Madison v. City & County of San Francisco

• Court: California Supreme Court
• Writing for the Court: CARTER
• Citation: Madison v. City & County of San Francisco, 236 P.2d 141 (Cal. 1951)
• Decision Date: 19 October 1951
• Parties: MADISON v. CITY AND COUNTY OF SAN FRANCISCO. Civ. 14410.

Page 141

236 P.2d 141

MADISON v. CITY AND COUNTY OF SAN FRANCISCO.

Civ. 14410.

Supreme Court of California, Department 1.

Oct. 19, 1951.

Hearing denied.

CARTER, Justice.

I dissent.

While voting to grant a petition for hearing in the Supreme Court after decision by a District Court of Appeal is ordinarily sufficient to indicate my disapproval of the holding of the intermediate appellate court, in this case I deem it advisable briefly to state my reason for so voting.

There can be no doubt but that both the majority and concurring opinions of the District Court of Appeal, 234 P.2d 995, followed the rule which has been heretofore announced in cases of this character by the Supreme Court and District Courts of Appeal of this state. This rule is based upon the old outmoded and outgrown maxim that "The King Can Do No Wrong," or the doctrine of sovereign immunity. This had its origin in medieval English theory and was introduced in this country without sufficient understanding. Government Liability in Tort, Borchard, 34 Y.L.R. 1. It has been pointed out that what the maxim really meant was that the King was privileged to do no wrong--that if his acts were against the law--they were wrongs--not that he should be immune from the consequences of his unlawful acts. However that may be, there was never any reason for its incorporation into the law of this country where democracy exists and where we are said to have a "government of the people, by the people and for the people." It requires but a slight appreciation of the facts to...