Smith v. State

McFADDEN, Chief Justice,

dissenting on denial of petition for rehearing.

A petition for rehearing has been presented in this case. The majority of the court has withdrawn the opinion previously issued and to which I filed my dissent, with which Shepard, J., concurs. I adhere to the views expressed in that dissent and file this further dissent to the opinion of the majority as modified on denial of the petition for rehearing.

The majority opinion states:

“ * * * we hereby hold that the doctrine of sovereign immunity is no longer a valid defense in actions based upon tortious acts of the state or any of its departments, political subdivisions, counties or cities, where the governmental unit has acted in a proprietary as distinguished from a governmental capacity. * * * The construction and maintenance of highways is a proprietary function and has been held so by this Court: [citations omitted.].”

In support of that statement, the majority relies upon the following cases: Eaton v. City of Weiser, 12 Idaho 544 , 86 P. 541 (1906) ; Carson v. City of Genesee, 9 Idaho 244 , 74 P. 862 (1903); Strickfaden v. Greencreek Highway Dist., 42 Idaho 738 , 248 P. 456 (1926) ; Lively v. City of Blackfoot, 91 Idaho 80 , 416 P.2d 27 (1966). It is recognized that cities and highway districts in the construction and maintenance of highways do act in a proprietary capacity. However, it does not follow that the sovereign state in construction and maintenance of highways acts in such capacity.

In Ada County v. Wright, 60 Idaho 394 , 92 P.2d 134 (1939), this court stated:

“Moreover the building and maintenance of the roads and highways by the state is one of the sovereign duties of government : * * *

Before passing to the next specification, we again observe that there is a vast difference between the legal status of state highways on the one hand, and county and district highways, and streets and alleys of cities and villages. The necessity for roads lies at the foundations *814 of civil government. (29 C.J., p. 364, note 8(d).) In a representative government the people exercise the elective franchise and they must reach the voting places; they must reach the seat of county government to discharge their duties as jurors and taxpayers, and transact county business; and they must have their mail and reach their markets for purposes of purchase and sale; they must also have roads over which they may travel to the seat of state government. All the major activities of daily life require thoroughfares for travel, and they are likewise necessary for use by peace officers in maintaining the public peace and private safety of the citizens. The United States government recognizes this public governmental duty in declaring certain roads as post roads and military highways for the movement of mails and troops and the dissemination of public intelligence. [citations omitted.] [ 60 Idaho at 406-407 , 92 P.2d at 139-140 .] * ❖ * * * *

“ * * * that building and acquiring roads and highways is of a highly public and governmental nature when conducted by the state in its sovereign capacity * * *.” 60 Idaho at 409 , 92 P.2d at 141 .

In Nordby v. Department of Public Works, 60 Idaho 475 , 92 P.2d 789 (1939), the plaintiff sought damages against the department of public works for loss of cured and growing grass caused by fire which originated from a right of way of the department of public works on Lewiston Hill. This court upheld a demurrer to the complaint, stating:

“The record presents the question: Is the state liable in damages for alleged negligent acts of its officers and employees performed while in the discharge of a mandatory, governmental duty? [emphasis supplied.]

“It is settled law in this state, in the absence of an express statute (as in Idaho) to that effect, the State is not liable for damages for negligent acts of its officers and employees performed in the discharge of a mandatory governmental duty, (citations).” 60 Idaho at 478, 92 P.2d at 790.

In Villages of Eden & Hazleton v. Idaho Bd. of Highway Directors, 83 Idaho 554 , 367 P.2d 294 (1961), this court stated

“In 40 C.J.S. Highways § 177, p. 25, is. enunciated the rule, well supported by authority, that the construction, maintenance, and repair of public highways is a governmental function which belongs primarily to, and may be exercised by, the state and the state legislature, and that the duty of performance of such work may be conferred or imposed upon a designated officer, body, or agency, such as a state highway department, commission, commissioner, or director, or a state department of public works.” 83 Idaho-at 564, 367 P.2d at 300 .

The majority opinion in holding that construction and maintenance of a highway is a “proprietary function” is ignoring the sovereign capacity of the state, and overlooks the distinction between the role of the city, or highway district, as compared to the role of the state in relationship to-the state highways.

Again I repeat that the judgments of dismissal should be affirmed.

SHEPARD, J., concurs.