*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),
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
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
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