*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

legislature 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 McSheridan 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 medical 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 eye 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 agents 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 liable to Perkins, (1880); Council 68 Ala. 145 .action unauthor- damages, by reason Ala. Wright, v. Montgomery Mayor Am.Rep. (1882); acts, wrongful negligence, or the ized or Bradford Anniston, 92 Ala. City Council & carelessness, or unskillfulness Mayor & Aldermen (1890); So. 683 person person corporation, then such Lewis, 9 So. Birmingham v. corporation an shall be liable to action ; Bir Mayor Aldermen (1890) & in- party on the same account Starr, 98, 20 mingham v. 112 Ala. So. jured. Mobile, 113 Ala. Lord v. (1896); City Council So. 366 injured party, if he sues Reese, 40 So. Montgomery v. *4 municipality damages suffered the Ivey, Anniston v. 760 him, person or join shall also such other 392, (1907). Ala. 48 So. persons corporation de- or so liable as suit, fendant the and no or defendants of The doctrine of judgment against be rendered the shall universally country has been con- in this town, city is ren- judgment or unless publish- unending demned in an number person against dered such other or cor- jurists. by legal ed statements scholars and except poration injury, such so liable for is the doctrine frequently stated that not found where a summons is returned any logical cannot be defended on basis. judgment as to a defendant or when By century, being the turn of the it was personal rendered in his favor on some unjust from as and irrational criticized defense, brought and if an action be sources; but, many there is no doubt against city the town or alone was, time, firmly the doctrine es- appear any person made to or cor- in Alabama law decisions of tablished poration ought joined a defend- to be court, majority, if not as it provi- according ant suit the the all, of the other states the Union. section, plain- preceding sions in the nonsuited, tiff shall unless he amends Against background, the Alabama party corporation a making such or Legislature leg- enacting acted state, defendant if a resident islation which is now carried as Title person jointly no shall be sued 502-504, provide: city or town who would not be liable city irrespective provision. town be liable separately, 502. No or shall of this wrong damages injury done to or shall be obtained When corporation, by any person municipality par- against suffered or and the other injury aforesaid, wrong ty unless said was done or shall is- or liable as execution through neglect, against suffered careless- sue or de- the other defendant ness, agent, ordinary form, or unskillfulness of of- some fendants and shall ficer, municipality city employe[e] of not be demandable of the or town or therefor; and while engaged in unless the other defendants are insol- work vent, duty, line his or unless and the same be made out acting cannot wrong property, injury or was done or of their and the or town said pay judg- neglect, shall much of the said through suffered careless- so ness, remedy defect in ment as cannot be collected out of or failure to some injured party streets, public ways, other defendants. If the alleys, or build- shall, suit, bringing before demand of ings after the same had been called mayor municipality council, of such the name or after the the attention of the persons person such or or other cor- had existed for such unreasonable same cases, delineating Most of the between may jointly with the liable poration as governmental and injured party, which functions were municipality to such said ministerial, corporate, pro which were or mayor furnish with- failed to and if such test, e., prietary, a benefit “. . applied de- i. days making of such in ten performed person per- whether the act is for the com mand, or the name of such liable, good all the mon or whether it is for corporation, jointly sons or profit required special benefit injured party shall not be said entity.” City Bay Quinley, Minette v. person p,arty as a de- join such other any 263 Ala. municipality (1955). So.2d said fendant with acted, Shortly after damages for such brought to recover suit Appeals Court had occasion to consider injuries. legislation what the was to impact recovery shall be had 504. No In City Whaley, “§ be. Bessemer v. town, any city a claim for against on App. 523, (1913), So. received, personal injury unless a sworn Thomas, speaking Judge through that court clerk, by statement be filed with said: representa- injured, personal party or his The character of ‘work’ to death, tive, stating in case his sub- which the statute has reference is work unju- stantially the manner in which of the servants or officers of a munici- time, received, day ry was and the pality engaged performance while place and the where the accident oc- of manual discharging labor or in minis- curred, damages claimed.” and the *5 terial duties therefor in the execution of private corporate acts, carry- its or inor analysis As noted in an excellent public improvements out some or law, the enact- case both before and after it, upon by works entered as contradis- Copeland and seq., ment of 502 et tinguished performed by from service its Screws, Responsibility for “Governmental officers in discharging governmental Alabama,” Tort in 13 Alabama Law Re- corporation. duties of the . . .” view 322: forward, “No mention made point is From that this court has [in statute] liability corporate accepted being interpretation placed restricted to on the municipality. statute, functions of the The first and has distinguish continued to plain in language governmental subdivision declares between corpo- and functions wrong ‘injury to be liable for proprietary functions, rate or which has through done neglect, or suffered making had effect of legislative en- carelessness or unskillfulness’ of an actment ineffective in changing so far as agent engaged in work for the munici- the law as it had judicially been declared pality acting and while within the line in only this state since 1854. The change employment. of his its scope On effected the statute was to eliminate the face, appear legislature would that the municipal reference to charters as the municipalities brought city’s had source duty down to of a to maintain the par corporate. with other repair. bodies ex- streets in No safe anomaly It is an ceptions that, in are stated the first since subdivi- the act itself made no distinc- sion which could curtail tion between and corporate responsibility imposed tort to ministerial functions but liability in “street” passed cases, functions. Nor was the statute put this court was in the awkward against position, a background after statute, of constitutional the enactment of the prohibition declare, against having of suits munici- to remain consistent palities. immunity existing prior The holdings, before duty to re- wholly judicial pair the 1907 enactment was “intrinsically ministerial,” streets was in its peculiar uses, creation and . . .” since have maintenance. local 732; Law, p. Municipal supra; Rhyne, Whaley, Bessemer v. in saying Mu- Green, (III) : Litigation Freedom (1914) : 65 So. Torts, Ill.L.Rev. Liability nicipal appear to implications These . Wrongdoing” and 355; Phillips, “Active duty to theory that upon the rest Mu- Immunity Principle in Sovereign than rather repair corporate in is keep 122; nicipal Liability, 38 Ore.L.Rev. Tort by a discharged public duty, is which Davis, Liability of Governmental Tort the state. agency of Units, 40 Minn.L.Rev. anomalous, but it apparently have hand could judicial sleight of This explained by reference to may be entirely by giving to the 1907 avoided been in cities and streets considerations meaning. its clear legislative enactment uses local dis- peculiar towns Yet, come to this after case has as case state, and highways of the tinct from the judicially this urging it to correct court municipal authorities duty the courthouses of barrier created is in- respect keeping repair them state, denying always given the answer .” trinsically ministerial. sought, if to be is that the relief that relief therefore, apparent, obtained, legislature. must from the come passed by the given to the enactment force statement, court has making that changing the far as Legislature, Alabama, it was this recognized that in immunity, simply law doors the courthouse court which closed as it existed before perpetuate the law 1858; early as litigation this kind enactment. opened them when the and, in so again closed then we time, litigant suing a mu Since legislature. the will of doing, thwarted attempt to show that nicipality in tort must performed result being function case, city, in the instant defendant minis injury ed his e., relief, if again, i. just that argues say, this has result terial one. Needless to legislature, and any, must come Garbage categories. ed in some curious au- is abundant not blame it. There we do *6 collecting governmental, City has been held have thority support argument. We to 635, Fitts, 96 So. Tuscaloosa v. 209 Yet, that of have also said supplied we it. disposal corpo (1923); is but sewer 771 immunity judicial “is question of rate, hope, 265 Ala. City Brown v. Fair of in a case where legislative in nature” 596, Repair and (1957). 93 So.2d 419 legislature sought to declare function proprietary or maintenance of streets City v. governmental. be to Williams v. Whit corporate, Birmingham City 19, Birmingham, 121 So. 14 219 Ala. worth, 603, 119 So. 841 (1929). keep the to operating a street sweeper validity of the one believes No v. Densmore governmental, streets clean is necessity and the for rule of stare decisis 210, 135 Birmingham, 223 Ala. So. stability in more than we do. We the law (1931). 320 so, adamant in our equally, are if not more profound the doc- state, wisdom in present to belief In its clue powers. trine of Such particular govern- separation function is whether critical, opinion, the survival of our to be in cases mental or must found that system government. Under expressly, declaring particular that function our doctrine, may government no branch of the category. fall within or the other one other. substitute incongruities have resulted The powers subject Each has inherent denied branch has itself from this effort been legislature had comment, the others. frequent in Alabama and both immunity municipal Screws, to abolish 1907 Copeland and elsewhere. Govern- tort, constitutional barrier Alabama, being there no Responsibility for Tort mental Lexington, (Ky.), ment in Haney v. its action. This court should have 738, (1964): prerogative rather legislative bowed S.W.2d did, it than which was to take the course us equally “. . . It seems to that an legislation thoughtful treat as no more assumption is the legisla- reasonable it than a restatement of the law as then might expect the courts ture themselves judicial existed decision. unjust judi- to correct an rule which was cially created. . .” . The rule of cities, bottomed, is, it English on the Supreme Jersey of New Court met concept “King that the can do wrong,” no argument same McAndrew Mu- very concepts upon is the antithesis of the larchuk, 162 A.2d N.J. which our was founded. (1960), and said: fact, recent events demonstrated dra- “. . But the limitation . on the nor- matically “king that the can do wfong” operation respondeat superior mal America; does, pay he must and when he placed originally Judiciary. there penalty wrongdoing. for such Surely urged successfully it cannot earlier, by As the turn alluded to outmoded, inequitable, that an and artifi- century judicially created rule of im- general cial curtailment of rule ac- munity fact, was under severe attack. judicial tion created branch of the had, time, England by that overruled the government cannot or should not be re- on decision which the American cases are moved its creator. . . .” founded, municipal immunity for tort And again, by Court of recognized by is not England the law of Washington, in Pierce v. Yakima Valley this time. See Annotation 160 A.L.R. Ass’n, Hospital Memorial 43 Wash.2d (1953): P.2d We, else, everyone like do not have the any legislative benefit of debate on what is . closed our We courtroom But, seq., now Title et Code. it doors legislative help, without and we seems to us is not unreasonable to open can likewise them. .” suspect reacting the ever-accelerating call for the abolition earnestly We responsibil- believe that the recognized what was time as an of. ity for correcting universally what is con- unjust rule of law. demned as a bad rule law rests with this court. The rule strongly As stability as we believe cannot rationally agree defended. We law, recognize we also that there is with the *7 statement made Barker City v. merit, honor, prior if admitting not mis- Fe, 85, 88, Santa 480, 47 N.M. 136 P.2d of takes and them. correcting city The here 482 (1943): argues that the of the legislature failure “ ‘ act in approval this area constitutes its (cid:127) . . . . . It is almost in- placed construction on its enactments credible that age in this modern of com- equally this court. arguable, parative sociological enlightenment, and Currie, noted special- concurring republic, a the medieval absolutism Justice ly in Milwaukee, Holytz supposed v. implicit 17 to be maxim, 26, 618, Wis.2d 115 626 (1962), King N.W.2d “the wrong”, can do no should ex- that . . legislature] empt de- . [municipalities] [the ferred supposed liability torts, wisdom of for their and that the en- court, or else determined that damage court tire burden resulting mistakes,” should correct its own or as wrongful acts of the should Judge Moremen Appeals Court of imposed upon single individual Kentucky argu- to the same responded who injury, suffers the rather than dis-

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); 359 P.2d 457 of the new In the first instance rule. Beach, Fla., 130, grove v. Cocoa 96 So.2d rule would announcement of new Molitor Kane (1957); 60 A.L.R.2d 1193 v. dictum, merely obiter which is 11, Dist., Ill.2d Community land Unit 18 upon by frowned some authorities. 89, (1959), 469 163 N.E.2d 86 A.L.R.2d appellant a gives second alternative 955, den. 362 U.S. L. cert. S.Ct. again industry suggest reward for his 900; Kittle, Ed.2d 203 Kan. Carroll v. wrong. to the Court that it has been Haney Lexington, 21 (1969); 457 P.2d v. course, permits category, The third Auditor, supra; County Myers v. Genesee retrospective particu relief. see no We (1965); Wil 375 Mich. 133 N.W.2d why application lar this third reason Detroit, 231, 111 N.W. liams 364 Mich. v. the rule is harmful. It is difficult to be Omaha, 2d Brown v. 183 Neb. (1961); agents lieve a of its ever Rice v. Clark (1968); 160 N.W.2d 805 deliberately and in reli committed tort (1963); P.2d.605 County, 79 Nev. ance the doctrine of York, New King, B. v. West W. Inc. applica immunity. We declare the law Becker v. 230 A.2d case, ble to this to all cases N.J. Beaudoin, A.2d 896 106 R.I. proper may have within the which arisen ; Milwaukee, supra. (1970) Holytz v. Lexing Haney time of limitation.” v. ton, supra, at 386 S.W.2d observe, however, none of We above, so far as our states mentioned reasoning Kentucky Court revealed, acting, court was the search has appeal. However, strong has it is noted in are, legislature, the will as we to let opinion, that Haney Lexington, “ prevail. long ignored, supra, prior opinion gave warning this Court that was dissat- hold departing from our earlier isfied with the rule immuni- area, departure we be ings in ty.” opinion by (386 No 742) S.W.2d legislative will required to let lieve is warning. has issued such a For court recognize by justice, we operate, and also reason, to be ex- for another hardship on work the decision would pressed momentarily, believe we re in this state which municipalities second alternative constitutes reasonable *8 lied on the earlier cases. compromise. Therefore, holding ap- this is case, plicable appellant in instant prob- this Many states have considered suffering injury and all after the to others in vari- applied the new rule lem and authority ample date There is hereof. Kentucky abolished ways. When ous Frequently this referred to as treatment. immunity, it dealt rule of quasi-prospective abrogation, a it is said to applica- new rule’s problem of the with the protect governmental agencies bility and said: probable in their immunity, reliance on the wrongs those were the reasons recognizes also support efforts long our independence war for plaintiff in initiating the England action. Parish v. and the rule wrongs Pitts, King. Ark. 45 the S.W.2d Then government, our own first (1968); Molitor Community v. Kaneland under the Articles of Confederation and Dist., supra; Beaudoin, Unit Becker su later the Constitution of the United States pra. prohibition There is no constitutional made certain this country new would against such treatment. Northern Great have no king. Ry. Co., v. Sunburst Oil & 287 U.S. Ref. Our doctrine of immunity, 53 S.Ct. 360 (1932). L.Ed. national, both state and grew out of the do,

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 those 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 there 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 private 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 property. ‘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, authority 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 to 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 borrow 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, 379 Mich. 208 150 N.W.2d 798 injure plaintiff. Croswell didn’t plaintiff injured (1967), in a colli- City merely Mr. Ginther did. The main- sion with a car driven fire- volunteer tained a department volunteer fire man while responding to fire alarm. protection property of the lives and The accident occurred after the decision persons area, including Legislature Williams before the rein- plaintiff. immunity. stated The trial legislative court ruled that enactment rages, fire “When when the dam did not control. The vote was to 3 and breaks, attacks, enemy peo- when the Brennan, dissent, J., In his he dissented. ple, through government their must act. part: said They boldly vigorously must act “ * * * perish. judges get judges, It is When into the not for serene policy they get area in their time deciding into robes and far removed space peril, sought trouble. Those who unsuccess- from the common fully successfully negligent in and later to abolish brand them their travail and thought suffer their fortunes and their labors to compensatory policy. pay the wiser has be further taxed to minority damages in- since vindicated the who felt to those who chanced to be jured community’s otherwise. rule efforts to over- If common-law come the dis- holding the various levels of disaster rather than liability by immune from aster itself.” civil reason the trial I would affirm impor- matter of being because

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