I concur in the result announced in the foregoing opinion so far as it affects the right of plaintiff to collect damages. I do so upon the ground that in my opinion the allegation as to damages should have been stricken from the complaint. The allegation was as follows, "That plaintiff has been damaged by the said unlawful detainer of said property in the sum of $50.00." Defendants moved to strike that allegation as a conclusion and not the pleading of any fact. I think that allegation should have been stricken. Section 8689 provides for the measure of damages in case of conversion of personal property. It provides:
"The detriment caused by the wrongful conversion of personal property is presumed to be:
"1. The value of the property at the time of its conversion, with the interest from that time; or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; and,
"2. A fair compensation for the time and money properly expended in pursuit of the property."
The only elements of damages recognized aside from the value of the property are those set forth in paragraph 2 of the statute and these are elements of special damages which can never be recovered unless pleaded as such. Solberg v. Sunburst Oil Gas Co., 73 Mont. 94, 235 P. 761; Campbell v. Post Pub. Co.,94 Mont. 12, 20 P.2d 1063; Brown v. Ind. Pub. Co., 48 Mont. 374,138 P. 258.
I concede the rule that the state cannot be sued without its consent. I do not believe that this action in legal effect so far as it seeks return of the gun alleged to have been unlawfully and wrongfully taken from plaintiff is one against the state of Montana. In determining whether the action is against the state, the courts are not concluded by the parties named of record, but the courts will look to the essential nature of the action and *Page 120 will ascertain what effect, if any, the judgment sought will have upon the rights and interests of the state.
"Generally speaking, it is the nature of the suit or relief demanded which the courts consider in determining whether a suit against a state officer is in fact one against the state within the rule of immunity of the state from suit." 49 Am. Jur., p. 307.
This action is merely against the defendants as state officers. Plaintiff relies upon the rule stated in 59 C.J. 310, as follows: "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."
The same rule is stated in 49 Am. Jur., p. 308, as follows: "An action or suit brought against a state officer in his official capacity is not a suit against a state which is forbidden by law unless express consent of the state is duly given where the action is for relief against statutes claimed to be unconstitutional, or is instituted against such officer to compel performance of a duty required of him by statute. Nor does the immunity of the state from suit relieve an officer of the state from responsibility when he acts tortiously on the rights of an individual, or in excess or violation of his authority, even though he acts or assumes to act under the authority and pursuant to the directions of the state. An action may be maintained against a state officer who unlawfully withholds property of another, or who *Page 121 unlawfully deprives a citizen of his property or prevents his free enjoyment of it. This rule applies where rights are conferred by statute and the officer violates or abuses his authority under the statute to the injury of rights conferred thereby."
In the case of Stockton v. Morris Pierce, 172 Tenn. 197,110 S.W.2d 480, 482, a replevin action, the court pointed out that a suit against state officers attacking the constitutionality of a statute is not a suit against the state and quotes with approval from a prior case the following: "First, to quote from the opinion of Caldwell, J., in Insurance Co. v. Craig [106 Tenn. 621,62 S.W. 155], above cited, `This is not a suit against the state eo nomine, nor is it a suit against an officer of the state in such sense and for such purpose as to be within the inhibition of the statute. It is a suit against the officer of the state, the defendant being that state's official representative, * * * but it is not brought "with a view to reach the state, its treasury, funds, or property," and consequently is not of the inhibited class.' This language is even more directly applicable in the instant case than to the facts of the case in which it was employed. This suit in replevin seeks to recover possession of property of the plaintiffs below to which neither the state nor its employees assert any claim of ownership or of possession, except the right of confiscation."
To the same effect is Century Distilling Co. v. Defenbach,61 Idaho 192, 99 P.2d 56, 59, where the court said: "It is generally held by the courts, both state and federal, that where the action taken or threatened by an officer, is alleged to be in violation of the complainant's rights, either because of a misconstruction or misapplication by the officer of a statute, or on account of the alleged unconstitutionality of the statute, the action is not in fact one against the state but is rather against the individual because of his lack of power and authority to do the thing complained of."
The situation here so far as the question of immunity is concerned is the same as if defendants had been sued in their individual capacities and attempted to defend on the ground that *Page 122 they seized the gun and are holding it as officers of the state. That would not make them immune from suit.
In United States v. Lee, 106 U.S. 196, 1 S. Ct. 240, 257,27 L. Ed. 171, the court said: "This examination of the cases in this court establishes clearly the result: that the proposition that when an individual is sued in regard to property which he holds as officer or agent of the United States, his possession cannot be disturbed when that fact is brought to the attention of the court, has been overruled and denied in every case where it has been necessary to decide it, and that in many others where the record shows that the case as tried below actually and clearly presented that defense, it was neither urged by counsel nor considered by the court here, though, if it had been a good defense, it would have avoided the necessity of a long inquiry into plaintiff's title and of other perplexing questions, and have quickly disposed of the case. And we see no escape from the conclusion that during all this period the court has held the principle to be unsound, and in the class of cases like the present, represented by Wilcox v. Jackson [13 Pet. 498,38 U.S. 498, 10 L. Ed. 264], Brown v. Huger [62 U.S. 305, 21 How. 305,16 L. Ed. 125], and Grisar v. McDowell [73 U.S. 363, 6 Wall 363,18 L. Ed. 863], it was not thought necessary to re-examine a proposition so often and so clearly overruled in previous well-considered decisions." And see Gladding v. Atchison,44 R.I. 69, 115 A. 423, and Sterling v. Constantin, 287 U.S. 378,53 S. Ct. 190, 77 L. Ed. 375.
The limitation upon the immunity rule was well pointed out in State Mineral Lease Commission v. Lawrence, 171 Miss. 442,157 So. 897, 898, where the court said:
"But the rule applies only when the state or its subdivision is actually made a party upon the record, or is actually necessary to be made a party in order to furnish the relief demanded by the suit. It does not apply when the suit is against an officer or agent of the state, and the relief demanded by the suit requires no affirmative official action on the part of the state nor the affirmative discharge of any obligation which belongs to *Page 123 the state in its political capacity, even though the officers or agents who are made defendants disclaim any personal interest in themselves and claim to hold or to act only by virtue of a title of the state and as its agents and servants.
"Thus it will be found, as illustrative of what has been above said, that nearly all the cases, wherein the rule of immunity from suit against the state, or a subdivision thereof, has been applied and upheld, are those which demanded a money judgment, and wherein the discharge of the judgment, if obtained, would require an appropriation or an expenditure therefrom, which being legislative in its character is a province exclusively of the political departments of the state. And in the less frequent number of cases where no money judgment is demanded, and the rule of immunity is still upheld, it will be found in them that the relief demanded would be, nevertheless, to require of the state or its political subdivision the affirmative performance of some asserted obligation, the nature of which, and the process of its discharge, belong to the state in its political capacity.
"When, therefore, officers or agents of the state, although acting officially and not as individuals, seize the private property of a citizen, the state having no valid right or title thereto, or trespass upon that property or damage it, the jurisdiction of the courts to eject the officers or agents, or to enjoin them from further trespass or damage, in a suit by the owner against the officers or agents, is as well settled in the jurisprudence of this country as is the general rule first above mentioned; for in such a suit no relief is demanded which requires any affirmative action on the part of the state. Such a suit is only to the end that the officers and agents of the state stay off the private property of the citizen and cease to damage that property, the state having no right or title thereto."
In Thompson v. Auditor General, 261 Mich. 624, 247 N.W. 360,362, the court stated: "Actions or suits against individuals who are officers of the state, to recover property, compel the performance of a duty, and prevent a wrongful deprivation of *Page 124 rights are not suits against the state, within the meaning of the Eleventh Amendment to the Constitution of the United States." And see to the same effect Dunne v. State, 162 Md. 274, 159 A. 751.
The case of Alfred v. Esser, 91 Colo. 466, 15 P.2d 714,715, is very similar to this. The action was brought against Alfred and others as the State Board of Live Stock Commissioners. The action was for damages for conversion. It was alleged that the defendants sold certain cattle belonging to plaintiff and failed to account to him for the proceeds. The same contention was made there as here. The court in deciding the question said: "The action is not against the state in its sovereign capacity to recover damages for the negligence or misconduct of its officers, and cannot be held to come within the well-recognized rule that a state may not be held liable for the negligence or fraud of its officers. It is an action against an agency of the state, not to recover money owned by the state, but to recover the proceeds of a sale of steers properly belonging to the plaintiff and illegally held by such agency. Accordingly we hold that the action as pleaded is maintainable." Here the allegation is that 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 and unlawfully, and in violation of the Fifth Amendment, and Sec. 1 of the Fourteenth Amendment, to the Constitution of the United States, and in violation of Secs. 14 and 27 of Article III of the Constitution of Montana and of the laws of the State of Montana, seize and take said chattel from the possession of this plaintiff, with the intent and purpose of confiscating the same." Such allegations have been held sufficient to raise the question of the constitutionality of the acts complained of as against the contention that they are conclusions of law not admitted by demurrer. Perkins v. Coffin, 84 Conn. 225, 79 A. 1070, Ann. Cas. 1912C, 1188.
It seems to me clear that defendants as officers of the state cannot hide behind the immunity rule and thus deprive plaintiff *Page 125 of the gun which for the purpose of the demurrer is admittedly detained by defendants wrongfully and unjustly.
The judgment so far as the return of the gun is concerned will affect no right or interest of the state.
I think the judgment should be affirmed so far as it directs delivery of the gun.