Graham v. State ( 1918 )

Dissenting opinion by

Mr. Justice Fraser.

I cannot concur in the opinion of Mr. Justice Hydrick. This is an action for loss of profits. It seems to me that the act under which this action is brought provides for three things : (1) It removes the State’s immunity from suit; (2) it states the measure of the State’s liability, to wit, the liability of a private corporation; (3) the Attorney General shall defend, that is, he shall set up the available defenses.

It seems to me that the words “if any” negative the idea of an admission of liability. If a private corporation would not be liable, then by the terms of the act the State is not. To illustrate, a private corporation has bound itself to sell to another a certain amount of spirituous liquor. Before the elate of the delivery the State forbids the sale and delivery of spirituous liquor. The buyer could not recover his lost profits. The prohibition law is a complete defense. Whatever the legislature in its discretion may do for Mr. Graham is not before us. It seems to me the Attorney General is bound by the act to raise this question, and it should be sustained.