Maia's Adm'r v. Eastern State Hospital

Harrison, J.,

dissenting:

I am unable to concur in the decision pronounced in this ease. The question raised by the demurrer is the right of the plaintiff to maintain this action. This question is, in my opinion, stare decisis in this State, and ought not to be reopened. Eor years *516the statute law of this State has declared the “ Eastern Lunatic-Asylum,” now the “ Eastern State Hospital,” to be a corporation. There is no qualification respecting its character as a corporation,, and it has therefore been deemed in all respects a corporation under the general law (sec. 1068 of the Code), with liability to be sued like other corporations. The contention that this in-' st-itution, as a part of the State government, is not liable to be sued, was presented in the petition for a writ of error in the case of the Eastern Lunatic Asylum v. Garrett, 27 Graft. 163. In that case Judge Staples, in speaking of this same institution, and in direct response to the question raised by the petition, says: “ The asylum is a corporation, and as such may'be sued in trespass or trover,” and it was held liable, accordingly, for the wrongful conversion of chattels in an action of trover, which is an action arising ex delicto, and judgment given against it.

In the case of McClanahan v. Western Lunatic Asylum, 88 Va., 466, where the statute of limitations was relied on to defeat a claim asserted by the asylum against the administrator of a deceased patient for support-, the contention was made that the asylum stood in the shoes of the State, and that the maxim “ nullum tempus occurrit regi ” was applicable in its favor; but this court held the contention unsound, sustained the plea of the statute, and declared the asylum to be a corporation with the power to sue and be sued, and entitled to,-and amenable to, all legal defences pertaining to private persons.

Each of the cases cited, it seems, is necessarily overruled by the conclusion reached in the case at bar; for if the asylum be the Slate, in the broad sense it is now held to be, then it cannot be sued, and time does not run against its demands.

The decision in Garrett’s Gase has been acquiesced in as a correct determination of the question presented by this record, for more than twenty years; and in like manner the decision in McGlanahan’s Gase has been accepted as a correct construction of the statute for nearly eight years.

*517Although the Legislature is called upon at every session to deal with the interests of these institutions, it has never seen fit to declare, by any change in the phraseology of the law, its disapproval of the view taken in either of the cases cited. Since the decision in Garrett’s Case there has been a complete revision of the laws of the State, and it is worthy of note that the learned judge delivering the opinion in that case was one of the revisors, and yet no change in the law was then suggested in consequence of that decision; on the contrary, the revised Code of 1887, sec. 1661, significantly declares that “ the directors for each of said ■asylums and their successors shall, respectively, continue to he ■corporations.”

It is a familiar rule of construction that when a statute has been construed by the courts, and is "then re-enacted by the Legislature, the construction given to it is presumed to be sanctioned by the Legislature, and thenceforth becomes obligatory upon the courts. Mangus v. McClelland, 93 Va. 786. "With great respect, it seems to me that the conclusion of the majority of the court wholly disregards this wise and well settled canon of construction.

It is contended that a judgment in this case would be ineffectual, if obtained, there being no property out of which it could be made. This question does not arise on demurrer, and if it did, we ought not to be influenced in determining the right to maintain the action, by any consideration of the plaintiff’s ability to make his judgment available.

If it be true, as contended, that application to the Legislature for payment of the judgment, if obtained, would be the only way in which satisfaction could be secured, the aggrieved party is denied that resource by the conclusion that he cannot maintain • his action at all; for until the amount of damage sustained has been ascertained by a jury, he has no claim to present.

Affirmed.