Shallis v. Fiorito

• Decision Date: 10 February 1926
• Citation: 243 P. 654,41 Idaho 753
• Parties: IRA H. SHALLIS, Respondent, v. NICK FIORITO, JOE FIORITO and G. FIORITO, a Partnership Doing Business Under the Firm Name and Style of FIORITO BROTHERS, Appellants
• Court: Idaho Supreme Court

243 P. 654

41 Idaho 753

IRA H. SHALLIS, Respondent, v. NICK FIORITO, JOE FIORITO and G. FIORITO, a Partnership Doing Business Under the Firm Name and Style of FIORITO BROTHERS, Appellants

Supreme Court of Idaho

February 10, 1926

TAYLOR, J. William A. Lee, C. J., and Wm. E. Lee and Givens JJ., concur.

OPINION

TAYLOR, J.

Counsel for respondent state insurance fund have filed objections to the taxation of costs herein, and in support thereof contend that the department of finance, under C. S., sec. 6291, is in fact respondent, and that this is thus in fact a suit against the state itself; that if any costs are taxed, they are taxed as a charge against the state; that no costs are allowable unless there is an express provision of statute therefor that C. S., sec. 7212, being a general statute, making no express reference to the state, is not applicable herein; that if these costs are taxed under C. S., sec. 7223, that section is unconstitutional under Idaho Const., art. 4, sec. 18, which vests exclusive power to allow claims against the state in the state board of examiners; that C. S., sec. 6272 (as amended, Sess. L. 1921, c. 217, sec. 14, p. 480), is particularly applicable to the workmen's compensation law; and that, as this section provides:

"If the board, or any court before whom any proceedings are brought under this act, determines that such proceedings have been brought, prosecuted or defended without reasonable ground, he or it may assess the whole cost of the proceedings upon the party who has so brought, prosecuted or defended them," and as there is no contention that this cause was "defended without reasonable ground," there is thus no provision for the taxation of costs.

Respondent's contention that the department of finance is in truth and in fact the respondent herein, and that thus the state is a party, is only tenable in a limited sense. By C. S., sec 6291, the department may sue and be sued "in all actions or proceedings arising out of anything done or (suffered) in connection with the state insurance fund or business relating thereto." While counsel contend that the state is thus a party, its liability does not extend beyond the amount of the insurance fund, C. S., sec. 6288, providing, "Such fund shall be administered by the department . . . . without liability on the part of the state beyond the amount of such fund," and that "Such fund shall be applicable to the payment of losses sustained on account of insurance and to the payment of compensation under the workmen's compensation law and of expenses of administering this article." By C. S., sec. 6290, the department is given full power to conduct all business in relation to the fund in the official name of the department. It is authorized to make contracts of insurance (C. S., sec. 6292); it is "vested with full authority over the said fund, and may do any and all things which are necessary or convenient in the administration thereof, or in connection with the insurance business to be carried on by the department under the provisions of this chapter." (C. S., sec. 6289.) It is required to keep an account of "the amount disbursed from the state insurance fund for expenses." (C. S., sec. 6302.) The department submits an...