Cammack v. Chalmers

Robert H. Dudley, Justice, dissenting. In 1957 Kate G. Cammack, now deceased, made an inter vivos gift of land within the City of Little Rock to the Board of Trustees of the University of Arkansas. A separate contract delivered simultaneously with the deed stipulated that the Trustees would develop the property into the University’s “Cammack Campus.” Appellants, the sole devisees and heirs at law of Kate Cammack, contend that the gift resulted in a charitable trust and that the Trustees have so unreasonably delayed fulfilling the terms of the trust that it has now become impossible and impracticable to carry out its purpose and therefore, appellants contend, the forty acres should be divested from the state and vested in them.

The Chancery Court ordered that title to the property should remain in the Board of Trustees of the University of Arkansas trustees until January 1, 1997, and, if the trustees do not demonstrate their good faith in developing Cammack Campus by that time, the land should be divested from the state and vested in appellants. The appellees have filed a cross-appeal advancing, among other points, the sovereign immunity clause.

Article 5, § 20 of the Constitution of the State of Arkansas declares: “The State . . . shall never be made defendant in any of her courts.” This court has expressly held that a suit against the Board of Trustees of the University of Arkansas is a suit against the State. State Comm’r of Labor v. University of Arkansas Board of Trustees, 241 Ark. 399 , 407 S.W.2d 916 (1966). This decision is in accord with our earlier decisions interpreting Arkansas’ sovereign immunity clause. In The Engineering Co. v. Kays, 106 Ark. 174 , 152 S.W. 992 (1913), a case precisely in point, held that a replevin suit against the trustees of the predecessor institution to Arkansas State University to recover fixtures was a suit against the State. In that case we stated:

Appellees have no interest, whatever, in the property, in their individual capacity, nor connection with it, except as representatives of the State as trustees of said school. The school, itself, is but a governmental agency not authorized by the Statutes to sue and be sued and the recovery is sought under the terms of the contract made with this governmental agency necessarily involving its rights and being in effect and in fact but a suit against the State. No relief is sought against appellees in their individual capacity and none can be had against them as representatives of the agency of the State and its sovereignty, for our Constitution declares: “The State of Arkansas shall never be made defendant in any of her courts.”

Id. at 177 , 152 S.W. at 993 . In Watson v. Dodge, 187 Ark. 1055 , 63 S.W.2d 993 (1933), we held that any suit which has the direct or indirect purpose and effect of coercing the State is one against the state. The court quoted Hagood v. Southern, 117 U.S. 52 (1885), which stated:

Though not nominally a party to the record, it (the State) is the real and only party in interest, the nominal defendants being the officers and agents of the State, having no personal interest in the subject-matter of the suit, and defending only as representing the State. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the State. The State is not only the realy party to the controversy, but the real party against which relief is sought by the suit.

The Supreme Court of the United States reviewed our decisions in Arkansas v. Texas, 346 U.S. 368 (1953). That Court followed our cases and stated:

The University which was created by the Arkansas legislature, is governed by a Board of Trustees appointed by the Governor with consent of the Senate. The Board, to be sure, is “a body politic and corporate” with power to issue bonds which do not pledge the credit of the State. But the Board must report all of its expenditures to the legislature, and the State owns all the property used by the University. The Board of Trustees is denominated “a public agency” of the State, the University is referred to as “an instrument of the State in the performance of a governmental work”, and a suit against the University is a suit against the State.

Id. at 370 .

In the case at bar, the Board of Trustees is once again made a party to a lawsuit, the direct effect of which would be to deprive the State of property — the forty acres. The trustees have no interest whatever in this property individually. Their sole connection with the property has been as representatives of the State in their capacity as University trustees. By precedent of all of our cases, this is a suit in which the State is the real party and, therefore, it cannot be maintained.

The majority opinion refers to three opinions of this court as authority for maintenance of this suit. Those cases are not fairly applicable. They hold that equity may restrain acts of public officers or agencies which are beyond the scope of their authority, but if the public officers or agencies have authority to act the suit may not be maintained. Toan, Comm’r v. Falbo, 268 Ark. 337 , 595 S.W.2d 936 (1980); Arkansas Game & Fish Comm’n v. Eubank, 256 Ark. 930 , 512 S.W.2d 540 (1974); Harkey v. Matthews, 243 Ark. 775 , 422 S.W.2d 410 (1967). The Board of Trustees of the University of Arkansas has the authority to manage the University’s property and its actions are not beyond the scope of its authority. The majority opinion does not dispute this. Equally as significant, this is not a suit for an injunction. It is a suit to take the land from the State. The State is the real party to the controversy, and the real party against which relief is sought.

The majority have chosen not only to ignore article 5, § 20 of the Constitution of Arkansas and our cases construing it, but to do so without explanation. Two of the results are an unenunciated philosophy of jurisprudence and uncertainty in the law. Examples of each are: under what circumstances are clear constitutional provisions usurped by this court’s concept of fairness and, can a suit against the state be maintained for monetary damages as well as for real estate? I would reverse on cross-appeal because of the sovereign immunity clause of the Constitution.

I am authorized to state that Special Justice Albert Graves, Sr. joins in this dissent.