statute extending state’s constitutional sovereign immunity to municipalities acting in proprietary capacity violated "open courts” provision; "open courts” provision in essence "freezes" common law as of time state constitution was adopted, and municipalities at that time under South Dakota common law did not share state’s constitutional sovereign immunity when municipalities acted in "proprietary” capacity
How later courts described this case
- statute extending state’s constitutional sovereign immunity to municipalities acting in proprietary capacity violated "open courts” provision; "open courts” provision in essence "freezes" common law as of time state constitution was adopted, and municipalities at that time under South Dakota common law did not share state’s constitutional sovereign immunity when municipalities acted in "proprietary” capacity
- maintenance of a city pool
Written by the judges who cited it.
The opinion
WUEST, Chief Justice
(dissenting).
I dissent.
As stated in the majority opinion, the party asserting a statute is unconstitutional bears the burden of proving beyond a reasonable doubt the statute violates the constitution and there is a strong presumption the laws enacted by the legislature are constitutional. The majority cites cases, O’Rourke (1893), supra; Jensen (1938), supra; and Board of County Commissioners (1928), supra, concerning the difference *292 between proprietary and governmental functions.
In my opinion, such cases do not prove beyond a reasonable doubt that the park immunity statutes are unconstitutional. Nor, does appellant cite any competent authority or reasons to overturn those statutes. Governmental and proprietary functions are judge-made law, and in my opinion the legislature may change them and grant immunity as they have done by enacting the park statutes. Further, Article III, § 27 of the South Dakota Constitution, provides: “The legislature shall direct by law in what manner and in what courts suit may be brought against the State.” That provision regulates sovereign immunity and any diminishment of it must come from the legislature. High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980); Conway v. Humbert, 82 S.D. 317 , 145 N.W.2d 524 (1966).
I am authorized to state that Justice FOSHEIM joins in this dissent.