holding that the sovereign immunity doctrine established by pre-Revolution English common law could be modified only by statute, over a dissent by Justice Felton, id. at 445, arguing that “this court still has the power, duty and authority to alter court-made common law rules by determining whether strictly court-made common law rules, not altered by statute or constitution, may be adjusted to different government and different social needs, different from those existing at common law”
How later courts described this case
- holding that the sovereign immunity doctrine established by pre-Revolution English common law could be modified only by statute, over a dissent by Justice Felton, id. at 445, arguing that “this court still has the power, duty and authority to alter court-made common law rules by determining whether strictly court-made common law rules, not altered by statute or constitution, may be adjusted to different government and different social needs, different from those existing at common law”
- "[P]ublic policy ... addresses itself to the legislative, not the judicial, branch of our State government."
- with Chief Justice Nichols dissenting
Written by the judges who cited it.
The opinion
Nichols, Justice,
dissenting. I dissent from the holding as to sovereign immunity. While I recognize the numerous full bench decisions of this court, some of which are cited in the majority opinion, dealing with sovereign immunity, thé conduct of the legislative and executive branches of government has long since waived such immunity insofar as tort claims are concerned.
In 1952 the General Assembly enacted a law providing for hearings on Compensation Resolutions and Bills. Ga. L. 1952, p. 169.
In 1963 the 1952 Act was repealed and the Claims Advisory Board was created (Ga. L. 1963, p. 624; Code Ann. §47-504, et seq.). This latter Act, subsequently amended, provides for a procedure whereby claims against the State may be investigated and a recommendation made to the General Assembly. The General Assembly is not bound by such recommendation which the law provides is merely "advisory in nature.”
In Trice v. Wilson, 113 Ga. App. 715 ( 149 SE2d 530 ), I, as a Judge of the Court of Appeals, concurred in an opinion holding that the General Assembly had not waived the sovereign immunity, and I agree today that it has not expressly waived such immunity. Under the decision in National Distributing Co. v. Oxford, 103 Ga. App. 72 ( 118 SE2d 274 ), a decision which was controlling upon the Court *442 of Appeals at that time, such conclusion was inescapable.
The Supreme Court is not bound by such decisions and no decision of this court has construed the effect of the 1952 and 1963 Acts relating to the payment of claims by the General Assembly.
Such Acts have the effect of expressly authorizing the General Assembly to make what was held in Trice v. Wilson, supra, to be a gratuity. No attack has been made as to the constitutionality of such Acts and no such question is now presented. The sole question is the effect of such Acts and the effect of the numerous resolutions passed by the General Assembly and approved by the executive branch of government upon the doctrine of sovereign immunity. A reference to the Tabular Indices of the volumes of the Georgia Laws since 1952 will show that the General Assembly has consistently granted gratuities because of the torts of State employees acting within the scope of their employment.
Since the State is without authority to grant gratuities (Article VII, Sec. I, Par. II of the Constitution; Code Ann. § 2-5402), the effect of such payments, if legal, must be something else. For nineteen years the General Assembly has, under the above cited Acts, made payments to persons suffering injuries from the torts of its employees. For nineteen years there has been no equal protection of the citizens since even the opinion of the investigating body has been advisory only. For nineteen years only injured persons who could obtain the aid of a member of the General Assembly could possibly obtain relief since only members of the General Assembly could introduce a compensation resolution. For nineteen years the legislative and executive branches of State government have granted gratuities to some citizens while not providing equal protection to other citizens similarly situated in violation of Article I, Sec. I, Par. II of the Constitution (Code Ann. § 2-102), which provides that "Protection to person and property is the paramount duty of government, and shall be impartial and complete.” This provision of the Constitution provides for *443 equal protection of all citizens under same or similar circumstances. See Baugh v. City of LaGrange, 161 Ga. 80 ( 130 SE 69 ). While it has been held that discrimination in grant of favors by government is not controlled by this provision of the Constitution (see Schlesinger v. City of Atlanta, 161 Ga. 148 ( 129 SE 861 )), this exception has no application to the grant of damages for injuries to some citizens and the denial of such damages to other citizens under similar circumstances.
The effect of the creation of the Claims Advisory Board and its predecessor under the 1952 Act and the enactment of hundreds of Compensation Resolutions was to create a waiver of sovereign immunity as to claims by those citizens injured by the tortious acts of State employees acting within the scope of their employment who were fortunate enough to be able to obtain the aid of a member of the General Assembly to prosecute their claim. This waiver of sovereign immunity under the mandate of the Constitution must apply equally to all citizens and to apply equally to all citizens, all citizens must be entitled to redress on the same conditions. This being so, I believe that until such time as the General Assembly sees fit to establish such a procedure, any citizen injured by the acts of the State through its agents is entitled to pursue his relief in the courts of this State. What I would hold in nowise conflicts with the full bench decisions cited in the majority opinion.
The contention has been made that while the 1952 and 1963 Acts are patently unconstitutional, that no such question has been presented in the instant case and even if raised, the proper procedure would be to declare such Acts unconstitutional not to extend the benefits created by such Acts from the few to all citizens.
If an attack was made upon such Acts, it would, under prior case law, be held that the person attacking such Act had no standing to attack the same since it would not be an infringement upon his right of person or property (see Crumley v. Head, 225 Ga. 246 (3) ( 167 SE2d 651 ), and citations), for even if declared unconstitutional he would not be *444 entitled to recover for damages resulting from the torts of State employees.
Not only is it the duty of this court to apply the Constitutional mandate, to wit: "Protection to person and property is the paramount duty of government and shall be impartial and complete,” but we have the provision of the Code that: "For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other.” Code § 3-105. The General Assembly in providing a method to compensate some citizens for the torts of the State’s employees acting within the scope of their employment, created the right for all citizens in the same or similar circumstances and the Supreme Court not only has the right but the duty to frame the remedy for all citizens in the same or similar circumstances.