The plaintiff here sued to recover damages for personal injuries received in an automobile wreck, alleged to have resulted from certain negligence of the officers, agents, servants, and employees of the State Highway Department.
Plaintiff relies on the provisions of article 18, ch. 65, S. L. 1935, as expressly consenting that she sue the state, and also as expressly assuming liability to her for any negligence of the officers, agents, servants, and employees of the State Highway Department.
It is fundamental that the state cannot be sued in any manner or upon any liability, constitutional, statutory, or contractual, unless there is express consent thereto. The act in question expressly consents to the action against the state, but the Attorney General argues the suit may not be maintained for three reasons: (1) Because there was no prior general act applicable to all persons in which the state waived its immunity from liability for the torts of its agents or employees; (2) that the act in question is unconstitutional because in violation of section 15, art. 10, in that it is a gift to the persons therein named; and (3) the act is an unconstitutional special law passed in violation of section 46, art. 5, of the state Constitution.
In so far as merely consenting that the state may be sued is concerned, it is conceded that such an act may be passed. So that the question before us is whether the Legislature by special act may waive immunity from liability as to prior negligence of agents or employees.
The exact question has not heretofore been considered by this court, but has been considered in other states, some holding one way and some the other.
The Supreme Courts in Kentucky, Maine, and Montana uphold such enactments against all attack. Pennington, Adm'r, v. Commonwealth (Ky.) 46 S.W.2d 1079; Jones v. State of Maine (Me.) 119 A. 577; Mills v. Stewart, Secy. of State of Montana (Mont.) 247 P. 332.
The Supreme Court of California indicates by its statement in Chapman v. State, 104 Cal. 690, 38 P. 457, that it would hold such enactments to be contrary to the gift provision of the Constitution. The so-called California rule is expressly departed from in the Montana case of Mills v. Stewart, supra, and is criticized in the Arizona case of Fairchild v. Huntington, 205 P. 814, 22 A. L. R. 1438.
The Supreme Court of South Carolina in striking down such an act in Sirrine v. *Page 382 State, 128 S.E. 172, seems to have taken the view that the enactment was void because a general law could have been passed and made applicable, and was void for the further reason that the act granted a special right and privilege to Sirrine not granted generally to other claimants against the state, thus violating the "equal protection of the laws" provision of the Constitution.
The Supreme Court of Pennsylvania, in Collins v. Commonwealth, 106 A. 229, was of the view that such an act violated the constitutional provision that:
"The General Assembly shall not pass any local or special law * * * regulating the practice or jurisdiction of or changing the rules of evidence in, any judicial proceedings."
Thus we observe that there are divergent views among those courts which strike down such enactments.
Those courts which have considered and upheld such acts are quite forceful in their pronouncements, and I am inclined to follow their reasoning and conclusions. The Constitutions of Kentucky, Maine, and Montana contain provisions quite similar to our own, so that their decisions are as persuasive to our minds as decisions of other states are in any of our cases.
It is a well-settled rule, and we have often held that it is our duty to uphold a legislative enactment unless it is clear that it violates the Constitution.
The Attorney General urges upon us the South Carolina rule, contending that the Legislature might have passed a general statute assuming liability for all torts of all officers, agents, and employees of the state, and that, since no such general act was passed, the Legislature ought not to be permitted to pass such special act as is here considered.
The Attorney General emphasizes the fact that he prepared such a general act at the request of certain legislators during the same session, but that it was not adopted. This leads to the conclusion that the Legislature deemed it the better policy not to adopt the general act, but to consider this and similar claims and to pass special acts where justified. The same session which failed to adopt the general act prepared by the Attorney General did adopt this special act and a score of others dealing with similar claims or situations. This clearly indicates a legislative policy. Whether this policy or a general act assuming liability for all torts of all officers, agents, and employees; might or would be a better policy, we are not authorized to determine. It is well settled that the "public policy" of a state is determined by enactments of the Legislature on subjects concerning which it has seen fit to speak. Mahaffey v. Smith (Mont.) 254 P. 875; Cruse v. Fischl (Mont.) 175 P. 878.
And the rule is well settled that the courts may not consider or determine the wisdom of legislative enactments or the wisdom of the public policy which is fixed by the legislative enactments. Those matters are for determination by the Legislature. The courts may only consider and determine the power or lack of power of the Legislature to pass a given enactment.
The Attorney General urges that this act constituted a gift as is prohibited by section 15, art. 10, of our Constitution. In Hawks v. Bland, 156 Okla. 48, 9 P.2d 720, and Wright v. Carter, 161 Okla. 281, 18 P.2d 522, and Carter v. Thomas,172 Okla. 558, 46 P.2d 460, this court sustained attacks against three legislative acts as being violative of that constitutional provision. However in each of those cases the legislative act under consideration was an appropriation of money to pay to the individual concerned, the money to be so paid without any judicial determination of liability or of the amount due or to be paid. The act here under consideration does not appropriate money to be paid to Iris Jack, but authorizes an action to be brought wherein there would be a judicial determination of the plaintiff's claim of negligence, and in the event negligence was established, and that it was the proximate cause of plaintiff's injury, then there would be judicial determination of the proper amount of plaintiff's claim. Thus we distinguish this act and this case from those three decisions which are urged and relied upon by the Attorney General. The enactment in this case is no more a gift than was the enactment considered by this court in State v. Fletcher,168 Okla. 538, 34 P.2d 595. The act there considered did not appropriate money to pay to Fletcher, but it authorized him to maintain an action for judicial determination of his damage claim. If the word "gift" is used in a highly restricted sense, then it may be that a gift is made when a legislative enactment gives to a designated person a right to sue the state, which right he did not have and possess until the passage of such act, as in the Fletcher Case, supra, but if the word "gift" is used in its more generally accepted meaning, then the Legislature does not make a gift to a *Page 383 seriously injured person when the Legislature permits him to maintain an action against the state in which he may seek to show to the satisfaction of the court and jury the cause of his injury, and the nature and character thereof as well as it may be measured in money damages.
It was clearly the intent of the Legislature by this enactment that the plaintiff might have an opportunity for judicial determination of those questions, thus resulting in a judicial fixing of the amount of plaintiff's damages. It would then be the province of the Legislature to make or not make provision for the payment of such judicially determined claims.
We conclude that the adoption of the act permitting the plaintiff to sue and obtain such judicial determination is not a gift within the meaning of the Constitution and our former decisions above cited.
It is next urged by the Attorney General that the enactment here considered violates section 46, art. 5, of our state Constitution, which is in part as follows:
"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law * * * regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts. * * *"
As I analyze that provision, it intended to prohibit the Legislature from passing any law which would regulate the practice or judicially change the rules of evidence as to any special locality, or as between any special litigants. I consider that it refers to or had in mind citizens who were contending as adversary litigants, and that it had no special reference to the power of the Legislature to permit or to decline to permit any particular suit against the state. This must be so, as it is a universal rule that the Legislature may permit or refuse to permit any person to sue the state. And in the event of granting permission to sue, the Legislature may specify the place where such suit must be brought, and the court in which such suit may be brought. And it is also true that such provisions, when they are made, are exclusive, so that such suit may be maintained only in the manner specifically authorized.
And the Legislature may specify the person on whom summons is to be served, and may limit the amount for which such action may be brought, and in general may place such limitations upon the consent to sue as seem proper to the Legislature. State v. Superior Court (Wash.) 151 P. 108; see, also, 59 C. J. 304, par. 461, and the numerous authorities there cited.
All these rules, recognized both before and after the adoption of our Constitution, lead to the conclusion that by the adoption of section 46, art. 5, there was no intention to change any of the foregoing rules. In State v. Fletcher, supra, we held, as stated in paragraph 2 of the syllabus, that section 46 of article 5 was not adopted "for the benefit of the sovereign state, but for the benefit of individual citizens of the state."
And I conclude that the act, under consideration authorizing the maintenance of this action, with special provision for the service of summons, is unaffected by the quoted provision of section 46, art. 5, of our Constitution.
In so concluding I am in accord with the former pronouncement of this court in the Fletcher Case, though it may be, as the Attorney General suggests, that we go contrary to the Pennsylvania rule in Collins v. Commonwealth, supra.
In Mills v. Stewart, 247 P. 332, the Supreme Court of Montana, in considering an identical question, upheld the special act. The opinion contains a thorough discussion of the various questions and notices, and discusses the so-called California rule. In the body of the opinion it is said:
"The question then arises Was it within the power of the Legislature to give recognition to the Rietz claim by assuming a limited liability for the negligence, if any, of the state's agent? * * *
"In 26 R. C. L. 66 it is said: 'The power of the Legislature to make the state or one of its subdivisions liable for injuries inflicted by it upon an individual is unquestioned, even if there was no liability at common law.'
"Rietz has a valid claim against the agent through whose negligence he was injured, and if, in advance of the injury, the state had, by general law, assumed liability for the negligence of its agents in charge of the university buildings, there would not be any dissent in the authorities from the conclusion that an appropriation to discharge such liability would be for a public purpose. But in California it has been held that a state may not assume and discharge a liability for the negligent act of its agent after the resulting injury has occurred, and this upon the theory that, under such circumstances, the appropriation made to discharge the liability constitutes a gift. Bourn v. Hart, 93 Cal. 321, 28 P. 951, 15 L. R. A. 431, 27 Am. St. Rep. 203; Chapman v. State,104 Cal. 690, *Page 384 38 P. 457, 43 Am. St. Rep. 158. The contrary conclusion was reached in Iowa (Metz v. Soule, 40 Iowa 236), and In principle in West Virginia (Woodall v. Darst, 71 W. Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L. R. A. (N. S.) 83, and in Massachusetts (Re Opinion of Justices, 211 Mass. 608, 98 N.E. 338; Opinion of Justices, 240 Mass. 616. 136 N.E. 157, 23 A. L. R. 610), while the decision in Bourn v. Hart is disapproved by the Supreme Court of Wyoming (State v. Carter, 30 Wyo. 22, 215 P. 477, 28 A. L. R. 1098) and by other courts.
"We are unable to appreciate the distinction drawn, by the California court between a claim of this character founded upon a statute enacted prior to the time an injury occurred and a claim predicated upon a statute enacted after the injury. In 26 R. C. L. 64, it is said: 'The power of the Legislature to extend the liability of the state or of municipal corporations to pay for injuries caused to private inidividuals is not limited to the establishment of a general rule for the future.'
"We do not discover any provision of our Constitution which forbids the Legislature to assume liability for injury resulting from the negligence of the state's agent, whether the liability is assumed before or after the injury occurs. * * *"
The Court of Appeals of Kentucky upheld an identical act in Pennington, Adm'r, v. Commonwealth, 46 S.W.2d 1079, and as to the effect of the act said, that by it the commonwealth "thereby consented to be brought before its courts as any other defendant, and that appellant's claim against it was to be determined by the court according to those settled rules of law upon which the responsibility in like actions of individual litigants is determined."
The Attorney General argues that these two cited cases are contrary to the decision of this court in Whiteneck v. Board of Com'rs, 89 Okla. 52, 213 P. 865. I do not agree. The Whiteneck Case holds the county is not liable for torts. It may be authority for the principle that the state is immune from liability in the absence of some enactment assuming liability or waiving immunity from liability, but there is nothing there to indicate that such enactment must be adopted prior to the injury.
It is, of course, fundamental that in the absence of some legislation to the contrary the state is not liable for damages in such cases. That rule was well stated by the Supreme Court of Washington in Riddoch v. State, 123 P. 450, in these words:
"A sovereign state is not liable for the misfeasance, malfeasance, nonfeasance, or negligence of its officers, agents, or servants, unless it has voluntarily assumed such liability."
That decision is not in point here, as there was there no enactment assuming liability. But the decision fully recognizes the power of the Legislature to assume such liability, and does not restrict the power only to the adoption of enactments prior to the injury.
In 59 C. J. 195, there is stated the general rule that:
"The Legislature may waive the state's exemption from liability for the torts of its officers and agents, and prescribe conditions of recovery. This right and power is very wide, and is not confined to principles defining liability in actions for tort between individuals. Where the state had thus voluntarily assumed liability, recovery may be had against it. * * *"
The text does not expressly say that this assumption of liability may occur after the negligent act and injury, but the text cites and is based upon the Montana case of Mills v. Stewart, supra, where the act was subsequently passed, and it seems clear that the text means to state that the Legislature may subsequently assume liability or waive immunity from liability if the intention of the Legislature to do so is made to appear by clear and unambiguous language.
It is a matter of common knowledge that the increasing use of our highways has resulted in an increase of accidents, caused by negligence, resulting in great loss of life and great injury to persons and property. And that the increased building of highways and increased use of highways by state employees may result in many accidents caused by negligence of such state agents or employees, and that other varied activities of the state may result in accidents and personal injury caused by negligence of agents or employees. It is but natural that any state should adopt some means to deal with the problem. Some of the states have adopted general laws providing for a general assumption of liability by the state, while other states have adopted the policy of dealing with each situation by the passage of a special act after the injury, assuming such liability as seems proper, and consenting to suit. This latter policy has been adopted by our Legislature, as instanced or indicated by the fact that the same session of the Legislature which passed the act now under consideration passed several similar acts, and declined to pass the general liability act prepared by the Attorney General; and this policy is further indicated by the similar *Page 385 special acts passed by the state Legislature at its regular 1937 Session. It is suggested that some other states have considered the handling of this problem through the method of compulsory liability insurance.
I regard it as the province of the Legislature to prescribe the public policy of this state as to these matters, and when our Legislature has spoken and fixed the state's policy by its enactments, that is our state policy until such time as the Legislature shall see fit to fix a different policy which they deem more meritorious. And I regard it as our duty to follow the legislative branch of government in this matter of state policy. And as I regard our duty, we have no other course. It is pointed out that this policy will be overburdensome to the Legislature, and will or may result in inequality or possible abuses. If that becomes true, the matter can be speedily corrected by the Legislature. That branch of our government has made this effort, at least for the present, to deal with the problem in this matter. We should not strike down this legislative effort made in behalf of this unfortunate plaintiff, unless convinced that we are forced to it in the proper discharge of our duty. It is always our fixed duty to sustain legislative enactments, unless our attention is directed to some constitutional provision which is clearly violated by the questioned enactments.
I conclude that the act here considered is not unconstitutional for any of the reasons urged by the Attorney General. I conclude that the effect of this act is to permit the plaintiff to maintain this action, with the right on the part of the state to defend the action. And if the plaintiff can establish to the satisfaction of the trial court and jury that her injury was proximately caused by the negligence alleged, and can establish the amount of her damage, all within the recognized rules of evidence and procedure, that plaintiff may then have her damage fixed by verdict and judgment of the trial court. The result then will not be a judgment in the sense that its collection can be enforced by the regular or usual court process, but the result will be a judicial fixing of the amount and cause of plaintiff's damage. All this I conceive to be in accord with the legislative intent in the adoption of the act under consideration.
The trial court sustained a demurrer to plaintiff's petition. I conclude that such action was erroneous, and that conclusion and judgment should be reversed, and the cause remanded with directions to overrule the demurrer, and that the cause proceed consistent with the views herein expressed.
I therefore respectfully dissent from the majority opinion.
On Application for Leave to File Second Petition for Rehearing.