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
Felton, Justice,
dissenting. I respectfully dissent from the two propositions of law laid down in the majority opinion, (1) that the question of sovereign immunity is now exclusively a legislative function because of the Act of 1784, and, (2) that the question cannot be resolved by this court, even though this court has never passed on the question (an exception in said Act) whether the common law doctrine of sovereign immunity is "adjusted to the conditions or system of government existing here.” The Constitution of Georgia, Code Ann. § 2-8003 reads as follows: "Third in authority — Third: In subordination to the foregoing: All laws now of force in this State, not inconsistent with this Constitution shall remain in force until the same are modified or repealed by the General Assembly.”
The doctrine of sovereign immunity insofar as the State of Georgia is concerned, is of purely common law origin since neither the Constitution of Georgia nor any statute prohibits an individual or other entity from suing the State without its consent. This court has made the law that such is the case without considering and deciding whether the State can be sued without its consent in tort cases, and possibly others, comported with written constitutional guarantees of due process of law and equal protection of the law. *445 This court cannot escape its duty and responsibility with respect to such questions by ignoring them. In such circumstances 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. So I submit that this court now has the jurisdiction and power to construe the entire Act of 1784 and Code Ann. § 2-8003 — and to rule that the common law rule of sovereign immunity should not be applied to cases of tort liability in cases of negligent conduct of servants and agents not acting in governmental functions traditionally making the state or governmental agency immune from suit from a public policy standpoint, and in cases where no vested rights have accrued to prevent the abolition of immunization and where the rule of sovereign immunity "may not reasonably be supposed to have determined the conduct of the litigants, and particularly when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years.” Cardozo, The Nature of the Judicial Process, p. 151. I submit that not only is the change in the law demanded by the progress of humanity but by the specific bill of rights in our own written Constitution. The old rule simply won’t stand up under such requirements and we should discard sovereign immunity in this State and obey the mandates of our Constitution until the legislature proposes an amendment to the Constitution preventing a State from being sued without its consent or regulating the procedure for such suits and limiting the recovery or providing for the taking out of insurance against part or all of the liability. The provision for the old rule of sovereign immunity should only come from an amendment to the Constitution, ratified by the people of Georgia, who, after all, are the State of Georgia. The rule should not come from the shadows of antiquity where it was first thought that the king could do no wrong because *446 the king was held in such high esteem that he was thought to be incapable of wrong, but when the facts of life became a bit clearer, revised their opinion to the effect that a claim that the king could do no wrong was more conducive to longevity than any other position.
I think that this court, by a majority vote may dispose of sovereign immunity in the limited field aforesaid. As the majority rules, the torch is cast to the legislature which can be no longer in doubt about the fact that this court cannot even touch the question, and that it alone has the sole responsibility of protecting the constitutional rights of the people of Georgia, or leaving the question to the ancient fear that one must yield to absolute monarchial power or go to his death.
I do not mean that four members of this court can overrule a full-bench decision of this court which has construed the entire Act of 1784. No full bench decision has construed the entire Act. Not one has even mentioned whether the Act violated the due process and equal protection clauses of the State Constitution. I say that a majority of this court can now interpret that part of the Act which has not been construed and abolish sovereign immunity to the extent that I have above suggested.