
    SERVICE UPON THE STATE IN AN ACTION ON ACCOUNT OF OVERFLOW OF WATER. FROM CANAL SYSTEM.
    Common Pleas Court of Mercer County.
    Albert Palmer, for Himself and Others, v. State of Ohio.
    Decided, April 25, 1916.
    
      Actions Against the State — Recent Constitutional Amendment Providing for — Is Not Self-Executing and Requires Further Legislation— Right Conferred Without a Remedy — Claims Against the State for Damages from Overflow of the Canal System.
    
    1. The amendment to Section 16 of Article I of the Constitution adopted September 3d, 1912, providing that, “suits may he brought against the state, in such courts and in such manner, as may be provided by law,” is not self-executing and requires ancillary legislation to give it effect, and until this is done the amendment is inoperative and confers a mere right without a remedy for the enforcement thereof.
    2. Sections 455 to 468 inclusive of the act of March 6th, 1913 (103 O. L., 125), authorizing the superintendent of public works to appoint three commissioners to consider claims against the state for damage to private property on account of the overflow thereof by water from the canal system, do not provide a remedy by suit against the state within the meaning of the amendment.
    
      I. F. Raudabaugh, John Romer and S. S. Scranton, for plaintiffs.
    
      Edw. C. Turner, Attorney-General, and C. R. Bell of counsel for defendant.
   Bowman, J.

This is a suit against the state on a claim for damages on account of waters of the canal system thereof negligently overflowing plaintiff’s lands.

Service was obtained by issuing a summons directed to the sheriff of Franklin county, which was duly served upon the Governor at Columbus, in said county.

The case is now submitted to the court on the motion of the Attorney-General to quash the service for the reason that the issue and service of summons against the state is not authorized by law.

That a sovereign .state can not be sued in its own courts or in any other court without its consent is an established principle of jurisprudence. Not that there is no liability and no claim, but that there is no remedy; not because of freedom from liability, but lack of a tribunal in which to show and enforce the liability. Coster v. Mayor of Albany, 43 N. Y., 408; Ohio, ex rel, v. Board of Public Works, 36 O. S., 415. It may, however, waive this privilege and permit itself to be sued by individuals. Beers v. Arkansas, 20 How., 527, 529; Hans v. Louisiana, 134 U. S., 13, 17; North Carolina v. Temple, 134 U. S., 22.

It must be conceded, that such consent was given by the amendment to Section 16 of Article I of the Constitution adopted September 3d, 1912, which provides that:

“Suits may be brought against the state, in such courts and in such manner, as may be provided by law. ’ ’

It is urged, however, that the Legislature has not' provided in what manner, nor in what courts, suits may be brought against the state, and that until it does so, the suit can not be maintained. In other words, that this amendment to the Constitution is not self-executing, but that legislation is necessary to give the same effect.

While prohibitory provisions in a constitution are usually self-executing to the extent that anything done in violation of them is void, affirmative self-executing provisions may be found in every modern constitution, and require no legislation to put them into operation, but as said by Mitchell, J., in Willis v. Mabon, 48 Minn., 140, speaking for the court at page 150:

“The question in every case is whether the language of the constitutional provision is addressed to the courts or the Legislature — does it indicate that it was intended as a present enactment, complete in itself as definitive legislation, or does it contemplate subsequent legislation to carry it into effect?”

Or, as said by Ramsey, J., in State v. Harris, 74 Oregon, 582:

“Constitutional provisions are self-executing where it is the manifest intention that they should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given, or the enforcement of a duty or a liability imposed.”

In Cooley on “Constitutional Limitations” (7th Ed.), 121, the author says:

“A constitutional provision may be said to be self-executing if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed enforced, and it is not self-executing when it merely enacts principles, wfithout laying down rules by means of which those principles may be given the force of law.”

Conceding that this amendment should be so construed as to give effect to the intention of the framers and the electors who adopted it, and that they should be taken to have intended what the language used means, and that the right is thereby given to sue the state, the language employed would indicate that the courts in which such suits may be brought, and the manner thereof, are not determined nor provided thereby but are to be referredto the Legislature for action.

While the judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas and courts of probate, and such other courts inferior to the courts of appeals as may from time to time be established by law, the amendment does not provide that courts as present established shall have jurisdiction to entertain suits against the state, or if so which thereof, but such courts only as may be provided by law. If in such courts only as may be provided by law, it is made the duty of the Legislature to establish courts to entertain such suits, or to confer at least such jurisdiction upon some one or more of the courts now established.

So, too, existing provisions of the code of civil procedure as to the manner of such suits shall not apply and govern unless so provided by law. It is not left to the plaintiff to select the court in which to sue the state, nor the manner thereof, and until the Legislature has provided both, the right to sue the state conferred by the amendment is a mere right without a remedy for the enforcement thereof.

The amendment is not, therefore, self-executing and complete .in itself, but permissive only and dependent on the action of the Legislature to put it into operation. Not only does it not execute itself, but it does not furnish the courts with any means cf executing it. It is a mandate to the Legislature and does not become effective until legislative action. It contemplates subsequent legislation in its aid to make it operative and to give it effect, and until this is done, it is not in the power of the court to give it effect. It is apparent, therefore, that the amendment was addressed to the Legislature and not to the courts.

These provisions of the amendment as to what courts and the manner in which suits may be brought against the state can not be east aside as so much “dead wood.” We must presume that the framers and the people who adopted the amendment, must have inserted these provisions with a clear vision of a fixed purpose which we can not disregard.

If to make the amendment dependent on the action of the Legislature is to make it subject to be defeated by the inaction of an unfriendly Legislature, it was within the power of the people had they so desired, to have so framed it as to require no legislation to put it into operation, but failing to do so it is not for the courts to give it effect without such legislation, and such failure would be a wrong for which there is no judicial remedy. Chicago, etc., Ry. Co. v. State, 53 Wis., 513.

That a constitutional amendment providing that “suits may be brought against the state in such manner, and in such courts, as shall be directed by the law, ’ ’ confers a right simply to prosecute a claim against the state, but that no such suit may be brought thereon until the Legislature has established courts for that purpose, or authorized those established to entertain jurisdiction, and likewise providing for the manner of such suits, see, Galbes v. Girard, 46 Fed., 500. To the same effect, in cases involving similar constitutional provisions, see, Beers v. State, 20 How. (U. S.), 527; Oil Co. v. Crain, 117 Tenn., 82, 89; State v. Mortensen, 69 Neb., 385, 386; State v. Yount, 7 Neb., 101; Chicago, etc., Ry. Co. v. State, 53 Wis., 509, 513; Northwestern, etc., Bank v. State, 18 Wash., 73; Tate v. Salmon, 79 Ky., 543; Commonwealth v. Haly, 106 Ky., 716, 718.

It is confidently asserted, however, by counsel for the plaintiffs, under authority of Chisholm v. Georgia, 2 Dallas, 419, that until the Legislature provides differently, existing laws should control as to courts having jurisdiction of such suits, and the manner thereof, and that service of process on the Governor or Attorney-General is sufficient service on the state.

The question, however, before the court in that ease was not whether the state courts have power to entertain suits by individuals against a state without its consent, but whether a state may be sued in the federal courts by its own citizens, and as said by Bradley, J., in Hans v. Louisiana, 134 U. S., 11, the decision created such a shock of surprise throughout the country, that at the first meeting of Congress thereafter, the eleventh amendment to the Constitution was almost unanimously adopted, and in due course adopted by the legislatures of the states, and that “this amendment expressing the will of the ultimate sovereignty of the whole country, -superior to all legislatures and all courts, actually reversed the decision of the Supreme Court.”

Claim is made by counsel for the state, that Sections 455 to 468 inclusive of the act approved March 19, 1913 (103 O. L., 125), were enacted in obedience to said amendment to the Constitution and to make it operative and effective, and that specific provision is made therein for determining claims for damage to private property on account of overflowing their property by the waters from the canal system of the state, and that such provision is by its terms exclusive.

The provision is for the superintendent of public works to appoint three commissioners to consider such claims, with power to examine property injured, hear testimony and award the claimant such damages as they deem just, and which award shall be submitted to the General Assembly and payment to be made from moneys exclusively appropriated for that purpose.

Is this a remedy by suit against the state within the meaning of the amendment? If so, it is exclusive; otherwise not. The amendment contemplates a suit in court. In legal phrase, a suit is the prosecution of some claim, demand or request in a court of justice. Callen v. Ellison, 13 O. S., 453; Railroad Co. v. Larwill, 83 O. S., 116; Weston v. City Council of Charleston, 2 Peters (U. S.), 464.

Now a court of justice is a tribunal empowered to hear and determine questions of law and fact, either with or without a jury, upon pleadings, either oral or written, and upon evidence to be adduced under well defined and established rules according to settled principles of law.

Applying this principle to the claim that the remedy provided by said act is exclusive, it is not difficult to come to the conclusion that the amendment to the Constitution contemplated a suit in courts which shall be open and in which every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and justice administered without denial or delay as guaranteed by Section 16 of Article I of the Constitution, and of which it became a part upon its adoption.

The commission to be appointed by the superintendent of public works is neither a court within the meaning of the Constitution, nor is the prosecution of a claim before such commission in the nature of a suit in a court of justice. This act did not, therefore, make operative said amendment to the Constitution nor carry it into effect, and while it may be the only remedy now open to the plaintiffs, it is not exclusive in the sense that it is the remedy secured by said constitutional amendment.

Motion sustained.  