*1 mean trial, it would but that receive such a in'the terma serve

that he have to en- have prison, might appellant

state plea, but elected such a

tered as to explanation

jury Since no trial. appel- _

consequences plea given was of his

lant, failure say court that the cannot prejudicial do so error. was

Reversed and instructions remanded with appellant plea

to allow his withdraw

guilty and he so de- grant him a trial if

sires.

henriod, McDonough, callis- CROCKETT, JJ.,

TER and concur. Utah, through

STATE of its ROAD COMMISSION, Plaintiff and

Appellant,

Joseph al., Jerry A. PARKER et Sine and Sine, wife, Dora Ann Defend P. Respondents. ants and

No. 9489.

Supreme Court of Utah.

Jan. Budge, Atty. Gen.,

Walter L. Robert S. Campbell, Jr., Atty. Gen., appel- Asst. lant. Hart,

Richards, City, &Bird Salt Lake respondent. HENRIOD, Justice. m com- that described the. condemnation appeal by the

Interlocutory two It shows that Sine owned defendant motion to dismiss denial of its plaint.1 “B,” tracts, high- “A” separated suit condemnation counterclaim in a Sine’s way then on to reach local streets and acquire an used property for in- the State to *2 in- The small shaded area project. to California. Re- construction highway terstate “B” only property sought cluded in was versed, with costs awarded. no only property represents and the described subjoined sketch the over- complaint. property in the of Sine the one hand and all in, claiming 78-34-7, having an Annotated interest 1. Title Utah Code complaint, occupation of, persons property described in 1953: “All prop- It is In a conceded: “A” is a motel counterclaim filed in this That after erty, says con- having no or functional dismissal in the Sine economic other action, that, he “B,” 1) nection used party with he to this latter was since strictly although private “A,” property; damages entitled to residential as to complaint, that “A” it was subject was of condemna- described the State’s condemnation; However, tion. nor “A” was was urged subject it the Sine un- damaged 2) proper construction of the interstate was counterclaim highway, der damage procedure, 3) com- our that such was rules of in- damages pensable in the alleged compensable are proceeding. in this domain eminent stant action. says He the damage was an interference light

with air, pressure, sew- subsurface procedure 2) Contention relates to er access, consequent facilities and with a joinder parties. go It does not loss in profits opera- incident motel’s compensable whether Sine has tion. therefore, State, purposes can- .need not be After the State filed its Sine vassed, having mer- conceded as sued the doing contractor the work in con *3 it. structing the highway, elevat North-South 1) may ed 3) on Contentions and stilts to viewed existing cross the then over aggregate, the pose since same California, both the highway East-West leading to enjoin to fundamental the whether State already further construction be gun, consequential damage prop- suable for and for to damages arising out of the al erty not leged sought for condemnation. supra. interferences A mentioned motion to granted dismiss that action was

by the trial court on the asserted On numerous basis that occasions we have Sine litigate could damage the issues in held that such the State’s is not recoverable proceeding. State, condemnation because of the no State’s Fair party clough to that by County,3 bound Lake that v. Salt a most ruling, are one, nor we.2 to pronounce- similar is our last damages taking judgment or in that a there- as rule a is ef- of, though named, appear, plead only parties fective between the to the defend, respect privies, and each in own action and and their no to that property by rights whatever, interest, or that favor or claimed either in or [of] strangers judgment, him, in the same manner as named in to if are complaint.” acquired, lost, affected reason or Taylor Barker, judgment.” Utah 2. 262 P. (1927), 55 A.L.R. 1032 wherein the 10 Utah 2d that law is well court said “The settled WADE, (dissenting). respect. cited our Chief in this Therein are ment Justice previous we are disinclined decisions which expressed my adhering to dissent, I views Contrariwise, and to we consider reverse. Springville Banking Company n i cit- Fairclough those case and hold that Burton,1 Fairclough Lake v. Salt Count here, which dispositive to are ed therein decisions, y.2 By nul this court has these without we refer the reader authorities unambiguous a lified clear and constitutional repetition. needless provision property shall not that “[P]rivate he, public damaged be taken use be without argument that

As to Sine’s re defendant, may counterclaim just worship ing compensation.” I refuse to simple au cover, is answerable sovereign immunity at the shrine of where under neither thoritative conclusions so, requires to do as in this a clear elsewhere, can counterclaim- rules our violation of our constitution. deci These than other role himself ant cast contrary clearly sions are also the mod Sine, had plaintiff, If plaintiff.4 of a immunity.4 sovereign ern trend on have in this he would sued author proceed under the been unable HENRIOD, (separately com- Justice a counter Since referred to above. ities menting the dissent of Mr. Chief requi with all must be invested WADE, supra). reason complaint, would strain it sites of any attribute that it would to conclude dissent, I feel constrained to answer into result. alter nonresult would my without expecting colleagues, learned opinion, who in the main in this case have concurred not suable were the State If pass per- instance, coun- on the merits or demerits it is not suable first opinion sonal differences of Mr. we so hold. which ter-complaint, and WADE and I have harbored respect here with do harbor sov- McDonough, callister ereign immunity and the authorities concur. CROCKETT, JJ., Banking Springville Burton, McCarthy, Co. Valley Ariz. Co. Gin *4 100, (1940) Utah 2d 349 P.2d 157. : “The term 181, 504 106 Fairclough County, 2. compre v. Salt Lake 10 Utah and (counterclaim) ais 417, 2d 105. 354 P.2d a be defined as and one hensive 22, I, 3. Section Article Constitution of favor of defendant in action of cause Utah. sued the upon he which dissenting opinion judgment Wolfe’s 4. See Justice in a recovered plaintiif and Bingham Tromly, Education, Board of v. 404 v. 118 separate Wilson action.” 582, 432, (1949); Utah 223 P.2d where ad 307, 22 Am. he 47 N.E.2d 89 Ill. complete overruling 736, vocated the of sov- 37. Sec. Jur.

69 support legislation, the former cites of conclu- and Mr. shares Chief Justice sion. worship WADE’S refusal at the shrine of sovereign just immunity, equally and I note with Chief interest Justice religiously justify refuses to else do but dissenting opinion refers a Justice objectivity, prece with an irreverence for Education, Bingham Wolfe in Board v. dent. Although not binding on the Cali complete “where he advocated the overrul Supreme Court, fornia court, nor this it is ing sovereign immunity.” Advocacy for noteworthy subsequent cases in in personally poor a sub desired result is termediate appellate courts, California seem decisis, stitute stare emascula for the interpreted to have ap the decision as not legislation interpret tion of which has been plicable to situations where the legislature again by time and this ed has created immunity spoken with differently personally I think construable reference Muskopf thereto.1 The finds case than I submit that little comfort in the does.the other cases cited Mr. Justice. the authorities overwhelm his conclusion. Chief WADE. 2 Hargrove v. Cocoa Beach has only to do Muskopf Corning

It is v. conceded municipal liability with city level, on the but Hospital, dissent, cited in the is the closest Subsequent nowhere else. Florida cases supporting case Mr. Chief WADE’S clearly demonstrate its limitations. The thesis, he urged the cases Springville Supreme City Florida Court in of Miami v. Burton, Fairclough v. Banking Co. v. Salt Keton,3 immunity held that could im County others, submitted, Lake and the it is posed as bar ato suit to remit erroneous support did do not and his contention. ly In collected Smith fines. v. Duval Coun Muskopf case, the opinion, In the main isit Board,4 ty Welfare true, court strong concluded that very survived convincing- heavily judicial Hargrove purport dissent. That case did suggests case to waive ereign page 475, Hickman, following Z. Also tlie linois” Robert University Forum, from Illinois Law cases other states the same ef Vol. 3; Muskopf Corning Hospital 1961, City v. Fall No. Williams fect: Dis 457; (Mich.) trict, (Cal.) Hargrove 111 1. 359 P.2d N.W.2d Detroit (Fla.) City County Beach, 130, Ngim v. Cocoa 96 So.2d of San Fran Municipal cisco, Cal.Rptr. (1961); Cal.App., Anno. A.L.R.2d im liability munity Torts, Alto, pp. Cal.App., from Palo Akers 1198-1205; Cal.Rptr. (1961). Molitor Kaneland Com munity Fla., Unit District No. 96 So.2d 60 A.L.R.2d 1193 18 Ill.2d (1952). N.E.2d comment legislative history Fla., 115 thereafter' So.2d (D.C.App.Fla.1960). “Municipal Liability Tort in II- So.2d 98 see 4. 118 *5 70 indicated, majority A sovereign v. Hills immunity, Keggin on relying

state County that the appears 5. It clear however, doc borough that from that time on the eliminate pretend does to Hargrove case not apply. opinion The of trine would Jus immunity the state or other sovereign on reflecting persuasive in the ob tice Carr is effect, where, levels, city, in only as jection to when he said that such governmental between the distinction departure law existing “The radical from was eliminated. proprietary functions contemplated by Ed this State in him, wards, those like of mind with municipal immunity in Illinois abolished obviously legisla involves the exercise of Community Unit Dist. v. Kaneland Molitor authority. change The fact that the tive 302,6 appearance gave dicta No. prospective only significant made is to be levels; extending the to other abolition of respect.” appalling A most factor this in however, enjoys the state of Illinois con Michigan majority is the decision of the immunity.7 decision is This stitutional noting fact the legisla of the that opinion’s directly applicable to suits therefore respond pleas had failed to ture so, subsequent the state. Even the doctrine and of hence abolition the weakness history demonstrates of “Justice,” courts, are justi in the name of days precedent. 40 Within of the spite legislation in in session, engaging in of fied legislative Legis Illinois next contrary. mandates to the constitutional recog that in effect passed five bills lature decision is too recent to canvass sovereign immunity of the doctrine nized Michigan Legislature Hickman, response of Municipal agencies. as to local estate, new but it is court’s sufficient to Liability Subsequent in Illinois.8 cases Tort state, state, federal recognizes minority that both the court note Legislature the Illinois had recognized position when Mr. in Carr sovereign immunity at much stake “Attention is called to says that court deci City Chicago.9 Miller v. of principle. Florida, California, Illinois and sions instance divided re in each recently expressed The most effort im governmental doctrine of jecting the immunity sovereign was reflected eliminate munity. agree such cannot deci We of Detroit.10 in Williams The case sions, overwhelming weight in view plaintiff nothing, netted since the itself any authority contrary, to the indicate abolishing court divided Forum, 1961, p. 356, (1916). 54 Illinois Law Fla. 71 372 So. (1959). (1959). 6. 18 Ill.2d 163 N.E.2d Western U.L.Rev. North (1960). 9. Ill.App.2d N.E. 724 Art. Sec. 26. Ill.Const. 10. 364 111 N.W.2d Mich. ‘major trend’ toward the abolition Neither the Florida nor Illinois decisions of the doctrine.” would operative be the instant it equally true the California drainage The writer convinced that ruling. The Michigan decision, with ifs taxpayers’ funds the doc- abolition of questionable reasoning, bitterly and its di- trine, subject legislative is the attention *6 vided argument offers little to dis- tri-partite system government,— in our pose precedents jurisdiction, of this may legislature not the courts. The better fly in the teeth majority of the rule. inventory creating practical effects of Pandora’s Box. The courts better The cases cited in the dissent’s footnote interpret, judicial, from a not eco- strictly any do not show modern away trend from a standpoint, meaning nomic and extent of sovereign immunity, as suggested by Mr. legislation. we have stated in other As WADE. In our surrounding cases, damaged wholly citizens are not states, with- quite sister the cases definitely chal cases, out redress in isolated since under our lenge and refute such suggestion. Ber government, system legislature ger Dept. same Highways, 143 Colo. grant applicant might relief to an

itself if 612 (1960); Vendrell v. School processed properly is through Dist. 26C County, No. Malheur 360 P.2d ; of Examiners.11 (1961) Board It takes little im- (Or.) Incorp. Maffei Town where, to' visualize a agination Kemmerer, Wyo. 33, situation 338 P.2d ; in the particularly remoter (1959) areas of a P.2d 759 Kilbourn of Seat this, sparsely settled state like tle, school 43 Wash.2d 261 P.2d 407 (1953); district, or a small town Livingston suffer Regents sudden of N. M. College of protected were it not death Agriculture, a shield N.M. 328 P.2d 78 (Emphasis added.) Constitution, VII, 63-6-1, 11. Utah Art. See. Title Utah Code Annotated 1953.