An alternative writ of prohibition was issued on petition of the State of Utah in this original proceeding to enjoin *Page 291 the District Court of the Third Judicial District and one of the Judges thereof from proceeding in the case of Garrett Transferand Storage Company, a Corporation, v. The State of Utah.
The case in the district court is to recover taxes paid under protest under a statute which has been declared unconstitutional by the court. Carter et al. v. State Tax Commission et al.,98 Utah 96, 96 P.2d 727, 126 A.L.R. 1402. By a divided court, the alternative writ was made permanent. State of Utah v. DistrictCourt of Salt Lake County, State of Utah et al., 102 Utah 284,115 P.2d 913, 914. A petition for rehearing was granted. The cause was reargued.
Upon the first hearing, two questions were argued: One, whether the State had consented to be sued in a tax recovery matter such as this; and the other, whether service on the Governor and Attorney General was good service on the State.
In the former opinion in this cause, Mr. Justice Wolfe, speaking for the majority stated:
"By Section 80-11-11, R.S.U. 1933, it is evident that the State of Utah has consented to be sued for the recovery of a tax deemed unlawful by the party against whom the tax is enforced, if the tax is paid under protest."
The only question now for consideration is a question of procedure. The record shows that the complaint was filed. A motion to quash, vacate and set aside the service of summons was made by the Attorney General for and on behalf of the State. The motion was denied. The State then filed a demurrer to the complaint. The demurrer was overruled. The State then brought this proceeding in prohibition.
We are of the opinion it was error to make the alternative writ of prohibition permanent. What defense, if any, or whether the proper parties are before the court in the 1 original proceeding is a matter to be tried and determined by the trial court, if the service of summons is good. *Page 292
In any civil action involving the use of water, if a general determination of the rights to the use of water has not already been determined, the court may proceed to make a general determination. In such action, "the state of Utah shall be joined as a necessary party." Section 100-4-18, Revised Statutes of Utah 1933. No procedure or method of service on the State is provided, yet it is apparent the State must be made a party.
Section 20-7-25, Revised Statutes of Utah 1933, provides:
"When jurisdiction is, by statute, conferred on a court or judicial officer, all means necessary to carry it into effect are also given; and in the exercise of jurisdiction, if the course of proceeding is not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the statute or of the codes of procedure."
In the case of Baker v. Department of Registration,78 Utah 424, 3 P.2d 1082, 1088, the aforesetforth section was considered and cases bearing upon the scope of the section are cited. Among other things, the court stated:
"There is nothing in the language of section 1813 [now Section 20-7-25, supra] which limits the power of the court to such cases. The statute applies alike to all cases where jurisdiction is conferred by statute without regard to whether such jurisdiction is original or appellate."
Just what distinction, functionally considered, there may be found to exist between the State and an authorized agency of the State may not be easy to define. A deprivation of one's property or liberty under an unconstitutional law 2 inflicts a wrong upon the individual. This line of thought was presented in the case of State v. Morgan, 23 Utah 212,64 P. 356, at page 361, wherein it was stated:
"When the wrong is the violation of constitutional rights, the legislature has no power to prohibit, or substantially impair, all remedies, as to do so would be a violation of the constitution."
Pursuing the discussion of the power of the courts to guard the rights of persons, it is said that in order to meet new conditions and supply remedies for wrongs where none already *Page 293 exist the courts from remote time have if possible devised new remedies and procedures "by virtue of their inherent power." It is the duty of the Attorney General to "have charge as attorney of all civil legal matters in which the state is anywise interested." The service of summons upon the Governor and Attorney General is sufficient. Whether there is merit in the alleged cause of action is another matter.
The writ heretofore made permanent is recalled, and the alternative writ and the permanent writ are quashed and set aside.