# BROWN v. Commonwealth

> Supreme Court of Pennsylvania · May 23, 1973 · 453 Pa. 566

URL: https://www.frixlaw.com/law-library/cases/9764201

## Case

- **Full name:** Brown, Et Al., Appellants, v. Commonwealth
- **Court:** Supreme Court of Pennsylvania
- **Decided:** May 23, 1973
- **Citations:** 453 Pa. 566; 305 A.2d 868; 1973 Pa. LEXIS 707
- **Precedential status:** Published
- **Opinion:** Dissent by Mandebino
- **Judges:** Robeets, Mandebino, Jones, Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino, Egberts
- **Cited by:** 76 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764201

## Opinion text

*580 Dissenting Opinion by
Mb. Justice Mandebino:
I dissent from the unwarranted conclusion that the doctrine of sovereign immunity is not a judicially created doctrine. I dissent also from the Court’s refusal to strike down the judicially created doctrine, which does not have and never had any legitimate roots in constitutional government.
In Biello v. Pennsylvania Liquor Control Board, 454 Pa. 179 , 301 A. 2d 849 (1973), the dissenting opinion of my brother, Mr. Justice Nix, cogently pointed out that the doctrine of soverign immunity is . . an obsolete vestige of a distant past. . . .” It is that and more in Pennsylvania. It is a doctrine which has no support in the written constitution of Pennsylva nia—and never had.
The majority concludes that past decisions of this Court have settled the question. They have not. Each of the past decisions of this Court have pronounced the existence of the doctrine of sovereign immunity and then cited a previous case in support of the pronouncement. One would expect that a search through the precedents, containing the pronouncement followed by a prior citation, would eventually lead to the origin of the judicial chain and a discovery that the chain is solidly anchored in principles worthy of government established by a written constitution. Such a discovery cannot be found in the past decisions of this Court. Those decisions have assumed that the sovereign is the state and that the state possesses inherent and inalienable rights—the exact principles of government guillotined and buried in the human revolutions that gave birth to written constitutions.
The majority quotes a sentence from Section 11 of Article 1 of the Pennsylvania Constitution and finds support for its position in that sentence. It does not, however, support the majority’s position.
*581 Article 1 of the Pennsylvania Constitution is titled the Declaration of Bights. The entire Article is concerned with establishing the principle that the people are the sovereign—not the state. There are twenty-six sections in Article 1 and every single section is concerned with the rights of the people—not the state. To isolate one sentence out of the twenty-six sections in the Declaration of Bights and say that it should be interpreted to protect the rights of the state—not the people—is ludicrous and violates all reasonable principles of construing written language in proper context. Article 1, the Declaration of Bights, opens by stating that the purpose of the Declaration is “that the general, great and essential principles of liberty and free government may be recognized and unalterably established.” Nothing is said about protecting the state. The complete Declaration—its language, tone and thrust—concerns the protection of the people— not the state.
The Declaration speaks of the inherent and indefeasible rights of people—not the state. It states that all power is inherent in the people, and all free governments are founded on their authority—not that power is inherent in the state or that government is founded on the authority of a divinity or an unwritten floating concept in a judge’s mind. The Declaration states that no one can be deprived of his life, liberty, or property, unless by the judgment of Ms peers or the law of the land—not that the state’s life, liberty or property is protected. It also says that private property shall not be taken without just compensation being first made or secured—and there is no exception for any kind of property. The people are protected from any grant of special privileges or immunities by the state. The people are given the right to the redress of grievances— no exception for tort claims or any other claim. The *582 Declaration ends by protecting the people in the enjoyment of all civil rights.
The purpose of the Declaration of Bights in the Pennsylvania Constitution, all of its Sections, is to guarantee and make absolute the principle that the people are supreme—sovereign—and possess the inalienable rights which were possessed by the state prior to government under a written constitution. The majority focuses on three words, out of context, which they conclude are exceptions to the entire purpose and thrust of the Decimation of Bights. The three words relied on by the majority are not only read out of context of the Decimation of Bights for the people in which they appear, they are also read out of the context of Section 11 of the Decimation of Bights and out of the context of the sentence in in which the words appear.
Section 11 has two sentences and they must be read together. The entire Section 11 states: “All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. 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 first sentence of Section 11 is unequivocal. It protects everyone—without exception—for all injuries —without exception. It specifically speaks of injuries to lands, goods, person or reputation. The first sentence says that everyone shall have remedy by due course of law—it does not say that sometimes there is a remedy and sometimes not. The sentence states that right and justice shall be administered without . . . denial—it does not say justice can be denied sometimes and sometimes not. The first sentence of Section 11 must be read before proceeding to sentence two, and that *583 first sentence could not have been written in more absolute terms even by one possessing divine rights. Can we possibly destroy the absolutely plain meaning of sentence one by an interpretation of sentence two, which requires a reach outside the people’s written constitution. The written constitution contains no mention of immunity for the state—or inherent rights of the state—or inalienable rights of the state—or indefeasible rights of the state. It is thus necessary for the majority to begin its interpretation of sentence two by reaching outside the icritten constitution. Just where that reach extends, we are not told.
If sentence two of Section 11 can be reasonably interpreted without destroying the clear meaning of sentence one or doing violence to the purpose of the entire Article in which the Section appears, we are bound in the name of reason to so interpret sentence two of Section 11. The only reasonable meaning of sentence two, in context, must be that it gives the legislature the right to implement procedurally the substantive rights granted so absolutely in the first sentence of Section 11.
The majority focuses on the words “in such cases” which appear in the second sentence of Section 11. Those words, however, are part of a phrase appearing in the sentence. The full phrase is “in such manner, in such courts and in such cases. . . .” If the focus is on the complete phrase, or the complete sentence, or the complete Section, or the complete Article, the majority’s interpretation cannot stand. The majority’s interpretation depends upon a focus centered on three words—ignoring the phrase in which they appear— ignoring the sentence in which they appear—ignoring the Section in which they appear—and ignoring the Article in which they appear, all of which is called the Declaration of Rights for the protection of the people— who are the sovereign.
*584 In addition, the majority’s focus on the three words requires a second focus of the judicial eyesight, outside the written constitution for the discovery of a doctrine known as sovereign immunity originating in the days when authority had to be delegated to people rather than delegated to the state; and when the state was the sovereign rather than the people.
There is no sovereign in constitutional government—except the people. How can the state have any immunity if the people didn’t authorize it? How could the people have authorized it if it is not in the written constitution? How can the written constitution be interpreted to contain something which it clearly does not? How can three words in the people’s constitution be used to breathe life into a corpse which we buried centuries ago without shedding tears?
In the name of three misinterpreted words, we cannot allow special privileges by which some citizens injured by government shall have a remedy and not be denied right and justice (first sentence of Section 11), while other citizens are denied any remedy and are denied right and justice.
The concept that the state is sovereign has been dead for centuries. The corpse was not given any immunity by the people in the Pennsylvania Constitution. This Court should finally recognize the realities of history.
The order of the lower court should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764201. Public record. Not legal advice.