Opinion
No. 26882.
June 15, 1937. Rehearing Denied September 28, 1937. Application for Leave to File Second Petition for Rehearing Denied September 27, 1938.
(Syllabus.)
Statutes — States — Act Authorizing Plaintiff to Sue State Held Violative of Constitutional Provision Prohibiting Enactment of Special Law Where General Law Can Be Made Applicable.
By the provisions of article 14, chapter 65, Session Laws 19354, a special legislative act, plaintiff was authorized to institute and maintain an action against the state to determine liability and recover the loss or damage sustained as a result of alleged negligence of the officers, agents, and employees of the State Highway Department in failing to properly Maintain a state highway. Held, that said act contravenes that portion of section 59, article 5, of the Constitution which prohibits the enactment of a special law where a general law can be made applicable, and is unconstitutional and invalid.
Appeal from District Court, Oklahoma County; Ben Arnold, Judge.
Action by Oral Ford against the State. From judgment sustaining demurrer to plaintiff's petition, plaintiff appeals. Affirmed.
A.L. Emery, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for defendant in error.
In this action, instituted in the district court of Oklahoma county, the plaintiff, Oral Ford, seeks to recover from the state of Oklahoma certain damages for personal injuries sustained as a result of certain alleged acts of negligence of the servants, agents, and employees of the State Highway Department. From an order sustaining a demurrer to plaintiff's petition, he has appealed.
Plaintiff relies upon the provisions of article 14, chapter 65, S. L. 1935, a special legislative act, as his authority to institute and maintain this action. He also asserts that the act is effective to waive the non-liability of the state for the negligence of its agents.
It appears that the issues and contentions are the same as those involved in the case of Jack v. State, this day decided, 183 Okla. 375, 82 P.2d 1033 and that our opinion in that case is decisive and controlling of the issues involved herein.
Accordingly, the judgment is affirmed.
BAYLESS, V. C. J., and RILEY, BUSBY, PHELPS, CORN, and HURST, JJ., concur. WELCH and GIBSON, JJ., dissent.
I respectfully dissent from the majority opinion in the above styled cause for the reasons stated in my dissenting opinion filed in the case of Mrs. Iris Jack v. State of Oklahoma, this day decided, 183 Okla. 375, 82 P.2d 1033.