Davis v. State

Decision Date23 February 1917
Citation163 P. 373,30 Idaho 137
PartiesE. C. DAVIS, Plaintiff, v. STATE, Defendant
CourtIdaho Supreme Court

CLAIMS AGAINST THE STATE-CONSTITUTIONAL AND STATUTORY PROVISIONS-JURISDICTION OF STATE BOARD OF EXAMINERS AND SUPREME COURT - LIABILITY OF STATE FOR NEGLIGENCE OF SERVANTS OR EMPLOYEES-CLAIMS AGAINST THE STATE AS A PROPRIETOR.

1. Sec 109, Rev. Codes, limits the time within which a claim against the state may be presented to the state board of examiners to two years after the claim has accrued. After the expiration of this period the state board of examiners is without jurisdiction to consider the claim.

2. Under the provisions of sec. 10, art. 5, and sec. 18, art. 4 of our constitution the method prescribed for presenting and prosecuting to a conclusion the claims against the state is that in the first instance such claim must be presented in proper form to the state board of examiners; if rejected by said board the supreme court has original jurisdiction of an action upon a proper claim and may in some cases give a recommendatory judgment, which in turn must be presented to the legislature to be by it allowed or disallowed.

3. The fact that under sec. 10, art. 5, of the constitution the supreme court has original jurisdiction to hear claims against the state does not relieve claimants of the obligation in the first instance of presenting their claims to the state board of examiners.

4. An amendment to a complaint will not be permitted where the complaint, even if so amended, would fail to state a cause of action, under the general rule that amendments to pleadings should be permitted in furtherance of justice.

5. States cannot be sued without their consent, and when by constitutional or statutory provisions the state has permitted itself to be sued, such permission does not render the state liable for the careless or negligent acts of its servants, employees or agents in the absence of any statute expressly fixing such liability upon a state.

6. The word "claims" as used in art. 5, sec. 10, of the constitution of this state does not include any claim for damages caused by the careless or negligent acts of the state's servants, employees or agents, and in the absence of any statute expressly making the state liable in such cases no such liability exists.

7. Complaint of D. alleged that the state of Idaho owned and operated an irrigation system; that by reason of the negligence and carelessness of the state and its servants employees and agents a ditch of said system broke, causing large quantities of water to flow upon, over and across D.'s land, resulting in the alleged damage. Held, not to state a cause of action as against the state, and not to disclose a state of facts giving rise to a "claim" within the meaning of art. 5, sec. 10, of the constitution.

8. Under sec. 109, Rev. Codes, no claim which is not provided for by law may be presented, audited, set off or sued upon.

9. Held, that in the absence of a statute or constitutional provision making the state as a proprietor liable for the careless or negligent acts of its servants, employees or agents, this court is without jurisdiction to grant any relief to plaintiff, under the facts alleged in plaintiff's complaint.

[As to the liability of a state for the torts of its officers, see note in Ann.Cas. 1913A, 1038]

Original action brought against the state for the purpose of procuring a recommendatory judgment. The state interposed a demurrer. Demurrer sustained.

Demurrer sustained and action dismissed. Costs awarded to defendant.

E. G. Davis and Paul S. Haddock, for Plaintiff, file no brief.

T. A. Walters, Atty. Genl., A. C. Hindman and J. Ward Arney, Assts., for Defendant.

An action for damages cannot be maintained against a state unless the state has, by voluntary legislative enactment, granted such consent or assumed the particular liability which is the occasion of the action (8 L. R. A. 399, note.)

A citizen will not be permitted to bring action against the state on an alleged claim arising from the negligence, carelessness, misfeasance, malfeasance or nonfeasance of the state or its officers, except in those jurisdictions where, by reason of constitutional provisions or legislative enactment, such actions are permitted. (8 L. R. A. 399, note; 42 L. R. A. 33, note.)

OPINION

PER CURIAM.

This is an action brought by the plaintiff against the state of Idaho for a recommendatory judgment for damages alleged to have been sustained on the plaintiff's land by reason of the alleged carelessness and negligence of the defendant and its duly authorized officers and agents acting in its behalf. The facts, so far as they relate to the questions here involved, are as follows: That on May 1, 1908, the defendant, state of Idaho, entered into a contract in writing with the Kings Hill Irrigation & Power Company, Limited, under which said company agreed to construct a certain irrigation system in the counties of Owyhee and Twin Falls, in the state of Idaho, for the irrigation and reclamation of certain designated arid tracts of land, including the land of the plaintiff; that the project was one commonly called a Carey Act project; that the plaintiff was one of the settlers upon land included within the project; that he made his final proof, on his said lands, to the state of Idaho on June 19, 1912, which proof was accepted by the state board of land commissioners of the state of Idaho and final certificate No. 169 issued to plaintiff; that ever since the entry of the said land and the making of final proof the plaintiff has been the owner and in the possession thereof; that prior to the year 1914 the said Kings Hill Irrigation & Power Company, Limited, became insolvent and was foreclosed in the federal district court, for Idaho, in mortgage foreclosure proceedings; that at the sale of the said system under said proceedings the state of Idaho, on March 10, 1914, succeeded through purchase of said system to all the rights and interest of the said company in the said project, and that since said date the state has been and now is the owner of said irrigation system, and operated said system during the irrigation season of 1914; that on July 1, 1914, an irrigation ditch of said system broke and allowed large quantities of water to run on and across the plaintiff's land, doing the damage alleged; it is alleged "that on or about the 3d day of November, 1916, the plaintiff filed with the board of examiners of the state of Idaho" a claim for reimbursement of his damages, which claim was by the said board rejected and marked disallowed.

The defendant has demurred to the complaint on two grounds; first, that said complaint does not state facts sufficient to constitute a cause of action; second, that the above-entitled court has no jurisdiction of the subject matter of said action as set forth in said amended complaint.

Sec. 18, art. 4, of the constitution of Idaho provides: "The Governor, Secretary of State and Attorney General . . . shall also constitute the Board of Examiners, with power to examine all claims against the state, except salaries or compensations of officers fixed by law, and perform such other duties as may be prescribed by law. And no claim against the state, except salaries and compensation of officers fixed by law, shall be passed upon by the legislature without first having been considered and acted upon by said board."

Sec. 109, Rev. Codes, provides: "All persons having claims against the state must exhibit the same, with the evidence in support thereof, to the Auditor, to be audited, settled and allowed by the Board of Examiners, within two years after such claim shall accrue, and not afterward. . . . No claim which is not provided for by law shall be audited or set off."

It appears from the amended complaint that the alleged claim of plaintiff accrued on the 1st day of July, 1914, and that the same was presented to the state board of examiners on or about November 3, 1916. The legislature has seen fit, by sec. 109, Rev. Codes, to limit the time within which a claim may be presented to said board to two years after the claim has accrued. As far as the amended complaint shows, the alleged claim of plaintiff was not presented to the board until several months after the two year period had expired. It would appear that the said board was without jurisdiction to consider this alleged claim at the time it was presented.

In the case of Pyke v. Steunenberg, 5 Idaho 614, 51 P. 614, 615, this court said:

"The jurisdiction is conferred upon this court by the constitution (sec. 10, art. 5) to hear claims against the state, and to make decisions thereon, which decisions 'shall be merely recommendatory'; and this court has declined to hear any claims against the state until the same shall have been passed upon by the board of examiners."

It will be remembered that under the provisions of sec. 10, art. 5, this court has original jurisdiction to hear claims against the state, that its decisions are merely recommendatory, and that they shall be reported to the next, session of the legislature for its action. It will also be remembered that sec. 18, art. 4, provides that no claim against the state, except salaries and compensation of officers, fixed by law, shall be passed upon by the legislature without first having been considered and acted upon by the board of examiners. (Kroutinger v. Board of Examiners, 8 Idaho 463, 69 P. 279; Bragaw v. Gooding, 14 Idaho 288, 94 P. 438; Pyke v. Steunenberg, supra.)

Construing these two sections together it would appear that only one method of presenting and prosecuting to a conclusion claims against the state has been provided: that in the first instance a claim must be presented in proper...

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