This Action Is Not a Suit Against the State of Montana.
Counsel for appellants have submitted a lengthy brief citing many cases on the point that a state cannot be sued without its consent. In fact, we believe all the authorities cited in appellants' brief relate only to this general question. All of this argument is beside the point until it can be shown that the state has authorized defendants to do what they assumed to do.
In the case at bar it is alleged that the defendants, in violation of the Constitution of the United States and the Constitution of Montana, and the laws of Montana, seized and confiscated plaintiff's shotgun, and by reason thereof damaged plaintiff in the sum of $50.00, in addition to holding his shotgun.
The distinction from and qualification of the rule relied upon by counsel for appellants is stated in 59 C.J., p. 310, Sec. 465:
"For Unauthorized and Illegal Acts. As is sometimes pointed out in the cases, suits, such as those mentioned in the preceding section, wherein it is sought to compel defendant officially to perform an obligation, or refrain from action, which is that of the state in its political capacity, are clearly distinguishable from suits against officers or agents personally, because, while claiming to act officially, they have committed or they threaten to commit wrong or injury to the person or property of plaintiff, either without right and authority or under color of an unconstitutional statute. Although defendant may assert that he acted officially, and on behalf of the state, a suit of this latter class is not a suit against the state, whether it be brought to recover property wrongfully taken or held by defendant on behalf of the state; to recover damages; for an injunction; or to compel an officer to obviate the effect of an illegal act."
This distinction is clearly pointed out in the case of In re *Page 108 State of N.Y., 255 U.S. 490, at p. 500, 65 L.Ed. at p. 1062, cited on p. 26 of appellants' brief as 225 U.S. 490.
In United States v. McCallum et al, as State Board of Harbor Commissioners, 281 Fed. 834, the defendants were sued to recover penalties claimed for violation of the Federal Safety Appliance Act. In sustaining such action against such officers, the court said:
"But the action is one purely in tort, to hold the defendant responsible for wrongful acts committed in violation of a federal statute, and not in pursuance of any authorization or attempted authorization of the state. Such an action is not one against the state, nor one for which the state could in any event be held liable. The state could not, if it would, authorize or justify the commission of the tortious acts complained of (Hopkins v. Clemson Agricultural College, 221 U.S. 626, 31 Sup. Ct. 654,55 L.Ed. 890, 35 L.R.S. (n.s.) 243); and it will not therefore be regarded as standing behind its officers in the commission of such acts (Denning v. State, 123 Cal. 316, 55 P. 1000; Melvin v. State, 121 Cal. 16, 53 P. 416.)"
This case was affirmed and this point discussed in McCallum v. United States, 298 Fed. 373 (9th Cir.) and Writ of Certiorari denied in 266 U.S. 606, 69 L.Ed. 464.
In Hopkins v. Clemson Agricultural College, 221 U.S. 636,55 L.Ed. 890, cited in the above quotation, the plaintiff sued for $8,000.00 damages to his land because of the acts of the trustees of the State College in trespassing on his property. The defense was that it was a suit against the state and could not be maintained. In holding that the suit could be maintained to recover such damages the court said:
"But a void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection. Whoever seeks to enforce unconstitutional statutes, or to justify under them, or to obtain immunity through them, fails in his defense and in his claim of exemption from suit."
In State v. Superior Court, 46 P.2d Wash. 1046, the court said: *Page 109
"An action cannot be maintained against the state without its consent, and when the state does so consent, it may fix the place in which it may be sued. State ex rel. Pierce County v. Superior Court, 86 Wn. 685, 151 P. 108. As to these principles, there is no dispute.
"The question thus narrows itself to this: Is the action which was brought in the superior court an action against the state? If it is, then it can be maintained only in Thurston county, and the motion to quash the writ should have been granted. If it is not an action against the state, then the rule of immunity does not apply.
"It is now settled beyond question that a suit against state officers in which an attack is made against the constitutionality of a state statute is not a suit against the state. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714.)"
In Ex Parte Tyler, 149 U.S. 164, 37 L.Ed. 689, the court said:
"The subject was but recently considered in Pennoyer v. McConnaughy, 140 U.S. 1 (35:363), in which Mr. Justice Lamar delivered the opinion of the court, cites and reviews a large number of cases. The result was correctly stated to be that where a suit is brought against defendants who claim to act as officers of a state and, under color of an unconstitutional statute, commit acts of wrong and injury to the property of the plaintiff, to recover money or property in their hands unlawfully taken by them in behalf of the state; or, for compensation for damages; or, in a proper case, for an injunction to prevent such wrong and injury; or, for a mandamus in a like case to enforce the performance of a plain legal duty, purely ministerial; such suit is not, within the meaning of the amendment an action against the state." This is an action of claim and delivery. It is captioned, "William Heiser, Plaintiff, v. J.W. Severy, William C. Carpenter, A.C. Grande, Elmer Johnson and E.G. Vedova, as and being the duly appointed, qualified and acting Montana *Page 110 State Fish and Game Commission, J.S. McFarland, as Montana State Fish and Game Warden, and Jack Thompson, as Deputy Game Warden, Defendants."
The Attorney General of the state of Montana appeared for defendants and filed demurrers on their behalf. The demurrers were overruled and time was granted for the defendants to answer but they declined to plead further and their default was entered followed by judgment for plaintiff. This appeal is from that judgment.
Plaintiff's right to maintain this action depends upon whether the action is against the state of Montana or against individuals.
The complaint alleges: That plaintiff, a citizen of the United States and of the State of Montana, procured a hunting license for the year 1942 from the Montana State Fish and Game Commission; that on November 15, 1942, he owned and possessed a shotgun of the value of $50 with which he was hunting game birds in a field in Broadwater county, at which time and place "the defendant Jack Thompson, as a deputy game warden for the State of Montana, acting under and pursuant to orders from the other defendants above named, and all of them, did wrongfully * * * seize and take said chattel from the possession of this plaintiff, with the intent and purpose of confiscating the same"; that "thereafter the chattel was turned over to and came into the possession of the other defendants above named, as such officers, and that before the commencement of this action, to-wit: on or about the 17th day of November 1942, demand was made upon the defendant J.S. McFarland, as Montana State Fish and Game Warden, that he deliver said chattel over to plaintiff herein; that said defendant refused so to do and on the contrary still, unjustly and unlawfully, detains the same from this plaintiff" and that "plaintiff has been damaged by said unlawful detainer of said property in the sum of $50."
The complaint further alleges that the seizure and taking of the gun from the possession of the plaintiff was "wrongful and unlawful, and in violation of the Fifth Amendment, and Sec. 1 *Page 111 of the Fourteenth Amendment of the Constitution of the United States, and in violation of Sec. 14 of Article III of the Constitution of the State of Montana, and of the laws of Montana"; and "that said chattel was not seized or taken for tax, assessment, or fine pursuant to statute, or seized under an execution of attachment against the property of the plaintiff nor held as a fine or forfeiture."
Other than above stated, there are no allegations in the[1] complaint as to the facts which led up to or occasioned the alleged seizure of plaintiff's gun. In determining the correctness of the trial court's ruling on the demurrers, the only facts that stand admitted are those properly pleaded in the complaint. On this appeal the court is limited to the ultimate facts pleaded and we may not go beyond the allegations of the complaint for the facts of the case.
The prayer is for "judgment against the defendants herein as such officers for recovery of the possession of said chattel or for the sum of $50.00, the value thereof, in case delivery cannot be had, together with $50.00 damages and for costs of this action."
It is elementary that a state cannot be sued in its own courts [2] without its consent or be compelled against its will to discharge any obligation. Langford v. King, 1 Mont. 33; Fisk v. Cuthbert, 2 Mont. 593; State ex rel. Journal Pub. Co. v. Kenney,9 Mont. 389, 24 P. 96; State ex rel. Robert Mitchell Furniture Co. v. Toole, 26 Mont. 22, 66 P. 496, 91 Am. St. Rep. 386, 55 L.R.A. 644; Mills v. Stewart, 76 Mont. 429, 247 P. 332, 47 A.L.R. 424; Johnson v. City of Billings, 101 Mont. 462, 54 P.2d 579; State ex rel. Freebourn v. Yellowstone County,108 Mont. 21, 88 P.2d 6; Tongue River and Yellowstone River Irr. Dist. v. Hyslop et al, 109 Mont. 190, 96 P.2d 273; State v. Rathbone, 110 Mont. 225, 100 P.2d 86.
The state's immunity from suit extends to the boards, commissioners and agencies through which the state must act. See Berman v. Minnesota State Agricultural Society, 93 Minn. 125, *Page 112 100 N.W. 732; Wilbrecht v. Babcock, 179 Minn. 263, 228 N.W. 916; Linder v. Foster, 209 Minn. 43, 295 N.W. 299; Gottschalck v. Shepperd, 65 N.D. 544, 260 N.W. 573; Nelson v. McKenzie-Hague Co., 192 Minn. 180, 256 N.W. 96, 97 A.L.R. 196; Ahern v. Iowa State Agricultural Society, 91 Iowa 97, 58 N.W. 1092, 24 L.R.A. 655; De Votie v. Iowa State Fair Board, 216 Iowa 281,249 N.W. 429; De Votie v. Cameron, 221 Iowa 354, 265 N.W. 637; Lord Polk Chemical Co. v. State Board of Agriculture, 111 N.C. 135,15 S.E. 1032; 46 C.J. 1043; 23 Am. Eng. Ency. 375; Throop. Public Officers, Secs. 713, 715, 736, Mechem Public Officers, Sec. 613.
"The state may and must commit the discharge of its sovereign political functions to agencies selected by it for that purpose. Such agencies, while engaged exclusively in the discharge of such public duties, do not act in any private capacity, but stand in the place of the state, and exercise its political authority." Berman v. Minnesota State Agricultural Society, supra.
In Johnson v. City of Billings, 101 Mont. 462,54 P.2d 579, 580, this court said that "as the sovereign cannot be sued without its consent, its arms or branches are likewise immune, unless liability is specifically imposed upon them by statute."
"It is fundamental that a state cannot be sued in its own courts without its consent, and it is a further rule that a litigant will not be permitted to evade the general rule by bringing action against the servants or agents of the state to enforce satisfaction for claims." Wilson v. Louisiana Purchase Exposition Commission, 133 Iowa 586, 110 N.W. 1045, 1046, 119 Am. St. Rep. 646.
Wilbrecht v. Babcock et al., supra, was a suit against C.M. Babcock as State Commissioner of Highways and another. A demurrer was interposed on the grounds that the complaint failed to state a cause of action against the defendant Babcock in his official capacity as commissioner of highways. This contention was sustained by the supreme court of Minnesota which held that it was error for the trial court to overrule the demurrer. *Page 113
Looney v. Stryker et al., 31 N.M. 557, 249 P. 112, 113, 50 A.L.R. 1404, was a suit against the members of the State Highway Commission. In that case the court said: "The allegations of appellant's complaint would bring him within the exceptions, were this a controversy solely between individuals, but here we have a suit against state officials which, in effect, is a suit against the state. The complaint alleges that `this action is instituted against the above-named officials as such officials, and not in their individual capacity.' Mr. Pomeroy, in his work, supra, at section 1749, says: `* * * In determining whether the state is a party, the courts will look beyond the parties to the record and decide according to the real effect. "Where it is manifest upon the face of the record that the defendants have no individual interest in the controversy, and that the relief sought against them is only in their official capacity as representatives of the state, which alone is to be affected by the judgment or decree, the question then arising whether the suit is not substantially a suit against the state is one of jurisdiction."'"
In Omes v. Department of Conservation of Louisiana et al., La. App., 187 So. 342, 343, the court said: "That the State of Louisiana or a political subdivision thereof cannot be sued, ex delicto, does not admit of argument and it seems to us equally clear that the action of the agents and employees of the Department of Conservation in destroying plaintiff's shrimp was a delict or tort. Plaintiff's counsel in referring to this action on the part of the agents of the Conservation Department characterizes it as `wilful and malicious, premeditated and not in the exercise of an ordinary governmental function'. The unauthorized acts of a State Official are his individual acts for which he alone and not the State is responsible."
Sayers v. Bullar et al., 180 Va. 222, 22 S.E.2d 9, was an action for damages against employees of the state for tort arising from work being done by them for the state. The appellate court held that the immunity of the state from actions for tort extends to the state's agents and employees where they are acting legally within the scope of their employment. Of course the rule is *Page 114 otherwise if they exceed their authority and go beyond the sphere of their employment or if they step aside from it. In such cases they no longer enjoy such immunity and become individually liable for their wrongful acts.
Great Northern Life Insurance Co. v. Read, 322 U.S. 47,64 S.Ct. 873, 88 L.Ed. 428, was a suit brought against a state official as such through proceedings authorized by statute to compel such official to carry out, with state funds, the state's agreement to reimburse moneys illegally exacted under color or the state's power to tax. The court held that the suit was one against the state and clearly distinguishable from actions against a tax collector to recover a personal judgment for money wrongfully collected under color of state law.
Ford Motor Company v. Department of Treasury of the State of Indiana et al., 1945, 65 S.Ct. 347, 350, 89 L.Ed. 389, an action brought against state officials as such, holds that such suit was a suit against the state which requires its consent. For the want of such consent, the United States Supreme Court ordered the complaint dismissed, saying in its opinion:
"Where relief is sought under general law from wrongful acts of state officials, the sovereign's immunity under the Eleventh Amendment does not extend to wrongful individual action, and the citizen is allowed a remedy against the wrongdoer personally. Atchison, T. S.F.R. Co. v. O'Connor, 223 U.S. 280,32 S.Ct. 216, 56 L.Ed. 436, Ann. Cas. 1913C, 1050; cf. Matthews v. Rodgers, 284 U.S. 521, 528, 52 S.Ct. 217, 220, 76 L.Ed. 447. Where, however, an action is authorized by statute against a state officer in his official capacity and constituting an action against the state, the Eleventh Amendment operates to bar suit except in so far as the statute waives state immunity from suit. Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140; Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873 [88 L.Ed. 428].
"We are of the opinion that petitioner's suit in the instant case against the department and the individuals as the board constitutes an action against the State of Indiana. * * * It is *Page 115 true the petitioner in the present proceeding joined the Governor, Treasurer and Auditor of the state as defendants, who `together constitute the Board of Department of Treasury of the State of Indiana.' But, they were joined as the collective representatives of the state, not as individuals against whom a personal judgment is sought. The petitioner did not assert any claim to a personal judgment against these individuals for the contested tax payments. The petitioner's claim is for a `refund,' not for the imposition of personal liability on individual defendants for sums illegally exacted. We have previously held that the nature of a suit as one against the state is to be determined by the essential nature and effect of the proceeding. Ex parte Ayers, 123 U.S. 433, 490, 499, 8 S.Ct. 164, 174, 175,31 L.Ed. 216; Ex parte State of New York, 256 U.S. 490, 500,41 S.Ct. 588, 590, 65 L.Ed. 1057; Worcester County Trust Co. v. Riley, 302 U.S. 292, 296, 298, 58 S.Ct. 185, 186, 187,82 L.Ed. 268. And when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants. Smith v. Reeves, supra; Great Northern Life Insurance Co. v. Read, supra. We are of the opinion, therefore, that the present proceeding was brought in reliance on Sec. 64-2614(a) and is a suit against the state."
The statutory action of claim and delivery is founded upon a[3] tortious detention of personal property. It lies to recover the possession of chattels wrongfully detained. It partakes of the nature of the common-law action of replevin in that it contemplates the recovery of specific property claimed, when possible. It also partakes of the nature of the common-law action of trover in that it allows for the recovery of the value of the property claimed where such property is not or can not be returned. The judgment is in the alternative and provides for the return of the chattel or, in the event it is not returned, for its value and also for damages for its tortious detention. Claim and delivery, like trover or replevin, is an action ex delicto. *Page 116
The judgment in the instant case provides that the plaintiff have and recover from the defendants the possession of the shotgun, "and in case delivery of said gun cannot be had, then the plaintiff have and recover of the defendants the sum of Fifty Dollars ($50.00), the value of said gun, and that the plaintiff also have and recover damages in the sum of Fifty Dollars ($50.00) against said defendants for the retention of said property by them, together with his costs herein taxed at Fourteen and 92/100 Dollars ($14.92)."
The defendants were not sued in their individual capacity nor does the plaintiff claim that he has a personal judgment against them. In his brief, plaintiff concedes that the defendants "were sued in their capacity as members of the Commission, rather than as individual citizens." He also states therein that he made certain amendments, by interlineation in the complaint, "to more definitely show that the defendants were sued in their official capacity, as members of said Commission, rather than as individuals." In his prayer, "plaintiff prays judgment against the defendants herein as such officers." He contends that judgment for damages and costs which he obtained may be satisfied by payment out of moneys deposited in the state treasury to the credit of the state fish and game fund, asserting that since such moneys come from such special fund rather than out of the state general fund "any damages assessed against the Fish and Game Commission and the members thereof would not become a liability against the state funds." Plaintiff urges "that a suit on a claim for damages, due to the wrongful acts of the Fish and Game Commission, or the members thereof, or its appointees, in attempting to perform their duties under the Fish and Game Commission Law in an unconstitutional manner, is not a suit against the state requiring its consent, as the state's assets, or its general fund, cannot be reached in the collection of such a claim, if established."
We find no merit in these contentions other than in the statement that the state's assets may not be applied to the payment of plaintiff's claim. *Page 117
The ownership of the wild animals of the state is in the[4, 5] state. The state holds such ownership in its sovereign capacity for the use and benefit of the people generally. The wild life of the state is one of its most prized and valuable assets. To conserve, protect and propagate such wild life the state has created the Montana State Fish and Game Commission which is a state agency under the control of the state. By statute the state has charged the commission with "supervision over all the wild life, fish, game, and non-game birds, and water-fowl, and the game, and fur-bearing animals of the State." Chapter 157, Laws of 1941, section 3653. To finance the work of the commission and enable it to function, the state has provided for the creation of the "state fish and game fund" into which is paid moneys received from the sale of hunting and fishing licenses or permits, from the sale of seized game or hides, from fines and damages collected for violations of the fish and game laws of this state and from the appropriation made by the state legislature for the use and purposes of the commission. The moneys derived from such sources and paid into the state treasury all belong to and are the property of the state, and they may not lawfully be used to pay for the torts committed by officers, or employees of the commission, for which such officers or employees are personally liable as individual wrongdoers. Such moneys may not be paid out of the state treasury except for the purposes and in the manner authorized by law. None of it may be disbursed by the commission except "pursuant to existing laws." Section 3669, Revised Codes.
Section 3670, Revised Codes, in part provides: "All sums collected or received from the sale of hunting and fishing licenses or permits, from the sale of seized game or hides, or from fines, damages collected for violations of the fish and game laws of this state, from the appropriations, or received by the commission from any other source, shall be turned over to the state treasurer, and placed by him in a special fund known and designated as the `state fish and game fund,' * * *."
Section 3672, Revised Codes, in part provides: "All salaries, *Page 118 per diem, expenses and claims incurred by the state fish and game commission, or any person appointed or employed by them, shall be allowed by the state board of examiners, upon the presentation of proper vouchers therefor, and shall be paid out of the state fish and game funds, upon warrants properly drawn thereon; * * *."
To obtain moneys from the state fish and game fund to pay plaintiff's claim based on his judgment would require presentation to and allowance of the claim by the state board of examiners and a proper state warrant drawn on the state fish and game fund therefor (Section 3672, Revised Codes), hence it is idle to suggest that the moneys in the state fish and game fund are not an asset of the state or that the present suit is not an action against the state.
"The rule is well settled that the state, unless it has[6] assumed such liability is not liable for injuries arising from the * * * tortious acts or conduct of any of its officers, agents, or servants, committed in the performance of their duties." 49 Am. Jur. Sec. 76, p. 288, citing Mills v. Stewart,76 Mont. 429, 247 P. 332, 47 A.L.R. 424.
"Suits against state officers to recover, or direct the disposition of, property in the possession of the state are generally regarded as suits against the state." 49 Am. Jur., Sec. 93, p. 307.
This is an action ex delicto against the state to which the state has not consented. The state is immune from such suits and the complaint fails to state a cause of action. It follows therefore that the trial court erred in overruling the demurrers. Wilbrecht v. Babcock et al., supra; Looney v. Stryker et al., supra; Omes v. Department of Conservation of Louisiana et al., supra; Sayers v. Bullar et al., supra; Ford Motor Co. v. Department of Treasury of the State of Indiana et al., supra.
The judgment is reversed and the cause remanded with directions to sustain the demurrers and dismiss the complaint.
Mr. Chief Justice Johnson and Associate Justice Cheadle, concur. *Page 119