concurring speciaUy:
I concur with the decision of the majority and agree that defendant was immune from suit. To the extent that the majority indicates that the immunity arises from legislation providing for and defining the powers of the court of claims, I am in disagreement. I think that defendant is immune only because of the provisions of section 1 of “An Act in relation to immunity for the State of Illinois” (Ill. Rev. Stat. 1977, ch. 127, par. 801). I also think that the argument of the plaintiff has more substance than the majority opinion indicates and that if it were not for the foregoing legislation our decision would be different.
As noted by the majority, Scoa Industries, Inc., held that the legislation mentioned in the first paragraph was a restatement or reenactment of the sovereign immunity existing prior to the effective date of article XIII, section 4 of the Illinois Constitution of 1970 which abolished sovereign immunity except to the extent that the legislature should provide otherwise. The Illinois Constitution of 1870 provided in article 4, section 26: “The State of Illinois shall never be made defendant in any court of law or equity.” Despite that provision, in Board of Trustees v. Bruner (1898), 175 Ill. 307, 51 N.E. 687, legislation providing that the Board could sue and be sued was deemed sufficient to authorize a contract action against the Board. As late as 1974 in Talandis Construction Corp. v. Illinois Building Authority, an appellate court, ruling upon a factual situation occurring under the immunity provision of the old constitution, affirmed the dismissal of a third-party complaint against the Board of Trustees of the University of Illinois holding that (1) to the extent the complaint sounded in tort, the Board was immune and (2) as to a stated contractual claim, the complaint failed to show a cause of action as to the Board. At that time the statutory powers of the Board to sue and be sued were exactly the same as those of the defendant here, but the theory that the Board was immune from suit in contract was apparently never even raised. In order for us to affirm here, we must determine that the previously mentioned legislation creating State immunity is more than a reenactment of prior sovereign immunity as applied to State agencies.
Plaintiff s argument keys upon the statutory provisions empowering defendant to sue and be sued provided that tort claims be filed in the court of claims. This would certainly indicate a legislative intention that the defendant not be immune to contract actions brought within the State’s court system. It is important to consider that in Siefert v. Standard Paving Co. (1976), 64 Ill. 2d 109, 123, 355 N.E.2d 537, 542, the supreme court noted that the court of claims was not established to “function as a court and adjudicate cases” but “simply to receive and process in an orderly manner claims which might be addressed to the State.” The opinion pointed out that the court of claims is not part of the judicial system provided by the constitution but an entity created to give partial redress to those who have no judicial remedy because of sovereign immunity.
The legislation providing for the entity which fills this otherwise remediless void provides that it shall have “exclusive jurisdiction * * * [of actions] founded upon * * * contract ” e # with the State of Illinois” (Ill. Rev. Stat. 1977, ch. 37, par. 439.8(b)) and then later provides that it shall have “exclusive jurisdiction” of claims sounding in tort against “the State * * * and all like claims sounding in tort against the Medical Center Commission 0 0 0 [and] the Board of Regents of the Regency Universities System * # (Ill. Rev. Stat. 1977, ch. 37, par. 439.8(d).) The statutory reference only to the “State of Illinois” concerning contract claims as distinguished from the reference to the “State” and the various State agencies including defendant with respect to tort claims would indicate that contract claims against the various State agencies including defendant were not to be brought in the court of claims. Keeping in mind the purpose of the court of claims to provide redress where there is sovereign immunity, this interpretation would be consistent with plaintiff’s interpretation of the legislation purporting to empower judicial suits against defendant in contract actions but not in tort actions.
The answer to plaintiff’s position arises almost exclusively from the opinion of the supreme court in Williams v. Medical Center Com. (1975), 60 Ill. 2d 389, 328 N.E.2d 1, and its progeny. In Williams, the court affirmed a trial court’s dismissal of a complaint sounding in tort and brought against the Medical Center Commission, an entity whose enabling legislation (Ill. Rev. Stat. 1973, ch. 91, par. 126) gave it the same power to sue and be sued as has defendant. The rationale of the opinion was based not upon the lack of power to be sued in tort as provided in the enabling legislation nor upon the legislation which specifically states that the court of claims had “exclusive jurisdiction” of tort claims against that entity. The opinion relied upon the legislation establishing State sovereign immunity and concluded that defendant came under the umbrella covering the State of Illinois within that statute. Since that legislation makes no distinction between tort and contract actions, the rationale of Williams indicates that entities such as the Medical Center Commission and defendant have immunity to suit in contract as well as in tort. The legislation purporting to authorize contract suits against these entities was enacted prior to the legislation relied on in Williams. The effect of the rationale of Williams would appear to be that the latter legislation repealed the former.
Because of Williams and its progeny I agree that (1) defendant was immune from the suit brought here and (2) the trial court, therefore, properly dismissed the instant suit.