dissenting.
I must respectfully dissent from the opinion of the majority of the court, as set out above, for the following reasons.
This case arose as a cause of action brought under the State Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 et seq. (Reissue 1981), which provides, among other things:
The district court, sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any suit or tort claim as defined in this act. Suits shall be brought in the district court of the county in which the act or omission complained of occurred, or if the act or omission occurred outside the boundaries of the State of Nebraska, in the district court for Lancaster County.
§ 81-8,214.
The majority opinion seeks to overrule Catania v. The University of Nebraska, 204 Neb. 304, 282 N.W.2d 27 (1979), and Miller v. State, 208 Neb. 170, 302 N.W.2d 692 (1981), both cases having been well-established precedents in our jurisdiction.
Neb. Const, art. V, § 22, empowers the Legislature to provide by law in what manner and in what courts suits shall be brought. I am of the opinion that the Legislature, acting pursuant to this power, enacted the State Tort Claims Act in *424language which, when reasonably construed, requires proper venue as a necessary prerequisite or as a condition precedent to jurisdiction.
I am in agreement with the opinion of the court in Catania, supra, which interpreted the State Tort Claims Act and held that venue is a jurisdictional requirement under that act.
The majority opinion in this case appears to take the position that the State is to be treated as a private litigant under the State Tort Claims Act, and has thus waived venue. This finding, I believe, is directly contrary to well-established authority in our jurisdiction. In Catania, supra, this court stated:
In order to sue the State of Nebraska or one of its agencies under the Tort Claims Act, the requirements of the act must be followed strictly and the petition filed in the District Court for the county in which the alleged wrongful act or omission took place. In the absence of specific legislative authority, neither the state nor one of its agencies may waive those jurisdictional requirements.
(Emphasis supplied.) 204 Neb. at 315, 282 N.W.2d at 33. See, also, Pointer v. State, 219 Neb. 315, 363 N.W.2d 164 (1985).
I note that the majority opinion cites the Iowa Tort Claims Act, Iowa Code § 25A.4 (1983), as a model for us. On the other hand, the Nebraska State Tort Claims Act differs significantly from the Iowa statute, because the latter is much more general, expressly providing for alternative venue, whereas the Nebraska State Tort Claims Act prescribes only one proper venue. Admittedly, venue is not jurisdictional according to the law of Iowa, nor is venue jurisdictional under the federal Tort Claims Act, which is also an instructive model. But the fact remains that we are called upon to interpret the Nebraska State Tort Claims Act. If we were to read into our act more than the Legislature expressly provided, we are perilously close to engaging in judicial legislation. Similarly, the Florida case of Ringling Bros.-Barnum & Bailey Com. Sh., Inc. v. State, 295 So. 2d 314, 315 (Fla. App. 1974), is cited by the majority as authority for the proposition that “[v]enue is not the same as jurisdiction.” However, there is no Florida counterpart to the Nebraska State. Tort Claims Act. I believe that the line of authority which is spelled out in the cases cited above, to wit, *425Miller, Catania, and also Wickersham v. State, 218 Neb. 175, 354 N.W.2d 134 (1984), reflects an entirely different policy than those contained in both Florida and Iowa.
After a thorough review of the legislative history of the State Tort Claims Act, § 81-8,214, and a careful reading of Miller, Catania, Wickersham, and Pointer, decided by this court, I must express regret that I am unable to join in the majority opinion. It may be that the public policy of the State of Nebraska should be changed so that its State Tort Claims Act may be brought into line with the Iowa Tort Claims Act, or other similar state acts, but this is a matter I believe should clearly be done by the Legislature, upon whose shoulders Neb. Const, art. V, § 22, cited above, has placed the responsibility. In view of the considerations and distinctions articulated in the legislative and judicial authorities cited herein, I submit that the judgment of the district court appealed from should be affirmed.
Caporale, J., j oins in this dissent.