State Ex Rel. Del Curto v. District Court of Fourth Judicial Dist. ( 1947 )

I dissent.

The prevailing opinion is not quite accurate in stating that the majority in the opinion on former appearance before us of this litigation "granted a motion to recall the original mandate and ordered the issuance of a new one in which the direction to dismiss was omitted." The majority in that case accomplished more than that. Indeed, they made no specific direction as to issuance of a new mandate at all. They simply deleted from the opinion on file the direction for a dismissal upon remand and substituted for such language, the following:

"The judgment is reversed and the cause remanded with direction to the trial court to set aside its judgment and for further proceedings consistent with and conformable to the views herein expressed."

The foregoing is said to demonstrate that the order entered on motion to recall mandate, in effect, was an opinion on rehearing since it removed from the opinion filed one direction to the district court on how to proceed following remand and substituted therefor another direction. Necessarily, the change was for the purpose of giving the plaintiff an opportunity to satisfy the trial court that the Commissioner could properly be made a party defendant, either with or without his consent. This was a decision the majority in the former opinion expressly declined to make since the matter was not before this court for review, never having been ruled upon by the trial court. The latter court, theonly court having original jurisdiction to decide the question took the view that neither the state nor the Commissioner was a necessary party to the suit.

That the matter was never passed upon by the court in the former opinion is abundantly demonstrated by excerpts from the opinion. At one point, we said [49 N.M. 292, 163 P.2d 258]:

"The jurisdiction of the Commissioner not ever having been invoked by any of the transaction, as between any of the parties, touching upon the use of the lands by one not a party to the lease, and himself a stranger to the Commissioner, and this proceeding not arising out of a contest action before the Commissioner, and the Commissioner not being made a party hereto, can this suit be maintained?"

Again, at another point, the opinion reads:

"* * * Certainly, in any event, the jurisdiction of a court of equity may not be invoked absent this necessary and indispensable party, the Commissioner.

"The Commissioner is not a party to this litigation."

Further on, the opinion proceeds:

"And, whether the Commissioner could be made a party to such suit without his consent, we, likewise, need not, and do not decide. We know that in State ex rel. McElroy v. Vesely, 40 N.M. 19, 52 P.2d 1090, mandamus was employed without question of its appropriateness if it could be said that a clear legal duty rested upon the Commissioner to respect a clear legal right. See also American Trust Savings Bank of Albuquerque v. Scobee, supra [29 N.M. 436, 224 P. 788], in this connection."

In the former opinion, it was clearly held that the Commissioner was an indispensable party. As already pointed out, we expressly declined to offer a gratuitous opinion on whether he could be made a party, no effort having been made to join him as such and any declaration on the subject operating to review no ruling of the trial court. Accordingly, in a motion to recall the mandate, the plaintiff informed this court of the Commissioner's willingness to enter a voluntary appearance in the case and asked such an amendment of the mandate as would give the lower court power to act upon the application for leave to appear. We so amended the language of our opinion on file as to permit this. And, now, the defendants in that case, but as the relators here, seek by prohibition to deny the district court the exercise of jurisdiction, obviously possessed by it, to determine in the course of trial whether the appearance before it of a state official as a party litigant amounts to an unwarranted appearance by the state. The present majority sustain them in this claim.

If the defendants be correct in this contention, then when this court entertained appeals in State ex rel. Evans v. Field,27 N.M. 384, 201 P. 1059; American Trust Savings Bank of Albuquerque v. Scobee, 29 N.M. 436, 224 P. 788; State ex rel. Otto v. Field, 31 N.M. 120, 241 P. 1027; Looney v. Stryker,31 N.M. 557, 249 P. 112, 50 A.L.R. 1404; Arnold v. State, 48 N.M. 596, 154 P.2d 257, and others unnecessary to cite, where the state's immunity to suit was involved, we were reviewing judgments and decrees that were complete nullities and might have been ignored as such in the absence of direct review.

In this very case, where presence of the state as an indispensable party was urged by motion as a ground for dismissal and the motion denied, could it be successfully maintained that, absent a direct review, the judgment entered would be a nullity as between the plaintiff and defendant, granting the same would not be binding on the state? Cf. Mann v. Whitely, 36 N.M. 1,6 P.2d 468. If not, then the district court had jurisdiction to render it even though it determined erroneously, as in our former opinion we held it did, its power to proceed. State ex rel. St. Louis Rocky Mountain Pacific Co. v. District Court, 38 N.M. 451, 34 P.2d 1098.

In the group of cases cited, supra, involving the state's immunity from suit, it so happens that in each of them the claim to immunity was sustained. But the claim is not always well taken. Board of Trustees of Town of Casa Colorado Land Grant v. Pooler, 32 N.M. 460, 259 P. 629; Gamble v. Velarde, 36 N.M. 262,13 P.2d 559. See, also, the historic case of United States v. Lee, 106 U.S. 196, 1 S. Ct. 240, 27 L. Ed. 171. As indicated in the Pooler case, supra, the matter is one rarely easy to decide.

In that case, this court said [32 N.M. 460, 259 P. 630]:

"Whether a suit nominally against individuals is really against the state is not always easy to decide. The question has given the courts much trouble, and in some situations its consideration has disclosed contrariety of opinion. See case notes, 108 Am. St. Rep. 830 and 44 L.R.A.(N.S.) 189."

In both the cases of Board of Trustees v. Pooler and Gamble v. Velarde, cited supra, the claim, although interposed, was not sustained. Are we to understand that our district courts have jurisdiction to resolve the issue when they determine it correctly but not when they decide it erroneously? In answer to a similar contention in State ex rel. St. Louis, Rocky Mountain Pacific Co. v. District Court, supra, we said [38 N.M. 451,34 P.2d 1099]:

"It is argued that `subject matter,' as the term is used in the Gilmore Case [(Gilmore v. District Court), 35 N.M. 157,291 P. 295], means not jurisdiction of workmen's compensation litigation, but, to be specific, jurisdiction of claims filed within the statutory time. That is to say, the statute confers jurisdiction upon the district courts to award compensation to those entitled to it, not to those not entitled; to render some judgments, not others.

"We consider the law settled to the contrary in this state. Here the test of jurisdiction is not the right or authority to render a particular judgment; it is the right or authority to render any judgment."

In the Heron case, 46 N.M. 296, 128 P.2d 454, at page 458, after referring to the foregoing exposition on prohibition in the St. Louis, Rocky Mountain Pacific Co. case, supra, we applied a test which still obtains. Mares v. Kool, 51 N.M. 36,177 P.2d 532. We said:

"We think it fair to say of our decisions on the question when to prohibit, in line with what has just been quoted from State ex rel. St. Louis, Rocky Mountain Pacific Co. v. District Court of Eighth Judicial District, supra, that if, absent prohibition in the given case, the judgment therein rendered, unless reversed for error on direct review, would be binding on the parties and not subject to collateral attack as a mere nullity, then prohibition will not lie; otherwise it will."

Unless the judgments reviewed by us in the many cases cited supra, brought here by appeal and involving the question of the state's immunity to suit, all were nullities; unless, in disregard of our former decisions in the cases of State ex rel. St. Louis, Rocky Mountain Pacific Co. v. District Court,38 N.M. 451, 34 P.2d 1098; State ex rel. Heron v. District Court,46 N.M. 296, 128 P.2d 454; Mares v. Kool, 51 N.M. 36, 177 P.2d 532, and many others which might be cited, we are to transform prohibition before us from a yardstick of jurisdiction into a vehicle for review, then the alternative writ herein was improvidently issued and should be discharged.

It should be remembered that all we held in Burguete v. Del Curto, 49 N.M. 292, 163 P.2d 257, 260, was that, upon the state of the record as it then stood, the plaintiff could not proceed because of the absence of an indispensable party — the state as owner of the land under lease. At times we mentioned the Commissioner of Public Lands as the indispensable party, unquestionably thinking of him as synonymous with and the representative of the state and at other times contemplaing him as a party when not so viewed, as in connection with our citation of the Vesely case on the question whether the Commissioner could be joined without his consent, where we said:

"We know that in State ex rel. McElroy v. Vesely, 40 N.M. 19,52 P.2d 1090, mandamus was employed without question of its appropriateness if it could be said that a clear legal duty rested upon the Commissioner to respect a clear legal right."

The point is that we did not go beyond the holding that the state or the Commissioner was an indispensable party. Whether under the special facts of this case the state, or the Commissioner if his presence amounts to a joinder of the state, would enjoy the sovereign's immunity from suit, or whether under the law and facts, consent could be derived; or whether, under the dominion accorded the Commissioner over public lands and his expressed willingness to appear as a party, even viewing his appearance as that of the state, it could be treated as an intervention with him as the actor and the proceeding regarded as one by rather than against the state — all are questions which remained open, unsettled and undetermined at the time of our decision in the former case. Notwithstanding the state's immunity to suit, none could question the Commissioner's right as a plaintiff to become a party to suits of many kinds in protecting the state's interest in public lands where jeopardized.

All that our further order on motion to recall and amend the mandate accomplished was to correct the erroneous direction in the opinion filed calling for a dismissal and thus leave it open for the district court to exercise its unquestioned original jurisdiction to settle and determine these matters. They were questions that had never been decided arising on our decision that the state was a necessary party. The district court was the only court having original jurisdiction to determine them in the first instance.

Laying aside momentarily any possibility of plaintiff securing presence of the state as a party in a manner that would not amount to a suit against the state, let us suppose this to be a case where the state had consented to be sued. We know as a fact that the state has consented to suit in certain cases. Should we order a dismissal and deny to the plaintiff the privilege of asking leave to amend to make the state a party? Obviously not. The direction should be one for "further proceedings" consistent with the opinion. That is exactly what we have done here. We have given the plaintiff an opportunity, if he can, to show consent of the state to be sued and thereupon to join it as a defendant; or, to secure its presence as a party voluntarily, in the capacity of an actor, such as an intervenor or otherwise, in any manner open to the plaintiff. The fact, if it be a fact, that the plaintiff may be unable to do so is no proof whatever that the trial court lacks jurisdiction to hear and determine the matter.

My opinion remains the same as that entertained at the time we were considering plaintiff's motion to recall and amend mandate in the former case. In a memorandum circulated among the justices at that time, I stated:

"The only question for serious consideration by us, it seems to me, is whether we should now of our own accord go into the question of the plaintiff's right to get the Commissioner in as a party under any condition or conditions and if we conclude he can not, then let the present mandate stand. I do not favor such a course because it is really a matter for presentation to, and decision by, a Nisi Prius Court in the first instance, its ruling on the matter to be reviewed by us. Hence, we should be exercising an original jurisdiction properly belonging to the trial court, not a proper appellate jurisdiction, and that, too, on a question neither briefed nor argued before us thus far."

The district court has unquestioned jurisdiction to determine whether an appearance by the Commissioner of Public Lands, under the circumstances, amounts to an appearance by the state; and, as well, the further question whether the state can become a party to the suit, voluntarily or otherwise. If these questions be erroneously decided, the remedy of an aggrieved party is by appeal, not prohibition.

Accordingly, the alternative writ should be discharged. The majority concluding otherwise, the foregoing is to express my complete disagreement both with the result and the reasoning of the prevailing opinion.