the state? except by We hold that the au- it, to make contract carries with thority given neces- to sary implication, authority contract an enforce action at law. County, at supra 187 S. E. Chesterfield at 550. (Emphasis added).
In accordance with our decision in Chesterfield, we hold that supra, wherever the State of South Carolina pursuant statutory enters into authority contract, the State consents valid to be implicitly sued and its to the extent immunity waives of its sovereign contractual hold To otherwise would be to endorse an obligations. ob- contradiction, for it cannot be vious true that the to contract with individuals and retains the yet empowered its avoid Neither the State nor its power obligations. bound, bound, citizens not yet can aby single contract. *5 however, of the contends, Section 2-9-10 that Appellant the exclusive Code Laws available remedy provides is This section as follows: to respondents. rendered or
All claims services supplies payment to shall be to State furnished the State presented Budget forth facts and Control Board by petition, fully setting based, with claim such evidence which such together thereof as the The be filed may require. Board shall petition twenty with the chairman of the Board at least days prior to the of the General Assembly. convening
The Article statute pursuant foregoing adopted 2, states: Section which direct, law, in The General manner may what Assembly claims the State may be established against adjusted.
The that Code Section argument 2-9-10 appellant, places in the exclusive State Control Board jurisdiction Budget claim, provisions overlooks present Article Section 7 of the State which Constitution places in civil and criminal cases in the cir- jurisdiction general in cuit court the following language: court The Circut Court shall be trial with general original cases, in those cases in except civil and criminal jurisdiction courts, exclusive shall be inferior given which jurisdiction serious whether While there is Article question 2 of the Constitution authorizes the General Section jurisdiction to remove of suits against court from the the circuit jurisdiction provided 7, this now issue need not be resolved has Section 15-77-50 Assembly by for the General Code ac- its intent 'that the of civil jurisdiction clearly expressed in circuit This courts. tions the State against placed section states pertient part: of this State are vested with hereby juris-
The circuit courts actions and con- to hear and determine all questions, diction troversies, ., boards, . . commissions affecting and agencies State, of this and officialsof the State in their official capaci- ties in the circuit where such action or question, controversy shall arise.
This section was construed Harrison v. S. C. Tax Com- *6 mission, 261 C. S. E. as S. (2d) recognizing in jurisdiction the circuit court and in venue providing cases in which the doctrine is sovereign immunity inappli- cable. court, therefore,
The circuit has clearly to de- jurisdiction termine action. present our conclusion to the case bar
Applying at we note that the General created Assembly the Department of Mental Health in 1964 and vested it with jurisdic- tion over the State’s alcohol and addiction facilities. drug 44-9-10, See Sections 44-9-20 Code of Laws of South Caro- The lina 1976. board of the governing is au- Department thorized to . . form a in body deed and in law corporate with all the incident to Section 44- powers corporations.” 9-90, Since the as a (1976 Code). Department corporate contract, body statutory authority the contract possesses at issue here clearly authorized law. The State into this entering obligation provided, by implication, the consent to sued for breach necessary any thereof. The next its Department that demurrers argues should been have sustained on the that Article ground III, 30 of the Section South Carolina Constitution suits in contract for above the contract precludes damages III, Section price. as provides pertinent part follows:
The shall General never extra grant compensation, officer, fee or allowance .to any public servant or con- agent, rendered, made, tractor after service or contract nor author- ize claim under any contract payment part payment any not authorized law . . . demurrer,
On an from order this appeal Court’s overruling review is limited stated allegations complaint, Bros., Manos, which are to be Ellett assumed true. Inc. v. 269 S. C. 239 S. E. 75. From our examination (2d) we as cannot a matter complaints, of law that the say claims constitute demands for extra respondent’s compen- sation III, within the of Article proscription make no we determination Accordingly, as to issue at time. present The order of the lower court affirmed.
Littlejohn, J., dissents.
Littlejohn, : (dissenting) Justice I dissent respectfully and would reverse the order of the lower court.
The doctrine of
sovereign immunity
actions on con-
tract has
been
law in
long
recognized
South Carolina.
*7
Suber,
Neal v.
56
S. C.
“. . . The counterclaim is a suit Súber by the state against A be penitentiary. could of judgment paid only out the state’s resources. The state’s resources are under the exclusive juris- diction of the This is no general assembly. on de- hardship citizen fendant. who contracts with Every the agents of the state, such, takes notice as of state’s immunity from a wise one. suit. The rule is The revenues of the state would hindrances, be if be subject they could grievous litigated in the citizen courts of state.” E. by 183 S. at 160. every 176 V, com- constitution is of no
In article of our my view § section, in the majority to the That quoted fort plaintiff. a cause of does not confer a litigant upon opinion, cir- It by merely not authorized law. declares otherwise with . . a trial court original cuit court to general cases, . . .” in and civil criminal jurisdiction Both our law have statutory our constitution and provided this as those for the of claims such involved processing XVII, 2 of the Carolina South present proceeding. § similar version which first appeared Constitution (a XIV, 4) provides: the 1868 as article constitution § direct, law, in what man- by “The may General be established and ad- may ner claims State against justed.” XVI, of Article 4 of
Within ten years adoption § Constitution, the the 1868 exercised its constitu- legislature tional statutes codified by enacting presently prerogative 2-9-50, Laws Code South Carolina 2-9-10 through §§ 2-9-10 provides: (1976).
“All for services claims for rendered payment sup- the State shall be to the State presented furnished to plies Board forth fully Control Budget petition, setting based, such claim is such together the facts whidi with as the Board may require.” evidence thereof County While the case Highway Chesterfield Carolina, South C. S. 187 S. E. Department of interest, not authority is of it is for the position (1936), court taken the lower adopted majority opin- *8 It involve an action “for services rendered or ion. did not In this State.” respond- furnished supplies and seek for services rendered sup- ents to recover payment with the the State to the contract furnished to pursuant plies the exclusive In view 2-9-10 my provides Department. § been demurrer should have sustained. and the remedy Without so stating for all majority opinion, practical abolishes the doctrine of purposes, sovereign immunity relates to contracts in this state. all contracts Substantially made state are by any employee expressly au- impliedly thorized law. unauthorized Only purchases contracts would suit. exempt of claims through
Admittedly, pursuit Budget This is Board is not a practical approach. Control matter to which the attention. might give appropriate legislature has constitutonal reason dignity by If the to sue right to deal with then power § claims is serious doubt. BASS,
Lillian Respondent, C. BASS. Appellant. Marvelin I. (249 E. (2d) 905) S.