Smith v. State

McFADDEN, Chief Justice

(dissenting).

It is my opinion that the trial courts in the cases involved on this appeal correctly held that no claim for relief was stated as against the defendants because of the immunity of the state from suit. It is my further opinion that the original action filed with this court should also be dismissed. My reasons for reaching this conclusion are following.

As recently as 1967 this court has steadfastly adhered to the rule

“That the State of Idaho and any of its subdivisions or departments, such as the Board of Highway Directors, are immune from liability for the torts of their employees unless such immunity has been waived to the extent of liability insurance obtained by the State or its subdivision * * *. Davis v. State, 30 Idaho 137, 163 P. 373; State v. Parsons, 58 Idaho 787, 80 P.2d 20; Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609; and Bare v. Department of Highways, 88 Idaho 467, 401 P.2d 522. Particularly applicable is the following language from Bare v. Department of Highways, supra:
“ ‘The Department of Highways is an administrative department of the state government. I.C. § 40-411. In the absence of consent or waiver of sovereign immunity by the legislature, neither the highway department, nor any of its officers or agents, can subject the state to tort liability. The only liability for damages which can be imposed upon the state, in a case such as this, is that imposed by the constitution, art. 1, § 14, incident to the taking of private property for a public use.’ ” (Spear, J., in Gates v. Pickett & Nelson Constr. Co., 91 Idaho 836, at 840, 432 P.2d 780, at 784 (1967)).

In 1964, Justice McQuade, in the opinion in Petersen v. State, 87 Idaho 361, 393 P.2d 585 (1964), stated:

“The following propositions appear to be well recognized by both parties to this appeal: (1) The State of Idaho cannot be sued without its express consent, Hollister v. State, 9 Idaho 8, 71 P. 541 (1903); Thomas & Faris v. State, 16 Idaho 81, 100 P. 761 (1909); (2) This consent must be found in constitutional *810or statutory provisions, Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957); (3) A statute authorizing suit against the state is in derogation of sovereignty and therefore must be strictly construed, Pigg v. Brockman, supra.” 87 Idaho at 363, 393 P.2d at 586.

In Petersen v. State, supra, it was determined that the state by the provisions of I.C. § 7-703 has given its consent to be sued in condemnation proceedings.

As early as 1877, in Gorman v. Commissioners of Boise County, 1 Idaho 655, the territorial supreme court held that a county was not liable for erroneous action of the board of county commissioners. It is stated therein:

“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 invitmn, for certain political or governmental purposes. They are but parts of the machinery by which the affairs of the people are conducted, aijd .they stand in the same relation to the agents .which they áre 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. * . * * ” 1 Idaho, at. 659."

Following adoption of the constitution and statehood in 1890, this court in Worden v. Witt, 4 Idaho 404, 39 P. 1114 (1895), held that county commissioners are not individually liable in damages for injuries sustained by reason of defective highways under the laws of Idaho. - In that case, commenting upon the decision of Gorman v. Commissioners of Boise County, supra, this court stated:

“To hold counties or county commissioners liable for all injuries arising from defective highways, in this country, would result in two very undesirable conclusions, — the literal abrogation of the office of county commissioners (for no sane man would assume the position, with such a liability attached), and the bankruptcy of every county in the state. Had there been any intention on the part of the legislature to impose such a liability upon the county commissioners, they would have said so, by unequivocal enactment. The supreme court of Idaho, in Gorman v. Commissioners [of Boise County], 1 Idaho 655, settled the question of the liability of both the county and the county commissioners in this jurisdiction, and with that decision we concur.” 4 Idaho at 407, 39 P. at 1115.

Set forth in the footnote below are other cases from this court reiterating the rule that in the absence of a constitutional or statutory waiver of immunity neither the state nor its subdivisions is liable for torts of its agents.1 This is in accord with the rule followed by a majority of the courts in this country.2

*811The most recent pronouncement of this court in the area of governmental immunity from suit is to he found in Grant Constr. Co. v. Burns, 92 Idaho 408, 443 P.2d 1005 (1968). It is stated in that opinion:

“We have held that the state cannot be sued without its consent, and that such consent cannot be implied but must be expressly given by constitutional or statutory provisions, [citing cases]
“We have recognized, however, that our constitutional provision prohibiting the taking of property for public use until just compensation has been paid waives the immunity of the state from suit where the state took or damaged the property without first condemning it. [citing cases].” 92 Idaho at 412, 443 P.2d at 1009.

This court then quoted at length from Carr v. State ex rel. Du Coetlosquet, 127 Ind. 204, 26 N.E. 778 (1891), and stated

“Courts in other jurisdictions are in accord with the ruling of the Supreme Court of Indiana and have held, in effect, that where the legislature has by statute authorized the state to enter into certain contracts, the state upon entering into such a contract thereby consents to be sued if it breaches the contract to the damage of the other contracting party [citing cases].” 92 Idaho 412, 443 P.2d 1009.

This court then stated

“We agree with this principle. To deny the right to sue in such a contractual situation would be to deprive the damaged contracting party of property without due process of law. U.S.Const. Amendments 5 .and 14. Accordingly, we hold that where, as here, the state has entered into -a contract pursuant to legislative authorization, the state has consented to be sued for alleged breaches of its contractual responsibilities and cannot invoke the protection of sovereign immunity.” 92 Idaho at 413, 443 P.2d at 1010.

Nowhere has there been pointed out any authority, statutory or constitutional, which would authorize the maintenance of the actions involved in this appeal.

Throughout the history of the law of Idaho, this court has recognized areas in which various governmental agencies properly should be held liable for the torts of their agents. Cities are liable for maintenance of their streets. Eaton v. City of Weiser, 12 Idaho 544, 86 P. 541 (1906) Moreton v. Village of St. Anthony, 9 Idaho 532, 75 P. 262 (1904) ; Carson v. City of Genesee, 9 Idaho 244, 74 P. 862 (1903) ; *812Village of Sandpoint v. Doyle, 11 Idaho 642, 83 P. 598 (1905). Highway districts are liable for negligence in maintenance of their roads. Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456 (1926). And cities and counties are liable for torts in areas of a so-called “proprietary” nature. Eaton v. City of Weiser, supra; Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597 (1935); Strickfaden v. Greencreek Highway Dist., supra; Lundahl v. City of Idaho Falls, 78 Idaho 338, 303 P.2d 667 (1956); Gilbert v. Village of Bancroft, 80 Idaho 186, 327 P.2d 378 (1958).

In 1947 the legislature enacted a bill requiring all school buses to carry liability insurance. As a part of the bill the policy contract waived governmental immunity to the extent of the insurance. S.L.1947, Ch. 263, p. 768. See I.C. § 33-1507 regarding similar provisions.

The legislature of this state in 1955 also enacted S.L.1955, Ch. 146, which waived governmental immunity to the extent of any liability insurance. This first enactment was repealed and then re-enacted at the time of the codification, consolidation and revision of the insurance laws of this state. S.L.1961, Ch. 330. I.C. §§ 41-3504, 41-3505, and 41-3506.

I.C. § 41-3505 is, to my mind, a statutory recognition of the governmental immunity doctrine. That section states:

“Immunity of the state of Idaho, any department, board, agency, or institution thereof, or any other political subdivision of the state of Idaho, including municipalities or specially chartered subdivisions, against liability for damages, is hereby waived to the extent of the liability insurance carried by the state of Idaho * * *.” (Emphasis added.)

By enactment of this section the legislature did in fact recognize the existence of the defense of governmental immunity.

Because of the long line of authority in this state as evidenced by the numerous opinions from this court to the effect that governmental immunity is a defense in actions of the nature now before the court, unless such governmental immunity has been waived by consent evidenced by statutory or constitutional authority, and because of the provisions of I.C. § 41-3505, it is my conclusion that the issue now before the court is one reserved to the legislature for action. The majority opinion, contrary to the express provisions of Idaho Const. Art. 2, § 1, which states,

“The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”

is entering upon a field that this court has always previously recognized as one reserved to the legislature. Our attention has not been called to any constitutional provision which expressly directs or permits this court to depart so radically from its previously uniform holdings, recognized by the legislature, that the state’s consent to be sued must “be expressly given by constitutional or statutory provisions.”

One other feature of this case is worthy of comment. Abolishing the doctrine of governmental immunity, as the majority opinion has done, would mean that in certain cases litigants might eventually recover a judgment against the state. Immediately a question is presented as to how such a judgment will be satisfied. The majority opinion fails to consider this aspect of the problem. While the majority opinion cites and relies upon Bell v. Presbytery of Boise, 91 Idaho 374, 421 P.2d 745 (1966), as authority in support of abolishing the defense of governmental immunity, there is one major distinction between the situation in that case and in the , instant cases. In that case, any judgment recovered could be satisfied from property of the defendant. In a case such as the pres*813ent one, however, without a legislative appropriation of funds, such a judgment in favor of the claimant could not he satisfied. See Idaho Const. Art. 5, § 10; Art. 7, § 13. See also State ex rel. Walton v. Parsons, 58 Idaho 787, 80 P.2d 20 (1938); Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959), dissenting opinion of Davis, J., 163 N.E. 2d 98 at 101.

There have been numerous articles written attacking the foundation of the doctrine of sovereign immunity.3 In an individual case it is recognized that injustice may be done where a claimant is barred from recovery because of such a doctrine, and comparisons, which effectively reflect the great injustice, may be made between a claimant suing the state or a department or branch of government and the situation in which a defendant might have been an individual or corporate entity. Nonetheless this doctrine of immunity has been a part of the law of this state for many decades. In the final analysis, the people óf this state have only in part accepted the responsibility for injury to others, and even then generally through legislative action in waiving governmental immunity in those instances where liability insurance is provided. Until such time as the legislature, as the representatives of the electors and residents of this state, expand this waiver of governmental immunity, this court should adhere to the doctrine. It is for the legislature, not for the court, to make this change in policy.

SHEPARD, J., concurs in the foregoing dissenting opinion,

. State ex rel. Walton v. Parsons, 58 Idaho 787, 80 P.2d 20 (1938) ; Nordby v. Dept. of Public Works, 60 Idaho 475, 92 P.2d 789 (1939) ; Bare v. Dept. of Highways, 88 Idaho 467, 401 P.2d 552 (1965) ; Gates v. Pickett and Nelson Constr. Co., 91 Idaho 836, 432 P.2d 780 (1967) ; Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957) ; Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456 (1926).

. Wallace v. Bd. of Ed. of Montgomery County, 280 Ala. 635, 197 So.2d 428 (1967) ; Roesler v. Denton, 239 Ark. 462, 390 S.W.2d 98 (1965) ; Berger v. Dept. of Highways, 143 Colo. 246, 353 P.2d 612 (1960) ; Faber v. Dept. of Highways, 143 Colo. 240, 353 P.2d 609 (1960) ; Wilmington Housing Authority v. Williamson, 228 A.2d 782 (Del.1967) ; Pereira v. State Road Dept., 178 So.2d 626 (Fla.App.1965) ; Valdez v. State Road Dept., 189 So.2d 823 (Fla.App.1966) ; Strickland v. Wellons, 116 Ga.App. 252, 157 S.E.2d 76 (1967) ; Clark v. State Dept. of Labor, 71 Ill.App.2d 365, 219 N.E.2d 143 (1966) ; Bracht v. Conservation Comm., 118 Ind.App. 77, 76 N.E.2d 848 (1948) ; Parker v. City of Hutchinson, *811196 Kan. 148, 410 P.2d 347 (1966) ; Jones v. Maine State Highway Comm., 238 A.2d 226 (Me.1968) ; State to Use of Watkins v. Rich, 126 Md. 643, 95 A. 956 (Md.1915) ; Smith v. Commonwealth, 347 Mass. 453, 198 N.E.2d 420 (1964) ; Curtis v. Miss. State Highway Comm., 195 So.2d 497 (Miss.1967) ; Luttrell v. State Highway Comm., 379 S.W.2d 137 (Mo.App.1964) ; Coldwater v. State Highway Comm., 118 Mont. 65, 162 P.2d 772 (1945) ; Shear v. State, 117 N.W. 865, 223 N.W. 130 (1929) ; New Hampshire Water Resources Bd. v. Pera, 108 N.H. 18, 226 A.2d 774 (1967) ; Schuschel v. Volpe, 84 N.J.Super. 391, 202 A.2d 218 (1964) ; Township of Springfield v. New Jersey State Highway Dept., 91 N.J. Super. 567, 221 A.2d 766 (1966) ; Lucero v. New Mexico State Highway Dept., 55 N.M. 157, 228 P.2d 945 (1951) ; Atlantic Coast Line R. R. Co. v. State Highway Comm., 268 N.C. 92, 150 S.E.2d 70 (1966) ; Davis v. North Carolina State Highway Comm., 271 N.C. 405, 156 S.E. 2d 685 (1967) ; Heasley v. State, 115 N.W.2d 334 (N.D.1962) ; West Park Shopping Center, Inc. v. Masheter, 6 Ohio St.2d 142, 216 N.E.2d 761 (1966) ; Rader v. Penn. Turnpike Comm., 407 Pa. 609, 182 A.2d 199 (1962) ; Darnall v. State, 79 S.D. 59, 108 N.W.2d 201 (1961) ; Fonseca v. State, 297 S.W.2d 199 (Tex.Civ.App.1956) ; State v. Noser, 422 S.W. 2d 594 (Tex.Civ.App.1967) ; Wilson v. State Highway Commissioner, 174 Va. 82, 4 S.E.2d 746 (1939) ; Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452, 117 S.E.2d 685 (1961) ; State ex rel. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) ; Price v. State Highway Comm., 62. Wyo. 385, 167 P.2d 309 (1946).

. Boreliard, “Governmental Responsibility for Tort,” 34 Yale L.J. 1 (1924) ; Casner & Fuller, “Municipal Tort Liability in Operation,” 54 Harv.L.Rev. 437 (1941) ; Shumate, “Tort Claims Against State Governments,” 9 Law & Contemp. Prob. 242 (1942) ; Maguire, “State Liability for Tort,” 30 Harv.L.Rev. 29 (1916).