The record-union., 1892-08-04
NOT CONSTITUTIONAL.
The Law Allowing a Turnpike Com
pany to Sue the State.
So Says Judge Prewett Of Placer, and
he Gives His Reasons There
for at Length.

Judge Prewett of Placer County, who
presided here at the trial of the case OF
the CouitervilIe and Yosemite Turnpike
company VS.. the State, for damages in
the sum of S125,000. yesterday filed his
decision. He decides against the plant
if. Following is the decision in full:
The plaintiff brings this action to re cover
from the State the sum of Sl25, 600 damages
by reason of the grant by the state of a rival
franchise to construct u toll road into the 70
semitic Valley.
Primarily no person has a right to sue the
sovereign State; butt claimed by the plaini-
if that authority has been conferred upon 1t
to bring this action, by virtue OF the proVls-
ions Cf a special Act of the Legislature, ap-
proved March 81, 1891. Stats. 1891, p. 275.)
1t becomes neces ;ary at the outset, there
fore, to ascertain whether or not the Act in
question is operative tor that purpose There
is no general law permitting actions OF this
class and II the action can be maintained at
all IL Is by virtue OF the privilege conferred by
said special Act.
Numerous questions of more or less i'm
portance present themselves tor solution in
this action, many of them important by rea-
son OF the abstract propositions involved and
all OF them important by reason of the very
large interests involved.
1t is commended by the Acknowledgement
that the Act above quoted Is void for the rea-
son that IL attempts TO confer a special or
exclusive right or privilege" contrary to Part
19, Section %, Article ~. of the COnstitu-
ton; and, also, that it violates Section 21 OF
Article l. OF the Constitution, because IL con-
1ers right not granted upon the same terms
To all citizens.
The question is not entirely free from diff
Guilty and this difficulty is not lessened by the
fact that the Supreme Court OF Minnesota
(3S Mimi. 1865 hold that a right of appeal
from board of commissioners is not the
grant OF an exclusive or special right or priv
llege. y careful examination OF the case
however viii show that the Act under re
View amounted TO no more than the appro.
priation OF sum of money for a given pur.
pose and provided a convenient means OF
ascertalning the precise amout due.
If the right or privilege Of bringing this suit
is in fact a right or privilege, then the Act is
void, for 1T is not contended that the right is
notspecial.
The right to sue the State is clearly a
'right,' otherwise the very statement of the
proposition involves q contradiction of terms
Inc language OF the statute is ARE hereby
authorized The right to sue the state did
not exist before the enactment of the statute,
and If 1t does exist il is a right granted by the
statute, and if it is right granted by the
statute, then it is clearly special and is pro-
hlblted oy the express language of the Con-
stitut1on.
1t is earnestly contended that the Minnesota
case sustains the position of the PLAINTIFF; but,
without further assuming to criticise that
case, must hold that if language means any
thing at all, the grant of a right or privilege
to the PLAINTIFF 10 sue the State n RIGHT or
privilege which it did not previously possess,
is the grant of special right or privilege and
1nhlblted by the Constitution. | do not think
tlls court or any other can reason out from
the mandatory and prohibtory language OF
Section 2 OF Article l., and paragraph 9
OF Section 20 of Article ". of the ConStitu-
ton any hair-splitting theory that would sat-
1sfy the requirements of the contention that
the Constitution does not mean what it so
plainly says. It is often and properly urged
Ihat court should not lightly hold q solemn
act OF the Legislature void unless the reasons
IN support or such q view are clear and ire
slStible. accede fully to this Droper do Urine.
put insist no less upon the equally estab-
hShed doctrine that courts are in q like de-
gree bound to conStrue the Constitution and
statutes according to the plain and ordinary
acceptat1on oftheir terms. No sort ofsophistry
can make the authority conferred anything
less than q rig int or privilege. That is what il
IS IN fact, and that is what it is in law and it
Is clearly the duty OF the court 10 SO hold. In
70 Cal. 81, the Supreme Court is committed
10 the doctrine that it is a right, by designat-
ing IL as such. Even if an avenue of escape
can be found along which the contrary might
seem plausible, 1t would only emphasize the
TACT that according 10 the plain and ordinary
import OF the terms the Supreme Court were
right in their application OF the word.
The word right" is defined by Webster as
follows:
fright. That which one has a legal or social
claim to do. or exact: legal power, authority,
privilege or immunity granted by authority
privilege" is defined by the same author
1ty as follows: "Privilege-A peculiar benefit
advantage or favor, right or inn
prerogative; advantage or franchise"
1t is apparent from the definitions that the
language of the Constitution can be inter
preted by no sort OF ugglery to sustain the
contention of the plaintiff.
1t is urged that the Act in question violates
par. SO OF Sec, 25 of Art W above referred
TO, IN that general law could be made appli-
cable. 1t is obvious that the question must
IN many cases be one of mere Opinion and nor
always reieraole TO any fixed standard. Men
ana courts OF equal industry will arrive at
dluerent conclusions as to whether a given
subject matter may be eifectually covered by
q general law.
Only the most satisfactory belief would
warrant me in holding that a general law
could be made applicable. Ii the subject
could be enectually and properly covered by n
general statute that was wholly effective and
operative, embracing under general classical
ton cases of which the one under considera-
ton would be one, then without doubt the
paragraph in question would be viola ed
That such law could be made applicable is
altogether obvious. y general law can GER
tainly provide fully and properly for suits
against the state by all persons having claims
against IL. 1t would seem that in all respects
II would be wiser and better either to grant
the right to sue in no case, or to prescribe by
general and uniform rules the conditions UNI
der which that privilege may be enjoyed
it's contended, however, that the provision
OF the constitution (See. ., Art. H., provid-
Ing that suits may be brought against the
State IN such manner and in such courts as
may be directed by law, is n sufficient
warrant for special legislation uron the
subject. The Act under review is GER
1atnly Flaw" within the meaning of that
term ii it is a valid enactment at all II not
only provides in what manner the salt shall
De brought, but in what court and in whaJ
special manner the summons shall BE- ssrged
anu II the contention of the plaintiff is correct.
II has in eflect provided what the facts ar,
upon which the court Is expected to adfudi-
cate IL mas directed by law" if the law is
otherwise valid.
But II was not contemplated by the trainers
OF the Constitution that other plain pro isions
OF the constitution should be disregaraed in
enforcing section 6. Enactments do signed 10
carry out this section must not be repugnant
10 other provisions. Sections g. ! ana D Of
actments by the Legislature and with exactly
the same propriety 1t could be urged that be-
cause provision Is made in the Cons titutton
.1or legislation upon the subjects therein pr,-
ylded for, such legislation might take the
form of special enactments The same oh
servattoa applied to a very large number of
olderent sections of the Constitution.
The Act under review does not violate said
oec1on .: but IL does violate those provisions
olreeted against special legislation. Because
Tie Constitution provides that the law may
provide in what manner and in what courts
means follow that such object may be attained
by special legislation. Section does not rur-
port 10 grant any power TO provide that GER
tain plaintiffs TO be named and none others
may Sue the State, but simply that the Isagis-
leture may provide for suits against the State
III.
The attempt of the Legislature in the Act
under review to find the facts upon which the
court should determine the rights OF the mar
ties is asSailed as an encroachment upon the
exclusive power of the courts to adiudicate
the pNiStence facts While This IL 4r,,o n -,