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District Court of Appeal, First District, Division 2, California.


Civ. 13085.

Decided: April 22, 1946

Robert W. Kenny, Atty. Gen. and Harold B. Haas, Deputy Atty. Gen., for petitioner. Emmett R. Burns, of San Francisco, for C. V. Pierpont.

On May 20, 1945, plaintiff C. V. Pierpont filed an action in the Superior Court of San Francisco for personal injuries against Southern Pacific Company, State Belt Railroad, State of California (petitioner herein), General American Transportation Corporation and certain fictitious defendants. The amended complaint alleged that on May 25, 1944, the State of California was operating the State Belt Railroad in a proprietary capacity; defendant Southern Pacific Company delivered a certain tank car owned by defendant General American Transportation Company to defendant State for delivery to a spur track, in the scope of his employment plaintiff was required to climb a ladder on the side of the car to a platform which the defendants had negligently allowed to be in a dangerous and defective condition. As a result the equipment tipped, throwing plaintiff to the ground and causing injury. It is not alleged that the plaintiff was an employee of any one of the defendants real or fictitious; hence the suit does not involve the relation of master and servant or the question of compensation for injuries occurring during the course of employment. The complaint further alleged that the Board of Control of the State of California had rejected plaintiff's verified claim of damages prior to the institution of the suit.

On December 7, 1945, the defendant State of California filed a demurrer to the amended complaint, one of the grounds being that the court had no jurisdiction of the person of defendant or of the subject of the action as to defendant State. The demurrer was overruled with leave to answer.

The State of California now petitions this court for a writ of prohibition requiring the Superior Court to desist from further proceedings as to petitioner. The petition states that the respondent court will enter a default against the State unless it answers, and that if it files an answer the court will proceed to trial in excess of its jurisdiction. Such procedure by respondent would subject the petitioner to other actions without its consent (some of which are now pending) and would consume its funds and the time of its employees.

Petitioner emphasizes that the action was not brought against any officer or employee of the State as provided in Government Code, sections 2000–2002 but against the State itself. It is petitioner's contention (1) that the State has not consented to be sued in an action for an alleged tort of an officer or employee in the operation of any properties under the control of the Board of State Harbor Commissioners, except such as might occur in the course of operations of motor vehicles, Vehicle Code, sec. 400; and (2) that the only statute referring generally to actions against the State for negligence, Government Code, sec. 16041, formerly Political Code sec. 688, does not authorize suits for injuries arising out of torts of all its officers, that the doctrine of nonliability of the State applies to the operation of the equipment of the State Belt Railroad. Hence it is argued that any trial on the complaint and answer herein and any further proceedings taken by the trial court would be in excess of respondent's jurisdiction.

Plaintiff in the tort action argues in behalf of the respondent court that when the State acts in a proprietary capacity it voluntarily waives its sovereign character and hence should be held liable for the negligence of its employees. It is said that the case is one of first impression in California but that Ch. 45, p. 57 of the Statutes of 1893 (now Government Code, sec. 16041), although not giving a right of action, provides a remedy where none existed prior thereto. Finally it is argued that the writ should not be granted because petitioner's remedy by appeal is a plain, speedy and adequate remedy at law.

It is a fundamental principle that the State may not be sued without its consent (Const. Art. XX, sec. 6; State v. Royal Consolidated Min. Co., 187 Cal. 343, 202 P. 133; Estate of Bloom, 213 Cal. 575, 2 P.2d 753) and that the consent of the State is not given in a statute expressed in general words. Mayrhofer v. Board of Education, 89 Cal. 110, 26 P. 646, 23 Am.St.Rep. 451. In the Mayrhofer case the court said:

‘The government was created and shaped by the constitution. It is not an end in itself, but a mere instrumentality for public service. Its powers and functions exist only for the people. One of its functions is to enact laws for the government of the inhabitants within its limits, thereby affording them protection and advancing their general welfare. The property it holds is simply to enable it to perform the service required of it. It is as much devoted to public use as are the streets and highways, though in a different way, and it is generally held by a different tenure.

‘* * * One cannot sue the state, unless expressly authorized by statute, and this principle is embodied in our constitution. General statutes creating new remedies for individuals have never been held to authorize such suits.’

The right to sue the State was first recognized in the Statutes of 1893, Ch. 45, pg. 57, wherein it was stated: ‘All persons who have, or shall hereafter have, claims on contract or for negligence against the State * * * are hereby authorized, * * * to bring suit thereon against the State * * *.’ (Emphasis added.) That statute has been amended and revised in certain particulars but its language is essentially the same in reference to negligence. The provision as it appears today is found in the new Government Code, sec. 16041 as follows: ‘Any person who has a claim against the State (1) on express contract, (2) for negligence * * * shall present the claim to the board in accordance with Section 16021. If the claim is rejected or disallowed by the board, the claimant may bring an action against the State on the claim * * *.’ The statute having been reenacted since 1893 in substantially the same terms the construction placed on it prior to its reenactment continues (23 Cal.Jur. 795). If will be noted that the statute merely provides a remedy for those who have a claim against the State. It assumes a claim which is litigable by some express statutory provision.

The cases are unanimous in holding that in the absence of a statute assuming responsibility, the State is not liable for the negligence or misfeasance of its officers and agents. Melvin v. State, 121 Cal. 16, 53 P. 416; Rauschan v. State Comp. Ins. Fund, 80 Cal.App. 754, 253 P. 173. It has been held from the beginning that the Statute of 1893 ‘did not create any liability or cause of action against the state where none existed before, but merely gave an additional remedy to enforce such liability as would have existed if the statute had not been enacted.’ Denning v. State, 123 Cal. 316, 319, 55 P. 1000, 1001, citing Chapman v. State, 104 Cal. 690, 38 P. 457, 43 Am.St.Rep. 158 and Melvin v. State, 121 Cal. 16, 53 P. 416. See also Walker v. Department of Public Works, 108 Cal.App. 508, 516, 291 P. 907.

Denning v. State, supra, presented a situation much like the one involved herein. The plaintiff there was employed by a board of state harbor commissioners on a tugboat; he climbed a ladder which was insecurely fastened and fell causing injuries. The judgment in favor of plaintiff was reversed on the ground that the State was not liable for the negligence of the board of state harbor commissioners, whereby an employee was injured. The Statute of 1893 created no liability. The court distinguished Chapman v. State, supra, on the ground that there the action was for damages for breach of contract where the liability exists on the occurrence of the breach. It may be observed that the cited cases are of early date, but no recent decision on the subject appears. It should also be observed that the statutes relating to remedies against the State and its political subdivisions have been amended frequently since these cases were decided and, since the Legislature has not changed their effect in this respect, it must be assumed that its intention has been to let the rule of those cases stand.

It would also appear that the general rule of non-liability of the State for injuries arising out of the torts of its officers applies to the operation of equipment on the State Belt Railroad on the theory that it is not engaged in a proprietary function. The railroad is operated under sections 3150 to 3165 inclusive of the Harbors and Navigation Code by the Board of State Harbor Commissioners, sec. 1690, for San Francisco Harbor. Although the board is allowed to impose tolls and charges, such imposition can be made only for repayment of the costs of construction, Harbors and Navigation Code, sec. 3153, and for maintenance of the commerce of the port, sec. 3162. The railroad is not operated in a proprietary capacity by the State or as a mere business enterprise but exists for the purpose of promoting commerce for the benefit of the people. Denning v. State, supra, 123 Cal. at 322, 55 P. 1000. In Sherman v. United States, 282 U.S. 25, 29, 51 S.Ct. 41, 75 L.Ed. 143, 145, it was stated that the State Belt Railroad ‘is operated by the State; the work is done without profit for the purpose of facilitating the commerce of the port, and the funds received after paying expenses go to the Treasury of the State to the credit of the San Francisco Harbor Improvement Fund. California has not gone into business generally as a common carrier, but simply has constructed the Belt Line as an incident of its control of the harbor—a State prerogative.’

However, even if it should be considered that the State is engaging in a private business enterprise in the operation of the railroad, that would not destroy its immunity from liability for the torts of its officers or employees in the administration of the affairs of the enterprise. This was held in Rauschan v. State Comp. Ins. Fund, supra. On the specific question of the nonliability of the State for the torts of its officers and employees the court said: (80 Cal.App. at page 760, 253 P. at page 175) ‘It is a proposition placed beyond the realm of doubt—indeed, it is elementary—that the state cannot be sued without its consent, ‘and all the authorities are united upon the proposition that it is a general principle of law that a state is not liable for the torts of its officers, agents, or servants, and that it can be made so liable only upon its clear and definitely given consent.’ Western Assur. Co. v. Drainage Dist., 72 Cal.App. 68, 75, 237 P. 59, 62, in which a hearing was denied by the supreme court; see, also, notes to vol. 13 A.L.R. * * * Upon this proposition we may well present excerpts from a few of the authorities. In Gibbons v. United States, 8 Wall., U.S., 275, 19 L.Ed. 453 (see, also, Rose's U.S. Notes), Mr. Justice Miller said:

“The general principle which we have already stated as applicable to all governments, forbids, on a policy imposed by necessity, that they should hold themselves liable for the unauthorized wrongs inflicted by their officers on the citizens, though occurring while engaged in the discharge of official duties.'

‘In his work on Agency, § 319, Judge Story declares that:

“The government does not undertake to guarantee to any person the fidelity of any of its officers or agents whom it employs, since that would involve it in all its operations in endless embarrassments and difficulties and losses, which would be subversive of the public interests.' See, also, Hensley v. Reclamation Dist. No. 556, 121 Cal. 96, 97, 53 P. 401; Sels v. Greene, C. C., 81 F. 555, affirmed in 88 F. 127.'

The same rule is tersely stated in Robertson v. Sichel, 127 U.S. 507, 515, 8 S.Ct. 1286, 1290, 32 L.Ed. 203, as follows: ‘The government itself is not responsible for the misfeasances or wrongs or negligences or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guaranty to any person the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments and difficulties and losses, which would be subversive of the public interests. (Citing cases).’

The cases citing section 688 of the Political Code, upon which the new Government Code section 16041 is based, relate mainly to eminent domain proceedings and actions arising ex contractu (to which the section concededly applies). As stated by petitioner herein the language of some of the cases appears contrary to the decisions outlined above but a careful reading of the opinions indicates that they do not apply to the precise question involved on this petition. Maurice v. State of California, 43 Cal.App.2d 270, 110 P.2d 706, holds the state liable for injuries to an employee of the State Belt Railroad on the ground that the railroad is in interstate commerce and is therefore subject to the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq. The federal cases, United States v. State of California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567, and State of California v. Anglim, 9 Cir., 129 F.2d 455, are also based on the theory that in the operation of the railroad the State voluntarily brought itself under the interstate commerce clause to federal regulation. State of California v. Superior Court, 14 Cal.App.2d 718, 58 P.2d 1322, relates to suits authorized by section 1714 1/212 of the Civil Code, Vehicle Code, sec. 400, and holds that in actions for the tort of an employee of the state under that enabling section the procedure provided by section 688 of the Political Code, Government Code, sec. 16041, is applicable. Welsbach Co. v. State of California, 206 Cal. 556, 275 P. 436, does not relate to tort actions but to the recovery of taxes paid under protest; it was held that the action was maintainable under the Statute of 1893 because it was in form a common law action in assumpsit upon an implied contract. These cases do not overrule the long line of decisions on the particular subject of actions against the State for the tort of an employee.

The respondent cites Sanders v. City of Long Beach, 54 Cal.App.2d 651, 129 P.2d 511, and similar cases to the proposition that ‘The liability of public corporations engaged in proprietary activities for the negligent conduct of its employees or the unsafe condition of its property appears to be the same as that of a private corporation.’ The argument is not appropriate to the present proceeding. Liability of ‘public corporations' and liability of the sovereign state are two widely different propositions. The precise question is ably discussed in Riddoch v. State, 68 Wash. 329, 123 P. 450, 452, 42 L.R.A.,N.S., 251, Ann.Cas.1913E, 1033, as follows: ‘The analogy, however, does not hold. Municipal corporations enjoy their immunity from liability for torts only in so far as they partake of the state's immunity, and only in the exercise of those governmental powers and duties imposed upon them as representing the state. In the exercise of those administrative powers conferred upon or permitted to them solely for their own benefit in their corporate capacity, whether performed for gain or not, and whether of the nature of a business enterprise or not, they are neither sovereign nor immune. They are only sovereign and only immune in so far as they represent the state. They have no sovereignty of their own; they are in no sense sovereign per se. Their immunity, like their sovereignty, is in a sense borrowed; and the one is commensurate with the other.’

A similar line of reasoning was adopted in Dillwood v. Riecks, 42 Cal.App. 602, 184 P. 35, where the distinction was drawn between the liability of a municipal corporation and that of a county. Counties are merely political subdivisions, or agencies of the State, said the court, and their obligations are strictly limited as the law prescribes. In holding that the county, as a political subdivision of the State, is not liable for the negligence of its employees unless such liability is expressly imposed by statute, the appellate court relied upon Huffman v. San Joaquin Co., 21 Cal. 426, an action involving injuries arising from want of proper repairs to a county bridge. There the Supreme Court said: (21 Cal. at page 430) ‘If any remedy exists for injuries resulting from neglecting to keep such bridges in repair, it must be sought either against the Road Overseers or Supervisors personally.’

Respondents cite Burke v. State, 64 Misc. 558, 119 N.Y.S. 1089, and Arnold v. State, 163 App.Div. 253, 148 N.Y.S. 479, and Cooley v. State, 114 Misc. 717, 186 N.Y.S. 228, as holding to the contrary. But those cases were covered by specific statutes whereby the State of New York assumed liability under the special circumstances there present, as this State has assumed liability under section 400 of the Vehicle Code. Amstein v. Gardner, 134 Mass. 4, is cited to the same effect; but in that case the employee of the state railroad was held to be subject to liability, and not the State in its sovereign capacity. The same is to be said of Western & Atlantic Railroad v. Carlton, 28 Ga. 180.

As heretofore indicated Maurice v. State of California, supra; State of California v. Anglim, supra; Sherman v. United States, supra, and United States v. State of California, supra, are not helpful to respondent. All involved the question of the liability of the State under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the Federal Safety Appliance Act and all held that when the State engaged in interstate commerce, as in the operation of the belt line railroad, it made itself amenable to the provisions of federal laws covering operations in interstate commerce such as those enacted for the safety of employees.

We conclude that the State Belt Railroad is operated by the State for the promotion of commerce; that there is no liability upon the State for the torts of its officers or employees unless it has clearly given its consent to be liable; that the State has not authorized the maintenance of actions against it for the torts of its employees of the harbor board, and that, therefore, the respondent court has no jurisdiction to proceed to trial in this action as against the petitioner.

Finally it is argued that the writ of prohibition should not issue because the State would have an adequate remedy by appeal from an adverse judgment. The same argument was raised in Davis v. Superior Court, 184 Cal. 691, 696, 195 P. 390, where the Superior Court had refused to dismiss a cause under section 581b Code of Civil Procedure and threatened to proceed to trial. The Supreme Court, in granting the writ, said that since further proceedings would be void the writ should issue so that the parties would not be put to further vexation and useless expense. The same theory was applied in Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942, 132 A.L.R. 717; and see 21 Cal.Jur. 583.

Let a writ of prohibition issue as prayed.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.