dissenting.
Prior to 1971 Idaho had never had a legislatively created Tort Claims Act. 1971 Idaho Sess. Laws Ch. 150 was the first. Prior thereto all propositions of law governing governmental immunity and governmental liability were case-made. The case-made precedential law hinged around notions of governmental functions and notions of proprietary functions, a somewhat nebulous distinction and one which many scholars and commentators throughout the entire country — not just Idaho — saw as highly questionable and not always desireable.
All of those problems vanished with the passage of the Tort Claims Act:
“6-903. Liability of governmental entities — Defense of employees. — (a) Except as otherwise provided in this act, every governmental entity is subject to liability for money damages arising out of its . negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their employment or duties, whether arising out of a governmental or proprietary function, where the governmental entity if a private person or entity would be liable for money damages under the laws of the state of Idaho.” (Emphasis added.)
Such legislative action in no uncertain terms did away with the distinction between functions of the State and its political subdivisions which were thought to be governmental and functions which were thought to be proprietary. The legislative action was taken at the invitation of the Supreme Court extended to the legislature in Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), an opinion which was well-received and widely acclaimed throughout Idaho. Two members of the Court who today sat on this case and join the opinion of Justice Bakes did not join the opinion of Justice Donaldson in Smith; they dissented, but did agree that “the issue now before the court is one reserved to the legislature for action.” Smith, 93 Idaho at 812, 473 P.2d at 954 (McFadden, J., dissenting). The view of Justice McFadden, in which Justice Shepard joined, was that, even though the legislature had not at that time ever entered the field, the Smith majority was “entering upon a field that this court has always previously recognized as one reserved to the legislature.” Id. Worry was expressed as to how a judgment would be satisfied, and it was suggested that lacking was “any constitutional provision expressly directing or permitting this Court to depart so radically from its previously uniform holdings .... ” Id. The first of the two dissenting opinions closed with this philosophical caveat:
“Until such time as the legislature, as the representatives of the electors and residents of this state, expand this waiver of governmental immunity, this court should adhere to the doctrine. It is for the legislature, not for the court, to make this change in policy.” 93 Idaho at 813, 473 P.2d at 955.
The legislature, of course, did act, and superseded the Smith opinion — its language exceeding that in Smith by doing away with the distinction between state functions proprietary and state functions governmental. I.C. § 6-903(a), supra.
The Smith majority was comprised of Justice Donaldson, Justice McQuade, and *491Justice Spear. After 1971 Idaho Sess.Laws, ch. 150 became law, Justice Spear retired from the Court. All of this is academic— Smith’s effectiveness being superseded by the legislature’s Tort Claims Act of 1971— but it sheds illumination on the strange turn of events which unfolds in the Court’s opinion today. The Smith dissenters, forging with Justice Bakes, have now judicially decimated the legislature’s Tort Claims Act.
The Smith dissenters, however, were adamant that policy changes in the field of state immunity from suit were for the legislature, 93 Idaho at 813, 473 P.2d at 955, apparently oblivious to the fact that the Smith majority specifically yielded policy to the legislature in the first instance. 93 Idaho at 808, 473 P.2d at 950. As mentioned, it was the legislature, not the Court, which gave us the 1971 Tort Claims Act.
Today it is not the Smith majority nor the legislature which assumes the mantle of policy-making, but Justice Bakes and the two Smith dissenters who twelve short years ago urged otherwise.
In Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979), writing for a majority of the Court, one of the Smith dissenters made this statement:
“Hence, although we may derive some scintilla of intent from the legislative language, we are left with the task of determining and enunciating policy.” 100 Idaho at 546, 602 P.2d at 44.
A reading of the entire opinion discloses that the foregoing apparently innocuous statement, which in no way was necessary to a determination of the issue decided, was (as I thought then and continue to believe) simply offered as an excuse for not addressing the issue presented to the Court by the parties. For certain, the opinion did not concern itself with the application of the discretionary exception, I.C. § 6-904(1), which as even Justice Bakes here concedes, was where “the parties in Dunbar focused their arguments ....”1 The strange holding of Dunbar completely side-stepped the issue in favor of saying that to allow the widows and children of the deceased miners to pursue their claims of wrongful death against the State based on negligent mine inspection “would result in the creation of a new cause of action which we deem not to be contemplated by our legislature, and foreign to traditional concepts of the law of torts.” 100 Idaho at 546, 602 P.2d at 44 (emphasis added).2
Seizing on Dunbar’s unwarranted theme that the legislature somehow left policy to the Court, and the Court’s own view — and certainly not the legislature’s — that a wrongful death action against the State based on negligence in fulfilling its mine *492inspection duties was not contemplated by the Idaho legislature, and was foreign to tort law, the author of today’s sequel to Dunbar, after assuming that firefighting activities of Boise City do have a parallel function in the private sector (not because it is so, but because it is said “there is a great need for some guidance”), jumps directly back into the proprietary function versus governmental function quagmire from which the 1971 legislature had extricated the people of the State. The roundabout meanderings by which the Court gets there are unbelievable, but more unbelievable is the conclusion:
“It seems apparent that a basic purpose behind the legislature’s creation of a list of exceptions to governmental liability was to limit the effect of its waiver of sovereign immunity with respect to governmental functions. Such is particularly true with reference to the discretionary function exception under I.C. § 6-904(1). In our view, the purpose behind the discretionary function exception is to preserve governmental immunity from tort liability for the consequences which arise from the planning and operational decision-making necessary to allow governmental units to freely perform their traditional governmental functions.”
In an effort to sustain this untenable conclusion the Court reaches back to the preTort Claims Act case of Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958), which is said to fortify that which the majority sees as illustrating the type of result that the legislature most likely intended when it passed the 1971 Act.3 Such is at best but whimsical speculation.
*493More than that, however, the Court announces a holding which extends far beyond the instant case:
“We therefore hold that the discretionary function exception in I.C. § 6-904(1) shields governmental units from tort liability for the consequences arising from the planning and operational decision-making necessary to the performance of traditional governmental functions.”
For those who may wonder at what is meant by an activist court and search for a definition and not find one, today’s majority opinion will at least supply an outstanding example of unbridled judicial activism at its pinnacle. Reaction is back in the saddle, and state immunity from suit for governmental functions as it existed prior to 1971 rides again.
. “As to the State, the [trial] court held that the activity upon which plaintiffs base their claim fell within the discretionary exception to the Idaho Tort Claims Act.” Dunbar, 100 Idaho at 525, 602 P.2d at 23.
. The Dunbar Court spoke eloquently, but perhaps with inadvertent misunderstanding, in intimating that if it were to find a breach of duty on the part of the State Mine Inspector, it “would result in the creation of a new cause of action .... ” The cause of action for wrongful death was created by the 1881 Territorial Legislature, since which time it has continued virtually unchanged. Hogan v. Hermann, 101 Idaho 893, 623 P.2d 900 (1980) (Bistline, J., concurring).
Prior to passage of the Tort Claims Act, the State, as a sovereign, was simply immune to being sued; hence the issue presented to the Court in Dunbar was not that of the creation of a new kind of action, but whether the discretionary exception of the Tort Claims Act applied so as to retain sovereign immunity. Everyone involved knew such to be the case, including the author of the Court’s opinion:
“We deem it clear that Smith did not create a new cause of action, but was rather the abolition of a total defense to an action in the traditional field of tort liability.” 100 Idaho at 545, 602 P.2d at 43.
The dissenting opinion was of the same view:
“The only issue before us is whether the action should have been terminated on motions for summary judgment. My vote is that it should not have been. That is not to say that each defendant might not be entitled to a judgment of involuntary dismissal when the evidence has all been presented, but until that has been done, neither this Court nor the trial court are in any position to rule as a matter of law that the widows and children of the deceased miners are without any claim for relief for the losses suffered allegedly by reason of the negligence of the defendants.” 100 Idaho at 549, 602 P.2d at 47.
. Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958), is an excellent refresher course for those members of the Bar whose practice predates passage of the Idaho Tort Claims Act in 1971. For those whose practice commenced after that date, it serves as an excellent example of the state of the law of sovereign immunity as it existed prior to the Smith opinion’s prodding of the 1971 legislature. One should keep in mind that two highly reputable firms sought to establish the City of Caldwell’s liability which — as compared to the facts of the case we review today — had nothing whatever to do with firefighting activities. Rather, the issue at stake was premises negligence; the premises was the second floor of the firehall and an unguarded fire pole standing erect from the first floor and in the middle of a 27-inch hole. The familiar disputes as to proprietary functions vs. governmental function is readily picked up from these excerpts, citations being omitted:
“The amended complaint alleges that the [8 year old] minor’s injuries and damage were proximately caused by the negligence of respondent in inviting and permitting the minor to play in and around the fire station near the open hole in the floor and in failing to protect the minor from the danger of falling through it, when in the exercise of reasonable care respondent knew or should have known of such dangerous condition of its premises.
“It is well established in this jurisdiction that a municipality in the absence of a statute imposing liability is not liable for the torts of its officers and employees occurring in the exercise of a governmental function; it is liable only when acting in a proprietary capacity.”
“While the legislative grant authorizing municipal corporations to establish fire departments (I.C. § 50-1137) is couched in permissive language (I.C. § 50-1101), nevertheless ‘A municipal corporation is exercising a governmental function when maintaining and operating a fire department pursuant to legislative authority,’ ...
“The weight of authority is to the effect that a municipality exercises a governmental function in the maintenance of its fire department. ...
“Since a municipality in the maintenance of its fire department exercises governmental functions it has been held generally that a municipality is not liable for the negligence of officers and servants in connection with its fire department....
“The overwhelming weight of authority is to the effect that a municipal corporation is not liable for torts arising from the defective condition, or negligent construction or operation of its fire fighting facilities and apparatus. ...
“Particularly, a municipal corporation is not liable for negligence in maintaining a pole extending through a hole in the floor from the firemen’s quarters to the fire fighting apparatus on the floor below since such is in the exercise of a governmental function.... Such doctrine of nonliability absolves the municipal corporation from liability for negligence of its servants in cases where invitees or licensees are injured by falling through such a hole left unguarded.” Ford v. City of Caldwell, 79 Idaho 499, 504-06, 321 P.2d 589, 591-93 (1958).
Was it, as a majority of the Court says that it was, the sense of the 1971 legislature in doing *493away with the distinction between proprietary function and governmental function, that thereafter severely injured eight year old boys, such as in Ford, would be denied any relief whatever for low-level operational negligence in not somehow guarding against open pits in the middle of a room in which such youngsters were invited to come? I think not. Or, is it more likely that the awful result of that case still lingered in the minds of local Treasure Valley legislators when they met in 1971 to consider their response to the Smith opinion, and, other than as to certain exceptions, abolished all governmental immunity to being sued by the victims of governmental tort.