Jack v. State , 183 Okla. 375 ( 1937 )

After considering this cause further on petition for rehearing, I believe the conclusion reached in the majority opinion is correct, but dissent to the reason given for holding that the petition does not state a cause of action.

1. I think the demurrer to the petition was properly sustained on the ground that, by the act authorizing the suit, the state did not waive its immunity from liability for the torts of its officers. The act (ch. 65, art. 18, S. L. 1935) merely waived the immunity of the state from suit. It does not expressly waive the immunity of the state from liability, and to hold that it has that effect must be by construction of the language used. It is well settled that acts of the Legislature authorizing suits against the state are in derogation of the state's sovereignty, and are strictly construed. 59 C. J. 303, 304, 1122; 25 R. C. L. 416; Lewis' Sutherland, Statutory Construction (2d Ed.) sec. 558; 42 A. L. R. 1475. This court is committed to this rule. Hawks v. Walsh (1936) 177 Okla. 564,61 P.2d 1109. Following the rule of strict construction, it is generally hold that an act that merely waives the state's immunity from suit will not be extended beyond the language used, and will not be construed, by implication, to waive immunity from liability. 59 C. J. 304; 42 A. L. R. at 1492. The effect of such a statute is to permit the state to be sued, but subject to all its lawful defenses. This rule likewise has been adopted by this court. Whiteneck v. Board of County Commissioners (1923) 89 Okla. 52, 213 P. 865; Board of County Commissioners v. Hancock (1925) 96 Okla. 238, 221 P. 429.

2. The majority opinion holds that the question as to when a general law cannot be made applicable so as to permit the enactment of a special law under section 59, art. 5, of our Constitution, is a judicial question and not committed exclusively to the Legislature. The majority follows the decision in School District No. 85 v. School District No. 71 (1928) 135 Okla. 270, 276 P. 186.

Section 59, art. 5, of our Constitution is found in substance in the Constitutions of many of the states, and it is generally held that the question as to when a general law can be made applicable is one of fact for the Legislature to find, and its determination will not be inquired into by the courts. It is analogous to the attaching of the emergency clause to a legislative enactment. Oklahoma City v. Shields (1908)22 Okla. 265, 100 P. 559. This was the view entertained by the courts of our neighboring states of Kansas, Missouri, Arkansas, Texas, Colorado, and Nebraska, and other states, having a similar constitutional provision, at the time of the adoption of our Constitution. 12 C. J. 886, not 35. In 1886, Congress passed a law (24 Stat. 170) applying to all territories, which was in substance the same as section 59, art. 5, of our Constitution, and our Territorial Court repeatedly held that the question was committed exclusively to the Legislature Johnson v. Mocabee (1893) 1 Okla. 204, 32 P. 336; Guthrie Daily Leader v. E.D. Cameron (1895) 3 Okla. 677, 41 P. 635; Addington v. Canfield (1901) 11 Okla. 204, 66 P. 355. Furthermore, the Supreme Court of the United States adopted this rule in Guthrie National Bank v. City of Guthrie (1899) 173 U.S. 528. After the adoption of our Constitution, this court in four decisions held that the question is purely a legislative question. Oklahoma City v. Shields, supra; State v. Brown (1909) 24 Okla. 433, 103 P. 762; Chickasha Cotton Oil Co. v. Lamb Tyner (1911) 28 Okla. 275,114 P. 333; Hatfield v. Garnett (1915) 45 Okla. 438, 146 P. 24. See, also, Bishop v. City of Tulsa (1922) 21 Okla. Cr. 457,209 P. 228.

I think this court fell into error in School District No. 85 v. School District No. 71, supra, and that the decision in that case should be overruled. It followed the minority view stated in 6 R. C. L. 418. It referred only to Chickasha Cotton Oil Co. v. Lamb Tyner, supra, and did not mention the other cases above cited. It was there held that the act in question violated section 46, art. 5, and section 20, art. 10, of our Constitution, and it was not necessary to overrule our former decisions and hold that the act violated section 59, art. 5. We must assume that the makers of our Constitution were familiar with the construction that had been placed upon similar provisions in the Constitutions of the other states, and with our territorial decisions and the United States Supreme Court decision construing the territorial law, and intended to adopt such construction. 12 C. J. 717. To now change the rule of construction is to, in effect, amend our Constitution by judicial decision. This we have no right to do. If the question should, in fact, be a judicial one, we can make it so by the adoption of an amendment to our Constitution in the manner authorized as was done in Kansas and Missouri, which fact is referred to in Chickasha Cotton Oil Co. v. Lamb Tyner, supra.

What I have said applies only to special laws enacted pursuant to section 59, art. 5, and not to local or special laws enacted in violation of section 46, art. 5, of our Constitution.

I am authorized to say that Justice DAVISON concurs in this opinion.