UTAH CONST. CO. v. STATE HIGHWAY COMMISSION OF WYOMING, 23 F.2d 638

LEWIS, Circuit Judge (after stating the facts as above). The learned District Judge in finally sustaining the demurrer expressed his reasons in a written opinion. Following the rule announced on the subject in Ex parte State of New York, 256 U. S. 490, 41 S. Ct. 588, 65 L. Ed. 1057, and other cases, the conclusion was reached that the suit was in reality against the state; and that being so, the jurisdiction alleged diverse citizenship, did not exist — because the state is not a citizen. Postal Tele. Cable Co. v. Alabama, 155 U. S. 482, 15 S. Ct. 192, 39 L. Ed. 231; Minnesota v. Northern Securities, 194 U.

S. 48, 24 S. Ct. 598, 48 L. Ed. 870; Hertz v. Knudson (C. C. A.) 6 F.(2d) 812; and Chicago, R. I. & P. Ry. Co. v. State of Nebraska (C. C. A.) 251 F. 279. Furthermore, it was thought that, even if the statute authorizing suits against the State Highway Commission should be taken as a waiver of the state’s immunity granted by the Eleventh Amendment, still that would not confer jurisdiction where it appeared from the complaint the court was without jurisdiction. Obviously, both conclusions rest on the premise that the suit against the commission is a suit against the state.

Primarily the commission could not be sued at law unless it be a party to the contract. Barring equitable innovations, with whieh we are.not now concerned, Anson on Contracts (2d Am. Ed.) page 459, says: “ * * * The rule is best expressed in the words of Parke, B., in Beckham v. Drake, 9 M. & W. 95, 'those only can sue or be sued upon an indenture who are named or described in it as parties.’ ” Looking only to the contract of June 1, 1922, it would be difficult to say that the commission was a party to it and liable to suit for its breach.

Apparently it' signed the contract in its own right and behalf, but the obligation to pay for the work was expressly imposed on the state, and the state, not the commission, was named as a party to it. But for the supplemental agreement we would be constrained to say the commission could not be sued. But we observe in the later agreement the parties here declared over their signatures that the agreement of June first was a contract between the States Highway Commission of Wyoming and the Utah Construction Company.

That statement is rather borne out by excerpts from the specifications and is in harmony with the statute itself which authorizes -the commission to make such contracts. The statute made it a legal entity for that purpose, imposed on it the duty of initiating the improvement, to supervise its construction and to make settlements with the contractor. We are not impressed with the sound-’ ness of the contention that the suit is in reality one against the state. Plaintiff seeks no relief against it, nor interference- with its property, rights or functions.

The commission is the sole defendant, it has no property, no power of taxation, no means of discharging a judgment should one ’ be recovered against it. In that event it will be entirely optional with the state as to what, if anything, it will do in the premises. It will not be legally bound. But if the court has jurisdiction the controversy between the parties to the contract will be finally adjudicated, and that seems to be the limit of our present inquiry. Port of Seattle v. Oregon & W. R. R., 255 U. S. 56, 71, 41 S. Ct. 237, 65 L. Ed. 500.

The complaint distinctly alleges that each member of the commission is a resident and citizen of the state of Wyoming. We think there can be no doubt the commission is suable as such and that the, federal court had jurisdiction because of diverse citizenship. Seemingly the identical inquiry was answered in Thomas v. Board of Trustees, 195 U. S. 207, 218, 25 S. Ct. 24, 28 (49 L.

Ed. 160): “ * * * as the board was entitled to sue and be sued by their collective name, and would be bound by any judgment rendered against it in that name, the jurisdiction of the Circuit Court would have sufficiently appeared, so far as the pleadings were concerned, without bringing the several persons constituting the board before the court as defendants, provided the bill had contained the additional allegation that each individual trustee was a citizen of Ohio.” It hardly need be said that the members of the commission would not be personally liable, had they been made parties; because their acts were official, and not of a personal character.

Hodgson v. Dexter, 1 Cranch, 345, 363, 2 L. Ed. 130; Belknap v. Schild, 161 U. S. 10, 17, 16 S. Ct. 443, 40 L. Ed. 599; Astoria Marine Iron Works v. United States Shipping Board Emergency Fleet Corporation (D. C.) 295 F. 415, 417. The demurrer did not challenge the second cause of action on the ground that it did not state sufficient facts; and the trial court expressed no opinion in its written memorandum on that issue as to the first cause of action.

We see no cause to doubt the sufficiency of the seeond count as a pleading, and, as said, it was not challenged; as to the first count, we leave that for the present to the court below. Reversed, with directions to set aside the order dismissing the complaint.