Fairfield v. Huntington

• Decision Date: 08 April 1922
• Docket Number: Civil 2004
• Citation: 205 P. 814,23 Ariz. 528
• Parties: CHARLES W. FAIRFIELD, as Auditor of the State of Arizona, Appellant, v. GORDON G. HUNTINGTON, Appellee
• Court: Arizona Supreme Court

205 P. 814

23 Ariz. 528

CHARLES W. FAIRFIELD, as Auditor of the State of Arizona, Appellant, v. GORDON G. HUNTINGTON, Appellee

Civil No. 2004

Supreme Court of Arizona

April 8, 1922

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Mr. W J. Galbraith, Attorney General, and Mr. George R. Hill Assistant Attorney General, for Appellant.

Messrs Baker & Whitney, for Appellee.

OPINION

McALISTER, J.

The question presented by this appeal is the constitutionality of chapter 169 of the Sessions Laws of the Fifth Arizona Legislature, which became a law on the 23rd of March, 1921, and reads as follows:

"An act for the relief of Gordon G. Huntington, injured by an explosion while in the service of the state of Arizona, and making an appropriation therefor.

"Be it enacted by the Legislature of the State of Arizona:

"Section 1. That whereas, Gordon G. Huntington, while in the employ of the state engineer of Arizona, sustained personal injuries arising out of, and in the course of, such employment, resulting in the loss of his right eye and the permanent impairment of the sight of his left eye, causing him to be incapacitated to an extent which is hereby declared to be a permanent total disability, there is hereby appropriated from the general fund of the state of Arizona, from any moneys not otherwise appropriated, a sufficient amount to pay to the said Gordon G. Huntington the sum of eighty-four dollars and fifty cents ($84.50) per month during the rest of his natural life, which is sixty-five per cent. (65 %) of his average monthly wage, computed on the basis of not to exceed one hundred and thirty dollars ($130.00) per month: Provided, that should medical, surgical and hospital or other treatment, including nursing, medicines, medical and surgical supplies, become necessary because of said injury, a sufficient further amount to cover same is hereby appropriated.

"Section 2. The Industrial Commission of Arizona is hereby authorized to make proper claims upon the state auditor for the amount herein specified, and the state auditor shall draw his warrant for such amount, and the state treasurer is authorized and empowered to pay the same: Provided, however, that should there be no Industrial Commission, the superintendent of the public health is directed, empowered and authorized to carry out all of the conditions and provisions of this act.

"Section 3. The purposes and intent of this act shall be to give compensation to an employee of the state, injured by an accident arising out of and in the course of his employment and to the extent herein specified, and not for any other purpose to admit the liability of the state for the injury named in the foregoing sections. Provided, however, that the acceptance of any amount or amounts named in this act shall be a full and complete release of any claim or claims which the aforesaid Gordon G. Huntington may now have or might have against the state of Arizona resulting from the injury described in Section 1 of this act."

It appears from the complaint and petition of Gordon G. Huntington that, in pursuance of the provisions of this act, he presented to the state auditor on September 7, 1921, two claims against the state, one for $84.50 and one for $146.54, which had been theretofore approved by A. M. Tuthill, state superintendent of public health, and that said claims were by the auditor disallowed. The prayer is that an alternative writ of mandamus issue, directed to the auditor and commanding him to audit and allow the said claims and to draw a warrant on the state treasurer for the amount of the same, or show cause at a later date why he has not done so, and that upon the hearing the alternative writ be made peremptory. The defendant demurred to the complaint and petition chiefly upon the ground that it appears from its face that chapter 169 is unconstitutional and void because it violates the provisions of the state Constitution which prohibit the legislature from enacting, first, legislation making a donation to any individual, association or corporation, and, second, special legislation where a general law can be made applicable. The defendant relied entirely upon his demurrer, which, however, was overruled, and, having specially admitted in his answer "all of the facts in said petition lawfully and sufficiently pleaded," it was thereupon ordered that the alternative writ be made peremptory. From this judgment the defendant appeals.

The only error assigned is the overruling of the demurrer, and the argument in support of this assignment is based upon the following provisions of the state Constitution:

"Neither the state, nor any county, city, town, municipality, or other subdivision of the state shall ever give or loan its credits in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation, or become a subscriber to, or a shareholder in, any company or corporation or become a joint owner with any person, company, or corporation, except as to such ownerships as may accrue to the state by operation or provision of law." Section 7, art. 9. "No local or special laws shall be enacted in any of the following cases, that is to say: . . .

"20. When a general law can be made applicable." Subsection 20, § 19, art. 4.

It is contended that chapter 169, which provides that the state shall pay appellee monthly a certain compensation on account of an injury suffered by him as a result of an accident arising out of his employment by the state engineer, is void because it constitutes a "donation" within the meaning of that part of section 7, article 9, above, which says that "neither the state, nor any county, . . . shall ever . . . make any donation or grant, by subsidy or otherwise, to any individual, association or corporation." If by the term "donation," as here used, it was intended to prohibit the legislature from making an appropriation of the character provided for in chapter 169, this contention must prevail, otherwise not.

Appellee was injured while working for the state under the direction of its engineer, who had charge of the construction and maintenance of its highways, and in the performance of his duties as such employee was necessarily discharging a function of state government since the highways of the state are built and maintained with public funds for the use of the public and without any idea of profit or gain. And, by the great weight of authority, a state, in consequence of its sovereignty, cannot be made to respond in damages for the negligence of its agents, servants, or employees which occurs in the discharge of a governmental function, except in those cases where it has, by constitutional or legislative enactment, expressly assumed such liability, and this court, speaking through Justice BAKER, held in State v. Sharp, 21 Ariz. 424, 189 P. 631, that Arizona had not, by any act of its legislature brought itself within the exception. Hence, it is not claimed in appellee's behalf that the state was liable to him when the injury was suffered, but its nonliability at that time is specifically admitted, and upon the undoubtedly correct theory that if it could not have been compelled to pay for an injury resulting from the negligence of its agents, servants, or employees while discharging a function of government, neither could it have been held liable for one arising out of the condition of the employment in which the employee was at the time engaged, and occurring also in the discharge of a governmental function, since the state had assumed liability in neither instance. Appellant argues, therefore, that since chapter 169 is an appropriation in settlement of a claim which the state was under no legal obligation to pay, it amounts merely to a "donation" within the constitutional meaning of this term, and is consequently void.

It is true if the act were passed solely in the exercise of gratitude and charity and did nothing more than make a gratuitous present of the public funds, the payments authorized by it would be merely donations; but, since it is clear that it was the purpose of the legislature in passing it to recognize a moral obligation then resting upon the state and founded upon equity and justice, regardless of the fact that the state was not liable therefor as a matter of law, the question presents itself whether an appropriation made out of considerations of this kind comes within the constitutional provision prohibiting donations. As used in section 7, article 9, this word has the meaning usually attached to it, which appears in Webster's International Dictionary as a "gift" or "that which is given as a present or gratuitously." The idea it conveys is that of help voluntarily extended in obedience to a desire to do a charitable act where no duty except to aid a worthy cause demands it, there being no thought or intention on the part of the donor of discharging thereby either a legal or moral obligation due from him to the donee. It prevents the state from becoming a subscriber to a charitable object, either alone or with others; that is, from appropriating its funds to an individual, association, or corporation for a cause having no claim upon the state other than its admitted worthiness, but it does not prevent the recognition of moral obligations founded on justice and equity, even though the state is not liable therefor as a matter of law. Its effect is merely to prohibit the state from assuming the attitude of the person who says: "The cause is a good one, I will contribute to it," but it does not interfere with its taking the position of one who says of a just, though unenforceable obligation: "I owe that, here is your money in...