a city can be sued at all has never seemed to me compatible with the holding that agencies of state government, such as the Arkansas Highway Department, cannot be sued. Cities do exercise some of the sovereignty of the state. If they do not, how can some of their powers, such as prosecutions for violations of ordinances, be constitutionally justified?
If the problem is approached from the point of view that our cities have become business institutions in many respects, a workable solution could be found in the liability of cities when acting in a proprietary, rather than a governmental, capacity without opening the door to a floodgate of unanswered questions for these agencies of state government which have become so important in our scheme of things that in recent years an executive department of our federal government has been created to deal with their problems at that level.
We should not assume that the General Assembly has been unaware of our decisions or the expressions in our opinions that this court thought some legislative action was appropriate. That branch of our government is usually alert in giving attention to matters when changes in our basic law is needed. No better examples can be found than in the actions eliminating tort immunity of electric cooperatives, authorizing the purchase of liability insurance by agencies to which tort immunity has been extended, and creating the State Claims Commission.
Had a study in depth of this problem by the legislative branch been felt appropriate by the General Assembly, there can be no doubt that it would have been undertaken either through the Legislative Council or by other means. The creation of the Arkansas Constitutional Revision Study Commission, the Arkansas Economic Expansion Study Commission, and the Arkansas Judiciary Commission are evidences of their alertness.
