Ace Flying Service, Inc. v. Colorado Department of Agriculture

Mr. Chief Justice Moore

specially concurring.

I believe that the questions raised by the record in this case, and the answers which should be given thereto, are as follows:

First: Where a corporation enters into a contract with the State Department of Agriculture, under the terms of which such corporation obligates itself to supply materials and services in connection with an effort of the Department to eradicate a grasshopper infestation, and the legislature has appropriated funds for that purpose; and the Department, after entering into the contract and after part performance thereof, refuses to permit the materials and services to be supplied and fully performed as provided by the contract; does the loss alleged to have been sustained by the corporation amount to “property” within the meaning of Article II, section 25, of the Constitution of Colorado, which provides: “No *29person shall be deprived of life, liberty or property, without due process of law”?
I answer this question in the affirmative. When the Department and plaintiff entered into the contract alleged to have been made, rights of property were created which are entitled to all the protection afforded by the due process clause of the constitution. Even in a tort action this court has held that:
“A legal right to damage for an injury is property and one cannot be deprived of his property without due process. * * * ” Rosane v. Senger, 112 Colo. 363, 149 P. (2d) 372.
If the above is a correct statement of the law as applied to an action ex delicto, it is certain that property rights grounded upon contract are within the protection of the constitutional provision which prevents the deprivation of “property” without due process of law.
Second: Where a corporate plaintiff alleges that it entered into a contract with the Department of Agriculture to perform specific services, and because of a breach of said contract by the Department it suffered a loss of property; and where funds had been appropriated by the legislature for the purposes covered by the contract tohich plaintiff was ready, able and willing to perform; does the law require dismissal of the complaint upon the sole ground that the sovereign state is immune from suit and cannot be made defendant in an action, without its consent?

In my judgment this question should be answered in the negative. To give an affirmative answer would mean that the due process clause of the constitution had been watered down or amended to read, “No person shall be deprived of life, liberty or property, without due process of law by any person other than the sovereign State of Colorado.” This I cannot sanction. Unjust and unreasonable exercise of sovereign power is the very thing which the constitutional provision was designed to prevent.

Our study of the opinions of this court dealing with *30the subject of the state immunity from suit leads to the conclusion that the broad language used in some of the opinions cannot be reconciled with the constitutional provisions referred to. To illustrate these inconsistencies I direct attention to the following quotations: In Parry v. Colorado Board of Corrections, 93 Colo. 589, 28 P. (2d) 251, will be found these words:

“Without constitutional or legislative authority, the state in its sovereign capacity cannot be sued. No such authority exists in this state. This being so, no liability upon contract or tort, if any there be, can be enforced against the state in any of its courts.”

Compare the above quotation with the following excerpts from the opinion in Boxberger v. Highway Dept., 126 Colo. 438, 250 P. (2d) 1007:

“It seems needless to say that neither the executive nor the legislative branches of our government has any right whatsoever to deprive anyone of his life, liberty or property without due process or compensation, and surely it cannot be contended that under our system of government it was not intended that the judicial branch of the government stand open as a haven for the protection of any citizen whose rights have been invaded, whether it be by an individual or by either of the other branches of government. * * * The rights of a citizen remain the same whether they collide with an individual or the government, and judicial tribunals were wisely established to correct such matters without the individual being relegated to the position of no other remedy except to appeal to a legislature, maybe to no avail,

A study of the opinions of this court in the following cases will disclose the use of language which is in conflict and cannot be reconciled with the views expressed in this court’s opinions in Boxberger v. Highway Dept., supra, and Highway Dept. v. Dawson, 126 Colo. 490, 253 P. (2d) 593; In Re Constitutionality of Substitute for Senate Bill No. 83, 21 Colo. 69, 39 Pac. 1088; Mitchell v. *31Board of County Commissioners, 112 Colo. 582, 152 P. (2d) 601; North Sterling District v. Dickman, 59 Colo. 169, 149 Pac. 97; and State of Colorado v. Colorado Co., 104 Colo. 436, 91 P. (2d) 481. The trial court, believing that the two cases first cited were distinguishable upon the material facts, and treating the broad statements contained therein as dicta, concluded that if a private citizen was to be permitted to maintain an action against the sovereign state without consent of the latter, such “judicial sanction * * * should issue from the Supreme Court and not an inferior tribunal.”

Whatever may have been the rule heretofore, I am of the firm opinion that any citizen may resort to litigation to protect his life, liberty or property even though his adversary be the sovereign state of Colorado. The constitution cannot be so nullified as to permit the state to deprive a citizen of “property” without due process of law. The keystone in the structure of due process is that the person aggrieved shall have the unquestioned right to his day in court. The common law doctrine of sovereign immunity cannot prevail against the constitutional guarantee of a day in court for every claim based on an asserted property right. As stated by Mr. Justice Burke in La Plata Co. v. Hinderlider, 93 Colo. 128, 25 P. (2d) 187:

“Due process always implies a hearing or trial, and judgment. It secures the individual ‘from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.’ People v. Max, 70 Colo. 100, 108, 198 Pac. 150. If private rights may be stripped from the citizen by state ‘compacts,’ by legislative fiat, by commissioners, by the uncontrolled discretion of state engineers, then ‘due process’ is dead in Colorado.”

I adhere to the principles announced in Boxberger v. Highway Dept., supra, and Highway Dept. v. Dawson, supra, and consider them controlling in this action.

Third: Apart from the due process clause of the Con*32stitution of Colorado, does the doctrine of state immunity from suit, as applied to the facts alleged in the instant case, offend against the provisions of Article 11, section 3, and Article II, section 6, of the Constitution of Colorado?

In my judgment this question requires an affirmative answer. The constitutional provision first mentioned in the foregoing question provides as follows:

“All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; * * (Emphasis supplied.)

If the right to acquire, possess, and protect property is “inalienable,” the individual cannot be deprived of it without his consent, either by the legislature- or by the outmoded common law doctrine of sovereign immunity. There is no adequate way to protect property if resort to the judicial process is withdrawn. The constitutional right to protect property is guaranteed to all persons and we should not by judicial pronouncement alter or qualify those words to mean “all persons except those doing business with the state.”

Support for the foregoing conclusion is found in the provisions of Article II, section 6 of the Colorado Constitution, where we find the following:

“Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.” (Emphasis supplied.)

I would point out that the fundamental law of this state guarantees- every person an open door to the judicial process of the state in his quest for “right -and justice.^ The constitution, in guaranteeing to every person access to .the courts for redress and speedy remedy “for every injury to person, property or character,”- did not discriminate against those whose injury to property was *33occasioned by acts of the State of Colorado. I am satisfied that the provisions of the constitution under discussion were intended to serve a definite purpose, and that where the plain meaning of the words employed are pertinent to a dispute this court should not hesitate to apply them to protect the individual citizen in the practical enjoyment of the inalienable rights guaranteed to him by that constitution.

I reach this conclusion notwithstanding former opinions of this court in which no reference is made to the said constitutional provisions. If constitutional government is to survive we must give practical effect to the fundamental law in resolving the problems of the individual citizen. A Bill of Rights which sets forth freedoms which are stated to be “inalienable” amounts to nothing if by fanciful judicial interpretation these rights are frittered away until nothing is left but an empty shell for display purposes on patriotic occasions. In several states where the doctrine of sovereign immunity from suit is firmly intrenched, there are constitutional provisions to the effect that the state cannot be subjected to legal action without its consent. There is no such provision in the Constitution of Colorado. The absence of such provision, when considered in connection with the language of Article II, section 3, and Article II, section 6, is most significant.

It is a historical fact, that when the constitution of the State of Colorado was adopted it was patterned largely upon the constitution of the State of Illinois. The constitution of that state then, and even now, contains a provision as follows:

“The state of Illinois shall never be made defendant in any court of law or equity.”

That a similar provision was not incorporated in the Colorado Constitution, although present in the instrument which unquestionably was used as a model, is persuasive evidence that the doctrine of sovereign immunity was discarded by its framers. Twilley v. Durkee, 72 *34Colo. 444, 211 Pac. 668; Adams v. Bolin, 74 Ariz. 269, 247 P. (2d) 617.

“In the interpretation of a constitutional provision, deviation of the language thereof from the language of a provision of the constitution of another state, used by the constitutional convention as a model, indicates an intention to depart from the meaning of the provision of the other state.” 11 Am. Jur. 685-6, Cum. Supp. page 95.

The guaranty of our constitution that a speedy remedy shall be afforded for every injury to property, is not met by the argument that the “remedy” available is to seek relief at the hands of the legislature. I make this assertion notwithstanding language indicating a contrary view to be found in State of Colorado v. Colorado Postal Telegraph-Cable Co., 104 Colo. 436, 91 P. (2d) 481. In the opinion in that case it was stated that the “ascertainment of the state’s constitutional liability and the making of provision to meet it is a proper function of the legislative department of government.” It is evident that this broad language might appear to sanction or authorize legislative action but of harmony with Article V, section 28, of the Constitution of Colorado which limits the power of the legislature to appropriate money. That section provides, inter alia:

“No bill shall be passed * * * providing for the payment of any claim made against the state without previous authority of law.”

Thus, if a citizen, having entered into a contract with the state, be denied the right to sue and thereby establish by “authority of law” the legality of his claim against the state, the legislature by the express terms of the above-quoted constitutional provision is prohibited from affording relief and the claimant would be compelled to go empty handed. If, however, the right to sue the state is recognized and upon trial the claim is found to be valid, the legislature could make a constitutional appropriation to pay the judgment because such an appropriation would not be one made “without previous *35authority of law.” The appropriation would necessarily follow the entry of judgment.

I concur in the reversal of the judgment for the foregoing reasons; I am unable to concur in the grounds for reversal as set forth in the opinion of Mr. Justice Sutton.

Mr. Justice Holland concurs in this opinion, under which a reversal of the judgment would result; he does not concur in the opinion of Mr. Justice Sutton under which a reversal of the judgment results on other grounds.