McDowell v. State Highway Commissioner , 365 Mich. 268 ( 1961 )

Black, J.

Williams v. City of Detroit, 364 Mich 231, handed down September 22d, foretold the result of these suits. By separate opinion in that ease it was made clear that the Court had overruled, prospectively, the rule of immunity — from tort liability —of municipal corporations; no more and no less.

“We are not considering today — as the opinions of both Brothers suggest — ‘the doctrine of governmental immunity.’ That doctrine includes within its purview the State and ‘its departments, commissions, boards, institutions, arms or agencies.’ See the court of claims act, CL 1948, §§ 691.101 through 691.122 (Stat Ann 1959 Cum Supp §§ 27.3548[1]-27.3548 [23]). We are considering the common-law rule that municipal corporations are immune from tort liability. ‘Municipal corporations’ are distinctively definable (see Hall v. Ira Township, 348 Mich 402, and Bacon v. Kent-Ottawa Metropolitan Water Authority, 354 Mich 159), and care should be taken that today’s decision is confined thereto. No lawyer should be left to wonder whether other public bodies are included within the scope of what we do in this case of Williams.” (Williams v. City of Detroit, supra, at page 278.)

By these statements of claim plaintiffs attempt to hold a department of the State, and so the State, responsible in damages for a tort. No question of abatement of a nuisance, or of other relief a court of equity might properly grant (see for example Hunt v. State Highway Commissioner, 350 Mich 309), is or could be before us on review of these judgments of the court of claims.

The respective statements of claim, now before usT aver the tort alternatively by 2 separate counts. The first count alleges that the State highway department was actionably negligent in failing to remove or drain “a large pool of water” from the surface of' trunkline highway US-10 with result that the pool froze into a traffic-dangerous sheet of ice. The second count alleges that the same failure created and continued a public nuisance. Bach count sets forth that the plaintiff suffered personal injury or consequential damage on account of such negligence' or nuisance.

On motion of the attorney general, the court of claims dismissed all such statements of claim, assigning immunity of the defendants from liability. This unitary appeal followed.

The attorney general has clearly and tersely put in words the mandatory reason for affirmance of these judgments. Having quoted a relevant part of the opinion of Mead v. Michigan Public Service Commission, 303 Mich 168, 173, he says in his brief:

“The legislature has received, considered, and acted upon such recommendations in the past, as is demonstrated by the enactment of PA 1943, No 237, and by the enactment of PA 1945, No 87 . By these acts the defense of sovereign immunity was first abolished and then restored except as to causes of action based upon negligent operation of State-owned motor vehicles. * * * However, the doctrine of sovereign immunity which presently exists in Michigan is not the archaic, obsolete, ‘king can do no wrong’ edition of 1066, but consists of a pattern of deliberate legislative choices which achieved its present form, so far as the State itself is concerned, by the enactment of PA 1945, No 87, and the amendment thereof by PA 1960, No 33. Since PA 1960, No 33, took effect after the events which gave rise to these .actions, that act cannot serve to establish or .abolish rights with respect to appellants herein. However, the fact that the legislature amends a statute in 1960 does show that the legislature is giving, continuing consideration to, and acting with respect to, the doctrine of sovereign immunity. If the expréss re-establishments of the doctrine of sovereign immunity by the legislature in 1945 is obsolete, illogical, harsh, cruel, et cetera, then the legislature should be called upon to modify or abolish the doctrine.

“So far as the State itself is concerned, the doctrine of sovereign immunity as it presently exists in Michigan is a creature of the legislature. The doctrine has been modified by the legislature, abolished by the legislature, re-established by the legislature, .and further modified by the legislature.”

The judiciary has no right or power to repeal statutes. As said by the attorney general, the legislature has willed that the present defendants be and remain immune from liability for torts such as these plaintiffs have alleged. There they must stand, legally, until the legislature wills to the contrary.

I vote to affirm, without an award of costs.

Dethmers, C. J., and Carr, Kelly, and Kavanagh, JJ., concurred with Black, J.