State Ex Rel. State Road Commission v. District Court, Fourth Judicial Dist. , 94 Utah 384 ( 1937 )

In this case the plaintiffs have applied for a writ of prohibition to prohibit the defendants from further proceeding with the trial of an action pending in the district court of Utah county, in which the defendants J.P. Gourley, Bessie Gourley, Charles A. Smith, Rachel Daniels, and Christian P. Andreasen, administrator of the estate of Kate Andreasen, deceased, are plaintiffs, and the State Road Commission of Utah and L.A. Young et al., doing business as L.A. Young Construction Company, are defendants. The action filed in the district court was brought to enjoin the defendants therein, State Road Commission and L.A. Young et al., from constructing a viaduct along a portion of Center street in Provo City until the plaintiffs as abutting owners have been compensated for damages to their properties by reason of such construction, or until the defendant Road Commission shall have secured the right to proceed under an order of the district court in eminent domain proceedings. The plaintiffs in that action, J.P. Gourley et al., are owners of lots abutting upon Center street on the north side of the section of the street where the viaduct is to be constructed. The complaint in the injunction suit, a copy of which is attached to the application for writ of prohibition herein, sets out among other things: That Center street is an improved street in the city of Provo, 116 1/4 feet wide; that the State Road Commission has determined to construct a viaduct over railroad tracks which cross said street between the Daniels property and the Andreasen property, and has let a contract for such construction to the defendant L.A. Young Construction Company; that the plans and specifications call for a viaduct 38 feet wide with a maximum height of 30 feet above the present grade of Center street; that this construction will deprive the plaintiffs of their present convenient access to their property, will darken and dampen the street in front of plaintiff's properties; will deprive plaintiffs of their easement of light, air, and view; will cause the grade of the street to be raised in front of their properties; and will prevent continuous travel on Center street past the properties of the plaintiffs, except over the proposed viaduct. It is also alleged that the interurban railway tracks now located in the middle of the street will be moved 22.2 feet north to a line in close proximity to plaintiffs' properties. The complaint further alleges that the threatened acts of the defendants, if not enjoined by the court, will constitute a taking and damaging of plaintiffs' properties; that the defendant Road Commission has not instituted any condemnation proceedings; that if such construction is proceeded with the plaintiffs will have no remedy at law; that the Revised Statutes of Utah provide that the Road Commission may be sued only on written contracts made by it or under its authority, and unless an injunction is issued the plaintiffs will have no remedy and will suffer irreparable injury.

The defendant Road Commission was served with summons and complaint, and it thereafter filed in the district court a motion to quash the proceedings upon the ground (1) that the court had no jurisdiction over the road commission; (2) that the commission may not be sued except upon a written contract.

This motion was denied by the district court, and the present application for writ of prohibition was then filed in this court and an alternative writ of prohibition was issued. The defendants herein have appeared and filed a motion to quash and a demurrer to this writ and the application and affidavit therefor.

The Attorney General, on behalf of the State and State Road Commission, plaintiffs herein, asserts that the injunction suit pending in the district court of Utah county is in reality a suit against the State of Utah, that the State has not consented to be sued in such a case, and that further proceedings in the suit should therefore be prohibited by this court. Counsel for defendants argue to the contrary, that the injunction suit is not a suit against the State.

It is to be noted that in the injunction suit the individual members of the State Road Commission are not named as defendants, and that the service of summons was made upon the commission by service upon one member.

The State Road Commission is an agency of the State. It is clothed with certain powers in the nature of corporate powers, but cannot be considered to be a corporation. It may sue in its own name, and section 36-2-1, R.S. Utah 1933, as amended by Laws of Utah 1935, c. 35, provides that it may be sued only on written contracts. Being an unincorporated agency of 1-4 the State, a suit against it is a suit against the State. The State cannot be sued unless it has given its consent or has waived its immunity. Wilkinson v. State, 42 Utah 483,134 P. 626, 631; Campbell Building Co. v. State RoadCommission, . . Utah . . ., 70 P.2d 857. Defendants do not argue in their briefs that consent has been given by the State or that there has been any waiver of the State's immunity from suit. Their argument is that the injunction suit is not against the State. We cannot agree with this argument in so far as the Road Commission as such is concerned. It is an agency of the State, and a suit against it is a suit against the State.Campbell Building Co. v. State Road Commission, supra. In so far, however, as the defendant contractor is concerned, a different question is presented. Also, if the individual members of the Road Commission are personally made parties defendant in the injunction suit the case will be different than if prosecuted against the Road Commission as a body.

Can the injunction suit be maintained against the contractor — or against the individual members of the Road Commission — where the effect of a restraining order, if issued, will be to coerce the State into paying defendants damages, or to temporarily or permanently prevent the State from carrying out the proposed highway improvement?

The State unquestionably has the right to take or damage private property when necessary for public use. There are, however, conditions attached to this right. Article 1, § 22 of the State Constitution provides that private property shall not be taken or damaged for public use without just compensation. The State and Federal Constitutions, each 5 forbid the State to deprive a person of his property without due process of law. Const. Utah art. 1, § 7; Const. U.S. Amend. 14 Chapter 61, of title 104, R.S. Utah 1933, sets forth the procedure by which the right of eminent domain may be exercised in this State. The process required by that chapter, where property is to be taken for public use, is that a proceeding must be instituted in the district court of the county where the property is situated; that a verified complaint must be filed setting forth the name of the commission or person in charge of the public use for which the property is sought, the names of the owners of the property if known, a statement of the right of the plaintiff, a description of the property, etc. It is provided that all persons having or claiming an interest in any of the property described or in the damages for the taking thereof, though not named, may appear, plead, and defend 104-61-8. The court or judge is given the power to determine the necessity of the taking and to hear and determine all adverse and conflicting claims to the property sought to be condemned, and to the damages therefor. The plaintiff, by a summary proceeding, may obtain an order of the court permitting occupation of the premises pending trial of the action. It is further provided, section 104-61-11, that "the court, jury or referee must hear such legal evidence as may be offered by any of the parties to the proceedings, and thereupon must ascertain and assess * * * the value of the property sought to be condemned * * * and of each and every separate estate or interest therein; and * * * if the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages"; also, that "as far as practicable compensation must be assessed for each source of damages separately." It is to be noted that this procedure provided for the exercise of the right of eminent domain differs from that adopted by many of the states, in that the landowner is given the right to have his damages assessed by a court or jury, whereas in many of the states such damages are assessed by a board of arbiters.

By the provisions of section 36-2-6, R.S. Utah 1933, as amended by chapter 28, Laws of Utah 1933, the State 6 Road Commission is authorized to secure rights of way and other property for state roads:

"The county commissioners of the several counties and the state road commission are authorized to secure rights of way for state roads and other property to be used in any manner in connection with construction, maintenance and/or operation of state roads, as provided in chapter 61, title 104."

This statute has been construed to give the State Road Commission power to acquire rights of way for state roads by condemnation. Barnes v. Wade, 90 Utah 1, 58 P.2d 297.

Let us now consider the effect of the injunction proceeding and whether it may be maintained as against the contractor or against the individual members of the Road Commission in case they are made parties defendant. The landowners assert that, without any condemnation proceedings or proceedings for assessment of compensation due them, the defendant Road Commission has determined to construct the viaduct and has let a contract to the defendant construction company and notified it to proceed with the work; that unless restrained the construction company will erect the viaduct and the plaintiff landowners will be irreparably damaged and will have no means for enforcing payment of the compensation for their damage which the Constitution guarantees. Suit for an injunction having been filed, can the construction company defend upon the ground that it is acting under contract with and orders from the Road Commission? Or can the members of the Road Commission, if sued as individuals, avoid the injunction by asserting that they are acting as an agency of the State and that the State cannot be sued? Or can the State, in this collateral proceeding, prevent the injunction by asserting that the injunction suit is indirectly against the State, will hamper the State in exercising its governmental functions, and should therefore be prohibited?

If the injunction prayed for by the landowners is granted, it will have the effect of forcing the State to abandon the project or to institute proceedings for assessment of compensation or damages, if any, to which abutting owners may be entitled. The Attorney General argues that the State is the owner of the highway; that it is not seeking to enter upon, take, or appropriate any part of plaintiffs' lands; that it can, without condemnation proceedings, make such improvements upon the highway as the Road Commission in its discretion deems necessary or proper; that the abutting owners, if damaged, can present a claim for compensation to the State Board of Examiners. It is particularly argued that as against landowners whose lands are not taken, but who suffer only consequential injuries, no condemnation proceedings need be instituted.

This court has heretofore said that under the provisions of the Constitution of this state, a party, whose property is about to be specially damaged in any substantial degree for public use, has the same rights and is given the same remedies for the protection of his property from the threatened injury as would be accorded him if his property were actually 7 taken and appropriated for such use. In Stockdale v.Rio Grande Western Railway Co., 28 Utah 201, 77 P. 849, 852, the plaintiff landowner sued for an injunction to restrain the defendant railway company from operating cars over a spur track which extended from the main line of defendant's railway in the public street into a parcel owned by Anheuser Busch Brewing Association, another defendant; this track being situated in close proximity to plaintiffs' premises upon which there were two dwelling houses. There was evidence that the operation of cars upon that part of the spur track which lay entirely within the premises of the brewing association would materially depreciate the value of plaintiffs' premises. The important question in the case was whether the plaintiffs were entitled to injunctive relief. The defendant insisted that plaintiffs' remedy, if they had one, was by an action at law for damages. The plaintiffs, on the other hand, asserted that the operation of the cars upon the spur track would amount to a continuous trespass upon plaintiffs' property and constituted a taking of their property within the meaning of the provisions of the Constitution which provides that private property shall not be taken or damaged for public use without just compensation. In discussing the case, this court said:

"The authorities do not all agree as to just what will amount to a taking of private property, within the meaning of the provision of the Constitution of the United States, which provision, with an occasional change in the phraseology, has been incorporated into the Constitutions of the several states, namely, ``Private property shall not be taken for public use without just compensation.' Many of the earlier cases adopted the more restricted construction, and held that, to bring a case within the foregoing provision under the Constitution, there must be an actual physical appropriation of the private property sought to be converted to a public use; but, as stated in 1 Lewis on Eminent Domain (2d Ed.) § 57, ``The law, as to what constitutes a taking, has been undergoing radical changes in the last few years.' And the great weight of the more recent judicial authority, which we believe to be supported by the better reason, and which is more in accord with our ideas of equity and natural justice, holds that any substantial interference with private property which destroys or materially lessens its value, or by which the owner's right to its use and enjoyment is in any substantial degree abridged or destroyed, is, in fact and in law, a taking, in the constitutional sense, to the extent of the damages suffered, even though the title and possession of the owner remain undisturbed."

The court further points out that in order to set at rest this much-vexed question, and at the same time give additional security to private property within the respective commonwealths, several of the states, including Utah, have incorporated in their constitutional provisions a requirement that property shall not be damaged for public use without just compensation. The judgment of the district court restraining the defendant railway company from operating cars or engines on the portion of the spur track located on the premises of the brewing association was affirmed; the court saying:

"Before the appellant railway company can subject the property in question, or any part thereof, to the burdens to which it would be subjected by the running of cars and engines over the switch referred to, it must proceed under the law of eminent domain, as contemplated by the foregoing provision of the Constitution, and as required by the statutes of this state."

In Dooly Block v. Salt Lake Rapid Transit Company, 9 Utah 31,33 P. 229, 231, 24 L.R.A. 610, this court also upheld the right of an abutting owner to enjoin the construction and operation of a railway in a public street where eminent domain proceedings had not been resorted to, although the city had granted a franchise to the railway company for construction of the railroad. In that case the plaintiffs admitted that the fee of the street was in the city under the Townsite Act, but contended that the city held title to the street in trust for street uses proper and subject to the equitable easements of the abutters. This court said:

"When land is settled upon and occupied as a town site, and lots are sold, the right of way over the streets in front of such lots is an appurtenance of necessity, and it requires no special grant in the deed. [Citing cases.] The rights of access, light, and air constitute the principal values of such property, and it must be presumed that when lots are sold the grantees purchase them with a view to the advantages and benefits which attach to them because of these easements. The right of the grantee to their use is precisely the same as his right to the property itself. Such privileges are easements in fee, — incorporeal hereditaments, — and form a part of the estate in the lots. They attach at the time the land is platted and the lots are sold, and will remain a perpetual incumbrance upon the land burdened with them. * * * Equally in both cases the abutting owners are entitled to the use of the street as a means of access to their lots, and for light and air. If the fee is in the city, the rights of the abutter are in the nature of equitable easements in fee; if in the abutter, they are in their nature legal. In either case the abutters have the right to have the street kept open and not obstructed so as to interfere with their easements, and materially diminish the value of their property. When the lots of plaintiffs were sold under the town-site act, above mentioned, it was, in effect, agreed with the grantees that they were entitled to the use of the street as a means of ingress, egress, light, and air. These rights were inducements to purchasers, became a part of the purchase, are appurtenances to the land which cannot be so embarrassed or abridged as to materially interfere with its proper use and enjoyment, and they are, in effect, property of which the owners cannot be deprived without due compensation."

This court having upheld the right of an abutting owner to enjoin the construction or operation of a railway in a public street where condemnation proceedings have not been taken, Will an injunction be proper to restrain a contractor or members of a public commission from constructing a viaduct upon a public street or highway where no condemnation proceedings have been instituted?

The plaintiffs in the injunction suit involved herein assert in their complaint that they have requested the Road Commission to compensate them for their damage or to institute an action for condemnation, and that the commission has refused to pay compensation, and has denied that it is obligated to compensate the plaintiffs. Plaintiffs further allege that if the injunction is denied and the viaduct is built, their properties will be permanently injured and depreciated in value, and that they will have no remedy or means of enforcing assessment or payment of compensation.

The Attorney General on the other hand argues that the plaintiffs have a remedy by presenting their claim to the State Board of Examiners, and that, if dissatisfied by the action of the Board of Examiners, they may appeal to the Legislature.

Does such a right constitute a plain, speedy, and adequate remedy at law so as to make it improper for a court of equity to issue an injunction, the effect of which will be to force the Road Commission to abandon the projects or institute proceedings for condemnation and assessment of compensation?

We are of opinion that where private property is taken or damaged for public use, as is alleged in the complaint in the injunction suit, without any agreement with the owner for compensation, and without any proceedings for 8-10 assessment in the manner provided by the statute relating to eminent domain, a court of equity may properly take jurisdiction where the only remedy remaining to the landowner is to present a claim to the Board of Examiners.

It must be remembered that we are here dealing with a right expressly reserved to the citizen in the State Constitution:

"Private property shall not be taken or damaged for public use without just compensation." Article 1, § 22.

In Section 26 of the same article, we read:

"The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise."

Again, we are told in section 11 of art. 1:

"All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay."

We think it is clear that the framers of the Constitution did not intend to give the rights granted by section 22, and then leave the citizen powerless to enforce such rights. We hold that this is so whether the injury complained of by the plaintiffs in the injunction suit is considered a "taking" of property, or a "damaging" of property. The framers of the fundamental law, after much debate and careful consideration of the hardship of the old rule which allowed compensation only in the case of a taking of property, wrote into the Constitution a provision by which we think they intended to guarantee to the landowner whose property is damaged just compensation with the same certainty as to the landowner whose property is physically taken.

It is admitted by the Attorney General that injunction would lie if there was here an entry upon and appropriation of private property without the institution of proceedings for assessment of compensation, and that in such case the defendant contractor and the members of the Road Commission, if sued individually, could be enjoined. Also, it is well settled that if entry had already been made upon private property without compensation being agreed upon or proceedings for condemnation instituted, state officers could be proceeded against individually in ejectment and could not shield themselves by the cloak of the State's immunity from suit. United States v. Lee, 106 U.S. 196, 1 S. Ct. 240,27 L. Ed. 171; Tindal v. Wesley, 167 U.S. 204, 17 S. Ct. 770,42 L. Ed. 137. Why should it be argued that in the one case the landowner can force the State to submit to the usual rules and procedure for assessment of compensation, while in the other case, which is equally covered by a self-executing and mandatory provision of the Constitution, we should say to the aggrieved property owner: "You must submit your claim for compensation to the state board of examiners and depend upon an appropriation by the legislature — your right is a right with which the courts can have nothing to do"?

Much argument might be devoted to the question whether there is involved in this case a "taking" or a "damaging" of property. Almost countless decisions of courts might be cited on either side of the question. We believe, however, that in incorporating in the Constitution a provision requiring just compensation for property damaged for public use, it was intended to put an end to such controversy and to protect the damaged property owner equally with the property owner whose land was physically entered upon.

We hold that the defendant contractor and the individual members of the Road Commission can be enjoined from doing an act forbidden by the Constitution.

The State Road Commission is, as heretofore stated, an agency of the State, and suit against it is suit against the State. Suit against the State cannot be maintained without its consent, and that consent is not ordinarily implied. It may be argued that by adopting the provisions of section 22 of 11 article 1 of the Constitution, the State has impliedly granted consent to be sued in the case of a taking or damaging of private property for state use without compensation. Such a rule has been declared in at least one jurisdiction, Chick SpringsWater Co. v. State Highway Dept., 159 S.C. 481, 157 S.E. 842. See, also, Kentucky State Park Commission v. Wilder, 260 Ky. 190,84 S.W.2d 38; Gledhill v. State, 123 Neb. 726,243 N.W. 909; Kentucky State Park Commission v. Wilder, 256 Ky. 313,76 S.W.2d 4; Swift Co. v. Newport News, 105 Va. 108,52 S.E. 821, 824, 3 L.R.A., N.S., 404. In the last-mentioned case, the court said:

"It was the design of the amendment to our Constitution under consideration to remove an existing mischief viz., the damaging of private property for public use without just compensation, and a constitutional provision should never be construed as dependent for its efficacy and operation upon legislative will. 6 A. E. Ency. L. 913, and authorities cited. So that when the provision of a Constitution, as does ours, no less than the provision in the Constitutions of the States of West Virginia and Illinois, forbids damage to private property, and points out no remedy, and no statute affords one, for the invasion of the right of property thus secured, the provision is self-executing, and the common law, which provides a remedy for every wrong, will furnish the appropriate action for the redress of such grievance. 6 A. E. Ency. L. 913, and authorities cited in note. And all statutes existing when such a Constitution is adopted, or which might thereafter be passed, inconsistent with its provisions, are nullified by such constitutional prohibition, though legislation may nevertheless be desirable and valuable for the purpose of defining the right and aiding in its enforcement."

We think if a case arises where there is no other method of enforcing a constitutional right except by suit against the State, then it must be considered that the State has given its consent to be sued in such a case. In this case, however, we hold that the Road Commissioners individually may be enjoined from proceeding in a manner forbidden by the Constitution — and that it is therefore unnecessary to permit suit against the State itself or its agency, the State Road Commission. See Stewart v.State Road Commission, W. Va., 185 S.E. 567, wherein it is said:

"We recognize that the constitutional inhibition against taking private property for a public use without just compensation (article 3, § 9) is of equal dignity with the inhibition against suing the state. If necessary to maintain the rights of a citizen under the former, the two provisions would be construed together and the former treated as an exception to the latter. This has been done in some states. See Chick SpringsWater Co. v. Highway Dept., 159 S.C. 481, 157 S.E. 842. Our procedure, however, affords ample protection to one in the position of petitioner without resorting to that necessity. (1) He may enjoin the state road commissioner, and his representatives, personally, from unlawfully invading his property. Coal Coke Railway Co. v. Conley, 67 W. Va. 129,146, 147, 67 S.E. 613. (2) He may recover damages from the commissioner and his representatives, personally, for unlawfully entering upon and taking his property. The constitutional immunity of the state is not extended to its officials and their representatives in the performance of an unlawful act. Coal Coke Railway Co. v. Conley, supra. (3) He may mandamus the commissioner in person, to condemn his land.Draper v. Anderson, 102 W. Va. 633, 135 S.E. 837; Haycock v. Jannarone, 99 N.J.L. 183, 122 A. 805; 20 C.J., subject Em. Domain, § 521. ``It is settled,' says the Supreme Court of the United States, ``that in such a case a suit brought by the person entitled to the performance of the duty against the official charged with its performance is not a suit against the government.' Houston v. Ormes, 252 U.S. 469, 472,40 S. Ct. 369, 370, 64 L. Ed. 667. Accord: Fidelity Deposit Co. v.Shaid, 103 W. Va. 432, 438, 137 S.E. 878; 59 C.J., subject States, § 466."

It is said that the test of whether a state officer can claim immunity from suit depends upon whether his acts are authorized by law, and that the real question in this case is whether the Road Commissioners, in proceeding with this improvement without paying or arranging for damages, are proceeding 12 without authority. Let us accept that as a correct statement of the true test and the real question in the case. It is admitted that in the case of a physical taking of property without payment or condemnation, the Road Commissioners can be enjoined. It is also admitted that a "taking" may take place, although there is no physical trespass where the enjoyment of property is so impaired as to make it useless. It must be also admitted that the line between a "taking" and a "damaging," for the purpose of testing authority, cannot be accurately drawn in advance. It is contended, however, that in this case the pleadings show a consequential damage, rather than a "taking." We think that claim cannot be maintained without directly overruling the principle laid down in Stockdale v. Rio Grande WesternRailway Co., supra, quoted above, and Dooly Block v. RapidTransit Co., supra, quoted above.

However, without further argument as to whether there is in the case at bar a "taking" or a "damaging" of defendants' properties, we hold that the Road Commissioners are not authorized to either take or damage the citizen's property without proceeding as provided by law for 13 assessment of his damages. Therefore, when suit is brought to enjoin the contractor, or the Road Commissioners as individuals, from violation of the constitutional right, the injunction should be granted, unless the State Road Commission submits to a hearing in the manner provided by law upon the question of the landowner's damages. We do not believe that the Constitution intends that the court shall decide in advance whether there is a damage "amounting to a taking," and refuse the injunction in case the damage is found to be less than enough to constitute a "taking" of property. Infinite confusion results from such a rule. One court will consider that any substantial damage to property constitutes a taking of property while others may hold that nothing short of damage which will render property wholly useless amounts to a taking.

We believe that the line of demarcation should be drawn at the point of "actionable damage." The Constitution clearly does not require compensation for damages not recognized as actionable at common law, but for a damaging of 14 property "to the actionable degree" the Constitution makers intended the landowner to have just compensation equally with the landowner whose property was physically taken.

It is conceded that if the acts complained of are not authorized by law, then the contractor and the Road Commissioners individually may be enjoined. Can it be argued that the acts complained of are authorized by law when the fundamental and paramount law expressly forbids the 15 damaging of private property for public use without just compensation? It is said, however, the Road Commissioners are authorized to improve state highways. Granted — but such improvements must be done in a manner not prohibited by the Constitution. If the construction involved in this case constitutes either a taking or a damaging of the property of the owner of abutting land, then the Road Commissioners should either (1) agree with the landowner upon the question of damages, or (2) condemn, before commencing the construction, or (3) upon suit for injunction being brought, they (or the State Road Commission as such) should consent to a determination by the court or a jury of the question whether the property will be damaged, and, if so, the amount which will constitute "just compensation" for the taking or damaging, and should consent to judgment for damages if any are found. If the Road Commissioners refuse to pay the damage claimed by the landowner, and refuse to institute or submit to proceedings for determination of the question whether any damages will result and if so the amount thereof, then it seems clear that they are acting in violation of the constitutional guaranty and they should be enjoined from proceeding with the construction. The injunction, however, should not be unconditional. It should, before stopping the work, allow a reasonable time for institution of proceedings for assessment and payment of damages, and should provide that upon institution of such proceedings the restraint shall be terminated.

We think the true rule as to immunity of state officers from suit is stated in Hopkins v. Clemson Agricultural College,221 U.S. 636, 31 S. Ct. 654, 656, 55 L. Ed. 890, 35 L.R.A., N.S., 243, 249, wherein it is said:

"But immunity from suit is a high attribute of sovereignty, — a prerogative of the state itself, — which cannot be availed of by public agents when sued for their own torts. The 11th Amendment was not intended to afford them freedom from liability in any case where, under color of their office, they have injured one of the state's citizens. To grant them such immunity would be to create a privileged class, free from liability for wrongs inflicted or injuries threatened. Public agents must be liable to the law, unless they are to be put above the law. For how ``can these principles of individual liberty and right be maintained if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders * * * whenever they interpose the shield of the state? * * * The whole frame and scheme of the political institutions of this country, state and Federal protest' against extending to any agent the sovereign's exemption from legal process. Poindexter v. Greenhow, 114 U.S. 270, 291 [330], 5 S. Ct. 903, 962, 29 L. Ed. 185, 193, 207.

"The many claims of immunity from suit have therefore been uniformly denied, where the action was brought for injuries done or threatened by public officers. If they were indeed agents, acting for the state, they — though not exempt from suit — could successfully defend by exihibiting the valid power of attorney or lawful authority under which they acted. Cunningham v. Macon B.R. Co., 109 U.S. 446, 452, 3 S. Ct. 292, 609, 27 L. Ed. 992,994. But if it appeared that they proceeded under an unconstitutional statute, their justification failed, and their claim of immunity disappeared on the production of the void statute. Besides, neither a state nor an individual can confer upon an agent authority to commit a tort, so as to excuse the perpetrator. In such cases the law of agency has no application, — the wrongdoer is treated as a principal, and individually liable for the damages inflicted, and subject to injunction against the commission of acts causing irreparable injury."

It is contended that the due process clause of the Constitution is not violated in the case at bar, since the complaining landowners have the right to make claim to the State Board of Examiners for compensation. Let it be remembered, however, that the constitutional provision is that private property shall not be taken or damaged for 16 public use without just compensation. The question of what constitutes "just compensation" is a judicial question which the landowner has the right to have determined in accordance with the general rules established for eminent domain proceedings in the particular jurisdiction. In Utah the assessment of compensation in eminent domain proceedings is to be by a court or jury. R.S. Utah 1933, title 104, c. 61. We think the officers of the State cannot force the landowner to submit the determination of what is "just compensation" to the Legislature or to the Board of Examiners (from which there is no appeal to the courts except for abuse of discretion). It may be considered settled that the fixing of compensation for private property taken for public use is a judicial and not a legislative question. This has been declared by the United States Supreme Court in MonongahelaNavigation Company v. United States, 148 U.S. 312, 327,13 S. Ct. 622, 626, 37 L. Ed. 463, in which Mr. Justice Brewer, speaking for the court, said:

"By this legislation, Congress seems to have assumed the right to determine what shall be the measure of compensation. But this is a judicial, and not a legislative, question. The legislature may determine what private property is needed for public purposes; that is a question of a political and legislative character. But when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry. In Charles RiverBridge v. Warren Bridge, 11 Pet. 420, 571 [9 L. Ed. 773] Mr. Justice McLean in his opinion, referring to a provision for compensation found in the charter of the Warren bridge, uses this language: ``They [the legislature] provide that the new company shall pay annually to the college, in behalf of the old one, a hundred pounds. By this provision it appears that the legislature has undertaken to do what a jury of the country only could constitutionally do, — assess the amount of compensation to which the complainants are entitled.' See, also, the following authorities: Commonwealth ex rel. Attorney-General v.Pittsburg Connellsville Railroad, 58 Pa. 26, 50;Pennsylvania Railroad v. Balt. Ohio Railroad, 60 Md. 263;Isom v. Mississippi Central Railroad, 36 Miss. 300.

"In the last of these cases, and on page 315 of 36 Miss., will be found these observations of the court: ``The right of the legislature of the State by law to apply the property of the citizen to the public use, and then to constitute itself the judge of its own case, to determine what is the "just compensation" it ought to pay therefor, or how much benefit it has conferred upon the citizen by thus taking his property without his consent, or to extinguish any part of such "compensation" by prospective conjectural advantage, or in any manner to interfere with the just powers and province of courts and juries in administering right and justice, cannot for a moment be admitted or tolerated under our constitution. If anything can be clear and undeniable, upon principles of natural justice or constitutional law, it seems that this must be so.'"

If the Legislature cannot appoint itself arbiter of the amount which constitutes just compensation for property taken for public use, then it cannot appoint itself arbiter in the case of property damaged for public use — when the Constitution guarantees just compensation in the one case equally with the other.

The length of this opinion is justified by the fact that there is here involved a fundamental principle of constitutional government. It ought not to be said that a constitutional right is given, but the courts are powerless to enforce such right. It must not be said that any officer of the 17 State is not amenable to the process of the courts for violation of the law. The immunity of the State from suit cannot be successfully invoked by any official, high or low, to prevent the courts from enjoining an act forbidden by law. In the course of a recent historic constitutional controversy it has been forcefully said:

"Ever since Chief Justice Coke told James the First that even the king was ``under God and the law' the champions of liberty in England, their successors here, their colleagues in all free countries, have always understood the rights of men could be guaranteed only if those rights could be determined before an independent judiciary. Without courts that the sovereign does not control the rights of men can rest on no secure foundation. * * * The deepest difference between a free government and a despotism lies precisely here: in a free state the government is under the law, officials are creatures of the law, and the humblest individual may sue for his rights against the most powerful official. But in a despotism the individual has no rights which he can enforce as against the government."

We hold that under the statutes of Utah relating to eminent domain, and under the constitutional provisions of Utah herein referred to, the plaintiffs in the injunction suit cannot be compelled to submit to the Legislature or the Board of Examiners the question whether their property has been damaged by the construction complained of nor the question of what amount will compensate them for such damage.

The alternative writ of prohibition heretofore issued herein is hereby modified, in accordance with the opinion herein expressed, so as to eliminate from said writ any prohibition against proceedings in the case therein referred to as against defendants other than the State Road Commission. In so far as the writ prohibits proceedings in the district court as against the State Road Commission, the same is made permanent. This, however, should not be construed to forbid proceedings against individual members of the State Road Commission in case the plaintiffs in the injunction suit ask leave to amend their complaint so as to make the individual members of the State Road Commission parties defendant. Costs herein will be taxed against plaintiffs.

FOLLAND, C.J., and MOFFAT, J., concur.

WOLFE and HANSON, JJ., dissent.

LARSON, J., being disqualified, HOYT, District Judge, sat.