*1 representa- a house of senate sist of
tives” ? enacted, 306, if con- H.B. said
2. Will the Constitution 53 of
travene Section of the
Alabama, in each house which vests members punish
lеgislature the in its disorderly contempt or behavior protect its members
presence and to corrupt bribes or solicita-
against offers of ?
tions does Act If H. is not enacted
3. Regular
No. Session S. form, present
in its also contravene mentioned sections and 53 of
above
Constitution of Alabama. FURTHER, That
RESOLVED hereby
Clerk the House is directed to bill, copies pending
send nine true copies
H.B. of Act nine true No. Regular 1 of S. Session 1973 to
the Clerk the Supreme Court of Ala-
bama, and transmit request Court forthwith
Justices adoption Resolution. So.2d
Cecil D. JACKSON Poellnitz, Florence, A. appellant. C. FLORENCE, Municipal
The CITY OF Corporation, et al.
SC 934.
Supreme Court of Alabama.
July 10, 1975.
Rehearing Denied Oct. *2 Hamilton,
Drayton Montgomery, N. for Municipalities, League Alabama amicus curiae.
SHORES, Justice. appeal This is an from by trial sus- nonsuit occasioned court’s city’s taining the defendant demurrer complaint. plaintiff’s motion to dismiss the specified grounds The trial court sustained, saying: which the demurrer was opinion . The court of the that the demurrer is due to be sustained under the doctrine of immuni- ,ty injuries inflicted liability agent municipality acting an governmental capacity is well es- opinions tablished ” Court of Alabama . Florence, Teks, appellees. Arnold complaint damages against claimed City police and a officer Florence injuries plain- personal sustained proximate negligence tiff as a result of the acting police and wantonness of officer n duty. alleged It was line officer, police police engaged while City Florence, negligently officer of the willfully (Count I) assaulted or wan- tonly plaintiff, an (Count II) assaulted unarmed, 130-pound seventy-five-year-old, force, man result- the use of excessive eye. plaintiff’s right of his loss claim, pursuant In his to Title filed 504, Code, plaintiff asserted: 1, 1972, August “On I was arrested at Shanty Restaurant on South Court Florence, Alabama, Montgomery, City Florence Ala. Street Chaffin Officers, Grady (1962); City So.2d 267 McSheridаn v. Police Smith Short, 6:55, p. approximately Talladega, m. 8 So.2d Lee police and McCarter v. Flor took me to the The named officers ence, Florence, (1927). Ala- So. 335 City Hall in station at the bama, where escorted into a small I was generally It is agreed *3 by named Then room the two officers. immunity sovereign developed of in this police officer, City Grady and there country English doctrine, Smith, near struck me the face on or concept grew “King out of can eye, rendering momentarily me my right do wrong.” no this occurred in That unconscious, inflicting inju- and serious America, given background historical eye my and right ries to face. I was Revolutionary War, which led to the permitted neither to seek mediсal atten- mysteries legal “one of of evolution.” injuries for tion said officers said nor Borchard, Responsibility in Government any attempt made said officers to Tort, 1, 34 (1924). Yale 4 The con L.J. get medical attention for me. Immedi- cept of from tort ately me, said assault following the on I claims beginning English had its upstairs in was taken these officers Devon, case of Russell Men v. 100 of put jail City the said cell Hall Eng.Rep. which, 359 it has been (1788), kept following there until morn- noted, years 12 after the Declaration viz., 2, ing, August 1972. Independence. of Massachusetts is said to be the first state in the jail United during cell States to “While in the adopt 1, judicial 1972, night decision in August of and the morn- Leicester, Mower v. 2, 1972, Inhabitants repeatedly 9 Mass. August of I of (1812). 247 quested get to be taken to a doctor to my eye. for medical attention Notwith- Alabama first question considered of standing my requests, repeated I was not liability municipalities tort 1854, of taken to a until around 7:30 doctor on Smoot v. The Mayor, Wetumpka, etc. of 2, August 1972, the morning of at which 24 later, Ala. years 112. Four it declared by City time I was driven police officers cities immune to for suit torts committed Hospital Eliza Memorial Coffee by agents in the governmen- exercise of a Florence, Alabama, and carried to the tal function. v. Dargan Mayor, etc. of emergency Dr. Shaler Roberts room. of Mobile, 469, 31 Ala. 70 Am.Dec. 505 the Florence Clinic was called in to ex- (1858). long There followed line of cas- my еye amine and found that it was holding municipalities es were liable damage.? eye an to such extent that the for torts committed in the exercise of their immediately had to be removed.” proprietary or capacity, but were immune from suit for the commission of Appellant acknowledges, as indeed he torts in their capacity. must, that request this is a “head-on” for a During re-examination of period, and reconsideration this same this court made question broad Alabama whether munic- distinction in connection with streets. ipal corporations should enjoy continue to Smoot v. The Mayor, Wetumpka, etc. of liability supra, wrongful for the in holding cities were liable acting acts of their аgents negligent within the injuries line arising out of de- scope employment. spe- streets, of their fects in More liability the court fixed cifically, he seeks re-evaluation theory of this on the that there was a breach of 502, court’s of Title construction an affirmative duty part on of the § that, keep Code. He further admits him good repair. the streets in prevail, must long this court overrule a street cases did rest on the distinction including, to, line of cases but not limited between or proprietary func-
595
presumption
as to raise a
length of time
May
torts. Albrittin v.
tions, as did other
part
on the
Huntsville,
knowledge of such defect
60 Ala.
Aldermen
or &
council,
city or
and whenever
v.
Am.Rep.
(1877); City
46
Selma
31
an
town shall be made liablе to
Perkins,
(1880);
Council
599
community
open
“Three courses are
us under
among
tributed
the entire
presented
such a situation as is
here:
constituting
government,
where it
hardship upon
(1)
merely
We can
announce
new
could be borne without
individual,
any
applying
suggest
rule without
it
that
justly
and where it
be-
”
applied
it
longs.’
brought
should be
to cases
us in the
relief
(2)
give
future.
canWe
abolishing
the doctrine of mu
case,
appellant
in the instant
but
nicipal immunity,
joins
growing
Alabama
a
deny
any
injuries
it to
others whose
oc
abolishing governmen
number of states in
opinion;
curred before the date of the
tal
as to various
apply
in the in
We can
rule
(3)
Com.,
Highway
Arizona
93
units: Stone v.
permit
stant
all
case and
others who
384,
Muskopf
(1963);
381
Ariz.
P.2d 107
have
injured,
been
not barred
Dist.,
211,
Hospital
55
11
Corning
v.
Cal.2d
limitations,
advantage
statute of
to take
Cal.Rptr. 89,
Har
(1961);
In deciding, as approach we im- common sense people munity for tort is state abolished had created democracy republi- a a under after recognize the date of opinion, we can form government; govern- authority of the legislature people, to enter the ment was the people’s gov- and the field, entire recognize and further its su- ernment should not be weakened allow- perior position provide leg- proper people to with sue when themselves protections islation government limitations or committed act tortious while necessary deems engaged addition to thosе al- function. ready provided in Title McQuillin, Municipal 503 and Corporations, Vol. 37, 476, and in Title 53.24, Rev., Code. 3rd pp. Ed. Section 167 et seq., recognized and oft-quoted authority, judgment appealed The is from reversed. states: Reversed and remanded. “In statute, the absence of it has al-
ways been the law private that no action against state, for tort will lie since FAULKNER, JONES, ALMON negligence imputed cannot be to the sov- EMBRY, JJ., concur. ereign. So, various localities or local agencies areas where the state BLOODWORTH, J., concurs re- merely perform governmental functions sult. acquire of the state and no individual corporate existence, they stand HEFLIN, J., state, C. and, therefore, MERRILL and them hold MADDOX, JJ., dissent. sponsible negligence be would holding
same as an- sovereign swerable for its action. assumed MERRILL, (dissenting). Justice provate legal duty that no rests I would affirm judgment of the cir- perform governmental functions, and, therefore, cuit court I dissent. and, moreover, precludes ‘their character the idea of the common rule of re- law “King statement can do no sponsibility, for there is no standard of appears wrong” majority three times in the reasonable care which the acts of the opinion, opin- and a casual reader of that may state, tested. get ion might concept that that idea through representatives, namely, the basis of American and Alabama deci- municipal corporation, in its sover- acts upholding governmen- sions the doctrine of eign capacity, and does not submit its ac- immunity. obviously tal That is not the tions to the the courts.’ case. ‘The reason is that it is inconsistent powers the nature of their Most the words in our revered Decla- Independence, years compelled respond to indi- ration of old should 1976, catalogue King, damages manner viduals for the wrongs *9 (§ 14), present of 1901 Constitution They are conferred exercise. their said, and changed their minds people had in their exercised public to be purposes, shall never be of Alabama “That the State limits, discretion, prescribed law or a defendant court of appeal made no therе can be public good; and concept kingly had king or equity.” No proper munici- judgment of provisions of our anything with those to do of courts pal authorities Constitution. juries.’ Dargan Earlier in case a exempting “The doctrine Mobile, of Mo- where torts corporation private action for police- a act of a bile sued for tortious was performance of resulting from the man, was “ex- this court held functions, steadily adhered governmental it power vested in ecuting governmental decisions, judicial most recent public benefit” and said: for the indicated, is based on famil- as above undertaking is not to iar reason that the is, corporation as to the “Because privatе of the mu- promote the interests ap- and the passage of the ordinances entity, rath- nicipality as a pointment of the described officer benefit, per- and in the public er for po- pleadings, government, exercising munici- obligation the of such formance irresponsible power, it for the litical public agent, either of pality is a mere alleged, upon the official misconduct community. the local the state or of principle generally protects same reason, it expressed, one as often public officers from governments and public funds and public policy, protect liability for the misfeasances and mal- are raised dor public propеrty. ‘Taxes persons em- necessarily feasances of purposes; specific governmental certain public ployed under them in the service. pay- and, be diverted if could a, —Story Agency, b, on §§ claims, im- damage the more ment of 320, 321; Dunlap’s Paley’s Agency, 376. ev- government, which portant work of hoc, corporations, Municipal quoad stand perform regardless ery municipality must public upon the foundation with of- same seriously relations, would be its other ficers, counties, townships, and other destroyed. The totally impaired if not corporations, charged quasi with some exemption is sound and for the reason duty, por- public or invested with some ” unobjectionable.’ government, аuthority tion of the employment is nec- where officers Alabama, people have tried In essary and lawful.” ways as the State both insofar The Constitu- concerned. can be seen common-law So first, provided: “The tion of our in ef- rule of law, direct, assembly, shall general placed any provisions were fect before manner, courts, suits what what the Constitution. against the Stat- may brought State.”. be passed a new Legislature passed in utes were accordance act, part municipal corporations of which Clay’s Dig. provision. 143-146. §§ 502-504,quoted major- in the is Tit. of 1865 Constitutions ity opinion. duty and brought It was the may suits be people said “That interpret manner, judiciary those State, of this state to against the such They interpreted by both sections. were courts, may provided.” law such Appeals and the then Court of State, (1875), this this court parte In Ex abrogating as not the rule of authoriz- that since the statutes held court municipality en- when had been against the state suits for the gaged function brought. suits pealed, no such could has people. But this court our benefit of 1875 and in But the Constitution *10 governmental immuni- power Legislature at the doctrine of recognized the to ty point from one of view or another that in 502-504. diminish distinctions, court, inde- defensible or discussing this in a dedicated where fensible, seen, general are street said in Oliver & v. Water Works jurisprudence Board, firmly embedded in our Sanitary Sewer Ala. that we entertain the view that correc- 552: So.2d tion, needed, leg- if must come from “ * * * requires some distinct act pro- Only can islature. by acceptance, city constitute an to regulations and nec- vide the limitations such as a formal resolution or acts protect essary public interest and to city and conduct of the rec- authorities provide payment the fiscal basis for ognizing it as a dedicated street. After such claims.” city accepted has there dedication responsibilities certain im- are duties and opinion my It is holding posed by city. They statute re- heavy case will be a law blow to enforce- beginning sult from what is now Title 37 practically ment in every Alabama. ar- section 502. Prior tо enact- rest or investigation, even detention for upkeep ment streets was a physical suspect there is a touching of the governmental legal function and not a officer, person frisking either in duty, except provided by as otherwise him, or handcuffing allega- An both. or special some Mayor law. Albrittin v. & tion and evidence that the officer used Huntsville, Alderman reasonably necessary more force than was legal duty, 486. Thereafter has been a every jury question would make a suit imposing responsibility upon city against municipality the officer and the negligence in performing it. employed him. Not would authority to streets control courts soon clogged become with such cas- made prerogative the exclusive es, many of them would be filed mere- city, which created a corresponding and ly as a form permissible of blackmail duty coextensive and therefor a civil lia- force the to settle or a dismissal bility consequences for the aof default lighter sentence or the officer to to force therein.” (Citations omitted.) testimony change many his such cases. Many unfriendly arrests are made sur- Parham, In City Decatur v. roundings easily and the officer could court, replying So.2d happened. outsworn to what It is not argument to the same which was made and expected deputy many to be that too sher- presented case, in the instant said: policemen physically iffs or would block private public entrance buildings or have consistently “We adhered to the group large when faced with a of demon- principle legislative action is re- strators, rioters or hoodlums when he knew quired make a corporation talking, act on his than part, other responsible personal injuries or death against would result in a suit him and his servants, caused negligence of its employer. agents employees engaged while functions we think it Then, is a there tremendous economic unsound excep- to extend the nuisance impact municipalities. on the policy This tion injuries, thereby cover such changes decision the rule drastically and it quiring every personal to defend upon municipalities will come in Alabama injury negligence further confused at- without warning because for over 100 tempts coverage to force a of the indi- years appellate courts of this state vidual case. applied have the doctrine of
“Although,
observed,
as we
some
agent
when
employee
engage
courts
chipping away
engaged
bit
bit
function.
closing
There will be consideration of
acts
agents
tortious
of their
when
squares, parks,
“public
playgrounds
engaged
in governmental
functions was
*11
(all governmental
recreational
facilities
wrong
indeed an ancient
crying out for
functions,
redress,
Birmingham,
Jones v.
we must
it
marvel that
has been
632),
reducing
re-perpetrated
So.2d
oth-
by a
legislature.
modern
public
pay
hunting
er
services and
to
funds
The truth is that
wrong,
the rule is not a
higher
premiums.
additional and
insurance
ancient or
is simply
recent.
a rule of
It seems to
warning
me
some
could
reason ordained
the
good.
common
have been given
this court that such a
analysis,
In the
preservation
last
the
change
drastic
I
law was imminent.
government
thought
great-
civil
to be a
position
majority
also fear that the
good,
er
plain-
even
unfortunate
probably
many
means the
closing
future
tiff
compensation
injuries
than
of his
county
hospitals
Hill-Burton
public
govern-
In a
coffers.
presently
are
barely
stay open.
able to
ment
power
money
whose
to borrоw
is constitutionally circumscribed,
it
already
This
I
long.
dissent is
too
close
thought
prudent policy
deny
to be a
with some words of
Thomas E.
Justice
juries
civil
the unfettered
Supreme
Brennan of the
Court of Michi-
public
increase
indebtedness.
gan.
express my
These words
sentiments.
background
for the writing follows.
“This is no
theory
outmoded
that ‘the
Michigan,
Court of
can
King
do no
It is
wrong.’
merely
Detroit,
Williams v.
364 Mich.
recognition
government
that in a
1, by
111 N.W.2d
a 5 to
(one
vote
people, by
people,
people,
and for the
majority only
concurred in the re-
wrongs
by government upon
inflicted
sult), affirmed a
away
decision which did
people
they
wrongs
are
inflict
from ordi-
themselves. Defendant Ginther was a
nary
in Michigan
approved
torts
way
volunteer fireman on his
to a fire in
holding
subsequent
July
cases. On
his own
Plaintiff
sue
car.
can
Mr.
Legislature
Michigan
reim-
Ginther. Plaintiff
Mr.
can collect from
posed
statute.
Smith v.
Ginther,
people
if
he was
fault. The
Ginther,
court opinion remain of the policy, I
tant state judicial rather than a legislative is a
that it
matter.
MADDOX, concurs. J.,
320 So.2d THE OF JUSTICES.
OPINION
No. 219. Alabama. Court of
Oct. Representatives
The House of of Alabama No. State its Resolution