# Graham v. Worthington > Supreme Court of Iowa · November 15, 1966 · 259 Iowa 845 URL: https://www.frixlaw.com/law-library/cases/9740618 ## Case - **Full name:** J. Wesley Graham, Appellant, v. Lorne R. Worthington, Auditor of State, Et Al., Appellees; Iowa State Bar Association, Intervenor-Appellee - **Court:** Supreme Court of Iowa - **Decided:** November 15, 1966 - **Citations:** 259 Iowa 845; 146 N.W.2d 626; 1966 Iowa Sup. LEXIS 886 - **Precedential status:** Published - **Opinion:** Dissent by Snell - **Judges:** Rawlings, Garfield, Moore, Stuart, Mason, Becker, Snell, Larson, Thornton - **Cited by:** 88 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9740618 ## How later opinions describe it (automated extraction) - stating that before the ITCA was adopted, Iowa law “cast upon some unfortunate individuals the full burden of damage done by 30 the tortious conduct of state officers, agents or employees” - holding ITCA does not create new causes of action, but creates acceptance of liability under circumstances that would bring private liability into existence - holding that legislature governs expenditure of state funds ## Opinion text Snell, J. I reluctantly dissent from the conclusion upholding this Act in its entirety. There is no severability provision in the Act that might save the good and permit rejection of the parts that I think go too far. My reluctance stems from the fact that I agree with most of what is said and also appreciate the desirability of a State Tort Claims Act. I am fully aware of the rule that doubts should be resolved in favor of constitutionality but in the case before us there is such a waiver of fiscal responsibility by the legislature that I think the Act contravenes the constitution. A new legislature will meet in a little over two months and an Act free from objectionable features could easily correct the situation. *871 Although it has been a part of our law for nearly 100 years the doctrine of governmental immunity is not of constitutional or legislative origin in-our state. It is of judicial origin. I do not question the right of the legislature to abolish it in whole or in part. The doctrine has little, if any, justification in modern law. It has, however, with the acquiescence of our legislature been the public policy of our state for so long that its overruling should operate prospectively and not retroactively. It should not be accompanied by improper delegation or abdication of legislative responsibility. The Act before us became effective upon publication on March 30, 1965, but operates retroactively to January 1, 1963. This dates the Act back more than two years. When this Act became effective the Sixty-first General Assembly was in session. Until then the recourse available to a claimant was an Act of the legislature. Chapters 60 and 61, Laws of the Sixty-first General Assembly, show that claims were being considered, allowed and appropriations made therefor. Article III, section 31, of our constitution says: “* * * nor, shall any money be paid on any claim, the subject matter of which shall not have been provided for by pre-existing laws * * Claims paid pursuant to chapters 60 and 61, supra, were paid pursuant to pre-existing consideration by the legislature and by a law specifically providing therefor. They were accordingly paid pursuant to a pre-existing law. Under the Act now before us the legislature delegates to a nonlegislative body, i.e., the State Appeal Board, not only a legislative but a judicial function. This delegation of authority applies not only to claims arising in the future but retrospectively to claims arising after January 1, 1963. In my opinion, claims existing when the Act was passed were within the exclusive jurisdiction of the legislature and any delegation of authority to pass thereon and pay was beyond the limits of the constitution. The subject matter of a claim includes both factual and legal questions involved in the particular claim. The delegation to the State Appeal Board of the authority to pass upon and order paid pre-existing claims is not a provision for payment *872 pursuant to pre-existing law. It is rather the delegation of authority to pay according to what the Appeal Board thinks the law should be. That is beyond the power of the legislature. In Division IY the majority opinion in discussing claims says: “This does not constitute a retrospective application of the law. It is but the recognition of existing wrongs for which compensable redress is provided.” I do not agree. Approval of claims such as appear in chapters 60 and 61 are recognitions of existing wrongs for which compensable redress is provided, but the Act under attack delegates to a nonlegislative board the- power to determine what is an existing wrong and provide for redress. Only appellate supervision by the courts is provided over the affirmative acts of the Appeal Board and there is no limitation whatsoever by the legislature, except as to the amount of unappropriated funds in the state treasury. That fact finding and administration can be delegated is not challenged. That appropriations niay be made to cover such matters within the limits of the appropriation is recognized, customary and necessary. A glance at chapters 1 to 66, the appropriation Acts of the Sixty-first General Assembly, shows that except where specific amounts are appropriated to specific items the appropriations are for maximum amounts “or so much thereof as may be necessary.” Thus the money is drawn from the treasury “in consequence of appropriations made by law.” By stating the amounts that may be spent the legislature retains control and establishes limits. A limit is even placed on the appropriation to the general contingency fund. See chapter 65. Surely no one would advocate or defend an unlimited appropriation to the various departments and agencies of our government of whatever amount the members might find proper. I, of course, do not expect the Appeal Board under this Act to spend all the so-called surplus in the treasury or bankrupt the state, but I find no limit in the statute as to what can be spent under this Act. I think the delegation of such unlimited power to a nonlegislative body contravenes the constitution. The Act is not to be judged by what we think will happen but rather by what can happen. *873 In the name of progress this Aet goes too far. I think it should be disapproved. It does'not even have the respectability of a legalizing act because both prospectively and retroactively it goes beyond proper limits. I do not think the fact that the purpose of this law is good and for the most part within proper limits justifies our approval in its entirety. Larson, J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9740618. Public record. Not legal advice.