Wheat v. FinneyWheat v. Finney
- Reporters:
- , ,
- Before:
- Fromme
The opinion of the court was delivered by
Fromme, J.:
This action arises in the aftermath of
State ex rel. Stephan v. Thiessen,
228 Kan. 136, 612 P.2d 172 (1980), in which the law imposing assessments mandated by
Recovery is sought on two theories: (1) wrongful conversion by the State Treasurer, and (2) implied contract to prevent unjust enrichment and injustice. Plaintiff in his brief states that the State collected over $1,763,000.00 in assessments during this two year period and should be required to account for the same. The legislature has appropriated most of the amounts collected for the purposes provided for in the Act.
The defendant, State Treasurer, filed a motion to dismiss the action on the ground that the State Treasurer was not a proper party, and on the further ground the plaintiff failed to state a claim on which relief can be granted. The district judge dismissed the plaintiff’s petition for failure to state a claim on which relief can be granted. He did not consider the question of whether the State Treasurer was a proper party to the action.
Plaintiff urges two theories of recovery. First, we will consider plaintiff’s theory of wrongful conversion, a tort claim. Kansas has a long history of sovereign immunity from suit. The doctrine of absolute sovereign immunity which was first recognized and adopted in this State in
Eikenberry v. Township of Bazaar,
22 Kan. 556 (1879), has been gradually whittled away. In
Carroll v. Kittle,
203 Kan. 841, 457 P.2d 21 (1969), all governmental agencies were determined to be liable for negligence in carrying out proprietary functions. The court in
Carroll
noted that it had been suggested to the legislature that the extent to which sovereign immunity should be limited was within the province of the legislature. The legislature responded within a year by passing a
In 1970,
“(a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:
“(1) The state of Kansas; and
“(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and
“(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.
“(b) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.”
This statute remained in effect until July 1, 1979, when it was repealed. L. 1979, ch. 186, § 33. In its stead was passed the Kansas Tort Claims Act,
As to plaintiff’s claim based on the theory of wrongful conversion, from July 1, 1978, until June 30, 1979,
The constitutionality of
On July 1, 1979, when
“A governmental entity or an employee acting within the scope of his or her employment shall not be liable for damages resulting from:
“(c) enforcement of or failure to enforce a law, whether valid or invalid, including, but not limited to, any statute, regulation, ordinance or resolution;
“(e) the assessment or collection of taxes or special assessments.”
So any tort claim for wrongful conversion against the State, its officers and agencies was barred for the entire period.
We turn next to plaintiff’s second theory, a claim based on implied contract to prevent unjust enrichment and injustice. Restitution and unjust enrichment are modern designations for the older doctrine of quasi-contracts. The substance of an action for unjust enrichment lies in a promise implied in law that one will restore to the person entitled thereto that which in equity and good conscience belongs to him. Minnesota Avenue, Inc. v. Automatic Packagers, Inc., 211 Kan. 461, 464, 465, 507 P.2d 268 (1973); United States Fidelity & Guaranty Co. v. Marshall, 4 Kan. App. 2d 9, 10, 601 P.2d 1169 (1979).
As previously pointed out the provisions of
As to the period from July 1, 1979, to the date these assessments were discontinued our attention is called to the provisions of
“No money or funds shall be disbursed from the state treasury or any special fund of the state of Kansas in part or full satisfaction or payment of any claim or judgment based in whole or in part on an implied contract, unless the payment of such claim or judgment has been specifically authorized by act of the legislature.”
This statute became effective July 1, 1979, and was part of a package of laws which became effective on the repeal of
Supplementing this provision, the legislature has provided for a special claims committee and
“All claims proposed to be paid from the state treasury or any special fund of the state of Kansas, which cannot be lawfully paid by the state or any agency thereof except by an appropriation of the legislature shall be submitted to the joint committee on special claims against the state before final action thereon is taken by either house of the legislature.”
The statutes,
It is a general rule that an action against a state or a state officer may not be maintained unless all prescribed conditions precedent have been fully performed. American Mut. Liability Ins. Co. v. State Highway Comm., 146 Kan. 239, 243, 69 P.2d 1091 (1937). The theory on which this rule is based was stated in the above case as follows:
“It is a fundamental principle, well settled in the law of this state and generally elsewhere, that the state is regarded as a sovereign governmental body and as such cannot be sued in its own courts by individuals or private corporations, except to the extent it has given its consent thereto. In this state such consent must be given by an act of the legislature. It is also well settled that since the right of action by an individual or private corporation against the state may be granted or withheld at the pleasure of the state, acting through its legislature, such permission may be granted with respect to certain causes of action only, and with respect to certain claimants only, and also may provide conditions precedent to the bringing of such an action and the limitation of time in which they must be brought.” 146 Kan. at 243.
One final matter should be mentioned. The parties in their briefs have focused on the case of Panhandle Eastern Pipe Line Co. v. Fadely, 189 Kan. 283, 369 P.2d 356 (1962). The defendant contends it controls the present action; the plaintiff attempts to distinguish the case. It was on the basis of the holding in this case the trial court dismissed the plaintiff’s petition. We do not consider the case controlling. It was a mandamus action seeking an order to direct the State Treasurer and Director of Revenue to refund some $36,000.00 to two taxpayers.
The State had collected this amount in illegal severance taxes on oil and gas. The act by which the collections were made had been declared unconstitutional. Considering Article 2, § 24 of the Constitution of the State of Kansas as it then appeared, this court in Panhandle held the constitutional provision to be an insurmountable problem. In 1962 that section of the Constitution provided:
“No money shall be, drawn from the treasury, except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer term than two years.”
The moneys collected had been paid into the general fund of the State. The court in Panhandle held:
“[W]e are compelled to conclude that plaintiff, by an action in mandamus (G.S. 1949, 60-1702, et seq.), cannot recover back the taxes it paid under protest notwithstanding the fact the law under which such taxes were paid was declared unconstitutional.” 189 Kan. at 287.
Mandamus is a proceeding to compel some person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.
Because of our decision, we, like the trial court, do not consider the question of whether the defendant was the proper party to this action. The judgment of the district court dismissing the plaintiff’s petition for failure to state a claim upon which relief can be granted is affirmed.