Cox v. State

• Decision Date: 06 May 1938
• Docket Number: 30333
• Citation: 279 N.W. 482,134 Neb. 751
• Parties: REETA COX, APPELLANT, v. STATE OF NEBRASKA, APPELLEE
• Court: Nebraska Supreme Court

279 N.W. 482

134 Neb. 751

REETA COX, APPELLANT, v. STATE OF NEBRASKA, APPELLEE

No. 30333

Supreme Court of Nebraska

May 6, 1938

APPEAL from the district court for Lincoln county: J. LEONARD TEWELL, JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest.

2. Where the state, by legislative enactment, waives its sovereignty and creates liability on the state's part in favor of an individual for negligence of the state's agents and servants, resulting in injuries to the individual, held, a special law, where a general law can be made applicable, is in contravention of section 18, article 3 of the Constitution.

3. Special act of the legislature, waiving its sovereignty and authorizing an individual to maintain an action against the state to recover damages caused by the negligence of the agents and servants of the state, and creating liability in favor of the individual against the state, does not render the state liable for the negligence of its agents and servants, in the absence of a general statute making the state liable therefor.

4. " By section 18, article 3 of the Constitution, the legislature is prohibited from passing any act granting to an individual any special or exclusive privileges or immunity, and it is provided that, in all cases where a general law can be made applicable, no special law shall be enacted. Held, to prohibit class legislation which does not operate equally and uniformly upon all members of the class brought within its operation." State v. Hall, 129 Neb. 669, 262 N.W. 835.

5. " The legislature may make a reasonable classification of persons, corporations and property for the purpose of legislation concerning them, but the classification must rest upon real differences in situation and circumstances surrounding the members of the class, relative to the subject of the legislation, which render appropriate its enactment; and to be valid the law must operate uniformly and alike upon every member of the class so designated." State v. Hall, 129 Neb. 669, 262 N.W. 835.

6. Where the state by law is empowered to maintain highways, liability of the state for negligence of its agents and servants can be created only by a general statute, operating equally and uniformly upon all persons using the highways of the state. A special act, waiving the sovereignty of the state, creating liability of the state in favor of an individual, is void and unconstitutional, in that it contravenes section 18, article 3 of the Constitution, and creates a law which fails to operate uniformly and alike upon all members of a class; that is, persons using the highways of the state.

Appeal from District Court, Lincoln County; Tewell, Judge.

Suit by Reeta Cox against the State under a bill which waived the sovereignty of the State, the Statute of Limitations, and created liability on the part of the State for negligence of its agents and servants, causing injury to plaintiff. From a judgment in favor of the State, the plaintiff appeals.

Affirmed.

E. H. Evans and Urban Simon, for appellant.

Richard C. Hunter, Attorney General, and Bert L. Overcash, contra.

Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ.

OPINION

MESSMORE, J.

This is an appeal from the district court for Lincoln county, wherein the court sustained a demurrer to the plaintiff's petition, which she filed pursuant to Legislative Bill No. 20, passed by the Fifty-second session of the Nebraska legislature. Laws 1937, ch. 132. The bill, in substance, waived the sovereignty of the state, the statute of limitations, created liability on the part of the state for negligence of its agents and servants, causing injury to the plaintiff, provided for the bringing of suit in the district court for Lincoln county, designated the attorney general to represent the state, and provided for payment out of the general fund of the state of any judgment finally rendered against the state.

Plaintiff's petition, in substance, alleged the authority granted by the state to bring this action, alleged negligence of the state's agents and servants, resulting in injury to the plaintiff, and prayed for compensatory relief.

Section 22, art. V of the Constitution of Nebraska, provides: "The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suits shall be brought." Acting under this constitutional provision, Legislative Bill No. 20 was passed and intended as a special law in substance and form, permitting plaintiff to recover from the state for the tort of its agents and servants.

Section 27-319, Comp. St. 1929, provides, in part, as follows: "The several district courts of the judicial districts of the state as now provided for and established by the Constitution of the state, and of such judicial districts as may hereafter be provided by law, shall have jurisdiction to hear and determine the following matters: * * * Second. All claims or petitions for relief that may be presented to the legislature, and which may be by any law, or by any rule or resolution of the legislature, or either house thereof, referred to either of said courts for adjudication."

Plaintiff contends that the court erred in finding Legislative Bill No. 20 unconstitutional on the theory that it violates the constitutional restriction against special legislation. She cites the case of McNeel v. State, 120 Neb. 674, 678, 234 N.W. 786, wherein, referring to the second part of the statutory provision above quoted, it was stated that "claims in the second of the statutory classes are not included in the first but are based on wrongs or torts committed by departments, officers or agencies of the state," and claims coming under the second part of the statutory provision "must be presented to a district court with legislative authority to sue the state."

In the case of Shear v. State, 117 Neb. 865, 223 N.W. 130, one branch of the legislature authorized an individual to maintain an action against the state to recover damages caused by the negligence of a state employee. This court held: "Where the legislature has not by law provided for the recovery by an individual or corporation against the state for damages caused by the negligence of an officer, agent, or employee of the state, there can be no recovery for such negligence until the legislature expressly by law makes the state liable therefor." In the body of the opinion we said (p. 866):

"Section 22, art. V of the Constitution, provides: 'The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suits shall be brought.'

"This provision is not self-executing and requires legislative action to make it effective, and no suit could be maintained against the state until the legislature, by law, made provision therefor." The above case is quoted and approved in Kent v. State, 118 Neb. 501, 225 N.W. 672.

It therefore seems apparent that only by general law, uniform in its application to persons, can a liability of the state be constitutionally created for the negligence of its agents and servants. To like effect is Sirrine v. State, 132 S.C. 241, 128 S.E. 172, wherein the supreme court of South Carolina, with constitutional provisions similar to ours, made a like pronouncement of the law as set forth in Shear v. State, supra.

Plaintiff cites the case of City of Chadron v. State, 115 Neb. 650, 214 N.W. 297. The 1922 legislature of Nebraska permitted recovery against the state by the city of Chadron for property of the city wrongfully taken, to the amount of the value of such property only, which is significant. The holding in that case was based on the principle of law announced in Lancaster County v. State, 74 Neb. 211, 104 N.W. 187, and Lancaster County v. State, 97 Neb. 95, 149 N.W. 331, that, where the state had taken and received property wrongfully, it was liable for the amount so taken and received. See Nine Mile Irrigation District v. State, 118 Neb. 522, 225 N.W. 679.

A clear distinction exists between the case at bar and the class of cases such as City of Chadron v. State, supra, and the Lancaster County cases, which City of Chadron v. State follows, in that in the instant case, in order to impose a liability on the state, a law must be passed which imposes such liability equally and uniformly in favor of all persons, for future acts of negligence on the part of the state's agents and servants, while in the case of City of Chadron v. State, supra, and cases of like nature, there is a liability imposed upon the state by the Constitution in favor of any one which can be enforced.

In Gledhill v. State, 123 Neb. 726, 243 N.W. 909, it was held: "One whose land is damaged temporarily for public use by the construction of a public improvement by the state constitutes such a damage as requires compensation under section 21, art. I of the Constitution." Said section 21 provides: "The property of no person shall be taken or damaged for public use without just compensation therefor."

Legislative Bill No. 20 involves the right of an individual to sue the state, and the state in such bill creates a liability in the individual's favor that heretofore did not exist by virtue of general statute. The legislature is without force to pass a special law creating a liability in behalf of an individual and authorizing such individual to institute suit, in the absence of a general statute providing liability on the part of the state for the negligence of its agents and servants. Shear v. State, supra; Kent v. State, supra.

Section 18, art. III of the Constitution, provides: "The...