Appellant has petitioned for a rehearing of this case and insists we have erred in that we have failed to dispose of a federal question presented for decision, which is stated in the second allegation of the first affirmative defense appearing in the answer, as follows:
"That at all of said times in said supplemental complaint mentioned the defendant erected, equipped, maintained, managed and operated said hospital through taxation pursuant to the provisions of Sec. 30-3301 and 30-3302 I. C. A.; that to have maintained and operated said hospital by the defendant herein, acting by and through its Board of County Commissioners for the purpose of rendering hospital service and care to the public in general, needing and requiring such service and care, as pay patients and to have constructed, *Page 118 acquired, maintained and operated said hospital by the defendant herein in its corporate capacity for pay and profit would have been at all of said times and is in violation of Amendment 14, Section 1 of the Constitution of the United States, wherein it is provided;
" '. . . . nor shall any state deprive any person of life, liberty, or property, without due process of law; . . . .' for the reason that there was and is thereby granted by the Legislature of the State of Idaho to the Counties of the State of Idaho the right to levy taxes for private purposes and would have been at all of said times and is in violation of Article 4, Section 4 of the Constitution of the United States for the reason that there was and is granted to the counties of the State of Idaho by the Legislature of the State of Idaho the power to appropriate public funds raised by taxation to private purposes."
It is clear appellant relies on that part of sec. 1 of the Fourteenth Amendment to the Constitution of the United States, commonly referred to as the "due process of law clause." We are not certain what is meant in the answer, and in the petition for rehearing, by reference to Article 4, sec. 4, of the Constitution of the United States, which contains the guarantee to every state of a republican form of government, and of protection against invasion and domestic violence, and which does not appear to bear any relation to anything in this lawsuit.
There is nothing in I. C. A., Title 30, Chapter 33, which requires a county to furnish hospitalization, at public expense, to those able to pay for it. On the other hand, the intention of the legislature that those able to adequately compensate the county for hospitalization should be required to do so, is apparent. If appellant violated the law in this particular, respondent is in no way responsible for it.
From the first allegation of appellant's first affirmative defense, in its answer stated, it appears that it erected, equipped, maintained, managed and operated its hospital pursuant to title 30, chapter 33. It seeks to attack the provision therein contained granting it permission to receive and care for "pay patients," as being violative of those provisions *Page 119 of the Federal Constitution, above mentioned. A litigant, having invoked the benefits of a statute, is estopped to question its validity. (Brady v. Place, 41 Idaho 747,242 P. 314, 243 P. 654; Pierce Oil Corp. v. Phoenix Refining Co.,259 U.S. 125, 42 Sup. Ct. 440, 66 L. ed. 855; St. LouisMalleable C. Co. v. Prendergast Const. Co., 260 U.S. 469,43 Sup. Ct. 178, 67 L. ed. 351; Buck v. Kuykendall, 267 U.S. 307,45 Sup. Ct. 324, 69 L. ed. 623, 38 A.L.R. 286.)
Furthermore, a county, being a municipal subdivision of the state, cannot be heard to urge that its laws violate the due process clause of the constitution. (Trenton v. New Jersey,262 U.S. 182, 43 Sup. Ct. 534, 67 L. ed. 937, 29 A.L.R. 1471;Cranford Co. v. City of New York, 38 Fed. (2d) 52; Sweeney v.State, 251 N.Y. 417, 167 N.E. 519; City of Providence v.Moulton, 52 Rawle I. 236, 160 A. 75.)
The petition for rehearing is denied.
Holden, C.J., and Ailshie, J., concur.
Budge, J., not participating.
Givens, J., continues to adhere to his partial concurrence and dissent, as above set forth.