holding unconstitutional payment of tort judgment out of “city street fund” constitutionally dedicated to highway purposes
How later courts described this case
- holding unconstitutional payment of tort judgment out of “city street fund” constitutionally dedicated to highway purposes
- examining whether motor vehicle fund moneys may be used to satisfy a tort judgment arising from negligent operation of a movable span bridge
- “[W]e think it was the intention of the people to limit expenditures from the motor vehicle fund to those things which would directly or indirectly benefit the highway system. Clearly, the payment of a tort judgment does not fall within this category.”
- payment of tort judgment against city for negligent operation of bridge was not highway purpose justifying expenditure of gasoline excise tax funds
Written by the judges who cited it.
The opinion
Foster, J.
(dissenting)—I dissent.
Until today, it has been undetermined whether payment for damages resulting from negligent operation of a highway *172 constitutes an operating expense under the constitution and statutes, and payable from the motor vehicle fund.
Although under the prevailing doctrine of sovereign immunity the state is not liable for torts, for many years the state has insured its vehicles and highway equipment. An Associated Press dispatch of October 2, 1959, reported that the annual premium on casualty insurance covering state vehicles for the calendar year ending October 1, 1959, was $239,000, and that a reduction of $40,000 in the premium for the ensuing year had been obtained. For many years highway department officials have inquired if the state could legally insure against such liability, and the opinions of succeeding attorneys general have been in the affirmative. Attorney General Hamilton advised:
“The supreme court of the state in several cases has held that the state is not liable for the negligence of its employees and officers. While this is the law, and is as it should be, that is no reason why the state should purchase automobiles to be used for its employees and send them over the highways in the state to administer and care for the state business without some insurance for liability as well as property damage in case of injury to persons on the highways, whether by reckless driving or otherwise.
“In our opinion, the state should carry liability as well as property damage insurance on all these state cars to protect the innocent public against injury by careless employees and pay the premiums for such insurance.” (Italics mine.) 1935-36 Opinions of the Attorney General 68.
This was but a reiteration of the view of Attorney General Dunbar (1931-1932 Opinions of the Attorney General 139, 140), who labeled as “a rather technical view of the situation” the argument that the use of funds for such purpose would amount to a gratuity, and concluded that such use was proper. Attorney General Hamilton agreed (1939-1940 Opinions of the Attorney General 190).
These views have been followed ever since. Liability insurance on state equipment is for public protection. The highway department has properly paid such premiums from the motor vehicle fund as an operating expense. I perceive *173 no difference between payment of liability insurance premiums and direct payment of damage. Both protect the public.
Furthermore, this court in State ex rel. King County v. Murrow, 199 Wash. 685 , 93 P. (2d) 304 , defined the word “maintenance” quite broadly to include all acts appropriate to operating an efficient highway system.
Attorney General O’Connell advised (1958 Opinions of the Attorney General, No. 221) that certain expenditures of the state patrol could properly be paid from the motor vehicle fund, and stated that the enumeration of specific purposes in amendment 18 of the Washington constitution has been construed as not limiting the scope of the term “highway purposes,” but rather as enlarging and extending it. He cited State ex rel. Bugge v. Martin, 38 Wn. (2d) 834, 232 P. (2d) 833 . Attorney General O’Connell concluded:
“In the enactment of the constitutional amendment in question, we believe that the people considered it important not only to construct and maintain highways but to provide that they be policed in the interest of their safe use. ...” (Italics mine.)
Such is the purpose both of payment of premiums and of payment for damages sustained.
In my view, then, the judgment should be paid from the motor vehicle fund. I would reverse the judgment.
Finley and Hunter, JJ., concur with Foster, J.