I vote to reverse not because I question the law upon which the majority result is reached but rather because I do not deem it wise to perpetuate the unsound and unjust philosophy upon which that law is based, namely, that the state is above the law. Such a philosophy may have its place in the monarchical concept (the King can do no wrong) in the administration of justice. But no law based upon such a philosophy should have any place in the administration of justice under our democratic form of government.
There is nothing sacrosanct about the status of the state as a suitor. As such suitor, it should stand on the same footing as any private individual. For when, as here, the state voluntarily resorts to its courts as a plaintiff seeking to recover compensation for damages to its property, on the ground of actionable negligence, then it casts aside its shield of immunity and the defendant should be permitted to set up all such appropriate defenses touching the merits of the state's claim which he could have urged against a private individual, including the defense of the contributory negligence of the state's servant. In other words, the state's right to compensation, in the circumstances, should have been determined by the ordinary applicable rules of law for the administration of justice.
The principle urged is not without recognition in our state.Cf. American Dock and Improvement Co. v. Trustees of PublicSchools, 35 N.J. Eq. 181 (at pp. 252, et seq.); NewJersey Interstate Bridge and Tunnel Commission v. Jersey City,93 Id. 550, 555; 118 Atl. Rep. 264; Wilentz v. CrownLaundry Service, Inc., 116 N.J. Eq. 40, 41;172 Atl. Rep. 331. See, also, 36 Cyc. 910; 59 C.J. 315. It should presently *Page 327 suffice to observe that this principle is also recognized by the federal courts, by the courts of several of our sister states, and has been strongly advocated by outstanding professors of law and acknowledged legal text writers. It is a sound, fair and just principle. It is a principle that gives fruitful and just meaning to the maxim that "sovereignty is a shield but not a sword."
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, CASE, BODINE, DONGES, HEHER, WELLS, RAFFERTY, DILL, FREUND, JJ. 10.
For reversal — PERSKIE, J. 1.