State ex rel. Walton v. Parsons

• Decision Date: 06 May 1938
• Docket Number: 6502
• Citation: 58 Idaho 787,80 P.2d 20
• Parties: STATE on Relation of S. H. WALTON, S. H. WALTON, Jr., LEO WALTON and OPAL WALTON, Husband and Wife, and VRENON WALTON, a Minor, by J. W. GALLOWAY, as His Guardian Ad Litem, Appellants, v. HARRY C. PARSONS, as Auditor of the State of Idaho, Respondent
• Court: Idaho Supreme Court

80 P.2d 20

58 Idaho 787

STATE on Relation of S. H. WALTON, S. H. WALTON, Jr., LEO WALTON and OPAL WALTON, Husband and Wife, and VRENON WALTON, a Minor, by J. W. GALLOWAY, as His Guardian Ad Litem, Appellants, v. HARRY C. PARSONS, as Auditor of the State of Idaho, Respondent

No. 6502

Supreme Court of Idaho

May 6, 1938

STATES-TAXATION-LIABILITY OF STATE FOR TORT OF AGENT-SPECIAL APPROPRIATION-GIFT-CONSTITUTIONAL LAW.

1. The power to levy and collect taxes and the power to appropriate public funds are coexistent and rest upon the same principle and, if tax cannot be levied for particular purpose, no appropriation of public money can be made for such purpose.

2. Taxes cannot be levied and collected, or an appropriation made, for other than a public purpose, or in furtherance of public welfare, and any attempt so to do is in violation of implied limitations of constitution.

3. The state is not liable for torts of its officers and agents unless such liability is expressly assumed, which liability does not exist, not merely because there is no means of enforcing it, but because there is no fundamental obligation existing.

4. In determining whether appropriation of public funds by a state is a "gift," a "gift" is a gratuitous transfer of property of the state voluntarily and without consideration, and a so-called moral obligation will not sustain an appropriation unless such appropriation be made in furtherance of some public purpose.

5. The state cannot assume responsibility for a tort committed in the past by state's officers and agents by a special retroactive legislative act. (Const., art. 11, sec. 12.)

6. An act appropriating a certain sum for individuals, who were injured when automobile in which they were riding ran into timbers left lying across highway by employees of Department of Public Works which was engaged in constructing a bridge over a canal on a state highway, was unconstitutional as violative of implied limitation of constitution forbidding a gift by legislature of public money, and as being retroactive in violation of constitutional provision. (Sess. Laws, 1937 chap. 18; Const., art. 11, sec. 12.)

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. F. Koelsch, Judge.

On appeal from judgment quashing alternative writ of mandate and dismissing proceedings thereunder. Affirmed.

Affirmed. No costs awarded.

E. B Smith, for Appellants.

The right herein sought to be enforced by appellants is not a claim such as is contemplated by article 4, section 18, of the Idaho Constitution. (Davis v. State, 30 Idaho 137, 163 P. 373, Ann. Cas. 1918D, 911; State v. Moore, 40 Neb. 854, 59 N.W. 755, 25 L. R. A. 774; Grable v. Blackwood, 180 Ark. 311, 22 S.W.2d 41; Gem Irrigation Dist. v. Gallet, 43 Idaho 519, 253 P. 128; Allen v. Board of State Auditors, 122 Mich. 324, 81 N.W. 113, 80 Am. St. 573, 47 L. R. A. 117.)

The state, by legislative enactment, may compensate its citizens for injuries sustained by them as the result of tortious acts of its employees; also for injuries sustained by them while in the employ of the state, though no legal liability to make such amends existed prior to the enactment. Such an act is for a public purpose. (Mills v. Stewart, 76 Mont. 429, 247 P. 332, 47 A. L. R. 424; 6 R. C. L., p. 108, sec. 108; 25 R. C. L., p. 402; Fairfield v. Huntington, 23 Ariz. 528, 205 P. 814, 22 A. L. R. 1438; State v. Carter, 30 Wyo. 22, 215 P. 477, 28 A. L. R. 1089; Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, Ann. Cas. 1914B, 1278, 44 L. R. A., N. S., 83; Evans v. Berry, 262 N.Y. 61, 186 N.E. 203, 89 A. L. R. 387.)

J. W. Taylor, Attorney General, and R. W. Beckwith and Lawrence B. Quinn, Assistants Attorney General, for Respondent.

Chapter 18 of the 1937 Session Laws is unconstitutional under the provisions of article 8, section 2, Idaho Constitution, prohibiting the state from loaning its credit to any individuals. (Art. 8, sec. 2, I. C.; Hawks v. Bland, 156 Okla. 48 (1932), 9 P.2d 720; Veterans' Welfare Board v. Jordan, 189 Cal. 124 (1922), 208 P. 284, 22 A. L. R. 1515; San Diego County v. Hammond, 6 Cal. (2d) 709 (1936), 59 P.2d 478, 105 A. L. R. 1155; White v. Pioneer Bank & Trust Co., 50 Idaho 589, 298 P. 933; Atkinson v. Board of Commrs., 18 Idaho 282, 108 P. 1046, 28 L. R. A., N. S., 412.)

Chapter 18 of the 1937 Session Laws is in violation of the provisions of article 3, section 19, subsection 19, Idaho Constitution, in that it attempts to legalize and make valid an unauthorized and invalid act of officers of the state, and constitutes local and special legislation in violation of said constitutional provision. (Art. 3, sec. 19, subsec. 19, I. C.; Atkinson v. Board of County Commrs., supra; Gillesby v. Board of County Commrs., 17 Idaho 586, 107 P. 71; State v. National Surety Co., 29 Idaho 670, 161 P. 1026, 2 A. L. R. 251; Ideal Tea Co. v. City of Salem, 77 Ore. 182, 150 P. 852, Ann. Cas. 1917D, 684.)

PORTER, D. J. Holden, C. J., Ailshie, Budge and Givens, JJ., concur.

OPINION

PORTER, D. J.

In July, 1934, the department of public works of the state of Idaho was engaged in constructing a bridge over a canal on the Gooding-Fairfield state highway about three and one-half miles north of Gooding, Idaho. During the night of the 15th of that month, S. H. Walton, driving an automobile along and over said highway, ran into some timbers allegedly left lying across such highway by employees of said department, without lights or other warning signs. Walton was accompanied by his sons, Leo Walton and S. H. Walton, Jr., Opal Walton, the wife of Leo, and Vrenon Walton, the minor child of Leo and Opal Walton. The automobile was damaged and the occupants injured.

In February, 1935, the Waltons presented to the state board of examiners a claim for damages in the sum of $ 3,000, which board rules it had no jurisdiction in the premises. The Waltons then presented a claim for that amount to the 24th (1937) session of the legislature, which enacted as follows:

"BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF IDAHO:

"WHEREAS, During the month of July, 1934, the department of public works of the state of Idaho, acting through its employees, was engaged in constructing a certain bridge over a canal about three and one-half miles north of Gooding, Idaho, on the Gooding-Fairfield state highway, and

"WHEREAS, said employees of said department of public works during the night of July 15, 1934, left a pile of creosoted bridge timbers lying crosswise to the oiled highway at a point where said bridge was being constructed by it, without any barriers, lights, or other warning signs being set out at said point to warn the travelers from the north of the presence of said pile of creosoted timber, and

"WHEREAS, During said night and on or about 1:00 o'clock, A. M., of July 16, 1934, one S. H. Walton, while driving an automobile belonging to his son, S. H. Walton, Jr., along said highway at said point, accompanied by his son, Leo Walton, his son, S. H. Walton, Jr., Opal Walton, the wife of the said Leo Walton, and one Vrenon Walton, the minor child of the said Leo Walton and Opal Walton, without any fault upon the part of the driver or any of the occupants of said car, ran into said pile of creosoted timber, injuring all of the occupants of said car and damaging said car, and

"WHEREAS, the injuries to said persons and the damage to said car were directly due to the neglect of the employees of the department of public works of the State of Idaho in leaving said cresoted timber lying on said oiled state highway without having set up any barriers, lights or other warning of the presence of said timber, and

"WHEREAS, the injuries to the above named five persons, including the damage to said car, so caused by the employees of the department of public works of the State of Idaho, resulted in damages in the total amount of $ 3,000.00, none of which has ever been paid;

"NOW, THEREFORE, BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF IDAHO:

"SECTION 1. There is hereby appropriated from any money in the General Fund, not otherwise appropriated, the sum of $ 3,000.00, for the relief and reimbursement of the said S. H. Walton, S. H. Walton, Jr., Leo Walton, Opal Walton and Vrenon Walton, on account of the matters hereinabove set forth, and the State Auditor is hereby authorized and directed to draw and deliver to the said S. H. Walton a warrant on the State Treasury and against the General Fund, in favor of the said S. H. Walton, S. H. Walton, Jr., Leo Walton and Opal Walton, and the State Treasurer is directed to pay the same on presentation.

"SECTION 2. An emergency existing therefor, this Act shall take effect and be enforced from and after its passage and approval.

"Approved February 5, 1937."

Thereafter a voucher in the form in use by the state of Idaho, requesting payment of the sum so appropriated, was presented to the state board of examiners, which board, upon the advice of the attorney general, again refused to authorize payment of the claim. Following the last refusal, and on March 27, 1937, the state, on the relation of the Waltons, filed a petition for a writ of mandate in the District Court of the Third Judicial District of the State of Idaho, in and for Ada County, against Harry C. Parsons, as auditor of the state of Idaho, praying for an alternative writ of mandate commanding the said state auditor to issue a warrant on the treasury of the state of Idaho for the sum of $ 3,000 in favor of petitioners, and that upon the hearing of the petition a peremptory writ of mandate issue in favor of petitioners and against the state auditor. March 27, 1937, an alternative writ issued and on the same day was served on the auditor. April 16, 1937, the state...