Thompson v. Hagan

SHEPARD, Chief Justice

(dissenting).

I consider the action of the majority opinion today to be an unwarranted intrusion by the judicial branch of government *27 into the area of policy determination traditionally and historically reserved for the legislative branch of government.

I would note at the outset that I emphatically disagree with the policy which is enunciated in our guest state. However, I must resign myself to the fact that I am not, nor is any other member of the judicial branch of government, authorized and empowered to overturn policy decisions made by the legislative branch of government. Both this court, Keller v. Magic Water Co., 92 Idaho 276 , 441 P.2d 725 (1968), and the United States Supreme Court, McGowan v. Maryland, 366 U.S. 420 , 81 S.Ct. 1101 , 6 L.Ed.2d 393 (1961), have stated that it is not necessary for a court to agree that the legislative enactment is a sound and appropriate public policy but rather the judicial inquiry is more circumscribed. In the matter of our guest statute, there are competing arguments supporting each position. In our Idaho scheme of government the legislature is delegated primary responsibility for determining public policy and in the case of the guest statute it has unequivocally chosen the direction that public policy should proceed. It has reviewed that policy on several occasions and decided it should not be modified. I am of the firm belief that we have not the authority to substitute our “wisdom” for that of the Idaho Legislature.

Insofar as the equal protection clause of the United States Constitution is concerned, the United States Supreme Court in Silver v. Silver, 280 U.S. 117 , 60 S.Ct. 57 , 74 L.Ed. 221 (1929), rejected the equal protection argument proffered therein and upheld the constitutionality of an automobile guest statute. The majority opinion distinguishes Silver solely on the basis that automobile liability insurance is more widely carried today than at the time of Silver. The logic of that distinction escapes me. I would hold that since Silver v. Silver, supra, is the latest statement on the matter by the United States Supreme Court and has not to my knowledge been modified in any substantial respect that our automobile guest statute is not offensive to the United States Constitution.

Such of course does not answer the question as to whether or not the guest statute is offensive to our state constitution. Although not mentioned in the majority opinion, and although the decisions of other courts are merely persuasive, the courts across the country have almost unanimously upheld automobile guest statutes against constitutional attacks. See Vogts v. Guerrette, 142 Colo. 527 , 351 P.2d 851 (1960); Delaney v. Badame, 49 Ill.2d 168 , 274 N.E.2d 351 , (1971); Westover v. Schaffer, 205 Kan. 62 , 468 P.2d 251 (1970), Annot. 111 A.L.R. 1011 (1937). While, as argued by the defendants, it is true that no jurisdiction across the country has enacted an automobile guest statute for thirty-five years, what the majority neglected to tell us, and which is also true, is that states having such automobile guest statutes have been generally unfavorably disposed toward repeal. See The Future of the Automobile Guest Statute, 45 Temple Law Quarterly, 432 (1972).

The majority herein cites only the courts of California and Colorado as having stated that automobile guest statutes are unconstitutional as a denial of equal protection. The illogic of the majority decision herein has obviously been lifted from the decisions of California and Kansas. Those decisions, parroted by the majority herein, set up two straw men, one the collusive lawsuit, and secondly the advancement of hospitality. Then all three opinions effectively destroy the straw men and conclude therefore that an automobile guest statute is so patently unrelated to the attainment of a valid stated objective that it violates either the federal or state constitution relating to equal protection.

I had always believed that in Idaho the only proper inquiry in a case of legislative classification was whether it was reasonably related to a proper legislative purpose *28 or conversely whether it was so unrelated as to be unreasonable or arbitrary. See Keller v. Magic Water Co., 92 Idaho 276 , 441 P.2d 725 (1968); Big Wood Canal Co. v. Chapman, 45 Idaho 380 , 263 P. 45 (1927); Newland v. Child, 73 Idaho 530 , 254 P.2d 1066 (1953); Roos v. Belcher, 79 Idaho 473 , 321 P.2d 210 (1958).

I would suggest that the woods and the law books are full of relatively arbitrary decisions made by either courts or legislatures. In all of them different classifications of persons are denied equal treatment. Examples are endless but a few may suffice. Legislatures enact statutes of limitation. The rationale therefor is that defendants should not be subjected to litigation based on stale claims. The reasons therefor are obvious. Under the reasoning of the majority opinion in this case this court should be enabled to review the rationality of that legislative decision involving the length of time to be utilized in a limitation statute. If for example the period of the limitation is two years, would it not be a denial of equal protection to bar a litigant who attempted to file a claim one day after the expiration of the statutory time ? Under the reasoning of the majority in the present case, that rationale for the statute of barring stale claims can hardly be said to be logical when applied to one person permitting suit, and when applied to another filed 24 hours later to bar a suit.

This court and other courts have drawn distinctions between licensees, business and social invitees upon real property and have imposed upon the owners of those properties varying and different degrees of liability. Legislatures impose taxes on broad classes of persons and exempt from such taxes certain persons such as widows, aged people, etc. Such is certainly a discriminatory and unequal treatment by the law. Whether such discrimination serves a useful social policy is primarily for the legislature. In my judgment these are policy thickets into which the judiciary need not and should not set its foot.

Although perhaps peripheral to the decision in this case, I would point out that there are distinctions between the Idaho and the California statutes involved and between 0the Idaho and California courts’ interpretations of the respective guest statutes. I would also suggest that there are substantial differences between the general law of California and that of Idaho. California has heretofore rejected the validity of a distinction between invitees and licensees as guests upon real property. I would note that in contrast thereto the recent Idaho case of Mooney v. Robinson, 93 Idaho 676 , 471 P.2d 63 (1970) rejected and declined to follow the California view. In spite of the protestations of the majority opinion, I would suggest that to be consistent (albeit it is perhaps the vice of little minds) we should anticipate the abolition of the distinction between licensees and invitees upon real property in Idaho.

I turn now to the opinion of Mr. Justice McFadden to the effect that the Idaho guest statute has been superseded by the enactment of comparative negligence in Idaho.

I think it should be first pointed out that the respondent was at least candid enough with the court to admit that his argument had not been adopted by any other court of any jurisdiction in the United States up to this date. No court has to my knowledge ruled as a matter of law that both a comparative negligence statute and a guest statute cannot exist side by side. Comparative negligence statutes and guest statutes exist together in at least three states, Arkansas, Nebraska and South Dakota. Two states, Massachusetts and Georgia, have by judicial decision established that a diminished standard of care is owed by a driver to his non-paying guests and both of those states have also adopted comparative negligence legislation.

I had always believed that the intention of the legislature in enacting the alleged repealing act was controlling. This court has for years held to the well established *29 principle that if a new law does not expressly repeal a prior law, a repeal by implication is not favored. Golconda Lead Mines v. Neill, 82 Idaho 96 , 350 P.2d 221 (1960); Storseth v. State, 72 Idaho 49 , 236 P.2d 1004 (1951). It has also been said that to overcome the presumption against implied repeal two acts must be so clearly repugnant, so irreconcilable as to their subjects and purposes, that the legislature could not have intended that the two acts have concurrent operation. State v. Davidson, 78 Idaho 553 , 309 P.2d 211 (1957); State ex rel Good v. Boyle, 67 Idaho 512 , 186 P.2d 859 (1947).

I would point out that the comparative negligence legislation S.L. 1971, Ch. 186 (codified as I.C. § 6-801 et seq.) contains nothing that purports to be a general repealer of prior inconsistent legislation. Even the district judge in his memorandum opinion in the case herein noted “that it was the intent of the Idaho legislature not to impliedly repeal the guest statute is observed by reading the wording of the comparative negligence statute wherein both the word and phrase negligence and ‘gross negligence’ are used * * While, as pointed out in the special concurring opinion, the trial of law suits with the existence of both the automobile guest statute and the comparative negligence statute may be difficult and complex, such is rather obviously exactly what the legislature intended. They did not specifically repeal the automobile guest statute when they enacted the comparative negligence statute and the language of the comparative negligence statute demonstrates rather conclusively that they intended the continued vitality of the automobile guest statute. The almost conclusive determination of legislative intent is the fact that in the 1973 session of the Idaho legislature H.B. No. 238 was introduced calling for the repeal of the automobile guest statute, and was decisively defeated. See H.R. Journal, 42nd Legislative Original and First Session 1973, 131 and 195. I would make permanent the alternative writ heretofore issued.