(dissenting).
I cannot agree with the majority opinion in either reasoning or result and I regret that I do not have the time to deal with the problem exhaustively. I will however endeavor to' point up my basic objecti'ons. Let us begin with the fundamental and incontrovertible proposition that, except by waiver and consent, the Commonwealth is not subject to be sued on this claim. Waiver and consent are permitted under Section 231 of the Kentucky Constitution of 1891, providing the sole means in such cases for waiver of immunity and consent to be sued. The section reads as follows: “The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth.” (Emphasis mine.) This section contemplates a remedy by siiit, known then and now as an action in court. The framers certainly did not contemplate a Board of Claims such as created by Chapter 44 of the Kentucky Revised Statutes or any proceeding thereunder. Section 231 provides also that the General Assembly may determine the manner in which the suit may be brought, but still more important is the fact that the framers provided that the Legislature, in event of a waiver, should designate the court in which the suit should be brought. Section 231 deals directly and solely with suits against the Commonwealth and provides that they shall be brought in some court designated by the General Assembly.
In speaking of the Board of Claims the majority opinion says:
“It has provided a general remedy and set up a quasi-judicial tribunal to determine the justness of all claims and to pay such as may be found meritorious, affording proper and full judicial review.”
Section 231, the only authority for waiver and consent, contemplates a suit “brought in” and not “reviewed by” the courts and it does not contemplate any intermediate action before reaching the court. To adhere to the holding in the majority opinion we are compelled to say that the Board of Claims constitutes a court created by the General Assembly having exclusive original jurisdiction of all negligence actions against the Commonwealth. This is not only repugnant to the plain provisions of Section 231 but is positively forbidden by Section 135 of constitution providing that “No Courts, save those provided for in this Constitution, shall be established.” Any attempt, therefore, to confer upon the Board of Claims the exclusive original jurisdiction in any negligence action against the Commonwealth is in contravention of Sections 231 and 135 and is therefore invalid.
This, however, in my opinion, the General Assembly did not so intend or attempt to do. The purpose of the Board of Claims is to process and expedite the settlement of claims against the Commonwealth (Commonwealth v. Mudd, Ky., 255 S.W.2d 989) and, though there is nothing compulsory about the use of its facilities, those who choose to use it become bound by the provisions of the act. This constitutes jurisdiction by consent. This is not inconsistent with our position when we upheld the validity of the act creating the Workmen’s Compensation Board. Greene v. Caldwell, 170 Ky. 571, 186 S.W. 648. It is likewise in harmony with Section 250 of the constitution providing for arbitration.
The obvious conclusion is fourfold. (1) The Board of Claims Act, Chapter 44 KRS does not and cannot under the provisions of Sections 231 and 135 of the constitution provide either an exclusive remedy or forum for a suit against the Commonwealth, even those claims within the monetary limitations of the act. (2) It does constitute a general law applicable to all persons who voluntarily choose its jurisdiction for the prosecution of claims of $5,000' or less. (3) It is not a general law providing for suit against the Commonwealth as authorized by Section 231 and in no way affects the state’s waiver of immunity and consent to be sued. (4) Its validity under *591constitutional provisions 231 and 135 can be sustained only because of its optional features.
The holding enunciated in the majority opinion completely ignores the doctrine of stare decisis. We must keep in mind that the subject of this action is a special type of joint resolution, namely, a resolution of waiver of immunity and consent to be sued. Other types of resolutions have been passed by the General Assembly and this Court has passed upon their validity. Such is the case of the resolution involved in Department of Conservation v. Sowders, Ky., 244 S.W.2d 464, cited as authority in the majority opinion, and in which we held a certain resolution pertaining to Workmen’s Compensation was in contravention of Section 59(29) of the constitution. I find no fault with that authority except it has no connection with the subject matter of this action. The pertinent part of Section 59 reads as follows:
“59. Local and special legislation. The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely: * *
“Twenty-ninth: In all other cases where a general law can be made applicable, no special law shall be enacted.”
This Court has dealt specifically with resolutions of waiver and consent, such as is the subject of this action, and there is no need to reason by analogy. It has been specifically held since the early days of our present constitution that such resolutions are not in contravention of Section 59, so emphatically declared in the last paragraph of the majority opinion. Even the case of Commonwealth v. Lyon, 72 S.W. 323, 24 Ky.Law Rep. 1747, cited in support of the majority opinion specifically holds that such resolutions are valid under Section 231, supra, and are not in violation of Section 59 of the constitution, and the appeal was taken on those very points. Tn the case of Commonwealth v. Haly, 1899, 106 Ky. 716, 51 S.W. 430, also cited as authority in the majority opinion, we have the same specific holding. In that case the court said:
“While therefore the voluntary grant to these appellees by joint resolution is not an attempted compliance with the provisions of section 231, and is not therefore a law, within the meaning of that section, it is nevertheless an effective consent of the sovereign to subject itself to the jurisdiction of the Franklin circuit court in the particular matter involved, unless, indeed, this consent is prohibited by section 59 of the constitution, which provides that the general assembly shall not pass local or special acts (paragraph 29) in any case 'when a general law can be made applicable.’ * * *
“ * * * We do not believe that this joint resolution, although confessedly special, in that it is for the sole benefit of certain individuals, can be regarded as covering a case where a general law can be made applicable, within the meaning and spirit of the constitution.” (Emphasis mine.)
In the case of Commonwealth v. Daniel, 266 Ky. 285, 98 S.W.2d 897, 1936, we followed specifically the holding in the Haly and Lyon cases. The holdings of this Court are not “dubious” but rather they decide a specific point about which there is no doubt, equivocation, reservation or evasion.
There is nothing to prevent the General Assembly from making the Board of Claims Act applicable to all debts. Let us look at a case where the proof might show beyond cavil that the actual honest debt was $50,000. Let us then ask ourselves in the wording of Section 59, what “general law can be made applicable” when the jurisdiction of Board of Claims is limited to claims of $5,000.
It was never contemplated by those who fathered our constitution that any suit provided under Section 231 should be relegated *592to the compulsory jurisdiction of an administrative agency, an agent of the state, thus creating a situation wherein the Commonwealth is both defendant and judge. I cannot be made to believe that “we, the people” of 1891 fostered such injustice.
It may be well to note here that members of the Legislature would be quite reluctant to divorce themselves completely from a prerogative that could be and often is advantageous to them in serving their respective constituencies.
For the reasons herein enumerated I respectfully dissent. I am authorized to state that Judges MILLTKEN and MONTGOMERY join in this dissent.