Com. v. McCoun

• Citation: 313 S.W.2d 585
• Parties: COMMONWEALTH of Kentucky, Department of Highways of Commonwealth of Kentucky, Appellants, v. Emma McCOUN, Appellee. COMMONWEALTH of Kentucky, Department of Highways of Commonwealth of Kentucky, Appellants, v. Orene Swango DAVIS, Appellee.
• Decision Date: 07 February 1958
• Court: United States State Supreme Court — District of Kentucky

Page 585

313 S.W.2d 585

COMMONWEALTH of Kentucky, Department of Highways of

Commonwealth of Kentucky, Appellants, v. Emma McCOUN, Appellee.

COMMONWEALTH of Kentucky, Department of Highways of

Commonwealth of Kentucky, Appellants, v. Orene Swango DAVIS, Appellee.

Court of Appeals of Kentucky.

Feb. 7, 1958.

Rehearing Denied June 20, 1958.

Jo M. Ferguson, Atty. Gen., Hafford E. Hay, Asst. Atty. Gen., for appellants.

Thomas F. Marshall, Frankfort, Edward E. Bach, Campton, for appellees.

STANLEY, Commissioner.

The vital question before the Court is the constitutional power of the Legislature since it has enacted a general law which can be made applicable to all such cases, to pass a joint resolution permitting certain persons to sue the Commonwealth for damages on individual claims and authorizing the payment of any judgments recovered.

The General Assembly, at its regular 1956 session, passed a joint resolution authorizing Mrs. Emma McCoun and Mrs. Orene Swango Davis to sue the Commonwealth and the Department of Highways in the Wolfe Circuit Court for $15,000 each for damages for personal injuries alleged to have been caused by negligence in the construction and maintenance of a highway. The resolution directed that any recovery should be paid out of the General Expenditure Fund and provided that no plea of limitation should be interposed, four years having elapsed since the accident. Ch. 223, Acts of 1956. The complaints filed pursuant thereto allege the plaintiffs were injured by their automobile skidding on mud and sand which had been negligently permitted to accumulate on the road from a landslide. The cases were tried together and judgments for $15,000 each were recovered. The Commonwealth and the Department of Highways appeal but do not bring up the transcript of evidence.

It is an accepted postulate that as a matter of public policy neither the state nor any of its agencies may be held liable for damages resulting from negligence in the performance of governmental functions, nor subjected to suit therefor without express waiver or permission being granted by the Legislature. Throughout the state's history such waivers have been by passing special resolutions for each case. Prior to the adoption of the present Constitution in 1891 there was no ban upon local or special legislation. But § 59 of the present Constitution positively prohibits the General Assembly from passing local or special acts concerning twenty-eight specified subjects and purposes. The twenty-ninth paragraph of the section reads: 'In all other cases where a general law can be made applicable, no special law shall be enacted.'

The first case challenging the constitutional validity of a joint resolution of the General Assembly authorizing a suit by named persons to recover sums due for supplies furnished the state is Commonwealth v. Haly, 106 Ky. 716, 51 S.W. 430, 21 Ky.Law Rep. 666. The opinion points out that although the several constitutions of the state have clothed the Legislature with power to enact a law in general terms with application to controversies between the state and the people which would constitute a consent or waiver, the Legislature had never exercised that power. The authority is § 231 of the Constitution, which reads: 'The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth.' The court suggested that while a joint resolution may not be 'a law' within the meaning of that section, 'such a law might be enacted general in its terms, and applicable to every controversy between the sovereign and the subject.' The court stated that since a special resolution was the only way in which a creditor could obtain the consent of the state to be sued on a just claim in the absence of a general law to that effect, it would be intolerable not to afford him a remedy. The resolution was, therefore, held to be a valid consent of the Commonwealth. In later cases similar resolutions authorizing suits and the satisfaction of judgments on both contract and tort claims have been upheld upon that ground. But their dubious validity where the question was raised has been sustained (as in the initial case) by a divided court. The latest case, Daniel's Adm'r v. Hoofnel, 287 Ky. 834, 155 S.W.2d 469, was decided under the rule of stare decisis. In Carr v. Jefferson County, 275 Ky. 685, 122 S.W.2d 482, 483, after commenting upon the long adherence to the foregoing construction of the Constitution, the court held it would not be extended to sanction such special legislation authorizing suits against a county as a political division of the state.

In 1946 the Legislature first enacted a law of general application to all persons and claims for personal injury or property damage caused by negligence in the construction, maintenance and policing of the highways of the state. The Act set up a Board of Claims, and invested it with authority to receive and hear proof on such claims and award compensation not to exceed $1,000. Ch. 189, Acts of 1946. In 1950 the statute was amended and expanded to cover claims 'for damages sustained to either person or property as a proximate result of negligence on the part of the Commonwealth, any of its departments or agencies, or any of its agents or employees while acting within the scope of their employment by the Commonwealth or any of its departments of agencies.' The limitation on the amount which could be awarded was increased to $5,000. The statute further directs out of what funds claims or judgments shall be paid. Appeals to the Franklin Circuit Court, and thence to the Court of Appeals are authorized. Ch. 50, Acts of 1950. The personnel of the Board of Claims was later changed to five members of the Workmen's Compensation Board. 1956, 1st Ex.Sess., Ch. 7. The act is now KRS 44.070 to 44.160.

Thus the General Assembly has finally settled the question of dubious validity of special resolutions by enacting a law under direction of § 231 of the Constitution which is general in character and which 'can be made applicable' to all claims against the Commonwealth. § 59, Twenty-ninth paragraph. It has provided a general remedy and set up a quasi-judicial tribunal to determine the justness of all claims and to pay such as may be found meritorious, affording proper and full judicial review.

Although all joint resolutions are not necessarily regarded or treated as laws, yet a resolution of this present character is regarded as having the force and effect of a law. Commonwealth v. Lyon, 72 S.W. 323, 24 Ky.Law Rep. 1747. When a general law has been enacted which is applicable to the same subject and purpose of a special joint resolution having the effect of that law, we hold that such a special resolution is prohibited. It was held in Department of Conservation v. Sowders, Ky., 244 S.W.2d 464, that a joint resolution authorizing and directing the Workmen's Compensation Board to accept and to adjudicate a claim of the family of a named deceased employee of one of the departments of the state government was constitutionally invalid. The reason was that there had been enacted a general law, KRS 342.010, providing that any department of the state government may elect to accept the provisions of and operate under the Workmen's Compensation Act. The department employing the deceased employee had not elected to do so. We held that the joint resolution could 'not be regarded otherwise than an attempt to cover a special case when a general law now in existence is otherwise applicable within the meaning and spirit of § 231' of the Constitution.

The limitation of $5,000 does not deprive the statute of its character as a 'general law,' for it uniformly operates on and applies to all persons and claims within its scope and range. This distinguishes it from a special law, which is a law that relates to particular persons or things and grants special privileges or imposes special burdensome conditions upon persons or things arbitrarily selected or set apart from the general body or whole class of those who stand in the same relation to the subject of the law. Shaw v. Fox, 246 Ky. 342, 55 S.W.2d 11; Johnson v. Commonwealth, ex rel. Meredith, 291 Ky. 829, 165 S.W.2d 820; Reid v. Robertson, 304 Ky. 509, 200 S.W.2d 900; Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 5 A.L.R.2d 1154. Although there may be just and meritorious claims for more than $5,000, and persons having claims for a greater sum are to that extent without relief, the central point or the essential factor is that the statute embraces all persons and all claims notwithstanding the limitation on the amount that may be recovered. It is indisputable that in waiving sovereign immunity from liability for tortuous acts of the state's agents and in consenting to be sued therefor, the Legislature may impose any restriction thereon it pleases and may prescribe such modes, terms and conditions as it sees fit. Pennington's Adm'r v. Commonwealth, 242 Ky. 527, 46 S.W.2d 1079; Kentucky State Park Commission v. Wilder, 260 Ky. 190, 84 S.W.2d 38; Watkins v. Department of Highways, Ky., 290 S.W.2d 28. The Commonwealth has withheld consent to be sued or to become liable for more than $5,000.

In Commonwealth v. Daniel, 266 Ky. 285, 98 S.W.2d 897, 898, the Attorney General, in again challenging the validity of a special resolution which authorized a person to sue the state for damages but limited the recovery to $6,000, raised the point that the limitation itself constituted special legislation and was forbidden not only by § 59, but by § 54 of the Constitution, which expressly denies the Legislature power to limit the amount that may be recovered for injuries to person or property. In rejecting the argument, the court said, 'Without the enabling act, the appellee had no remedy. Immunity from suit is a privilege which a sovereign may waive or refuse to waive at its pleasure, but, if it waives the privilege, it can do...