Presley v. Mississippi State Highway Commission

For the Court:

Mable Presley and Charley Earl Presley, administratrix and wrongful death beneficiary, respectively, of Mattie Presley, deceased, have appealed the dismissal of their wrongful death suit against the Mississippi State Highway Commission (Commission) because of sovereign immunity granted the Commission under Miss.Code Ann. § 11-46-1, et seq. (Supp.1987), the Sovereign Immunity Act. At issue on appeal is the constitutionality of this Act. Ch. 483, Laws 1987, Section 3, codified as 11-46-1, requires that all claims against the State be governed by case law governing sovereign immunity as it existed immediately prior to our decision in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982). For the reasons stated, we find this portion of the Act unconstitutional, and reverse and remand.

FACTS

October 2, 1987, Mattie Presley was riding as a passenger in a Mercury automobile driven by her mother, Margaret Presley.

. At the intersection of Highways 310 and 51 in Como, 310 runs East/West and 51 runs North/South. Prior to that day there had been a traffic light, which had been replaced by stop signs on 310. Because of the curvature widening of 310 just before its entrance into 51, the signs had been placed back at the narrow portion of 310.

The Presley vehicle was headed West on 310 and as it entered 51 was struck by a school bus, crushing its right side. The Mercury caught fire and because Mattie Presley was pinned inside, she was burned to death.

Following the accident the cautionary signs were changed. The Commission installed a four-way flashing red light and concrete islands on which it placed stop signs on 310 closer to the entrance into the intersection with 51.

The suit against the Commission in the Circuit Court of the First Judicial District of Panola County charged negligent design of the warning signs at the intersection.

The Commission filed a Rule 12(b)(6) motion to dismiss, which was sustained by the circuit judge on the ground the Commission was immune from suit.

The Presleys have appealed.

LAW

PART I

A.

We have addressed and applied this Sovereign Immunity Act, Miss.Code Ann. § 11-46-1, et seq., in several cases, namely: Starnes v. City of Vardaman, 580 So.2d 733 (Miss.1991); McKay v. Boyd Construction Co., Inc., 571 So.2d 916 (Miss.1990); Employers Ins. of Wausau v. Mississippi State Highway Comm., 575 So.2d 999 (Miss.1990) cert. denied — U.S.-, 112 S.Ct. 72, 116 L.Ed.2d 46 (1991); Richardson v. Rankin County School District, 540 So.2d 5 (Miss.1989); Webb v. County of Lincoln, 536 So.2d 1356 (Miss.1988); Region VII, Mental Health-Mental Retardation Center v. Isaac, 523 So.2d 1013 (Miss. 1988); Strait v. Pat Harrison Waterway District, 523 So.2d 36 (Miss.1988); Grantham v. Mississippi Dept. of Corrections, 522 So.2d 219 (Miss.1988) rev’d. sub nom. Sykes v. Grantham, 567 So.2d 200 (Miss. 1990); and State v. Lewis, 498 So.2d 321 (Miss.1986). This is the first instance, however, in which the constitutionality of the Act has been challenged.

Prior to Pruett, decided November 10, 1982, sovereign immunity in this State, except in the few and limited instances in which it had been waived by statute, was governed by common law, and for the State and all political subdivisions, except for “proprietary” functions of municipalities, was absolute.

Beginning with County of Yalabusha v. Carby, 6 Miss. (3 Sm. & M.) 529 (1844), this Court recognized a common law sovereign immunity in this State, and this judicially-created immunity was firmly established by a long line of our subsequent decisions.

Our discomfort with this judicially-created immunity was first noted in Berry v. Hinds County, 344 So.2d 146 (Miss.1977), cert. denied 434 U.S. 831, 98 S.Ct. 114, 54 L.Ed.2d 91 (1977), and then again in Jones v. Knight, 373 So.2d 254 (Miss.1979), although we suggested that the Legislature, not us, was the branch of government to abolish the immunity doctrine.

With the exception of “the historical and well-recognized principle of immunity granted to all legislative, judicial and executive bodies and those public officers who are vested with discretionary authority, which principle of immunity rests upon an entirely different basis,” 421 So.2d at 1052, this Court in Pruett firmly and emphatically abolished all judicially-created state and political subdivisions’ sovereign immunity theretofore existing under the common law of this state.

In Pruett we noted that, “[fjor a good many years now, state after state has decided that the principle that the King (state) can do no wrong is not a legal principle that should receive blanket application in modem times.” Pruett, 421 So.2d at 1047. We then held that “the absolute sovereign immunity doctrine is out of date in modern society and modern legal concepts.” Pruett, 421 So.2d at 1047.

Quoting from our previous decision in Mississippi Baptist Hospital v. Holmes, 214 Miss. 906, 55 So.2d 142 (1951), aff'd 214 Miss. 906, 56 So.2d 709 (1952), we noted that “the functions of creating a public policy is primarily one to be exercised by the legislature and not by the courts.” Pruett, 421 So.2d at 1051. We then held:

We agree that the time has arrived when this Court should recognize that the judiciary is no longer the branch of government to supervise and control the extent to which persons with rightful claims against the sovereign may propound those claims. ... the problem is one our system of government places on the legislative branch.

421 So.2d at 1051.

Pruett, decided November 10, 1982, was made prospective, its mandate applying only to causes of action accruing on or after July 1, 1984. Pruett, 421 So.2d at 1052.

Our decision in Pruett made Mississippi the 45th state to judicially abrogate sovereign immunity. There are many sound reasons why an immunity granted the state or political subdivision should come solely from Legislative enactment. Sovereign immunity is a matter of public policy and our Legislature determines what is in the public interest. Johnson v. U.S., 163 F. 30, 32 (1st Cir.1908); Miss. Baptist Hospital v. Holmes, supra; Albritton v. City of Winona, 181 Miss. 75, 95-96, 178 So. 799, 803 (1938), appeal dismissed, 303 U.S. 627, 58 S.Ct. 766, 82 L.Ed. 1088 (1938). In the granting or withholding of sovereign immunity, there are gradations, competing interests to balance, that of fairness to our citizens and proper functions of state government, and which can only be accomplished by statutory law. As stated in Mayhew, The Abrogation of Sovereign Immunity in Mississippi, 3 Miss.College Law Review 209 at 214 (1983):

[Government provides services that are not generally provided in the private sector such as fire suppression, law enforcement, welfare, streets, sewers, traffic control, and the various inspection services. The private sector determines the viability of services usually on an economic basis; government usually cannot evaluate its services and their continuance in this manner. In addition, especially as to the state, there is often great geographical diversity in the providing of governmental services. Finally, the legislature must consider the many small governmental entities and their limited resources that exist here in Mississippi. [Footnotes omitted]

3 Miss.College Law Review 2Ó9 at 214-215 (1983).

As also noted in this same article:

The legislature must decide whether to treat all the governmental agencies within the state in the same manner or whether to have different rules for the various governmental units....

The legislature should also review the functions of government within the state to determine if any particular activity of government should be immunized specifically. ...

Only by closely reviewing the functions of the various governmental entities can the legislature properly apply the balancing test and make the necessary legislative judgment.

Id. at 218-220.

These are Legislative functions which the courts of this state are neither empowered nor equipped to fulfill. Pruett, supra; Jones v. Knight, 373 So.2d 254, 256 (Miss.1979).

B. THE LEGISLATIVE RESPONSE

The Legislature enacted Ch. 495, Laws 1984 (Senate Bill No. 2441), approved May 15, 1984. The Act has no title, but is a detailed, all-encompassing enactment covering tort claims against the State and all political subdivisions. Section 1 defines the claims and public entities covered.

Under Section 2, as of July 1, 1985, for the State and October 1, 1985, for all political subdivisions, there is a grant of absolute immunity from all claims defined under Section 1.

Under Section 3, and again as of July 1, 1985, for the state and October 1, 1985, for all political subdivisions, there is a limited waiver of the immunity granted under Section 2.

Section 4 reads in full:

SECTION 4. This act shall apply only to claims that accrue on or after July 1, 1985, as to the state, and on or after October 1, 1985, as to political subdivisions. Claims that accrue prior to July 1, 1985, as to the state or, prior to October 1, 1985, as to political subdivisions, shall not be affected by this act but shall continue to be governed by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So.2d 1046, and by the statutory law governing sovereign immunity existing prior to July 1, 1985. [Emphasis added]

Section 5 provides that the remedy afforded under the Act is exclusive of all others. Section 6 grants absolute immunity to all public bodies for claims arising from acts of a legislative or judicial nature, and also acts of a discretionary nature.

Sections 7 and 8 give the jurisdiction and venue of courts in which claims are to be filed, and places a two-year limitation period on all claims. Section 9 limits the maximum recovery for any one occurrence to $500,000.

The remaining sections of the Act create a “Tort Claims Fund” in the State treasury, and authorize the purchase of liability insurance, all with the purpose of seeing that adequate funds are secured to insure payment of any recovery had under the Act.

The 1984 Act was codified as Miss.Code Ann. § 11-46-1, et seq., and except for Section 4, we have only given a general overview of this detailed Act encompassing all claims for torts against the state and all political subdivisions.

In 1985, by Ch. 474, Laws 1985 (House Bill No. 983), the Legislature re-enacted the 1984 Act, but again postponed its going into effect until July 1, 1986, for the State and October 1, 1986, for political subdivisions.

Section 12 of the 1985 Act reads in full:

SECTION 12. Section 4 of Chapter 495, Laws of 1984, is reenacted and amended as follows:

Section 4. This act, being Chapter 495, Laws of 1984, as reenacted and amended by House Bill No. 983, 1985 Regular Session, shall apply only to causes of action that accrue on or after July 1, 1986, as to the state, and on or after October 1, 1986, as to political subdivisions. Causes of action that accrue prior to July 1, 1986, as to the state or, prior to October 1, 1986, as to political subdivisions, shall not be affected by this act but shall continue to be governed by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So.2d 1046, and by the statutory law governing sovereign immunity in effect from and after the passage of House Bill No. 983., 1985 Regular Session.

Again in 1986, by Ch. 438, Laws 1986 (Senate Bill No. 2166), the Legislature essentially re-enacted the previous Acts, but postponed its going into effect until July 1 and October 1, 1987, respectively, for the State and political subdivisions.

Section 6 of the 1986 Act reads in full:

SECTION 6. Section 4 of Chapter 495, Laws of 1984, as amended by Section 12, Chapter 474, Laws of 1985, is amended as follows:

Section 4. This act, being Chapter 495, Laws of 1984, as reenacted and amended by Chapter 474, Laws of 1985, as amended by Senate Bill No. 2166,1986 Regular Session, shall apply only to causes of action that accrue on or after July 1987, as to the state, and on or after October 1, 1987, as to political subdivisions. Causes of action that accrue prior to July 1, 1987, as to the state or, prior to October 1, 1987, as to political subdivisions, shall not be affected by this act but shall continue to be governed by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So.2d 1046, and by the statutory law governing sovereign immunity in effect from and after the passage of Chapter 474, Laws of 1985.

In 1987, by Ch. 483, Laws 1987 (Senate Bill No. 2454), the Legislature once again essentially re-enacted the major portions of the previous enactments, and again postponed its going into effect until July 1 and October 1, 1988, respectively, for the State and political subdivisions. The headnote of the Act, after stating the code sections which are to be amended, gives, inter alia, as its purpose to “extend until July 1,1988, for the State, and until October 1, 1988, for political subdivisions of the State, the date upon which the immunity of such governmental entities shall be waived,” and further “to specify the law that governs causes of action that occur prior to the effective date of the waiver of sovereign immunity contained in Chapter 46, Title 11, Mississippi Code of 1972....”

Section 3 of the Act reads in full:

SECTION 3. The following provision shall be codified as Section 11-46-6, Mississippi Code of 1972:

11-46-6. This chapter shall apply only to claims or causes of action arising from acts or omissions occurring on or after July 1, 1988, as to the state, and on or after October 1,1988, as to political subdivisions. Claims or causes of actions arising from acts or omissions occurring prior to July 1, 1988, as to the state, or prior to October 1, 1988, as to political subdivisions, shall not be affected by this chapter but shall continue to be governed by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So.2d 1046, and by the statutory law governing sovereign immunity in effect from and after the passage of Chapter ⅛7⅛, Laws of 1985. [Emphasis added] Section 50 of the Act reads in full:

SECTION 50. Section 4, Chapter 495, Laws of 1984, as reenacted and amended by Section 12, Chapter 474, Laws of 1985, as amended by Section 6, Chapter 438, Laws of 1986, which specifies the causes of action that are covered by Chapter 46, Title 11, Mississippi Code of 1972, and specifies the law that governs causes of action that occur prior to the effective date of coverage of Chapter 46, Title 11, Mississippi Code of 1972, is hereby repealed.

Thus, after the 1987 session, there had been four successive annual sessions of the Legislature in which this full and detailed Act governing sovereign immunity was enacted and re-enacted, but with its application postponed until the year following.

C. LAW TO BE APPLIED BEFORE EFFECTIVE DATES OF ACTS

The provision common to all four acts is that, until they become effective, all claims against the State and political subdivisions “shall not be affected by this act but shall continue to be governed by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale, 421 So.2d 1046,” and relevant statutory law governing sovereign immunity. Miss. Code Ann. § 11-46-6 (Supp.1981).

We are only concerned here with the mandate of the statute requiring courts, in deciding sovereign immunity questions, to be governed by case law in effect as it existed immediately prior to our decision in Pruett. This imposes upon courts the duty to apply only the case law existing on November 10, 1982.

From this statutory mandate the following may be seen clearly:

First, it requires the court to apply legal principles which this Court specifically rejected in Pruett. And, while it is of course correct that in Pruett we said sovereign immunity was a matter to be determined solely by the Legislature, judicial sovereign immunity was abolished also because the common law does not grant courts the authority to make gradations and exceptions which can only be made by statute.

Second, instead of giving a statutory statement of whether, how or in what manner sovereign immunity shall be applied as it does in the rest of the Act, all authority, under this particular provision, is delegated to the court, the court being told to apply the “case law” on sovereign immunity as it existed on November 10, 1982. The court is not even confined to Mississippi case law. The court is to go beyond the four corners of the statute to find the substantive law governing sovereign immunity, a legislatively imposed responsibility on the court which comes perilously close to delegation to the court the power to legislate on this particular subject, which under our Constitution only the Legislature may do. Miss. Const. Art. IV, § 33. Ogden v. Blackledge, 6 U.S. (2 Cranch) 272, 2 L.Ed. 276 (1804); Case of Hayburn, 2 U.S. (2 Dall.) 408,1 L.Ed. 436 (1792); Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43, 6 L.Ed. 253 (1825); U.S. v. Ferreira, 54 U.S. (13 How.) 40, 14 L.Ed. 40 (1852); Buckley v. Valeo, 424 U.S. 1, 120-124, 96 S.Ct. 612, 682-684, 46 L.Ed.2d 659 (1976); U.S. v. Salberg, 287 F. 208, 213 (N.D.Ohio 1923); U.S. v. Fonseca, 686 F.Supp. 296, 298 (S.D.Ala.1988); Commonwealth v. Franklin, 172 Pa.Super. 152, 92 A.2d 272, 287 (1952).

In In re Shear, 139 F.Supp. 217 (N.D.Cal.1956), the Court, discussing separation of powers among the three branches of government, stated:

It is one of the fundamental principles of our form of government that the legislative power shall be separated from the judicial power. The power to declare what the law shall be belongs to the legislative branch of the government; the power to declare what the law is, or has been belongs to the judicial branch of the government. (Citations omitted.) Neither of these branches of the government may invade the province of the other. (Citations omitted.) The courts declare and enforce the law, but they do not make the law. (Citations omitted.) This is for the reason that courts do not have the function of legislating or the power to legislate. (Citations omitted.) The legislative department alone has the duty of making the laws. [Citations omitted.]

In re Shear, 139 F.Supp. at 220.

The Nevada Supreme Court in Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967) commenting on the separation of powers held that:

[i]n consonance with the spirit and intent of the foregoing constitutional provisions [Separation of powers], the courts of this state have uniformly held that the Legislature is without power to confer upon courts jurisdiction that is not given or authorized to be given them by the Constitution, and that the Legislature can impose no duties on the judiciary but such as are of a judicial character.

Id., 83 Nev. at 24, 422 P.2d at 245 (quoting Frazier v. Moffatt, 108 Cal.App.2d 379 239 P.2d 123 (1951)).

Third, while delegating to the court the seemingly broad discretion to browse freely throughout case law to pick and choose from whence the substantive law of sovereign immunity shall be applied to a particular case, this mandate contains an ominously restrictive injunction. Only the case law that existed on November 10, 1982, can be applied. Thus, it freezes in time and place the common law as it existed at that particular moment, and tells the court this is the only substantive law it is to apply.

While common law grows and changes slowly, and for the most part imperceptibly, grow and change it must. It is fed on the nutrient of experience. And, while a court may be statutorily mandated to follow the common law principles of interpretation, it cannot — without impinging on its powers — be told to follow the common law and in the same breath also told that the common law it applies cannot change, cannot grow. The judicial function cannot be thus stultified. This is precisely what the courts of this State had been told to do for four successive years when this accident occurred in 1987. The common law was encased and entombed.

Courts cannot pass judgment upon the wisdom, practicality or even folly of a statute. We must follow it unless it clearly impinges upon some Constitutional mandate, and our Constitution neither gives wise statutes passing grades nor flunks the improvident ones. This is solely the prerogative of the people acting through their Legislature. Mississippi Milk Commission v. Vance, 240 Miss. 814, 856, 129 So.2d 642, 661 (1961); Mississippi Fire Ins. Co. v. Planters Bank, 138 Miss. 275, 283, 103 So. 84, 86 (1925); Bobo v. Board of Levee Comm’rs for Yazoo-Mississippi Delta, 92 Miss. 792, 811, 46 So. 819, 823 (1908); Martin v. Dix, 52 Miss. 53, 62 (1876).

Courts are charged, however, to interpret and preserve and protect the provisions of our Constitution, and when a statute violates a Constitutional mandate, our duty is to declare the statute void. Albritton, 181 Miss, at 96, 178 So. at 803.

While the delegation to the court of authority to apply “case law” in determining sovereign immunity, the second problem above noted, raises a serious constitutional question, we need not address whether, if this were the only problem with the Act, it would pass constitutional muster. The third problem is fatal to its validity.

The judicial branch of government is separate and co-equal with the other two branches. Miss. Const. Art. I, § 1, Art. VI, § 144. From ancient times judges have had imposed upon them the sole responsibility of pronouncing the common law. “There is no such thing as construction of the common law. We (the court) do not interpret it; we declare it; we say what it is.” Churchill v. Pacific Imp. Co., 96 Cal. 490 at 493, 31 P. 560 at 561 (1892). This function is as vital to our civilized society as statutory law. When a judge pronounces the common law, he must apply the common law as it exists the moment he makes his decision, not as it existed at some time previously. Common law, as opposed to the law embodied in a statute, is forever changing, albeit for the most part by accretion.

The law encompassed within a statute is contained within its four corners, is limited to that statute. This is the difference between statutory and common law. As a guide to its construction, a court may be told by a statute to apply common law principles in its interpretation, but the court cannot also be told that the common law it applies cannot grow or change with the experience of mankind. Such a mandate suffocates the judicial function. As stated in Thomas M. Cooley, 2 A Treatise on Constitutional Limitations at 191 (8th ed. 1927):

If the legislature would prescribe a different rule for the future from that which the courts enforce, it must be done by statute, and cannot be done by a mandate to the courts, which leaves the law unchanged, but seeks to compel the courts to construe and apply it, not according to judicial, but according to the legislative judgment.

The late Justice Griffith, speaking for this Court, in Mitchell v. State, 179 Miss. 814, 824-825, 176 So. 743 at 745 (1937), held:

The common law, however, both in its substantive and in its adjective features, is not now, never has been and never will be, static or stagnant. It has been one of the proudest boasts of the common law that it has within itself the potency of steady improvement, and this by judicial action, so long as that action is in accord with existing fundamental legal principles. It is the duty of courts, as attested by numerous decisions in this court, and in all courts throughout the nation, not only to keep the common law and its processes of enforcement abreast, or nearly so, with the substantial innovations of time, with the higher moral and material attainments in the general progress of enlightened civilization, proceeding always, however, upon established fundamental legal principles, [citations omitted]; but also it is equally the duty of courts to see that the state of the law shall continually profit by the experiences and observations of the past and that, when such experiences have definitely disclosed a mischievous imperfection in previous precedents, the mischief shall be removed by recourse to another, and a fitter, legal principle. 7 R.C.L. p. 1008, § 35; 15 CJ. p. 957, note 19.

In Planters’ Oil Mill v. Yazoo & M.V.R. Co., 153 Miss. 712 at 717, 121 So. 138 at 140 (1929), this Court held:

The Supreme Court has the authority to declare for itself what the common law of this state is. The common law is the perfection of reason, and, when a rule of the common law ceases to be reasonable and just, it is no longer the common law.

“This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.... It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.” Funk v. United States, 290 U.S. 371 at 382-383, 54 S.Ct. 212 at 216, 78 L.Ed. 369 at 375 (1933).

This Court is not required by our Constitution to accept incongruous or undue burdens such as this statute imposes. Application of Schragger, 58 N.J. 274, 277 A.2d 212 (1971). “While no rule of thumb will cover all the cases, in general it may be said that no deviation from the constitutional provisions incorporating the doctrine of the separation of powers will be tolerated which impairs the essential integrity of one of the great branches of government.” Massett Bldg. Co. v. Bennett, 4 N.J. 53 at 57, 71 A.2d 327 at 329 (1950).

We therefore hold, as we must, that the portion of the 1987 Act requiring the courts of this state in determining sovereign immunity to apply the case law as it existed five years previously on November 10, 1982, unconstitutional and void.

BANKS, Justice,

for the Court:

D.

• We find that Miss.Code Ann., Section 11-46-6 (Supp.1991), is unconstitutional for the further reason that Article 4, Section 61 dictates that result.

Section 61 provides as follows:

No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length.

We have held that this provision is not a mere rule of procedure “addressed to and ending with the members of the legislature” and that “[a]n act of the legislature disregarding this would be disregarded by the courts.” Hunt v. Wright, 70 Miss. 298, 11 So. 608 (1892). We have been true to our word.

Moore v. Tunica County, 143 Miss. 821, 107 So. 659 (1926), involved the constitutionality of Chapter 160, Laws of 1922. By Chapter 102 of the Laws of 1916 and Chapter 122 of the Laws of 1920 the Legislature had enacted vast changes in the compensation of chancery and circuit clerks and fixed their salaries at certain amounts. Chapter 160, Laws of 1922 repealed these acts and reinstated the compensation as authorized by law on the first Monday in January 1916. Quoting from our opinion,

The legislature of 1922 enacted Chapter 160, which is entitled: An act to repeal chapter 102 of the Acts of 1916 and chapter 122 of the Acts of 1920 in so far as they fix the salaries of sheriffs and tax collectors, chancery and circuit clerks and their deputies, and to provide for such officers, such compensation as was fixed by the laws as they existed on the first Monday in January 1916, and to amend section 2196 of the Code of 1906, so as to change the fees and commissions of tax collectors for the collection of taxes, (emphasis added).

Section 1 of this act provides:

That all fees, commissions and salaries of the offices mentioned in the title of this act as they existed on the first Monday in January 1916, are hereby restored under the conditions imposed by succeeding sections of the act, and such officers shall be paid exclusively from the fees, commissions and salaries as they were provided by law for each of them to collect on the said first Monday in January 1916, including the chancery clerk the salary provided for county auditors by this act, or such fees, commissions and salaries as may hereafter be provided.

143 Miss, at 831, 107 So. at 660 (emphasis added).

We then held,

It is clear from the language of the title, and of section 1 of the act that it was the intention of the legislature to revive and restore the scheme of compensating these officers for their services and that was in effect prior to the enactment of chapter 102, Laws of 1916 and chapter 122, Laws of 1920, and amendments thereto. The act cannot be clearly understood or applied without a reference to section 2163, Code of 1906 (section 1844, Hemingway’s Code), and the Code provisions for collecting these fees, and we think that it violates section 61 of the Constitution of 1890....

In Lipe v. City of Miami, 141 So.2d 738 (Fla.1962), the Supreme Court of Florida gave the reason for a Constitutional prohibition of this kind:

Judge Cooley, in People [ex rel. Drake] v. Mahaney, 13 Mich. 481, speaking of a similar provision, said:

The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amen-datory act which purported only to insert certain words, or to substitute one phrase for another, in an act or section which was only referred to, but not republished, was well calculated to mislead the careless as to its effect and was perhaps sometimes drawn ... for that express purpose. Endless confusion was then introduced into the law and the Constitution wisely prohibits such legislation.

141 So.2d at 742. It has also been recognized that such constitutional provisions have the purpose of preventing “covert and incautious legislation.” Application of Vaccaro, 1 N.J.Super. 591, 61 A.2d 905 (1948).

The clause in section 11-46-6 providing that causes of action arising from acts or omissions of the State or political subdivisions shall be governed “by the case law governing sovereign immunity as it existed immediately prior to the decision in the case of Pruett v. City of Rosedale ...” does not adopt a mere statute by reference but revives an entire body of common law on a particular subject by reference. It is readily apparent that the terms here employed are blind, that one must examine a plethora of cases to determine what the law is and that it cannot be said that the average legislator, lawyer and layman alike, had a reasonable chance of understanding all that was enacted.

For example, would an informed legislator vote to adhere to the governmental/proprietary dichotomy applied to municipalities by the case law or eliminate it? How would he or she vote to define those terms? Should that same dichotomy apply to political subdivisions or to the State itself? We decided in Pruett that these and other nuances of sovereign immunity are policy decisions best left to the Legislature. Those policy decisions can not be subjected to fair legislative scrutiny when a body of law is adopted by reference en masse. It is just this evil against which Section 61 of our Constitution guards.

The Legislature, as that branch of our government charged most directly with establishing policy, has every right to prescribe the parameters of the immunity of the sovereign. It must do so, however, in a manner which comports with the Constitution. This it has not done, and we are compelled to so declare.

PART II

It is appropriate that we take cognizance of the fact that the public relies on the law as written until it is declared invalid. Because of this, we must recognize that, in judicially declaring and then abolishing immunities, we legislate. Certainly, we do so well within time-honored common law parameters, but we legislate nevertheless. We have often declared our pronouncements ineffective with regard to certain past and, in some instances, future conduct in order to give the Legislature time to act or otherwise to avoid harsh results. Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982); Frazier v. State, by and through Pittman, 504 So.2d 675 (Miss.1987); Alexander v. State, by and through Allain, 441 So.2d 1329 (Miss. 1983).

The notion that a statute once declared unconstitutional is void ab initio, therefore, has long since been abandoned by this and other courts. See, e.g., Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973); State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107 (Mo.1979), holding limited on other grounds; Perkins v. Eskridge, 278 Md. 619, 366 A.2d 21 (1976), rev’d on other grounds; Shreve v. Western Coach Corporation, 112 Ariz. 215, 540 P.2d 687 (1975); Downs v. Jacobs, 272 A.2d 706 (Del.1970).

For the past eight years, the State and its political subdivisions have relied upon a legislative response to our declaration in Pruett thought sufficient to immunize the public treasury. It is logical to assume that alternative provisions and contingency planning to protect that treasury have been foregone. To hold now that no immunity has existed since 1984 poses fiscally disastrous consequences to our State and its political subdivisions. We had hoped to avoid such consequences by setting a date certain for the cessation of our recognition of judicially created immunity. Pruett, 421 So.2d at 1052.

It is necessary that we do something similar now. This Court creates a “new rule” as today’s ruling suddenly scraps the continuing, temporal extensions of immunity the State of Mississippi and its political subdivisions were granted under Miss.Code Ann. § 11-46-6. See Cain v. McKinnon, 552 So.2d 91, 92 (1989); see also American Trucking Assn. v. Smith, 496 U.S. 167, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990); Chev ron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296, 306 (1971). An essential question before this Court, then, is whether this “new rule” will apply prospectively (stripping immunity from the date of this decision forward), retroactively (stripping immunity for this action as well as for actions caused prior to the date of this decision), or assume a selectively prospective application (stripping immunity from the date of this decision forward and stripping immunity from the Mississippi State Highway Commission in this case). James B. Beam Distilling Co. v. Georgia, 501 U.S. -, -, 111 S.Ct. 2439, 2443-44, 115 L.Ed.2d 481, 488-90 (1991). We conclude that the first option — pure prospective application of the new rule — is the correct course.

Without doubt, the State and its political subdivisions have relied on their immunity under Miss.Code Ann. § 11-46-1 et seq. and conducted non-proprietary activities with knowledge of this immunity. This immunity was granted to the State and its subdivisions by the Legislature in response to Pruett. It therefore seems the only appropriate resolution of this case, in light of a new rule and its effect on old (and unsuspecting) parties, would be to apply this decision prospectively. In Cain, 552 So.2d at 92, we observed that where a new rule of law is created, where the defendant was not aware of the new rule at the time the cause of action arose and where the new rule was not “clearly foreshadowed,” it would be unfair to apply the new rule retroactively. It is true that we observed that where a defendant commits a tort already proscribed by criminal and civil law the tortfeasor deserves no protection by prospective application of the rule. Id. at 92-93.

While the tortious conduct here alleged is clearly proscribed as a matter of civil law, nothing in our previous decisions foreshadows our present view of the propriety of the legislation in question. Indeed, we specifically left the subject matter to the Legislature in Pruett and we have never before intimated that its response failed to pass constitutional muster. See e.g., Webb v. Jackson, 583 So.2d 946 (Miss.1991) (But see McRae, J. dissenting.); Starnes v. City of Vardaman, 580 So.2d 733 (Miss.1991); McKay By and Through McKay v. Boyd Const. Co., Inc. 571 So.2d 916 (Miss.1990); Webb v. County of Lincoln, 536 So.2d 1356 (Miss.1988).

Moreover, we do not here deal with tort-feasors in the ordinary sense. That is, we do not deal with human beings guilty of careless or intentional wrong. There is no immunity accorded the active wrongdoer by the act in question. What we treat here is the question whether the taxpayers stand exposed to liability for such wrongs.

The United States Supreme Court has been faced with the question of retroactivity of a new rule. In Chevron Oil, 404 U.S. at 105-08, 92 S.Ct. at 354-56, 30 L.Ed.2d at 304-07, the United States Supreme Court held a laborer injured on an oil rig may continue to maintain an action against the owner of the rig, even though case law since the initiation of the action would currently prohibit filing the action. A blind, retroactive application of this “new rule” would cause an unjust result as the laborer would be barred from recovery based on intervening precedent that was entirely unforeseeable. Id. at 107, 92 S.Ct. at 356, 30 L.Ed.2d at 306. The Chevron Court developed a three-factor, prospectivity test for determining the rights of a party to remain undamaged by a new rule:

First, the decision to be applied nonretro-actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, see e.g., Hanover Shoe, Inc. v. United Shoe Machinery Corp., supra, 392 U.S. [481] at 496, 88 S.Ct. [2224] at 2233 [20 L.Ed.2d 1231 (1968) ], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see e.g., Allen v. State Board of Elections, supra, 393 U.S. [544] at 572, 89 S.Ct. [817] at 835 [22 L.Ed.2d 1 (1969) ]. Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further retard its operation.’

Linkletter v. Walker, supra, 381 U.S. [618] at 629, 85 S.Ct. [1731] at 1738 [14 L.Ed.2d 601 (1965)]. Finally, we have weighed the inequity imposed by retroactive application, for ‘[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.’ Cipriano v. City of Houma, supra, 395 U.S. [701] at 706, 89 S.Ct. [1897] at 1900 [23 L.Ed.2d 647 (1969)]. Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. at 355, 30 L.Ed.2d at 306.

Taking the Chevron factors one at a time, stripping sovereign immunity establishes a new rule as the State and its subdivisions are no longer immune from actions the moment this mandate issues. In addition, as the State and its subdivisions have been given an annual, legislative reprieve from Pruett for the past eight years, it stands to reason that our decision today has not been “clearly foreshadowed.” Regarding the second factor of Chevron Oil, it would be hard to imagine a situation where a holding from this Court would disserve the purpose of the “old rule” more than the floodgates of liability and litigation costs this “new rule” would open, if applied retroactively.

Precisely because of this, the third factor is also satisfied: the inequity of sanction- • ing actions against a reasonably unsuspecting State and its subdivisions through anything but a prospective application of our decision today is as obvious today as when we made the Pruett rule prospective eight years ago.

To be clear, the rulings of the United States Supreme Court are not binding on us in this regard. Reference is made to the Chevron test as an orderly way to consider the issue. We did much the same, without so detailed an analysis in Pruett and Meeks v. Tallahatchie County Election Commission, 513 So.2d 563 (Miss.1987), to name but two instances.

Assuming that the proper application of today’s ruling is prospective, the question arises whether it should be “selectively prospective” that is, applying to the parties now before the court only, or purely prospective, applying only to claims arising after the mandate issues. The doctrine of selective prospectivity in a civil matter has never been explicitly adopted by this Court, even though there are instances in which we have done so in fact. See e.g. Pruett; Meeks v. Tallahatchie County Election Commission, 513 So.2d 563 (Miss.1987). The United States Supreme Court has recognized the basic fault with selective pros-pectivity, as follows:

But selective prospectivity also breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally See R. Wasserstrom, The Judicial Decision 69-72 (1961). “We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a ‘new’ rule of constitutional law.” Desist v. United States, [394] U.S. 244, 258-259, 22 L.Ed.2d 248, 89 S.Ct. 1030 [1039] (1969) (Harlan, J., dissenting); see also, Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv.L.Rev. 409, 425 (1924). For this reason, we abandoned the possibility of selective prospectivity in the criminal context in Griffith v. Kentucky, 479 U.S. 314, 328, 93 L.Ed.2d 649, 107 S.Ct. 708 [716] (1987), even where the new rule constituted a “clear break” with previous law, in favor of completely retroactive application of all decisions to cases pending on direct review. Though Griffith was held not to dispose of the matter of civil retroactivity, see id., at 322, n. 8, 93 L.Ed.2d 649, 107 S.Ct. 708 [at 712, n. 8], selective prospectivity appears never to have been endorsed in the civil context. [American Trucking Associations, Inc. v.] Smith, 496 U.S. [167], at 197, 110 L.Ed.2d 148, 110 S.Ct. 2323 [, at 2341] (plurality opinion).

Beam, 501 U.S. at-, 111 S.Ct. at 2444-45, 115 L.Ed.2d at 489-490.

There is no valid reason for applying the new rule to the parties before the Court and the old rule to others similarly situated. There are other challenges to sovereign immunity pending in this Court and many others yet pending in our trial courts or to be filed. We find no justification for allowing the parties here to escape the immunity bar and not the others. Compare, Meeks, 513 So.2d at 568. Additionally, application of selective prospectivity in this case would place the Mississippi State Highway Commission in the exact same predicament pure prospectivity eliminates — a defendant falling victim to a new rule after justifiably relying on an old rule. See Desist v. United States, 394 U.S. 244, 258-59, 89 S.Ct. 1030, 1039, 22 L.Ed.2d 248, 261 (1969) (Harlan, J., dissenting); Mosser v. Darrow, 341 U.S. 267, 276, 71 S.Ct. 680, 684, 95 L.Ed. 927, 934 (1951) (Black, J., dissenting). We should not have applied the Pruett rule to Pruett. We decline to apply the rule we announce today to the Presleys.

To the extent that Miss.Code Ann. § 11-46-6 purports to freeze the doctrine of sovereign immunity to the state of development of the common law prior to Pruett, it is void. We deem it only a sufficient pronouncement of the public policy of this State to immunize the State from claims arising thereafter to the extent that this Court would do so applying the evolving standards of common law, including any extensions or contractions of the doctrine deemed appropriate, on a case by case basis and to the extent that those benefitting by the immunity did not prepare themselves by acquiring insurance policies covering the liability in question in the event that immunity did not obtain. See, McCall by Andrews v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985). So that all will be aware, we absolutely decline to further extend the doctrine, other than in the areas preserved in Pruett, beyond the date of this case.

This matter is therefore reversed and remanded to the circuit court for further proceedings.

Reversed and remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

AS TO PART I A-B: HAWKINS and DAN M. LEE, P.JJ., and ROBERTSON, SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.

AS TO PART I C: HAWKINS, P.J., and SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.

AS TO PART I D: HAWKINS and DAN M. LEE, P.JJ., and BANKS, ROBERTSON, SULLIVAN and PITTMAN, JJ., concur.

AS TO PART II: DAN M. LEE, P.J., and ROBERTSON, BANKS and PITTMAN, JJ., concur.

McRAE, J., concurs in part and dissents in part with separate written opinion joined by HAWKINS, P.J., and SULLIVAN, J.

ROY NOBLE LEE, C.J., dissents with separate written opinion, joined by PRATHER, J.

McRAE, J., dissents as to parts I-D and II, with separate written opinion.

. Miss.Code Ann. § 37-5-41 and 37-7-39 (Supp. 1982); Miss.Code Ann. § 19-7-8 (Supp.1982); Miss.Code Ann. § 21-27-17 (Supp.1982); Miss. Code Ann. § 41-13-101 (Supp.1982); Miss.Code Ann. § 43-33-11 (1972); Miss.Code Ann. § 49-1-60 (1982) Miss.Code Ann. § 65-l-8(p) (1982); Miss.Code Ann. § 41-29-108 (1982); Miss.Code Ann. § 63 — 15—3(j) (Supp.1982); Miss.Code Ann. § 19-7-8 (1982); Miss.Code Ann. § 41-29-108 (1982); Miss.Code Ann. § 63-15-3(j) (Supp. 1982).

. The following cases are some of the instances in which the proprietary governmental functions of city government were noted: Ditta v. City of Clinton, 391 So.2d 627 (Miss.1980). Nathaniel v. City of Moss Point, 385 So.2d 599 (Miss.1980); Tucker v. City of Okolona, 227 So.2d 475 (Miss.1969); City of West Point v. Meadows, 236 Miss. 394, 110 So.2d 372 (1959); Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221 (1955), aff'd 223 Miss. 703, 79 So.2d 815 (1955); Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811 (1928); City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846 (1918); Yazoo City v. Birchett, 89 Miss. 700, 42 So. 569 (1906). See also, Comment, A Case for the Abrogation of Municipal Tort Immunity in Mississippi, 41 Miss. L.J. 289 (1970).

. See cases cited in Appendix A of Pruett, 421 So.2d at 1052, and expressly overruled; see also, Mayhew, The Abrogation of Sovereign Immunity in Mississippi: The Legislative Problem, 3 Miss.College Law Review 209, fn. 11 (1983).

. See, Mayhew, The Abrogation of Sovereign Immunity in Mississippi, 3 Miss.College Law Review 202 at 212 (1983).

.Mayhew, The Abrogation of Sovereign Immunity in Mississippi: The Legislative Problem, 3 Miss.College Law Review 209 at 209 (1983).

. Although we are only concerned in this case with the 1987 Act, it is significant to note that each session following 1987, the Legislature has repeatedly re-enacted and postponed the application of this sovereign immunity Act; Ch. 442 (House Bill No. 937), Laws 1988; Ch. 537 (House Bill No. 339), Laws 1989; Ch. 518 (House Bill No. 945), Laws 1990; and Ch. 618 (Senate Bill No. 3242), Laws 1991. As noted in Starnes v. City of Vardaman, 580 So.2d 733, 735, the statute "has been and remains in futuro law that has never acquired a present force.” After eight annual sessions of the Legislature, the courts remain in a state of suspended animation.

. We say in Meeks that “application of the law declared to the case at bar is ordinarily thought essential to the process of adjudication. Cf. Pruett v. City of Rosedale, 421 So.2d 1046, 1052 (Miss.1982).” 513 So.2d at 568. There is no discussion of this issue in Pruett, however, and, as can be seen from the authorities cited in this opinion, application to the parties before the court is not universally thought essential to the adjudicatory process. In Meeks we found that application to him was not unfair because he was prevented from acting in reliance on the old rule. Id.