State v. Stone

• Decision Date: 23 July 1968
• Docket Number: No. 2,CA-CIV,2
• Citation: 8 Ariz.App. 118,443 P.2d 933
• Parties: The STATE of Arizona, Appellant, v. Ernest STONE, Individually and as surviving spouse of Hathaway Stone, Deceased; Darrell Stone and Denise Stone, by their guardian ad litem, Ernest Stone, Appellees. 359.
• Court: Arizona Court of Appeals

Page 933

443 P.2d 933

8 Ariz.App. 118

The STATE of Arizona, Appellant, v. Ernest STONE, Individually and as surviving spouse of Hathaway Stone, Deceased; Darrell Stone and Denise Stone, by their guardian ad litem, Ernest Stone, Appellees.

No. 2 CA-CIV 359.

Court of Appeals of Arizona.

July 23, 1968.

As Amended on Denial of Rehearing Sept. 9, 1968.

Gary K. Nelson, Atty. Gen., Darrell F. Smith, former Atty. Gen., J. Mercer Johnson, Sp. Asst. Atty. Gen., Tucson, for appellant.

Rees, Estes & Browning, by William D. Browning, Tucson, for appellees.

MOLLOY, Judge.

Defendant, State of Arizona, appeals from an adverse judgment in a wrongful death action, raising questions both as to whether this suit is maintainable at all and as to the propriety of various rulings made during the trial. We find the failure of the complainant to state a claim to be dispositive.

The State contends there was no jurisdiction in the court to try this claim because there was no presentment of the claim prior to suit. The State relies upon A.R.S. § 12--821 which reads as follows:

'Persons having Claims on contract or For negligence against the state, Which have been disallowed, may on the terms and conditions set forth in this article, bring action thereon against the state and prosecute the action to final judgment.' (Emphasis ours)

Our Supreme Court in State v. Miser, 50 Ariz. 244, 72 P.2d 408 (1937), held that, by reason of this statute, ¹ a suit could not be maintained against the state under a minimum wage law ² until claim had been presented to 'the proper officer' and 'disallowed' by them. (50 Ariz. at 258, 72 P.2d 408.) In Miser, it was indicated that the meeting of such prerequisites would be necessary in order to confer upon the court 'jurisdiction of the subject-matter' of the suit. (50 Ariz. at 258, 72 P.2d 408.) Miser's jurisdictional pronouncements were reiterated by the Arizona Supreme Court in State v. Barnum, 58 Ariz. 221, 118 P.2d 1097 (1941), Hutchins v. Frohmiller, 55 Ariz. 522, 103 P.2d 956 (1940), in State v. Angle, 56 Ariz. 46, 104 P.2d 172 (1940), and in Best v. State, 56 Ariz. 408, 108 P.2d 560 (1940).

In Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P.2d 107 (1963), the governmental immunity doctrine was judicially abrogated in this state. However, the right to bring suit against the state and the liability of the state are two distinct things:

'Immunity from an action is one thing; immunity from liability is another; hence the state does not waive its immunity from liability for the negligence of its agents, servants or employes by a statute conferring jurisdiction only upon the court.' State v. Sharp, 21 Ariz. 424, 428, 189 P. 631, 632 (1920).

Conversely, the abrogation of governmental immunity should have no effect, per se, upon the limitations placed upon the method and manner of bringing suit against the state. See 49 Am.Jur. States, Territories and Dependencies § 99, at 316; and 81 C.J.S. States § 215(c), at 1310.

In this state, the power of the legislature to establish the manner of bringing suit against the state is set forth in the Constitution:

'The Legislature shall direct by law In what manner and in what courts suits may be brought against the State.' (Emphasis ours) Ariz.Const. § 18, Part 2, Article 4, A.R.S.

In view of the Miser, Hutchins, Angle, Best and Barnum decisions, which this court has no prerogative to overrule or modify, McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968), the only question here is whether the legislature intended the subject claims statute to apply to tort claims. The language used by our Supreme Court would seem to indicate that it does.

'It will be observed that the right to sue the state is given those having Claims (emphasis in original) against it on contract or for Negligence (emphasis ours) That have been disallowed (emphasis in original), and while the language of this section merely provides a remedy to enforce a liability existing under general law and does not create a cause of action where none existed before, State v. Sharp, 21 Ariz. 424, 189 P. 631, and State v. Dart, 23 Ariz. 145, 202 P. 237, yet, in prosecuting those that fall within the limitations it prescribes, it is necessary that it be done in accordance with the provisions of the statute dealing with that subject.'

'State v. Miser, 50 Ariz. at 257, 72 P.2d at 413.

California, from whence we derived this claims statute, ³ has consistently applied it to tort claims. See Parker v. Los Angeles County, 62 Cal.App.2d 130, 144 P.2d 70 (1944); and State v. Superior Court, 14 Cal.App.2d 718, 58 P.2d 1322 (1936). In Stone (93 Ariz. at 392, 381 P.2d 107), our Supreme Court indicated that it preferred the approach of California in abrogating governmental immunity, as taken in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961). Muskopf has been held not to affect California's claims presentation requirements. Dias v. Eden Township Hospital District, 57 Cal.2d 502, 20 Cal.Rptr. 630, 370 P.2d 334 (1962). ⁴

In construing statutes, the overriding consideration always is the determination of the true legislative intent. Bushnell v. Superior Court, 102 Ariz. 309, 428 P.2d 987 (1967). An important consideration in construing a statute is that the court give some meaning to all of the language used in the statute, if this is possible. City of Mesa v. Killingsworth, 96 Ariz. 290, 394 P.2d 410 (1964). And, no construction should be given which results in 'absurd consequences.' City of Phoenix v. Superior Court, 101 Ariz. 265, 267, 419 P.2d 49, 51 (1966). The plaintiff here would have us give no meaning to the words 'or for negligence,' which are contained within A.R.S. § 12--821 because the legislature has appropriated no money to pay for claims arising in negligence, and it would therefore be absurd to require the presentation of such claims to officials who have no authority whatsoever to approve of them.

Among the recognized purposes of a claims statute such as this is to permit the state to investigate the circumstances of claims against it, see 81 C.J.S. States § 207(2), at 1276; and Olender v. State, 194 Misc. 583, 87 N.Y.S.2d 578 (1949), and '* * * to establish an orderly procedure by which the legislature will be advised of claims in instances where no provision has been made for payment.' 45 Cal.Jur.2d State of California § 163, at 517--518. Purposes such as these are as well served by the investigation and planning for tort claims as in the case of those arising in contract or by statute.

That there is need for early investigation of negligence claims is demonstrated by practices in the insurance industry. We see no reason why the state would not also benefit from a prompt investigation. Nor is it beyond possibility that the state, in giving management to its fiscal affairs, might determine to secure liability insurance for negligence claims, if the number and amount of such claims renders such action advisable.

The necessary for fiscal planning is particularly pertinent in this state, which has limited itself by constitutional mandate to a total indebtedness of $350,000. Ariz.Const. art. 9, § 5. Taxes must be levied upon property currently to defray the expenses of each fiscal year. Ariz.Const. art. 9, § 3. It seems as desirable to apportion on a current basis obligations incurred in tort as in the case of obligations incurred in contract.

The only existing statute pertaining to the method of presenting a claim for allowance or disallowance uses broad language, but the plaintiff argues that it is obviously directed at claims arising in contract:

'A. All claims against the state for obligations Authorized, required or permitted to be incurred by any state officer or agency, shall be paid only in the following manner:

'The claimant shall present an itemized claim, executed by him under penalties of perjury and approved by the head official of each office or state agency under which the obligation was incurred, or by some other person thereof, if expressly authorized to approve the claim. Such claim shall be so presented within one year after the claim accrues, and not afterward. The claim shall then be presented to the state auditor and, if approved, the auditor shall draw his warrant therefor on the state treasurer, who shall pay it when countersigned by the governor but only from the appropriation made therefor.

'F. All claims executed as provided by the provisions of this section shall contain the following statement over the signature of the claimant:

"I declare under penalties of perjury that this claim has been examined by me and to the best of my knowledge and belief is a true, correct and valid claim." (Emphasis ours)

A.R.S. § 35--181.01, subsecs. A and F.

Prior to the 1956 revision of our code, there existed on our statute books, a claim statute which appeared to be equally all-inclusive insofar as 'claims' are concerned. It contained no language more applicable to contract than to tort claims:

'Persons having Claims against the state shall exhibit the same, sworn to, with the evidence in support thereof to the auditor, to be audited, settled and allowed, within one (1) year after such claim shall accrue, and not afterwards; and no claim shall be audited or allowed the items of which are not specifically set out.' (Emphasis ours) Arizona Code Annotated 1939, § 4--304.

This statute has never been specifically repealed. In the 'Reviser's Note' in the 1956 Code, after § 35--181, it is indicated that the reviser believes that § 4--304 of the 1939 Code had been 'superseded' by the adoption of Ch. 86 of the Laws of 1943, which is the origin of codified § 35--181. A.R.S. § 35--181 contains language, pertinent to the problem at hand, very similar to § 35--181.01, quoted supra. If § 4--304 of the 1939 Code was intended to apply to tort claims, and § 38--181 of the 1956 Code was not, then the assumption of the codifiers, and...