# Brown v. City of Omaha

> Nebraska Supreme Court · August 30, 1968 · 183 Neb. 430

URL: https://www.frixlaw.com/law-library/cases/9722800

## Case

- **Full name:** Barbara Brown, Appellant, v. City of Omaha, Appellee
- **Court:** Nebraska Supreme Court
- **Decided:** August 30, 1968
- **Citations:** 183 Neb. 430; 160 N.W.2d 805; 1968 Neb. LEXIS 566
- **Precedential status:** Published
- **Opinion:** Dissent by Carter
- **Judges:** White, Carter, Spencer, Boslaugh, Smith, McCown, Newton
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9722800

## How later opinions describe it (automated extraction)

- holding that because doctrine was originally common-law rule, this court may modify it in absence of legislative action to contrary
- stating that both the court and the legislature have the authority to waive sovereign immunity

## Opinion text

Carter, J.,
dissenting.
I adhere to my dissent in Stadler v. Curtis Gas, Inc., 182 Neb. 6 , 151 N. W. 2d 915 , and the dissents of White, C. J., and Newton, J., filed in that case. It is not my intention to reiterate here what was said there.
*442 Every state is. inherently vested with certain sovereign powers necessary for its own preservation. Among these powers are the power to tax, the power to take property for public use, and the immunity from suit. The majority opinion chooses to deal with the sovereign immunity from suit doctrine under the old cliché, “The King can do no wrong.” This cliché is nothing more than what it purports to be. It seems to me that we should call things by their right names in dealing with a matter as important as sovereign immunity from suit and not be misled into a discussion of clichés and hackneyed expressions that serve only to divert the court from the real issues of the case. Another contention usually advanced in attacking sovereign immunity from suit is that a court-made rule of law can be vacated by the courts that made it. But sovereign immunity is an inherent power of the political state, and, in so holding, the courts merely declare the existence of this inherent sovereign power which has been recognized since the beginning of law by English speaking peoples. In advancing the foregoing assertions, opponents of the doctrine are grasping for reasons to circumvent a well-established and long-followed sovereign power which offends their personal sense of justice.
Immunity from suit against a sovereign state has always resulted in hardship on those falling within its scope. It is true that the development of new means of transportation, our ever-increasing population, and the growing complexity of our social order has multiplied the hardships and uncompensated wrongs resulting from the immunity from suit doctrine. While this could and possibly should bring about a change in public policy as determined by the Legislature, it does not have the effect of changing the principle of law involved. Limitations of sovereign powers, absolute in character, are the province of the Legislature and not the courts.
But whether or not the rule of the state’s sovereign immunity from suit originated under the common law *443 of England or whether or not it was judge made or merely declared, is of little consequence in this case for the simple reason that it has been preserved to the state by the Constitution. Article V, section 22, of the Constitution of Nebraska provides: “The state may sue and be sued, and the legislature shall provide by law in what manner and in what courts suits shall be brought.” This constitutional provision is not self-executing. In Gentry v. State, 174 Neb. 515 , 118 N. W. 2d 643 , this court, in referring to Article V, section 22, Constitution of Nebraska, said: “This provision permits the state to lay its sovereignty aside and consent to be sued on such terms and conditions as the Legislature may prescribe. This provision of the Constitution is not self-executing. Legislative action is necessary to make it available.” See, also, State ex rel. Davis v. Mortensen, 69 Neb. 376 , 95 N. W. 831 ; Anstine v. State, 137 Neb. 148 , 288 N. W. 525 ; Callen v. State, 137 Neb. 192 , 288 N. W. 547 ; Greenwood v. City of Lincoln, 156 Neb. 142 , 55 N. W. 2d 343 , 34 A. L. R. 2d 1203. In the Anstine case, we said: “ Tt is usually said that statutes authorizing suit against the state are to be strictly construed, since they are in derogation of the state’s, sovereignty. Consequently, it is generally essential that the consent of the state to be sued be given expressly and by clear implication.’ ”
“The rule of non-liability of the state for the torts of its officers, agents, and servants applies to those agencies through which the state acts in the administration of government as well as to the state itself.” 49 Am. Jur., States, Territories, and Dependencies, § 78, p. 291. “Generally, the political subdivisions of the state, just as the state itself, are not liable for torts committed in the exercise of governmental functions unless made liable by express enactments of the legislature, except where the acts complained of, in effect, constitute a taking of private property for public use without just compensation; * * 81 C. J. S., States, § 131, p. 1145. See, also, State ex rel. *444 Davis v. Mortensen, supra; Anstine v. State, supra; Greenwood v. City of Lincoln, supra.
In the instant case there is no statute providing in what manner and in what court the suit could be brought as required by the Constitution. The majority opinion makes no reference to Article Y, section 22, Constitution of Nebraska, nor does it even purport to show compliance with this constitutional limitation on sovereign immunity of the state from suit. In plain terms, the majority opinion chooses to ignore the Constitution and to determine the case on the theory that the Constitution is applicable unless matters appearing to be of great public policy decree otherwise.
It is true that some courts have ventured into the thorny thicket of attempting to avoid the alleged inequitable results of the sovereign immunity doctrine. In most instances, such courts have created more problems than they have solved. It is quite clear that these courts have been led astray from fundamental concepts by activist writers in law journals and reviews who have become so obsessed with what they term the inequities of the doctrine that the end appears to justify the means. Most of these writers concede that the remedies for such inequities rest with the legislatures and, being dissatisfied with the inaction of legislatures in keeping pace with their ideas, seek a way to have the courts compensate for the alleged failures of legislatures in this area. In bringing this about, the fact that judicial legislation becomes necessary does not seem important as is so often the case by those who become obsessively compulsive in righting what they believe to be a great public wrong.
The doctrine of the immunity of the state from suit is generally conceded to be a legislative problem which can be limited by the Legislature in determining the public policy of the sovereign state. This is recognized by the majority opinion when it states: “* * * it may well be that the Legislature will have the ultimate word.” The fact that the Constitution has already placed *445 the responsibility to limit or relax the sovereign immunity of the state from suit upon the Legislature hardly warrants the assumption that this court is thrusting upon the Legislature the sole responsibility “for injustice.” That responsibility belongs with the Legislature by constitutional provision. The inference that this court should not restrain its sympathy for the Legislature and its problems in the immunity field and render its unsolicited and activist aid even though it would constitute the “traditionally condemned heresy of judicial legislation,” hardly warrants the conversion of this court into a mythical House of Lords with both legislative and judicial powers.
One ought not feel obligated to suggest that our state government is divided into three branches no one of which shall perform the functions of the others. Nor ought one feel the necessity for suggesting our sworn duty is to support and defend the Constitution of Nebraska; not to subvert its provisions. Nor ought one be surprised at the eyebrow-lifting that would follow the announcement of this court that it will impose its unsolicited aid upon the Legislature notwithstanding that it “would constitute the traditionally condemned heresy of judicial legislation.” In addition thereto the majority opinion arrogates to the court the right to pick and choose the case which shall and which shall not be subject to the doctrine of sovereign immunity. In the one instance the court in effect says that the state, immunity from suit does not exist, in the other that it does. Rule by law instead of men will suffer a serious relapse with the release of this opinion.
The boundary between responsible self-government and arbitrary, irresponsible government is “the rule of law.” Never has the line become so thin and shadowy as now. Ironically, it is within our courts that the most serious threat to the rule of law is developing. Too often, judges strain to arrive at a “just” result in a case in the light of their own philosophies and socio-economic *446 values with settled legal principles being accorded little or no weight. As a result, law is rapidly losing; its certainty, stability, and continuity. Jurisprudence is becoming the handmaiden of sociology. As Justice C'ardozo once sagely remarked: “Lawyers who are unwilling to study the law as it is, may discover, as they think, that study is unnecessary; sentiment or benevolence or some vague notion of social welfare becomes the only equipment needed. I hardly need to say that this is not my point of view.”
Carried to the extreme such a philosophy is currently described as activism which is in fact a negation of the rule of law. Out of the vast testing by the human experiences of the past, we have erected a system of law and courts that it is our duty to support and improve. Its importance focuses on the judge,. But if the mind of the judge is closed and he recognizes no law save his own predilections, then our shelves of law books, the marble columns of our temples of justice, and the black robes of judicial integrity are but superficial symbols cloaking a travesty. Among the fundamental obligations of the judge is the duty to separate the activist writings of pseudo-legal experts, seeking to give credence to their personal philosophy of “justice” and “right,” from the established law as supported by the age-old principle of stare decisis until, as in the instant case, change is made by the proper authority. The twisting and stretching of law to accommodate the furtherance of a public policy, however meritorious it may be, is not the function of the courts.
It is for the foregoing reasons in answer to what I consider a basic attack upon our fundamental system that I voice my vehement dissent to the majority opinion of this court.
White, C. J., and Newton, J., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9722800. Public record. Not legal advice.