2 CIR 53 (1971)

IN THE COURT OF INDUSTRIAL RELATIONS

OF THE STATE OF NEBRASKA

NEBRASKA DEPARTMENT | CASE NO. 53
OF ROADS EMPLOYEES |
ASSOCIATION, etc., and |
RICHARD KIERNAN, |
|
Plaintiffs, |
|
vs. | ORDER
|
DEPARTMENT OF ROADS, |
STATE OF NEBRASKA, |
|
Defendant. |

Filed October 20, 1971

GRADWOHL,J:

Plaintiffs filed suit against the "Department of Roads, State of Nebraska" for an alleged wrongful termination of the employment of Richard Kiernan. Service of process was had upon the State of Nebraska, Department of Roads, by serving the Director-State Engineer, Thomas D. Doyle. The Defendant filed a special appearance objecting to the jurisdiction of the Court over the Defendant for the reason that there has not been a proper service of process as to the State of Nebraska. The question of service of process in suits in this Court against the State of Nebraska is one of first impression.

Article V, Section 22, of the Nebraska Constitution provides that "The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suits shall be brought." The Department of Roads is a part of the executive department, the administration of which is "vested in the Governor." Section 81-101 (Supp. 1969). A suit against the Department of Roads is a suit against the State of Nebraska. See Anstine v. State, 137 Neb. 148, 288 N.W. 525 (1939).

Section 48-813 states that:

"Whenever the jurisdiction of the Court of Industrial Relations is invoked, notice of the pendency of the proceedings shall be given either by summons issued and served as summonses are issued and served in the district courts, or, in the discretion of the court, by publication in a legal newspaper of general circulation in the State of Nebraska two consecutive weeks."

Section 24-321 contains the provisions for the service of summons in actions against the state brought in the district courts:

"When action is brought under the provisions of

section 24-319, subdivisions (1), (2), or (3), summons shall issue upon the filing of such petition directed to the sheriff of Lancaster County, Nebraska, and shall be served upon the state by the sheriff of Lancaster County, by serving the same upon the Governor and Attorney General; and in any action, the subject matter of which, in whole or in part, relates to or grew out of the conduct of any special department or institution of the government, summons shall also issue to the sheriff of the county in which the principal office of such special department or in which such institution is situated, and in any such cases shall also be served upon the chief officer of such department or institution, by the sheriff of the county in which the principal office of such special department or in which such institution is situated. When action is brought under the provisions of section 24-319, subdivision (4), summons shall issue to the sheriff of Lancaster County and also to the sheriff of the county wherein the realty is situated, and shall be served upon the state by the sheriff of Lancaster County by serving the same upon the Attorney General and by the sheriff of the county wherein the realty is situated by serving the same upon the county attorney of such county, and the action shall otherwise be brought as in other civil actions. When an action is brought under the provisions of section 24-319, subdivision (5), summons shall issue to the sheriff of Lancaster County, and shall be served upon the state by the sheriff of Lancaster County by serving the same upon the Attorney General. Such action brought under the provisions of section 24-319, subdivision (5) may be brought in Lancaster County, Nebraska, or in any county wherein the drainage district, irrigation district, municipal corporation or other political or governmental subdivision whose bonds or other obligations are involved, is situated either in whole or in part. In all cases brought under the provisions of section 24-319, the day for return of summons shall be as provided by law in other actions in the district court."

Section 24-319(2) (Supp. 1969) states that:

"The several district courts of the judicial districts of the state shall have jurisdiction to hear and determine (2) all claims or petitions for relief...... which may be by any law, or by any rule or resolution of the Legislature, referred to either of said courts for adjudication .......

Similarly, section 24-324 (Supp. 1971) provides:

"The state may be sued in the district court of the county wherein the Capital is situated in any matter founded upon or growing out of a contract, express or implied, originally authorized or subsequently ratified by the Legislature, or founded upon any law of the state. The petition in such a case shall be as provided in section 24-320, summons shall issue and be served in the same manner as hereinbefore provided, and the rules of pleading and practice in regard to other civil actions in the district court shall be observed in all actions by or against the state, as far as applicable except as otherwise provided."

It is the type of situation provided for in sections 24-319(2) and 24-324 to which section 48-813 has reference in the phrase "by summons issued and served as summonses are issued and served in the district courts." Both section 24-319(2) and the recently amended section 24-324 refer to suits against the state under a state statute for which no different provision is specified in the statutes. For this reason, the portion of section 24-321 stating that service shall be "served upon the state by the sheriff of Lancaster County, Nebraska, by serving the same upon the Governor and Attorney General; and in any action, the subject matter of which, in whole or in part, relates to or grew out of the conduct of any special department or institution of the government, summons shall also .... be served upon the chief officer of such department or institution... is applicable."

There is a substantial difference in the wording of section 48-813 and the statute involved in Anstine v. State . Section 48-81 3 contains a direct reference to "summons issued and served as summonses are issued and served in the district courts." The language involved in the workmen's compensation statute in Anstine v. State referred merely to a summons served "as in civil causes." The opinion pointed out in Anstine v. State (I37 Neb. at p. 153) that the district court sections had not "been made a part of the compensation act by express language or otherwise. In section 48-81 3, on the other hand, there is an express incorporation of the district court statutes with respect to the service of process.

On the present record, in any event, there has not been a service of process in accordance with the provisions of section 24-321. For this reason, we determine that the special appearance of the Defendant should be, and it hereby is, sustained.

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