I dissent.
The court’s opinion states:
“While law writers, editors and judges have criticized and disapproved the foregoing doctrine of governmental immunity as illogical and unjust, the weight of precedent of decided cases supports the general rule and we prefer not to disregard a principle so well established without statutory authority. We, therefore, adopt the rule of the majority and hold that school boards cannot be held liable for ordinary negligent acts.”
I prefer to regard said principle for the purpose of over- . ruling it. I would not wait for the dim distant future in never-never land when the legislature may act. During my six years on the district bench and sixteen years on this bench, the principle of sovereign immunity and its cousin, non-liability of charitable institutions, specifically of hospitals, has come before this court at various times. We, as well as other courts of last resort, in various jurisdictions *594have had to face this problem of the principle of non-liability of the state and of municipal and quasi-municipal corporations which are said to have taken on the cloak of sovereignty because of their exercise of governmental functions which, it is claimed, insulates them from the doctrine of respondeat superior. We have recognized that the state, which permits an action for damages against its citizens for injuries inflicted by their torts and the torts of their servants committed in the course of or in pursuance of the master’s business, should not shield itself behind the immoral and indefensible doctrine that “the king [sovereign] can do no wrong”; that neither should the soverign take refuge in the doctrine that its own agencies, the courts, must not be allowed to render judgment against their creator. This court, as have other jurisdictions, has resorted to various devices to circumvent the injustices consequent on sovereign immunity.
One of these devices was to draw a distinction between supposedly governmental and proprietary functions. In my concurring opinion in the case of Lehi City v. Meiling, City Recorder, 87 Utah 237, at page 270, 48 P. 2d 530, at page 545, I attempted to point out that at bottom the distinction was traditional rather than natural or characteristic and that the distinction in the rapid growth of welfare for which cities engaged in proprietary functions as distinguished from protective or governmental functions, was fast fading out because of the increasing impracticability of logically maintaining them. Another device was to call aggravated cases of negligence, nuisances and hold that nuisances — those situations where there was a continuing or recurrent negligence, containing definite and palpable potentialities for harm — were not subject to the rule of non-liability. The anxiety to give the injured party a remedy for prolonged gross and flagrant negligence by the negligent actor had its roots in the belief that justice had not been served in permitting the injured party to bear *595the full brunt of the negligently inflicted injury. But the court failed to come to grips with the real problem. I agree with the prevailing opinion that if the
“reasons given by most courts in holding boards of education immune from liability for negligence center around the proposition that school boards act in conection with public education as agents or instrumentalities of the estate, in the performance of a governmental function, and consequently they partake of the state’s sovereignty with respect to tort liability * * be good to relieve boards of education from tort liability, then it should apply with equal force in cases involving personal injury caused by nuisances.” I agree that “the right to recover should not be determined by the graduation of negligence or by the adjectives used in the complaint.”
But I do not agree that
“If the strictness of the rule is to be relaxed in cases of nuisance, and if the schools are to be stripped of immunity, the stripping process should be by legislative enactment and not by court decree.”
In Husband v. Salt Lake City, 92 Utah 449, page 469, 69 P. 2d 491, page 500, I stated:
“I do not think that this sprinkling wagon being operated along a park pathway in order ^o settle the dust is a nuisance in the legal sense.
* * * # * *
“But I am willing to hold the city liable on the theory of respondeat superior for the negligence of the driver of this sprinkling wagon. I think the decisions have gone to ridiculous lengths in giving municipalities immunity from the negligence of their employees on the ground that the work in which such employees were engaged was in pursuance of governmental purpose. In the case of Lehi City v. Meiling, 87 Utah 237, 48 P. 2d 530, I had something to say about the. continual growth in the extent and kind of municipal functions and the obscurity of the line between governmental and proprietary functions. I see no difference essentially in the conduct of a municipal park and a municipal bathhouse, golf club, play ground, or dance hall. As pointed out in the writer’s opinion in the Lehi City Case, these municipal activities represent an expansion of municipal functions. Even the fact that fees are charged in some and not in others may not work any destruction in the essential nature of the undertakings. They are all recreational as distinguished from protective. I have no objection to including civic recreational projects as governmental, but I do not think the city should be insulated against responsibility for negligence of an employee on civic recreational undertakings. Moreover, there is such a matter as treating a particular activity of a municipality as governmental for one purpose and corporate or proprietary for another purpose. Brush v. *596Com’r of Internal Revenue (Oct. 1936) [300 U. S. 352,] 57 S. Ct. 495, 81 L. Ed. 691, 108 A. L. R. 1428.
“I am in favor of restricting municipal immunity for the negligence of its employees while engaged in the city’s business to that committed in the pursuit of actual protection of persons and property or preserving the peace of the community or some other police duty which it exercises as an agency of the state. The doctrine originated on the theory that the city was an agency of the state in its function of preserving the peace and protecting persons and property, and since the state could not be sued for negligence of its employees in performing such functions, neither should the agency be required to respond when its servant so engaged was guilty of negligence. I have some question about the soundness of the original doctrine, but as then restricted, it did not produce the unfairness which now ensues because of the greater and greater expansion of municipal activities construed to be for governmental purposes.”
I am now of the opinion that we should judicially strike the ax at the very roots of this tree of governmental immunity grown from a by-gone time in which it may have been necessary as a part of public policy to protect the state, municipal corporations and quasi-municipal corporations including school boards, from liability for torts, few of which were committed by the members personally. In the Husband case I expressed myself as willing to adhere to the doctrine of municipal immunity to the extent of applying it to negilgence of the city’s “employees while engaged in the city’s business to that committed in the pursuit of actual protection of persons and property or preserving the peace of the community or some other police duty which it exercises as an agency of the state.” I must now recede from my position there taken. I see no necessity in modern times for exempting even the state.
In Niblock v. Salt Lake City, 100 Utah 573, 111 P. 2d 800, 804, in a concurring opinion, I stated:
“In the case of Husband v. Salt Lake City, 92 Utah 449, 69 P. 2d 491, I expressed the opinion that municipal immunity for the negligence of its employees had been extended too far. The doctrine cannot be defended in any case on ethical grounds. The state should set the example by responding in damages for injury caused by the negligence of its servants while they are about its business. It follows then, that it should permit its
*597courts to te opened to the inquiry as to whether it proximately caused the plaintiff’s injury.
“Governmental immunity is granted on the old theory that ‘the king can do no wrong’ or, on the better circumstanced morality, that the sovéreign by its very nature cannot be sued because the sovereignty implies something which cannot be reached by suit in and through the very agencies which the sovereign itself creates. One cannot bring into court the creator of the court itself. But neither of these theories suffices in this modern day. See 23 Mich. L. Rev. 325; Hoggard v. City of Richmond, 172 Va. 145, 200 S. E. 610, 120 A. L. R. [1368] 1376.
“Realistically speaking, the state should be free from the vexatious suits based on fictitious grounds which might spring into abundance were the immunity removed. Therefore, the matter of lifting immunity is, perhaps, properly the matter of legislation. But it behooves the courts judicially not to extend the doctrine. * * *
“Logically, if a city’s immunity is based on the fact that it exercised sovereign powers, as pointed out in 120 A. L. R. 1376, at p. 1377, the doctrine ‘constitutes an impediment to suing the soverign at all, and would apply as well to proprietary functions as to those of a governmental character.’
“Logically, also, there is no reason why a line should be drawn between some governmental functions and others. But at least it has the virtue of mitigating the injustices of the anachronous doctrine of governmental immunity.
“However, since the decisions of this court have steadfastly refused to so limit the doctrine, the prevailing rule must continue to be the law until the Legislature sees fit to change it.”
There is force to the argument that since we have recognized for a long time the rule of sovereign immunity in this jurisdiction, we should now leave it to the legislature to change the rule. There is much to be said for that in the name of stability. But no rule of property is here involved. No rights of immunity have vested because of our decisions. The doctrine is of judicial origin and judicial development growing out of the experience of a past age. Assuming that public policy at that time demanded the announcement of the doctrine, such is no longer the case. If the judiciary may develop law one way, it may also discard that law when conditions have changed so no longer to make the rule applicable. Stability in the law is no excuse for continuing a doctrine which admittedly works *598injustice when public policy no longer, if it ever did, requires.
That was amply demonstrated in the case of Sessions v. Thomas D. Dee Memorial Hospital Ass’n, 94 Utah 460, 78 P. 2d 645, 653. It was stated in the concurring opinion in that case: “ * *Whatever may have been the reasons assigned by courts for exempting hospitals operated not for profit from the consequences of the doctrine, the real reason was public policy. That funds held in trust for specific charitable purposes should be exempt is another way of saying that it is better public policy to exempt such trust funds. It is not because there is a trust. A trustee for profit is amenable to the doctrine of respondeat superior. Likewise, the theory that such institutions serve the same purpose as a governmental agency is but another guise for holding that it is good public policy to exempt them from the application of the doctrine! It results, therefore, that we but need to determine whether in this day and age public policy demands that we exempt hospitals from the application of the doctrine.” (Italics supplied for this case.)
Having in the case of hospitals found the rule of immunity not fitting for the conditions of today, we should by the same token hold the rule of sovereign immunity not applicable for the conditions of today. It is outmoded and does not fit those conditions.
Society has developed systems whereby risks may be pooled and distributed. In consequence, I think the fear that I expressed in the Niblock case [100 Utah 573, 111 P. 2d 804] that “the state should be free from the vexatious suits based on fictitious grounds which might spring into abundance were the immunity removed” did not take into account that the risk might be insured. Doubtless, there will be fictitious or unworthy suits and doubtless some of them will be successful. That is one of the pen*599alties we pay for democracy and justice, because justice must be administered by human beings. But greatly out weighing this consideration is the fact that in a period of time children and adults injured by the negligence of servants of the state, or employees of the municipalities or of the school boards, will suffer the injustice of being uncompensated by a society which was too short sighted to see that the rule of sovereign immunity was outmoded and no longer necessary.
I admit that the legislature could and should abolish or modify the doctrine. But we must be realistic. It may be a long time indeed before the enlightened individuals in our society become sufficiently interested and aroused to the injustice of this rule of immunity as to bring that social pressure on the legislature which Mr. Justice HOLMES denominated the “felt necessity of the times.” But meanwhile children, not charged in fact or law with the capacity and experience to know danger, and adults not chargeable with contributory negligence, may perish or carry throughout their lives disfigurement and impairment without hope of compensation because they were unlucky enough to have had such damages inflicted by a servant of the state or by a servant of one of its governmental arms.
Certainly we have a duty here. There are cases where we are powerless to act because the remedy lies solely with the legislature. But in those cases where we still have control of a rule or doctrine because it was judge made and developed, we may act. Non-action here and “passing” the problem to the legislature is the easy way out. But I do not think it conscienable for us not to lift our hand when to do so would bring the law up to date and furnish remedies long over due. I opine that if we affirmatively acted, there would be those who would hasten to the legislature to advocate such limitations and conditions that they *600thought would be needed to give the state and now exempt bodies opportunity to make timely investigation and to prevent excessive judgments against those puglic bodies.