TATE, TREASURER, v. SALMON et al.

TATE, TREASURER, v. SALMON et al. (Court of Appeals of Kentucky, November 8, 1881.) A State Cannot be'Sued in Her Own Courts. In the absence of a statute authorizing it, a State cannot be sued in her own Courts. Parties will not be allowed to evade this inhibition by ignoring the State in their suits, and proceeding directly against the public officer having the custody of the moneys sought to be reached. [MAJORITY — Lewis, Chief Justice.] Lewis, Chief Justice. By Section 47 of an act of the General Assembly, entitled “an act to establish an insurance bureau,” approved March 10, 1870, it is provided as follows : “ When, by the laws of another State, any taxes, fines', penalties, deposits of money or securities, or other obligations, prohibitions or requirements, are imposed upon insurance companies organized or incorporated under any general or special law of this State, and transacting business in sueh other States, or upon the agents of such insurance companies, greater than those imposed upon similar companies by the laws of this State, or when such laws of other States shall require insurance companies of this Commonwealth to deposit money or security for the benefit or protection of citizens of such other States, or when the laws of any other State or office thereof, shall prohibit companies of this Commonwealth from transacting business in said State without a special examination of said companies, or a computation of their liabilities by the officers of said State, the same taxes, fines, penalties, deposits, examinations, obligations and requirements shall be imposed upon all insurance companies doing business in this State which are incorporated or organized under the laws of such States, and upon their agents.” It appears that the Legislature of the State of Virginia passed a law requiring every life insurance company, organized or incorporated under laws of other States, before doing business in that State, to deposit with the treasurer thereof securities of the cash value of at least ten thousand dollars. It therefore became the duty of the Insurance Commissioner of this State, under section 47, just quoted, to require the Piedmont and Arlington Life Insurance Company, a corporation created by the law of Virginia, to deposit like securities with the treasurer of this State before, and as a condition of, doing business here, and, accordingly, such deposit was made. This action was brought in the Daviess Circuit Court by ap-pellee, Salmon, against James W. Tate, treasurer of this State, and others, for the purpose of compelling him to deliver that fund to the commissioner and receiver of that Court, to be paid and distributed, under orders of Court, to the holders of policies of insurance issued by the Piedmont and Arlington Company. It is alleged in the petilion that appellee and others hold such policies of insurance, and have duly paid the premiums thereon, that the company has violated its contract of insurance made with the policy-holders, forfeited its right to receive further premiums, and has become insolvent and made an assignment of its property, which is in the hands of the receiver of a Virginia Court. The demurrer to the petition filed by Tate, treasurer, having been overruled, and the Court having, by an order, required him to deliver the fund in his custody to the receiver of the Court, he has appealed. The only question necessary to decide is, whether this action can be maintained against the treasurer of the State at all. By Section 6, Article 8, of the Constitution, it is provided that “ the General Assembly may direct by law, in what manner, and in what Court, suits may be brought against the Commonwealth.” But the General Assembly has not seen proper to enact a general law authorizing ¡such suits to be brought, or conferred upon any Court of the State jurisdiction to control and distribute the fund in the custody of the treasurer. It has been repeatedly decided by the Court that, in the absence of a law authorizing it, the State cannot be made a party defendant, or garnishee, and is not sueable in her own Courts, and “that parties will not be allowed to evade this inhibition by-ignoring the State in their suits and proceeding directly against the public officer having the custody of the moneys sought to be reached.” Dwino v. Harris, 7 Mo., 440; Lacy v. Hornbuckle, 8 Bush, 336; Rodman v. Musselman, 12 B., 336. P. W. Hardin, for appellant. Owen & Ellis, for appellee. As no law has been passed by the General Assembly for the disposal of the fund, it must remain in the custody of the treasurer of the State, subject to such use or appropriation as may hereafter be provided by law, and no suit to recover or dispose of the fund can be maintained until the General Assembly shall direct by law in what manner and in what Court it may be brought. Wherefore, the judgment of the Court below in overruling the demurrer to the petition, and directing the appellant to pay the fund over to the receiver of that Court, is reversed, and the cause remanded with direction to dismiss the petition of appellee.