In Re: On Rehearing
| Decision Date | 02 November 1935 |
| Parties | On Rehearing. |
| Court | Idaho Supreme Court |
-After the original opinion was filed herein a petition for rehearing was filed and we were furnished with a very exhaustive brief and argument by the attorneys for respondent, dealing with new questions not presented by respondent on the original hearing. The earnestness with which counsel presented the matter led us to grant a rehearing and the case was reargued at the September term. We have again given the case very careful consideration and have examined a great many and variety of authorities bearing on the questions presented.
There is no such thing as harmony among the wealth of judicial discussion on the specific question here presented. We are persuaded, however, that we reached the just and fair solution of the question upon the original hearing and that it is our duty to adhere to the conclusion there announced.
The extensive research and persuasive reasoning disclosed by the briefs on rehearing merit some further response from the court as to the merits of the contentions advanced.
The decision of this case rests upon the distinction between the discharge of governmental duties and the performance of proprietary or business engagements.
It is the duty of the county to take care of the "indigent sick and otherwise dependent poor." It might discharge that duty directly or by contract. It was not bound to build a county hospital,-the legislature did not so command. Building and operating a hospital was optional and discretionary with the county. The fact that it did build and now maintains a hospital does not render the care for the indigent sick and poor in such institution any less a public and governmental duty. Having built the hospital and furnished and opened it for the discharge of its public and governmental duty, it had the power to utilize any extra or excess facilities it possessed for serving other sick persons not indigent but able to pay for the service. In serving such persons, however, it was not engaged in the discharge of its public and governmental duty but was rather engaging to that extent in a private and proprietary business for pay and at once assumed the same relation to such persons as would any privately owned hospital sustain toward a patient entering it for hospital care. In the one case the public duty is imposed on the county as a governmental agency of the state to care for the indigent sick and poor of the county; in the other case no duty rests upon the county to care for those who are able to purchase their own care and attention. In the latter case the service and resultant duty is private and voluntarily assumed for pay; in the former it is not.
Taxes may be levied and collected for payment of the expenses of governmentally imposed obligations; that may not be done for a purely private purpose or business. (1 Cooley on Taxation, 4th ed., 381, sec. 174; 2 Dillon, Munic. Corp., 5th ed., sec. 884; Atkinson v. Board of Commrs., 18 Idaho 282, 108 P. 1046, 28 L. R. A., N. S., 412; School Dist. No. 8 v. Twin Falls etc. Co., 30 Idaho 400, 164 P. 1174; City of Los Angeles v. Lewis, 175 Cal. 777, 167 P. 390.)
It is urged that if such a rule be adopted as stated in the original opinion herein it may subject the counties maintaining hospitals and caring for pay patients to heavy damages and thus embarrass the counties financially. That might prove true but the remedy lies with the county. It may either carry insurance to secure it against such risks or refuse to accept such patients. (Cohen v. General Hospital Soc., 113 Conn. 188, 154 A. 437.) There is clearly no way to compel the county to accept or render service to persons not "indigent sick or otherwise dependent poor."
It must be borne in mind that we are not here concerned with an issue as to whether the county could embark in the general business of building and operating hospitals for the care of persons able to pay, or whether the legislature would have the power to so authorize counties. Such has not been done and this case does not present such an issue, and for that reason we do not give further consideration to the specific constitutional questions so ably argued by counsel for respondent. Here the county was not and is not obliged to accept pay patients,-that is a matter of choice with the authorities.
The principle announced by this court some 30 years ago in Eaton v. City of Weiser, 12 Idaho 544, 86 P. 541, 118 Am. St. 225, with reference to the operation of an electric light system by a city is just as pertinent when applied to a county as it was there to a city, and that case has been the law of the state from the time it was decided down to the present time. No legislature has seen fit to alter or modify the law as there construed. It was there said:
It is not the intention of the court by the opinion in this case to depart in any respect from the rule announced in Gorman v. Commrs. Boise County, 1 Idaho 655, and Worden v. Witt, 4 Idaho 404, 39 P. 1114, 95 Am. St. 70, relative to governmental duties, and repeatedly cited and followed by this court in subsequent cases. The court is here dealing with a purely nongovernmental business transaction voluntarily assumed by the county.
We adhere to the conclusions reached on the original hearing and the judgment is accordingly reversed and the cause is remanded for further proceedings in harmony with the holding of this court. Costs to appellant.
Dissenting.-Appellant alleges in her supplemental complaint that while she was a pay patient in the Twin Falls County General Hospital she received an injury caused by the negligence of employees of such hospital; that such hospital was erected and is maintained by the respondent pursuant to chapter 33, title 30, I. C. A., and that in accordance with the provisions of section 30-3303, I. C. A., respondent had provided for the acceptance of pay patients other than the indigent sick or otherwise dependent poor. Appellant prays for damages against Twin Falls County for her alleged injury. To the supplemental complaint respondent filed a general demurrer which was sustained. Appellant failed and refused to plead further and judgment of dismissal was entered, from which judgment this appeal is prosecuted.
Errors assigned are: First, that the court erred in sustaining the demurrer, and, second, in entering judgment.
The sole question here for determination is whether or not the supplemental complaint states a cause of action against respondent county.
The opinion on rehearing contains the following statement:
"There is no such thing as harmony among the wealth of judicial discussion on the specific question here presented."
The statement above quoted may be conceded to be correct if we look to all jurisdictions, but, confining ourselves to the decisions of our own court, there is no lack of harmony.
In Davis v. State, 30 Idaho 137, 144, 163 P. 373, 375, quoting from Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N.E. 854, 8 L. R. A. 399, the rule is established in this jurisdiction as follows:
"The law is well established that neither the state nor the United States is answerable in damages to an individual for an injury resulting from the alleged misconduct or negligence or tortious acts of its officers or agents."
It is likewise well settled in this jurisdiction that counties are but arms of the state; merely subdivisions of the state, created or superimposed by the sovereign power of the state of its own sovereign will, purely governmental creatures exercising a part of the sovereign power of the state. As was said in Lewiston Orchards Irr. Dist. v. Gilmore, 53 Idaho 377, 23 P.2d 720, quoting from Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 248 P. 456, 49 A. L. R. 1057:
" "
Being legal political subdivisions of the state,-arms of the state created by the sovereign power of the state to carry out the sovereign will,-purely governmental creatures,-counties are subject to the same rule as that of the sovereign state of which they are a part, namely, that they are not answerable in damages to an individual for an injury resulting from the alleged misconduct, negligence or tortious act of an officer, employee or servant, in the absence of an express statute imposing liability. In Strickfaden v. Greencreek High- way Dist., supra, the rule is...
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