247 P. 332 | Mont. | 1926
The claim of Rietz was passed upon by the legislature before it was presented to, considered by, or acted upon by the board of examiners. This is expressly prohibited by section 20, Article VII, of the Montana Constitution relating to the powers of the board of examiners, which provides in part: "And no claim against the state, except for salaries and compensation of officers fixed by law, shall be passed upon by the legislative assembly without first having been considered and acted upon by said board." For this reason alone, the statute is of doubtful validity. (Davis
v. State,
The bill attempts to make an appropriation and, after reciting how the injuries were sustained, also provides: "If the said board of examiners finds that such injuries were so sustained, damages therefor shall constitute a legal and valid claim against the State of Montana." This would seem to bring the statute in conflict with sections 23 and 33 of Article V of the Constitution.
If the facts as found by the legislature giving rise to the injuries of Rietz are correct, then, at most, the claim is a moral obligation of the state. But appropriations may not be made from the general fund of the state to pay moral obligations. This because of section 11, Article XII, of the Constitution, which provides in part: "Taxes shall be levied and collected by general laws and for public purposes only." *433
An appropriation to pay a moral obligation is nothing but a gift, and the legislature is prohibited from making gifts by section 1 of Article XIII of our Constitution. (State ex rel. Mills v.Dixon,
Generally speaking, a state is not liable for the torts of its officers or agents; unless assumed by the legislature. But recourse may be had against such officers or agents. (25 R.C.L., p. 407.)
The legislative appropriation for the Rietz claim does not partake of the nature of a gift or donation, but is what may be termed a moral obligation of the state. (State v. Carter,
The objection that the legislative assembly is attempting to usurp the functions of the judiciary, in attempting to decide that the claim is in effect a legal one, and that the hearing, determination and auditing of the claim by the board involves questions which must be decided by the courts, it would seem, is fully met by the well-considered opinion in the recent case ofState v. Kelly,
It would also seem that the objection that the bill is in conflict with sections 23 and 33, of Article V, of the Constitution, is likewise without merit, for, clearly, the bill embraces but one subject, and that subject is clearly expressed in the title of the Act. George A. Rietz, a resident of Lewis and Clark county, was injured while a student at the state university at Missoula. He contends that on the day he registered (September 25, 1923), he was assigned a room on the second floor of the "South Hall" dormitory building; that he was not familiar with the surroundings; that on the same floor and near his room were two doors about two feet apart, one of which led into the bathroom and the other into the elevator shaft; that neither door was locked, and neither one was marked or labeled, and there was not anything to indicate which door led into the bath-room or which one led into the elevator shaft; that the hall was dimly lighted, and when he undertook to go to the bath-room, through mistake he opened the door leading into the elevator shaft, and, the shaft being unguarded and the elevator above that floor at the time, he fell down the shaft to the bottom of the pit and sustained serious, permanent injuries, on account of which he incurred large expenses, only a part of which has been repaid to him; a part of such expenses was paid by the university.
These matters having been brought to the attention of the members of the Nineteenth Legislative Assembly, an Act was passed and approved (House Bill 398, Laws of 1925, p. 416), which in a preamble sets forth the substance of Rietz' contention. The Act then provides that if Rietz presents a claim to the state board of examiners within three months after the approval of the Act, the board shall hear and determine the claim, and if it shall find that the injuries were sustained as contended by Rietz, damages therefor in such amount, not exceeding $7,500, as the board shall determine to be just and equitable, "shall constitute a legal and valid claim against the state of Montana." The Act then makes an appropriation of $7,500, or so much thereof *435 as may be necessary to pay the claim, if it is allowed by the board.
Rietz made due presentation of his claim, and the board appointed a time for hearing; but before final action was had this suit was instituted by a resident taxpayer to secure an injunction restraining the board from proceeding further with the matter. From an order granting the injunction the board appealed.
The complaint in the action proceeds upon the theory that House Bill 398 is unconstitutional, and in consequence thereof any action taken by the board must be void. This theory was adopted by the trial court, and the correctness of it is the sole question presented by the appeal.
1. It is contended that the Act contains more than one subject, in violation of the provisions of section 23, Article V of the state Constitution, and whether it does or does not depends upon the proper analysis of the Act itself.
It is elementary that every statute is to be construed with[1] reference to the object which it is intended to accomplish (Lewis v. Northern P. Ry. Co.,
If the contention advanced by Rietz is well founded in fact,[2] his injuries resulted proximately from the negligence of the person responsible for the care and management of the dormitory building, and against such person he has a valid, legal claim which he might enforce in an appropriate *436
action at law. The dormitory building is the property of the state, and the state is charged with its management and control, and, while it does not have any moral right to commit a tortious act, it has the same capacity to do so as any other corporation. (1 Cooley on Torts, p. 208; Bishop on Noncontract Law, sec. 749.) The maxim of the English law, "The King can do no wrong," does not find a place in the jurisprudence of this country. (Langford v. United States,
With these principles in mind, a consideration of the recitals[3] of the preamble, with the body of the Act, discloses with reasonable certainty that it was the intention of the legislature to assume, on behalf of the state, liability for the negligence, if any, of the agent through whose act Rietz was injured, and to make an appropration to discharge that liability. The Act deals with but one subject — assumption by the state of liability for the negligence, if any, of its agent. The appropriation is merely incidental to the principal purpose of the Act, or the means by which that purpose is to be carried into effect. The Act is not open to the objection that it contains a plurality of subjects. (Evers v. Hudson,
2. It is next contended that the Act infringes upon the[4] provisions of section 29, Article V, which section declares: "No bill shall be passed giving any extra compensation to any public officer, servant or employee, agent or contractor, after services shall have been rendered or contract made, nor providing for the payment of any claim made against the state without previous authority of law, except as may be otherwise provided herein."
The meaning of the first portion of the section is perfectly clear: It is beyond the power of the legislature to award extra compensation for the services of any officer, agent, servant or employee of the state after the services have been performed (Lloyd v. Silver Bow County,
3. It is contended, further, that in enacting House Bill 398[5] the legislature transgressed the provisions of section 20, Article VII, which declares: "The Governor, Secretary of State and Attorney General shall constitute * * * a board of examiners, * * * and no claim against the state, except for salaries and compensation of officers fixed by law, shall be passed upon by the Legislative Assembly *438 without first having been considered and acted upon by said board."
It is sufficient answer to this contention to say that the legislature did not assume to pass upon the Rietz claim, but by the very terms of the Act the entire matter was referred to the board of examiners, the body created by the Constitution, to hear and determine all claims against the state.
4. Finally it is urged that the Act contravenes the provisions[6, 7] of section 11, Article XII, and section 1, Article XIII, which declare:
Section 11, Article XII: "Taxes shall be levied and collected by general laws and for public purposes only." And section 1, Article XIII: "Neither the state, nor any county, city, town, municipality, nor other subdivision of the state shall ever give or loan its credit in aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association or corporation, or become a subscriber to, or a shareholder in, any company or corporation, or a joint owner with any person, company or corporation, except as to such ownership as may accrue to the state by operation or provision of law."
The power to appropriate public funds and the power to levy and collect taxes are identical. (Panchot v. Leet,
But it is insisted that in State ex rel. Mills v. Dixon,
The term "donation" employed in our Constitution is synonymous with the term "gift" found in the Constitution of California, and in State ex rel. Mills v. Dixon this court did not go farther than did the supreme court of California, in Conlin v. Board,
But what is a legal claim? Certainly the expression was not[8] employed by this court or the California court to designate a claim enforceable against the state by the ordinary process of law, for, speaking generally, there are not any such claims. It is elementary that a state cannot be sued without its consent or be compelled against its will to discharge any obligation. (Langford v. King,
The question then arises: Was it within the power of the[9] legislature to give recognition to the Rietz claim by assuming a limited liability for the negligence, if any, of the state's agent?
Our legislative assembly acts in virtue of inherent authority and not through authority delegated to it (State ex rel. SamToi v. French,
Reitz has a valid claim against the agent through whose negligence he was injured, and if, in advance of the injury, the state had, by general law, assumed liability for the negligence of its agents in charge of the university buildings, there would not be any dissent in the authorities from the conclusion that an appropriation to discharge such liability would be for a public purpose. But in California it has been held that a state may not assume and discharge a liability for the negligent act of its agent after the resulting injury has occurred, and this upon the theory that, under such circumstances, the appropriation made to discharge the liability constitutes a gift. (Bourn v. Hart,
We are unable to appreciate the distinction drawn by the California court between a claim of this character founded upon a statute enacted prior to the time the injury occurred and a claim predicated upon a statute enacted after the injury. In 26 R.C.L. 64, it is said: "The power of the legislature to extend the liability of the state or of municipal corporations to pay for injuries caused to private individuals is not limited to the establishment of a general rule for the future."
We do not discover any provision of our Constitution which forbids the legislature to assume liability for injury resulting from the negligence of the state's agent, whether the liability is assumed before or after the injury occurs, and to say that the state may assume such liability but may not discharge it is simply to make the law ridiculous. (United States v. RealtyCo.,
By assuming a limited liability for the negligence, if any, of[10] the state's agent through whose act Reitz was injured, the legislature has declared that the appropriation to meet such liability is for a public purpose. While that determination is not conclusive upon us, it is entitled to the most respectful consideration.
It is frequently difficult in practice to determine whether the particular purpose for which an appropriation is made is *442
public or private. Primarily the determination of the question belongs to the legislature, and the court will indulge every reasonable presumption in favor of a legislative decision. (Lewis and Clark County v. Industrial Accident Board,
In Brodhead v. Milwaukee,
In Sharpless v. Mayor,
Referring to these cases, Cooley, in his work on Taxation says: "These are very strong and sweeping assertions but they are supported by many others equally emphatic and comprehensive which are to be met with in the adjudications of courts." (1 Cooley on Taxation, sec. 189.)
While these cases have to do with statutes imposing taxes, the doctrine announced by them is equally applicable here, for, *443 as observed above, it is axiomatic that the power to tax and the power to appropriate public funds are identical.
In determining whether a purpose for which an appropriation is[11] made is public, courts must be governed largely by the course and usage of government, the objects for which appropriations have been made through an extended course of legislative action, and what objects and purposes have been considered necessary to the support and for the proper use of government. Whatever lawfully pertains to them and is sanctioned by time and the acquiescence of the people will be held to belong to the public use. (Loan Association v. Topeka, 20 Wall. (U.S.) 655,
We do not think it too far-fetched to say that a disposition manifested by the state to compensate a student who, while attending the University, is seriously injured through the negligence of the state's agent, contributes directly to encourage attendance at such institution. In any event, this court is committed to the doctrine that when a statute is assailed as unconstitutional the question presented is not[13] whether it is possible to condemn it, but whether it is possible to uphold it; *444
and it will not be declared invalid unless its conflict with the Constitution, in the judgment of the court, is placed beyond a reasonable doubt. (State ex rel. Fenner v. Keating,
We are not satisfied that in enacting House Bill 398 the legislature transgressed any provision of the state Constitution to which our attention has been called, and it follows that the[14] statute should be upheld. Since it was altogether optional with the state whether it would assume any liability, it could limit the liability which it was willing to assume, and could prescribe such terms as it saw fit to impose, including the designation of the board of examiners as the tribunal before[15] which it would answer. Whether the policy of the legislation is wise or otherwise is a matter for legislative decision and one not open to consideration by the courts. (Wheeler Motter Merc. Co. v. Moon,
It is our conclusion that the appropriation to pay the Rietz claim, if established, does not constitute a donation (Fairfield v. Huntington,
The order is reversed and the cause is remanded to the district court, with direction to dismiss the complaint.
Reversed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, STARK and MATTHEWS concur. *445