*1 adequately sur Court courts.5 As Commonwealth opinion,6 for veyed us in its there is need cases these that discussion here. reiterate appellant timely file a conclude that did not We candidacy un- to seek retention election declaration Pennsylvania 15(b), Con- der Article section Y, procedure enables an election stitution. retention po- judge of a normal to avoid the burdens incumbent judge’s responsi- campaign. litical is the However, filing requirement bility comply section with 15(b) if he to avail himself wishes convenience. apparent appellant responsi- It did not meet this only days bility. he ten before the Not did wait until taking any prior pursuant qualify- action deadline ing but fol- himself retention he made no election, days low-up on until his initial letter ten the dead- after we cannot line. Under these see circumstances, how injustice. any appellant has suffered Order affirmed. 5 See, Lombardo, (1916); e.g., v. U.S. 73 Phin United States Ass’n, (5th 1964) ;
ney
Bank
Nat’l
Control Board. *2 Before Jones, 1972. C. January J., Argued Pomeroy Nix, Roberts, JJ. O’Brien, Eagen,
reargu- 1971. January 7, refused ment Brickley, Bernstem, B. with him Yale J. William appellant. Brickley, Torpey for & Bernstem, Attorney Assistant Jaffurs, General, Alexander J. Langan, Shannon, Leonard and Thomas J. him J. with Attorney At- Creamer, and J. Shane Generals, Assistant torney for Control Board, General, appellee. 1973:
Opinion O’Brien, March Mr. Justice wrongful death Appellant this action instituted *3 Dauphin Court of Common Pleas, the and survival Pennsylvania County, as The named defendants: and of the Liquor the members Board, Control individual manager of Director of State and the Stores, the Board, specific Store. a State sixteen-year- alleged
Appellant the a that decedent, whiskey boy, purchased from a a bottle Scotch old boy part be- consumed of the bottle, The State Store. a of his result intoxicated condi- drunk, and, came escape a floors from fire to death. his fell eleven tion, objections, Attorney preliminary filed General The Pennsylvania Liquor averring Control Board the that instrumentality agency of the Commonwealth; is an against is an action the Board an action Commonwealth cannot be Commonwealth; and that there its has been consent; without sued Appellant case. in this answered these consent objections. preliminary subsequently proceeding transferred was to the Pennsylvania, where the Court At-
Commonwealth General’s torney objections were preliminary sustained, with judges two Biello Control dissenting, Bd., 1 Pa. Ct. 179 and the com- Commonwealth (1971), plaint dismissed; was followed. appeal case of the
This raises the question from state tort. agency actions The doctrine of in Penn sovereign immunity arrived sylvania in Respublica v. 1 Dallas Sparhawk, That a case was suit to recover value of flour relocated by the Board Pennsylvania War pur suant a legislative prevent directive to British cap ture of should supplies they occupy Philadelphia. in Sparhawk did not contend plaintiff “that, generally citizens sue speaking, the State; but only that every which is not Government, absolutely some provided means despotic, (in England, a instance, petition Chancery) obtain redress injuries 1 Dallas sovereign.” at 361. Chief Justice responded by affirming M’Kean order relocation legislature’s right be- private longings necessity when war He demands. was not with the plaintiff’s plea that impressed loss be “It is a it is spread. rule, however, better suffer than a private mischief, public inconvenience; form necessity our rights part law.” Dallas at 362. extended in John Black
Sparhawk v. Rempubli Yeates 110 a case which cam, had seized galley private provisions while captains flee the British across the Delaware ing from River. The *4 to feed their provisions used own captains troops the landowner compensation. and promised court had no captains since authority held that to con in could be no recovery there contract, tract, fur and, in Sparhawk recovery ther that tort. precluded a creature sovereign of pure Were com- a be disposed might mon we consideration law,
183
abrogation
criticized doctrine.1 However,
much
11 of the
Constitution
Section
Article I,
may
brought against
provides,
be
inter alia: “Suits
courts and
such
manner,
such
Commonwealth
may by
Legislature
This
direct.”
law
such cases as the
interpreted
consistently
been
to mean
has
against
in tort until
be maintained
the state
no suit
specifically
provided
legislature
Meagher
A.
Pa.
266
Commonwealth,
532,
439
action.
v.
Corp.,
(1970);
Nat. Gas
404
Bannard v. N.Y.S.
2d 684
(1961);
v. Common
2d
Brewer
Pa.
172 A.
306
269,
Telephone
(1942); Bell
Pa.
Justice Musmanno (1962). A. 2d page complete States, §215, C.J.S., For 1304. list See 81 State, holding, jurisdictions Krause v. 31 Ohio see St. 2d so Raudabaugh State, 96 Ohio St. N.E. 2d 118 N.E. *5 184 record. to the nominal parties reference to
solely by A. Pa. 182 609, 407 Commission, Turnpike Rader v. Pa. Pa. 349 Gelder, v. Merchants’ Co. 2d 199 (1962); Lewis, v. su Co. 444 Bell Telephone A. 2d (1944); 36 pra. the Pennsylvania held: “that Court Rader,
In of the instrumentality Commission Turnpike [is] in a governmental Commonwealth engaged function damages and injuries for . . . not liable and therefore is in orig- (Emphasis 611. page action.” At trespass in a of immunity approved subsequently We inal.) in Thomas function in governmental engaged agencies (Turnpike A. 653 (1969) Pa. 252 2d 433 Baird, Pa. 413 Authority, General State Roney v. Authority); Authority); State A. 2d (1964) (General 349 A. 2d 514 Pa. in Anderson Appeal, and Authority). Port River (Delaware (1962) not before expressly we have While and between governmental the distinction employed the sovereign when considering functions proprietary nonetheless been implicitly immunity doctrine, In doctrine. many our application present bar to we found the exist, where we have decisions our function was performed being noted that Authority, one. v. General State Roney governmental Pa. Rader v. supra; Turnpike Anderson Appeal, supra; Gelder, Merchants’ Co. Commission, supra. supra, distinction between governmental In accepting are of the appreciative we functions, and proprietary our courts this dis by using experienced difficulties of the the context governmental tinction of Mr. warning are mindful Justice cases there is issue known to the law “perhaps Cohen more confusion.” Morris v. Mt. is surrounded which Pa. Sch. 144 A. Dist., 2d Twp. Lebanon Mr. Justice also See dissent 737 (1958). Musmanno’s Springfield Twp., in Boorse v. 103 A. 2d remaining The sole issue is whether the acting governmental proprie Control Board or tary capacity young Joseph when it sold Biello a bottle *6 whiskey. supra, In Merchants’ Co. v. Gelder, case sought where a warehouseman contractual relief Liquor liquor storage, the Control Board for we held prescribe proce that the could State the manner and enjoyed dure to be used in such because suits the Board immunity. the State’s In the Gelder, court reasoned storing whiskey that the while Board, as wholesaler, performing essentially governmental function regulations under the exhaustive set of in our set forth Liquor April Code. ofAct P. L. Art. I, seq., seq. §101 §1-101 et 47 P.S. et We are unable distinguish Gelder from the instant case. The retail sale liquor engaged by herein in the board is as much a part comprehensive of the Commonwealth’s scheme to regulate consumption the sale and of alcohol as is stor ing the alcohol for distribution to the state the stores, activity question in Gelder. appellant
doWe not as believe, that the contends, liquor solely Commonwealth is in the business in order pur- to raise revenue. If revenue were, fact, the real pose Liquor for the Control Board’s activities, would operate not need to all retail outlets. a tax in Instead, nature of a sales tax the could have been enacted to necessary raise all revenue without the concommitant regulation. argues by
Appellant enacting §493(1) also that Liquor §4-493(1)], Legislature P.S. [47 the Code the of Article the Section has, Pennsylvania I, 11 of the “directed”
Constitution, the Com- may be sued cases such as monwealth this. Section Liquor provides: 493(1) of the Code “It shall be un- any employe, . . . the or [f]or board, ... lawful servant any liqnor agent . of . board ... to sell . . . . the or any .” minor. . . ... only possible
According appellant’s argument, the Legislature’s having explanation un- made it for the liquor to for the Board to sell minors was lawful civilly held Board could be liable indicate that the consequences since criminal sanc- the such sales, imposed. 11 of Article Section I, tions are However, if Constitution indicates Legislature to be liable to suit, Commonwealth is “manner and courts” which must direct the types brought, of cases in as suits well permitted. not do believe suit We which type §493(1) Code is enactment requires. the Constitution of “direction” which Consequently, case because we believe that Penn G-elder,Article Section 11 controlled I, requires sylvania that we affirm. Were Constitution *7 might impression, interpret the a case of first we this given interpretation language the However, otherwise. precedent appar steeped by our courts is historical by Legislature people ently the and the concurred Pennsylvania, in no been made the effort has over provision. years change the believe We, therefore, to provision, interpreted meaning of this as the consistently, only long and can for so so now been by changed legislative appropriately action.3 Judgment affirmed. Manderino took in the part
Mr. Justice consid- of this or case. decision eration Eagen Pomeroy and Mr. Justice Mr. Justice concur result. the solution, legislative by obvious chosen such states as Oregon, Nevada, Oklahoma, York, Illinois, California and New past, comprehensive appeals claims statute. In the tort our example invariably Legislature upon their to follow fallen Supler Twp. See, e.g., Dist., v. N. Franklin Sell. ears. deaf Pa. by Opinion Dissenting Mr. Justice : Nix respectfully I dissent. majority
Again,
has refused
court
this
the
responsibility
an anachron-
accept
down
and strike
its
sovereign
known
in the
ism
law
many
immunity. Although
others
court
this
throughout
occasions
on numerous
nation have
this
vestige of a dis-
recognized
an obsolete
the doctrine as
persists
refusal
majority
in its
past,
court
tant
this
by
injustices
remedy
doctrine
occasioned
offering only
protestation
court does
that the
the weak
power
This
possess
abolish this doctrine.
not
genesis
premised upon
that the
the belief
conclusion is
immunity
rather
law but
not common
of this State.
the Constitution
that it is mandated
history
and the clear
of this doctrine
Both the
premise.
this
of this State refute
the Constitution
immunity,
country,
Sovereign
is a derivative
system
system.
English
Under that
feudal
disputes
provided courts to resolve
of the manor
lord
arising
his
fiefdom
concomitant with
and,
within
authority,
immune
lord
deemed to be
absolute
system
English
court.1 As the
devel
from suit
his
powers
monarchy,
king
oped
assumed the
to a
among
powers
preroga
these
feudal lords and
thirteenth cen
from suit. This
was his
tives
sovereign immunity
mon
tury
existed as the
version
prerogative.2
personal
arch’s
;
Morrison,
(1962)
400 Pa.
182 A. 2d
Stouffer
Twp.
Dist.,
(1960) ; Morris v. Mt. Lebanon
Sch.
2d 378
162 A.
only Rope
they
We can
By century, king’s powers the sixteenth were conceptualized prerogative and his State, not to sovereign immunity be sued became for the State.3 That immunity ways: be could circumvented in two long, upon petition, could consent to or The Court suit; Exchequer King’s power grant could use its Bench against derogate relief “[I]t crown. would King’s imagine equity honour that what person equity against a common should not be only rarely English him.”4 did the Thus, version sovereign Immunity operate complete as a bar to a plaintiff’s recovery.5 history concept
From this it is evident that the immunity firmly State’s from suit was a established English long doctrine of the common law before this Pennsylvania Commonwealth had been conceived. I believe that the Further, the Constitu- any provide majority’s tion itself fails to basis assumption immunity con- stitutionally present mandated. Neither within the Con- any predeces- stitution this Commonwealth nor of its expressed grant can there be sors found contrary, merely from suit. To the Article 11 I, Section sets forth the mechanism which the State waive originally king privileged the maxim meant was not Borchard, wrong. Liability Tort”, to do “Government 34 Yale ; Proceedings Against (1924) Ehrlich, 1216-1877, 2 L.J. the Crown p. at 42. Party Watkins, Litigant”, Hopkins “The State As a 12 John University In Historical and Studies Political Science Series XLV (1927). at 11 No. Atkyns, B., Attorney-General Pawlett v. The Per Eng. Rep. 550, Dyson 465, 469; Attorney- 552. Hadres v. The (1911) K.B. 415. General Corning Hospital Muskopf District, 55 Cal. 2d Interestingly enough, sovereign immunity P. 2d developed as an United States absolute bar and no suit could expressed brought waiver of the without State. Borchard, See supra, at 4. note *9 brought may be provides power.6 that: “Suits It in manner such in such the Commonwealth legislature may law as the in cases courts and neither is therefore neutral—it direct.” The Constitution merely immunity. sovereign prohibits requires It nor presence im provides of that the or absence munity manner. in a be decided non-constitutional shall accepted the then The framers of the Constitution concept sovereignty prevalent include of imple attempted through this section from suit, power to actions to consent of State ment brought against it. portion directed of the Constitution was also
This resolving of there in was, fact, the issues whether power power and if that was found to consent to suit government power had the which branch exist, majority mistakenly judgment. The to exercise that recognized that since the the need concludes framers they thereby the resolution these issues mandated judgment my an In it is u/nwa/rrant- doctrine itself. grant power to assume ed conclusion legislative that this im- consent to the branch powers plicitly abrogation the court’s traditional principles they longer when no to abolish common law meet the needs the time. provision
Construing a their State similar Consti Supreme Court of Indiana in the case of tution the 252 Ind. 251 N.E. 2d State, Perkins dealing (1969) here not a are with constitu noted: “We principle prohibition, rather but with com tional roots the ancient common law which its law mon England. . . .” also State 286 N.E. See, Turner, 2d 1972). ( Ind. I, present language before us 11 of our Article Section original to the is identical used Con- Constitution stitution. being principle of than common law rather
This questioned prohibition, a constitutional it cannot power principle that the have the to alter that courts longer principle with when that consistent society. principles present needs of our “The rules been final but truths, case law never treated as continually working hypotheses, retested those *10 justice. great of the courts law, laboratories Every experiment; accepted and if the case is an new applicable yields rule a result which is which seems may unjust, not felt to the rule reconsidered. It be is jus- attempt for an to do absolute modified at once, development every single tice in make the case would general impossible, if a but and maintenance of rules injustice; eventually be rule it will continues to work The Nature of the Judicial reformulated.” Cardozo, J., (1921). It must be concluded that the Process, principle long be re- time when this should overdue assessed. power
Having the concluded that this court has immunity, abrogate sovereign I also conclude would By the end of the that it should do so this case. eighteenth century, the of this union had accumu States Independence. resulting from the lated debts War sovereign immu doctrine of chose to invoke the Most nity financial disaster.7 decision in order to avoid Yeates 139 in Black et al. v. Rempublicam, by partially motivated such considerations. at least at 141. 1 Yeates See, sovereign immunity pos- have
The fact that eighteenth the end of the rationale at a viable sessed century a reconsideration of that not foreclose does furor of tlie caused United States For a discussion Georgia, (1793) Supreme in Chisholm 2 U.S. decision Court’s Georgia to circumvent South permitting resident Carolina’s sover- by suing Court, Currie, in a eign Federal See doctrine Courts, (1968). Federal day society. present “If the of our rationale view woefully misinterpreted judges mores of their have longer day day, those or if the mores their are they ought helpless to tie in submission, not ours, The Nature J. hands of their successors.” Cardozo, Process, Judicial immunity may validity sovereign had Whatever century disappeared. eighteenth Modern budgets employ governments dollar multi-billion state incon been functions which would have to undertake philosophy faire of earlier the laissez ceivable under why absolutely years. a state should There no reason (unless prefers liability it itself tort not insure just enterprise self-insured) every private to be injustice sovereign im doctrine must.8 munity one bar. as the at a case such is underscored selling into the business the State has entered Here, profits.9 doing, reaps liquor, millions in so majority invokes doctrine Still, only immunity—a possible rationale doctrine whose *11 faltering protect treasuries—to shield colonial towas liability. profits from tort these overwhelming majority of commentators also liability immunity for tort that conclude e.g., on 3d Prosser See, Torts, its usefulness. outlived (1933); Harper, p. The Law of Torts Mc Ed., 1010; Liability For L. 30 Harv. Rev. 20 Tort”, “State Guire, supra; Leflar (1916); “Tort Kantrowitz, Borchard, (1954). Liability 29 N.Y.U.L. 1363 Rev. States,” of the judicially abrogated have our states of sister Several sovereign immunity. e.g., Stone v. See, the doctrine Highway 93 Ariz. 381 Commission, P. 2d 384, Arizona 8 Litigation”, 355, Green, See, 38 Ill. L. Rev. 379- “Freedom 383 1971, 9 ending year the L.G.B. June realized a fiscal In the including $149,964,222.25 taxes. profit of net 192 District, v. Muskopf Hospital
107 (1963);
California
v. State,
P.
Smith
;
55 Cal. 2d
2d
(1961)
State v. Turner,
93 Idaho
473 P. 2d
(1970);
(Ind. 1972);
City
I am at a loss to find any justification completely I unjust for result and allowing therefore dissent. joins Roberts
Mr. Justice
dissenting opinion.
many
judicially
great
abrogated
more states Rave
A
governments, believing
local
doctrine
*12
a rational basis.
lacks
See the
also
dissents of Justice
Baird,
433 Pa.
Thomas
A. 2d
Roberts
Harrishurg,