specially concurring in result:
At issue here, as I view this lawsuit, is not whether, broadly speaking, an Oklahoma municipality may, consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution, claim for itself common-law immunity from tort liability because, in the exercise of its “governmental” function, it is possessed with “sovereign” attributes.
“Any attempt to so formulate the issue would fail for want of any respectable federal precedent to give it support.”; Rather, the threshold question shaped by the procedural posture of the case before us is the constitutional validity of the since repealed Governmental Tort Liability Act, 11 O.S. *11951971 §§ 1751 et seq.,1 which limits plaintiff’s right of recovery herein.2
Had I been on the court when Hamilton v. Oklahoma City, Okl., 527 P.2d 14 [1974] came for decision, I would have sought to declare the cited act unconstitutional because it is infected with a fatal infirmity in its limitation to cities with a population in excess of 200,000. This restriction is, in my opinion, based on an unreasonable and hence impermissible classification.
But in this case I feel bound by Hamilton’s precedential force. So long as it stands I must respect that shield it affords. I would, of course, gladly join in overruling Hamilton prospectively.
“Should Hamilton fall, the common-law rule granting government ‘sovereign immunity’ from tort liability should be withheld from judicial recognition, effective of course at some convenient date in the future to allow time for enactment of appropriate legislation to fill the void.
“The archaic concept of immunity unfairly singles out our government, qua tort-feasor, for a legal treatment that is vastly more favorable than that accorded an ordinary citizen whose actionable conduct inflicts injury on another person.3
“There can be no question at this late date about our power, both by force of statute and the common law, to change any outdated norm that owes its origin and continued existence to judge-made law.4”
So long as there is life in Hamilton I feel constrained to concur in result.
. Replaced initially by the provisions of 11 O.S. Supp. 1977 §§ 23-201 et seq., effective July 1, 1978, and then by the Political Subdivision Tort Claims Act, 51 O.S.Supp. 1978 §§ 151-170.
. My formulation of the dispositive issue results from my firm opinion that municipal vaccination services, in connection with which the tort herein is alleged to have been committed, constituted a “governmental” function.
. Judicial recognition could be effectively withdrawn in those instances where the sovereign-immunity rule has not received legislative sanction or where it is found to have been unconstitutionally enacted. Municipal immunity has recently been codified, effective July 1, 1978, in 11 O.S.Supp. 1977 § 23-210, but was then repealed by 51 O.S.Supp. 1978 § 161, and replaced with a legislative declaration of liability in 51 O.S.Supp. 1978 § 153.
. 12 O.S. 1971 § 2.