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Attorney(S)
  • J. Berry King, Atty. Gen., and Jesse L. Ballard, Asst. Atty. Gen., for plaintiff in error. Meacham, Meacham Meacham, for defendant in error.
Judges
  • OSBORN, J.
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Docket Number
Attorney(S)
  • J. Berry King, Atty. Gen., and Jesse L. Ballard, Asst. Atty. Gen., for plaintiff in error. Meacham, Meacham Meacham, for defendant in error.
Judges
  • OSBORN, J.
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Smart Summary

State v. Fletcher, No. 23756 (Supreme Court of Oklahoma, July 10, 1934)

Factual and Procedural Background

J.S. Fletcher brought an action in the District Court of Custer County against the State of Oklahoma to recover damages resulting from sewage drainage from the Western Oklahoma Tubercular Sanatorium through premises Fletcher used as a dairy. The sanatorium had been constructed about 1921 approximately one mile south of Clinton, Oklahoma. Fletcher's dairy was immediately adjacent to the sanatorium on the east. In August 1925 the State Dairy Commissioner ordered Fletcher to close his dairy and to sell no more milk from his cows; the evidence showed a risk of transmission of tuberculosis to and from the cows due to access to waters of the Washita River below the sanatorium's sewage outlet. The Dairy Commissioner condemned the cows.

The Thirteenth Legislature enacted House Joint Resolution No. 20 (art. 2, chap. 65, S. L. 1931), specifically authorizing J.S. Fletcher to bring suit against the state to determine liability and any loss sustained by reason of the sanatorium's location and construction; the resolution became effective April 8, 1931. Fletcher commenced this action May 2, 1931. The case was tried to a jury, which returned a verdict for plaintiff in the amount of $2,730. Judgment was entered for plaintiff, and the State appealed. On appeal the Supreme Court of Oklahoma affirmed the trial court's judgment.

Legal Issues Presented

  1. Whether an action by an individual against the State for consequential damages to private property under section 24, article 2, of the Oklahoma Constitution is barred by the two-year statute of limitations (subdivision 3, section 101, O. S. 1931) when, after the statutory period expired, the Legislature enacted a special resolution granting permission to sue the State (House Joint Resolution No. 20, S.L. 1931).
  2. Whether the special legislative enactment authorizing the individual to sue the State (House Joint Resolution No. 20) violates constitutional provisions prohibiting special or local laws and revival of barred rights — specifically, section 51, article 5; section 59, article 5; section 52, article 5; and subdivision (z) of section 46, article 5 — or otherwise impermissibly grants a special privilege or revives a barred remedy.
  3. Whether section 24, article 2, of the Constitution (private property shall not be taken or damaged for public use without just compensation) is self-executing so that consent of the State to be sued is unnecessary, with the statute of limitations running from the date the damage accrued.

Arguments of the Parties

Appellant (State of Oklahoma) — Contentions

  • The State contended the action is barred by the two-year statute of limitations (subdivision 3, section 185, C. O. S. 1921 / sec. 101, O. S. 1931), because section 24, art. 2, of the Constitution is self-executing and required no specific consent of the State to be sued; therefore plaintiff had the right to bring the action within two years of the damage and having failed to do so, is barred.
  • The State contended House Joint Resolution No. 20 is unconstitutional as a special enactment in violation of: section 51, art. 5 (no legislative grant of exclusive rights, privileges, or immunities); section 59, art. 5 (laws of a general nature shall have uniform operation; no special law where a general law can apply); section 52, art. 5 (no power to revive any right or remedy barred by lapse of time); and subdivision (z) of section 46, art. 5 (Legislature shall not pass local or special laws authorizing limitation of civil or criminal actions).

Defendant in Error (J.S. Fletcher) — Contentions

  • Fletcher (through the special legislative enactment) contended the Legislature, by House Joint Resolution No. 20, waived the State's statute-of-limitations defense and authorized him to sue the State despite the expiration of the statutory period.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842 Cited by the State to support the contention that section 24, article 2, of the Constitution is self-executing and no specific consent of the State to be sued is necessary, so the statute of limitations runs from the date the damage accrued. The court noted the case was cited by the State but found a substantial distinction in the present case: there was no provision in the Constitution or statute for service of process upon the State in such an action, making legislation necessary to provide an effective remedy; thus Chick Springs was not dispositive here.
State Highway Commission v. Smith, 146 Okla. 243, 293 P. 1002 Cited by the State in support of the self-executing theory of section 24, article 2. The court acknowledged the case but, for the same reason stated regarding Chick Springs, found a material distinction because of the absence of provision for service of process in the Constitution or statute in the present circumstances.
Ouzts v. State Highway Department (S.C.), 159 S.E. 457 Cited in the opinion's discussion of legislative intent and the presumption that the Legislature would not act in a manner that nullifies its own grant (i.e., consent to be sued while preserving a defense that would defeat the action). The court relied on the authority for the proposition that the Legislature, being the author of both the statute of limitations and the consent, is presumed not to intend to enact a futile law; this supported the court's conclusion that the Legislature waived the statute-of-limitations defense by enacting the special resolution.
Sirrine v. State (S.C.), 128 S.E. 172 Cited similarly to Ouzts regarding legislative intent not to enact a self-destructive measure. The court cited the case to support the presumption that the Legislature acted intentionally in authorizing the suit and did not intend simultaneously to preserve an absolute defense (the statute of limitations) that would nullify the authorization.
People v. King (Cal.), 191 P. 1004 Cited for the proposition that when the State becomes a party in the courts it is bound by the same rules of procedure or practice as apply to private litigants. The court cited this authority in support of the principle that the State is subject to ordinary procedural rules once it is a party, reinforcing the view that the Legislature's authorization to sue was an effective waiver of procedural defenses that would otherwise defeat the action.

Court's Reasoning and Analysis

The court began by reviewing the factual circumstances: the sanatorium's construction (circa 1921), the proximity of Fletcher's dairy, the cows' access to river water downstream from the sanatorium's sewage outlet, and the Dairy Commissioner's condemnation of the cows in August 1925 based on the danger of tuberculosis transmission.

The court examined the effect of House Joint Resolution No. 20 (1931), which explicitly authorized Fletcher to sue the State to determine liability and loss resulting from the sanatorium's location and construction and designated the Governor as the person upon whom process could be served. The resolution carried an emergency clause and became effective April 8, 1931; Fletcher filed suit May 2, 1931.

Addressing the State's statute-of-limitations defense and its argument that section 24, article 2, of the Constitution is self-executing (so that the two-year limitation began to run when the damages accrued), the court observed a key distinction: neither the Constitution nor statute provided a manner for service of process against the State in such actions. Because of that absence, legislation was necessary to afford Fletcher an effective remedy to enforce the constitutional guarantee. Therefore, the court concluded the Legislature, by enacting House Joint Resolution No. 20, waived the State's statute-of-limitations defense for this claim. The court supported this conclusion with the presumption that the Legislature, which enacted both the statute of limitations and the later authorization, would not intend a self-defeating enactment that consented to suit while preserving an absolute defense that nullified the consent. The court cited Ouzts and Sirrine to support that presumption and cited People v. King for the principle that the State, as party, is bound by ordinary procedural rules.

On the constitutional challenge to the special enactment, the court considered the cited provisions (section 51, art. 5; section 59, art. 5; section 52, art. 5; and subdivision (z) of section 46, art. 5) together with section 24, art. 2. The court reasoned that those prohibitions were intended to protect individual citizens against encroachments by sovereign power (preserving equality, uniform operation of laws, and protection of vested rights), and that the special resolution was a necessary step to make effective the constitutional guarantee that private property not be taken or damaged for public use without just compensation. Because the constitutional inhibitions cited were enacted to protect individual rights rather than to preserve sovereign immunity, the court concluded the special legislative authorization did not violate those constitutional provisions. The court found the authorities relied upon by the State inapplicable because they dealt with controversies affecting rights of individual citizens in different contexts.

The court noted other contentions of law and fact were presented but deemed them without merit.

Holding and Implications

JUDGMENT AFFIRMED.

Direct effect: The trial court's judgment in favor of J.S. Fletcher for $2,730 was affirmed, and the Legislature's special enactment (House Joint Resolution No. 20) was held to have authorized Fletcher to sue the State despite the expiration of the ordinary statute-of-limitations period. The court further held that the special enactment did not violate the cited provisions of the Oklahoma Constitution because it was enacted to make effective the constitutional guarantee against uncompensated taking or damaging of private property.

Broader implications: The opinion resolves the parties' rights in this case by upholding legislative authorization to sue the State under the circumstances presented; the court did not announce any broader rule beyond the application of these principles to the facts before it.

Opinion by: Osborn, J. (Riley, C.J., and Swindall, McNeill, Busby, and Welch, JJ., concurring; Cullison, V.C.J., and Andrews and Bayless, JJ., absent.)

Counsel of Record: J. Berry King, Attorney General, and Jesse L. Ballard, Assistant Attorney General, for plaintiff in error; Meacham, Meacham & Meacham for defendant in error.

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STATE v. FLETCHER

(Syllabus.)

1. States — Limitation of Actions — Action Against State for Damages to Private Property not Barred by Statute Where Legislature After Expiration of Period of Limitation Granted Permission to Sue State.

A cause of action accruing to an individual against the state under the provisions of section 24, article 2, of the Constitution for consequential damages to private property by reason of the construction of a public improvement, is not barred by the statute of limitation provided by subdivision 3, section 101, O. S. 1931, where, after the statutory period of limitation has expired, the Legislature, by specific enactment, grants to said individual permission to sue the state.

2. Same — Special Enactment Authorizing Suit Against State Held not Violative of Constitutional Provisions.

A special legislative enactment which grants permission to an individual to sue the state for damages to property resulting from the construction of a public improvement does not violate the provisions of section 51, art. 5, or section 59, article 5, or section 52, article 5, or subdivision (z) of section 46, art. 5, of the Constitution, since these provisions were not enacted for the benefit of the sovereign state, but for the benefit of individual citizens of the state.

OSBORN, J.

This action was commenced in the district court of Cluster county by J.S. Fletcher against the state of Oklahoma to recover damages caused by the drainage of sewage from the Western Oklahoma Tubercular Sanatorium through the premises used by plaintiff as a dairy, which resulted in damages to his cows, and necessitated the abandonment of the dairy business. The cause was tried to a jury and a verdict rendered for plaintiff for $2,730. From a judgment thereon, defendant appeals.

The sanatorium was constructed about one mile south of Clinton, in Custer county, during the year 1921. At that time plaintiff occupied the premises immediately adjacent to the sanatorium on the east, where he conducted his dairy business. In August, 1925, he was ordered by the State Dairy Commissioner to close up his dairy and to sell no more milk from his cows. The evidence was to the effect that tuberculosis germs are transmittable from a human to a cow, and from a cow to a human, and that the cattle had access to the waters of the Washita river immediately below the point where the sewage from the sanatorium emptied into the river. It is evident that there was grave danger of infection to the cows of the tuberculosis germs, under the evidence shown in this case. It also appears that the Dairy Commissioner was amply justified in condemning plaintiffs' cows.

The Thirteenth Legislature enacted House Joint Resolution No. 20, art. 2, chap. 65, S. L. 1931, which is as follows:

"Whereas, J.S. Fletcher of Clinton, Okla., claims to have sustained damages in the amount of $5,000 by reason of the destruction of his property on account of the location and construction of the Western Tuberculosis Hospital near Clinton, Okla.; and

"Whereas, it is claimed that the said J.S. Fletcher was engaged in the dairy business, and on account of the location of the Tuberculosis Hospital the State Dairy Department of the state of Oklahoma ordered the dairy, which was owned and operated by the said J.S. Fletcher, to be closed; and

Whereas, no settlement has been made with J.S. Fletcher for the alleged damages:

"Now, therefore, be it resolved by the House of Representatives and Senate of the State of Oklahoma:

"Section 1. That J.S. Fletcher of Clinton, Oklahoma, be,. and he is hereby authorized to bring suit against the state of Oklahoma to determine liability and any loss which he sustained, if any, by reason of the destruction of his property on account of the location and construction of the Western Tuberculosis Hospital near Clinton, Oklahoma.

"Section 2. Said J.S. Fletcher is hereby authorized to bring suit in a court of competent jurisdiction and prosecute the same to final conclusion. The Governor of the state of Oklahoma is hereby designated as the person upon whom process of the court may be served."

To the above act was attached the emergency clause, and the same became effective April 8, 1931. This action was commenced on May 2, 1931.

It is contended by the state, first, that plaintiff's action is barred by the statute of limitation of two years provided in subdivision 3, section 185, C. O. S. 1921 (sec. 101, O. S. 1931). It is conceded that if this is one of that class of suits in which the consent of the state to be sued is necessary before an action is filed, the statute of limitations begins to run from the date consent is given, but the state contends that section 24, art. 2, of the Constitution, which provides that private property shall not be taken or damaged for public use without compensation, is self-executing, that no specific consent of the state is necessary, and that plaintiff had a right to bring this action at any time within two years from the date the damage accrued, and having failed to do so, is now barred by the statute of limitation. To support such contention we are cited to the case of Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842. We also take note of State Highway Commission v. Smith, 146 Okla. 243, 293 P. 1002. There is this substantial distinction, however, in this case, that no provision is made either by the Constitution or statute which provides any manner in which service of process might be had in such action against the state. It is therefore apparent that some legislation was needed to give plaintiff an effective remedy through which he might enforce the rights guaranteed by the above provision of the Constitution.

Defendant in error contends that in the enactment of House Resolution No. 20, supra, the statute of limitations in behalf of the state was waived. We agree with the contention. The Legislature is the author of both acts. It is presumed that the Legislature knew the law and took the position that under the law the state could not be sued by this plaintiff without the state's consent, and also knew that the period of time provided by the statute of limitation had expired, and if such defense was set up, it would defeat the action. It is also presumed that the Legislature did not intend to do a foolish and futile thing, consent to be sued and at the same time reserve the right to set up an absolute and certain defense, which would make the act self-destructive. Ouzts v. State Highway Department (S.C.) 159 S.E. 457; Sirrine v. State (S.C.) 128 S.E. 172. The state, when it becomes a party in the courts, is bound by the same rules of procedure or practice as apply to private litigants. People v. King (Cal.) 191 P. 1004.

It is next contended by the state that House Resolution No. 20, supra, is unconstitutional, being violative of the following sections of the Constitution: Section 51, art. .5, which provides that the Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this state; section 59, art. 5, which provides that laws of a general nature shall have a uniform operation throughout the state, and where a general law can be made applicable, no special law shall be enacted; section 52, art. 5, which provides that the Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state; section 46, art. 5, which provides that the Legislature shall not "* * * pass any local or special law authorizing: * * * (z) for limitation of civil or criminal actions."

We do not deem it necessary to discuss the above constitutional provisions separately. It is necessary, however, to consider them in connection with section 24, article 2, of the Constitution, which is entitled to as much consideration as the other provisions, and provides that private property shall not be taken or damaged for public use without just compensation. We find no difficulty in construing all of the provisions together when it is borne in mind that the purpose of the enactment of the above provisions of the Constitution was to preserve, protect, and defend the rights of citizens against possible encroachments by the exercise of sovereign power vested in the state. The inhibition against special privileges and immunities was intended to preserve equality between citizens, the inhibition against enactment of special laws guarantees the equal operation of the law as to all citizens, the inhibition against reviving a remedy barred by existing laws preserves to the citizenship one of its vested rights which can be waived by a citizen or by the state. As we have pointed out, in the enactment of House Resolution No. 20, supra, the Legislature is but taking a necessary step to make effective the constitutional guaranty that the property of a citizen shall not be taken or damaged for public use without just compensation. The inhibitions suggested by defendant herein are not applicable, since they were not enacted to preserve the sovereign, but to protect the individual rights of the subjects of the sovereign. The authorities relied upon by the parties are not applicable here, since they deal with controversies which affect the rights of individual citizens. Other contentions of law and fact are presented, but are without merit.

The judgment of the trial court is affirmed.

RILEY, C. J., and SWINDALL, McNEILL, BUSBY, and WELCH, JJ., concur. CULLISON, V. C. J., and ANDREWS and BAYLESS, JJ., absent.

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STATE v. FLETCHER
(Jul 10, 1934)