Brown v. State Highway Commission

• Decision Date: 07 November 1970
• Docket Number: No. 45802,45802
• Citation: 206 Kan. 49,476 P.2d 233
• Parties: Eugene BROWN, personally, and Husband and one of the Heirs of Evelyn Brown, deceased; as Father and Heir of Paul Kelly Brown, deceased, and as Father and Next Friend of Jacqualyn Brown, Roberta Brown and Kathryn Brown, Appellants, v. STATE HIGHWAY COMMISSION of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 233

476 P.2d 233

206 Kan. 49

Eugene BROWN, personally, and Husband and one of the Heirs of Evelyn Brown, deceased; as Father and Heir of Paul Kelly Brown, deceased, and as Father and Next Friend of Jacqualyn Brown, Roberta Brown and Kathryn Brown, Appellants, v. STATE HIGHWAY COMMISSION of Kansas, Appellee.

No. 45802.

Supreme Court of Kansas.

Nov. 7, 1970.

Syllabus by the Court

1. A statute which in general terms provides for the payment of interest does not apply to the state unless it expressly so provides.

2. The general interest statute (K.S.A. now 1969 Supp. 16-204) providing, in substance, that all judgments shall bear interest from the date on which they are rendered has no application to judgments against the state.

3. Since the state can be sued only with its consent, a statute waiving immunity must be strictly construed.

4. With the enactment of K.S.A. 68-419, waiving the state's immunity in respect to actions for damages resulting from highway defects, the legislature did not, by implication, bring the state whithin the purview of the general interest statute relating to interest on judgments (K.S.A. now 1969 Supp. 16-204).

R. R. Mitchell, Dodge City, argued the cause, and Don C. Smith and Camilla Klein Haviland, Dodge City, were with him on the brief for appellants.

John Morse, Topeka, argued the cause, and Douglas B. Myers, Dodge City, was with him on the brief for appellee.

O'CONNOR, Justice.

This case is the sequal to Brown v. State Highway Commission, 202 Kan. 1, 444 P.2d 882, in which we affirmed a judgment against the highway commission for damages resulting from a defect in a state highway. (K.S.A. 68-419.) In subsequent proceedings before the district court, plaintiff's claim for interest on the judgment was denied, and he now appeals from that order.

The sole question for determination is whether the state highway commission is liable for interest on a judgment rendered against it in an action under the provisions of K.S.A. 68-419.

The general interest statute, which has been a part of our law since 1863, provides, in substance, that all judgments shall bear interest from the date on which they are rendered. (K.S.A. now 1969 Supp. 16-204.) In apparent recognition of the sweeping character of the doctrine of sovereign immunity, and the underlying principle that a state (or a county as an arm of the state) can be sued only with its consent, this court has held that the statute has no application to judgments against the state or county. (School District, etc. v. Board of Com'rs of Kingman County, 127 Kan. 292, 273 P. 427; Salthouse v. Board of Com'rs of McPherson County, 115 Kan. 668, 224 P. 70; Jackson County Com'rs v. Kaul, 77 Kan. 717, 96 P. 45. Also see, First Nat'l Bank in Alma v. Board of Com'rs of Wabaunsee County, 145 Kan. 552, 66 P.2d 558.) The rule is well stated in Salthouse v. Bd. of Com'rs of McPherson County, supra:

'* * * The county is not liable for interest on its obligations, for a statute which in general terms requires the payment of interest does not apply to the state or county unless it expressly so provides. Jackson County v. Kaul, 77 Kan. 717, 96 P. 45, 17 L.R.A. (N.S.) 552. The statute declares that all judgments shall bear interest. R.S. 41-104. There being no express reference to the state or county, they are by implication excepted from the operation of the general rule. (See 15 R.C.L. 17.)' (115 Kan. p. 673, 224 P. p. 73.)

The thrust of plaintiff's entire argument in this appeal is that with the enactment of 68-419, waiving the state's immunity in respect to actions for damages resulting from highway defects, the legislature, by implication, brought the state within the purview of the general interest statute (16-204). In other words, waiver of immunity from suit impliedly waived immunity from liability for interest. We are unable to agree.

Since the state cannot otherwise be sued, its liability for damages resulting from highway defects is purely statutory. A statute waiving immunity must be strictly construed, and the court has no right to enlarge the scope of the statute or to amend the law by judicial interpretation. (Cronin v. State Highway Commission, 182 Kan. 42, 318 P.2d 1066; Brock v. State Highway Comm., 157 Kan. 252, 139 P.2d 811; American Mut. Liability Ins. Co. v. State Highway Comm., 146 Kan. 239, 69 P.2d 1091.)

Waiver of immunity by implication was touched on in First Nat'l Bank in Alma v. Bd. of Com'rs of Wabaunsee County, supra, which was an action to recover principal and interest on county warrants. Although no statute expressly provided that such warrants should bear interest, this court held the various statutes under consideration implied that the legislature expressly contemplated the counties' inability to pay what they owed when it was due; therefore, interest was recoverable. The court, in reaching its conclusion, emphasized that the statutes were 'so clear and compelling as to leave no doubt' about the lawmakers' intention. The same view was expressed earlier in Jackson County Com'rs v. Kaul, supra, in the following language:

'* * * The general rule that the state is not bound by statutes limiting rights or imposing burdens, unless it be expressly named, or be intended by necessary implication is familiar. * * * To bind the state by an implication, it must be one that is unavoidable. If there be a doubt upon the subject, that doubt must be resolved in favor of the state. * * *' (77 Kan. p. 719, 96 P. p. 46)

The statute authorizing this action against the state highway commission...