(specially concurring) :
While I concur with the majority opinion which vests the right of recovery in the plaintiff below, and while I subscribe to the majority view that “governmental immunity” may effectively be waived by the purchase of liability insurance pursuant to legislative authority, I would strongly urge that plaintiffs right of recovery in the instant case is inherent in the statutes, and is therefore, not dependant upon the waiver of “governmental immunity” to the extent of the amount of the insurance purchased.
Title 74, O.S.Supp.1947, § 356.2, provides in part:
“The Board shall have and is hereby authorized to exercise the following powers, rights, and privileges: * * * (5) To sue and be sued.”
The right to sue the agency controlling State Lodges was specifically granted in 1947, 74 O.S.Supp.1947, § 356.2(5), supra, and has been retained by the Tourism and Recreation Department, as will be demonstrated.
In 1964, operation of State Lodges was transferred to the Oklahoma Industrial Development Commission. 74 O.S. § 1111 provided that Commission should “exercise all authority and powers now vested in the Division of Recreation and Parks and i,n the Oklahoma Planning and Resources Board relating to state-owned lodges.”
In 1972, pursuant provisions of Title 74, O.S.Supp.1972, § 1802 et seq., management of the State Lodges was again transferred to the Oklahoma Tourism and Recreation Department. Specifically, § 1810 provided:
“The Division of Lodges shall, subject to the policies, rules and regulations of the Commission: * * * (4) exercise all authority and powers now vested in the Oklahoma Industrial Development and Park Commission and the Oklahoma Industrial Development and Park Department relating to state-owned lodges.”
The preceding review of the various statutes specifying the duties, obligations, privileges, immunities, and control of state owned lodges, reflects that the original provision that the Board or Commission in *908control of State owned lodges may “sue or be sued” has neither been superseded, abrogated, modified, or negated.
It is the prevailing opinion of this Court based on long standing precedent that the right of the State to immunity from suit for its wrongs done to its citizens “must not be relinquished or conveyed away by inference or construction.” But where the statutes clearly grant the right of suit against an agency, it is the duty of this Court to uphold that right.
I therefore, respectfully, do not subscribe to the view that the heretofore impenetrable veil of governmental immunity from suit for tortious acts committed in the conduct of the operation of State Lodges is pierced only by waiver, founded upon authorized purchase of liability insurance.
Since I believe there can be no question that a State operated lodge or hotel is commercial or proprietary in nature, regardless of whether the legislature intended to create a governmental agency, the effect of the majority opinion is to apply governmental immunity to all State agencies. The majority is establishing a poorly conceived precedent by bringing all agencies of the State, whatever their function, whether governmental or commercial in nature, within the penumbra of the anachronistic doctrine of governmental immunity, but only permitting suit and possible recovery where the legislature has authorized and the agency has purchased liability insurance.
Historically, the determination of whether the doctrine of governmental immunity will protect a particular agency of the State from suit is a decision to be made by the courts upon a determination of the facts.
The term “proprietary”, as applied in governmental immunity cases, merely means the agency is engaged in an enterprise which is commercial in character, is usually carried on by individuals in competition with other businesses, and is for the profit and benefit of the unit conducting the activity. Choctaw Pressed Brick Co. v. Townsend, 108 Okl. 235, 236 P. 246 (1925) ; Henry v. Oklahoma Turnpike Authority, Okl., 478 P.2d 898 (1970) ; Newman v. State, Okl., 490 P.2d 1079 (1971); State v. Bond, Okl., 344 P.2d 562 (1959).
The designation by this Court of a State Lodge is governmental, rather than proprietary, is patently contrary to fact. In Perkins v. State, 252 Ind. 549, 251 N.E.2d 30 (1969), the Indiana Supreme Court considered whether the State’s furnishing of housing facilities in a State Park was proprietary in nature, and if so, whether that permitted suit to be brought in tort. The court found the park cottages to be proprietary in nature and allowed the suit, holding:
“There may be some logical reason why a government should not be liable for its governmental actions and functions. We do not have that question before us and need not at this time give it further consideration, since the facts in this case show that the injurious act complained of in this case arose out of the proprietary function of the State of Indiana, namely, the furnishing of housing facilities in a state park. 40 A.L.R.2d 927; Flowers v. Bd. of Comrs. of Vanderburgh County, 240 Ind. 668, 168 N.E.2d 224 (1960). It was a commercial project, supposedly operated in a businesslike fashion. Certainly the state should not offer facilities which are not clean and wholesome. It seems to us to be consistent in this principle of law and its application in this jurisdiction that if certain municipalities and the county governments are liable to the extent of the operation of proprietary functions, then there is no reason why the state as a principal should not likewise be liable for its proprietary function. It is of little concern to the injured party whether the injury was caused by a city, county, or state. We feel, to be consistent, the common law principle should be applicable to all governmental units alike.”
*909This Court, like the Indiana Supreme Court, has heretofore recognized a distinction between governmental and proprietary functions at municipal and county level, and has recognized a like distinction in various agencies of state government. See: Henry v. Oklahoma Turnpike Authority, Okl., 478 P.2d 898 (1970); State v. Bone, Okl., 344 P.2d 562 (1959). The majority opinion today effectively removes that pivotal distinction.
Moreover, this Court early held that the operation of parks is a proprietary function of a city government. City of Sapulpa v. Young, 147 Okl. 179, 296 P. 418 (1931). By even stronger reasoning a state operated hotel in a State Park should be considered proprietary. To maintain Fountainhead Lodge is not proprietary in nature is tantamount to holding hotels are not commercial ventures.
I would prospectively hold that governmental immunity shields the State from liability arising in tort in only governmental, as distinguished from proprietary functions.