Fetzer v. Minot Park Dist.
| Citation | 138 N.W.2d 601 |
| Decision Date | 29 November 1965 |
| Docket Number | No. 8263,8263 |
| Parties | LeRoy FETZER, Plaintiff and Appellant, v. MINOT PARK DISTRICT, a Public Corporation, Defendant and Respondent. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. A park district, in the exercise of its official duties, is engaged in a governmental function.
2. In North Dakota, municipal corporations are the creatures and agencies of the State. They have no powers except those conferred upon them by law.
3. A municipal corporation, in exercising its powers, is an agency of the State and its liability to suit is based on statutory or constitutional consent.
4. Courts cannot legislate. Their power is limited to passing on laws enacted by the Legislature, and, if the Legislature fails to act, courts cannot change the law by judicial decision.
Waldron & Kenner, Minot, for plaintiff and appellant.
Palda, Palda, Peterson & Anderson, Minot, for defendant and respondent.
This is an appeal by the plaintiff from an order of the trial court granting summary judgment of dismissal of the plaintiff's complaint against the defendant Minot Park District alleging negligence of the defendant, its servants and agents, in the operation of a swimming pool. As a result of the alleged negligence, two minor daughters of the plaintiff were drowned and plaintiff brings this action for damages. The trial court dismissed the complaint on the ground that the defendant, a municipal corporation, is not liable in the performance of a governmental function and is entitled to governmental immunity.
While the plaintiff did contend that the defendant, in maintaining a swimming pool, was not engaged in a governmental function, he did not stress this argument. In this State a park district, in the performance of its duties, which would include such duties as maintaining a swimming pool, is engaged in the performance of a public duty, and the performance of such duty is a governmental function. Holgerson v. City of Devils Lake, 63 N.D. 155, 246 N.W. 641.
The plaintiff does argue strenuously, however, that the doctrine of governmental immunity is archaic and should no longer be followed; that the doctrine is being overruled as a defense to tort claims against municipal corporations by courts of many of the jurisdictions, and cites a number of decisions to this effect.
We agree that many jurisdictions have abolished the defense of governmental immunity. Some of the jurisdictions which have done so are Minnestoa, in Spanel v. Mounds View School District No. 621, 264 Minn. 279, 118 N.W.2d 795; Arizona, in Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107; Michigan, in Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1; Wisconsin, in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618; and South Dakota, in Bucholz v. City of Sioux Falls, 77 S.D. 322, 91 N.W.2d 606.
The reasons given by the courts of these jurisdictions differ from State to State, but most of them point out that the doctrine of governmental immunity was first invoked, and immunity conferred, by judicial decision. As was said by the Wisconsin Supreme Court in Holytz, supra, 115 N.W.2d at page 623:
'* * * the governmental immunity doctrine has judicial origins. * * * we are now of the opinion that it is appropriate for this court to abolish this immunity notwithstanding the legislature's failure to adopt corrective enactments.'
In the State of North Dakota, the rule of governmental immunity has long been established. We have held that a park district is not liable for the manner in which it exercises governmental authority. Holgerson v. City of Devils Lake, supra. This immunity, however, has been based on more than mere judicial decision. Our Constitution provides that '[s]uits may be brought against the state in such manner, in such courts, and in such cases, as the legislative assembly may, by law, direct.' Sec. 22, N.D.Constitution.
Municipal corporations are creatures and agencies of the State. They have no powers except those given to them by the Legislature, and moneys raised by taxation, loan, or assessment for any purpose shall not be used for any other purpose 'except by authority of law.' Sec. 130 N. D. Constitution.
A county has been held to be an agency of the State, and its liability to suit is based on...
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Kitto v. Minot Park Dist.
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...as it is for the legislature to determine policy, not for the courts. As said by Mr. Justice Strutz in Fetzer v. Minot Park District, 138 N.W.2d 601, 604 (N.D.1965): The courts cannot legislate, regardless of how much we might desire to do so. Therefore, regardless of how worthy a claim aga......
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...See State v. Silva (1970), 86 Nev. 911, 478 P.2d 591.7 Section 22, Article I. Paragraph four of the syllabus in Fetzer v. Minot Park Dist. (N.D.1965), 138 N.W.2d 601, states: 'Courts cannot legislate. Their power is limited to passing on laws enacted by the Legislature, and, if the Legislat......