The judgment under review should be affirmed for the reasons expressed in the opinion of Mr. Justice Parker for the Supreme Court, and reported in 132 N.J.L. 426.
The sole point in the case is whether the State, when it enters a state court as a plaintiff, is bereft of immunity and thereafter finds itself on the same footing as a private suitor. It is a rule, universally accepted, that a state is protected against suits brought by its own citizens. No constitutional provision is necessary on this matter. Such immunity is one of the essential attributes of sovereignty. This principle was enunciated in Lodor v. Baker, Arnold Co., 39 N.J.L. 49. (See cases collected in 42 A.L.R. 1467n.) A state may waive its sovereign immunity by statute or provision of its constitution and some states have done so. Nor may a state be sued in the federal courts by a citizen of another state or a subject of a foreign state (amendment XI, United States Constitution).
The suit in this instance was instituted by the State Highway Commissioner against the defendant for damage done to one of the state bridges. The trial court found as a fact (there was no jury) that the defendant was negligent; but it also found the fact to be that the bridge tender, an employee of the State Highway Commission, was guilty of contributory negligence. The State Highway Commission has been described as an alter ego of the state, as indeed it is. Curtiss Hill, c., v. StateHighway Commission, 91 N.J. Eq. 421. The trial court held in effect that the contributory negligence of the state's bridge tender was not imputable to the state and gave judgment for the state. On appeal to the Supreme Court the judgment was affirmed. Cases from other states and from the United States courts which enunciate a different *Page 325 rule than that stated by our Supreme Court are cited as a basis for reversing the instant judgment and overruling an opinion of this court (Paterson v. Erie Railroad Co.. 78 N.J.L. 592) upon which the Supreme Court relied. A somewhat recent case, decided in the United States Circuit Court of Appeals (Ninth Circuit) — United States v. Moscow-Idaho Seed Co., 92 Fed.Rep. (2d) 170 (1937) — is cited as a leading authority for the appellant's contention. There the learned opinion writer said that when the United States comes into court and institutes a suit for redress by implication it waives any immunity as sovereign and its adversary may set up any defense available to him were his opponent another citizen instead of the government. In that case the United States, as such, brought suit against the defendant for property damage to one of its automobiles, c. The defendant pleaded contributory negligence on the part of the plaintiff's driver. The trial court overruled the demurrer filed by the United States and on appeal it was held by the Circuit Court (Ninth Circuit) that under the circumstances that defense was available to the defendant, laying down the rule that when the government entered court as a plaintiff all defenses that were not an infringement of sovereignty or a violation of government prerogatives might be invoked by the defendant. We do not subscribe to that principal in so far as the defense of contributory negligence is concerned. There is no occasion to consider its soundness otherwise, beyond the precise point involved here. We find no authority for the appellant's argument under our cases. In a suit to foreclose a mortgage by the "Trustees for the Support of Public Schools" this court held that such suits are subject to the same defenses by answer or cross-bill as like suits by other mortgagees. American Dock andImprovement Co. v. Trustees, c., 35 N.J. Eq. 181, 254. A later case held this to mean that "appropriate" defenses were available in a suit brought by the state. New Jersey InterstateBridge and Tunnel Commission v. Jersey City, 93 Id. 550, 555. Is contributory negligence then an "appropriate" defense in the case before us? We think not. If the state may not be held answerable for the negligence of its servant, the relationship of respondent superior being non-existent, *Page 326 it follows that it may not be compelled to suffer property damage caused by defendant's negligence even though its own servant was guilty of contributory negligence. Such is the rule in a like situation involving a municipality (Paterson v. Erie RailroadCo., supra); a fortiori it is the rule in the case of the state appearing as a plaintiff in the state courts.