dissenting:
What was said in my dissenting opinion in Vogts v. Guerrette, et al., decided May 2, 1960, is equally appropriate here. But there is more to be said in this case, for it has the additional aspect of death resulting from alleged negligence. Suit was brought by Mrs. Taylor for the wrongful death of her husband, a non-paying guest in the autombile operated by the defendant Hutcherson.
My views concerning the rights arising from wrongful death, regardless of the grade or quality of the fault producing it, are considered heterodox, but I respectfully urge that they are the only ones consonant with the Constitutions of this state and the United States. That the reported cases do not seem to have accepted or rejected these views- — -in fact, apparently never discussed them and their efficacy — does not necessarily belie their validity or vitality. My concepts have more *44than a latent life — if simple, concise and direct statement of principle in the Constitution means anything.
Simply, concisely and directly stated in Article II (Bill of Rights) are these great truths proclaimed to be true:
“In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare:
* *4: *
“Section 3. Inalienable rights. — All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.
* * Hi
“Section 25. Due process of law. — No person shall be deprived of life, liberty or property, without due process of law.
* * *
“Section 28. Rights reserved not disparaged. — The enumeration in this constitution of certain rights shall not be construed to deny, impair or disparage others retained by the people.” (Emphasis supplied.)
By these words the Constitutional Convention implanted in our Constitution the rights required to be recognized and eternalized by Section 4 of the Enabling Act. For the mandate of that section was and is “That the constitution * * * be republican in form, * * * and not be repugnant to the constitution of the United States and the principles of the declaration of independence.” We are reminded by the Declaration of Independence that all men “are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men * * (Emphasis supplied.)
Thus, the right to life is an inalienable right which *45federal and state governments were instituted to secure. Such is the import of the Declaration of Independence; such was directed to be incorporated in the Constitution of this state by the Enabling Act; such the Constitutional Convention complied with in the formation of the Constitution, by declaring that the right to life was a “natural, essential and inalienable” right.
The right to one’s life does not contemplate the privilege or possibly the right of another to take such life, through wrongdoing or through negligence, even though it be under the guise of legal sanction. Why? Because government has its cause for being in seeing to it that the right to life is secured, not that a right is bestowed in another to take such life through negligence. Government weakens its right to exist when it acts contrary to its fundamental purpose to protect and enforce the principles of the Bill of Rights.
This is not a case of non-action, but rather of affirmative action by the legislature to destroy a right which government is designed to protect. Where there is non-action, the Bill of Rights, because of its self-executing nature, is enforceable by any appropriate remedy, and I hold that the self-executing nature of the Bill of Rights remains unimpaired by a law in violation of it. Quinn v. Buchanan, (Mo.) 298 S.W. (2d) 413; Perkins v. Cooper, 155 Okla. 73, 4 P. (2d) 64; Hoy v. State, 225 Ind. 428, 75 N.E. (2d) 915.
“ * * * Provisions of a Bill of Rights are primarily limitations on government, declaring rights that exist without any governmental grant, that may not be taken away by government and that government has the duty to protect. 1 Cooley’s Constitutional Limitations 93, 358; Am. Jur. 1092, Sec. 308; 16 C.J.S., Constitutional Law, §199, p. 976. As those authorities show, any governmental action in violation of these declared rights is void so that provisions of the Bill of Rights are self-executing to this extent. See also 1 Cooley’s Constitutional Limitations 166 note. They do not, however, usually provide *46methods or remedies for their enforcement and certainly it is proper and within the legislative power to enact laws to protect and enforce the provisions of the Bill of Rights. 11 Am. Jur. 1094, Sec. 309. In the absence of legislation, individuals may enforce and protect these rights from infringement by other individuals by any appropriate common law or code remedy.” (Emphasis supplied.) Quinn v. Buchanan, supra.
The right to life had its origin in the natural law, is immutable and absolute, and transcends the power of any authority to impair, abridge or abolish it. This right is “not surrendered by entering into organized society.” It “existed before society was organized and [is] not surrendered by entering into the organization.” Richmond F. & P. R. Co. v. Richmond, 145 Va. 225, 133 S.E. 800; and see West Virginia State Board v. Burnette, 319 U.S. 624, 87 L.Ed. 1171, 63 S.Ct. 1178, 147 A.L.R. 674; Bednarik v. Bednarik, 18 N.J. Misc. 633, 16 A. (2d) 80.
Infused into the Bill of Rights is the right to life and its enjoyment. The introductory sentence of the Bill of Rights ordains that there are “rights” and “duties,” and since its twenty-eight sections then proceed to declare rights, it is reasonable to suppose that each of the rights enumerated has a correlative duty. In pursuance of the Bill of Rights the legislature implemented the Bill of Rights by providing for a remedy in the event of death caused by negligence or intentional injury. Later, it sought to withdraw a right of action for negligence where the relation of host and guest in an automobile existed and death of the guest resulted from the simple negligence of the host.
The right to life is a natural, essential and inalienable right recognized and preserved as such as a Constitutional right; the duty not to destroy life through fault arises from the natural law, and is recognized and preserved as such as a Constitutional duty. The right to life (and the resourcefulness of the law provides a remedy for its taking through wrongdoing) is derived froip the *47natural law and given Constitutional sanction; this right and remedy are not counterparts of Lord Campbell’s Act, nor are they bestowed by legislative grace. In the original wrongful death statute the legislature sought to protect and enforce the constitutional provision; in the amendment, denying relief for death resulting from negligence of a host-operator of a car to his guest, the legislature has defaulted in a mandatory duty to preserve a right.
Since the law is invalid as to such negligence provisions, Mrs. Taylor could “enforce and protect [this right] from infringement by other individuals by any appropriate common law or code remedy.” Quinn v. Buchanan, supra. And it will not do to say, “Who has authority to enforce the right?” since the amendment takes away the right where negligence was the cause of death and the Constitution fails to designate who shall have the remedy where the Constitutional right to life has been violated. As previously indicated, the Bill of Rights does not exist in a vacuum. The decedent’s estate, the surviving spouse and the decedent’s children, if any, are damaged by his wrongful death.
“Our conclusion, without going further into the matter, is that a child today has a right enforceable in a-court of law against one who has invaded and taken from said child the support and maintenance of its father, as well as damages for the destruction of other rights which arise out of the family relationship and which have been destroyed or defeated by a wrongdoing third party. Likewise, we are persuaded that because such rights have not heretofore been recognized is not a conclusive reason for denying them.” Daily v. Parker, 152 F. (2d) 174.
To leave remediless the loss of life by wrongful act would make the right to life a mere shadow devoid of substance. Hoy v. State, supra. Loss of life by wrongful act involves a right and a duty. That a right has been infringed means that a duty has been disregarded.
*48Withdrawal of the remedy was ineffectual, unless a substitute were supplied. It must be remembered that “while the legislature may change the remedy or the form of procedure, attach conditions precedent to its exercise, and perhaps abolish old and substitute new remedies (McClain v. Williams, 10 S.D. 332, 73 N.W. 72, 43 A.L.R. 287; Raining v. Buffalo, 102 N.Y. 308, 6 N.E. 792), it cannot deny a remedy entirely.” Stewart v. Houk, 127 Ore. 589, 271 Pac. 998, 61 A.L.R. 1236.
According to Section 28 of the Bill of Rights the failure to enumerate rights does not permit of their denial, impairment or disparagement. So much more reason for holding that rights enumerated shall not be denied, impaired or disparaged. The right to life and its correlative duty in any view remain intact and whole.
For the reasons herein expressed, I would hold the attempt of the legislature to withdraw the remedy afforded for wrongful death of an automobile guest, caused by negligence, a nullity.