“It would seem to logically follow, we thought, that this constitutional provision would apply to a county acting in its governmental capacity if it be a fact, as our cases hold, that in such a situation counties ‘partake of the immunities of states while acting in a governmental capacity’, and also since they are, in such capacity, only a ‘governmental division of the state.’”
How later courts described this case
- “It would seem to logically follow, we thought, that this constitutional provision would apply to a county acting in its governmental capacity if it be a fact, as our cases hold, that in such a situation counties ‘partake of the immunities of states while acting in a governmental capacity’, and also since they are, in such capacity, only a ‘governmental division of the state.’”
- eradication of sovereign immunity is in the sphere of the Legislature, not the courts
Written by the judges who cited it.
The opinion
On Petition to Rehear.
Speaking plainly, a “mighty” fine, strong and spirited petition to rehear has been filed in behalf of Scates, wherein'the first insistence made is that this Court entirely misinterpreted Moore v. Tate, supra.
It is asserted that Moore v. Tate, properly construed, supports the insistence that Scates is entitled to maintain his cross action, because it “arose out of the very transaction which is the subject of the lawsuit”. In support of that insistence, petitioner quotes extensively from page 730 of 87 Tenn., page 936 of 11 S. W. of Moore v. Tate. The burden of the quotation is that when the State institutes suit it thereby puts aside its sovereignty to the extent that “the defendant would be entitled to plead and prove any and all matters properly defensive, including credits and set-offs, so far as the latter are dependent on, connected with, and grew out of, the transaction which constitutes the subject matter of the suit.” (Emphasis supplied.)
The petition asserts that the language above quoted from Moore v. Tate is authority for the proposition that Scates may maintain this counter-suit against the City for a tort committed while acting in its sovereign capacity. We are constrained to conclude that counsel, in so insisting, may have inadvertently overlooked the expression “properly defensive” in the quotation above stated. Interposing proximate contributory negligence as a de *280 fense is quite a different matter from maintaining a cross-action to recover from the sovereign for an alleged tort.
The petition next says that this Court’s opinion in this case “is the first, so far as we have been able to learn, that predicated the governmental immunity of a municipal corporation upon the constitution”, and that “the present case is the only one in the judicial history of this state based upon the constitution * * *.” Petitioner is referring to the consideration in the opinion of Article 1, Sec. 17. Perhaps our opinion did not make clear the reasons for our statements with reference to the applicability of this provision of our Constitution.
McAndrews v. Hamilton County, 105 Tenn. 398 , 404-405, 58 S. W. 483, 484 , states five reasons why a county, while acting in a governmental capacity, is not liable in tort for negligent acts. Two of those reasons ,are stated as follows: — -“(3) that it is a subordinate political or governmental division of the state; * * * (5) That counties are instrumentalities of government, and partake of the immunities of states while acting in a governmental capacity.” Article 1, Sec. 17 forbids the institution of suits against the State in the absence of a statute expressly so permitting. It would seem to logically follow, we thought, that this constitutional provision would apply to a county acting in its governmental capacity if it be a fact, as our cases hold, that in such a situation counties “partake of the immunities of states while acting in a governmental capacity”, and also since they are, in such capacity, only a “governmental division of the state”.
Of course, the same rule would apply to a municipality while acting as a governmental entity. “But in so far as purely governmental powers are concerned, and in *281 respect to the general administration of the general law of the state, and in respect to all duties which are essentially public, and not local and special, they (municipalities) are deemed to be agencies of the sovereign power, and not subject to be sued for the torts of their agents or officers, unless by statute an action is given.” Davis v. Knoxville, 90 Tenn. 599, 602 , 18 S. W. 254 .
This Court, in Williams v. Taxing District, 84 Tenn. 531, 534 , apparently took the same view as to the applicability of Article 1, Sec. 17, as this Court did in the case at bar. In discussing Article 1, Sec. 17, and in connection with tort liabilities of counties, this Court there said:
“Suits may be brought against the State in such manner and in such courts as the Legislature may, by law, direct. It will be noticed on the fact of this section of the Constitution, that, notwithstanding the generality of the language touching a man’s remedy for an injury to his person, reputation or property, yet there is a class of injuries for which there is no remedy unless the Legislature shall so direct by law, namely, injuries inflicted by the State. Until the Legislature chose to legislate on the subject there was no redress in the courts: Williams v. Register, Cooke 214 . And the redress or remedy thus given might be repealed at any time: State v. The Bank of Tennessee, 3 Baxt. 395 . A Constitution, moreover, must be understood and construed in the light and by the assistance of the common law, and with the fact in view that its rules are still left in force. The Constitution is not the beginning of law for the State, but it assumes the existence of a well understood system, which is to remain in force and be administered, under such limitations and restrictions *282 as that instrument imposes. Cooley Const. Lim., 74. People v. Draper, 15 N. Y. [532] 537; Pope v. Phifer, 3 Heisk. 682 . ‘ ‘ By the common law, the citizen had no remedy against a county for an injury caused by the neglect of the county to keep the public roads in good repair. ’ ’ 84 Tenn. at page 534-535 .
That just quoted would, of necessity, apply to a City, as well as a county, when the city is acting in its governmental capacity.
However, the disagreement between this Court and petitioner as to the application of Article 1, See. 17 to the case at bar is academic and immaterial. Petitioner concedes that with reference to torts committed by agents or servants of cities in the exercise of a governmental function “the common law gives no such action, and it is, therefore, not sustainable at all unless given by statute.” White’s Greek Turnpike Co. v. Davidson County, 82 Tenn. 73, 74 . The Court was dealing there with a county but the law is, of course, the same as to a City. There is no statute permitting such a suit against a City, lienee, whether Article 1, Sec. 17, is, or not, applicable, the result is the same. The City is immune.
Perhaps what has just been said disposes of the point sought to be made in the petition by reason of the fact that a suit may be maintained against a municipal corporation, acting in a governmental capacity, in a nuisance case. Therefore, this observation of the petition will not be noticed further than to observe that “the state has not authorized (a county or city) to commit a nuisance, because such an act is not an attribute of sovereignty.” Chandler v. Davidson County, 142 Tenn. 265, 273 , 218 S. W. 222 , 224, and opinions since overruled on other grounds. Buckholtz v. Hamilton County, 180 Tenn. 263, 267 , 174 S. W. (2d) 455 .
*283 Next it is said in the petition that “We presume this Court will take judicial knowledge of” the private act which is the Charter of Union City, and that this Charter provides that the City may ‘ ‘ sue and be sued, plead and be impleaded in all courts of law and equity and in all actions whatever.” As said in the petition, this is the first reference in this case to the charter of Union City. The petition drops the subject after making the above observation. The purpose of the observation is not apparent unless it be intended as an insistence that Union City may be sued by reason of its charter provisions for the results of a negligent act committed while acting in a governmental capacity. If that be the purpose in referring to this charter provision and, if it is thought to have that legal effect, then have not all of us wasted a lot of time and effort in seeking to determine the question made independent of that charter provision?
If the charter provision in question meant what we take the petition to rehear implies there would be applicable that holding in Williams v. Taxing District, 84 Tenn. 531 , 537-538 that
‘ ‘ and it is very true that a provision of a municipal charter, which undertakes to make a law for, or in regard to, that municipality different from the general law, or to withdraw from the operation of a general law, applicable to all municipal corporations, a particular corporation, or class of such corporations, would be obnoxious to the clause of the Constitution last cited, because not the law of the land. ’ ’
Finally, it is said that “the whole doctrine of governmental immunity from liability for torts rests upon a rotten foundation”. Instead of taking issue with *284 petitioner on that statement, we simply remind him that the governmental immunity rule is entirely too well established by consistent adherence thereto throughout the history of our State to admit now of repeal thereof by the judiciary, rather than the legislature, because the rule does not meet our personal notion of what is justice.
Let the petition to rehear be denied.