(dissenting)—I dissent.
The territorial legislature of 1869 enacted a statute which was again re-enacted in the code of 1881 and again in 1953 imposing upon cities and other political subdivisions vicarious liability for negligence. Nevertheless, the court today reaffirms a line of cases by which the court repeals the statute.
The reasons for my protest are accentuated by the enactment of Laws of 1961, chapter 136, p. 1680, abolishing the *616state’s immunity from tort liability, and providing instead that the state shall be liable for negligence the same as anyone else, and the enactment of the Federal Tort Claims Act of August 2, 1946, Title IV, chapter 753; 60 Stat. 842; 28 U. S. C. § 1346, imposing vicarious liability for negligence upon the United States, and like action by the British Parliament the following year, Crown Proceedings Act of 1947, 10 & 11 Geo. VI., chapter 44; 6 Halsbury’s Statutes of England (2d ed.) 46.1
That our statute was copied verbatim from a very early Oregon statute was judicially acknowledged in Kirtley v. Spokane Cy., 20 Wash. 111, 115, 54 Pac. 936:
“. . . The state of Oregon from an early date had a statute identical in its terms with that in force in this state, and, while such statute existed in that state, it was held to confer a right of action against the county for neglect in allowing bridges to be out of repair. McCalla v. Mult-nomah County, 3 Ore. 424; and again affirmed in Sheridan v. City of Salem, 14 Ore. 328 (12 Pac. 925). . . . Our statute appears to have been taken from Oregon after it had been construed by the courts of that state.”
But the history of the problem in Oregon is refreshingly different because the courts of that state exercised an admirable degree of judicial self-restraint which is still conspicuously absent here. In a series of cases, the Oregon Supreme Court called attention to the decisional law elsewhere that, in the absence of statutes, political subdivisions were not liable for negligence because the state itself was immune. In consequence, the Oregon legislature abolished the tort liability of the political subdivisions, including cities.
In Grant Cy. v. Lake Cy., 17 Ore. 453, 460, 21 Pac. 447, the matter was summarized as follows:
“It is unnecessary to say that the logic of that decision was not appreciated by the members of the bar; but its doctrine was enforced until the people of the various counties got tired of having to pay the damages to unscrupulous *617claimants for pretended injuries, in consequence of alleged defects in roads and bridges, and the legislature concluded to change it, by declaring, in the emphatic language of said section 350 of the present code, that ‘an action may be maintained against any of the organized counties of this state, upon a contract made by such county in its corporate character, and within the scope of its authority, and not otherwise.’ ”
Here, however, instead of repealing the statute, the legislature re-enacted it in 1953.
Laws of 1953, chapter 118, § 2, p. 232 (codified RCW 4.08.120), re-enacted the territorial statute which abolished the defense of sovereign immunity of incorporated towns and provided that such municipalities shall be liable for negligence the same as anyone else.
“An action may be maintained against a county or other of the public corporations mentioned or described in RCW 4.08.110, either upon a contract made by such county, or other public corporation in its corporate character and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such county or other public corporation.” (Italics mine.)
The public corporations mentioned in RCW 4.08.110 are:
“ . . . any county, incorporated town, school district or other public corporation of like character . . .” (Italics mine.)
This court, however, has usurped the legislative function by itself repealing the statute. Kilbourn v. Seattle, 43 Wn. (2d) 373, 261 P. (2d) 407, recognized that the legislature, by statute, had made municipalities liable for negligence the same as anyone else. The court there stated:
“The statute in question dates back to 1869, and is found, also, in practically the same words, in the code of 1881. It became the law of the state of Washington by virtue of our state constitution, Art. XXVII, § 2.
“That this statute applies to incorporated towns as distinctly and specifically as it does to counties and school districts is apparent. We recognized that such was the case in our opinion in Howard v. Tacoma School Dist. No. 10, 88 Wash. 167, 152 Pac. 1004 (1915), wherein we pointed out that two lines of decisions had been developed, in one *618of which, dealing with counties and school districts, it had been held that the statute abrogated the common-law rule of immunity from liability for injuries occurring through negligent performance or omissions to perform governmental duties, and in the other, dealing with incorporated towns and cities, the statute had been ignored and it had been held that incorporated towns and cities were entitled to immunity from liability under such circumstances. We at that time refused to overrule this latter line of cases because to do so
“ ‘. . . would be to unsettle the law of damages as it has been applied to corporations purely municipal almost from the beginning of statehood’; and we decided that the only practicable course was
“ ‘. . . to uphold both lines of precedent as applied respectively to the two classes of corporations in the adjudicated cases.’ ”
But it was there decided that, although the statute made municipalities liable for negligence the same as anyone else, such statute had been judicially repealed, and stare decisis precluded the overruling of such cases. The court now again reaffirms the judicial usurpation of the legislative function.
My dissent in Windust v. Department of Labor & Industries, 52 Wn. (2d) 33, 46, 323 P. (2d) 241, advanced the view that, after a statute had been judicially construed and thereafter re-enacted, the judicial construction of the statute became an integral part of the legislative act. But the court there flatly held that the doctrine of stare decisis does not apply to the interpretation of statutes and overruled a long line of cases of twenty-five years standing.
The court there declared:
“Let it be understood that we now follow the language of the statute, which is the only authoritative statement of the law, . . . ”
and, further:
“The gravity of substantial judicial encroachment upon the legislature, under the guise of following the doctrine of stare decisis, warrants a reference to the admonition in Petersen v. Department of Labor & Industries, supra [40 Wn. (2d) 635, 245 P. (2d) 1161], that ‘Statutory cases have a fixed base from which we always start.’ It may be added *619that only the statute contains the authoritative language in which the law is couched. A constant paraphrasing of the statutes by the court, such as is done in the McCormick case [7 Wn. (2d) 40, 108 P. (2d) 807], initiates the process exemplified in Ashford v. Reese, supra [132 Wash. 649, 233 Pac. 29], by which an accumulation of small changes overrules the law. By that process, more and more weight is inevitably given to opinions and less and less to the statute until, as in the McCormick case, the law is all opinion and no statute.
“Since the doctrine of stare decisis is not applicable to a case of statutory interpretation, we advert directly to the language of the statute to ascertain if there has been an injury in the instant case.”
Judge Donworth was equally emphatic in his separate concurring opinion, for he said:
“In my opinion, the doctrine of stare decisis does not require us to perpetuate the error of the Metcalf and McCormick cases. As we said in In re Yand’s Estate, 23 Wn. (2d) 831, 162 P. (2d) 434, quoting with approval from a decision of the New York court of appeals:
“ ‘ “But the doctrine of stare decisis, like almost every other legal rule, is not without its exceptions. It does not apply to a case where it can be shown that the law has been misunderstood or misapplied, or where the former determination is evidently contrary to reason. The authorities are abundant to show that in such cases it is the duty of courts to re-examine the question. Chancellor Kent, commenting upon the rule of stare decisis, said that more than a thousand cases could then be pointed out, in the English and American reports, which had been overruled, doubted or limited in their application. He added that fit is probable that the records of many of the courts of this country are replete with hasty and crude decisions; and in such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.’ ” Rum-sey v. New York & N.E.R. Co., 133 N. Y. 79, 30 N. E. 654, 28 Am. St. 600.’ ”
Consequently, the court now has two lines of cases to be applied, one when it approves of a statute and the other when it disapproves.
*620This, then, is a paradox. In Kilbourn, supra (1953), the court said that, although the legislature had made cities liable for negligence, it would not permit such a recovery. The reason advanced was that prior decisions immunized municipal corporations for negligence, notwithstanding that the statute specifically authorized recovery. The court held that such decisions could not be overruled. This, in the jargon of the law, is called stare decisis, but in point of actual fact is judicial usurpation of legislative power.
Five years later, the very antithesis was announced in Windust. It was there specifically held that the rule of stare decisis did not apply to cases interpreting statutes. Since then, judicial overthrow of the specific statute that cities are vicariously liable for negligence cannot be justified.2
There is no vested right to continue a series of judicial mistakes. In 1869, the legislature enacted that specified political units should be vicariously liable for negligence. The decisions of this court applied that statute to some of the specified political units but declined to apply the mandate to cities and towns. Such is a completely arbitrary exercise of judicial power.3
Cardozo said:
“ . . . The constitution overrides a statute, but a statute, if consistent with the constitution, overrides the law of judges. In this sense, judge-made law is secondary and subordinate to the law that is made by legislators. . . . ” Hall, Selected Writings of Benjamin Cardozo, 110.
*621The court’s opinion states:
“In the recent case of Kilbourn v. Seattle, 43 Wn. (2d) 373, 261 P. (2d) 407 (1953), this court considered at length a proposal to judicially repeal the body of law which gives to municipal corporations immunity for acts of negligence of their agents and employees, and gave its reasons why it was convinced that such a reform must be initiated by the legislature. . . . ”
It is now idle to say that to overrule Kilbourn v. Seattle, supra, and cases preceding it “ ‘. . . would be to unsettle the law of damages as it has been applied to corporations purely municipal almost from the beginning of statehood’ ...” for by Laws of 1961, chapter 136, p. 1680, the legislature has waived the state’s immunity for negligence. The various political subdivisions have no independent sovereignty but have enjoyed, by judicial decision only, the extension of the state’s immunity. By the withdrawal of the state’s immunity, the corresponding immunity of lesser political units was, likewise, withdrawn so that Kilbourn v. Seattle, supra, is no longer controlling on any hypothesis. Such was the decision of the highest court of New York under comparable circumstances upon enactment of the New York Tort Claims Act (New York Court of Claims Act of 1939, 2 (1939) Laws of New York, chapter 860, p. 2178). In Bernardine v. New York, 294 N. Y. 361, 365, 62 N. E. (2d) 604, 161 A. L. R. 364, the New York Court of Appeals decided:
“ . . . Section 8 of the Court of Claims Act says: ‘The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations’. The gist of this waiver and consent of the State has been operative since 1929, and is limited only by the incidental procedure prescribed in article II of the same Act. None of the civil divisions of the State— its counties, cities, towns and villages—has any independent sovereignty (see N. Y. Const., art. IX, § 9; City of Chicago v. Sturges, 222 U. S. 313, 323; Keifer & Keifer v. R. F. C., 306 U. S. 381. Cf. Gaglio v. City of New York, 143 F. 2d 904). The legal irresponsibility heretofore en*622joyed by these governmental units was nothing more than an extension of the exemption from liability which the State possessed. (Murtha v. N. Y. H. M. Col. & Flower Hospital, 228 N. Y. 183, 185.) On the waiver by the State of its own sovereign dispensation, that extension naturally was at an end and thus we were brought all the way round to a point where the civil divisions of the State are answerable equally with individuals and private corporations for wrongs of officers and employees,—even if no separate statute sanctions that enlarged liability in a given instance. (Holmes v. County of Erie, 291 N. Y. 798.) . . . ”
Earlier, the appellate division of the New York Supreme Court in McCarthy v. City of Saratoga Springs, 269 App. Div. 469, 56 N. Y. S. (2d) 600, reached the same conclusion and declared:
“In the earlier decisions, the immunity from liability of civil divisions within the State for the acts of officials and employees while performing governmental functions existed because of the historical immunity of the State. A city or a county performing governmental functions does so under delegated powers from the State, and acts under the same immunity, if any, enjoyed by the State. The immunity of a city derived from the State’s immunity ceased to exist after the enactment of the Court of Claims section (supra) [§ 12-a of the former Court of Claims Act (now § 8) ]. (Holmes v. County of Erie, 266 App. Div. 220, aff'd 291 N. Y. 798.) ...”
This action should not be dismissed, but a new trial should be ordered with directions to proceed upon the theory of negligence, in which event the defense of contributory negligence is available.
Finley, C. J., and Hunter, J., concur with Foster, J.
July 16, 1962. Petition for rehearing denied.
The Supreme Court of Michigan in September, 1961, buried the doctrine of governmental immunity. Williams v. Detroit, 364 Mich. 231, 111 N. W. (2d) 1.
2 Harper & James, The Law of Torts, 1619, § 29.6, Liability of Municipal Corporations.
“ ‘The emphasis which a certain school of legal thought, whose origin in America can be traced to the works of Professor John Chipman Gray, has placed.upon the power of the judge to declare the law, has led some advanced thinkers to suggest that the judge has a right to remake the law as he sees fit. According to them, the courts can and should act arbitrarily in laying down principles which it is thought will do more social justice than will some of the long-established rules of the past. Like a medieval monarch, the judge is above the law which he lays down for his subjects. Few judges have claimed this power for themselves, but there are legal writers who have done it for them.’ [Goodhart, Essays in Jurisprudence and Common Law 268 (1931).]” 1961 U. Ill. L. F. (No. 3) 476, 477.