Biello v. Pennsylvania Liquor Control Board

*187 Dissenting Opinion by

Mr. Justice Nix :

I respectfully dissent.

Again, the majority of this court has refused to accept its responsibility and strike down an anachronism in the law of Pennsylvania known as sovereign immunity. Although this court and many others throughout this nation have on numerous occasions recognized the doctrine as an obsolete vestige of a distant past, a majority of this court persists in its refusal to remedy the injustices occasioned by the doctrine offering only the weak protestation that the court does not possess the power to abolish this doctrine. This conclusion is premised upon the belief that the genesis of sovereign immunity is not common law but rather that it is mandated by the Constitution of this State. Both the history of this doctrine and the clear language of the Constitution of this State refute this premise.

Sovereign immunity, in this country, is a derivative of the English feudal system. Under that system the lord of the manor provided courts to resolve disputes arising within the fiefdom and, concomitant with his absolute authority, the lord was deemed to be immune from suit in his court. 1 As the English system developed to a monarchy, the king assumed the powers of the feudal lords and among these powers and prerogatives was his immunity from suit. This thirteenth century version of sovereign immunity existed as the monarch’s personal prerogative. 2

*188 By the sixteenth century, the king’s powers were conceptualized as the State, and his prerogative not to be sued became sovereign immunity for the State. 3 That immunity could be circumvented in two ways: The long, upon petition, could consent to suit; or The Court of Exchequer could use its King’s Bench power to grant relief against the crown. “[I]t would derogate from the King’s honour to imagine that what is equity against a common person should not be equity against him.” 4 Thus, only rarely did the English version of sovereign Immunity operate as a complete bar to a plaintiff’s recovery. 5

From this history it is evident that the concept of State’s immunity from suit was a firmly established doctrine of the English common law long before this Commonwealth of Pennsylvania had been conceived. Further, I believe that the language of the Constitution itself fails to provide any basis for the majority’s assumption that in Pennsylvania this immunity is constitutionally mandated. Neither within the present Constitution of this Commonwealth nor any of its predecessors can there be found an expressed grant of immunity from suit. To the contrary, Article I, Section 11 merely sets forth the mechanism by which the State may waive *189 this power. 6 It provides that: “Suits may be brought against the Commonwealth in such manner in such courts and in such cases as the legislature may by law direct.” The Constitution is therefore neutral—it neither requires nor prohibits sovereign immunity. It merely provides that the presence or absence of sovereign immunity shall be decided in a non-constitutional manner. The framers of the Constitution accepted the then prevalent concept of sovereignty to include immunity from suit, and attempted through this section to implement the power of the State to consent to actions brought against it.

This portion of the Constitution was also directed to resolving the issues of whether there was, in fact, the power to consent to suit and if that power was found to exist, which branch of the government had the power to exercise that judgment. The majority mistakenly concludes that since the framers recognized the need for the resolution of these issues they thereby mandated the doctrine itself. In my judgment it is an u/nwa/rranted conclusion to assume from the grant of the power of consent to the legislative branch that this was implicitly an abrogation of the court’s traditional powers to abolish common law principles when they no longer meet the needs of the time.

Construing a similar provision in their State Constitution the Supreme Court of Indiana in the case of Perkins v. State, 252 Ind. 549, 551 , 251 N.E. 2d 30, 32 (1969) noted: “We are dealing here not with a constitutional prohibition, but rather with a principle of common law which has its roots in the ancient common law of England. . . .” See, also State v. Turner, 286 N.E. 2d 697 ( Ind. 1972).

*190 This being a principle of common law rather than a constitutional prohibition, it cannot be questioned that the courts have the power to alter that principle when that principle is no longer consistent with the needs of our present society. “The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be modified at once, for an attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible, but if a rule continues to work injustice; it will eventually be reformulated.” Cardozo, J., The Nature of the Judicial Process, 121 (1921). It must be concluded that the time is long overdue when this principle should be reassessed.

Having concluded that this court has the power to abrogate sovereign immunity, I would also conclude that it should do so in this case. By the end of the eighteenth century, the States of this union had accumulated debts resulting from the War of Independence. Most chose to invoke the doctrine of sovereign immunity in order to avoid financial disaster. 7 The decision in Black et al. v. Rempublicam, 1 Yeates 139 (1792), was at least partially motivated by such considerations. See, 1 Yeates at 141 .

The fact that sovereign immunity may have possessed a viable rationale at the end of the eighteenth century does not foreclose a reconsideration of that *191 rationale in view of our present day society. “If the judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie in helpless submission, the hands of their successors.” Cardozo, J. The Nature of the Judicial Process, 121 (1921).

Whatever validity sovereign immunity may have had in the eighteenth century has disappeared. Modern state governments employ multi-billion dollar budgets to undertake functions which would have been inconceivable under the laissez faire philosophy of earlier years. There is absolutely no reason why a state should not insure itself from tort liability (unless it prefers to be self-insured) just as every private enterprise must. 8 The injustice of the doctrine of sovereign immunity is underscored in a case such as the one at bar. Here, the State has entered into the business of selling liquor, and in so doing, it reaps millions in profits. 9 Still, the majority invokes the doctrine of sovereign immunity—a doctrine whose only possible rationale was to protect faltering colonial treasuries—to shield these profits from tort liability.

The overwhelming majority of commentators also conclude that sovereign immunity for tort liability has outlived its usefulness. See, e.g., Prosser on Torts, 3d Ed., p. 1010; Harper, The Law of Torts (1933); McGuire, “State Liability For Tort”, 30 Harv. L. Rev. 20 (1916); Borchard, supra; Leflar and Kantrowitz, “Tort Liability of the States,” 29 N.Y.U.L. Rev. 1363 (1954). Several of our sister states have judicially abrogated the doctrine of sovereign immunity. See, e.g., Stone v. Arizona Highway Commission, 93 Ariz. 384 , 381 P. 2d *192 107 (1963); Muskopf v. California Hospital District, 55 Cal. 2d 211 , 359 P. 2d 457 (1961); Smith v. State, 93 Idaho 795 , 473 P. 2d 937 (1970); State v. Turner, 286 N.E. 2d 697 (Ind. 1972); Williams v. City of Detroit, 364 Mich. 231 , 111 N.W. 2d 1 (1961) (dictum); Willis v. Department of Conservation and Economic Development, 55 N.J. 534 , 264 A. 2d 34 (1970). 10

I recognize that a decision abrogating sovereign immunity would depart from previous doctrine of this court. However, in urging such a departure, I am comforted by the words of Oliver Wendell Holmes: “It is revolting to have no better reason for a rule of law than it was laid down in the time of Henry IY. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule persists from blind imitation of the past.” (Collected Legal Papers of Oliver Wendell Holmes, 187 .)

The enormity of the inconsistency of the position of the majority is best appreciated by an appraisal of the result that obtains under their holding. Having determined that the regulation of the sale of alcoholic beverages is an appropriate governmental function and that a monopolistic control of retail sales is a permissible means for discharging that responsibility they then sanctioned the use of the State’s immunity to preclude redress for an apparently clear tortious performance of that obligation.

I am completely at a loss to find any justification for allowing such an unjust result and I therefore dissent.

Mr. Justice Roberts joins in this dissenting opinion.

Pollock & Maitland, The History of English Law, 518 (1899 ed.)

While there is some authority that the doctrine was partially based on the maxim, “The king can do no wrong”, (See Blackstone’s Commentaries on the Law, Gavits’ Ed., at 111) there is evidence *188 that the maxim originally meant that the king was not privileged to do wrong. Borchard, “Government Liability in Tort”, 34 Yale L.J. 1 , 2 (1924); Ehrlich, Proceedings Against the Crown 1216-1877, at p. 42.

Watkins, “The State As a Party Litigant”, 12 John Hopkins University Studies In Historical and Political Science Series XLV No. 1, at 11 (1927).

Per Atkyns, B., Pawlett v. The Attorney-General (1668), Hadres 465, 469; 145 Eng. Rep. 550, 552. Dyson v. The Attorney-General (1911) 1 K.B. 410, 415.

Muskopf v. Corning Hospital District, 55 Cal. 2d 211, 212 , 359 P. 2d 457, 458 (1961). Interestingly enough, sovereign immunity in the United States developed as an absolute bar and no suit could be brought without expressed waiver of the State. See Borchard, supra, note 2, at 4.

The language before us in Article I, Section 11 of our present Constitution is identical to the language used in the original Constitution.

For a discussion of tlie furor caused by the United States Supreme Court’s decision in Chisholm v. Georgia, 2 U.S. 419 (1793) permitting a Georgia resident to circumvent South Carolina’s sovereign immunity doctrine by suing in a Federal Court, See Currie, Federal Courts, 445 (1968).

See, Green, “Freedom of Litigation”, 38 Ill. L. Rev. 355, 379-383 (1944).

In the fiscal year ending June 29, 1971, the L.G.B. realized a net profit of $149,964,222.25 including taxes.

A great many more states Rave judicially abrogated the doctrine of immunity for local governments, believing that that immunity also lacks a rational basis. See the dissents of Justice Roberts in Thomas v. Baird, 433 Pa. 482 , 252 A. 2d 653 (1969), and in Smeltz v. Harrishurg, 440 Pa. 224 , 269 A. 2d 466 (1970).