(dissent). We find the majority’s judicial net of constitutional review to be constructed of too small a mesh.
We are confronted with a challenge to the constitutionality of the guest passenger act. The writers on both sides of this specific equal protection question are blessed with decisions of sister states and discussions by commentators and academia in support of either conclusion.
Candor leads us to admit no personal compulsion to keep alive the guest passenger act. However, there is a soaring issue which transcends the fate of this act.
We speak of that balance wheel built into our United States Constitution at its 1789 beginning and since preserved and known generally as the *682Separation of Powers doctrine. It has been a specific provision of all of Michigan’s Constitutions commencing in 1835. In today’s flood tide of challenges to legislation on the basis of denial of equal protection, we are compelled to look past the immediate case to its impact on future constitutional tests of legislation (such as statutes of limitation, notice provisions, a multitude of school, business and labor provisions, etc.).
We see the plurality opinion as placing too much power in the judiciary.
Therefore, we would adopt a more modest stance and join the majority of the relatively few states which have reviewed the question. The abrogation of this statute should be one for legislative determination.
We would affirm the circuit court because plaintiff has failed to demonstrate that the Legislature acted arbitrarily or that the guest passenger act bears no rational relationship to permissible statutory objectives. Neither does the act come within the purview of the "strict scrutiny” requirements. In other words, plaintiff fails to show that the Legislature has not met the tests developed over the years of precedent in Michigan or the United States Supreme Court.
Plaintiff is the administrator of the estate of Mardelle Williams, who died in an accident while a guest passenger in an automobile owned by defendant Pamame and driven by defendant McGowan. Prior to trial, plaintiff challenged the constitutionality of MCLA 257.401; MSA 9.2101 insofar as it requires a guest passenger to demonstrate that any injury, death or loss was "caused by the gross negligence or wilful and wanton misconduct of the owner or operator” of the involved motor vehicle. It was argued that this statute violates the *683provision for equal protection of the laws as guaranteed by Const 1963, art 1, § 2 and the US Const, Am XIV.
The trial court rejected the constitutional challenge and a verdict of no cause of action was returned against plaintiff. Leave to appeal prior to decision of the Court of Appeals was granted.
I. Statute
1929 PA 19 added the following provision to that section of the Motor Vehicle Code found,at MCLA 257.401; MSA 9.2101. It is this language which plaintiff challenges:
"Provided, however, That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.”
II. Constitution
Because our colleagues do not explain how the act might violate the due process clause,1 we will *684confine this analysis to the equal protection clauses of state and Federal Constitutions:
Amendments to US Const, art XIV, § 1:
" * * * nor shall any State * * * deny to any person within its jurisdiction the equal protection of the laws.”
Const 1963, art 1, § 2:
"No person shall be denied the equal protection of the laws.”
III. Common Law
Because the Legislature does not usually proffer reasons for its enactments other than in general terms,2 the Court frequently is obliged to imagine what the purposes of a statute might be.3 The Court is forced to suppose and surmise. As a discipline emphasizing logic and rationality, the law does not comfortably perform these tasks.
Therefore, we long have held that a statute comes "clothed in a presumption of constitutionality”.4 We commence here, as always, with the belief that the Legislature did not intentionally pass an unconstitutional act — that it had its reasons.
Although there could be many reasons for the guest passenger act, both parties and the plurality *685speak largely to the possible reasons (among others) specifically noted in Naudzius v Lahr, 253 Mich 216; 234 NW2d 581; 74 ALR 1189 (1931).
There, the Court was asked to decide whether the classification in the guest passenger act was unreasonable, arbitrary or unlawful so as to render the statute a violation of the equal protection provisions.
That Court held that the standards to be applied were listed in Lindsley v Natural Carbonic Gas Co, 220 US 61; 31 S Ct 337; 55 L Ed 369 (1911):
"1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classiñcation having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.” (Emphasis added.)5
The Naudzius Court set forth and discussed a number of reasons which (among others) it found adequate to support the classification. The Court said:
"It would be threshing old straw to discuss the accepted *686fact that the motor car has presented social, financial, and governmental problems which justify the legislature in reasonably classifying it apart from other vehicles in the enactment of laws.”
After a careful analysis the Court found:
"As evil may be conceived which the act tends to remedy, the classification cannot be said to be arbitrary but must be held to have a basis for legislative action.”
This Court has consistently espoused similar reasoning. As recently as in Alexander v Detroit, 392 Mich 30; 219 NW2d 41 (1974), we examined the record and found a classification to be purely arbitrary.
Although our colleagues cite Alexander6 as supporting the standard espoused as the "means scrutiny” (emphasis added), we believe the connective thread too gossamer to have substance.7
Regardless, we agree that the words employed are not in themselves hallowed. The acts and decisions which flow from the words give them life and meaning.
Towards this end, additional judicial precedent must be examined.
Two recent United States Supreme Court cases parallel the language of Lindsley in decisions which maintain respect for legislative action.
In San Antonio School Independent Dist v Rodriguez, 411 US 1; 93 S Ct 1278; 36 L Ed 2d 16 (1973), *687the Court said that, if a suspect classification or fundamental right were not involved,8 the classification "must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute invidious discrimination”. In declining to find an equal protection violation, the Court noted the following:
"In sum, to the extent that the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. * * * It certainly is not the product of purposeful discrimination against any group or class. On the contrary, it is rooted in decades of experience in Texas and elsewhere, and in major part is the product of responsible studies by qualified people. In giving substance to the presumption of validity to which the Texas system is entitled, Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911), it is important to remember that at every stage of its development it has constituted a 'rough accommodation’ of interests in an effort to arrive at practical and workable solutions. Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 [33 S Ct 441; 57 L Ed 30] (1913). One also must remember that the system here challenged is not peculiar to Texas or to any other State. * * * The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. McGinnis v. Royster, 410 U.S. 263, 270 [93 S Ct 1055; 35 L Ed 2d 282] (1973). We hold that the Texas plan abundantly satisfies this standard.” (Emphasis added.)
*688The Court also said:
"We need not rest our decision, however, solely on the inappropriateness of the strict-scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State’s system be shown to bear some rational relationship to legitimate state purposes.” (Emphasis added,)
More recently this deferential posture was also evident in Village of Belle Terre v Boraas, 416 US 1; 94 S Ct 1536; 39 L Ed 2d 797 (1974).9 In rebuffing an equal protection challenge to a zoning ordinance, the Court noted a fundamental right. The Court said of the legislation:
"It involves no procedural disparity inflicted on some but not on others such as was presented by Griffin v. Illinois, 351 U.S. 12; 76 S. Ct. 585; 100 L. Ed. 891 (1956). It involves no 'fundamental’ right guaranteed by the Constitution, such as voting, Harper v. Virginia Board, 383 U.S. 663; 86 S. Ct. 1079; 16 L. Ed. 2d. 169 (1966); the right of association, NAACP v. Alabama 357 U.S. 449; 78 S.Ct. 1163; 2 L.Ed. 2d 1488 (1958); the right of access to the courts, NAACP v. Button, 371 U.S. 415; 83 S.Ct. 328; 9 L.Ed.2d 405 (1963); or any rights of privacy, cf. Griswold v. Connecticut, 381 U.S. 479; 85 S.Ct. 1678; 14 L.Ed. 2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 453-454; 92 S.Ct. 1029; 31 L.Ed.2d 349 (1972). We deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be ’ ’’reasonable, not arbitrary” ’ (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415; 40 S.Ct. 560; 64 L.Ed. 989 [1920]) and bears ’a rational *689relationship to a [permissible] state objective. ’ Reed v. Reed, 404 U.S. 71, 76; 92 S.Ct. 251; 30 L.Ed.2d 225 (1971).” (Emphasis added.)
In both decisions, the Court was loath to invalidate a legislative judgment. In Rodriguez, the state permitted each locality to finance schools as it saw fit. In Boraas, the state permitted each locality to zone its land as it saw fit and the Court declined to intercede in the legislative or local decisions.
The plaintiff in Kahn v Shevin, 416 US 351; 94 S Ct 1734; 40 L Ed 2d 189 (1974), challenged a Florida statute granting widows (but not widowers) an annual $500 property tax exemption. The Court applied this standard:
"We have long held that '[w]here taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.’ Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359 [93 S Ct 1001; 35 L Ed 2d 351 (1973)]. A state tax law is not arbitrary although it 'discriminate[s] in favor of a certain class * * * if the discrimination is founded upon a reasonable distinction, or difference in state policy,’ not in conflict with the Federal Constitution. Allied Stores v. Bowers, 358 U.S. 522, 528 [79 S Ct 437; 3 L Ed 2d 480 (1959)].”
In Fuller v Oregon, 417 US 40; 94 S Ct 2116; 40 L Ed 2d 642 (1974), a statute was challenged which required indigent criminal defendants to repay the costs of their defense if they later acquired adequate funds. One claim was that the statute discriminated between those convicted and those acquitted or subsequently victorious on appeal. In responding, the Court said:
*690"As the Court stated in James v. Strange: [407 US 128; 92 S Ct 2027; 32 L Ed 2d 600 (1972)] 'We do not inquire whether this statute is wise or desirable. * * * Misguided laws may nonetheless be constitutional.’ 407 U.S.,. at 133. Our task is merely to determine whether there is !some rationality in the nature of the class singled out. ’ Rinaldi v. Yeager, 384 U.S. 305, 308-309 [86 S Ct 1497; 16 L Ed 2d 577 (1966)]. See also McGinnis v. Royster, 410 U.S. 263 [93 S Ct 1055; 35 L Ed 2d 282 (1973)]; McGowan v. Maryland, 366 U.S. 420 [81 S Ct 1101; 6 L Ed 2d 393 (1961)].” (Emphasis added.)
Also see Geduldig v Aiello, 417 US 484; 94 S Ct 2485; 41 L Ed 2d 256 (1974): "Particularly with respect to social welfare programs, so long as the line drawn by the State is rationally supportable, the courts will not interpose their judgment as to the appropriate stopping point”.
The cases cited above establish the generally accepted standard of review in the analysis of legislative classifications not involving fundamental interests or suspect criteria. Although not every legislative enactment is immune from judicial abrogation, the Court should proceed with restraint and deference when asked to nullify statutes. This is not the forum for debate concerning the desirability of legislation.
The leading and unanimous case in the field of guest passenger acts is Silver v Silver, 280 US 117; 50 S Ct 57; 74 L Ed 221; 65 ALR 939 (1929), in which the United States Supreme Court stated that it would "not assume that there are no evils to be corrected or permissible social objects to be gained by the present statute”.
Texas, in upholding an act similar to ours in Tisko v Harrison, 500 SW2d 565 (Tex Civ App, 1973), spoke of Silver:
*691"Silver is in harmony with other decisions holding that the equal protection clause does not require perfection in classifying the subjects - of legislation. The classic statement of this concept was made by Mr. Justice Holmes * * * 'Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. ’ ”
The Court went on to say:
"More recent decisions agree that an under-inclusive classification is not necessarily a fatal defect unless the legislation involves a !suspect classiñcation’, such as race or poverty10 or a fundamental interest’, such as voting rights or freedom of speech. Only in these limited areas is a legislative classification subject to 'strict scrutiny’ ”.
A discussion followed of Brown v Merlo, 106 Cal Rptr 388; 506 P 2d 212; 8 Cal 3d 855 (1973).
Because California had previously abandoned the traditional tort doctrine that the status of a party determined the duty owed him, and because the statute is substantially different11, it "lacks *692persuasive force against the backdrop”12 of Michigan law.
However, it was the Brown case, however inapposite, which commenced or further encouraged some members of the judiciary to abrogate the state statutes and it is discussed pro and con in subsequent judicial reviews.
Tisko has this to say:
"The California court characterizes the distinction between gratuitous guests and paying passengers as irrational in the light of its earlier decision in Rowland v Christian, 69 Cal 2d 108; 70 Cal Rptr 97; 433 P 2d 561 (1968), which abolished the long-standing common-law distinctions between the duties owed to business invitees, licensees and social guests * * * .”
The court noted that Texas (as Michigan) has maintained the distinction between duties owed in those classifications.
Rationale
On its face, MCLA 257.401 requires all guests to show gross negligence or wilful and wanton misconduct before they may recover from their host for injuries received. Any motor vehicle passenger who does not pay for the transportation and who is carried as the guest of the owner or operator falls within the statute.
Any problem of unequal treatment arises from inconsistent interpretations which courts have *693placed upon the words of the statute.13 Although distinctions without substance may have been drawn in some states and individuals included whose guest status was suspect, the fault lies not with the statute. On this basis the remedy is not avoiding the statute but overruling unwise decisions.
We cannot say that this classification is irrational on its face. If the Legislature had said that all Democrats or all those injured on Thursdays had to prove the existence of gross negligence or wilful and wanton misconduct, such classification would be irrational on its face. The singling out of guest passengers does not have a similar import.
However, the classification warrants further appraisal. The most obvious reasons for a guest passenger act and those most frequently recognized in judicial opinions are (1) to minimize collusion and fraud and (2) to promote "hospitality” (including group transportation and assistance to strangers on the highway) by insulating the generous host from possible large (and discouraging) personal damages in addition to insured damages.
Out of these purposes could emerge a cause to contain insurance premiums within reasonable limits and preclude another "medical malpractice” type of fiasco which lately has invited legislative attention.
Most of those who would abrogate the legislation employ the expedient of knocking down its more apparent reasons (and in some states stated reasons) by simply saying that the reasons do not exist, or that they have no proof that they would be of great magnitude and even that they do not like the reasons.
*694It is easy to say that the flurry of large and suspected collusive claims which may have triggered the act would no longer occur. The truth is that we do not know. The act has been in existence for 45 years. Neither do we know how "no fault” insurance requirements will affect the class (if the insurance act itself survives the test of constitutionality). In any event, collusion is difficult to detect and establish before the court, as any judge of criminal cases can attest.
Because no method is available to identify collusive guest passenger suits and because we have no factual data to support either side of this contention, we can only guess. Because the Court has no viable means of balancing the advantages and disadvantages of the act, we can only guess and philosophize.
For this very reason, we conclude that the alleged evil is one for legislative fact-finding and policy consideration.
The same rationale is applicable to the hospitable driver. It is easy to say that the host would or would not welcome just as many car pool members, hitchhikers and others regardless of the number of suits and size of awards, whether within or in excess of insured liability. We could say that the numbers of suits — vexatious, fraudulent or otherwise — would soar. But the truth is that we do not know. We can only guess.
We are told that money is no object in such deliberations as this. The fact that the Legislature may have considered the impact upon the "average citizen” payer of insurance premiums is not considered a valid state interest. However, we direct attention to the medical malpractice insurance problem which is at this very moment a matter of legislative concern.
The thrust of these inquiries is that we do not know the answers — and neither do our colleagues. *695Because we say that something is a fact, it is not necessarily so. The Legislature, however, has the means for gathering the data and background material upon which to base public policy and subsequent modification, repeal or ratification of the act. We would defer to that branch of government.
Conclusion
Our colleagues concede that the Legislature may have had reasons for the statute at the time of its passage and we concede that a broad view of statutory constitutionality is appropriate in the "experimental stage”.
Where we part, however, is in the contention that the life of a legislative enactment (even in such a litigious field!) somehow makes it suspect and that it therefore is incumbent upon the judiciary to impose its own stamp of approval or, as here, disapproval.
We are offered no standards excepting our own value judgments, our own data guessing games and the application of our own seven personal convictions or philosophies.
The constitutional validity or invalidity of this particular act is of great concern to us because it sets the pattern for future scrutiny of legislative enactments. With no substitution of standards for those abolished, it will be too easy to override the Legislature.
We find the prevailing opinion to do violence to the Separation of Powers doctrine and to place too much power in the judiciary.
J. W. Fitzgerald, J., concurred with M. S. Coleman, J. Swainson and Lindemer, JJ., took no part in the decision of this case.It has been noted that plaintiff argues violation of the due process and equal protection clauses and footnote 2 refers to both.
(Amendments to US Const, art XIV, § 1: " * * * nor shall any state deprive any person of life, liberty, or property, without due process of law * * * .”
Const 1963, art 1, § 17: "No person shall * * * be deprived of life, liberty or property, without due process of law.”)
Title to Michigan Vehicle Code: (MCLA 257.1 et seq.; MSA 9.1801 et seq.)
"AN ACT * * * to provide for civil liability of owners and operators of vehicles * * *
Also, see Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 NW2d 469 (1973), and W A Foote Memorial Hospital, Inc v City of Jackson Hospital Authority, 390 Mich 193; 211 NW2d 649 (1973).
For a recent discussion, see People v Bricker, 389 Mich 524; 208 NW2d 172 (1973).
The majority concedes agreement that
"[t]he Legislature must be free to experiment without being required to attain mathematical nicety in its formulation of remedies to social and economic problems.”
When this writer concurred in the result of Alexander, employing the words "rational relationship” instead of "reasonable relationship”, she was chided by her colleagues as being too technical, there being no difference of substance. (If the classification was unreasonable, it had no rational basis and so was arbitrary.)
The same argument applies to the two other Michigan cases cited, Fox v Employment Security Commission, 379 Mich 579; 153 NW2d 644 (1967) (“a relation”); Reich v State Highway Department, 386 Mich 617; 194 NW2d 700 (1972) ("a reasonable relationship”).
The Court has adopted alternative standards for certain areas of analysis. When classifications concern a fundamental interest or are based on certain criteria (e.g., race), the Court will strictly scrutinize legislation. For an example, see Memorial Hospital v Maricopa County, 415 US 250; 94 S Ct 1076; 39 L Ed 2d 306 (1974). The parties do not claim that the classification established by the guest passenger proviso necessitates a "strict scrutiny”.
See Note: Boraas v Village of Belle Terre: The New, New Equal Protection, 72 Mich L Rev 508 (1974). Compare Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv L Rev 1 (1972).
To this, we could add women and illegitimates.
Cal Vehicle Code § 17158 provided:
"No person riding in or occupying a vehicle owned by him and driven by another person with his permission and no person whó as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the owner or guest during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or willful misconduct of the driver.”
See Primes v Tyler, 43 Ohio St 2d 195; 331 NE2d 723 (1975). This new decision takes foothold in Jimenez v Weinberger, 417 US 628; 94 S Ct 2496; 41 L Ed 2d 363 (1974), having to do with the suspect sub-classification of illegitimates and leaps to the conclusion of an "irrebuttable presumption” of fraud or collusion.
See generally Comment: Judicial Nulliñcation of Guest Statutes, 41 S Cal L Rev 884 (1968).