(concurring). I concur in the final result reached by the majority in this case. I never considered the points discussed in the majority opinion because, as I see it, this entire proceeding by Jennings et al., appellants, is a suit against the State of Arkansas and cannot be maintained because of Article V, Section 20 of our Constitution, which reads: ‘ ‘ The State of Arkansas shall never be made defendant in any of her courts.”
We held in Pitcock v. State, 91 Ark. 527, 121 S. W. 2d 742, 134 Am. St. Rep. 88, that this constitutional immunity could not be waived by legislative enactment; and in Watson v. Dodge, 187 Ark. 1055, 63 S. W. 2d 993, we held that any proceedings, either in law or inequity, which had the purpose and effect, directly or indirectly, of coercing the State, is a suit against the State. In Caldwell v. Donaghey, 108 Ark. 60, 156 S. W. 2d 839, 45 L. R. A. N. S. 721, Ann. Cas. 1915B 133, we held that the State of Arkansas could not be sued for specific performance; and in Arkansas State Highway Comm. v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394, we held that a suit against the State Highway Commission was a suit against the State of Arkansas. In view of these holdings, it is clear to me that the present suit by Jennings et al is a suit against the State of Arkansas. The only persons sued were the members of the State Highway Commission, and they were sued in their official capacity as State Highway Commissioners. The real purpose of the suit was to compel the State Highway Commission to build a road according to what the plaintiffs alleged was the agreement that the State made with the United States Government. It is clearly a suit against the State, and cannot he maintained.
Act 52 of 1945 affords these appellants no relief. If they desired to enjoin the disbursement of money, they should have sued the disbursing officers rather than the State Highway Commission. Furthermore, the Act 52 of 1945 was materially changed by subsequent enactments, such as Act 175 of 1947, Act 361 of 1949, and Act 178 of 1951.
I have considerable sympathy for the appellants. Some of them live in the vicinity of Jordan, east of the North Fork River and about three miles east of the Nor-fork Dam. According to the map presented in oral argument, State Highway No. 178 runs from Mountain Home to Salesville School and there intersects State Highway No. 177, which goes from the Town of Norfork to the east side of Norfork Dam. The settlement of Jordan is east of the North Fork River; it is only about three miles from Jordan through Lake view Courts to the east side of the Norfork Dam; and there is already an unimproved road along most of the route. The State Highway Commission could improve this local road from Jordan and provide access to the east side of Norfork Dam; and thereby afford these appellants a road such as they are seeking. I think this should be done; but that is a matter for the State Highway Commission, which cannot be compelled to so act by this Court since the Constitution forbids a suit against the State.
For the reasons stated, I concur in the result in this OHS3G.