CITY OF ALBUQUERQUE V. GARCIA, 1973-NMSC-036,
84 N.M. 776, 508 P.2d 585 (S. Ct. 1973)
CASE HISTORY ALERT: see ¶1 - affects
1972-NMCA-093
CITY OF ALBUQUERQUE, Petitioner,
vs.
MELLA GARCIA, Respondent
SUPREME COURT OF NEW MEXICO
1973-NMSC-036, 84 N.M. 776, 508 P.2d 585
Original Proceeding on Certiorari
RODEY, DICKASON, SLOAN, AKIN & ROBB,
P.A., JAMES C. RITCHIE and STUART S. KEOWN, Albuquerque, New Mexico, Attorneys
for Petitioner.
MODRALL, SPERLING, ROEHL, HARRIS &
SISK, FRANK H. ALLEN, JR., Albuquerque, New Mexico, Attorneys for Respondent.
DAVID L. NORVELL, Attorney General, JAMES
V. NOBLE, Assistant Attorney General, Attorneys for the New Mexico, State
Highway Department, Santa Fe, New Mexico, Amicus Curiae.
STEPHENSON, Justice, wrote the opinion.
John B. McManus, C.J., LaFel E. Oman, J.,
Samuel Z. Montoya, J., Joe L. Martinez, J.
{*777} Stephenson,
Justice.
{1} Plaintiff alleged that she
had been negligently injured while a passenger on a city bus driven by Mr.
Callahan. On motion by the City, the trial court dismissed as to it on the
basis of § 64-25-9, N.M.S.A. 1953. Following compliance with Rule 54(b) [§
21-1-1(54)(b), N.M.S.A. 1953] plaintiff appealed. The Court of Appeals
reversed. Garcia v. City of Albuquerque,
84 N.M. 168,
500 P.2d 453 (Ct. App.
1972). We granted certiorari and reverse the Court of Appeals.
{2} The statute in question
is Ch. 192, Laws of 1941, compiled as §§ 64-25-8 and 9, N.M.S.A. 1953. The
entire act, including its title, is quoted in the Court of Appeals opinion. The
Court of Appeals first held that a portion of § 64-25-9, viz:
"No action shall be brought or entertained in any court
of this state against the state or any of its institutions, agencies or
political subdivisions for injury or damage caused by the operation of such
vehicles, but the action for any such injury or damage shall be brought against
the person operating such vehicle at the time of the injury or damage. Every
policy of insurance upon such vehicles shall contain a provision that the
defense of immunity from tort liability because the insured is a governmental
agency or an employee of a governmental agency, or because the accident arose out
of the performance of a governmental function, shall not be raised against any
claim covered by such policy, * * *"
granted total sovereign immunity except for the person
operating the vehicle at the time of the injury or damage. From this premise,
it held the act unconstitutional on the ground that its title falls short of
compliance with the portion of Article IV, § 16, New Mexico Constitution which
states {*778} that the subject of every
bill shall be clearly expressed in its title.
{3} Being unsatisfied with
the result and the reasoning on which it rests, we granted certiorari.
{4} As to sovereign immunity,
that doctrine, insofar as it has been created by courts, seems headed for a
deserved repose. Courts and scholars can find little reason for it, and its
historical basis is of doubtful validity. This case is not an appropriate one
in which to review or reconsider court-created sovereign immunity because the
immunity which the court below held had been created stemmed from an act of the
legislature.
{5} The Court of Appeals
oversimplified the effect of the statute in holding that it created absolute
sovereign immunity. Although the court was considering legislature-created
immunity, court-created immunity already existed except as to proprietary activities.
Barker v. City of Santa Fe,
47 N.M. 85,
136 P.2d 480 (1943). The opinion in
Barker had not been handed down when the statute was enacted, but that case
merely declared existing law, albeit in a more definitive manner than its
predecessors. Even as to torts committed in pursuance of proprietary functions,
immunity was not simply created by the statute, although by compliance with it
a procedure which amounts to about the same thing is brought about.
{6} For purposes of this
case, we will accept the premise that immunity was affected by the statute and
in some instances, expanded, and proceed to consider the question of whether
Article IV, § 16 was violated by failure to make mention of it in the title of
the act.
{7} Article IV, § 16 has
often been considered by this court. No useful purpose would be served by
reviewing those decisions. We are not disposed to broaden its operation. We
approve the guideline stated by the United States Supreme Court in Montclair v.
Ramsdell, 107 U.S. 147, 2 S. Ct. 391, 27 L. Ed. 431 (1882):
"The objections should be grave, and the conflict
between the statute and the Constitution palpable, before the judiciary should
disregard a legislative enactment upon the sole ground that it embraced more
than one object, or if but one object, that it was not sufficiently expressed
by the title."
"A title need not disclose the means and
instrumentalities provided in the body of the act for accomplishing its purpose.
Provisions reasonably necessary for attaining the object of the act embraced in
the title are considered as included in the title. (Citation omitted.)"
{9} The title need not set
forth details of an enactment.
"Particulars are to be found in the act, not in
the caption." 1A Sutherland Statutes and Statutory Construction § 18.11
(4th ed. 1972).
{10} However, the details of
statute must be germane or related to the subject matter expressed in the
title.
"This should not cause difficulty, for, 'when the
general purpose of the act is declared, the details provided for the
accomplishment of that purpose will be regarded as necessary incidents.'"
Id.
{11} In City of Albuquerque
v. Campbell,
68 N.M. 75,
358 P.2d 698 (1960), we said, speaking of the same statute
now under consideration, that:
" * * * [t]he law as adopted was intended under the
conditions set forth therein to authorize insurance by municipal corporations *
* *."
{12} That statement is hard
to dispute and, if true, would seem to establish that the statute's subject was
insurance rather than sovereign immunity.
{13} Our present inquiry, by
the literal terms of Article IV, § 16, is whether sovereign immunity was the
"subject" of the statute in question. It was not. Sovereign immunity
was affected only incidentally. This being so, failure to mention it in the
title of the statute does not violate Article IV, § 16. Crosthwait v. White,
55
N.M. 71,
226 P.2d 477 (1951);
{*779} Bureau
of Revenue v. Dale J. Bellamah Corp.,
82 N.M. 13,
474 P.2d 499 (1970).
{14} Thus § 64-25-9 is not
unconstitutional by reason of any violation of Article IV, § 16.
{15} We find nothing to
indicate that either the trial court or the Court of Appeals gave consideration
to the effect, if any, of §§ 5-6-18 through 22, N.M.S.A. 1953 (Laws 1959, Ch.
333). That act is inconsistent, virtually in its entirety, with §§ 64-25-8 and
9, supra. Did not the later act repeal the earlier by implication? This question
poses some rather knotty problems of construction. The question was neither
argued nor briefed, and, as matters stand, we will not answer it here. Since
the case must return to the trial court in any event, we wish to make it clear
that the trial court is at liberty to consider the effect, if any, of §§ 5-6-18
through 22, supra, upon §§ 64-25-8 and 9, supra.
{16} The Court of Appeals is
reversed. This case is remanded to the District Court of Bernalillo County for
further proceedings consistent with this opinion.
McManus, C.J., Oman, J., Montoya, J., Martinez,
J.