Appellant alleges in her supplemental complaint that while she was a pay patient in the Twin Falls County General Hospital she received an injury caused by the negligence of employees of such hospital; that such hospital was erected and is maintained by the respondent pursuant to chapter 33, title 30, I. C. A., and that in accordance with the provisions of section 30-3303, I. C. A., respondent had provided for the acceptance of pay patients other than the indigent sick or otherwise dependent poor. Appellant prays for damages against Twin Falls County for her alleged injury. To the supplemental complaint respondent filed a general demurrer which was sustained. Appellant failed and refused to plead further and judgment of dismissal was entered, from which judgment this appeal is prosecuted.
Errors assigned are: First, that the court erred in sustaining the demurrer, and, second, in entering judgment.
The sole question here for determination is whether or not the supplemental complaint states a cause of action against respondent county. *Page 142
The opinion on rehearing contains the following statement:
"There is no such thing as harmony among the wealth of judicial discussion on the specific question here presented."
The statement above quoted may be conceded to be correct if we look to all jurisdictions, but, confining ourselves to the decisions of our own court, there is no lack of harmony.
In Davis v. State, 30 Idaho 137, 144, 163 P. 373, 375, quoting from Murdock Parlor Grate Co. v. Commonwealth,152 Mass. 28, 24 N.E. 854, 8 L.R.A. 399, the rule is established in this jurisdiction as follows:
"The law is well established that neither the state nor the United States is answerable in damages to an individual for an injury resulting from the alleged misconduct or negligence or tortious acts of its officers or agents."
It is likewise well settled in this jurisdiction that counties are but arms of the state; merely subdivisions of the state, created or superimposed by the sovereign power of the state of its own sovereign, will, purely governmental creatures exercising a part of the sovereign power of the state. As was said in Lewiston Orchards Irr. Dist. v. Gilmore, 53 Idaho 377,23 P.2d 720, quoting from Strickfaden v. GreencreekHighway Dist., 42 Idaho 738, 248 P. 456, 49 A.L.R. 1057:
" 'Counties may be said to be true public corporations. They are local organizations, which for the purposes of civil administration are invested with a few functions characteristic of a corporate existence. They are legal political subdivisions of the state, created or superimposed by the sovereign power of the state of its own sovereign will, without any particular solicitation or consent of the people within the territory affected.' "
Being legal political subdivisions of the state, — arms of the state, created by the sovereign power of the state to carry out the sovereign will, — purely governmental creatures, — counties are subject to the same rule as that of the sovereign state of which they are a part, namely, that they are not answerable in damages to an individual for an injury resulting from the alleged misconduct, negligence or tortious act of an officer, employee or servant, in the absence of an express statute imposing liability. In Strickfaden v. GreencreekHighway *Page 143 Dist., supra, the rule is clearly announced in the following language:
"It is well settled that in the absence of an express statute to that effect, the state is not liable for damages either for nonperformance of its powers or for their improper exercise by those charged with their execution. Counties are generally likewise relieved from liability, for the same reason. They are involuntary subdivisions or arms of the state through which the state operates for convenience in the performance of its functions. In other words, the county is merely an agent of thestate, and since the state cannot be sued without its consent,neither may the agent be sued."
In Gorman v. Commrs. Boise County, 1 Idaho 655, Worden v.Witt, 4 Idaho 404, 39 P. 1114, 95 Am. St. 70, Davis v. AdaCounty, 5 Idaho 126, 47 P. 93, 95 Am. St. 166, Davis v. State,30 Idaho 137, 163 P. 373, Ann. Cas. 1918D, 911, Youmans v.Thornton, 31 Idaho 10, 168 P. 1141, and Strickfaden v.Greencreek Highway Dist., supra, the rule is announced that a county cannot be held liable for the tortious acts or negligence of its officers, employees or servants because of the fact that it is involuntarily created as an agency or arm of the state for the purpose of discharging duties of sovereignty in the administration of government. In Gorman v.Commrs. Boise County, supra, the following language is used:
"It is urged that the board of commissioners acted in violation of their duties in appointing Davis to the office, which legally belonged to appellant, and in doing so a wrong was committed by which he suffered injury. Conceding that their action was erroneous, and that appellant was wronged thereby, still the county cannot be made responsible for it. Counties are created in invitum, for certain political or governmental purposes. They are but parts of the machinery by which the affairs of the people are conducted, and they stand in the same relation to the agents which they are obliged to select in aid of the public services as the government of which they are parts, and can no more be held responsible for their acts than can the entire government. . . . ."
In Davis v. Ada County, supra, the rule was stated in the following manner: *Page 144
"However, the decided weight of authority is that a county is not liable for a tort, unless expressly made so by statute. We have no such statutory provision. In section 963 of 2 Dillon on Municipal Corporations, the following language is used: 'According to the prevailing rule, counties are under no liability in respect to torts except as imposed (expressly or by implication) by statute. They are political divisions of the state, created for convenience, and are usually regarded not to be impliedly liable for damages suffered in consequence of neglect to repair a county road or bridge. Such a liability, unless declared by statute, is generally, but not universally, denied to exist.' "
Had there been any intention upon the part of the legislature to impose liability upon the county by reason of the carelessness, negligence or tortious acts of officers, employees or servants, in the erection, operation and maintenance of county hospitals it would have so stated in an unequivocal enactment. Not having said so, nor so enacted, there is no liability. From a careful examination of the decisions of this court from the first Idaho in the case ofGorman v. Commrs. Boise County, supra, as far back as 1877, the question of the liability of counties for torts, negligence and misconduct of employees, officers and servants has been settled, exempting them from liability in the absence of statute expressly imposing liability. This rule of law has been reiterated from time to time down to and including the decision in Strickfaden v. Greencreek Highway District, supra, in the forty-second Idaho, and has not been changed nor modified by legislative enactment, judicial decision or otherwise, until the announcement of a contrary rule in the instant case. There is no general statute imposing liability upon counties for the negligence, misconduct or tortious acts of their officers, employees or servants and the statute empowering counties to erect hospitals for the care, maintenance and treatment of the indigent sick or otherwise dependent poor, does not provide for nor create any liability against a county for negligence or the tortious acts of its employees.
The general proposition that a state cannot be sued without its consent is held by the overwhelming weight of authority. *Page 145 (Strickfaden v. Greencreek Highway Dist., supra; Davis v.State, supra.) The cases uniformly hold, not only that states cannot be sued without their consent, but further, that even when by constitutional provision or legislative enactment the state has permitted itself to be sued, the mere fact of permitting suit does not render the state liable for the careless, negligent or tortious acts of its servants, employees or agents, in the absence of any statute expressly fixing such liability upon the state. (Davis v. State, supra.) Counties likewise cannot be sued in the absence of a statute authorizing suit to be brought against the county.
In the opinion on rehearing it is suggested that the establishment of the county hospital was not mandatory and that:
"Building and operating a hospital was optional and discretionary with the county. . . . . Having built the hospital and furnished and opened it for the discharge of its public and governmental duty, it had the power to utilize any extra or excess facilities it possessed for serving other sick persons not indigent but able to pay for the service. In serving such persons, however, it was not engaged in the discharge of its public and governmental duty but was rather engaging to that extent in a private and proprietary business for pay and at once assumed the same relation to such persons as would any privately owned hospital sustain toward a patient entering it for hospital care."
It is the mandatory duty of county commissioners to suitably provide for the care, maintenance and medical treatment of the indigent sick or otherwise dependent poor either by the erection and maintenance of hospitals for that purpose or by contract, and in so doing they act in a governmental and not in a proprietary capacity. Governmental functions have been defined to be:
"Legal duties imposed by the state upon its creatures, which it may not omit with impunity but must perform at its peril. . . . . They are imposed by statute, and are necessarily mandatory or peremptory functions."
Boise Development Co. v. Boise City, 30 Idaho 675,167 P. 1032; Youmans v. Thornton, supra. *Page 146
The rule is well established in this state that counties cannot engage in nor become interested in private business. InSchool District No. 8 v. Twin Falls, etc., 30 Idaho 400,164 P. 1174, it is said:
"The sections of the constitution referred to are self-operative. They are intended to prevent any county . . . . from lending credit to or becoming interested in any private enterprise, or from using funds derived by taxation in aid of any private enterprise, . . . ."
Art. 4, sec. 12, Constitution.
Nor, may a county levy or collect taxes except for public purposes. (1 Dillon, Municipal Corporations, sec. 508; Cooley, Taxation, 2d ed., p. 55; 25 Am. Eng. Ency. Law, p. 87, and notes cited in note 2 on said page.)
In the instant case the county was authorized to erect and maintain a county hospital for the care of the indigent sick and otherwise dependent poor. In so doing it acted in its governmental capacity. As was said in Davis v. State, supra, quoting Riddoch v. State, 68 Wash. 329, 123 P. 450, Ann. Cas. 1913E, 1033, 42 L.R.A., N.S., 251:
" 'On the other hand, the state is inherently sovereign at all times and in every capacity. It is the organized embodiment of the sovereign power of the whole people. By reason of this sovereignty, it possesses all powers, but only such powers as are within the limitations of the state constitution and without the prohibitions of the Federal constitution. It can do no act except in the exercise of this sovereign power and within these constitutional limitations. If it may constitutionally take over any enterprise, though usually of the nature of a private business, the very taking over is an exercise of this sovereign power. It seems much more logical and much more consonant with the idea and genius of sovereignty that the enterprise thus taken over should be impressed with the sovereign character of the state than that the state should become hampered by the private character of the enterprise. The latter result is incompatible with the concept of sovereignty.' "
The distinction between a true municipal corporation, such as a city, village or highway district, and a county, which is *Page 147 purely an arm of the state is: The former is created by the voluntary act of the inhabitants within the territorial area and acts both in a governmental and a proprietary capacity, while the latter is an involuntary integral part of the sovereign state, and, as the state, exercises governmental powers only. Had Twin Falls County purchased the hospital which had been operated as a private business its acquisition by the county would have been an exercise of the sovereign power of the county and the business of the operation of the hospital would have become immediately impressed with its sovereign character.
In McKay v. Washoe General Hospital, 55 Nev. 336,33 P.2d 755, 759, 36 P.2d 78, counsel conceded that a county, which is but a political subdivision of the state, could not be sued without legislative consent, but contended that the rule did not apply in a case almost identical to the one here under consideration, contending for a principle similar to that announced in the opinion on rehearing, that the establishment of defendant hospital was not mandatory and that the acceptance of the plaintiff as a patient and caring for her was discretionary and that no governmental function was involved in her care and treatment, and that hence the same rule of law should apply to defendants as applies to individuals or corporations operating a hospital for profit, citing in support of the contention a case involving a city hospital, Bell v.City of Pittsburgh, 297 Pa. 185, 146 A. 567, 64 A.L.R. 1542, which the court concluded to be not in point. In the opinion it was held that it was not the legislative intent to make such an institution liable in damages and furthermore that the failure of the legislature to provide that defendant might sue and be sued is a conclusive reason why the action could not be maintained. In the course of the opinion it is said:
"The liability of an organization created by statute must be determined under an interpretation of the statute creating it, and, though the defendant hospital was not created by a legislative act, it was organized pursuant to such an act, and we must look to the intention of the Legislature in *Page 148 enacting the law authorizing the organization of defendant hospital in reaching a conclusion in this case.
"The act under which the defendant hospital was organized provided that 'any county may establish a public hospital in the following manner.' The act did not create a corporation, but merely authorized the respective counties to establish a hospital, and it did not provide that such hospital, might sue or be sued. All moneys raised by taxation pursuant to the act are collected as other taxes are collected, and must be credited to the 'Hospital Fund,' and 'shall be paid out on the order of the hospital trustees for the purposes authorized by this act, and for no other purposes whatever,' and the title to all property donated for the benefit of such hospital shall vest in the county.
"It seems to us that the intention of the Legislature is perfectly plain, namely, to set up a public institution which should own no property, have no income and no method of raising money, and hence no ability to pay anything. Certainly it was not the legislative intent to make such an institution liable in damages for any act done in carrying out the purposes sought to be attained.
"Furthermore, the failure of the Legislature to provide that the defendant might sue and be sued is a conclusive reason why this action cannot be maintained."
A careful reading of chapter 33, title 30, convinces me that the legislative authority therein granted to counties to erect or otherwise maintain hospitals for the care of the indigent sick and dependent poor did not contemplate that such hospitals should be operated for profit. The electors within the county in accepting the provisions of the act, burdening themselves by a bond issue and subjecting their property to the levy and collection of taxes to discharge the bonds and otherwise maintain the county hospital, did not understand, and neither did the legislature intend, that a liability would be created against the taxpayers for the tortious acts of officers, agents or employees of the county in operating the hospital. The fact that those in charge of the operation of the hospital exacted or received pay, in whole or in *Page 149 part, from some of its patients would not render the county liable, and through the county the taxpayers within the county, for the tortious acts of the officers, employees or servants of the hospital. The purpose of the provision that "such hospital may suitably provide for and accept other patients in so far as their facilities will permit, and may charge and accept payments from such of their patients as are able to make payment for services rendered and care given" was intended to reimburse the county for any expenditures, which reimbursements were diverted into the county hospital fund, and, like other hospital funds, used for governmental purposes, namely, the operation of the hospital. Similar provisions are provided for in the operation of mental hospitals and homes for the feeble-minded in this state, patients cared for in such institutions who are able to pay in whole or in part being required to pay, and it could not be logically contended that the state would be liable for the tortious treatment by officers, agents and employees in such institutions, based solely upon the theory that they had accepted pay, which alone would create the liability.
In the opinion on rehearing it is conceded that only those who are designated as pay patients may recover because of the tortious acts of officers, employees or agents of the hospital, while an indigent sick or otherwise dependent poor person, however tortiously, negligently or carelessly treated, could not recover. Such an unwarranted discrimination was never in the mind of the legislature and cannot be gathered from the act above referred to.
Conceding for the purpose of argument that it might be desired that one maltreated in a county hospital should be compensated for the injuries sustained, that is a matter for the legislature and not for the courts.
In my opinion the action of the trial court in sustaining the demurrer and later dismissing the action was not erroneous, but in conformity with the principles of law heretofore promulgated by this court.
Givens, C.J., concurs in the conclusion reached in the dissent. *Page 150