Graham v. Worthington

Wesley Worthington, R. v. Lorne appellant, Graham, J. State appellees; State, et al.,

Auditor intervenor-appellee. Association, Bar No. 15, 1966.

November Belin, Moines, for & Herrick, Langdon, Sandblom Des appellant. Brick, General, Scalise, Attorney Joseph S. F.

Lawrence Clarke, Jr., As- Attorney General, and Wade Assistant Special Attorney General, appellees. for sistant -

Swift, Randall, & Brown, Moines, Schaetzle of Des inter venor-appellee. By declaratory proceedings and judgment

Rawlings, J. plaintiff constitutionality injunctive attacks the relief Sixty-first Assembly legality chapter Laws General 25A, (chapter Code, designated Aet. 1966), Tort Claims chapter 25A, Code, Prior to enactment the doctrine immunity applicable was held us to be governmental political all of its cmd subdivisions. We also decided State by judicial public policy decision overrule more interfere n legislature. Hargrave left to Montandon v. appropriately 850 1300, 130 Co., 1297, 1299,

Construction N.W.2d Iowa legislature plaintiff challenges Now has acted and results obtained.

By legislative filing, provision is made enactment passing against the State upon, allowing paying money damage prop- Iowa for loss of only, on account of to or erty or negligent on personal injury account of or death wrongful any act or state while employee of the omission acting employment. within the scope or office his joined denying by intervenor-appellee

Defendants were unconstitutionality Act. appealed. plaintiff trial court held adverse to and he

In asserting propositions on he contends relied for reversal the trial holding court erred in Act did not fol- violate the lowing provisions I, of the Constitution of Iowa: Article section 6; Article section III, III, 24; III, section Article Article III, 31; and Article VII. He also claims the 14, Act violates Amendment and Amendment 1, Constitution of the United Plaintiff assumes a States. thus heavy burden.

I. 624.4, Code, Our review is de novo. Section and rule Rules of Civil Procedure. stipulation

. Since the case was submitted toas stand- ing parties, pleadings briefs, no are findings fact accordingly We legal here involved. concern ourselves with the presented. issues

It is of course understood the enact provided law desired not clearly it is prohibited provi some sion of the Federal State v. Wilmington Constitution. Tice Corporation, Chemical 616, 622; N.W.2d Bulova Co. Co., Watch v. Robinson Wholesale and Dickinson v. Porter, 35 N.W.2d 66.

And Pleasant, Green v. of Mount judicial 131 N.W.2d this court held: The branch government power has no legislative to determine whether unwise, Acts power are wise nor has it the to declare an Act plainly it void unless and without repugnant doubt to some presumption against nois provision of the Constitution. There presump Every validity of a statute. reasonable constitutional challenging party must support Act. A tion be called to the must every reasonable basis presumptions negative and overcome these Needles, v. 259 Kruck which sustain the statute. See also will 258 McCullough, 296, v. 470, 301, 144 Powers Iowa N.W.2d 378, 383, 384; Steinberg-Baum 745, 746, Iowa 140 N.W.2d 738, 15; and 929, N.W.2d Countryman, 923, Co. 247 77 & Iowa Beardsley, Knorr 240 38 N.W.2d Iowa 711, Co., 702, Creamery v. Fairmont Then State 895, A., S., 821, “The L. R. we said: Constitu- N.W. N. to serve principles tion certain basic was intended to announce to not intended It was perpetual as the foundation of the state. development, nor to be be a limitation its healthful problems. days bring new progress. obstruction to its New they come; Legislation must as otherwise problems meet these we Manifestly, plan government prove inadequate. our of must con- ought or strained adopt not to be swift to such a technical unduly impair the effi- struction of the as would Constitution responsibilities.” ciency of the its unavoidable meet 1330, Sales, Erbe, 251 Iowa Inc. v. See also Diamond Auto 1005, Schuster, 227 Iowa 1336, 650, Miller v. 105 N.W.2d and 1014, 1015, 289 N.W. 702. constitutionality merely if an Act is doubt

Also, of the Long v. fairly debatable, ful or courts will interfere. the 381, Supervisors, 1283, 378, Board of Am. 13-19, 1 Supervisors, and v. Board of Stewart Rep. 238. III,

II. Plaintiff asserts violation Article subject Act refers Iowa in that title to Constitution against liability while state, state, to claims and (1) subjects liability the Act itself state to torts (2) all officers, agencies, and agents employees and of state cities, political towns, as school subdivisions of the state such and counties. districts as chapter 25A

The title of the identified now Act; tort claims “An Act and establish a state follows: create on appeal defining conferring upon the state board terms power behalf against state the determine certain claims state; permitting waiving state sued the state’s be immunity liability herein; from provided to the extent confer- jurisdiction ring hear, determine, the district court to judgment; generally practice render providing for the procedure liability to establish on tort claims.” III, 29, provides part: “Every act shall subject, embrace but one properly and matters connected there- with; subject shall expressed be in the title.”

In Long Board Supervisors, N.W.2d III, we held Article liberally our Constitution should construed one Act so reasonably embrace all with matters connected ex pressed utterly in the and incongruous title not thereto. Also importance it of no might is that a law which contains matters usually be and separate or are contained Acts would more logically classified as belonging subjects provided to different they germane only general are subject to the of the Act which they put. are And see 256 Pleasant, Green v. of Mount 1184, 1198, 1199, Iowa 131 N.W.2d 5.

It is to us expressly evident the the Act waives governmental immunity common-law of of as to the State Iowa officers, certain claims for the agents employees torts of department, agency, board, state bureau or commission state, together corporations with governmental certain as by defined the Act. 25A.2(5) 25A.4, Code, 1966; Sections and States, Dalehite v. United 956, 959, 346 73 Ct. U. S. S. 1427; L. Ed. States, 97 126 Supp. Jones F. United App. S., affirmed 97 C. 52; States, D. F.2d C. J. sec 130(b), page 1139; Territories, Jur., States, tion and 49 Am. Dependencies, 76, page Boyer and section 288. See also v. Iowa High Assn., School 256 Iowa 341-348, Athletic N.W.2d 606.

It apparent payment part also the matter of is logically provisions of those jurisdiction of the title the Act conferring claims; hear, to determine certain to judg- determine and render ment; generally liability providing procedures to establish Surely person of the state on tort claims. no reasonable would disposition or misled as of claims determined or be deceived judgments purpose Act is rendered. self-evident orderly by compensate tor provide method those tionsly employee of damaged by any officer, agent or state 1966; 25A.4, Long as Act. Code, defined See section 1278, 1288, 142 Supervisors, Board N.W.2d 856-859, 38 384; Beardsley, N.W.2d Knorr v. And known function since the through officers, agents employees, inclusion Avithin its their certainly germane body incongruous of the Act is to and subject expressed in the title. general with the urges phrase agen- Plaintiff “instrumentalities or III. towns, IoAva”includes cities dis- cies of the State of school the title of so tricts and counties but does not disclose. agree interpretation. We cannot Avith

Ordinarily classi political subdiAdsions state are state, particularly identified agencies as or arms more fied High quasi corporations. Boyer Iowa municipalities or See 337, 339, 340, Assn., 256 Athletic School City Cresco, 533, 535-542,109 N.W. Hanson v. Jur., N. State, 191 Misc. 77 Y. S.2d Am.

Ciulla v. 101, page 317; 62 States, Territories, Dependencies, 74; 37 Am. Corporations, page S., Municipal C. J. S., 623; 78 page C. J. Jur., Municipal Corporations, Jur., 25, page 659; 47 Am. Districts, and School section Schools Counties, S., 304; 20 C. Schools, page J. 186; Counties, page 759; Supp.,

page 20 Am. Jur.2d Rhyne Municipal on and S. 11 Law Charles Drake Review 4.6, page 68. pages 1-8, and section (1957), 1.4, sections Law 1.1— However, repeatedly court held the has America, Corp. of lexicographer. its Hill v. Electronics own 250 Hansen, 581, 587, 113 N.W.2d Cowman of Council 358, 363, Dingman N.W.2d Iowa 92 S., Bluffs, 742. C. J. See also Jur., Statutes, and Am. sec- 315, page 536, Statutes, section page tion portions section 25A.2 pertinent

In this the of connection provide as follows: * * * * # “1. agency’ *, agencies, all the ‘State includes of Iowa, corporations primary of whose to act state and function as, as, acting and while or agencies instrumentalities the state of * * Iowa, of ‘Employee any “3. the of state’ includes one more of officers employees any acting or of or agency, persons the state state any on or any capacity, of the state agency behalf state official * *

“4. ‘Acting scope employment’ within the of his office or acting duty employee means his line of state. any against “5. ‘Claim’ means claim the state Iowa for money only, on damage of property account or loss or on personal injury death, or account of caused negligent or wrongful any employee act or omission of of the state while act- scope ing employment, within the his office or under circum- state, private where the if a person, stances would be liable to * * damage, loss, claimant for injury, death, such (Emphasis supplied.) also 25A.10, See sections 25A.14 and Code, 25A.20, 1966. . political cities,

We are satisfied subdivisions such as agencies school districts and counties neither nor are state corporations as employed those terms are Act, defined and are not included within its intent purpose. clear

Surely officers, agents political employees sub- officers, agents employees divisions are not of the state while acting scope within employment. their officeor chapter

In 25A addition, provides procedures filing no and passing against any political subdivision of the any nor paying means or method for such claims. Neither provision made reimbursement pay- state as to involving officers, agents employees ment made the tort of political subordinate entities. respect

In that legislature in we cannot assume to enact futile and law, tended ineffectual one would consequences. lead to absurd Bishop, State 132 N.W.2d 455, 457; Benter, France v. Light

N.W.2d Iowa Power & v. Hill, Co. Pleasant 253 Iowa 532, 536, 112 Appleby N.W.2d v. Bank Farmers State Dows, 288, 295, Iowa 56 N.W.2d Olson, v. Case 234 Iowa 873, N.W.2d 717. See also Kruck v. Needles, 259 Iowa 470, 478, 296, 144 N.W.2d

And when two possible, constructions are the one will adopted be not consequences does lead to which would serve an Act make unconstitutional.

If legislature had intended to eliminate the doctrine of governmental immunity, political as to all subdivisions of the state, easily it could have so declared. This it did not do and it is extend, enlarge not for us to so or change otherwise plain terms or intent and meaning 344(f) statute. Hule (13), P., R. C. Bergeson Pesch,

N.W.2d 431. entirety

When considered its the Act discloses no part on intent to waive existing govern mental immunities those or entities subordinate units of the commonly state political classified as subdivisions. See Dingman Bluffs, connection of Council Ferguson Brick, 82 N.W.2d 849.

IV. Plaintiff also maintains Act in question here portion III, violates of our Con “* ** provides money stitution which nor, follows: shall paid any claim, on matter which shall have provided pre-existing been for laws, public money and no property appropriated local, shall be private purposes, * - (Emphasis supplied.) complaint

The made is directed provision first to that 25A.2(5) which “However, states: ‘claim’ includes accruing January 1, such claims on after 1963.” By its terms Tort Claims Act became effective March 3965. This then means claims which have ac- anytime years within two crued its three months before effective date are within terms of embraced the enactment. question presented now whether disbursement prior funds torts committed to the effective date of the of which payment money,

would of the matter constitute any provided previously was for law. not enacted not, at By way it noted are of exclusion should be here we point case, any pertaining concerned with issue an au- obligations attempted delegation contractual or with of thority appropriate private public to cities and towns funds to Moines, 210 in of public use without as Des benefit Love funds appropriation public 230 N.W. of 373. There private purposes, public for to contractors bene- a bonus without constitutionally con- fit, clearly be was held to disclosed and in case later that is not situation the demned. As disclosed now us. before for a demand

“Claim” the Act means as word is used compensation bjr alleged a tort to have been committed reason of 25A.2(5). by an officer, agent of Section employee the state. accepted. supplied by The is definition must be necessity always Until precedes Of the demand. the tort of propriety there a determination and merits has been as to the any prescribed by Act there coming class claim within the Edge Brice, no indebtedness.

755. paid money no can be provisions

And under the law adjudication prior pursuant on claim to a determination or legislation dealing. that with are here Section we 25A.11. Assembly may appro-

If the convened in General one session priate payment for act com- funds of claims reason some prior session, surely it its mitted own author retrospectively determining limit as to claims the time those S., classes which the state will entertain. 53 C. J. Limi- Actions, page 905; Jur., 34 Am. Limitations Actions, Jur.2d, page 26; tation of and 16 Con- Am. Law, 433, page 777. stitutional application retrospective does constitute This recognition existing 'wrongs law. It which com- is but for pensable provided. regard See in this v. Ken- redress Grout Mary- dall, N.W. State States, land 165 F.2d 1 A. L. R.2d v. United (cid:127) Any money paid provided by pre-existing will be law, to-wit: the Iowa Tort Claims Act.

Y. legislative power All of this state is vested Assembly. .General Article III, section Constitution of Iowa. And we are challenged satisfied the law here does not serve to unconstitutionally delegate legislative power. Assembly, by General chapter 25A, government waived immunity

al designated the state and the class of claims might which redress be had. It prescribed also standards mechanics presentation, consideration, determination, adjudi cation, subsequent payment factually of those claims found to be meritorious under the 25A.2, Act. 25A.3, 25A.4, Sections Code, 25A.6 and 25A.13, Spurbeck 1966. also Statton, See v. 252 279, 286, 660, Iowa 106 N.W.2d Van Trump, State v. 224 275 N.W. 569.

It is Assembly for the General to enact governing laws expenditure of state funds including appropriation moneys payment. But once this is constitutionally proce done the dures, mechanics, the fact finding process upon payment which made, may shall reasonably be with proper guides or standards delegated judicial quasi-judicial. Spurbeck bodies. v. Statton, supra; In Appeal Beasley re Bros., 206 Iowa 233, 220 306; N.W. In re Assessment Sioux Stock Yards Co., 5, 10-12, 149 Iowa 127 N.W. and 16 S., C. J. Consti Law, tutional 138, 139, pages sections 570-636. payment

Furthermore against of claims state not exclusively legislative Iowa is function. 16 C. S., J. Con Law, stitutional 107, pages sections 483-495, and Am. 104— Jur.2d, Law, Constitutional 227-230, pages sections 475-481. Nothing III, contained Article of the Iowa Consti contrary. tution infers to the attorney general,

The appeal board, or the district court, may be, simply as the case determines the facts on properly presented which are embraced within the terms itself, adjudicate rights accordingly. Sections 25A.6 and 25A.13. authority delegated so at administrative, is most quasi- with, pro- judicial

judicial adequate guides standards vided. Assembly

So here a law dele we have which the General persons under gated power to ascertain the entitled to relief enactment, merit of merit legislative or lack according if claims, amount, any, their and the to be allowed Spur proof constitutionally it the factual made. This could do. 279, 286, Statton, beck v. 106 N.W.2d Miller Schuster, 1005, 1014-1020, N.W. United Grimaud, L. Ed. States 31 Ct. U. S. S. 563; Bailey 789, 794; Van Fla. and 16 Pelt, 82 So. Law, S., 138(b) (16), page C. J. Constitutional in- otherwise, general To in some principle, hold would needlessly government. block the stances wheels pay

VI. It is Act does not authorize also evident the moneys ment of not been law public claims with have tort fully appropriated. III, 31, of the Iowa place

In the first by an funds appropriation public is not Constitution violated public purposes. Porter, 240 This court said in Dickinson v. as follows: agree that the has

“The authorities public purpose broadest discretion as what is a but also tendency question a changing such is one. [Citations] liberality characterizing in taxes greater later cases is toward public appropriations purpose. as in [Citations] it may public although interest bene “A law serve the than fits certain or classes others. individuals more [Citations] Co., supra, 301 U. S. Coal & Coke “Carmichael Southern 1245, A. L. 875, 1256, L. 109 R. 57 S. Ct. 81 Ed. * * serves present expenditure whether the states: the law- question addressed to public purpose practical a is a plain of de- making require it a case department, and would reasonably every parture public purpose which could from justify a court.’ the intervention of conceived to [Citations].” Iowa Iowa, See also Hansen v. State N.W.2d 555. may recognize

Moreover the state equitable moral or obligations and appropriate public payment. funds for In this connection we in Kendall, said Grout

N.W. 529: particular

“Whether a purpose public is a purpose whether it has the of a obligation sanction moral of the state are questions definitely which have never been answered or defined. It quite uniformly has been held the courts that determi- questions nation of such largely legislative power. inheres doubt, Within the zone that a obligation is moral of the state public and that purpose is which the to be deems such.” Also in this pages 482, Reports, same at case * * *

we said: proposition, legislative “As to the that there is no power to appropriate money except to an individual or class discharge legal of a obligation, distinguished as a moral from obligation, deal again we with abstract that proposition an is not easy judicial In pronouncements to define. under considera- tion, no attempt is legal obligation made to define a as between a state and an individual. if anything But is to be built such pronouncement, a made, later. definition must be sooner or It ought to be found building begun. before the Antecedent any legislative thereon, legal obligation enactment what is a of the state to an individual or class? an obliga- How is such tion created ? Suppose saywe that the bonds of state are strict- ly legal obligations. obligation But such is not antecedent to legislative enactment Valid pur- thereon. bonds are issued enactment, suant legislative they legal obligations become legislative notoriously because of enactment. It must be deemed body that great legislative true appropriations are made uses which legal obligation part' constitute on no state, distinguished from a legislative moral one. When a appropriation enacted, usually legal obligation does pronouncement legis- arise. The under consideration is power appropriation lature has no constitutional to make such except legal to the use of or class, response individual to a already Now, obligation existing legislation. antecedent be, if can cases, legal obligation legis- there such no without enactment, lative legislative and pre-exist- no enactment without ing legal obligation, our reasoning is lost the vicious circle. What becomes of power ap- legislature field propriation which it occupied has unchallenged for scores years! not, Is it rather, legal obligation true that the state, distinguished as one, infrequent from a moral is a rare specimen, and that body sovereign recognizes state as a claims which rest principles right equity such as are fundamental to our jurisprudence, pub- appeal and which to the lic justice sense as a moral obligation part on the of the state! Though money right appropriate has to as no charity mere gratuity, yet recognize or it right have a does justice the essential against state, a claim weighed measured the standards here indicated.” See Realty Co., 427, also United States 16 Ct. U. S. S. 1120, 1127, 41 215; L. Ed. Co., Hunter v. Colfax Consol. Coal 306, 1037, 15, 154 N.W. L. 1917D Ann. R. A. 803; Cas. 1917E Soule, 236; Metz v. Kretsinger Co.,& Stewart, Mills v. 332, Mont. 247 P. 47 A. L. R. Am. Jur.2d, Law, page Constitutional section and 49 Jur., States, Am. Territories, Dependencies, 73, page problem

The hand, basic at by gov- that of torts committed officers, agents employees, already ernment has become one people state, concern to all of this and with anticipated popu- growth may expected lation it alarming pro- to soon assume portions in the plan absence of some reasonable alleviate Boyer burden. See dissent in High v. Iowa Athletic School Assn., States, S., 81 C. J. page 856; Jur., Territories, 49 Am. States, De- pendencies, page 228. general purpose chapter impose upon 25A is to people

all the burden, expense of this state the and costs which injuries arise from damage property persons by tortious the officers, agents employees government. of our state This promoting general a valid means of welfare of the state. public This purpose. States, See Dalehite United 956, 965; U. S. 73 S. Ct. Green v. of Mount 1201-1203, 131 Pleasant, 1184, 5; Tepesch N.W.2d Johnson, 37, 40, 740; Jur.2d, 296 N.W. and 16 Am. 230 Iowa 311, Law, page 607. Constitutional distinguishing Here factor case now is the real between the Moines, 90, of Des 210 Iowa before us Love v. N.W. 373. Assembly can no ultimate

We conclude the General saw by continuing advantage to the state to cast some unfortu- damage nate individuals the full burden of done tortious officers,agents employees. conduct Assembly Sixty-first In fact we must assume the General general recognized problem posed here as one of concern a elected to effect solution. nothing these this court can do other

Under circumstances constitutionality a give than due deference to the rule especially legislative strong where the statute involved promote public purpose. Hannah, 230 was enacted to Cook 252, 249, 297 N.W. 262. VII. In this vein law not create same does actually gives a new It to and a recognition cause of action. rem edy already wrong existing for a cause of action reason of previously done but for which redress could had because be immunity. governmental common-law doctrine of In we Letts, 648, 650, 561, Wittmer v. 248 Iowa said: “Under the Sovereign, generally ancient common law the * * speaking, could not be sued *. Thus immune from the State is liability.” from suit rather than 135,

And States, as was stated in Feres United 340 U. S. 157, S. Ct. 95 L. Ed. involving case Federal Tort Claims “It Act: will seen that this is not the be acceptance liability creation new causes of action but under bring private liability circumstances that would into existence.” 25A.4, In foregoing connection with the see also section Code, 1966; Boyer High Assn., v. Iowa School Athletic 337, 345, 127 N.W.2d Hargrave Montandon v. Construction 1299, 1300 Co., 130 N.W.2d McGee v. Inter Co., national Life Insurance U. S. 78 S. Ct. States, 2 L. v. United 346 U. S. Ed.2d Dalehite 43, 44, 73 S. Ct. “appropriation”

VIII. We turn now the matter of made, payment adjudicated. determined, claims allowed and payment 25A.11 provides of the Act Section appropriations made, any, award or if judgment out of otherwise paid any money treasury out the state not otherwise appropriated. subject legislative

Plaintiff we should find enact- ment appropri- unconstitutional because' no amount is definite specified ated out fund. some might

This the contention have merit if to some directed of those require speci- consideration state which a constitutions fication of amount and funds.

But our requires expenditure constitution there be no except upon legislative state funds a appropriation. provisions simply require The constitutional concerned here appropriation by legislature, necessarily appropria- not tion a out of sum certain some “earmarked” fund. Article See III, 24 and sections Constitution of Iowa. McCarthy,

In v. court Prime N.W. appropriations by considered matter of made law. There statute provide things authorized the executive council to all necessary state promptly effectively to enable officers to and ful- including repairs fill the their offices, duties of neces- such sary expenditures for, lawful provided are otherwise certify to audit and certain created the exercise power. such The treasurer also authorized make was payment. question before this court was whether such appropriation a valid held a statute constituted court authority valid appropriation legislature, given at from legal proper time, form, officer, apply money to the sums of treasury year, out of in a given that specified objects against holding In demands the slate. so at-page Reports: court said 578 of the Iowa “It to us seems reasonably that if it clear was not intended expense * ® * purposes necessary incurred for the several and lawful expenses provided were for, paid not otherwise to be under assembly surely would have section, general authority of that appropriation therefor.” specific made appropriation amount of the

In the case now before us the terms limited of the predetermined but is cannot be to claimants under the judgments awards and the amount of to that con- Act which is a limitation similar provisions of the supra. McCarthy, sidered in Prime v. Lusk, Ala. foregoing of the see also Norton support

In Lee, 157 Fla. State ex rel. Caldwell 26 So.2d S., States, 164(b), page 773, 27 C. J. So.2d Funds, Jur., page 42 Am. Public any, subject, resolved favor Doubts, if on this must be Falls, 221 constitutionality Act. of Cedar Carroll 277, 290, 261 N.W. 652. I, says the Act violates sec IX. Plaintiff also 5 and Iowa, together with Amendment tion Constitution of We the United States. Constitution of Amendment agree. cannot standing upon plaintiff’s to invoke these passing

Without proceed to consider the issues we shall provisions, constitutional presented. here Constitution, requires that all laws I, which, grant privileges shall not operation and a uniform

have to all. terms, belong equally not do same 1, Amendment to applicable section extent here To the substantially pro- same Constitution, provides States United tection. Porter, in we said Dickinson circumstances

Under similar general, “In if a law 400, N.W.2d 66: does it is to the other.” constitution inoffensive against one offend subject appropriation is a already concluded the Having chapter whether question to be resolved is purpose, public within same and with upon all class equally operates 25A uniformity. discretion legislature has a wide well settled the

It is apply. Acts shall which its to determining the classification eit. 401. Porter, supra, loe. Dickinson reasonably

And it presumed Assembly acted General classifying right those to be accorded of redress under the dealing. with which we are here Iowa Motor Vehicle Assn. v. Commrs., of Railroad Board N.W. A. L. 1.R. previously immunity political

As disclosed the tort sub- present point divisions is not here involved. focal So the our inquiry remedy by damaged injured is the matter to those or officers, agents emploj'ees conduct of the tortious of the state by Act. defined again plaintiff appears single to the coverage Here out by wrongs prior claims for the state which have occurred chapter 25A the effective date of the Code. previously resolved, wronged

As those so earlier than Feb- ruary 1963, had a of action cause but barred from were against the governmental recourse virtue of the immu- nity doctrine. dealing surely law with which are general

The we here scope operation throughout uniform the state. It accords injured by damaged officer, to all the tort of an agent or em- January ployee subsequent of the state 1, 1963, prescribed judicial quasi-judicial method means secure grievances, denying right per- determination of their no designated general within that field son or classification. See Mississippi Co., McAunich Missouri Railroad 343, 344. legislature simply decided those arising after the

designated recognition date would accorded under the Act. This is reasonable classification. v. Rolvaag, Halverson 239, 242; S., Minn. 16A C. J. Constitutional Law, 560, page 510; Jur.2d, and 16 Am. Constitutional Law, 512, page any showing

In the absence of discrimination we can lawmaking reasonable, proper our bodies had assume and suffi- doing. cient reason so deprived is

Plaintiff not his property of without due by process payment part of law the enforced any on his of por the tax applied tion fund which be of payment of County, v. Marshall Act. McLeland under the 1243, 1244, 401, 405. 201 N.W. it respect pointed

In this was out Stewart v. Board Rep. 238, process Am. due of Supervisors, law of ordinary judicial proceedings having no reference to the means And, previously disclosed, has of state. been taxing power challenged by plaintiff constitutionally has here a suffi the Act purpose. apparent From this alone it becomes public cient not subject Act does violate Amendment Constitution of the States. United chapter applies persons 25A

We are satisfied to all in a like unconstitutionally deprive not plaintiff and does situation his of process law. In fact due is no property legally without there adjudge the reason to Act good sufficient violative of Article or Iowa, or Amendment or I, 6, Constitution of section 14, Constitution the United States. 1, Amendment 25A chapter VII, X. contravene Does provision ? That constitutional 1, of the Constitution states not, in any manner, credit of State shall “The as follows: any of, to, individual, association, aid given or loaned or assume, shall never and the State re corporation; become for, individual, or liabilities the debts sponsible associ corporation, unless incurred in time of ation, war for the of the benefit State.” point this claiming first assails the on

Plaintiff tort, employee employee the state commits an where secondary, liable, obligation the state’s and as result primarily liability employee an is unconstitu- any assumption tional. the matter at this time called to determine

areWe employee damages paid liability over to employee. tort re- of the But because party third States, Code, 1966; Gilman v. 25A.10, United gard see Ct. 98 L. Ed. 347 U. S. S. affirmed 206 F.2d Cizauskas, Conn. 5 A.2d Stulginski the Act serves to make presented whether question liabilities of for the debts or others. responsible the state 866 Code, 25A.4, provides part:

Section in “The state shall be in respect claimants, liable such claims to to the same in the same manner, to private the same a and extent as individual like under * * circumstances,

It thus becomes apparent chapter under 25A the rule respondeat superior applicable liability becomes with restricted an officer, agent employee to the tort of or acting scope employment. within the officeor his See section 25A.2 (5) McMillin, of the Act and v. Montanick 225 Iowa 280 N.W. 608. imputes

The common law master act the the serv- ant, wrongful if negligent and or act of the servant proximate damage injury cause of to a person, neg- third wrongful ligent or conduct of the servant is that of the master may be Zip for which he liable. Motors, Inc., Turner v. 1091, 1097, 65 N.W.2d 45 A. L. R.2d S., 57 C. J. Servant, and 555, page 266, Master sections 561, page 272; Jur., Servant, 35 Am. Master page sections 959, and 543, page Maryland 973. See also State of States, United Supp. 740, F. 743. at common law, primary

Furthermore liability for the normally wrongful agent act rests employee. Co., Illinois R. 624, 628, Hobbs v. Gent. N.W. say, L. R. A. 1917E This is to eases restricted to master servant, law, under common the master is liable for tort agent operation of his of law. However, the foregoing com- primary principle secondary liability mon-law does not presented. issue serve to resolve the here Iowa is that at The rule common law the master and servant may and both be each liable servant’s tort committed employment, with the course of ordinarily master having against right agent in of recourse event the former be held negligence of the latter. liable for Montanick v. McMillin, 225 442, 452-459, 280 N.W. 608; Iowa Hobbs Co., Illinois Cent. R. Co., Dunshee v. Standard Oil supra; Iowa 630, Restatement, Agency, 2d, N.W. section 217B. that in net result is liability state the of the master footing on the same as does the of the law by operation stands agent. liability of the rule, while lia apparent that under the us

So it primary and second and servant bility as master between injured party right third them, damaged ary as to effect, is, primary employer direct hold the liable sue and Abramson, right. Anderson 608; 280 N.W. McMillin, 225 Iowa v.

315; Montanick 830; Co., 625, 630, 146 N.W. Oil Dunshee v. Standard Huff, App. 412, 194 N.E. Co. v. 48 Ohio Ins. Metropolitan Life S., Supp. 923, 925; 57 C. Kinney, 113 F. J. 429, 431; Jones v. Jur., Am. 570(c), 299; and 35 page Servant, section Master Servant, 532, page 959. section Master juris- necessarily that in this mean however not does This acting in the injured by agent, tort of party diction if from the master there may recover of employment, course Flogel Flogel, v. 257 agent. of the See liability part on the no Co., & 198 Sons Maine Maine N.W.2d Iowa 133 A. L. R. N.W. Blunt v. 1281, 201 2d, Restatement, 326, 329; Agency Brown, Supp. 225 F. August Wagon Co., Schubert But see Schubert 217. annotations, L. 42, 43, 64 A. R. 164 N.E. Y. 249 N. 632. L. 43 A. R.2d for the acts his a master is liable it mean

Neither does authority. scope beyond the Con- acting agent Grismore Co., 232 Iowa N.W.2d Products solidated Restatement, Agency 2d, section to or Act does not cause the state assume

We conclude any individual, as- for the debts or liabilities responsible be VII, does not violate Article corporation, and or sociation constitution. of our dealing alleges we are here with Plaintiff also XI. VII, through sections which contravenes legislative Act in Constitution, argument to this court con but 5, 5 of Article treat 2 and VII. We shall to sections himself fines (4) (Third), 344(a) R. C. P. accordingly. Rule the matter provides part cited above as fol pertinent supply to may contract debts casual deficits or “The State lows : revenues, expenses failures to meet not provided otherwise *# (Emphasis for; supplied.) portions Then the material cited section states: “Except specified herein article, debts before no debt by, contracted State, shall be hereafter or on behalf of this unless such debt authorized single shall be some law some work * * object, distinctly specified therein; (Emphasis supplied.)

By plaintiff argues lifting out context these constitutional provisions applicable the instant are case because reference revenues, deficits failures in all casual or to expenses meet provided for with fixed not otherwise limitations. These last quoted portions our constitution applicable are not legis- appropriations payment of against lative tort claims by plaintiff In event the state. stand here taken is without merit. provisions

These two constitutional apply only refer and judgments debts contracted the state. But or awards entered claims are debts upon tort contracted as the term is here employed. itself, of the

By the terms Act claims based on contract are clearly 25A.2, excluded. Sections 25A.3 and 25A.14. constitutional

Furthermore limitations contractual general apply obligations not a rule debts do sounding in judgment a tort. Stated otherwise entered in a tort action is not way a contracted in constitutional By debt sense. analogy Campbell, Ferry v. held in Iowa 290, 300, we so 81 N.W. City 92; Thomas 50 R. v. of Burlington, L. A. 69 Iowa 140, 142, 480; v. of Moines, 28 N.W. Rice Des 40 Iowa 638, 646; and Moines, City of v. Des Bartle 416. See also Act, Am. Jur., 25A.6 of Municipal Corpora- 454, page tions, section 456, page Pursuing matter one more step, there cannot abe debt a creditor, unless there is or a debtor and while in a certain sense by officer, the tort an agent a offended person or employee of by judgment might a become creditor we. state, to come within such find do not constitutional classification of person an obtaining debt. award or judgment a contracted voluntary is rather but injury not damage sustained is just as a creditor He becomes involuntary creditor at best. by not choice. The debtor, by compulsion, the state becomes relationship missing. are contractual elements essential City of Burlington, supra. Thomas v. See ex rel. plaintiff refers to State support In his stand 923, 223 N.W. Council, v. Executive Fletcher McCullough 249 N.W. Herring, 216 Iowa Hubbell v. 134, 43 19 S. Ct. Virginia, 172 U. S. Commonwealth We State, 8 N.W. 393. Wis. L. Ed. and Sloan v. factually find them either examined these authorities have legally inapplicable. and Hubbell Council In v. Executive State ex rel. Fletcher dealing a contractual supra, court was with Herring, both supra, an action State, involved Sloan bond indebtedness. at- by an legal rendered quantum meruit services based on And by governor. the case of torney employed who had been Virginia, supra, involved McCullough v. Commonwealth of payment of taxes. coupons of certain tendered genuineness tort in the judgment stands of these even infers None eases of a contract debt. shoes claim that the failed to establish his General

Plaintiff has debt within chapter 25A, enactment contracted a Assembly, employed by VII of our meaning of that term as Article State Constitution. legislature did a constitution-

We now hold the not.contract ally enactment Act. prohibited debt debts re- reasoning to the same conclusion XII. The same leads VII, claim the contravenes garding plaintiff’s to above. referred the Act does create a debt of We are also satisfied binding- upon any subsequent which can said to be the state assembly. legislative any purport require legislature

Chapter 25A does levy payment any obligation. or fixed In tax for contractual than nothing provide judg- more that awards made or it does fact standing in paid tort shall be granted ments out of any any, money if or out of in appropriated, funds the state treasury not appropriated. otherwise 25A.11, See section and Rowley Clarke, 144 N.W. 908.

Briefly stated judgments tort awards or being by come into reason of inwill, effect, the Act become noth- ing ordinary more nor than expenses less current of the state. regard

Further in this call we attention to the rule that, ordinarily, in matters of government, public policy, in the exercise police power, legislative body one cannot legislation its bind the hands legislature future respecting Dist., Independent same matter. See Talbott Sch. 234; Ferry 299 N.W. 137 A. L. R. Campbell, N.W.2d 50 L .R. A. annotations, L. R. 1489. A.

We find no merit plaintiff’s in claim that the Act violates VII, of the Constitution of Iowa. judgment and decree of trial court was correct.— Affirmed. J., C.

Garfield, Moore, Stuart, Mason Becker, JJ., concur. JJ., and Larson, dissent.

Snell J., not sitting. Thornton, J. I reluctantly dissent from the

Snell, up- conclusion holding entirety. in this Act its There is no severability provi- sion the Act might good that permit save the rejection of that I parts go think too far.

My from reluctance stems fact that agree I with most of appreciate what is desirability said also of a State Tort fully Claims Act. I am aware of the rule that doubts should be constitutionality favor of resolved but the case us before responsibility there is such waiver of fiscal by the I think contravenes the constitution. A legis- new meet in a two lature will little over months and an Act from free objectionable easily could correct features situation. years a Although part nearly it has been of our law for immunity governmental the doctrine of not of constitutional legislative origin judicial in-our origin. state. It is I do question right not legislature the of the to it in abolish whole part. any, little, justification The doctrine has if in modern has, however, law. It acquiescence legislature with the of our public policy long been the of our for so that overruling its operate prospectively retroactively. not should It should not improper accompanied by delegation be of legis- abdication responsibility. lative upon Act us on publication

The before became effective operates retroactively March January but to years. This dates the Act back more than two Sixty-first When this Act became the effective As- General sembly was in the a session. Until then recourse available to legislature. Chapters claimant was an 60 and Laws Sixty-first of the Assembly, being General were show claims considered, appropriations allowed made therefor. Article “* * * III, says: any of our nor, constitution shall money paid any claim, on matter shall of which * * provided by not have been pre-existing laws paid

Claims pursuant chapters 60 and supra, to were paid pursuant pre-existing to legislature consideration specifically law providing They therefor. accord- were ingly paid pursuant to a pre-existing law. legislature

Under the Act now before us the to a delegates nonlegislative body, i.e., Appeal only Board, State not legislative judicial delegation authority but a function. This applies arising retrospec- to claims in the future but tively arising January 1, to claims my opinion, after 1963. In existing the Act passed when were within the was exclu- jurisdiction delegation sive of author- ity pass beyond to and pay thereon was the limits of the consti- tution. subject matter of a claim includes factual and both

legal questions particular delegation involved claim. The Appeal authority the State Board of pass paid pre-existing provision payment claims is not order delegation of au-

pursuant pre-existing It is rather law. thinks the thority Appeal Board pay according to what the legislature. beyond power law That should be. discussing in majority opinion In IY Division the retrospective application of says: “This does not constitute a existing wrongs recognition the It is but law. the compensable provided.” redress is agree.

I do not chapters and 61 as are Approval appear claims such compensable recognitions wrongs redress is existing for which nonlegislative provided, delegates but the Act under attack to a wrong and power existing pro- to board the- determine what is by is Only appellate supervision pro- vide for the courts redress. Appeal is vided over the affirmative acts the Board there to the by legislature, except no the as limitation whatsoever treasury. unappropriated amount funds in the state finding delegated That fact can is not administration be niay That made to such mat- challenged. appropriations be cover appropriation the recognized, ters within the limits of custom- ary necessary. chapters appropria- A at 1 to glance Sixty-first Assembly, except tion Acts General shows specific appropriated specific where are items the amounts appropriations are for maximum amounts “or so much thereof necessary.” may money drawn from the Thus the treas- be By ury consequence appropriations stating made “in law.” spent control and the amounts that be retains appropriation on placed A limit is even limits. establishes chapter fund. general contingency to the See Surely appro- no one advocate or defend an unlimited would agencies govern- priation departments various of our might find proper. ment of whatever amount the members I, course, expect Appeal do not Board under Act bankrupt spend surplus treasury all the so-called state, spent I find no limit in the statute as to what can be but power delegation I of such under this Act. think the unlimited nonlegislative body the constitution. contravenes judged by happen what we think will but rather is not to be happen. what can it too far. I think progress goes

In name this Aet respectability It even have disapproved. does'not should retroactively it prospectively and both legalizing of a act because beyond limits. goes proper good purpose that the of this law is

I do think the fact justifies part approval within limits our proper for the most entirety. its joins in J., this dissent. Larson, Hampton appellee, Morris Guldberg, Heating,

Donald d/b/a ux., appellants. Greenfield et No.

Case Details

Case Name: Graham v. Worthington

Court Name: Supreme Court of Iowa

Date Published: Nov 15, 1966

Citation: 146 N.W.2d 626

Docket Number: 52330

Court Abbreviation: Iowa