The ultimate issue is wlietber an action based on tort is properly maintainable against the state of Ohio when it has not consented to such suit. Based on precedent, this issue would seem to be foreclosed against appellee. See Raudabaugh v. State (1917), 96 Obio St. 513, 118 N. E. 102, wherein paragraph one of the syllabus states:
“A state is not subject to suit in its own courts without its express consent.”
Paragraph two of that syllabus states:
“The provision of the Ohio Constitution, Article I, Section 16, as amended September 3, 1912, that ‘Suits may be brought against the state, in such courts and in such manner, as may be provided by law,’ is not self-executing; and statutory authority is required as a prerequisite to the bringing of suits against the state..”
See, also, paragraphs one and two of the syllabus in Palumbo v. Indus. Comm. (1942), 140 Ohio St. 54, 42 N. E. 2d 766; paragraph one of the syllabus in State, ex rel. Williams, v. Glander (1947), 148 Ohio St. 188, 74 N. E. 2d 82; and paragraphs two and four of the syllabus in Wolf v. Ohio State Univ. Hospital (1959), 170 Ohio St. 49, 162 N. E. 2d 475.
However, because appellee challenges the correctness of those cases as precedent for such a ruling, and because the majority of the court below found that “the doctrine of sovereign immunity cannot be supported in Ohio in the light of the history of Article I, Section 16,” and because of the widespread criticism of it, the doctrine of governmental immunity in Ohio will be re-examined herein.
The Constitutions of 1803 and 1851 were silent on the question of governmental immunity, but case law by this court clearly shows that it existed in Ohio. See State v. Franklin Bank of Columbus (1840), 10 Ohio 91; Miers v. Zanesville and Maysville Turnpike Co. (1842), 11 Ohio 273; and Seely v. State (1842), 11 Ohio 501, affirmed, 12 Ohio 496. Thus, the doctrine had a judicial origin.
In 1850, a constitutional convention was convened for
“When any claim or demand shall be presented to the General Assembly, and one-fourth of the members elected to either branch thereof, shall be opposed to the allowance of such claim or demand, the General Assembly shall then and forever thereafter, be prohibited from allowing the same, but provision shall be made by law for the prosecution in the courts of law and equity, of all claims or demands against the state.” Yol. 2, Debates and Proceedings of the Constitutional Convention of 1850, page 182.
Speaking on behalf of the amendment, Delegate Wood-bury stated:
“We are all aware that claims are submitted to the Legislature, about which we have no means of ascertaining whether they are correct or not, because the evidence we have is merely ex parte. The allowances depend generally more upon the men who advance the claims than the justice of the claims. * * * Claims have been brought here which parties would never think of applying to a court to enforce * *
He also argued that:
“Of all bodies in the world the Legislature is the poorest to settle disputes about claims.” Id., Vol. 1, page 297.
Delegates opposing the amendment argued that the state was immune to suit and to allow it to be sued would be “no case at all — there is no possibility of a fair trial, with the state on the one side and an individual on the other.” The “State * * * will always be ‘plucked’ in the absence of * * * protection in some shape.” Id., Vol. 2, page 182.
When the debate was over Delegate Woodbury withdrew1' the proposal and governmental immunity remained the law of Ohio. Id., Yol. 1, page 298. The amendment was ultimately rejected by the Convention on December 26, 1850. Id., Vol. 2, page 182. Private claims against
At the 1912 Constitutional Convention, Delegate Wey-brecht introduced Proposal No. 252, which was entitled “Providing for redress of claims against the state.” Vol.. 1, Proceedings and Debates of the Constitutional Convention of 1912, at page 249. The proposal was referred to the Committee on Judiciary and Bill of Rights. Id., Vol. 1, page 318. It was reported out by that committee in the following language:
“Suits may be brought against the state, in such courts, and in such manner, as may be directed by law.” Id., Vol. 2, page 1431.
Speaking on behalf of the proposal, Delegate Wey-brecht stated:
“The proposal # * * recognizes the right of the individual to seek redress for claims against the state in such courts as may hereafter be designated, without petitioning the Legislature as is now the custom.” (Emphasis added.) Id.., Vol. 2, page 1431.
Delegate Weybreeht referred to other jurisdictions whose then present procedure was in accord with Proposal No. 252:
“In our national government this ancient attribute of sovereignty was overthrown many years ago when Congress conferred on a special court the adjudication of all claims of the individual against the general government.
“Today the states of Pennsylvania, New York and Connecticut, through their constitutions, confer op, thePage 137Legislature, as does this proposal, the right to designate the tribunal in which redress may be sought.”
“* * * why should the Legislature appropriate the people’s money in settlement of claims against the state of dubious and uncertain origin and ivithout the intervention of courts V; (Emphasis added.) Id., Vol. 2, page 1431.
The proposal passed with near unanimous approval and was referred to the Committee on Arrangement and Phraseology. Id., Vol. 2, page 1432. That committee changed the title to “Suits against the state” and changed the phrase “as may be directed by law” to “as may be provided by law. ” Id., Vol. 2, page 1797.
At the third reading, Delegate Hoskins spoke on behalf of the proposal:
‘ ‘ This section * * * permits a suit to be brought against the state in a manner to be provided by law. !* * * The Legislature ought to have a right to provide by law for the adjustment of controversies between its citizens and the state. That is the sole purpose of this proposal.” (Emphasis added.) Id., Vol. 2, page 1919.
Delegate Woods objected to the proposal, stating: “If this door is thrown open it will be a great expense to the state. The cases will have to be tried by juries in the local county and the idea will be that ‘The state has a lot of money and we will make the state pay.’ ” Id. However, the amendments were agreed to and the proposal passed as amended by the Committee on Arrangement and Phraseology. Id., Vol.. 2, page 1960.
When drafting the explanation to the people, Delegate Hoskins questioned whether the explanation to Section 16 of Article I conveyed “the idea that legislation is necessary to confer that right or is the right given by the article itself? * * # The amendment says that the Legislature shall provide the method of bringing suit. Will the amendment itself confer the right to bring the suit?’’ (Emphasis added.)
Delegate Peck stated: “The amendment does confer that right.” Id., Vol. 2, page 2028.
The doctrine of governmental immunity was a complete defense to any suit brought against the state without its consent, and the delegates were certainly apprised of that fact. The issue for them was not whether to abrogate governmental immunity, but what was the best method for allowing suits against the state. The history of Section 16 of Article I shows that they empowered the General Assembly to determine in what manner and in what courts suits should be brought. Such was the prevailing constitutional procedure at that time.2
In the Raudabaugh case, supra (96 Ohio St. 513), this court examined similar constitutional provisions of various states and concluded that there was no material difference between them and Section 16 of Article I.
For example, Section 27, Article IY of the Wisconsin Constitution, provides:
“The Legislature shall direct by law in what manner and in what courts suits may be brought against the state. ’ ’
The Wisconsin Supreme Court held that governmental immunity was abolished but that the constitutional provision “has no effect upon the state’s sovereign right un
The court in Raudabaugh also compared Section 16 of Article I, to Section 6 of Article XX of the California Constitution, which provides:
“Suits may be brought against the state in such manner and in such courts as shall be directed by law. ’ ’
In Muskopf v. Corning Hospital Dist. (1961), 11 Cal. Rptr. 89, 92, 359 P. 2d 457, 460, the California Supreme Court rejected a contention that the amendment established a substantive rule of immunity and stated:
“If the section has any substantive significance it would appear to be a waiver of immunity.”
The court, at page 93, held “that Article XX, Section 6 provides merely for a legislative consent to suit.” In other words, Section 6 was not self-executing.
Kentucky was another jurisdiction relied upon by the court in Raudabaugh. Section 231 of the Kentucky Constitution provides:
“The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth.”
Section 231 is not self-executing.
“ * * * the constitutional section in question has always been very explicit. The word ‘may’ in Section 231 indicates that suits against the commonwealth may be brought as a matter of legislative grace. * * * Only by authority of an enactment of the Legislature may such suit be brought, and then the manner of bringing a suit and the court in which it may be brought must be directed.” Foley Construction Co. v. Ward (Ky. 1964), 375 S. W. 2d 392, 396. See, also, Dept. of Revenue v. Jack Cole Co. (Ky. 1971), 474 S. W. 2d 70, 72.
Similarly, the constitutional provisions of Nebraska
While inroads on the doctrine of governmental immunity have been made in other areas (see Brown v. Omaha [1968], 183 Neb. 430, 160 N. W. 2d 805 [cities and political subdivisions] and Johnson v. U. of Omaha [1969], 184 Neb. 512, 169 N. W. 2d 286 [municipal universities]), it is still the law in Nebraska that Section 22 of Article V “permits the state to lay its sovereignty aside and consent to be sued on such terms and conditions as the Legislature may prescribe. This provision of the Constitution is not self-executing. Legislative action is necessary to make it available.” Gentry v. State (1962), 174 Neb. 515, 517, 118 N. W. 2d 643.
The Supreme Court of Tennessee, in Brewington v. Brewington (1965), 215 Tenn. 475, 387 S. W. 2d 777, stated:
“* * think it important and significant to outline the rights of the state * * * as a sovereign. According to Article I, Section 17 * * * suits may be brought against the state in such a manner and in such courts as the Legislature may by law direct, and in no other manner.”
Because it could find no express consent to the suit, it dismissed the state as a party defendant.
The court in Raudabaugh also compared Section 16 of Article I to Section 26 of Article II of the Washington Constitution :
‘ ‘ The Legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state. ’ ’
Of Section 26, Article II, the Washington Supreme Court stated that “it was left to the Legislature to determine in what courts such suits should be brought, and to prescribe the method of procedure.” Northwestern and Pac. Bank v. State (1897), 18 Wash. 73, 50 P. 586. The Washington Legislature has enacted such enabling legis
To the list of jurisdictions cited by the court in Raudabaugh, whose constitutional provisions are similar to Section 16 of Article I, and whose courts hold they are not self-executing, could be added at least the following: Arizona,3 Delaware,4 Indiana,5 Nevada,6 North Dakota,7 Pennsylvania,8 South Dakota,9 and Wyoming.10
Having examined the history of Section 16 of Article I, and similar provisions in other state constitutions, as construed by their supreme courts, this court is impelled to the same conclusion as that reached by the court in Raudabaugh v. State, supra (96 Ohio St. 513), and expressly approves the syllabus in that case. Likewise, because the decisions in the subsequent cases of Palumbo v. Indus. Comm., supra (140 Ohio St. 54), State, ex rel. Williams, v. Glander, supra (148 Ohio St. 188), and Wolf v. Ohio State Univ. Hospital, supra (170 Ohio St. 49), are predicated on Raudabaugh, they are also expressly approved.
Section 22 of Article II indicates a like conclusion,
“No money shall be drawn from the treasury, except in pursuance of a specific appropriation, made by law; # * # 7 J
When the provisions of Section 16 of Article I and Section 22 of Article II of the Ohio Constitution are considered in pari materia, it is clear that three distinct powers were delegated to the General Assembly: (1) the power to establish the courts where suits may be brought; (2) the power to provide the manner in which such suits may be brought; and (3) the power of control of the purse string, i. e., the exclusive power to appropriate the money from the State Treasury to satisfy the claim. Were the opposite result to obtain, courts would render judgments which would be constitutionally uncollectible unless or until the General Assembly made an appropriation, or the plaintiff brought suit, in aid of execution, against the General Assembly. It was, in part, to safeguard against those problems that the delegates drafted Section 16 of Article I to empower the General Assembly to denominate in what courts and in what manner suits may be brought against the state.
Appellee syllogistically reasons that Section 5(B) of Article IY of the Ohio Constitution empowers this court to “prescribe rules governing practice and procedure in all courts of the state..” Pursuant to such provision, this court has, through Civ. R. 4.2 provided that “service of process * * * shall be made # * # (10) upon this state * # * by serving the officer responsible for the administration of the department, office or institution, or by serving the Attorney General of this state,” and through Civ. R. 1(a), has provided that “these rules prescribe the procedure to be followed in all courts of this state. ’ ’ Therefore, if Section 16 of Article I is interpreted as authorizing the General Assembly to enact laws providing for the courts and for the manner of bringing suits against the state, then he concludes and contends that the General Assembly has, in fact, given its consent to such suit because the General
As heretofore stated, Section 16 of Article I abolished the defense of governmental immunity and gave to the General Assembly the authority to determine in what courts and in what manner suits may be brought against the state. Its consent is manifest when it designates, by law, the courts and the manner in which such suits may be brought.
But the fundamental flaw in appellee’s syllogism is that after Section 16 of Article I was adopted, the situation, in practical effect, was the same as before its adoption. Although the defense of governmental immunity was not available to the state, the defense of lack of consent by the General Assembly to such suit was available. Thus, an action based on tort was not properly maintainable against the state of Ohio unless it consented to such suit. That was the theory of the Raudabaugh, Palumbo, Williams and Wolf, supra, line of cases.
Understood in that light, the consitutional limitation on this court’s power expressed in Section 5(B) of Article IV, that such “rules shall not abridge, enlarge, or modify any substantive right,” clearly portrays the fallacy in appellee’s reasoning. If the defense of lack of consent by the General Assembly to suits against the state was available as a right of or defense to the state before the adoption of the new Rules of Civil Procedure, and if such right or defense was a substantive right of the state, then it must remain available to the state after the adoption of the Rules of Civil Procedure, for this court cannot “abridge, enlarge, or modify any substantive right.”
Obviously, this court could not constitutionally grant any consent to sue the state, and certainly such was not intended when this court drafted those rules. Thus, it follows that when the General Assembly approved the Rules of Civil Procedure it did not intend to grant its consent to such suits.
Admittedly, adjective and substantive law are not always mutually exclusive, but such a change in the public policy of this state ought not to be so lightly inferred from a general authorization to formulate “rules governing practice and procedure in all courts of this state.” Accordingly, this court holds that the General Assembly has not manifested its consent to suits against the state of Ohio by its approval of the new Buies of Civil Procedure, specifically, Civ. B. 1(a) and 4.2(10).
The majority of the court below found the doctrine of governmental immunity violative of the Equal Protection Clause of the Fourteenth Amendment. It bottomed its decision upon a finding that the withholding of a remedy “from persons injured by state torts but not private ones or from some persons but not others injured by government in tortious, but different, phases of its activity” is capricious and represents no rational policy and thus “fatally offends the Constitution.”
Section 16 of Article I is not, on its face, discriminatory, for it creates no classification. Without enabling legislation it is an absolute bar to suits against the state. Nor is the withholding of a legal remedy from persons injured by the state, while allowing a remedy for nongovernmental tortious activity, discriminatory governmental action. “The Constitution does not require things which
Assuming, arguendo, that there is in fact a classification, it is one which the General Assembly is empowered to make. To say that the state of Ohio is not entitled to a defense, i. e., the right to plead lack of consent to such suit merely because a nongovernmental tortfeasor does not have the same right, is to preclude the combined legislative judgment that there may be substantive differences between the two types of conduct. “* * * we must be mindful not of abstract equivalents of conduct, but of conduct in the context of actuality. Differences that permit substantive differentiations also permit differentiations of remedy.” Tigner v. Texas, supra (310 U. S. 141), page 149. Equal protection does not require that all inconsistencies be eradicated.
Moreover, the appellate court’s observation that some injured plaintiffs may recover damages if the governmental activity is “excepted activity” is not a valid premise for a finding of a denial of Equal Protection of the Laws. Assuming that such observation refers to municipalities, or other political subdivisions, there are sufficient substantive differences between them and the state to allow for such different results..11 Whether it is the nature of the conduct or activity undertaken, or the differences in its governmental and corporate existence, we need not now explore.12
For the above-stated reasons, this court holds that the doctrine of governmental immunity is not violative of the Equal Protection Clause of the Fourteenth Amendment.
We have examined appellee’s other contentions and find them to be without merit.
Although the doctrine of governmental immunity was originally judicially created, it is not now subject to judicial re-examination. When the people of Ohio, in 1912, adopted Section 16 of Article I as part of the organic law of this state, they foreclosed to this or any other court the authority to examine the “soundness” or “justice” of the concept of governmental immunity. The people of Ohio placed that policy decision in the hands of the General Assembly, and the merits or demerits of granting or withholding consent are to be debated and determined by that body alone. It is not within the province of the judiciary to make that determination., Nor can we make that constitutional provision meaningless. The alternative remedy is by a constitutional amendment.
Because no legislative consent has been given by the General Assembly, the judgment of the Court of Appeals must be, and is, reversed.
Judgment reversed.
1.
See Castleberry v. Evatt (1946), 147 Ohio St. 30, 67 N. E. 2d 861; Cleveland v. Board of Tax Appeals (1950), 153 Ohio St. 97, 91 N. E. 2d 480, and State, ex rel. Wallace, v. Celina (1972), 29 Ohio St. 2d 109, 279 N. E. 2d 866.
2.
No significance is gleaned from the fact that the delegates proposed to amend Section 16 of Article I rather than another provision, or to propose it as a separate provision. The original Section 16 of Article I was adopted in 1803, and, except for the amendment, has remained unchanged. It appears that this provision was amended because other states with similar constitutional provisions either amended their comparable provision or adopted it intact. See, e. g., Del. Const., Section 9, Article I; Pa. Const., Section 11, Article I; and Tenn. Const., Section 17, Article I.
3.
Section 18, Article IV, Pt. 2. As early as 1913 the Arizona Legislature enacted what is now Section 12-821, A. R. S., which provided that persons having claims against the state for negligence could bring such action against the state and prosecute it to final judgment. Thus, when the Arizona Supreme Court abrogated governmental immunity it was able to do so because it was truly a judicial doctrine and its constitutional provision was no barrier. See Stone v. Arizona Highway Comm. (1963), 93 Ariz. 384, 381 P. 2d 107, and State v. Stone (1969), 104 Ariz. 339, 452 P. 2d 513.
4.
Section 9, Article I “The Constitution, itself, prescribes the method of waiving or limiting the defense of sovereign immunity. This is no less binding on the courts than any other branch of the government.” Shellhorn v. State (1962), 55 Del. 298, 187 A. 2d 71, 74. See, also, George & Lynch v. State (1964), 197 A. 2d 734.
5.
Section 24, Article IV. “ ‘Consent to be made a party in such a proceeding can be given by the state only by a legislative enactment clearly evincing such consent.’” State v. Young (1958), 238 Ind. 452, 458, 151 N. E. 2d 697.
6.
Section 22, Article IV. The constitution itself provides the procedure for bringing suits against the state and “the obvious implication is that without such a consent the sovereign cannot be sued.” Hardgrave v. State (Nev. 1964), 389 P. 2d 249, 251.
In 1965, the Nevada Legislature enacted N. R. S. 41.031 and partially waived its immunity. See State v. Silva (Nev. 1970), 478 P. 2d 591.
7.
Seetion 22, Article I. Paragraph four of the syllabus in Fetzer v. Minnot Park Dist. (N. D. 1965), 138 N. W. 2d 601, states: “Courts cannot legislate. Their power is limited to passing on laws enacted by the Legislature, and, if the Legislature fails to act, courts cannot change the law by judicial decision.” See, also, Kaczor v. Minot (N. D. 1965), 138 N. W. 2d 784.
8.
Section 11, Article I. “So far as Pennsylvania’s courts are concerned, it is only as the Legislature may by law direct that suits may be brought against the commonwealth.” Commonwealth v. Berks County (1950), 364 Pa. 447, 449, 72 A. 2d 129. See, also, Bannard v. N. Y.
9.
Section 27, Article III. “* * * in the absence of legislative enactment the state is immune from suit and liability for tort committed by an officer or employee in the performance of his duties.” Conway v. Humbert (S. D. 1966), 146 N. W. 2d 524, 526.
10.
Section 8, Article I. “* * * a state exercising governmental functions cannot be made to respond in damages for tort and is not liable for the torts of its officers or agents in the discharge of their official duties, unless it has voluntarily assumed such liability and consented to be liable.” Chavez v. Laramie (Wyo. 1964), 389 P. 2d 23, 26.
11.
Because different considerations apply when the governmental body is a city, town, village, county, etc., the holding in the instant case may not be dispositive of the question of governmental immunity. Accordingly, we intimate no opinion on their amenability to suit.
12.
Appellant strenuously argues that Palmer v. Ohio (1918), 248 U. S. 32, 34, is dispositive of the equal protection argument. A reading of that case discloses that no equal protection argument was considered by the court. The phrase, “no federal right being involved” refers only to the statement that the right of an individual to sue the state “cannot be derived from the Constitution or laws of the United States.”