This appeal challenges the correctness of a decree of the Circuit Court in Equity of St. Clair County, overruling appellant's demurrer to appellees' amended bill of complaint.
The single question presented is whether this is a suit against the State in violation of § 14, Constitution of 1901. Appellant confines his argument to this one point.
The bill as amended alleges that the appellees are joint owners of certain lands in St. Clair County, that a proceeding of condemnation was undertaken in said county to condemn said lands for right of way purposes; that appellees received no notice of said condemnation proceeding but that the said proceeding terminated in a decree or order of condemnation in the probate court and that the appellant took possession of said property, resulting in the appellees' property being taken without just compensation and without due process of law.
In essence the case made by the bill as amended shows that the property of appellees was being taken by appellant without proper condemnation proceeding and without paying them just compensation therefor, as the constitution and statute require. If this be so, this is taking private property by the State without due process in violation of both State and Federal constitutions.—§§ 23 and 235, Alabama Constitution 1901; United States Constitution, 14th Amendment, § 1.
That courts of equity have jurisdiction to enjoin such conduct there can be no doubt. This court, speaking through the elder Justice Coleman observed in Birmingham Traction Co. v. Birmingham Railway
An apt quotation in that case from East and West R. R. Co. v. East Tennessee, Va. & Ga. R. R. Co., 75 Ala. 275, 280, by Chief Justice Brickell, also states the principle:
See also Mobile and Montgomery Ry. Co. v. Alabama Midland Ry. Co., 123 Ala. 145, 160, 26 So. 324; Memphis & Charleston R. R. Co. v. Birmingham, Sheffield, & Tenn. River Ry. Co., 96 Ala. 571, 576, 11 So. 642, 18 L.R.A. 166.
And in an equitable proceeding to enforce this constitutional right the damages or amount of compensation due the property owner may be ascertained and awarded. Benson v. Pickens County, 253 Ala. 134, 43 So.2d 113; Folmar v. Brantley, 238 Ala. 681, 193 So. 122; Hargett v. Franklin County, 212 Ala. 423, 103 So. 40.
This being the posture of the case and governed by the foregoing authorities, no sort of rationale can bring the case within the ban of § 14 of our constitution, prohibiting suits against the State or its agencies. Clearly, if the allegations of the bill as amended be true, and they are so taken on demurrer, appellant was acting beyond his authority in taking or attempting to use appellees' property for State purposes without proper legal proceeding and making just compensation therefor. As this court observed in Smith v. Inge, 80 Ala. 283, 287:
This case seems to fall more within the influence of the case of Finnell v. Pitts, 222 Ala. 290, 132 So. 2, where the late Justice Foster in commenting on the Finnell case, stated in the later case of State Docks Commission v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582:
It results as our conclusion that the point argued by appellant is without merit.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.
Counsel for appellant seem to apprehend that we have departed from the rule that a suit against a state agent in his representative capacity, such as State
The fact that the relief sought is by way of injunction rather than by mandamus or some other remedy is immaterial. Any form of action amounting to one against the state is forbidden, injunction no more nor less than any other. If the performance of official duty may be compelled by mandamus,—as we have held in a wide range of cases,—we can conceive of no reason why the performance of an unauthorized or unlawful act by an official might not be enjoined.
As pointed out originally, we here deal with the allegations of a bill in equity which, on demurrer, we take as true. With the terms of a final decree, after due submission on pleading and proof, we are not here concerned. We are not persuaded that our original opinion is subject to the objections raised. We adhere thereto.
Opinion extended and application for rehearing overruled.
GOODWYN, MERRILL and COLEMAN, JJ., concur.