Ark. State Highway Comm. v. Cunningham , 239 Ark. 890 ( 1965 )

Paul Ward, Associate Justice.

This litigation stems from an attempt by T. H. Weaver to enforce an alleged oral promise by the Arkansas State Highway Commission (hereafter referred to as Commission) to “blacktop a loop of highway” through Charlotte in Independence County.

When a complaint was filed in chancery court by Weaver against the Commission for the purpose mentioned above, the Commission filed in this Court a “Petition for Writ of Prohibition,” asking us to prohibit said chancery court and the Judge thereof from trying the cause of action. The only issues are the questions of law raised by the pleadings.

The complaint filed by Weaver sets out, in substance, the following allegations: (a) Plaintiff is a resident of Independence County and is the owner of certain (described) land; (b) The defendants are (naming the five members of the Commission), and certain agents of the Commission — both, “individually and in their representative and official capacities”; (c) State Highway No. 25 (which by-passes Charlotte) is located on Weaver’s property; (d) When No. 25 was being relocated (to cross his land) he “entered into an agreement with” the defendants wherein he (Weaver) “would furnish the right-of-way (for No. 25) through his said property free of charge to the defendants and to Independence County” and in consideration thereof “the Arkansas Highway Commission would blacktop a loop of the highway through Charlotte”; (e) Pursuant to the above agreement he allowed defendants to construct No. 25 which severs his land and diminishes the value thereof; (f) After No. 25 was completed through his land the Commission failed and now refuses to fulfill its obligation to construct the “loop”; (g) He has no recourse except against these defendants, since the county is wholly without funds. The prayer was for specific performance of the said agreement, or (as alternatives) that the defendants individually and the general public be enjoined from using that portion of No. 25 which crosses his land, or that the right-of-way be restored to him, or that he be awarded damages in the sum of $20,000.

There are presented for our consideration two principal questions: One, does the Respondent have jurisdiction of the parties and the subject matter; and, Two, is prohibition the proper remedy.

One. We agree with the Petitioner that the Respondent has no jurisdiction to try any of the issues raised in the complaint filed by AVeaver. The Arkansas Constitution, Article 5, § 20 provides: “The State of Arkansas shall never be made defendant in any of her courts.” Certainly that language is too plain to require comment. The pertinent issue then is whether this suit against the Commission amounts to a suit against the State. This issue had been clearly resolved against the Respondent by many descisions of this Court. See: Pitcock v. State, 91 Ark. 527, 121 S. W. 742; Watson v. Dodge, Ark. 1055, 63 S. W. 2d 993; Arkansas State Highway Commission v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394; Bryant v. Ark. State Highway Comm., 233 Ark. 41, 342 S. W. 2d 415.

In the Pitcock case, which involves a contract entered into by the State Penitentiary, this Court said:

“The first and only question necessary for us to determine in this case is whether or not this is a suit against the State; for, if it is, then the chancery court was wholly ivithout jurisdiction to proceed, and all orders and judgments attempted to be rendered therein were void.”

The court then held the suit to be against the State. In the Watson case, there appears this paragraph:

‘ ‘ In addition to the authorities just cited, this court held in Caldwell v. Donaghey, 108 Ark. 60, 156 S. W. 839, that the State could not be sued in her courts for specific performance of a contract made in her behalf.”

In the Bryant opinion there appears a statement which is pertinent to the matter here under consideration:

“Indeed, the present proceeding has no purpose execpt to force the Highway Commission into court, Avhere a claim for damages can be asserted against it by the appellants. We must conclude that this proceeding falls within the constitutional inhibition against suits against the State. If the appellants have a right to compensation —a point upon Avhich Ave need not express an opinion— they are limited, as Ave said in the Part am case, supra, to filing an administrative claim for such relief as the State may see fit to provide.”

It is pointed out that Weaver is not attempting to seek relief from anyone except the Highway Commission. In the complaint it is stated “that the Ark. Highway Commission Avould blacktop a loop highway through Charlotte.”

Two. Respondent makes a Avell reasoned contention to the effect that prohibition is not the proper remedy because the Petitioner had the right of appeal from any adverse decision that might have been made by the trial court. In our opinion, however, the uniform decisions of this Court refute such contention. In Monette Road Improvement District v. Dudley, [Judge], 144 Ark. 169 (pp. 175-176), 222 S. W. 59, there appears the following statements:

“So it is thus settled that where 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 superior court exercising supervisory control over the inferior court may prevent such unauthorized proceedings by the issuance of a writ of prohibition. The essential thing is, that it must be shown that the inferior’ court is about to proceed beyond its jurisdiction, and that fact is said to be the jurisdictional one upon which the right of the supervising court to issue the writ of prohibition depends. “It is contended by counsel for the respondent that the remedy by prohibition not being an absolute .one, but discretionary, the writ should be denied where there is a remedy by appeal or otherwise, even though the court sought to be restrained was about to proceed beyond its jurisdiction.

“If the absence of the right of appeal was essential to the issuance of a writ of prohibition, then that remedy would be entirely unavailable in any case, for under our Constitution the right of appeal is granted in all judicial proceedings. The true test is, as stated in the case already cited, whether or not the court is proceeding beyond its jurisdiction; and when that state of facts is shown to exist, the remedy by prohibition is the appropriate one.”

Likewise in Ark. State Highway Commission v. Dodge [Judge], 181 Ark. 539 (p. 541), 26 S. W. 2d 879, we said: “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.”

In the case of Faver v. Golden, 216 Ark. 792 (p. 796), 227 S. W. 2d 453, this Court said:

“It is also true that the remedy by prohibition is discretionary with the court and is used cautiously . . . . Issuance of the writ depends on the inadequancy, rather than the absence, of the remedy by appeal. Monette Road, Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59. Hence, we have held that the great expense of money and length of time required in an election contest render the remedy by appeal inadequate as to petitioners.”

In accordance with what we have said above, the Petition of the Commission is hereby granted.

McFaddin, J., dissents.