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
Hawes, Justice,
dissenting. I wish the record to show that I heartily concur in the dissents of Justice Nichols and Justice Felton, with the following observations: The rationale of these dissents offers the majority of this court an opportunity to discard the "straight-jacket” of full bench decisions, which were born of another era. The doctrine of sovereign immunity was born in the common law of England on the thesis that the king could do no wrong; but we are not ruled by a king, we are a government "of the people, by the people, and for the people,” and it is called a republic.
What constitutes a State? It is not our cities or our farms; it is not our ports, mountains, or plains, but people — people constitute a State. I feel that the State and its subdivisions created by the legislature should not be al *447 lowed to hide behind this cloak of immunity. State government is big business, the largest employer of its people. The State, like other businesses, has an obligation and a duty to protect the public from the negligence of its servants and agents. The State carries insurance to protect property owned by the State; why not coverage to protect life and limb of its citizens from accidents caused by the negligence of its servants or agents? The majority opinion states, and I quote, "Whether it should now be abrogated [speaking of sovereign immunity] is a matter of public policy which addresses itself to the legislative, not to the judicial, branch of our government.”
With this statement, I cannot agree. I feel that we do have a judicial responsibility to decide the issues. That is the purpose of these dissents. But, since the majority says this question is a matter of public policy which addresses itself to the legislature, since they are the representativés of these unprotected people, perhaps the legislature, in its wisdom, can pick up where these dissents leave off and correct this long overdue injustice to their constituents.
I like to think the time is ripe for Georgia to join the other States of the Union which have abandoned this unfair and obsolete doctrine.