*1 re- Judgment Costs court is affirmed. lower . spondent. JJ., McDONOUGH, LATIMER,
WADE, WOLFE, concur. OF
BINGHAM BOARD OF EDUCATION CITY
OGDEN 423) (223 No. Decided 1950. 2d October P. 7468. January 1951.) (Rehearing denied *2 J., Districts, Immunity See 56 C. Schools School lia- Sec. 621. from bility quasi municipal also, corporations, R., See, schools 160 A. L. 1. Jur., 47 Am. 334. Pueblo, Bowman, Young, Ogden, & Thatcher William H. Colorado, for appellant. Ogden, Johnson, respondent.
Wade M.
LATIMER, Justice. brought Bingham, This is an action Jack indi- T. vidually guardian daughter, and as ad of his minor litem against Marilyn Bingham, the Board of Education Ogden City, damages flowing acci- recover an Bingham injured Marilyn dent play- which while she was ing High grounds on the school Junior Central School, Ogden, complaint attempts Utah. The to state action; injuries two causes first received minor, hospital the second for reimbursement expenses paid by general and medical the father. A de- murrer both causes of action was sustained the lower court, plaintiffs allegations elected to stand on the complaint, and the was action therefore dismissed. appeal parties they are referred appeared On to as in the court below. pleaded complaint
The material facts in the fol- body corporate lows That the defendant : .and owns occurred; that on upon the accident premises accident, prior thereto, time day for some purpose incinerator maintained an defendant books, debris, rubbish burning and other papers, old were premises; materials that these on the school collected unguarded place located an deposited in the incinerator regular at playground were burned adjacent area and to a discharged debris, ashes were periods; embers and that hot over area accumulate removed and allowed to question plaintiff, day feet; on the several years, age three Marilyn Bingham, a child of the burning embers, re- riding tricycle and fell into operation ceiving of the in- injuries; severe alleged dangerous manner and hazardous in the cinerator *3 nuisance. constituted a agency Ogden is Board of Education of
The legislature. Article Utah, created of of the State legislature requires X, of the Constitution Section of a maintenance and provide for the establishment to what system. Article X defines 2 of public school Section system, 6 of and Section public school shall constitute systems separates in cities school Article the same systems. Section from other school first and second class shall public “All Funds provide that School Article X of In against diversion.” guaranteed by loss or the State be legislature of the requirements, with these accordance districts, setting legislation up creat- enacted State and du- education, prescribing the functions ing boards necessary granted to them and boards ties of such required carry duties. authority out powers and 1948.) (See A. Title U. C. case pertinent to the instant legislative enactments separate of education boards provide that those which class, Sec- and second of the first in cities created
shall be 1943; education each 9—5, board C. A. U. tion 75— sued, may corporate, it sue and body abe shall may hold, lease, convey personal sell and real and property, 9—8, 1943; among that, Section U. C. A. 75— powers authority other power the boards shall have purchase improvements and sell “schoolhouse sites and thereon, buildings to construct and erect school and to fur- * * * same, establish, nish the locate and maintain * * * things schools do all needful for the mainte- nance, prosperity pro- schools, success and the * * * motion education and make and all enforce regulations manage- needful rules and for the control ment of the schools of the district.” 75— Section 20, U. C. A. 1943. 11— frequently happens
It the same act or omission negligence, and, time, give constitute at the time rise ato nuisance. At it times is most difficult to determine alleged whether an state facts establishes a nuisance merely or shows a lack of due care. Whether or allegations complaint picture which, this a condition law, negligent conduct, is a merely nuisance or show question difficulty. Accordingly, not free from dispose regardless of of the school board negligence. characterization of the alleged
If
ordinary negli
the facts
in this action show
gence then,
previous
court,
under
statements made
appear
it would
properly
the demurrer was
sus
tained.
In the case of Woodcock v. Board
Educa
*4
City,
458,
tion
Salt Lake
181,
55 Utah
187 P.
this
court made mention of
the lack of
board of
a
education
There,
for tort actions.
the issue
obli
was the
gation of
satisfy
a school district
award of
In
an
injuries
dustrial Commission for
by
employed
suffered
particular
teacher. The
principle now involved was not
case,
recognized
in issue in that
.general
but this court
limiting
rule
liability where,
the board’s tort
state,
as in this
imposing liability.
there is no statute
said,
The court
page 463,
page
Utah at
tricts. School districts with limited act powers, discharging educating merely on behalf of the state in the chil- duty age general in dren of school schools created laws.” by general jurisdictions All men- have followed the rule tioned York in that case. The courts of the state of New adopted principle. have a somewhat different See Anno- 7, 76-81, L. pp. 42, tation 160 A. cases in note R. and cited jurisdiction page 76. a In that the courts have made negligence may distinction between which be attributed itself, ato school district or as the school board such non- duty performance imposed by upon of a law the district board, negligence only or and attributed be agent officer, they employee, to an and have held that non-liability only applies rule in the latter situation. discussed considered rule was The New York of Ander- in the case Dakota Supreme of North Court Education, D. 190 N. W. 49 N. son v. Board of against brought the board plaintiff action 810. There negli- son, damages of her caused for the death mainte- gence in the construction the defendant of certain chutes and upon playground nance school heavy swings in the deceased swings. struck One causing court his death. The said: head reaching we can follow feel our we do not conclusion, in “However, placing a result in think, To do would authority. so, York the New having school perhaps every education, board corporation, maintaining erecting actions in such a position corporation, damages brought as much could with or for or for a nuisance against against if and, business ordinary corporation, them ease officers would have education or school boards of result, this would be the suits would anticipation perhaps fear and such and from immunity, governmental them upon incumbent to exercise the functions fail largely might failure result ad- frequently very capacity, rule is where that, think the safest of school affairs. We ministration discharge acting of its in a capacity board its as defined by law, are such as are within duties, powers acts lawful against it, except from all forms of action such as be immune it should law permitted.” *5 writers, judges law While criticized editors and have disapproved foregoing and doctrine of immunity illogical unjust, weight precedent as general support prefer decided cases rule we disregard principle a so well established without statutory authority. We, therefore, adopt rule of the majority and hold that school liable boards cannot be held ordinary negligent acts.
Plaintiffs, however, contend if that even we follow the general they alleged action, rule still a as have cause of liability from tort cannot claimed when the complained act of reaches level a nuisance. many plaintiffs
Since of the cases relied on deal liability corporations, municipal with point out the authorities seem to make dis a municipal corporations tinction what between “quasi-municipal” corporations. are termed This distinc given tion is better understood when consideration is exclusively fact that school boards are created agencies purposes and are mere of the state estab administering purpose system lished sole a public they private education for which receive no or cor benefit; porate that, agencies liability, to tort as occupy or authorities a status different from that of mu nicipal corporations ordinarily have dual char proprietary gov acter and which exercise well as McQuillin Municipal Corpora ernmental functions. tions, explains (Sec. 2775, the distinctions as follows Ed.) 2nd :
municipal liable for ing “* liability * * it is torts corporations unless allowed by torts, pertinent and that proper state here quasi-municipal and statute. general * * rule is there [*] is corporations distinction the latter concern- between is not generally “The immunity quasi-public corporations ground placed of their upon involuntary public They character. agencies, are treated usually state and their duties ordi- governmental. greater narily wholly They exercise part of their func- *6 agencies of are for of purposes public tions as the state created merely, general for the they responsible and hence the rule that are not policy, enjoined given neglect statute. by of duties unless the action is them, recognized hand, municipal corporation proper On other it is agent has which are it not mere of the performed by state, functions as a serving corporation but in its as a alone the local inhabitants. capacity regarded agency all times, If should be as a state at which is city asserted exist frequently qualification by courts, without there would no logical ground holding damages negligence, for it liable for due to since general in no is a liable principles instance state held under of law.” Iowa, The Supreme of of Court the case Snethen v. 12, County, 81, .18, Harrison 172 152 Iowa N. W. refused county negligence performance to declare a liable for in the governmental of its the court based functions. There its reasoning involuntary on the distinction between the voluntary political nature of and territorial of divisions state, and said: not, rule, are as a held towns, and incorporated unlike cities “Counties, long acting are within the by they liable for torts committed so them, governmental corpora- powers. They quasi municipal are of their scope governmental engaged functions, of and are not in the performance tions enjoined neglect the absence them, upon for duties responsible right giving of a statute action.” City Scranton, 319 Pa. District School In v. Carlo Pennsylvania 561, 562, Supreme Court 417, A. 179 municipalities and school between a difference pointed out quote decision: from that We districts. control, even
maintenance Briegel liability maintenance commonwealth stroyed officers or servants said: not be sustained.” decisive “Paraska liability indirectly, ‘Under but in his favor. of a immune holding v. public moneys and support of a municipal Scranton, Pensylvania Philadelphia, public agency the funds any of the school special liability In that corporation [313] other use. playground. of the schools of the Commonwealth devoted to a Pa. statute, liable for [135 case limited district, injuries we held that Pa. This [169] There purpose, specific charity, within its territorial and therefore A. purpose caused consequences districts A. with a distinction whose is by a municipal 1038] might urged its sole and not funds negligence supra, of torts be agencies by plaintiff purpose employees liability division. between entirely under corporation divertible, of the in the is the court can de In holding given by boards of most courts in reasons negligence center education immune from proposition connec- that school boards act in around the agents or instrumentalities tion with education as state, performance func- of the in the of a tion, consequently they partake state’s sover- liability. eignty respect with to tort If this reason good liability, from tort then to relieve boards of education involving equal per- apply it should with force cases injury may involve sonal caused The latter nuisances. aggravated right acts, more to recover continuous but the *7 gradation negligence by of or should not be determined the by adjectives complaint. If strictness the used in the the nuisance, if rule is be relaxed in cases of and the stripped immunity, stripping proc- schools to be of legislative by by and not court ess should be enactment decree. jurisdictions a number in which
There have been of maintaining liability board a nuisance has of a school adjudicated. number of these. been refer to a limited We Independent In et al. Victoria School Braun v. Trustees of 950, 947, of Dist., App., 114 2d the Court Tex. Civ. S. W. Appeals trial court’s decision Civil of Texas affirmed the alleging sustaining complaint a demurrer to a allowing by a tree district maintained a nuisance school building by grow and steps near to the of school sharp points which pruning the tree so that its limbs had injured she dangerous child when and which a school were steps by court The pushed from the other children. said: Houston, 313, McVey the Galveston v. 273 S. W. “In the case city Appeals its a had taken over held that even where Court of Civil against schools, or the school trustees no cause of action would lie either pupil attending resulting injury city for an sustained a proper repair. keeping building negligence in In in not the school many opinion would in other states are discussed and it the authorities repeat Appellant attempts nothing here this for us to discussion. add distinguish stating ease from his Case that his case is a MaVey negligence passing nuisance case and not case. In upon the liability injuries independent school district suffered personal pupil in a free upon attendance no distinction can be between school, made negligence. alleging agents nuisance What is the in difference negligent maintaining ligustrum of the school district were in tree under alleging all the circumstances and in that under all the circumstances ligustrum agents tree was a nuisance and that the school were negligent maintaining abating in and not the nuisance? The question of a nuisance becomes relevant when, by maintenance of a nuisance, private rights or have been involved.”
property property Independent
In
in
Minnesota,
of Mckovich
case
Virginia,
Dist.
School
111 Minn.
225 N. W.
plaintiff
damages resulting
sued to recover for
from the
alleged negligence
allowing
of the school district
in
agents
marking
to use unslaked
in
lime
a football field.
sight
eyes
Plaintiff
lost the
of one of his
when he was
ground
game.
playing
thrown to the
while
in a
The court
question
discussed the
of nuisance as follows:
passing
“In
upon
question of
counties,
towns, and school
districts
in numerous
torts,
cases in this
court,
distinction
has been
negligence
made between
where
nuisance,
except
the tort
caused in-
* * *
injury
rights.
vasion
to private
property
property
rule of non-liability
has been applied in cases where the facts disclosed a
ground
nuisance
as in the
clearly
case. The
present
rule is
on the
placed
wrongful
such corporations
are not
liable for
or other
acts
agents
performing
or omissions
officers
in
village
functions,
except
eases
defects
city
streets,
*8
injury
rights.
cases of
invasion
or
to property
or property
The rule
including
not
to
applies,
alone,
all
but
to
a
torts,
nuisance.
(Citing cases.)
Bojko
“The
was
question
considered in
v. City
Minneapolis
Minn.
[154
167,
591 top of injuries by her fell from received when she unguarded school ramp playground on which was near Supreme stated the rule property. of Tennessee The Court as follows:
when than unnecessary them there six or S. W. 2d “In the opening was the it constructed seven 548] present overnight.” large into county supra, this court piles case in where the Tyler plaintiff school gravel to county determine, building; county or rock in the Obion fell constituted was County committed acting the defendant and even if it be conceded within its middle et al. a a nuisance nuisance, of the road and left [171 is no delegated Tenn. more a dumping question power liable that Education passed nounced the rule to be: The Supreme board’s Court of Grand liability Michigan, Rapids maintaining et in the case of al., Mich. a nuisance. Daniels 158 N. W. The court v. Board 23, 28, an- alleged “In the second count of plaintiff’s declaration it that railing enclosing structure with its low stairway ‘well-hole, dangerous elevator became and a shaft,’ remained nuisance. It is contended applying alleged his counsel this name view to the facts defendants are liable under the principle municipal corporation or maintain construct a nuisance in the street nor upon property its damage to the of another in lawfully the street or upon premises, * * * authorities are cited to sustain this doctrine. general (on give said in that discussion are unable what “We nuisance) and cannot discover to this case contended for, the application change governing intent resort to the rules modify by in it any general school principle boards, law of nuisance the well-settled agencies, exempt are quasi corporate capacity or want of of their repair construction corporate faulty buildings.” system public The maintenance of a schools within state is a matter of statewide interest. Boards of education legislature perform function of are created educating residing agencies children the state. As state, their activities are restricted to the duties granted They specifically powers to them. act without govern- by taxes, solely profit, supported and act in a legislature capacity. imposed mental has not re- sponsibility upon adopt them and this court cannot Te- torts, sounding fined distinction between two mere one *9 negligence sounding aggravated negligence and one judicial such a construction relieve the school board in impose liability one instance and in the other. case, disposing
In papers, the instant rubbish and schoolgrounds daily debris which collect on and in reasonably scope classrooms is within the of the imposed upon leg duties boards of education burning islature. The rubbish and is an debris part building essential sanitation of grounds. complained Since the acts of were committed performance function, of a the rule immunity though firing applies, even of the incin performed negligent erator in such a manner as maintaning be characterized as a nuisance. aware We are allegations complaint tragic portray case, and unfortunate sympathy and we are not without girl for the little However, and her father. under our .constitution, power departments to make state respond damages legislature, for torts with rests legislative Without impose any enactment we are unable to obligation upon school districts. affirmed, the trial court is decision of costs to respondent.
.PRATT, McDONOUGH, J., J.,C. concur. WADE, (dissenting). Justice Generally, expressed by I concur with views Mr. Justice I am Wolfe. inclined to believe that the entire sovereign immunity jus- (cid:127)doctrine of inconsistent with principles ground tice and correct I do not agree prevailing opinion. with the decision in How- ever, in this case are limited in our decision to the con- trolling presented. facts here Here we are concemd only with a case of and as far as cases concerned, I .kind think that the doctrine of *10 application. has no probably There have been doctrines past by .announced in the plain- this court under which the tiff in this case would be entitled to succeed without over- ruling the sovereign entire immunity. doctrine of I do not think we position are now in a to determine the limits ex- go tent to which we would types other cases. may
There public employees, situations where really looking officers are after their own interests al- though ostensibly acting public for the where it would public not be in the interests to make the liable negligence. their Certaintly there are cases where sovereign the doctrine immunity applicable is cases involving rights property as well personal as to injuries, where the parties actions of interested have been influenced court I express decisions. opin- therefore ion as to how far we should overrule the doctrine. IBut do think that it should be application held to have no to the facts of this case.
WOLFE, Justice.
I dissent. opinion
The court’s states: judges law “While writers, editors have criticized and disapproved foregoing governmental illogical doctrine unjust, immunity weight general of precedent of decided cases supports rule and disregard prefer a principle so well without established statutory majority authority. We, therefore, adopt rule and hold that negligent boards cannot be held liable for ordinary acts.” regard principle purpose prefer I said for the of over- ruling . I it. would not wait for the dim distant future in legislature During never-never land when act. my years years the district bench and sixteen on this six sovereign bench, principle cousin, and its non-liability institutions, specifically of charitable of hos- pitals, We, has come before court at various times. resort, jurisdictions well as courts other of last in various principle problem of non-lia- have to face this had quasi-municipal bility municipal and of of the state corporations taken on the cloak of are said to have which sovereignty exercise because which, claimed, the doc- it them from functions insulates recognized superior. that the respondeat haveWe trine of damages against state, permits an action for injuries torts citizens for inflicted their torts and pursuance or in of their servants committed in the course of *11 business, not itself behind should shield master’s king that “the doctrine indefensible immoral the wrong”; should the that neither [sovereign] can do no agencies, own refuge that soverign doctrine in the take against judgment render courts, to not be allowed must the jurisdictions, has court, have other as creator. This injustices circumvent to devices to various resorted sovereign immunity. consequent on distinction between to draw a these devices was of One In governmental proprietary functions. supposedly Meiling, concurring my opinion of Lehi in the case 530, 237, 270, page 48 P. 2d at City Recorder, at 87 Utah the dis- attempted point out that at bottom page I than natural character- rather or was traditional tinction growth rapid of wel- in distinction and that istic engaged functions proprietary in for which cities fare functions, governmental distinguished protective or increasing impractic- fading out because of was fast maintaining ability logically Another device them. negligence, aggravated and hold nuisances to call cases was a contin- situations where there that nuisances —those containing uing negligence, pal- definite or recurrent subject potentialities to the rule pable for harm —were not anxiety give injured non-liability. party a flagrant gross negligence by remedy prolonged justice negligent in the belief that had actor had its roots injured permitting party in not been served bear
595 negligently injury. the full brunt of the inflicted But the agree grips problem. court I failed to come to with the real prevailing opinion with the that if the given holding “reasons most courts by boards of education immune from negligence center around proposition boards agents act in conection with education instrumentalities in the estate, performance function, and conse- sovereignty quently they partake the state’s with respect to tort lia- * * good bility to relieve boards of education from tort liability, involving injury then it should with apply force equal cases personal agree right caused nuisances.” I by “the to recover should not be graduation adjectives determined by in the used complaint.” agree But I do not “If the strictness of the rule is to be relaxed in cases of nuisance, and if stripping the schools are to be stripped immunity, process should be legislative enactment court decree.” City,
In Husband v.
Salt Lake
page
Utah
491, page 500, I
P.
2d
stated:
sprinkling wagon being
along
“I do not
think that
operated
park
legal
in order
pathway
settle
the dust
is a
nuisance
sense.
^o
[*]
[*]
[*]
#
[*]
[*]
*12
willing
“But
I am
to hold the
liable
city
on the
of
theory
respondeat
negligence
sprinkling wagon.
for
superior
the
of the driver of this
I think
gone
lengths
giving
the decisions have
to ridiculous
im-
municipalities
negligence
ground
munity from the
of their employees on the
that
the work
engaged
in which
governmental
such
were
employees
was in
of
pursuance
Meiling,
In the
purpose.
case of Lehi
L. Com’r Ed. of Internal 108 A. L. R. 1428. Revenue (Oct. 1936) [300 U. S. 352,] 57 S. Ct. 495, [81] restricting negligence of for municipal immunity “I am in favor of engaged in the while in the to that committed city’s business employees preserving actual of protection persons property of pursuit other exercises as an or some which it community police duty peace originated agency city state. The doctrine on the theory of the preserving agency and pro- of the state in its function the peace was tecting for and since the state could not be sued property, persons performing negligence neither should employees functions, of its guilty engaged agency when its servant so required respond original negligence. of the I have some about the soundness question unfairness which produce as then it did not doctrine, restricted, but greater greater municipal expansion now ensues because governmental purposes.” construed to be activities judicially opinion strike I of the that we should am now very im- tree of the ax at the roots grown by-gone munity from a time in which it have necessary policy protect part been state, corporations quasi-municipal municipal cor- including torts, porations boards, personally. few of which were committed the members myself willing expressed I In the Husband case to adhere municipal immunity ap- to the doctrine of to the extent of negilgence city’s plying “employees it to of the while en- gaged city’s in the pur- business to that committed in the protection persons property pre- suit of actual serving peace community police of the or some other duty agency which it exercises as an I state.” must my position now recede from there taken. I see no neces- sity exempting in modern times even the state. 573, 111 P. City,
In Niblock v. 2d Salt Lake 100 Utah 800, 804, concurring opinion, in a I stated: they *13 ing expressed employees any “In the case of Husband v. in case are about damages had been ethical opinion its business. grounds. extended too injury caused municipal Salt Lake It far. state should follows the The doctrine City, then, set that Utah cannot be defended in of its servants while it example by should P. 2d permit respond of its its I the caused proximately the as whether it courts to te to to opened inquiry injury. plaintiff’s do no which the court See 23 Mich. L. Rev. S. E. “Governmental sovereign very wrong’ cannot be itself. But neither of 120 A. L. R. nature or, itself immunity reached on the better cannot be creates. 325; [1368] Hoggard sued suit granted One cannot 1376. circumstanced these because the in on the old theories through bring of sovereignty morality, suffices Richmond, into court theory very in this modern that that implies 172 Va. agencies the creator the ‘the something sovéreign king which day. can of speaking, free the vexatious suits the state should be “Realistically might spring grounds into abundance were on fictitious based lifting is, perhaps, the matter of Therefore, immunity removed. immunity legislation. judicially matter But it behooves the courts properly * * * doctrine. to extend the on the fact that it exercised “Logically, is based city’s immunity if a R. at the doctrine sovereign p. 1377, out 120 A. L. powers, pointed soverign suing at would all, apply to an impediment ‘constitutes governmental character.’ of a functions as to those well to proprietary line be drawn between “Logically, should why there is no reason also, it has the virtue governmental and others. But at least functions some injustices mitigating anachronous doctrine immunity. to have refused steadfastly this court since the decisions “However, prevailing to the law rule must continue doctrine, limit so change Legislature sees fit it.” until recog- argument that since we have to the There is force immunity sovereign long the rule of time nized for legislature it to the now leave jurisdiction, we should said change There is much to be rule. property in- stability. is here But no rule name of rights have vested because No volved. origin judicial judicial is of The doctrine our decisions. age. experience past of a development growing of the out policy time demanded the Assuming at doctrine, longer case. such is no announcement way, may may develop it judiciary one also dis- law If the changed longer conditions have so when card that law Stability applicable. in the law is no make the rule continuing admittedly a doctrine which works excuse *14 598
injustice public policy longer, did, if it ever re- when quires. amply
That demonstrated in the case of Sessions Hospital Ass’n, Dee Thomas D. Memorial 94 Utah concurring opinion P. 2d 653. It was stated “ * may that case: *Whatever have been reasons as- signed by hospitals operated exempting courts for not for profit consequences doctrine, from of the the real public policy. reason was That funds held in trust for specific purposes exempt charitable should be is another way saying public policy exempt that it is better trust It is not because there A funds. is a trust. trustee profit respondeat is amenable super- to the doctrine of Likewise, theory ior. that such institutions serve the purpose governmental agency same aas is but another guise holding good public exempt that policy it is application them from results, It doctrine! therefore, that we but need determine whether in this day age policy exempt hospitals demands that we application (Italics supplied the doctrine.” from this case.)
Having hospitals in the case of found the rule im- fitting munity today, not for the conditions of we should sovereign the same token rule immunity hold the applicable today. for the conditions of It is outmoded and does those not fit conditions.
Society systems developed whereby has risks pooled consequence, and distributed. In I think the fear expressed that I in the Niblock case Utah 111 P. [100 2d “the state be free should vexatious 804] grounds might suits spring based fictitious in- to abundance were the removed” did not take might into Doubtless, account the risk be insured. there unworthy will be fictitious suits doubtless some of them will be pen- successful. That one justice justice, democracy because pay alties greatly beings. out But human must be administered period of weighing in a consideration is the fact injured of serv- time children and adults state, employees municipalities or ants of being boards, injustice un- suffer will the school sighted *15 society to compensated too which was short a sovereign immunity the rule of was outmoded see that longer necessary. abolish legislature could and should I admit may It realistic. modify we must be the doctrine. But enlightened individuals long time indeed before to sufficiently aroused interested and society our become bring to injustice of this rule legislature Mr. Justice pressure on the social necessity times.” the “felt denominated HOLMES charged children, in fact or law with not But meanwhile danger, experience and adults capacity to know negligence, may perish chargeable contributory with disfigurement throughout im- carry lives compensation they hope were pairment because without enough damages unlucky to have had inflicted such govern- the state or a servant of one of its servant of mental arms. duty where There cases here.
Certainly we have a solely remedy with lies powerless to act because we are still have legislature. But in those cases where we judge made and it or doctrine because was control of a rule “passing” developed, here and act. Non-action legislature easy way But I out. problem the is the to lift our hand it conscienable for us not do not think bring up date and furnish to do so the law when would affirmatively opine long over due. I if we remedies legis- acted, those who would to the there would be hasten they and conditions that lature to advocate limitations thought give would be needed to exempt the state and now opportunity bodies timely investigation make and to prevent judgments against excessive puglic those bodies.
NORTH SALT LAKE v. ST. JOSEPH WATER
& IRR. CO. et al. No. 7455. (223 Decided 577) October 1950. P. 2d