Mills v. Stewart
| Decision Date | 14 June 1926 |
| Docket Number | 5904. |
| Citation | 247 P. 332,76 Mont. 429 |
| Parties | MILLS v. STEWART, Secretary of State, et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.
Suit by R. M. Mills against C. T. Stewart, Secretary of State of the State of Montana and others, as the Board of Examiners of the State of Montana. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.
L. A Foot, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for appellants.
Hugh R Adair, of Helena, for Mills.
E. G Toomey, of Helena, for Rietz.
George A. Rietz, a resident of Lewis and Clark county, was injured while a student at the state University at Missoula. He contends that on the day he registered (September 25, 1923), he was assigned a room on the second floor of the "South Hall" domitory building; that he was not familiar with the surroundings; that on the same floor and near his room were two doors about two feet apart, one of which led into the bathroom and the other into the elevator shaft; that neither door was locked, and neither one was marked or labeled, and there was not anything to indicate which door led into the bathroom or which one led into the elevator shaft; that the hall was dimly lighted, and when he undertook to go to the bathroom, through mistake he opened the door leading into the elevator shaft, and, the shaft being unguarded and the elevator above that floor at the time, he fell down the shaft to the bottom of the pit and sustained serious, permanent injuries, on account of which he incurred large expenses, only a part of which has been repaid to him; a part of such expenses was paid by the University.
These matters having been brought to the attention of the members of the Nineteenth Legislative Assembly, an act was passed and approved (House Bill 398, Laws of 1925, p. 416), which in a preamble sets forth the substance of Rietz' contention. The act then provides that if Rietz presents a claim to the state board of examiners within three months after the approval of the act, the board shall hear and determine the claim, and if it shall find that the injuries were sustained as contended by Rietz, damages therefor in such amount, not exceeding $7,500, as the board shall determine to be just and equitable, "shall constitute a legal and valid claim against the state of Montana." The act then makes an appropriation of $7,500, or so much thereof as may be necessary to pay the claim, if it is allowed by the board.
Rietz made due presentation of his claim, and the board appointed a time for hearing; but before final action was had this suit was instituted by a resident taxpayer to secure an injunction restraining the board from proceeding further with the matter. From an order granting the injunction the board appealed.
The complaint in the action proceeds upon the theory that House Bill 398 is unconstitutional, and in consequence thereof any action taken by the board must be void. This theory was adopted by the trial court, and the correctness of it is the sole question presented by the appeal.
1. It is contended that the act contains more than one subject, in violation of the provisions of section 23, article 5 of the state Constitution, and whether it does or does not depends upon the proper analysis of the act itself.
It is elementary that every statute is to be construed with reference to the object which it is intended to accomplish ( Lewis v. Northern P. Ry. Co., 36 Mont. 207, 92 P. 469; Pohl v. Chicago, M. & St. P. Ry. Co., 52 Mont. 572, 160 P. 515; 36 Cyc. 1110), and whenever that object is not immediately apparent from the body of the act, recourse may be had to the recitals in the preamble (Price v. Forrest, 173 U.S. 410, 19 S.Ct. 434, 43 L.Ed. 749; 36 Cyc. 1132), for the preamble has been termed aptly, "a key to open the minds of the makers of the act" ( Commissioners v. Pemsel, A. C. 1891, p. 531, 61 Law J. Q. B. 265).
If the contention advanced by Rietz is well founded in fact, his injuries resulted proximately from the negligence of the person responsible for the care and management of the dormitory building, and against such person he has a valid, legal claim which he might enforce in an appropriate action at law. The dormitory building is the property of the state, and the state is charged with its management and control, and, while it does not have any moral right to commit a tortious act, it has the same capacity to do so as any other corporation. 1 Cooley on Torts, p. 208; Bishop on Noncontract Law, § 749. The maxim of the English law, "The King can do no wrong," does not find a place in the jurisprudence of this country. Langford v. United States, 101 U.S. 341, 25 L.Ed. 1010. The state, like any other corporation, can act only through agents, and if the state of Montana were a private corporation, it would be responsible to Rietz in an action at law for the damages resulting proximately from the negligence of its agent in charge of the dormitory building. But the state is a public corporation, and out of considerations of public policy the doctrine of respondeat superior does not apply to it unless assumed voluntarily. In other words, the state is not liable for the negligent acts of its agents unless through the legislative department of government it assumes such liability. Lewis v. State, 96 N.Y. 71, 48 Am. Rep. 607; Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, 24 N.E. 854, 8 L. R. A. 399; Clodfelter v. State, 86 N.C. 51, 41 Am. Rep. 440; Billings v. State, 27 Wash. 288, 67 P. 583; 36 Cyc. 881.
With these principles in mind, a consideration of the recitals of the preamble, with the body of the act, discloses with reasonable certainty that it was the intention of the Legislature to assume, on behalf of the state, liability for the negligence, if any, of the agent through whose act Rietz was injured, and to make an appropriation to discharge that liability. The act deals with but one subject-assumption by the state of liability for the negligence, if any, of its agent. The appropriation is merely incidental to the principal purpose of the act, or the means by which that purpose is to be carried into effect. The act is not open to the objection that it contains a plurality of subjects. Evers v. Hudson, 36 Mont. 135, 92 P. 462; State v. Ross, 38 Mont. 319, 99 P. 1056; State ex rel. Campbell v. Stewart, 54 Mont. 504, 171 P. 755, Ann. Cas. 1918D, 1101; Amos v. Mosley, 74 Fla. 555, 77 So. 619, L. R. A. 1918C, 482.
2. It is next contended that the act infringes upon the provisions of section 29, article 5, which section declares:
"No bill shall be passed giving any extra compensation to any public officer, servant or employee, agent or contractor, after services shall have been rendered or contract made, nor providing for the payment of any claim made against the state without previous authority of law, except as may be otherwise provided herein."
The meaning of the first portion of the section is perfectly clear: It is beyond the power of the Legislature to award extra compensation for the services of any officer, agent, servant, or employee of the state after the services have been performed (Lloyd v. Silver Bow County, 11 Mont. 408, 28 P. 453), or, after a contract has been awarded, to allow extra compensation to the contractor for the work contemplated by his contract. The declaration that the Legislature shall not provide for the payment of any claim made against the state without previous authority of law was apparently intended to prevent the recognition and discharge of claims arising from ultra vires acts of officers or agents of the state. It refers exclusively to claims arising out of contract, and has no application here. This is the history of like provisions found in other state Constitutions. Miller v. Dunn, 72 Cal. 462, 14 P. 27, 1 Am. St. Rep. 67.
3. It is contended, further, that in enacting House Bill 398 the Legislature transgressed the provisions of section 20, article 7, which declares:
"The Governor, Secretary of State and Attorney General shall constitute * * * a board of examiners, * * * and no claim against the state, except for salaries and compensation of officers fixed by law, shall be passed upon by the Legislative Assembly without first having been considered and acted upon by said board."
It is sufficient answer to this contention to say that the Legislature did not assume to pass upon the Rietz claim, but by the very terms of the act the entire matter was referred to the board of examiners, the body created by the Constitution, to hear and determine all claims against the state.
4. Finally, it is urged that the act contravenes the provisions of section 11, art. 12, and section 1, art. 13, which declare:
"Taxes shall be levied and collected by general laws and for public purposes only."
And section 1, art. 13:
"Neither the state, nor any county, city, town, municipality, nor other subdivision of the state shall ever give or loan its credit in 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 a joint owner with any person, company or corporation, except as to such ownership as may accrue to the state by operation or provision of law."
The power to appropriate public funds and the power to levy and collect taxes are identical. Panchot v. Leet, 50 Mont. 314, 146 P. 927; Gem Irrigation District v. Dan Deusen, 31 Idaho, 779, 176 P. 887; College v Hager, 121 Ky. 1, 87 S.W. 1125; 1 Cooley on Taxation (4th Ed.) § 177. In other words, the Legislature has authority to appropriate public money for any purpose...
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