Rector v. State , 1972 Okla. LEXIS 315 ( 1972 )

BARNES, Justice:

Plaintiff alleged in her petition that she fell on the steps of the Jim Thorpe Office Building on debris and concrete sluffings from the foremost edge of said steps; that her fall was occasioned by defendants’ negligence; and that she brought this action for the damages she sustained in said fall under the authority of Senate Joint Resolution No. 20 of the First Session of the Thirty-second Oklahoma Legislature (S.L. 1969, pp. 617 and 618). This Resolution purported to waive the State’s immunity from suit for plaintiff’s “alleged wrongful injuries,” specifically naming her, but containing no such purported waiver of such immunity as to anyone else.

Defendants’ demurrer to plaintiff’s petition was sustained by the trial court for the reason that Joint Resolution No. 20 was in contravention of the Oklahoma Constitution.

Plaintiff appealed to this Court pursuant to Rule 14 upon the following stipulated questions of law:

“(1) Can the Oklahoma Legislature expressly waive the immunity against suit brought by an employee of the State of Oklahoma by passing a Special Act authorizing an employee of the State to bring suit against the State for damages resulting from injuries received while in the employ of the State?

“(2) Should the Supreme Court at this time overturn the ancient 'the King can do no wrong’ theory of governmental immunity ?”

The leading; case involving the first question raised here is Jack v. State, 183 Okl. 375, 82 P.2d 1033 (1938), wherein the court stated:

“By the provisions of article 18, chapter 65, Session Laws 1935, a special legislative act, plaintiff was authorized to institute and maintain an action against the state to determine liability and recover the loss or damage sustained as a result of alleged negligence of the officers, agents, and employees of the state highway department in failing to properly maintain a state highway. Held, that said act contravenes that portion of section 59, article 5 of the Constitution, Okl.St.Ann.Const. art. 5, § 59, which prohibits the enactment of a special law where a general law can be made applicable, and is unconstitutional and invalid.”

The Jack case, supra, was followed in Ford v. State, 183 Okl. 386, 82 P.2d 1045 (1938), and Graham v. State, 183 Okl. 574, 83 P.2d 815. The Jack case was distinguished in State ex rel. Oklahoma State Highway Commission v. Horn, 187 Okl. 605, 105 P.2d 234 (1940) (damage of private property for public use), and in State v. Ward, 189 Okl. 532, 118 P.2d 216 (1941) (pre-existing obligation). We find that decision to be controlling, and specifically find that the aforesaid resolution was unconstitutional for the reason that it violated Article V, Section 59, of the Oklahoma Constitution, which provides:

“Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.”

The second question was adequately covered in the case of Newman v. State ex rel. Board of Regents, 490 P.2d 1079 (1971). There, as here, argument was presented that the doctrine of State sovereign immunity from tort liability should be abolished and that the Legislature accomplished this, insofar as it extends to such liability for the acts of its employees, by Senate Joint Resolution No. 28 (S.L.1953, p. 508). This Court’s majority opinion rejected both contentions despite emphatic dissenting opinions by two of the Justices.

In accord with the foregoing, the ruling and judgment of the trial court is hereby affirmed.

BERRY, C. J., DAVISON, V. C. J., and WILLIAMS, JACKSON, IRWIN and LAVENDER, JJ., concur. HODGES and McINERNEY, JJ., concur in part and dissent in part.