CONCURRING:
The majority relies upon two important factors to be considered in determining when an entity is shielded from liability by the doctrine of sovereign immunity: first, whether the entity was created by a governmental body that has sovereign immunity, since it would be difficult to conceive how a non-immune entity could bestow upon its offspring sovereign immunity which itself did not have; and second, whether the entity exercises a function that is integral to state government, since protecting state functions from the disruptive impact of litigation is essential to the societal well-being. Although I fully concur with the majority opinion, I write separately to emphasize the importance of a third factor that we have historically taken into account — whether the imposition of legal liability upon the entity adversely affects the public treasury such that it could compel the payment of funds from the state treasury without an appropriation or an expression of consent by the legislature. Because the imposition of liability upon SD1 in this case poses no threat to the public treasury, this historical justification for sovereign immunity is absent. Where the reason for a doctrine does not apply, there is no reason to apply that doctrine.
It has long been recognized within the common law that the historical origin of the doctrine of sovereign immunity was, in part, the protection of the king’s purse. While it is often said the doctrine arose out of the notion that “the king could do no wrong,” the more practical, though perhaps ignoble, rationale for immunity from governmental wrongdoing was to spare the
king’s exchequer from having to pay for the trespasses of his agents without his consent.
In the earliest days of the United States, the Supreme Court, examining its own power to entertain suits against the States, reviewed the English history of sovereign immunity:
[S]uch an authority could not have been exercised by any other Court in Westminster-Hall, or by any Court that from its particular constitution had no con-troul over the revenues of the Kingdom. Lord C.J. Holt, and Lord Somers (though they differed in the main point) both agreed in that case, that the Court of King’s bench could not send a writ to the Treasury.
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But in all cases of petition of right, of whatever nature is the demand, I think it is clear beyond all doubt, that there must be some indorsement or order of the King himself to warrant any further proceedings. The remedy, in the language of Blackstone, being a matter of grace [of the King], and not on compulsion [from the Court].
Chisholm v. Georgia, 2 U.S. 2 Dall. 419, 444,1 L.Ed. 440 (1798).
“[A] primary purpose of the doctrine of sovereign immunity is the protection of the public purse.” DeKalb County School Dist. v. Gold, 318 Ga.App. 638, 734 S.E.2d 466, 473 (2012). “One of the most often repeated explanations for the rule of state immunity from suits in tort is the necessity to protect the public purse. However, protection of the public purse is but one of several purposes for the rule.” Niese v. City of Alexandria, 264 Va. 230, 564 S.E.2d 127, 133 (2002) (quoting Messina v. Burden, 228 Va. 301, 321 S.E.2d 657, 660 (1984)).
*866Under the English monarchical form of governance that preceded the founding of this country, only the monarch had the authority to say when and how the wealth of his or her treasury would be paid out. “Although the American people had rejected other aspects of English political theory, the doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified.” Alden v. Maine, 527 U.S. 706, 715-16, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). That this common law heritage survives today in its modern form is founded in considerable part upon the recognition that the people now occupy the place of the monarch as the sovereign. Adkins v. Commonwealth, 232 Ky. 312, 23 S.W.2d 277, 279 (1929) (“[The] absolute and arbitrary power [of the king] are relics of the past. The body of the people is now the sovereign.”). Citing to Chisholm, our predecessor court explained in Foley Const Co. v. Ward:
[C]laims for money if successfully presented were satisfied from the king’s personal funds. Later, as the king became dependent on the ordinary support of the government, it became necessary for Parliament to provide funds for the redress of such wrongs or payment of the claim. Thus arose the present principle in which the assent of the Legislature is required in order to sue the state.
375 S.W.2d 392, 393 (Ky.1963).
The people of Kentucky, through § 230 of the Kentucky Constitution,13 have invested in the General Assembly with the legislative power to appropriate funds from the public purse. See Ross v. Gross, 300 Ky. 337, 188 S.W.2d 475 (1945) (“[T]he purpose of [§ 230] is to prevent the expenditure of the state’s money without consent of legislature.”). It follows that through the fundamental principles of the separation of powers embedded in our Constitution, the courts cannot dictate to the legislature how the public treasury is to be disbursed. See Kentucky Constitution, § 28 (“No person, or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”)
This principle is expressly reflected in the seminal case of Kentucky Center for the Arts Corp. v. Berns, 801 S.W.2d 327, 329 (Ky.1990):
[O]ur Court has recognized [§ 230] as constitutionally protecting sovereign immunity in “suits against the Commonwealth” because otherwise it has no meaning. From its genesis in the First Constitution of 1792, Article VIII, § 4, to the Fourth Constitution of 1891 (the present Constitution), the pronouncement has followed immediately in sequence a proviso that “no money shall be drawn from the state treasury but in consequence of appropriations made by law.” The “Debates, Kentucky Convention 1849,” pp. 628-30, confirm the tie-in between §§ 230 and 231 of the present Constitution. These two sections recognize the existence at common law of sovereign immunity and authorize the General Assembly, by general act, to establish a method for adjusting claims against the state government as an alternative to private, special legislation. The purpose of the second section in the sequence (now § 231) is to make it possible for the General .Assembly to provide a formula to pay claims by general *867law from the state treasury without violating the first section. Without § 2B1, a statute permitting judgments against the Commonwealth to be paid out of the state treasury would violate the previous section.
Id. at 329.
With the above backdrop in mind, it is apparent that a test for whether an entity such as SD1 enjoys the protections of immunity from suit is whether the fiscal liability of the agency puts the public treasury at risk. If it does, then the concern for that fiscal liability is within the province of the legislative branch, not the judicial branch; the judicial branch would thus be bound by our Constitution to defer to the legislature unless the legislature has expressly consented to adjudication. If, however, the public treasury is not put at risk, then a major rationale for cloaking the entity with immunity simply does not exist.
As the majority opinion clearly states, “[t]he judge-executives of the counties within a multi-county sanitation district are allowed to review, approve, or disapprove budgets and capital improvements, KRS 220.035, but the affected counties’ fiscal interests are not directly implicated.” Op. at 860 (emphasis added). Subjecting SD1 to the rigors of a lawsuit does not put the public treasury at risk. Therefore, in addition to the grounds cited by the majority, the fact that SDl’s liabilities cannot invade or put at risk “the king’s purse” is an equally significant reason for declining to recognize it as an entity that is cloaked in sovereign immunity.
Cunningham, J., joins.
. Section 230 states: "No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law; and a ' regular statement and account of the receipts and expenditures of all public money shall be published annually...