concurring:
I agree with Justices Batjer and Gunderson that the questioned statute is unconstitutional. I add, however, my additional thoughts for I believe that we can consider this case and reach the same result for the further reasons stated. For the purpose of these stated reasons I respectfully recite the facts in my own manner in order to provide the posture which will be explained.
A complaint was filed December 21, 1967 against the Clark County Commissioners, Southern Nevada Memorial Hospital, Jack Staggs, Administrator thereof, and Dr. H. Q. Adams, for the wrongful death of one Barbara Adams, mother of the real minor plaintiffs by their legal guardian.
Barbara Adams was admitted to the hospital on October 1, 1966 with chronic kidney infection and hypertensive cardiovascular disease; she was discharged on October 14, 1966. A second time she was admitted; she was discharged November 14, 1966 in an improved condition with the understanding that she would be transferred to Los Angeles for further treatment. Three days later she became ill and died while being transported by ambulance to the hospital. The postmortem examination by Dr. Clarke attributed the immediate cause of death to be pulmonary edema and congestion due to probable acute renal insufficiency with uremia and electrolyte imbalance. Barbara was pronounced dead on arrival at the hospital on November 17, 1966.
A claim was filed on behalf of the minor children of Barbara with the appropriate county board on November 2, 1967. After rejection, a civil action against the respondents and others was commenced on December 21, 1967.
The claim against the county commissioners in their individual capacity was dismissed by summary judgment dated January 13, 1970 and the action against Clark County was *237dismissed on motion for summary judgment on August 6, 1971 for failure to present a timely claim pursuant to NRS 244.245 and NRS 244.250.1 On August 25, 1971, a dismissal pursuant to NRCP 41 (b) was entered as to Jack Staggs. A trial was had as to the alleged malpractice of Dr. H. Q. Adams wherein the jury returned a defense verdict.
Three main issues were raised for my consideration.2
1. Did the court err in granting summary judgment as to Clark County and its hospital?
2. Did the court err in dismissing the claim against Jack Staggs as Administrator of Nevada Southern Memorial Hospital?
3. Did the court err in giving certain instructions to the jury?
We have no transcript presented to us, thus I cannot consider Issues 2 and 3. The central issue now is directed to the first point.
1. I glean from this record that the deceased was black, sick and impoverished when she died leaving three children in their early minority. The claim against the county and the hospital was not filed for 13 months after her death. NRS 244.250 requires that a claim against a county must be filed within 6 *238months and under Barney v. County of Clark, 80 Nev. 104, 389 P.2d 392 (1964), a claim must be filed as a condition precedent to the commencement of an action against the county. That case was founded upon Artakovich v. Astendorf, 131 P.2d 831 (Cal. 1942), which marked by a spirited division of the California Supreme Court (4 — 3) affirmed the established weight of authority that an action against a public entity cannot be filed even by a minor unless the claim statute, if there be one, is first observed.
This case, however, poses a different problem. A claim .was filed but not within the statutory 6 months. No reason is given for the failure to file within the statutory period. It is, however, contended that the statutory 6-month period was tolled during the children’s minority by reason of NRS 11.250 which provides that if a person is entitled to bring an action other than for the recovery of real property, the time within which the cause of action must be commenced is tolled if that person is within the age of 21 years. This court has adopted the rule expressed in Artakovich v. Astendorf, supra, and I therefore feel compelled to maintain the continuity established by the respected Supreme Court of California. That court later established, in Williams v. Los Angeles Metropolitan Transit Auth., 440 P.2d 497 (Cal. 1968), that where the filing of a claim in advance of suit is required, that requirement is suspended during the period of minority if the action is “mentioned” in the limitation statute as one the person could bring. It is so mentioned in Nevada’s statutes, NRS 41.036(3)3 and NRS 11.190(5) (b).4
In Williams v. Los Angeles Metropolitan Transit Auth., *239supra, the plaintiff filed the required claim within the prescribed time but failed to file his action against the public entity within the 6 months required after rejection of the claim. I accept, by analogy, the holding in Williams v. Los Angeles Metropolitan Transit Auth., supra, since California’s tolling statute during minority is the same as ours.
2. I am not disturbed by the language of Barney v. County of Clark, supra, which emphasizes timely filing since the question of timeliness was not an issue in that case any more than in Kelleher v. Ephrata School District, 355 P.2d 989 (Wash. 1960), cited therein. The point involved in both cases was whether a claim must be filed at all. Timeliness was not the question.
3. Nor am I concerned with the fine-line distinction of whether the claim statute is a statute of limitation or a procedural roadblock as a condition precedent to suit. That question was considered in Myers v. Stevenson, 270 P.2d 885, 889 (Cal.App. 1954), and discarded as not being controlling as to the merits of the case. The trend is to construe statutes in such manner as to effectuate the long-recognized principle that children are to be protected during their minority from the destruction of their rights by the running of the statutes of limitation. Williams v. Los Angeles Metropolitan Transit Auth., supra; Los Angeles City School District v. Superior Court, 88 Cal.Rptr. 286 (Cal.App. 1970). The majority will argue that the Williams case, supra, does not apply, that there is a difference between a statute of limitation and a condition precedent to suit. The minors here are entitled to the benefits of the tolling statute. Whether the claim statute be called a statute of limitations or a condition precedent is of no moment. A review of other authorities reflects the foretold positive trend against the rigidity of the claim statutes, particularly as they affect the rights of minors.
Thompson, C. J., with whom Mowbray, L, agrees, dissenting in part:I would affirm the summary judgment for Clark County and, therefore, dissent from that aspect of the Court’s opinion.
1. The timely filing of claims with the Board of County Commissioners is a precondition to the existence of a cause of action against the County. Barney v. County of Clark, 80 Nev. 104, 389 P.2d 392 (1964). The minority of the children of the decedent does not excuse noncompliance nor extend the time for compliance, since proper claims could have been timely filed by their legal representative. Although it is true that the *240period of disability of a minor shall not be part of the time limited for the commencement of an action, NRS 11.250; Parker v. Chrysler Motors Corp., 88 Nev. 560, 502 P.2d 111 (1972), that provision applies only when considering the affirmative defense of the statute of limitations, and does not bear upon the duty of minor claimants through their legal representative, to timely file their claims as a condition precedent to the existence of a cause of action. As noted in Barney v. County of Clark, supra, “[w]e are not concerned therefore with a statute in the nature of a statute of limitations; rather we are concerned with the performance of a necessary condition precedent to suit.” Id. at 106.
2. The majority opinion voids all statutes precluding suit against a governmental entity for any tort demand unless a claim is first presented. This sweeping declaration nullified NRS 41.036, NRS 244.245 to 244.255, NRS 268.020 and, perhaps, others. Barney v. County of Clark, supra, and Hart v. City of Las Vegas, 73 Nev. 29, 307 P.2d 617 (1957), are silently overruled. Moreover, it renders meaningless, so far as a claim statute is concerned, a substantial body of case law dealing with timeliness and substantial compliance with the intendment of the statute. Derouen v. City of Reno, 87 Nev. 606, 491 P.2d 989 (1971); Kaminski v. Woodbury, 85 Nev. 667, 462 P.2d 45 (1969); City of Boulder City v. Miles, 85 Nev. 46, 449 P.2d 1003 (1969); Rogers v. State, 85 Nev. 361, 455 P.2d 172 (1969); Rice v. Clark County, 79 Nev. 253, 382 P.2d 605 (1963); City of Reno v. Fields, 69 Nev. 300, 250 P.2d 140 (1952), and Las Vegas v. Schultz, 59 Nev. 1, 83 P.2d 1040 (1938). These cases preserved the integrity of the legislative scheme and at the same time honored the rights of claimants who had met the underlying purposes of the statute. Their rights were not denied for technical or insubstantial reasons. Whenever a sensible explanation was offered for failing to comply with a claim statute requirement, that explanation was accepted.
It is not per se bad for a court to set aside statutes and ignore case precedent. It is, however, conduct calling for extreme caution. Solid reasons must exist. I perceive no such reasons in the matter at hand. The majority of this Court find that claim statutes violate the command of the Equal Protection Clause of the Federal Constitution. With due deference, I suggest that the Equal Protection Clause does not bear upon the matter.
The legislature has a wide discretion to enact laws which *241affect some groups of citizens differently than others. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 U.S. 420 (1961). The purpose of a claim statute is to enable the governmental agency to make an early investigation of the claim, of the claimant, and to marshal evidence promptly at a time when it is possible to do so. City of Reno v. Fields, 69 Nev. 300, 250 P.2d 140 (1952); Brown v. Board of Trustees, Etc., 104 N.E.2d 866 (N.Y. 1952). This purpose surely is reasonable and not an arbitrary exercise of legislative power. I cannot find it to be irrational nonsense.
All persons injured through the negligence of the state or its political subdivisions have been granted the right to bring suit (except where immunity is retained) and this right is granted equally and without discrimination on any basis whatsoever. NRS 41.031; State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970). This is equality under the same conditions and among persons similarly situated. Boyne v. State ex rel. Dickerson, 80 Nev. 160, 390 P.2d 225 (1964). And, contrary to the view of the majority, the Equal Protection Clause does not require equal treatment of private persons and the State. Tustin Heights Ass’n. v. Board of Supervisors, 339 P.2d 914 (Cal. App. 1959). This is the thrust of Derouen v. City of Reno, 87 Nev. 606, 491 P.2d 989 (1971), where we upheld a city claim statute against the contention that a city should not be treated differently than a private corporation. It also is the teaching of State v. Silva, supra, where we held that the State could limit recovery to $25,000 for each claimant without violating the concept of equal protection. Are these recent decisions no longer viable? Have they also been cast aside sub silentio? If it is constitutionally permissible for the State to limit recovery (State v. Silva, supra) how can it be constitutionally impermissible for the State to require that a claim be filed?
As I read the majority opinion it voids the claim statutes insofar as they apply to governmental torts. Are these statutes still operative otherwise? This wholesale slaughter of a complete statutory scheme and of case precedent, both old and recent, is conduct unsuited to the function of this Court. Respectfully, I dissent.
244.245 Condition precedent to suit against county for claim.
1. No person shall sue a county in any case for any demand, unless he shall first present his claim or demand to the board of county commissioners and the county auditor for allowance and approval, and if they fail or refuse to allow the same, or some part thereof, the person feeling aggrieved may sue the county.
2. If the party suing recover in the action more than the board allowed, or offered to allow, the board and the county, auditor shall allow the amount of the judgment and costs as a just claim against the county. If the party suing shall not recover more than the board and the county auditor shall have offered to allow him, then costs shall be recovered against him by the county, and may be deducted from the demand.
244.250 Unaudited claims to be presented within 6 months.
1. All unaudited claims or accounts against any county shall be presented to the board of county commissioners within 6 months from the time such claims or accounts become due or payable.
2. No claim or account against any county shall be audited, allowed or paid by the board of county commissioners, or any other officer of the county, unless the provisions of subsection 1 are strictly complied with.
The question of the constitutionality of the claim statute was not properly raised before this court, and had not been ruled upon below. We therefore remanded the case to the trial court for a decision on that issue. The briefs filed on remand did not convince the lower court that Barney v. County of Clark, infra, need be reviewed as to that point.
41.036(3):
3. Every claim against any other political subdivision of the state shall be presented, within 6 months from the time the cause of action accrues, to the governing body of that political subdivision. No action may be brought unless the governing body refuses to approve or fails within 90 days to act upon the claim.
11.190(5) (b): Periods of limitations prescribed. Actions other than those for the recovery of real property, unless further limited by NRS 11.205 or by or pursuant to the Uniform Commercial Code, can only be commenced as follows:
5. Within 1 year:
(b) Actions or claims against a county, incorporated city, town or other political subdivision of the state which have been rejected by the board of county commissioners, city council or other governing body, as the case may be, after the first rejection thereof by such board, city council or other governing body, or the expiration of the time limited for failure to act by subsection 3 of NRS 41.036.