Manion v. State Highway Commissioner , 303 Mich. 1 ( 1942 )

I am unable to concur in the opinion proposed by the Chief Justice in this case for the following reasons:

The State, as sovereign, is immune from suit save as it consents to be sued, and any relinquishment of sovereign immunity must be strictly interpreted. United States v. Sherwood,312 U.S. 584 (61 Sup. Ct. 767, 85 L.Ed. 1058) (decided March 31, 1941), and see authorities therein cited.

There is a distinction between sovereign immunity from suit and sovereign immunity from liability. The latter exists when the sovereign is engaged in a governmental function. The former may be waived without a waiver of the latter. Section 24 of the court of claims act (Act No. 135, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 13862-1 et seq., Stat. Ann. 1940 Cum. Supp. § 27.3548 (1-24)]) reads:

"This act shall in no manner be construed as enlarging the present liabilities of the State and any of its departments, commissions, boards, institutions, arms or agencies."

I construe this to mean that the State's immunity from liability while engaged in a governmental function is preserved because the waiver of this defense would enlarge the "present liabilities of the State."

The Constitution of 1908, art. 6, § 20, provides that the board of State auditors "shall examine and adjust all claims against the State not otherwise provided for by general law." In 1921 the legislature created the State administrative board (see 1 Comp. Laws 1929, § 201 [Stat. Ann. § 3.261]), and in 1925 authorized this board to determine claims for "any injury or damage by reason of negligence in the construction, improvement or maintenance of any trunk line highway," et cetera. (See 1 Comp. Laws 1929, § 238 [Stat. Ann. § 3.381]). In 1929 the same board was "vested with discretionary power and authority to hear, consider and determine claims presented to said board against the State of Michigan, arising from or by reason of negligence, malfeasance or misfeasance of any State officer, employee," et cetera, "and to allow same and order payment thereof," et cetera. (See 1 Comp. Laws 1929, § 237 [Stat. Ann. § 3.371].)

The "court of claims" act, supra, did not specifically repeal 1 Comp. Laws 1929, § 238 (Stat. Ann. § 3.381), or 1 Comp. Laws 1929, § 237 (Stat. Ann. § 3.371), but did, except as to existing adequate remedies in the Federal courts (section 13) confer upon the new court of claims exclusive jurisdiction "over claims and demands against the State or any of its departments, commissions, boards, institutions, arms or agencies." (Section 8.) In short, a "court of claims" was substituted by the legislature for the "board of State auditors" and the "State administrative board" for the purpose of hearing and determining "all claims and demands, liquidated and unliquidated, ex contractu and exdelicto against the State," et cetera. (See section 8 of the act.)

The terms of the State's consent to be sued in any court define that court's jurisdiction to entertain the suit. United States v. Sherwood, supra. The "court of claims" is a legislative and not a constitutional court and derives its powers only from the act of the legislature and subject to the limitations therein imposed. The existing liabilities of the State were not enlarged by the court of claims act. (See section 24 thereof.) All those defenses which might have been interposed in actions of law and chancery remain unchanged save only the immunity from suit.

In 1923 the duty was imposed on the State highway commissioner to operate "a ferry line as a part of the highway system of the State across the Straits of Mackinac for the purpose of transporting vehicles, freight and passengers between the upper and lower peninsulas." See 1 Comp. Laws 1929, § 4598 (Stat. Ann. § 9.1391).

In operating the State ferry as a part of the highway system, the State was performing a governmental function. Longstreet v.County of Mecosta, 228 Mich. 542. That defense to this actionex delicto remained because the act "shall in no manner be construed as enlarging the present liabilities of the State."

The State is not liable in this instance because of its sovereign immunity from liability in the performance of a governmental function and not because of its sovereign immunity from suit.

The Chief Justice holds that the reasoning of Workman v. NewYork, 179 U.S. 552 (21 Sup. Ct. 212, 45 L.Ed. 314), is applicable. That five-to-four decision rendered by the United States supreme court in 1900, after argument in 1897 and reargument in 1899, is of doubtful value even in the field of municipal law, and should be limited to actions on maritime torts against those municipalities which, like the city of New York, have the capacity to sue and be sued. The majority opinion reads:

"As a result of the general principle by which a municipal corporation has the capacity to sue and be sued, it follows that there is no limitation taking such corporation out of the reach of the process of a court of admiralty, as such courts, within the limit of their jurisdiction, may reach persons having a general capacity to stand in judgment."

The court of claims, by the limitations expressed in the act creating this court, does not possess the jurisdiction of a court of admiralty; nor does the State have "a general capacity to stand in judgment." I prefer to follow the reasoning of Mr. Justice Gray in the Workman Case, who with Mr. Justice Brewer, Mr. Justice Shiras, and Mr. Justice Peckham dissented. His opinion says, in discussing the liability of municipal corporations:

"But that in a State where, as in Michigan, its highest court holds that a municipal corporation is not liable to such an action, no such action will lie in the circuit court of the United States, because as was said by Mr. Justice Brewer in delivering judgment, the question is not one of general commercial law, it is purely local in its significance and extent. Detroit v. Osborne (1890), 135 U.S. 492 (10 Sup. Ct. 1012, 34 L.Ed. 260, 262)."

In view of the court's unanimous opinion in the Osborne Case,supra, the Workman Case is not authority for recovery on a maritime tort in the court of claims against the State of Michigan. Nor has the State waived its immunity from suit for a maritime tort in the courts of the United States.

The order of the circuit judge, presiding in the court of claims, dismissing plaintiff's claim, is affirmed, with the costs provided for in the act.

BOYLES, NORTH, BUTZEL, and SHARPE, JJ., concurred with BUSHNELL, J. WIEST, J., took no part in this decision.