Bailey v. School Dist. No. 49, King County

• Citation: 185 P. 810,108 Wash. 612
• Decision Date: 01 December 1919
• Docket Number: 15590.
• Court: Washington Supreme Court
• Parties: BAILEY v. SCHOOL DIST. NO. 49, KING COUNTY.

185 P. 810

108 Wash. 612

BAILEY v. SCHOOL DIST. NO. 49, KING COUNTY.

No. 15590.

Supreme Court of Washington

December 1, 1919

Department 1.

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Action by Robert Bailey, by his guardian ad litem, Arthur E. Bailey against School District No. 49, King County, State of Washington. From judgment for defendant on demurrer to the complaint, plaintiff appeals. Judgment affirmed.

Morris & Shipley and Thomas J. Casey, all of Seattle, for appellant.

Fred C Brown and Chas. Ethelbert Claypool, both of Seattle, for respondent.

MACKINTOSH J.

The appellant's ward was injured in December, 1916, while using certain playground apparatus belonging to the respondent. This action was commenced on May 3, 1917. The act of 1917 (chapter 92, Laws of 1917) went into effect on June 6, 1917, and provides that----

'No action shall be brought or maintained against any school district or its officers for any noncontractual acts or omission of such district, its agents officers or employés, relating to any park, playground, or field house, athletic apparatus or appliance, or manual training equipment, whether situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district.'

And upon the strength of this act the superior court sustained a demurrer to the appellant's complaint. Appellant states the question:

'Does the legislative act of 1917 apply to a cause of action which had fully accrued prior to the passage of the act, an action upon the same being pending in the superior court at the time the act went into effect?'

--and insists that a negative answer is demanded, for the reason that a retroactive effect should not be given to the act and, if so given, the act is unconstitutional as taking property without due process of law.

The argument of appellant is in the main answered by our holdings in the cases of Bruenn v. North Yakima School Dist. No. 7, 101 Wash. 374, 172 P. 569; Foley v. Pierce County School Dist. No. 10, 102 Wash. 50, 172 P. 819; and Holt v. School District No. 71, 102 Wash. 442, 173 P. 335. And that answer is that the appellant cannot 'maintain' his action. The answer to the alleged unconstitutionality of the act would seem to lie in the fact that the right to maintain a tort action against a municipality is not a vested right in property. The right to sue the school district before the passage of the act of 1917 rested entirely upon the statute giving such right, and to repeal that statute destroys no vested rights. The authorities relied on by the appellant do not deal with rights of action against municipalities, which are solely the creation of statutes, but refer to vested rights as defined in Pritchard v. Norton, 106 U.S. 124, 1 S.Ct. 102, 27 L.Ed. 104:

'Hence it is that a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference. Whether it springs from contract or from the principles of the common law, it is not competent for the Legislature to take it away.'

The appellant had no vested right, prior to judgment, in a policy of legislation which entitled him to insist that the policy be maintained for his benefit. The Supreme Court of the United States, in Beers v. Arkansas, 61 U.S. (20 How.) 527, 15 L.Ed. 991, has said:

'It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in

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