ON MOTION FOR REHEARING. Appellants contend that the judgment has been reversed and the cause remanded without any express ruling on appellants' contention that the court was without jurisdiction "to entertain this action against the state without the consent of the state to be sued." Appellants say the point was only inferentially ruled. We ruled that respondent (plaintiff) was not entitled to recover in the present action because the contract sued on was void and respondent has no rights thereunder.
[7] Appellants insist that no provision has been made by statutory enactment authorizing any of the defendants to be sued as representatives of the state. Reliance is placed on Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168, 1173, where the court said: " The courts of this state have consistently held that, absent consent of the state, its agencies cannot be sued in damages from whatever source caused, except when acting in a private or proprietary capacity as was the case in Hannon v. St. Louis County, supra. . . . It is the *Page 362 prerogative of the state to determine when suit may be maintained against it or its agencies and when not." Appellants further cite Sec. 9306, R.S. 1939 and Chapter 105, R.S. 1939, and insist that there is no authorization of any suits against the board of managers of the eleemosynary institutions, the hospital steward, or the state purchasing agent. It is insisted that the state has not assumed liability for the acts of the appellants (defendants) upon which the judgment was based and, since it has not "granted authority to be sued through officers such as the defendants herein, it is not liable under the lease contract sued on." There is no contention that the Board of Managers of the State Eleemosynary Institutions is not a quasi-corporate body, having an entity apart from the members thereof and entitled to sue as such. Sec. 9306, R.S. 1939. See John O'Brien Boiler Works Co. v. Third National Bank, 282 Mo. 670, 222 S.W. 788; Am. Fire Alarm Co. v. Board of Police Commissioners of Kansas City, 285 Mo. 581, 227 S.W. [608] 114. The authorities cited by appellants deal particularly with the liability of the state for torts of its officers and agents. 59 C.J. 194, Sec. 50; Bush v. State Highway Commission, 329 Mo. 843, 46 S.W.2d 854; Broyles v. State Highway Commission, (Mo. App.), 48 S.W.2d 78. However, the present action is not in tort, but for breach of an alleged lease contract, a proprietary matter. The case of Nacy v. Le Page,341 Mo. 1039, 111 S.W.2d 25, wherein it was held that the state treasurer could not be required to submit to a legal writ of garnishment, is not relied on by appellants.
The contention that the action is against the state and that no authority has been granted to sue the state is presented on this record by the joint demurrer of all of the appellants. If it was properly overruled as to any one, it was properly overruled as to all. We hold that the demurrer was properly overruled on this issue in so far as the Board of Managers of the State Eleemosynary Institutions was concerned, since clearly the Board was not entitled to the immunity against suit enjoyed by the sovereign State. State ex rel. Highway Commission v. Bates,317 Mo. 696, 700, 296 S.W. 418, 420. It is unnecessary to rule the issue as to the other appellants.
[8] Appellants further contend that any judgment which may be recovered by respondent "on his new theory . . . would be a mere empty right completely unenforceable against the state and incapable of being paid out of any funds of the State, now appropriated, or which might be hereafter appropriated by the General Assembly." The theory advanced by appellants is that any obligation arising by reason of the alleged landlord and tenant relationship or tenancy and from year to year and the facts, to wit the entry, possession, use and payment of rent on the described premises under the void lease contract is a claim "created against the State" under an *Page 363 "agreement or contract made without express authority of law." The matter presented is not before us on the record and need not be ruled.
The motion for a rehearing is overruled. Bradley and VanOsdol, CC., concur.