{ "id": 1587486, "name": "DAY v. PENITENTIARY OF NEW MEXICO", "name_abbreviation": "Day v. Penitentiary", "decision_date": "1954-06-14", "docket_number": "No. 5760", "first_page": "391", "last_page": "395", "citations": [ { "type": "official", "cite": "58 N.M. 391" }, { "type": "parallel", "cite": "271 P.2d 831" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "38 N.M. 372", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559162 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/38/0372-01" ] }, { "cite": "54 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582039 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/54/0126-01" ] }, { "cite": "263 P.2d 697", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 8843563 ], "opinion_index": 0, "case_paths": [ "/nm/57/0759-01" ] }, { "cite": "37 N.M. 256", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575404 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/37/0256-01" ] }, { "cite": "169 P. 304", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "23 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2393793 ], "opinion_index": 0, "case_paths": [ "/nm/23/0487-01" ] }, { "cite": "195 P.2d 1016", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "198 So. 656", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 3063808, 10062861 ], "opinion_index": 0, "case_paths": [ "/la/196/0073-01", "/so/198/0656-01" ] }, { "cite": "196 La. 73", "category": "reporters:state", "reporter": "La.", "case_ids": [ 3063808 ], "opinion_index": 0, "case_paths": [ "/la/196/0073-01" ] }, { "cite": "53 Ariz. 83", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 5114710 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ariz/53/0083-01" ] }, { "cite": "49 N.M. 4", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841142 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/49/0004-01" ] }, { "cite": "52 N.M. 93", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579521 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/52/0093-01" ] }, { "cite": "46 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563041 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/46/0330-01" ] }, { "cite": "52 N.M. 224", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579473 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/52/0224-01" ] }, { "cite": "57 N.M. 747", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843531 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/57/0747-01" ] } ], "analysis": { "cardinality": 434, "char_count": 6245, "ocr_confidence": 0.719, "pagerank": { "raw": 1.2960349902412687e-07, "percentile": 0.6210848586153093 }, "sha256": "6fe21fbf6d80e667aefb44758a70295c1c7e1f4df7d4ce7f5de866f338989037", "simhash": "1:37cc86dad1b7ef15", "word_count": 1067 }, "last_updated": "2023-07-14T15:12:30.183990+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McGHEE, C. J., and LUJAN and SEYMOUR, JJ., concur.", "SADLER, J., absent from the state, did not participate." ], "parties": [ "DAY v. PENITENTIARY OF NEW MEXICO." ], "opinions": [ { "text": "COMPTON, Justice.\nAppellant, claimant below, brought this action against The Penitentiary of New Mexico for compensation under the Workmen\u2019s Compensation Act and from a judgment dismissing the complaint, he appeals. The parties stipulated as to the facts found by the court, leaving for determination a single legal question, whether the state has consented to the suit.\nOn November 20, 1950, while claimant was performing guard duty at the Penitentiary of New Mexico, a riot occurred among the prisoners during which the prisoners assaulted claimant, seriously injuring him. As a result of his injuries claimant was disabled to the extent of 60% of total disability. Appellee took no step to comply with the Act, hence there was no insurance carrier. Nor did appellee file a notice in writing of its election not to accept the provisions of the Act. Upon the foregoing fact, the court concluded that it was without jurisdiction in the matter since the action was one against the State of New Mexico to which the state had not consented, and dismissed the proceedings.\nAppellant concedes the state cannot be sued without its consent, but contends that \u00a7 45-101, 1941 Comp., and the Workmen\u2019s Compensation Statutes, \u00a7 57-901 to \u00a7 57-931, 1941 Comp., taken together, constitute a consent by the state to be sued in a Workmen\u2019s Compensation proceeding involving the state penitentiary.' This argument is without force as the statutes clearly are unrelated. The former deals with corporate powers, while the latter statutes are sui generis and exclusive. The rights and remedies provided thereby are in derogation of the common law and consent must be found in the Act itself. Hathaway v. New Mexico State Police, 57 N.M. 747, 263 P.2d 690; Vigil v. Penitentiary of New Mexico, 52 N.M. 224, 195 P.2d 1014; Hudson v. Herschbach Drilling Co., 46 N.M. 330, 128 P.2d 1044; Guthrie v. Threlkeld Co., 52 N.M. 93, 192 P.2d 307; Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000; Sorenson v. Six Companies, Inc., 53 Ariz. 83, 85 P.2d 980; Brownfield v. Southern Amusement Co., 196 La. 73, 198 So. 656.\nThe penitentiary was given corporate powers by \u00a7 45-101, 1941 Comp., which reads:\n\u201cThe general government and management of the penitentiary shall be vested in five (5) commissioners, who shall be appointed by the governor as in the constitution provided, and the governor shall have power at any time to remove any of said commissioners and appoint their successors. Said commissioners, and their successors in office, shall constitute a body corporate under the name and style of \u2018The Penitentiary of New Mexicoand said cor poration shall have the right as such to sue and be sued, to contract and be contracted with, to buy, own, hold, manage, lease, sell and otherwise handle and dispose of all such real, personal and mixed property as in the judgment of the commissioners may be necessary and proper for the operation and management of the penitentiary, including the right to acquire, maintain and operate any necessary farm, or farms, at such places in this state as the commissioners shall designate.\u201d (Emphasis ours.)\nThe Workmen\u2019s Compensation Act, \u00a7 57-902, enumerates the employers who do or may come within the provision of the Act, \u201cthe state and each county, city, town, school district, drainage, irrigation or conservancy district, and public institution and administrative board thereof * * * \u201d and by \u00a7 57-910, all guards employed by the penitentiary are deemed to be within the provisions of the Act. By \u00a7 57-904 of the Act, every employer employing as many as four or more persons, is conclusively presumed to have accepted the provisions of the Act unless he has filed with the clerk of the district court a notice in writing that he elects not to accept its provisions. But we do not find in the Act express consent by the state to be sued, absent which the court was without jurisdiction to entertain the suit.\nThese statutes have been before this court and the question posed has been settled adversely to appellant.\nIn Vigil v. Penitentiary of New Mexico, supra [52 N.M. 224, 195 P.2d 1016], we said:\n\" * * * the power conferred upon such public corporations as are under consideration, Ho sue and be sued,\u2019 is not a power to sue and be sued for any cause of action, whether in contract or tort, but to sue and be sued upon such matters only as are within the scope of the other corporate pozvers of such an institution, * * *\n\u201cWe think any language in Locke v. Trustees, [of New Mexico Reform School], supra, [23 N.M. 487, 169 P. 304], or Dougherty v. Vidal, supra, [37 N.M. 256, 21 P.2d 90], to the effect . or tending to hold that mere corporate status of a state agency is determinative of the question of whether a suit against it is a suit against the state is erroneous and is hereby disapproved and overruled.\n\u201cWe also hold that the permission granted to such corporation to sue and be sued does not include the right to sue them in tort.\u201d (Emphasis ours.)\nThe question was recently treated in Hathaway v. New Mexico State Police, supra [57 N.M. 747, 263 P.2d 697], The court on rehearing, reversed the judgment as to the state, in the following language:\n\u201cThe claimant (appellee) resists the suggestion of amicus curiae that the judgment should be vacated in so far as it awards recovery against the state. His counsel make the contention that the state has in fact consented to be sued under the provisions of the Workmen\u2019s Compensation Act. But tve find in the act no express consent by the state to be sued, and the consent is not to rest on implication. Unquestionably, the suit as to the employer is one against the state.\u201d (Emphasis ours.)\nAlso see Parr v. New Mexico State Highway Department, 54 N.M. 126, 215 P.2d 602; New Mexico State Highway Department v. Bible, 38 N.M. 372, 34 P.2d 295.\nThe judgment should be affirmed, and It Is So Ordered.\nMcGHEE, C. J., and LUJAN and SEYMOUR, JJ., concur.\nSADLER, J., absent from the state, did not participate.", "type": "majority", "author": "COMPTON, Justice." } ], "attorneys": [ "H. A. Kiker and Plenry A. Kiker, Jr., Santa Fe, for appellant.", "Richard H. Robinson, Atty. Gen., Fred M. Standley, C. C. McCulloh, Asst. Attys. Gen., for appellee." ], "corrections": "", "head_matter": "271 P.2d 831\nDAY v. PENITENTIARY OF NEW MEXICO.\nNo. 5760.\nSupreme Court of New Mexico.\nJune 14, 1954.\nH. A. Kiker and Plenry A. Kiker, Jr., Santa Fe, for appellant.\nRichard H. Robinson, Atty. Gen., Fred M. Standley, C. C. McCulloh, Asst. Attys. Gen., for appellee." }, "file_name": "0391-01", "first_page_order": 423, "last_page_order": 427 }