text:
    Jones v. Ferguson.
    Opinion delivered April 7, 1930.

      Edward Gordon, for appellant.

      Bolon B. Turner and Brooks Hays, for appellee.
   Mehaffy, J.

This action was begun by it. P. Ferguson, appellee, against A. Jones, appellant, to restrain Jones, his agents, servants and employees, from operating a motor transportation business for carrying freight for compensation between Little Book and Morrilton. The facts necessary to he stated are as follows: The appellee, It. P. Ferguson, holds a license certificate to operate a freight transportation line between Morrilton and Little Rock, and it is agreed that said license certificate is valid and in full force and effect. The said license certificate was granted to Ferguson prior to the time that appellant made an application for a license certificate. The appellant bought a truck for the purpose of hauling freight between Little Rock and Morril-ton for compensation and applied to the railroad commission for a permit or license, and his request was denied. He had paid $400 or $500 on the truck before his request was denied, concluded that, since his license was denied him, he could not pay for the truck and took it back to the seller expecting to lose what he had paid. Ten citizens of Morrilton paid for the truck and entered into a contract with Jones to haul freight for them between Morrilton and Little Rock, and they agreed to pay him the regular schedule rates being charged by truck lines so long as Jones would haul only and exclusively for them and not haul for the general public. Jones accepted these*conditions and agreed to haul freight for the parties signing the contract and agreed that he would not haul for the public. Several witnesses testified about the contract, and the evidence showed that Jones hauled freight for the persons with whom he contracted and refused to haul freight for any other persons and did not hold himself out to the public as a common carrier.

There is no dispute about the facts, and it is therefore unnecessary to set out the testimony in full.

The court entered a decree for a permanent injunction as prayed for in the petition, holding that the practice of Jones in securing from certain merchants and shippers in Morrilton contracts of employment to haul freight for said parties does not change the character of defendant’s operations as a public carrier within the meaning of the provisions of act 99 of the General A ssembly of Arkansas of 1927, and other legislative acts regulating cars for hire, using the highways of this State. To reverse this decree, appellant prosecutes this appeal.

Appellee makes the following statement in his brief: “We concede, of course, that the commission is without authority to require one who is truly a private carrier to become a public carrier, but it is clear from appellant’s testimony in this case that the carrier has continuously acted as a public carrier and is attempting by his 'contract of employment,’ to disguise his real operations.”

The only question for our consideration is, whether Jones was a public carrier or a private carrier. The law recognizes two classes of carriers, viz: private carriers and common carriers. All persons who undertake for hire to carry the goods for another belong to one or the other of these classes. A private carrier is not bound to carry for any reason unless it enters into a special agreement to do so. A common carrier is bound to carry for all who offer such goods as it is accustomed to carry, and tender reasonable compensation for carrying them. 4 R. C. L. 549.

A common carrier is one that holds itself out as ready to engage in the transportation of goods for hire as a public employment and not as a casual occupation. 10 C. J. 41.

A common -carrier is not only one who holds itself out as engaged in the business for the public, but it is required to carry for all who offer their goods. It is a public service and is therefore subject to regulation; a private carrier is not. A private carrier does not hold itself out as engaged in the business for the public and is therefore not subject to regulation as a common carrier. The act relied on by appellee does not authorize the railroad commission to regulate private carriers, but' only public carriers and the Railroad Commission would have no authority to regulate the business of a private carrier or the private business of any one. While they have jurisdiction over the highways, the act in question is not an act to regulate traffic or travel on the highways, but that part of the act relied on by appellee undertakes to regulate the business of the parties to whom it applies. We said in a recent case: ‘‘Each of the appellant carriers held itself out to the public as ready to undertake for hire the transportation of goods or passengers from place to place in the city of Little Rock, or from points in the city of Little Rock to places in the city of North Little Rock, or places along the public highways in the country and thus solicited the patronage of the public, although it claimed the right to reject customers for cause. Its general business was with the public, and each solicited customers from the general public. The same was true of the undertaking establishment. It operated ambulances, carried sick and injured persons to hospitals, homes and railway stations at uniform charges. Each of the appellants solicited business from the general public by advertisement. Hence we are of the opinion that the court did not err in holding that appellant came within the regulatory provisions of the statutes.” Merchants’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 12 S. W. (2d) 106; Arkadelphia Milling Co. v. Smoker Mdse. Co., 100 Ark. 37, 139 S. W. 680; Lloyd v. Haugh & Keenan Trans fer & Storage Co., 223 Pa. 148, 72 Atl. 516, 21 L. R. A. N. S. 188.

The undisputed evidence in' the instant case shows that appellant did not hold himself out to the public as ready to undertake for hire the transportation of goods or passengers. His general business is not -with the public; he does not solicit customers from the general public, and, therefore, under the case just cited, he does not come, within the regulatory provisions of the statutes.

Appellee in discussing’ the case of Michigan Public Utilities Commission v. Duke, 266 U. S. 570, 45 S. Ct. 191, says : “It is held by the Supreme Court in that case that it is beyond the power of the State by legislative fiat to convert property used exclusively in the business of a private carrier into a public carrier,” and concedes that the soundness of this position cannot be questioned; but ap-pellee says that the carrier in the case referred to had contracts with only three shippers. That is true, he had contracts with but three persons, but he employed seventy-five men and operated forty-seven motor trucks and trailers upon the public highways of Michigan, which formed part of the route between Detroit and Toledo. In the instant case, appellant has but one truck, and although, in the Duke case above referred to, there were only three contracts, yet it appears that the business done by this carrier was many times greater than the business done by appellant. The Michigan act is substantially the same as our act. It provides that no person should engage or continue in the business of transporting persons or property by motor vehicle for hire upon the public highways of the State over fixed routes or between fixed termini, unless he shall have obtained from the Michigan Public Utilities Commission a permit so to do. The act then prescribes just how the permit shall be granted. In the Duke case, it is further said: “Moreover, it is beyond the power of the State by legislative fiat to convert property used exclusively in the business of a private carrier into a public utility, or to make tlie owner a public carrier, for that would, be taking- private property for public use. without just compensation, which no State can do consistently with the due process of law clause of the fourteenth amendment.”

Appellee then discusses the case of Marion L. Frost v. Railroad Commission of the State of California, 271 U. S. 583, 46 S. Ct. 605, 70 Law. Ed. 701, and shows that there was'a single contract, hauling only one commodity, and says that that case can hardly throw any light on the question before the court on this appeal. It is also argued that the court in that ease specifically disclaimed passing upon the question here presented. In that case, the commission agreed that Frost was a private carrier, but held that he was subject to the provisions of the act. The commission’s order was upheld by the Supreme Court of the State of California. The court said: , “It is very clear that the act as thus applied, is in.no real sense a regulation of the use of the public highways. It is a regulation of the business of those who are engaged in using them. Its principal purpose evidently is to protect the business of those who are common carriers, in fact, by controlling competitive conditions. Protection or conservation of the highways is not involved.” The court further said: “That consistently with the due process clause of the fourteenth amendment, a private carrier cannot be converted against his will into a common carrier by mere legislative command, is a rule not open to doubt and is not brought in question here ” The court continued: “We hold that the act under review as applied by the court below, violates the rights of the plaintiff in error, as guaranteed by the due process clause of the fourteenth amendment, and that the privilege of using the highways of California in the performance of their contract is not and cannot be affected by the unconstitutional condition imposed.”

The act of the Legislature involved is valid but it has no application to private carriers. Since the appellant 'in this case does not solicit business from the public, does not hold himself out as ready to serve the public, and refuses to accept freight, as the undisputed evidence shows, from the public, he is not a common carrier but a private carrier, and the chancery court erred in holding that the practice of defendant in securing from certain merchants and shippers of Morrilton contracts of employment to haul freight for said parties does not change the character of defendant’s operations as a private carrier within the meaning of the act.

There is no evidence in this case of fraud, or any attempt to evade the law. The undisputed evidence showing that appellant does not hold himself out to serve the public, but has refused to take freight for anybody except those with whom he has the contract, and, as said in the case of Frost v. The California Railroad Commission, “It is e'nough to say that no such case is presented here, and we are not to be understood as challenging the power of the State or railroad commission under the present statute, whenever it shall appear that a carrier posing as a private carrier is in substance and reality a common carrier, to so declare and regulate his or its operations accordingly.”

The decree of the chancery court is reversed, and the case is dismissed.


source: Caselaw Access Project

author: Mbhaffy, J.

license: Public Domain

text:
    Brown v. Brown.
    Opinion delivered April 7, 1930.

      Harry G. Steinberg and G. E. Snuggs, for appellant.

      I. W. Steimett, for appellee.
   Mbhaffy, J.

This action was begun by appellant, who alleged that she and appellee were married on the 29th of September, 1928, and that they lived together as husband and wife until the 12th day of October, 1928, when appellee deserted her. She also alleged that appel-lee was guilty of such indignities as rendered her condition intolerable, and she charged appellee with improper relations with a certain woman, naming her. Appellee filed answer, denying the material allegations in the complaint, and filed cross-complaint, in which he alleged that they were married on the 29th day of September, 1928, and that after the marriage, on the same day, appellant told appellee that she had syphilis; that she concealed this from appellee until after the marriage ceremony, and that if he had known she had syphilis he would not have married her; that he never cohabited with her, but left her the day of the marriage, and never lived with her. He asked that the mamage be annulled. The chancery court entered a decree dismissing appellant’s complaint for want of equity, and annulled the marriage as prayed in appellee’s cross-complaint. This appeal is prosecuted to reverse said decree.

Appellant’s first contention is that she should have been granted a divorce. A sufficient answer to this con-iention is that the evidence on this issue is conflicting, and the finding of the chancellor is not against the preponderance of the evidence. Appellant testified that they lived together nine days and that during that time appel-lee ’s conduct in cursing her, getting drunk, and his relations with another woman rendered her condition intolerable. There is practically no.corroboration of her testimony, and it is denied by appellee. He testified that be did not live with her at all, and sbe admits that he left her the afternoon they were married, but says he went to work and worked that night, but that he lived with her after that a few days. The evidence introduced by appellant as to appellee’s relations with another woman was contradicted by the evidence of appellee, and it would serve no purpose to set out the evidence here.

Appellant next contends that the case should be reversed because the court erred in granting’ a decree annulling the marriage. It is contended that some of the evidence introduced to corroborate appellee’s testimony that appellant told him she had a contagious disease was incompetent. The testimony of the physician was inadmissible. However, appellee testified positively that she told him about this on the day of the marriage and after the marriage. He says he left her that afternoon and never lived with her. She admits that he left on the afternoon of the marriage and stayed away that night, but she says he went to work because he could not get any one to work in his place that night. She also denies that she told him she had syphilis and denies that she had any disease. Appellee’s testimony is corroborated by the testimony of Mrs. Hattie McMillan, the executive secretary of the Welfare Bureau. This testimony of Mrs. McMillan was competent. This witness testified that some months before the marriage of the parties, she aided the appellant with food and medical aid. When asked if she recalled the nature of the illness of appellant and the treatment, she said: “Venereal trouble and treatment for that.” There were other circumstances tending to corroborate appellee’s testimony on this issue. The appellant denied that she had ever made any request to Mrs. McMillan for treatment. At appellant’s request, the court añade a special finding of fact that appellant was at the time of her contracting marriage with appellee, infected with a dangerous, loathsome, venereal disease, viz: syphilis, which rendered her incapable of entering into the marriage state, and, as a matter of law, the court declared that her attempted marriage should be annulled and held for naught under' section 7041, C. & M. Digest. The finding of fact by the chancellor is not against the preponderance of the evidence, and the decree is therefore affirmed.


author: McIíaNey, J.

text:
    McEuen v. Wakenight.
    Opinion delivered April 7, 1930.

      Brunclidge £ Neelly, for appellant.

      Miller $ Tingling, for appellee.
   McIíaNey, J.

Raymond McEuen, a minor son of appellant, purchased a used automobile from appellee, giving his note, with appellant as joint maker or surety, as part of the purchase price. In February, 1927, appellee secured a judgment by default on said note in the justice court of W. H. Bell for $76 and costs of $3.55. Thereafter Raymond McEuen paid appellee the amount of the judgment and costs, and satisfaction thereof was indorsed on tlie docket entry of the judgment on March 20, 1927. In December following’, Baymond McEuen, by his father and nest friend, appellant, brought suit in the White Chancery Court ag'ainst appellee, alleging his minority at the time the judgment aforesaid was obtained against him, and praying a recovery of the amount so paid by him in satisfaction thereof. He was successful in this suit and recovered a judgment ag’ainst appellee for the amount of the judgment and costs paid him. Thereupon appellee filed a petition in the justice court to correct the judgment on his docket by cancelling or setting aside the entry of satisfaction, so as to leave an unsatisfied judgment against appellant as originally entered. The justice of the peace granted the petition and set aside the satisfaction. Appellant took an appeal to the circuit court, where the judgment of the justice court was affirmed.

We think the justice and the circuit court on appeal correctly held that appellee could cancel the satisfaction so as to leave the judgment stand as to appellant. While the judgment was paid by the minor with one hand, it was withdrawn by the other, and so the net result was that the judgment was never paid in fact. The contract so far as the minor was concerned was not void but only voidable. The contract, so far as appellant was concerned, was neither void nor voidable. No defense was ■made, and judgment was had in the justice court, and no appeal therefrom. When the minor recovered the amount paid in satisfaction of the judgment, appellee was entitled as a matter of simple justice to have the record of the judgment speak the truth. It showed “satisfied in full,” when, as a matter of fact, it had not been satisfied. Levy v. Ferguson Lumber Co., 51 Ark. 317, 11 S. W. 284, and cases there cited. “The satisfaction * * * was apparent, but not real,” as said by this court in DeLoach Mill Mfg. Co. v. L. R. Mill & Elevator Co., 65 Ark. 467, 47 S. W. 118. See also Rutherford v. McDonnell, 66 Ark. 448, 51 S. W. 1060; Martin v. Bank of State, 20 Ark. 636; Stuart v. Peay, 21 Ark. 117. It lias many times been held that the circuit court has the power, upon proper application and notice to the parties interested, to amend the record by vacating a satisfaction of a judgment. The cases cited above so hold. We see no good reason why the same rule should not apply to justice courts.

It is nest urged that the amendment to the answer filed in the circuit court stated a defense, and that appel-lee’s demurrer thereto should not have been sustained. The amendment was to the effect that at the time he signed the note of his minor son he had an agreement with appellee that he was not to be liable thereon personally. This defense is not tenable, and the court correctly sustained the demurrer thereto. The question of appellant’s liability on the note was not before the circuit court, but only the right of appellee to have the satisfaction of the judgment vacated. If a defense at all, it was available in -the justice court in the suit on the note, or on appeal to the circuit court from the judgment against him. It was not only a collateral attack on the judgment of the justice, but was an attempt to vary the terms of a written contract by parol testimony.

Judgment affirmed.


author: Butler, J.

text:
    Huxtable v. State use Crawfordsville Special School District.
    Opinion delivered April 7, 1930.

      W. B. Scott, James Q. Coston and J. T. Goston, for appellant.

      Chas. D. Frierson, for appellee.
   Butler, J.

The only-question in this case is whether the Legislature had the power to relieve the treasurer of Crittenden County from his liability to pay Crawfords-ville 'Special School District five thousand dollars of its funds which he had deposited in a bank, and which was lost by reason of the bank’s failure.

The appellant contends that the Legislature had the power to relieve the officer, and that the law enacted to that effect is not a special law within the meaning’ of the Constitution.

It is insisted by appellee that the act in question is a special act, and comes within .the inhibition of Initiated Amendment No. 14 of the Constitution. The validity of such an act was upheld by this court in Pearson v. State, 56 Ark. 148, 19 S. W. 499, 35 Am. St. Rep. 91, where the Gfeneral Assembly by its act had relieved the treasurer of Logan County from liability for sums due the county and various school districts where the loss was occasioned by a burglary, on the theory that as it was within the power of the Legislature to impose a debt upon a municipality, it had the power to release a debt due by such, provided the power was not exercised arbitrarily or capriciously. In that case it was contended that the act violated § 3 of article 14 of the State Constitution which ordained that no special taxes should be appropriated to any other purpose nor to any other district than that for which it was levied, and that it was also violative of the provisions of the State Constitution prohibiting legislation which would divest property rights or impair the obligation of contracts.

It will be observed that the act was not challenged on the ground that it was special in its nature. Since the decision in Pearson v. State, supra, numerous acts have been passed by the General Assembly relieving officials for loss of funds in their hands, which loss occurred through no fault- on the part of the officer, which legislative practice continued until a recent date when Amendment No. 14 was initiated and adopted by the people.. This amendment was very ¡brief and very much to the point, and is as follows: “The General Assembly shall not pass any local or special acts. This amendment shall not prohibit the repeal of any local or special acts.”

It is contended by the appellant in this case that, since the State was not expressly named in the amendment supra, the same would have no effect in so far as the rights of the Legislature to pass special laws concerning the 'business or the funds of the State, and therefore the act in question would not be a special act within the meaning of the amendment. It is our view that, although the -State might not be expressly named, limitation might exist by implication, even though there might be no express language in the amendment to that effect. Martin v. Roesch, 57 Ark 476, 21 S. W. 881.

In order to determine whether the State was intended to be included, we may look to the history of the times, the conditions existing at the time of the adoption of the amendment, in order to ascertain the mischief to be remedied and the remedy adopted, together with the general spirit of the times and the prevailing’ sentiment among the people. 6 R. C. L. § 46, p. 51, referred to and approved in Lybrand v. Wafford, 174 Ark. 304, 296 S. W. 729.

Beginning at -an early date, the course of legislation tended to increase local and special acts in an increasing ratio. As stated in Pearson v. State, “As far back as 1840 and continuously since that time, acts have been passed in this State to release officers and their sureties from debts legally due by them to various counties where tlie liability arose without fault of the officer and similar legislation abounds in other days. While such acts do not determine the question of constitutional law, they bear evidence of the public sense of .justice and right. Whether the contentions that induce such acts are adequate, and whether public policy and interests are sub-served by such legislation, are questions of grave doubt, but their solution is with the legislative and not with the judicial department of the government.”

The policy on the part of the Legislature to pass local and special acts was a progressive one, and the number of such acts increased from session to session until in 1923, when by far a greater number of the acts of the General Assembly for that year and for several sessions preceding were of such character and became out of all proportion to the general laws enacted, so that there was a general sentiment engendered which condemned this policy and culminated in the initiation and passage by the people of Amendment No. 14, supra, and it is clear that one of the vices existing at the time of the adoption of the amendment was the frequency with which special laws were passed relieving* officers from just liability, and therefore was one of the evils sought to be remedied by the adoption .of the amendment. This conclusion seems to be irresistible when the emphatic and unambiguous language of the amendment is considered. Viewing such questions in the light of contemporaneous events, this court, in the recent case of Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617, has adopted the definition of the Alabama Court as to general, local and special laws: “A general law, within the meaning of this article, is a law which applies to the whole State; a local law is a law which applies to any political subdivision or subdivisions of the State less than the whole; a special or private law, within the meaning of this article, is one which applies to an individual, association or corporation.”

Under this definition, the act in question is undoubtedly a special law, and, since it did not undertake to set-tie any 'controversy between tbe State and one of its citizens, nor refer to administration of justice, nor deal with, some sovereign administrative power of the State, or by appropriation provide means to reimburse one to whom it was bound by a moral obligation, it could not come within the rule laid down in State v. Crawford, 35 Ark. 237; Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844; Urquhart v. State, 180 Ark. 937, 23 S. W. (2d) 963, the validity and force of which decisions are not intended to be impaired by our holding’ in this case.

Those cases recognize the principle that the State in its sovereign power through its Legislature may protect its own interest, and, by virtue of it, the Legislature may treat every subject of sovereignty as within a class by itself, and such acts would be general and not local or special laws.

From the 'foregoing observations it follows that the act involved in the instant case is a special act within the meaning of Amendment No. 14 to the Constitution, and is prohibited thereby. The decree of the trial court is therefore affirmed.

Smith, J., disqualified and not participating.


author: Butler/ J.

text:
    Hargrove v. Arnold.
    Opinion delivered April 7, 1930.

      Feazel <fb Steel, for appellant.

      Abe Collins, Lalce, Lalce é Carlton and Steel S Edwards, for appellee.
   Butler/ J.

The legality of an election held in -Sevier County under the authority of an order of its county court submitting to the qualified electors of said county the question of the construction of a new court house and jail, and held at a special election ordered by the county judge, is challenged for the reason that the county court failed to prescribe the form of ballots, and failed to have said ballots, show the amount of the proposed bond issue or its purpose, or the amount of taxes necessary to he levied in order to pay the bonds with interest as prescribed by § 4 of act 294 of the Acts of 1929, approved March 29, 1929.

The election was held under authority of Amendment No. 17, and the ballots were in the form prescribed by § 4 thereof, 'but not in form prescribed by § 4 of act 294, supra.

It is contended that, even though Amendment No. 17 is self-executing, the 'Legislature had authority to regulate the method by which elections should be conducted, and to alter or amend the form of the ballot prescribed by § 4 of the Amendment.

It is further contended that act No. 294, supra, did change the form of the ballot under which the election was held, and, the ballot voted on not conforming* to the requirements, of the act, the county court would be without authority to issue bonds under said election.

It is insisted, on the other hand, by appellee that act No. 294 dealt solely with an election by which power would be given the county court to take up any indebtedness existing at the time of the adoption of the amendment, incurred in the building, constructing or extending of any -courthouse or jail, and had no reference to an election such as the one under consideration by which the construction of new county buildings and a tax to defray the expenses was authorized; also that, if said act attempted to change the form of the ballot prescribed by the 'Constitution, such provision of the act would be null and void, because contravening the requirements of the Constitution itself, and, lastly, that said act No. 294 did not control or regulate the election for the reason that the same was not in effect at the time the election was held.

Our conclusion on the last. point raised malíes it unnecessary to discuss or decide the other questions presented, it being- our opinion that appellee is correct in his last contention, namely; that act No. '294 was not in effect at the time of the election in Sevier County.

We take judicial notice of the records of both branches of the General Assembly from which we know that the Legislature of 1929 adjourned March 14, and that, while the act in question contained an emergency clause, no separate vote or roll call was had thereon, and therefore said emergency clause was never adopted, and the act did not go into effect until ninety days after the adjournment of the Legislature. Road Imp. Dist. No. 16 v. Sale, 154 Ark. 551, 243 S. W. 825; Foster v. Graves, 168 Ark. 1033, 275 S. W. 653; Crow v. Security Mortgage Co., 176 Ark. 1139, 5 S. W. (2d) 346; Kendall v. Ramsey, 179 Ark. 984, 19 S. W. (2d) 1020.

Since the election involved was held May 4, 1929, § 4 of the Constitutional Amendment prescribes the form of ballot which was used at the election, and, as the act was not then in- effect, it would be immaterial what its provisions might be or what validity they might have. The judgment of the court below is therefore affirmed.


author: Smith, J. Hart, C. J.,

text:
    Arkansas State Highway Commission v. Dodge.
    Opinion delivered April 7, 1930.

      Hal L. Norwood, Attorney G-eneral, Claude Duty and Walter L. Pope, Assistants, Pace $ Davis and Tom W. Campbell, for appellant.

      W. E. Spence, Dudley <& Dudley and Charles D. Frierson, for appellee.
   Smith, J.

E. L. and E. W. Lahar, partners doing-business under the firm name of Lahar Brothers, brought this suit in the Pulaski Chancery Court ag'ainst the chairman and members of the Arkansas State Highway Commission, and for their cause of action alleged the following facts:

That they had entered into a written contract with the State Highway Commission to construct certain portions of the State highway system, pursuant to which they*- had earned a large sum of money, which was payable to them under their contract, but the commission had refused to make proper estimates of the work and had declined to issue vouchers upon the State treasury, as they were in duty bound to do, whereby the plaintiffs were deprived of the compensation legally due them. Wherefore they prayed that- a master -be appointed to state the account between themselves and the highway commission, and that they have judgment for the amount alleged to be due them.

The commission filed a demurrer to the complaint upon the ground “that the plaintiffs are without right to file and maintain this suit, because it is in reality a suit against the State of Arkansas, and is prohibited by § 20, of article 5, of the Constitution of the State of Arkansas, and the court is therefore without jurisdiction to hear and determine the complaint filed herein, because it is a suit against the State of Arkansas and prohibited by said section of the Constitution of the State of Arkansas.”

The demurrer was overruled, whereupon the defendants filed in this court a petition for a writ of prohibition to prevent the chancery court from proceeding further with or exercising jurisdiction in said cause.

The practice is well settled that, when it appears that an inferior court is about to proceed in a matter over which it is entirely without jurisdiction under any state of facts which may be shown to exist, then the Supreme Court, exercising supervisory control over the inferior court, may prevent such unauthorized proceeding by the issuance of a writ of prohibition. Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59.

Section 20 of article 5 of the Constitution reads as follows: “The State of Arkansas shall never be made defendant in any of her courts.”

The argument is made that this provision of the Constitution is declaratory .merely of what has always been the law, and that it means simply that the State may not be sued in her own courts without her consent. We think, however, that the purport of the language quoted is not to be thus limited. Numerous States have the provision in their Constitution that no suit shall be brought against the State except with its consent, and it is, of course, held in those States that suits may he brought when consent is given, but that such suits must be brought in the forum provided and be prosecuted in the manner authorized, and in no other forum or manner.

Our Constitution is not, however, merely declaratory of this attribute of sovereignty. It goes further and declares that the State shall never be made defendant in any of her courts, and nowhere is provision made under the Constitution whereby this immunity may be waived. Pitcock v. State, 91 Ark. 535, 121 S. W. 742, 134 Am. St. Rep. 88.

The Constitution of Alabama contains a provision almost identical with that of our own Constitution on this subject, and in the case of Alabama Industrial School v. Addler, 144 Ala. 555, 42 Sou. 116, 113 Am. St. Rep. 58, it was held (to quote a headnote): “If the Constitution contains a prohibition against the State being made a party defendant to any suit, and does not provide for any waiver of such exemption, the Legislature has no power to pass a law permitting such waiver, nor can the State or its agent waive such exemption by failure to plead to the jurisdiction or otherwise.” We feel constrained to give the same construction to the same provision in our own Constitution.

The question for decision, therefore, is, whether the suit which we are asked to prohibit is, in fact, a suit against the State.

Any answer to this question requires a consideration of the statutes under which the contracts sued upon were executed. ‘At its 1929 session the General Assembly passed an act entitled, “An Act to amend and codify the laws relating to State highways.” 1, Acts 1929, p. 264. This act recreated the State Highway Commission, and the commission as recreated by the act of 1929 consists of five members, with a chairman, vice-chairman and a secretary. This act declared it to be the policy of the State “to take over, construct, repair, maintain and control all the public roads in the State comprising the State highways as defined hereinafter,” and authority was given to make such contracts as were needful for these purposes. By act No. 38, passed at the 1929 session of the General Assembly (3, Acts 1929, p. 26), the sum of fifteen million dollars was appropriated for the construction of roads and bridges embraced in the State highway system for the fiscal year beginning March 1, 1929, and ending the last day of February, 1930, and a similar appropriation was made for the fiscal year beginning March 1, 1930, and ending the last day of February, 1933, and the act placed this money at the disposal of the commission, to be disbursed in tbe manner therein provided. These acts-were a continuation of the policy of road construction adopted by the State upon the passage of act No. 11 of the Acts of 1927 (Acts 1927, page 17), commonly known as the “Martineau Boad Law,” which act appropriated large sums of money to effect its purposes.

Upon the passage of the Martineau Boad Law, and in the execution of its provisions, numerous suits arose, which hampered the work of the commission, and at the extra session of the General Assembly an act, No. 2, was passed and approved October 3, 1928, entitled, “An act to require bonds in certain suits affecting the administration of the State highway laws.” Section 1 of this act reads as follows:

“Suits against the State Highway Commission, the State Highway Note Board, the members or any member of either, or against any State officer, involving any act done or proposed to be done in the administration of*the State Highway Department, or of any law pertaining to the State highway system, shall be brought only at the seat of government in Pulaski County. ”

This act, passed at a special session called for the special purpose of considering the State’s road-building program, recognized the existence of pending suits, and the probability of others being brought, and fixed the venue thereof at the seat of government, in Pulaski County, where the highway commission has its domicile and keeps its records.

While this special act did not designate the highway commission as a corporation, it was recognized as an entity, a juristic person, created for the purpose of making contracts for the distribution of the large sum of money which had been appropriated, and which it was anticipated would be later appropriated in constructing, maintaining, and repairing roads, and for other purposes. The highway commission was given no authority in the acts to which we have referred to make contracts in the name of the State. Its authority was limited to the making of contracts relating to the specific appropriations which had been made to discharge the contracts which the commission was authorized to make. The special act of 1928 contemplated that differences might arise between the contracting parties, and to take care of such controversies a forum was provided wherein and whereby these differences might be settled.

In the proceedings there provided for a judgment might be rendered fixing a liability against the highway commission, but a judgment so rendered would not be a judgment against the State-as such, and could not be enforced by the seizure or sale of the property of the State, as a judgment could be enforced against a private litigant. Satisfaction can be had only out of the fund specifically appropriated for the purpose in regard to which the highway commission was authorized to contract.

The appropriation for the use of the commission is a fwnd set aside for a specific purpose. The highway commission is an entity, or juristic person, created to disburse this money in payment of work which it is authorized to contract for, and, while the appropriation was not made specifically to satisfy judgments rendered against the commission, it 'was contemplated that judgments might be rendered, and the appropriation is the State’s provision for their payment. It was not contemplated that the highway commission should accede to every demand of every contractor, yet it was contemplated that in the expenditure of a sum of money so large the highway commission, in its zeal to protect the fund, might take positions which, if persisted in, would work injustice to some contractor, who could not sue the State as such. Therefore, a forum was constituted where these differences might be adjusted according to applicable legal principles, this forum being the courts at the seat of government in Pulaski County.

A judgment rendered pursuant to this act would not be a “judgment against the State.” It would be only an adjudication that the sum adjudged was due on the contract out of -which the litigation had aiisen, to -be paid out of the appropriation made for’ this and other purposes.

It may be said that § 20 of article 5 of the Constitution of the State gave the State no immunity which it would not otherwise have had, and that this immunity is absolute, with, the exceptions named in the Federal Constitution, which are not applicable here. And it is also well settled that this immunity applies, not onty where the 'State is actually named as a party defendant on the record, but to cases where the proceeding, though nominally against an officer of the State, is really against the State itself, or is one to which the State is an indispensable party. And, as was said by Mr.. Justice Lamar, speaking for the Supreme Court of the United States in the case of Hopkins v. Clemson College, 221 U. S. 636, 31 S. Ct. 654, “No suit, therefore, can be maintained against a public officer which seeks to compel him to exercise the State’s power of taxation; or to pay out its money in his possession on the State’s obligations; or to execute a contract, or to do any affirmative act which affects the -State’s political or property rights.”

However, as we have attempted to show, the purpose and effect of this litigation is not to impose an obligation affecting the State’s political or property rights. The obligation exists independently of the suit, and was incurred when the highway commission -made the contract which the law authorized it to make, and the purpose of the suit is one to ascertain the extent of the obligation thus incurred. No one would question the power of the highway commissioners to adjust the differences out of which this litigation arose, and to- draw warrants against the appropriation in settlement of the agreement reached without additional legislation authorizing them so to do, and this is true because the -State has already, and in advance, appropriated money for this purpose. The State has conferred express authority upon the commission to make contracts, not in the name of tlie State, but in its own name, "like the one here involved, and has appropriated money to discharge such contracts, and when the obligations of such contracts has been ascertained and discharged no burden is imposed upon the State which it had not previously assumed.

In the recent ease of State Highway Commission of Wyoming v. Utah Construction Co., 278 U. S. 194, 49 S. Ct. 104, it was held that a’suit, based upon a contract made by the highway, commission of the State of Wyoming was in effect and in fact a suit against that State, and that, as a State was not a citizen under the judiciary acts of the United States, there v7as no such diversity of citizenship as gave the plaintiff, a citizen of another State, the rig’ht to maintain the suit. But the contract there sued on was executed in the name of the State of Wyoming’, whereas the contract hero sued on was made by and in the name of the agency or entity designated by the General Assembly to expend the appropriation through contracts made for that purpose.

The instant case is somewhat similar to the recent case of Urquhart v. State, 180 Ark. 937, 23 S. W. (2d) 963. As appears from the facts stated in that case, the point really in issue was the extent of the liability of the State for interest upon a contract to purchase a. State convict farm, and the sufficiency of the appropriation and the manner of its passage to discharge the obligation when its extent was adjudged by the courts of Pulaski County, the agency created for that purpose. Upon this feature of the case we there said: “The Legislature itself might have ascertained the amount, both of principal and interest, and have made an appropriation accordingly, but it elected to constitute another agency to make this finding of fact, and made an appropriation in what was assumed to be a sufficient amount to pay both the principal and the interest, and, under the remittitur which has been entered, the appropriation is sufficient. ’ ’ It is time that suit was brought by the State, as the act provided it should be, but the act also provided that the State’s vendor might litigate his claim for interest, and that either party should have the right to appeal from an unfavorable decision.

The instant case is more like that of Grable v. Blackwood, 180 Ark. 311, 22 S. W. (2d) 41. The facts in that case were that Grable brought suit in the Pulaski Chancery Court (and another claimant in the Pulaski Circuit Court) against the State Highway Commission and the individual members thereof to enforce the payment of an outstanding indebtedness incurred prior to January 3, 1927, against a road improvement district duly organized under the laws of the State of Arkansas. We there said that the right to recover depended upon the construction to be given act 153 passed by the Legislature of 1929 (1, Acts of 1929, p. 785). Section 1 of this act provided: “That the highway commission shall, as soon as possible, ascertain the amount of any valid outstanding indebtedness incurred prior to January 1, 1927, against any road district in the State of Arkansas, organized prior to the passage of act No. 11 of the acts of the General Assembly of the State of Arkansas for the year 1927, * * * and shall draw vouchers to be paid out of the appropriation already provided for in act No. 18 of the Forty-seventh General Assembly for the payment of road district bonds and interest obligations; such vouchers shall be delivered to the person authorized to receive the same, on proper satisfaction of such indebtedness * *

We there held that, while the provision for the payment of the claim involved in that case was a donation, we also held that a person holding a claim of the class described might maintain a suit against the highway commission to enforce it, although the funds out of which Grable and the other plaintiff demanded payment were derived from the identical source out of which the plaintiffs here ask payment, and all of- it was the money of the State.

We did not treat the Grable case as a suit against the State, although its purpose was to compel the highway commission to pay out the State’s money. But we treated the appropriation as being a legislative declaration that the merit of the claims had been passed upon and approved and the appropriation itself as- the provision of the State for the discharge of the demand.

In that case the appropriation, so far as Grable and similar claimants were concerned, was a donation. Here the plaintiffs assert contractual obligation against the highway commission itself, and they seek to require the commission to devote a portion of the fifteen million dollar appropriation to the purpose for which it was all intended, to-wit, the payment of the obligations of the highway commission incurred in the construction of the State highway system. The appropriation for this purpose has already been made, and the plaintiffs here are not seeking to impose an obligation upon the State; they pray, rather, that the highway commission devote the fund for the purpose intended by discharging the obligation of the contract which the Legislature had previously authorized the highway commission to make. See, also, Arkansas State Highway Commission v. Kerby, 175 Ark. 652, 300 S. W. 377.

In this controlling respect the instant case is identical with the Grable case, and we can perceive no sound distinction between Grable’s right to sue the highway commission, and thereby compel it to pay his claim, and the right of the plaintiffs here to sue. The object of both suits is identical, that is, to consummate the purpose of the appropriation, which, in one case, was to make a donation, and, in the other, to comply with contracts which ihe highway commission had been authorized to make and had made in its own name.

The case of State ex rel. State Highway Commission of Missouri v. Bates, Circuit Judge, 317 Mo. 696, 296 S. W. 418, involves a principle which the writer and Justice Meicaeey think should be applied and is controlling here, and for that reason we quote somewhat extensively from the opinion in that case, which was a unanimous opinion of the Supreme Court of Missouri sitting in banc.

That case involved two suits against the State Highway Commission, damages being claimed in each arising out of contracts entered into by the plaintiffs with the State Highway Commission. One of these suits was brought in the county where the .construction contract was performed; the other in the county where the highway commission had its domicile and kept its records— the county in which the State capitol was located.

The opinion begins with a quotation from a former opinion of the Supreme Court of that State, where Justice Lamm, speaking for the court, had said: “That the sovereign State may not be sued is a truism,” and while it was added that the sovereign may, by law (under the Constitution of that State), give consent to the citizen to sue it, the point was expressly decided and made the basis of the decision that the suit was not in fact against the State. Immunity from the suit was claimed by the highway commission in that case upon the ground that, as it was an agency of the State, a suit against it was, in fact and in effect, a suit against the State, and could not be maintained for that reason.

In overruling the contention that a suit against the State Highway Commission was a suit against the State, Mr. Justice Graves, speaking'for a unanimous court, said:

“It (State Highway Commission) is an entity, with powers of a corporation, established and controlled by the State for a specific public purpose, but that does not make this legal entity the sovereign State. No contract it is authorized to make is made in the name of this -State, but in the name of the commission. The sovereign State could have contracted for the building of its public highways in its own name, but it chose to create a legal entity for this work. This act gave to this legal entity no part of the State’s sovereignty, but authorized it to proceed to do certain work which, the State could have done by private contract made direct with the State. Thus it has been well said in 14 C. J., at page 75:
“ ‘Although a corporation may be public, and not private, because established and controlled by the State for public purposes, it does not necessarily follow that such a corporation is in effect the State, and so not subject to the rules of law g-overning other corporations, for the State may, by engaging in a particular business through the instrumentality of a corporation, divest itself pro hac vice of its sovereign character, so as to render the corporation subject to the rules of law governing private corporations. Thus, although incorporated banks, established by the State for its own public purposes and owned and controlled entirely by the State, are undoubtedly public corporations, it has been held that they are not for that reason invested with the attributes of sovereignty, but are -mere corporations, and subject generally to the rules of law governing other corporations.’ ”

Alter incorporating into the opinion the above quotation from 14 C. J., the learned judge proceeded to say:

‘ ‘ Such is the status of this commission. It is not the State, but a mere entity created by the State, for the specific purpose of contracting for the building of State highways and bridges, and the maintenance of the same, and doing all other things pertaining thereto. In the language of Walker, J., in State v. Board of Regents, 305 Mo. loc cit. 68, 264 S. W. 701, it was constituted ‘a legal entity, without in anywise lessening the State’s sovereignty.’ It is in no sense entitled to immunity from suit, as is the State. In fact, the State, which created the commission, subjected it to be sued by express statutory provisions. If, on the other hand, it is in fact and in law the State, or the State’s alter ego, the State has consented to suit being brought. The commission is not the State, with the State’s sovereignty (or any part thereof), but is a mere creature of the State, created for the express purpose of performing a specific work. A case fully in point is the case of Gross v. Kentucky Board of Managers of World’s Columbian Exposition, 105 Ky. 840, 49 S. W. 458, 43 L. R. A. 703.”

The learned jurist then cites and reviews a number of cases to the effect that the State is not the real party where it has created a legal entity to do the thing's to he clone.

So here, the State of Arkansas has not contracted to huilcl roads. It has created an entity for that purpose, and has made appropriations in advance to discharge the obligations incurred in that behalf. Building roads is, of course, a public purpose, for the accomplishment of which the public revenues may be expended, hut it is not a work in which only the sovereign State may engage. Other agencies may build roads, and do build them, such as cities and towns and counties and road improvement districts. Here the State has created an entity and conferred upon it power to make contracts, not in the name of the State, but in its own name, and has appropriated the money with which the obligations of these contracts may be discharged.

After holding that suit, based upon a contract made by the State Highway Commission, might be maintained against the commission, it was said by the Supreme Court of Missouri in the case from which we have quoted that the highway commission as an entity was in a class different from pure corporations, and that, as it was created for a purely public purpose, the State could provide the place of a suit against it and the manner of service, and that this was done by making the permanent domicile of the commission in Jefferson City — -the State capitol — and that suit could, therefore, be brought only in the county in which the capitol was located. Here, as we have said, the special act of 1928 malíes the courts of Pulaski County —the domicile of our highway commission — the forum in which suits,must be brought..

There is nothing unusual about those contracts, and there is nothing in the legislation authorizing them to warn a prospective bidder for one of tliem that they do not have the usual attributes of contracts, and are not mutually -binding and enforcible. On the contrary, the State has created an agency or entity to engage in a business not necessarily related to any sovereign function, and the controlling question in the case is whether this agency may be compelled to perform its contracts, as the G-eneral Assembly, acting for the State, intended it should do when the power to contract was given, and as the commission unquestionably has the power to do without being sued. If the commission saw proper to perform the contract sued on, it has the power so to do without obtaining further authority from the General Assembly for that purpose, and we conclude,- therefore, that it may be compelled to exercise this power if the applicable principles of the law of contracts enjoin this duty.

The opinion in the case of Maryland Casualty Co. v. Rainwater, 173 Ark. 103, 291 S. W. 1003, is not inapplicable here. The facts in that case were that State funds had been deposited in a -bank which became insolvent, and it was claimed that the State had the right to enforce its demand against the assets of the bank in preference to other creditors, but in holding ag'ainst that contention we there said: “The State, in making such deposit, was not exercising a governmental function, but only engaged in ordinary business. Its attitude with regard to the transaction was just such as might have been assumed by any individual or private corporation, which might have chosen to lend its money to the bank; and, as said in Callaway v. Cossart, 45 Ark. 88: ‘When a State steps clown into the arena of common business in concert or in competition with her citizens she goes divested of her sovereignty. ’ The State cannot presume, under such conditions, to exercise the ancient prerogative of the king and claim a preference in the repayment of her mollejas loaned to, or deposited in, the failed bank, as- against all other depositors and creditors thereof, having made no intimation or declared no intention in her laws relating thereto that such would be done. She will be held to have waived or abandoned such prerogative right, which cannot be exercised under existing laws.”

• It is therefore the opinion of the writer and of Justice Mehapey that, for the reasons herein stated, the writ of prohibition should be denied, and as the Chief Justice and Mr. Justice Humphreys concur on another ground, it is ordered that the petition for the writ be denied.

Hart, C. J., and Humphreys, J., concur.

Kirby, MoHaney and Butl-er, JJ., dissent.

Hart, C. J.,

(concurring). Judge Humphreys and myself concur in the judgment only.

The most difficult and perplexing question in the case is whether or not the present action is a suit against the State. On the one hand, it is claimed that the State Highway Commission is a legal entity with corporate powers and as such is subject to suit, as decided by the Supreme Court of Missouri in State ex rel State Highway Commission v. Bates, 317 S. W. 696, 296 S. W. 418. On the other hand, it is claimed that the Highway Commission is an agency of the State, and not a separate body politic or corporate, and that a suit against the Commission is a suit against the State itself. Looney v. Stryker, 31 N. M. 557, 249 Pac. 112, 50 A. L. R. 1404; and State Highway Commission v. Utah Construction Co., 278 U. S. 194, 49 S. Ct. 104.

■ • This is a question which each State must decide for itself, and the opinion of the Supreme Court of the United States is only persuasive. In Palmer v. State of Ohio, 248 U. S. 32, 39 S. Ct. 16, the court said that the right of individuals to sue a State in either Federal or State courts cannot be derived from the Constitution or laws of the United States. It can only come from the consent of the State. In Duhne v. State of New Jersey, 251 U. S. 311, 40 S. Ct. 154, it was held that Federal courts have ho jurisdiction of a suit brought by a citizen against his own State without its consent. In Ex parte State of New York, 256 U. S. 490, 41 S. Ct. 588, the court said:

“That a State may not be sued without its consent is a 'fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given; nor'one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification. ’ ’

In that case the court also said that it is now thoroughly settled that what is to be deemed a suit against a State is a question to be determined, not by the mere name of the titular parties, but by the essential nature and effect of the proceeding as it appears from the entire record. The court quoted from Pennoyer v. McConnaughy, 140 U. S. 1, 11 S. Ct. 699, to the effect that where the suit is brought against the officers of the State as representing the State’s action and liability, thus making it, though not a party to the record, the real party against which the judgment will operate, the suit is, within the meaning of the Eleventh Amendment, an action against the State. So, too, where the suit operates so as to require the State to make pecuniary satisfaction for any liability, it would be a suit against the State. Smith v. Reeves, 178 U. S. 436, 20 S. Ct. 619.

It will be noted that in the case of State Highway Commission of Wyoming v. Utah, 278 U. S. 194, 49 S. Ct. 104, the court expressly held that a State is not a citizen, and that a suit between the State and citizens or corporations of another State is not within the jurisdiction of Federal courts as involving diversity of citizenship.

While, as above stated, we must be controlled by our own decisions on this question, still the opinion of the Supreme Court of the United States on the identical question is very persuasive, and is, we think, in line with our own decisions on the question, and should be followed. The obligation to build and maintain adequate public highways, including bridges across rivers, devolves primarily on the State; and we have recognized that the State itself may discharge the obligation or delegate the duty to an subordinate agency. Bush v. Martineau, 174 Ark. 214, 296 S. W. 9.

In Jobe v. Urquhart, 98 Ark. 525, 136 S. W. 663, the court said that the penitentiary board was bufan agency of the State, composed of certain officers thereof, for the conduct and maintenance of the State penitentiary, and that a suit against said board to reform a contract for the purchase of a State convict farm was in effect a suit against the State within the inhibition of the Constitution.

In the present suit a judgment against the Highway Commission would require the State to make pecuniary satisfaction for the liability, and we are of the opinion, that it is in effect a suit against the State. That this view is in accord with the principles declared by the Supreme Court of the United States will be further seen by a quotation from Hopkins v. Clemson Agricultural College, 221 U. S. 636, 55 L. Ed. 890, 31 Sup. Ct. Rep. 654, 35 L. R. A. (N. S.) 243, which reads as follows: "'With the exception named in the Constitution, every State has absolute immunity from suit. Without its consent it cannot be sued in any court, by any person, for any cause of action whatever. And, looking through form to substance, the Eleventh Amendment has been held to apply, not only -where the State is actually named as a party defendant on the record, but where the proceeding, though nominally ag’ainst an officer, is really against the State, or is one to which it- is an indispensable party. No suit, therefore, can be maintained against a public officer, which seeks to compel him to exercise the State’s power of taxation, or to pay out its money in lais possession on the 'State’s obligations, or to execute a contract, or to do any affirmative act which affects the State’s political or property rights.”

This brings us to a consideration of whether article 5, § 19 of the Constitution providing that the State of Arkansas shall never be made a party defendant in any of her courts contains a prohibition, or is merely declaratory of the general rule that a 'State may not be sued without its consent. See ease notes to 42 A. L. R. p. 1405 and, 50 A. L. R. at p. 1408. The State of Alabama contains a similar clause in her Constitution, and it was held that the section was prohibitory, and that the Legislature could not enact a statute allowing the State to consent to a suit against itself. Alabama Girls’ Industrial School v. Adler, 42 So. 116.

We do not consider that case as controlling. The State of Alabama had a clause in its Constitution which provided that no local law shall be passed unless notice of the intention to apply therefor should be published in the county where the matter to be effected was situated, which notice should state the substance of the proposed law, and be published at least once a week for four consecutive weeks in some publication in such county or counties, and the court held that the prohibition was mandatory, and that noncompliance with it rendered the act void. Kumpe v. Irwin, 140 Ala. 460, 36 So. 1024. The court said: ‘ ‘ The journals do not affirmatively show that the act was passed in accordance with the provision of said section (Constitution) in which case the courts are required, without any discretion, to pronounce the act to be void. ’ ’

This court, in construing a similar provision which is contained in article 5, § 27, of our Constitution, held directly to the contrary. In a long line of cases, 'beginning with Davies v. Gaines, 48 Ark. 370, 3 S. W. 184, this court has held that whether the notice was given was merely a legislative question. Again, in 'construing article 5, § 25, of the Constitution, which provides that in all cases -where a general law can be made applicable, no special law shall be enacted, the court has uniformly held that the section was merely cautionary to the Legislature, and that the Legislature was the judge of the necessity of a special statute.

It has been held that article 19, § 9, which provides that the General Assembly shall have no power to create any permanent State office not expressly provided for by the Constitution, falls within the class of provisions like that which forbids the Legislature to enact a special law where a general law can be made applicable (Const. article 5, § 24) and the court has held that class, of provisions to be directory and merely cautionary to the Legislature. Greer v. Merchants’ & Planters’ Bank, 114 Ark. 212, 169 S. W. 802, and Ft. Smith Dist. of Sebastian County v. Eberle, 125 Ark. 350, 188 S. W. 821. We do not regard Pitcock v. State, 91 Ark. 527, 121 S. W. 742, as authoritative, because what was there said expressed the views of two of the judges only.

We are of the opinion that the better reasoning is to the effect that this section of the 'Constitution was not intended to be prohibitory, but that it was merely intended as a declaration that, the State may not be sued without its consent. The reasoning for such a provision in a Constitution is well stated by Mr. Justice Holmes for the Supreme Court of the United States in Kawananakoa v. Polyblank, 205 U. S. 349, 27 S. Ct. 526, as follows:

“Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since the days before the days of Hobbes (Leviathan c. 26, 2). A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the .logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”

A sovereign State which enacts its own laws and creates its own courts and defines their jurisdiction is of necessity exempt from the jurisdiction of these courts except by its own consent. We can perceive no good reason why a State should not consent to being sued in her own courts upon such terms and conditions as her Legislature might prescribe. We do not think that the consent can be given except by the Legislature, which alone can declare the public policy of the State. If the State is to exercise its sovereign power in building roads, and in constructing bridges across navigable streams, it would seem that there should be a tribunal somewhere, which might pass upon the claims of those with whom the agency of the State had contracted with reference to the matter, and what tribunal could be a more appropriate and safe guaranty of the equal protection of the laws than the courts established by the State for the . protection of its citizens, and for such citizens who might come within its borders for pleasure or gain.

The general rule is' that a State which consents to be sued may prescribe such methods, terms, and conditions as it sees fit. Case Note to 42 A. L. R. p. 1477. Among the numerous cases cited in support of the doctrine is that of Auditor v. Davies, 2 Ark. 494.

It is settled beyond controversy that the State cannot be sued in its own courts without its consent. In this case, the State, through the Legislature, has granted the right or privilege to claimants to institute actions against the State Highway Commission upon certain terms and conditions; and all persons or corporations seeking to avail themselves of the right or privilege so granted must do so subject to the terms and conditions Which form a part of the right as granted by the Legislature. In other words, the suits instituted must be limited to such claims as are contemplated by the act authorizing the State to be sued. State of Indiana v. Mutual Life Ins. Co., 175 Ind. 59, 93 N. E. 213, 42 L. R. A. (N. S.) 256, and cases cited.

In short, a sovereign State can only be sued by its own consent; and, when a claimant avails himself of the consent, he must pursue the remedy in the court prescribed by the statute granting- the privilege, and upon the terms and conditions as it is provided 'by the statute.

It must be remembered that it is conceded by all that, without regard to the constitutional provision under consideration, the Legislature may recognize the validity of any claim against the State and appropriate money to pay it; and that it would have the right to designate a subordinate agency such as a court of claims or other board to pass upon the validity of the claims.

Then, too, it will be seen from the case notes above cited that it is a rule of universal application that, in the absence of a provision on the subject, it is an inherent attribute of sovereignty that a State may not be sued without its consent; and many of the States have express provisions in their Constitutions, authorizing the Legislature to pass laws waiving the State’s immunity from suit; and such provisions have been held to be declaratory of the principle that a sovereign State is incapable of being sued without some legislative provision authorizing such a proceeding; and that the statute must be strictly followed, as stated in Auditor v. Davies, 2 Ark. 494; and this, it may also be stated, is the general rale on the subject. All these matters may draw the sting out of the minds of those who fear that the sovereignty of the State may be diminished, or that the efficiency of the State government may be lessened by permitting the Legislature to pass acts permitting the State to be sued in its own courts upon such terms and conditions as it might prescribe. It would put form above substance to say that the Legislature might not permit such suits to be brought in the courts created by the State, but could create other tribunals before whom such claims could be established. At least judicial adjudication is a safe and reasonable way to guarantee that a person shall not be deprived of his property without due process of law.

To sum up, it may be said that when the State Highway Commission was created to construct State roads and. was selected to make contracts to expend the State’s money therefor, it became the State’s agent to do so. Whether it be called a corporate entity, commission or board, it is none the less an agency of the State; for the State may only construct and improve public highways in the discharge of a sovereign function, and it can only exercise that power by committing the discharge of it to agencies selected by its Legislature for that purpose. Therefore, the contracts which the State Highway 'Commission enter into obligates the State and not the Highway 'Commission or its members. Actions against it -are to all intents and purposes suits against the State. It is the State’s property rights that will be affected by the judgment, and the State will be required to make pecuniary satisfaction for any liability. It seems to us that the State’s sovereignty will be better preserved and protected by holding that a 'State may through its Legislature waive its immunity from suit and select the forum and prescribe the terms and conditions upon which it may be sued than to allow the Legislature to parcel out the State’s sovereign functions to various bodies, by whatever name called, and allow them to be sued, thereby accomplishing by indirection what thejr say the State may not do directly.


author: Hart, C. J.,

text:
    Norton v. No Fence District No. 2.
    Opinion delivered April 14, 1930.

      Paul Miller, for appellant.

      A. J. Johnson, for appellee.
   Hart, C. J.,

(after stating the facts). One petition for the annexation of territory was filed on April 29, 1929, with the clerk of the county court. Another one was filed on December 20, 1929. On the third day of February, 1930, the two petitions were consolidated and set for hearing by the county court on the fifth day of March, 1930, and the clerk was directed to give the statutory notice. In giving- the notice, the clerk embraced the land in both petitions in the same notice, and the proof of the publication of the same was duly filed in the county court.

The judgment of the county court recites that the two petitions were consolidated, and notice by publication was given as required by the statute. The order further recites that the court found that the lands set out in the two petitions are adjoining, and that they also adjoin the lands in the original fence district; that each of said petitions is signed by more than two-thirds majority in acreage and value of the lands therein set out, and that it would be to the best advantage that said lands be incorporated and made a part of the original fence district. Judgment was entered in accordance with this finding upon the records of the county court.

"VVe do not think there was any error in consolidating the two petitions for hearing and in giving the statutory notice by embracing the land described in the two petitions in the same notice. The Legislature of 1927 passed an act to authorize additions to fence districts. Acts of 1927, p. 225. Section 1 provides that when any number of landowners owning land near or adjacent to any fence district organized pursuant to law • shall present to the county court a petition in writing*, accompanied by a map giving' the description of the land which they desire to have enclosed in the fence district, it shall be the duty of the county court to give the notice by publication in the time and in the manner prescribed by statute, calling upon all persons interested to appear and show cause why the prayer of the petitioners should not be granted.

An examination of the two petitions shows that this section of the statute was complied with, and no prejudice could have resulted to any one from hearing the two petitions at the same time. The publication of the land described in the two petitions in the same notice was a substantial compliance with the statute. The reason for giving the notice was to enable any one interested to appear and sliow cause why the prayer of the petitioners for the annexation of their lands to the fence district should not be granted. The lands described in the two petitions were adjacent lands as well as being adjacent to the original fence district. No one could have been misled by the publishing of one notice instead of two.

Section 2 of the act which requires the county court to act upon the finding that the owners of the majority in value or acreage of the land annexed was complied with. Indeed, the record of the county court, which is not disputed, recites that a majority of two-thirds both in value and in acreage signed each of the petitions. So it will be seen that the statute in this respect was complied with.

Section 3 of the act provides that from the date of such order all lands which shall become a part of the fencing district shall thereafter be liable for any charges, taxes and assessments that are levied against other lands within the same district; that said lands so enclosed in said order shall be liable for any special assessments made by the commissioners of the district to help' defray the cost and expense of making the alteration necessary to enclose said additional land, and said assessment shall be paid by the owners thereof.

It is the contention of counsel of appellant that this section does not provide any means of assessing the lands in the territory annexed for the purpose of altering the fences. This act must be read in connection with § 4655, et seq. of the Digest, under which the original fence district was established. It was evidently the intention of the framers of the act of 1927, authorizing additions to fence districts, to provide that the assessments should be made in the method prescribed by the statute authorizing the organization of the original districts. It does not in any way violate the provisions of article 5, § 29, of the Constitution, which provides in effect that no act may be amended by reference to its title, but that the act as amended must be set forth at length. The later act simply confers the power upon the county court to annex territory to a fencing district when the requirements of the statute are complied with, and that the assessments made under it should be made under the existing statute as to procedure. Wilson v. Magnolia Petroleum Co., ante p. 391, and cases cited.

The Legislature had the right to change the boundaries of the original fencing district by providing for the addition thereto of adjacent lands when the sections of the act were complied with. Henderson v. Dearing, 89 Ark. 598, 117 S. W. 1066.

We find no prejudicial error in the record, and the decree will be affirmed.


author: Hart, C.,

text:
      Hogge v. Drainage District No. 7.
    Opinion delivered April 14, 1930.

      C. T. Carpenter, for appellants.

      Chas. D. Frierson, for appellee.
   Hart, C.,

(after-stating the facts). The demurrer admits that plaintiffs’ lands have been damaged for a public use, and that the damage has not been ascertained or paid. This court has held that improvements for the protection of river valleys from overflow by building levees and draining them- by constructing ditches may be united in one improvement district. The court has -also held that a drainage and levee district, after building levees on each side of a river and constructing a reservoir thereby, has no right to build a dam at the outlet of the basin between the lower ends of the levees so as to cause flood waters to flow back and destroy the use of land for agricultural purposes; and that for injuries so caused, the landowners are entitled to compensation. Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 923; and Keith v. Drainage District No. 7 of Poinsett County, ante p. 30.

In these cases the court had under consideration damage caused by this same levee and drainage district. A distinction is sought to be made between the principles of law as applicable to these cases and the present one in that the lands in these cases were situated within the boundaries of the levee and drainage district, while in the present case they are situated in another county and without the limits of the drainage and levee district. This does not make any difference. There can be no doubt that obstructing' a navigable or nonnavigable flowing stream and thereby flowing the water back upon the land of another is such a damage as entitles the owner to compensation.

While this court is thoroughly committed in numerous cases to the doctrine that reclaiming lands bordering upon flowing streams by levees and drainage districts is a work of great public importance and should be encouraged, whenever the courts can do so without violating legal principles, in order to develop our State, still there are settled principles of law which courts cannot ignore. The established rule is that the ordinary course of flowing water cannot be lawfully changed or obstructed for the benefit of one class of persons' to the injury of another without compensation in damages. Taylor v. Steadman, 143 Ark. 486, 220 S. W. 821, and cases cited.

In Ex parte Martin, 13 Ark. 198, 59 Am. Dec. 321, the court held that, although the Constitution of the State contained no provision that private property shall not be taken for public use without just compensation, yet this prohibition upon the Legislature is implied from the nature and structure of our government, even if it were not embraced by necessary implication in other provisions of the Bill of Rights. The reason is that, while the right of eminent domain is inherent in the sovereign power, equally so is the vested right to hold property in its citizens, and the right of eminent domain means when the public necessity or common good requires it that the citizen may be forced to sell his property for its value.

Article 2, § 22, of our Constitution expressly provides that private property shall not be taken, appropriated, or damaged for public use without just compensation therefor. Numerous cases including levee and drainage cases are cited in tlie footnote of the section to the effect that under this provision the inquiry is no longer confined to the question whether there has been a public invasion or appropriation of private property for public use, but that compensation may be recovered for any damage of a permanent nature done to the property.

If a drainage district actually takes land, compensation must be made or provided for before the land is appropriated; and if the district concedes that damage will result to lands by the construction of the improvement, such damages may be assessed under the law of eminent domain or by the common-law remedy of the owner in an action for trespass on the land. If the levee and drainage district does not concede that damages will result from the construction of the improvement, an action for damages may be brought by the landowner, when the improvement is constructed, to determine the question whether his lands will be permanently injured, and, if so, to recover the damages. This is in application of the provision of the Constitution above referred to that private property cannot be taken or damaged for a public use without just compensation. Bradbury v. Vandalia Levee and Drainage District, 236 Ill. 36, 86 N. E. 163, 19 L. R. A. (N. S.) 991; and Fort Worth Improvement District No. 1 v. Fort Worth, 106 Texas 148, 158 S. W. 164, 48 L. R. A. (N. S.) 994.

This principle has been recognized and applied by the Supreme Court of the United States in Pumpelly v. Green Bay & M. Canal Co., 13 Wall. 166, 20 L. ed. 557, where the plaintiff’s lands were overflowed by backwater from the construction of a dam, and the legislative authority for its construction was made the basis of the defense to an action for damages. There, as here, according to the allegations of the complaint, the nature of the injuries to the land worked an almost complete destruction of the value of the land and were permanent in their nature. Mr. Justice Miller, speaking for the court, said:

“The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation. It would be a very curious and unsatisfactory result if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the Government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common- law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that, if the Government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction, without making any compensation, because, in the narrowed sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for the invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.”

Again, in United States v. Lynch, 188 U. S. 455, 23 S. Ct. 349, a dam had been constructed by the United States in such manner as to hinder the natural flow of a stream, and, as a necessary result, to cause the level of its waters to rise and overflow the land of plaintiff to such an extent as to cause a total destruction of its value. In consequence thereof the land was rendered totally unfit for agricultural use and it was held liable for just compensation. It was held that when the United States Government by the construction of a dam or other public work so floods land belonging to an individual as to destroy its value, there is a taking of private property within the meaning of the Fifth Amendment.

In United States v. Cress, 243 U. S. 316, 37 S. Ct. 380, the G overument by means of a levee and a dam had caused the waters of the Cumberland River to rise above its natural level so that lands not nominally invaded were subjected permanently to frequent overflows impairing them to the extent of half of their value. A like improvement had caused the waters of the Kentucky River to be raised in the same manner so as to end the usefulness of a mill by destroying the head of -water necessary to run it. The finding of the court was that it was not a case of temporary overflow but a condition of permanent injury from recurring overflows. Consequently, it was held-that such overflowing was a direct invasion of the private property amounting to a taking of it. The court held that the right to have the water of a nonnavigable stream flow away from ripariau land without artificial obstruction is not a mere easement, or appurtenance, but exists by the law of nature as an inseparable part of the land itself.

Again, in Sanguinetti v. United States, 264 U. S. 146, 44 S. Ct. 264, the principle was recognized that where the overflow was the direct result of the structure erected and its effect constituted an actual, permanent invasion of the land, this amounted to an appropriation of the land and not merely an injury to it.

In the present case, under the allegations of the complaint, the injury to the land was not temporary, but permanent. The customary use of the land was agricultural; and, under the allegations of the complaint, the overflow from the backwaters was the direct and immediate result of the construction of the levees and the dam across the St. Francis River. The demurrer admits these allegations to be true, and the action of the drainage and levee district constituted an actual, permanent injury to the land, and not merely a temporary injury to it. ITence there was a damage to the land within the meaning of the section of the Constitution referred to, and the district was liable for the amount of damages suffered.

Some argument is made that the damage might have been caused by the construction of drainage improvements in Craighead County, but these matters cannot be considered in the present appeal. It was not incumbent on the landowner to show the particulars in which the construction of the levees and dam would cause the waters to flow back on his land. That would be to plead evidence. It was not necessary for him to negative the fact that the injury was not caused by the construction of other improvements. It was only necessary for him to allege that, by the construction of the levees and dam across St. Francis River, a reservoir was erected which collected vast quantities of water which heretofore had flowed in other directions, and thereby caused the waters to be collected in the reservoir and rise to an abnormal height, and to flow back upon the lands of the plaintiffs, causing permanent injury thereto and to their crops thereon.

Counsel for the defendant insist that the case falls within the rule announced in City Oil Works v. Helena Improvement District No. 1, 149 Ark. 285, 232 S. W. 28, 20 A. L. R. 296, where it was held that a landowner whose property is left outside of a levee is not entitled to damages because of the failure to protect his land or because the levee, as constructed, may prevent water from flowing off of his land as it otherwise would, or may deepen the water in an overflow of the land between the embankment and the river. We do not think the principles there announced have any application. When lands are left on the outside of a levee, they would be flooded from an overflow in the river whether a levee was constructed or not, and the construction of the levee would only serve to hold the water on the lands longer or to make it deeper, and this damage is not the direct but an indirect cause from the construction of the levee; and because levees are constructed to do the greatest good to the greatest number and because the damages are remote and consequential, there can be no recovery. In such eases the courts hold that there is no invasion of the rights of property. In that case, however, the court recognized that damages produced by independent causes' other than being left outside the levee may still be recovered.

Counsel also rely on the case of McCoy v. Plum Bayou Levee District, 95 Ark. 345, 129 S. W. 1097, to sustain their contention that there was no liability. In that case the landowners organized an improvement district to construct levees with the avowed purpose of confining the waters within the bed of the stream. The object was to prevent the water from overflowing the adjacent lands. The landowners did not obstruct the flow of the waters in the stream, but merely built a levee to protect their lands from overflow. In the present case the levee and drainage district included dams and levees which obstructed the natural flow of the water, and caused it to flow back upon the lands of the plaintiff to their permanent injury. Taylor v. Steadman, 143 Ark. 486, 220 S.W. 821.

Finally, it is insisted that the complaint shows on its face that the cause of action is barred by the statute of limitations. We do not agree with counsel in this contention. The complaint alleges that during the months of June and July, 1928, the defendant by the construction of said levees and their reservoir obstructed the flow of the waters, and impounded the same in said reservoir to so great an extent as to cause them to flow back and completely submerge the lands of the plaintiffs and to destroy the crops thereon. The original complaint was filed on July 16, 1928, and the amended complaint on December 17, 1928. Thus, it will be seen that the complaint does not show that the cause of action was barred.

Inasmuch as the judgment must be reversed and the cause remanded for further proceedings, we will decide what statute of limitations is applicable. Counsel for the plaintiffs claim that § '6950 of the Dig-est which provides that all actions for trespass on lands shall be brought within three years after the cause of action shall accrue. On the other hand, counsel for the defendant claims that % 3942 of „the Digest applies. This section provides that all actions for the recovery of damages against any levee or drainage district for the appropriation of land or the construction or maintenance of other levees or drains shall be instituted within one year after the construction of such levees or drains. This is a special statute limiting- the time when such actions may be brought against levee and drainage districts, and, although it was passed before the enactment of the statute under which the present district Avas organized, yet it Avas in its terms very broad and comprehensive, and applies to all drainage districts which may hereafter be created whether under special or general acts, where no other statute of limitations is provided. See Young v. Red Fork Levee Dist., 124 Ark. 61, 186 S. W. 604; and Board of Directors of St. Francis Levee Dist. v. Home Life & Accident Co., 176 Ark. 558, 3 S. W. (2d) 967.

Therefore, the judgment will be reversed, and the cause Añil be remanded with directions to the circuit court to cwerrule the demurrer, and for further proceedings according to laAV. It is so ordered.