Yde v. State

ARCHIBALD, Justice,

concurring.

I concur with the opinion of Mr. Justice Delahanty, but in view of the dissents I feel it appropriate to specify my reason for so doing.

My reading of the dissents leads me to conclude that neither has any disagreement with the result reached by Mr. Justice Delahanty if Thoresen v. State, 239 A.2d 654 (Me. 1968), has continuing vitality. Otherwise stated, both the dissenters would appear to agree that the result reached by the majority opinion is mandated unless Thore-sen is expressly overruled.

If the above understanding is correct, I fail to see the significance in the dissents involving Staples v. State, 274 A.2d 715 *468(Me. 1971). Staples added nothing to the interpretation of 14 M.R.S.A. § 5502 beyond that already given in Thoresen. I gather that the dissenters would have reached the same result if Staples had never been written.

In my opinion, the minority has overlooked a basic rule of statutory construction or, at least, has failed to acknowledge its existence, in their zeal to leave Thoresen vulnerable to a subsequent possibility of being overruled by a court composed of more than five Justices.

In Davies v. City of Bath, 364 A.2d 1269 (Me. 1976), we overruled the doctrine of governmental immunity but carefully noted that in so doing we were abandoning a rule that had come into being by virtue of a judicial fiat and not through legislative action. We held that if “past judicial doctrines” are no longer efficacious, we should not be bound by the “constraints of stare decisis.”

In the present case, however, we are not concerned with “past judicial doctrines” but are dealing with past statutory construction. I believe this distinction is critical.

In State v. Pratt, 151 Me. 236, 237-38, 116 A.2d 924, 925 (1955), where the State urged that the Court adopt a broader statutory interpretation than that previously given, it was held:

“The Legislature has not seen fit to amend the act since these decisions were rendered and may be deemed to have accorded tacit approval to that breadth of definition.”

Where courts have been requested to overrule a previously announced construction of a statute, the general rule would seem to reject such efforts. Courts generally held that the settled law be followed on the premise that a statutory construction by the court of last resort of a given state warrants an assumption that the state legislature acquiesced in that construction. As the Illinois Court recently put it, quoting People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840, 845 (1970),

“where a statute has been judicially construed and the construction has not evoked an amendment, it will be presumed that the legislature has acquiesced in the court’s exposition of legislative intent.”

Kobylanski v. Chicago Board of Education, 63 Ill.2d 165, 347 N.E.2d 705, 709 (1976). For cases adopting this same rationale, see Eastern Scrap Services, Inc. v. Harty, 341 A.2d 718, 719 (R.I. 1975); General Electric Co. v. E. Fred Sulzer and Co., 86 N.J.Super. 520, 207 A.2d 346 (1965); Republic Steel Corp. v. Industrial Commission, 26 Ill.2d 32, 185 N.E.2d 877, 885 (1962); Scribner v. Sachs, 18 Ill.2d 400, 164 N.E.2d 481, 490 (1960); Kusior v. Silver, 54 Cal.2d 603, 7 Cal.Rptr. 129, 354 P.2d 657, 667 (1960); State v. Pratt, supra; Barringer v. Miele, 6 N.J. 139, 144, 77 A.2d 895, 897 (1951).

14 M.R.S.A. §§ 5502-08 was enacted by P.L. 1963, ch. 310. Although § 5502 has not been amended, § 5505 has been subject to two amendments as has § 5508, all four amendments having been adopted subsequent to Thoresen, which was decided in 1968. All of the cases are consistent that under this factual background we can assume that the Legislature acquiesced in the construction given § 5502 in Thoresen since, otherwise, an amendment would have resulted.

Deference to the Legislature has always guided this Court when established concepts became suspect, even when dealing with non-legislatively created doctrines. For example, in Nelson v. Turnpike Authority, 157 Me. 174, 185, 170 A.2d 687, 693 (1961), while acknowledging that a rule of law “judge-made . . . could be judge-changed,” the Court, in deference to the Legislature, refused to overrule the judicially created doctrine of sovereign immunity. Speaking for a unanimous Court, Mr. Justice Pomer-oy reached an identical result in Bale v. Ryder, 286 A.2d 344 (Me. 1972), even though eleven years had intervened since Nelson was decided. Again, in a unanimous decision, we did likewise in Bartashevich v. City of Portland, 308 A.2d 551 (Me. 1973).

I think that the desire of the minority to overrule Thoresen is encroaching upon leg*469islative prerogative and would engraft on § 5502 an impermissible legislative intent. I believe we are compelled by precedent to defer to the Legislature in this matter.