dissenting:
I respectfully dissent from the majority opinion.
Liber, at the time of his birth and at the time of his injuries, was clothed with certain inalienable rights which he and his forebears had never relinquished and which are expressly recognized by:
(1) The Declaration of Independence:
“We hold these truths to be self-evident: — that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. * * *."
(2) Article V of the Amendments to the Constitution of The United States of America:
“No person shall be * * * deprived of life, liberty, or property, without due process of law; * * *.” (Emphasis supplied.)
*210(3) Article XIV, §1, of the Amendments to the Constitution of The United States of America:
“ * * * nor shall any state deprive any person of life, liberty or property without due process of law, * * (Emphasis supplied.)
(4) Article II, Constitution of the State of Colorado:
“Section 1. All political power is vested in and derived from the people; all government, of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole.
“Section 3. 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.
“Section 6. Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; * * *.
“Section 25. No person shall be deprived of life, liberty or property, without due process of law ” (Emphasis supplied.)
Liber, having lost a leg and suffered other injuries arising out of the alleged gross negligence of the defendants, invoked the aid of the district court, and in his complaint asserted his rights and demanded a remedy commensurate with his rights. Without question the allegations of his complaint, had they been directed against an individual or private corporation, were adequate and sufficient, if proven, to have entitled him to relief. The trial court dismissed the action on the sole ground that:
“ * * * in this state counties are not liable for torts and it would be inconsistent to relieve counties from liability and yet hold the officers liable * *
*211Precedent for the above statement can be found in several pronouncements of this court.
Study and analysis of these pronouncements disclose no reason, other than precedent, why recovery may not be had against a county and its agents for their tortious acts. Reviewing these cases in the chronological order in which they were decided leads me to the conclusion that each and every one of them is erroneous, precedent on precedents that are lacking in reason, contrary to our whole system of government and violative of most valuable rights reserved to the people and guaranteed by the United States and Colorado Constitutions.
The earliest case is County Commissioners v. Bish, 18 Colo. 474, 33 Pac. 184, decided in 1893, wherein this court said:
“The rule that counties are not liable for torts, in the absence of statute, is universally acknowledged. And the great weight of authority is in favor of the conclusion that, even when a duty is imposed by statute, the county is not liable for failure to perform it, in the absence of express provision, creating such liability. The cases sustaining the latter conclusion are so numerous that space will not permit of their citation in this opinion. They will be found collated in part in the notes on page 364 of the fourth volume of the American and English Encyclopedia of Law, and also in note 1, page 303 of Cooley’s Constitutional Limitations.”
It will be noted that the court made no effort at analysis of the problem presented in light of the constitution or reason. Reading of the cases collated in the note on page 364, Vol. IV, American and English Encyclopedia of Law, invariably leads one back to the old English common law with all of its dogma as to sovereign immunity.
Next we have the case of Pitkin County v. Ball, 22 Colo. 125, 43 Pac. 1000, decided in 1895, in which Justice Campbell, speaking for the court, relying on precedent with no reference to reason, said:
*212“ * * * But for such tortious acts of its officers, or for acts clearly beyond their power, the county, in the absence of a statute, is not liable. Board of County Commissioners v. Bish, 18 Colo. 474, and cases cited; Mechem on Public Officers, sec. 850; 1 Beach on Pub. Corps., secs. 258-263 and chap. 20.”
Then follows Town of Fairplay v. Park County, 29 Colo. 57, 67 Pac. 152 (1901), wherein this court again contented itself by quoting with approval the aforementioned language of Commissioners v. Bish.
The next case considered is Miller v. Ouray E. L. & P. Co., 18 Colo. App. 131, 70 Pac. 447 (1902). This was a suit against the power company, the three county commissioners as individuals, the sheriff and the sureties on his official bond. The action was to recover damages for the death, by burning, of plaintiff’s son while imprisoned in a faulty and negligently wired county jail. Again we have an unreasoned opinion of this court:
“This being true, a breach of the duty here charged will not support an individual action for damages against the commissioners. Mr. Cooley authoritatively lays down this doctrine, and it is supported by the great weight of authority, and so even in cases where a nonperformance of the duty might prejudice an individual. This is held not to constitute a private wrong for which the injured party could have redress by individual action. — Cooley on Torts, 2d ed., p. 446, et seq.; Mechem on Public Officers, §§598, 599, 606; Shearman and Redfield, supra. The court did not err in sustaining the demurrer of the county commissioners.”
The above case was followed by Commissioners v. Adler, 69 Colo. 290, 194 Pac. 621 (1920), wherein this court again refers to Commissioners v. Bish, supra.
“Counsel for the defendant in error concede that a county is not liable for the torts of its agents, in the absence of an express statute making it liable; County Commissioners v. Bish, 18 Colo. 474, 33 Pac. 184. * * *
“It being a prerogative of the state to be exempt from *213coercion by suit, a provision of the fundamental law for compensation in case of damage, which is applicable to injuries caused by instrumentalities of the state, or by its agents, and to no other injuries, must be held to except such cases from the exemption. * *
Here, for the first time, the court states the reason for holding counties not liable for their torts; that reason in my humble opinion is the reasoning back of all of these county cases, and that is the doctrine of sovereign immunity.
Next is Richardson v. Belknap, 73 Colo. 52, 213 Pac. 335 (1923), wherein the court refers to People v. Hoag, 54 Colo. 542, 131 Pac. 400, and Miller v. Ouray, supra, and says:
“Applying the rule thus announced in the two Colorado cases above cited, it necessarily follows that since the duty the defendants are charged with violating or having violated is a duty to the public, the plaintiff cannot maintain an action against them on his own behalf.”
Now let us turn to the pronouncements of this court touching on the doctrine of sovereign immunity in Colorado. The first such pronouncement appears in In re Benedictine Sisters’ Bill; In re Constitutionality of Substitute for Senate Bill No. 83, 21 Colo. 69, 39 Pac. 1088 (1895). In that bill provision was made for payment of compensation to the Sisters for damages done to their building by blasting by officers and employees of the State Penitentiary. The acts complained of were clearly in tort. Therein this court said:
“ * * * We recognize the doctrine that, without constitutional or legislative authority, the state in its sovereign capacity cannot be sued. No such authority exists in this state. This being so, no liability upon contract or tort, if any there be, can be enforced against the state in any of its courts.” (Emphasis supplied.)
Those are not the words of the legislature. They are the words of this court.
Significantly the court pointed to no authority for the *214above broad statement and, more significantly, pointed out no reason for the rule. The statement is unpredented, unreasoned dictum — dictum for the reason that the court held that the Sisters should get their new building on the theory that the state had taken private property for public use and the state pursuant to constitutional provision had to make just compensation therefor.
We next hear of sovereign immunity in Parry v. Board of Corrections, 93 Colo. 589, 28 P. (2d) 251 (1933). In that case this court referred to In re Benedictine Sisters’ Bill, supra, and quoted therefrom with approval the above quotation. No reason or explanation for the rule was assigned.
The next time the court spoke on sovereign immunity was in D. & R. G. W. R. R. Co. v. Castle Rock, 99 Colo. 340, 62 P. (2d) 1164 (1936), wherein this court by way of pure dictum stated, and without referring to any authorities or reason therefor:
“ * * * The sovereign state could not be sued in the present connection unless express authority were given by the General Assembly. * *
The next decision of this court dealing with the subject was State v. Colorado Co., 104 Colo. 436, 91 P. (2d) 481 (1939). This was an action to recover damages caused by the tortious actions of the state. Again this court quoted the same language from In re Benedictine Sisters’ Bill, supra, and pointed out as further precedent for its holding Parry v. Board, supra; Denver & R. G. Co. v. Castle Rock, supra. The court made no effort to explain the reason for the rule, but did take note of the injustice of the situation, and stated:
“By reason of the despairing comment contained in the plaintiff’s brief concerning its plight if denied the remedy of suit in court to enforce its claim, and required, figuratively speaking, to stand hat in hand as a mendicant before the legislature and the chief executive, we are constrained to say that the ascertainment of the *215state's constitutional liability * * * is a proper function of the legislative department of government (In re Constitutionality of Substitute for Senate Bill, supra) * * * (Emphasis supplied.) '
In the above language this court for the first time recognized that there might be constitutional liability to a telegraph company for tortious acts of the state resulting in damages to the company property. In my opinion it is indeed unfortunate that this court did not at that time ascertain “the state’s constitutional liability.” I find no sanction for the statement that this “is a proper function of the legislative department of government.” I am of the opinion that the courts, rather than the legislature, ascertain questions of liability arising under the constitution as well as those arising in any other way. The question to be ascertained in the case before us is the ascertainment of the constitutional liability of the county and its officers and whether that liability extends to plaintiff.
The next pronouncement of this court was in Mitchell v. Commissioners, 112 Colo. 582, 152 P. (2d) 601 (1944), and again there is a total failure to offer any reason for the court’s pronouncement that:
“ * * * Clearly the highway department is nothing more than an agency of the state and as to actions against it stands in the state’s shoes. No permission has ever been granted to sue it. In the light of our holding in the following cases it is evident that this action can not be maintained against the highway department. Parry v. Board of Corrections, 93 Colo. 589, 28 P. (2d) 251; State v. Colorado Co., 104 Colo. 436, 91 P. (2d) 481.”
For the first time, in 1952, in Boxberger v. Highway Dept., 126 Colo. 438, 250 P. (2d) 1007, this court gave some explanation of the rule of sovereign immunity and the alleged reasons therefor and, as I read the decision, pretty well scuttled the doctrine. The court said:
“ * * * The doctrine of sovereign immunity originates through the course of unwritten common law. How*216ever, plaintiff’s protection and his relief is provided for in the basic written law of our state, * * *. Our courts are to decide the rights of citizens, whether it be between themselves or between them and the government. It is with pride that we say, and it is freely known to every citizen, that our courts respond immediately to rescue a citizen from those holding him under asserted governmental authority and to give him relief as against the sovereign power if the circumstances warrant. This judicial power is conferred by the same constitutional provision and we see no reason to invoke a different doctrine as to remedy for the citizen whose property is wrongfully held by the sovereign or any other source of imposition. The rights of a citizen remain the same whether they collide with an individual or the government, and judicial tribunals were wisely established to correct such matters without the individual being relegated to the position of no other remedy except to appeal to a legislature, maybe to no avail, as all the people, or the citizens, are, in fact, the sovereign under our desirable form of government. * * (Emphasis supplied.)
Sovereign immunity was again discussed by this court in Ace Flying v. Colo., 136 Colo. 19, 314 P. (2d) 278 (1957), and in which case the state was required to answer for its contractual obligations and denied the right to rely upon sovereign immunity as a defense.
This decision was followed by Colorado Racing Commission v. Brush Racing Assn., 136 Colo. 279, 316 P. (2d) 582, a unanimous decision of this court, and Stone v. Currigan, 138 Colo. 442, 334 P. (2d) 740 (a decision of six members of this court, Justice Day not participating).
In view of the foregoing, it appears clear that the doctrine of sovereign immunity did not come from the people, the constitution, the executive branch or the legislative branch of our government. It is the handiwork of this court, arrived at by following pronouncements of courts of older states where the doctrine of sovereign *217immunity was firmly embedded and which courts had accepted old English cases as a part of the common law of their states. The people, in adopting the constitution of Colorado, did not adopt the doctrine of sovereign immunity as a part of the framework of our government. The constitution says nothing on the subject. The legislature so far as my research discloses has never mentioned sovereign immunity or set up any inhibitions against suits of any kind or nature against the state, and has in fact adopted legislation providing that counties may “sue and be sued * *
C.R.S. ’53, 36-1-1, provides for the form of the title of suits by or against the county; C.R.S. ’53, 36-1-5, provides for the method of service of process on the county, and C.R.S. ’53, 36-2-4, provides for the method of payment of judgments obtained against the county. The statute makes no distinction between so-called governmental and non-governmental functions; such distinctions are the handiwork of the courts, in my humble opinion, distinctions designed to give some measure of relief from the frightful consequences of the court-created doctrine of sovereign immunity (e. g., City and County of Denver v. Madison, No. 18,365, decided January 11, 1960).
With the announcement of Boxberger v. Highway Dept., Ace Flying v. Colo., Colorado Racing Commission v. Brush Racing Assn., and Stone v. Currigan, above referred to, I had thought that the doctrine of sovereign immunity, immunity from liability because of sovereign status, immunity from suit or liability for wrongful acts committed or omitted in carrying out governmental functions, and all other supposed and claimed immunities from answerability, were definitely rejected and held to be of no further avail in judicial proceedings in Colorado. I had thought that this court had concluded that every person having a right should have a remedy against the person who or the agency that owed the duty out of which the right arose.
Rights and duties are correlative and commensurate. *218Rights do not exist in a vacuum. Where there is a right there is a corresponding duty. Liber had an inalienable, natural, constitutional right to retain as a part of his body the leg which he alleges he lost through the fault of others.
In County Commissioners v. City, 66 Colo. 111, 180 Pac. 301, this court, in passing on the answerability of a county, said:
“If it be claimed that the law furnishes no remedy, the answer is that the law always provides a remedy to enforce any right. The proposition that any right can fail for lack of a remedy is obsolete.” (Emphasis supplied.)
With government and its agencies at all levels expanding by leaps and bounds and constantly entering into activities that a few years ago would have been considered beyond the scope of governmental functions, there naturally follow more and more claims arising out of governmental activities. Out of this situation and application by the courts of their doctrine of sovereign immunity, more and more wrongs and hardships have fallen upon the people. As partial relief from this situation many courts have evolved the fuzzy distinction or difference between governmental and proprietary activities. For injuries arising out of one, there is a remedy; for the other, none. Lawyers and courts have difficulty in deciding whether certain activities are governmental or proprietary.
Efforts on the part of courts to differentiate between governmental and proprietary functions have led to weird results. In resolving such questions the plight and rights of the injured party receive no consideration. The grim fact remains — Liber lost his leg due to the negligence of others; whether storing the explosives was a governmental or nongovernmental act can have no bearing on his constitutional rights. Those who caused him injury and the county for which they acted should be held answerable for their wrongful acts, providing those acts were within their delegated authority.
*219The Supreme Court of the state of Florida, in Hargrove v. Town of Cocoa Beach, 96 So. (2d) 130 (Fla.), in renouncing the doctrine of sovereign immunity and its offspring, the differentiation between so-called governmental and nongovernmental functions, said:
“The problem in Florida has become more confusing because of an effort to prune and pare the rule of immunity rather than to uproot it bodily and lay it aside as we should any other archaic and outmoded concept. This pruning approach has produced numerous strange and incongruous results. While holding that a municipality can be held liable for the negligent operation of a fire truck, we have exempted a municipality from liability when a jailor assaulted a prisoner with a blackjack and produced a skull concussion which resulted in his death.”
In Irvine v. Town of Greenwood, 89 S.C. 511, 72 S.E. 228, the Supreme Court of South Carolina, in rejecting the supposed distinction between governmental and proprietary functions of a town, stated:
“In endeavoring to put into practical effect the supposed distinction between public function and private business or enterprise of municipal corporations, it will hardly be doubted that the courts will find themselves involved in a maze of shadowy distinctions. Where is the line of demarcation to be drawn? If it could be satisfactorily laid out now, it could not long continue to receive general recognition; for the functions of government, especially municipal government, are being extended almost every day. * * *.”
It is suggested that if the doctrine of sovereign immunity is to be overthrown, it should be done by legislative enactment. With that suggestion I do not agree. The legislature had nothing to do with creating the doctrine. The courts are to blame for the injustices flowing from the court-created doctrine, and the courts should abolish the doctrine in toto. The legislature cannot take away constitutional rights; to give legislative sanction to vested constitutional rights adds nothing thereto.
*220The Supreme Court of Florida has made complete answers to the various problems arising out of the doctrine of sovereign immunity. In Hargrove v. Town of Cocoa Beach, supra, the court said:
“The appellee here contends that any recession from the rule of immunity should come about by legislation rather than judicial decree. It is insisted that the immunity rule is a part of the common law which we have adopted and that therefore its abolition should come about only by statute. We are here compelled to disagree.
“ * * * our own feeling is that the courts should be alive to the demands of justice. We can see no necessity for insisting on legislative action in a matter which the courts themselves originated.
“ * * * we here merely hold that when an individual suffers a direct, personal injury proximately caused by the negligence of a municipal employee while acting within the scope of his employment, the injured individual is entitled to redress for the wrong done. * *
Last December, in Molitor v. Kaneland Community Unit District No. 302 (Ill.), 163 N.E. (2d) 89, the Supreme Court of the State of Illinois, in a five to two decision, repudiated in toto the doctrine, and in doing so, in an exhaustive clear-cut opinion, pointed up cogent reasons for its actions. In the opinion full answer is made to the supposed reasons for the rule, the refinements thereof, the source of the rule, and just who has the power and duty of uprooting it. The court said:
“It is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their agents and employees acting in the course of their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then, are so impelling as to allow a school district, as a quasi-municipal corporation, to commit wrong*221doing without any responsibility to its victims, while any individual or private corporation would be called to task in court for such tortious conduct?
“We are of the opinion that school district immunity cannot be justified on this theory. As was stated by one court, ‘The whole doctrine of governmental immunity from liability for tort rests upon a rotten foundation. It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, “the King can do no wrong,” should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.’ Barker v. City of Santa Fe, 47 N.M. 85, 136 P. (2d) 480, 482. Likewise, we agree with the Supreme Court of Florida that in preserving the sovereign immunity theory, courts have overlooked the fact that the Revolutionary War was fought to abolish that ‘divine right of kings’ on which the theory is based.
H* * $
“Defendant strongly urges that if said immunity is to be abolished, it should be done by the legislature, not by this court. With this contention we must disagree. The doctrine of school district immunity was created by this court alone. Having found that doctrine to be unsound and unjust under present conditions, we consider that we have not only the power, but the duty, to abolish that immunity. ‘We closed our courtroom doors without legislative help, and we can likewise open them.’ Pierce v. Yakima Valley Memorial Hospital Ass’n, 43 Wash. (2d) 162, 260 P. (2d) 765, 774.
“We have repeatedly held that the doctrine of stare
*222decisis is not an inflexible rule requiring this court to blindly follow precedents and adhere to prior decisions, and that when it appears that public policy and social needs require a departure from prior decisions, it is our duty as a court of last resort to overrule those decisions and establish a rule consonant with our present day concepts of right and justice. Bradley v. Fox, 7 Ill. (2d) 106, 111, 129 N.E. (2d) 699; Nudd v. Matsoukas, 7 Ill. (2d) 608, 615, 131 N.E. (2d) 525; Amann v. Fardy, 415 Ill. 422, 114 N.E. (2d) 412. As was stated by the New Jersey Supreme Court in overruling the doctrine of charitable immunity: ‘The unmistakable fact remains that judges of an earlier generation declared the immunity simply because they believed it to be a sound instrument of judicial policy which would further the moral, social and economic welfare of the people of the State. • When judges of a later generation firmly reach a contrary conclusion they must be ready to discharge their own judicial responsibilities in conformance with modern concepts and needs. It should be borne in mind that we are not dealing with property law or other fields of the law where stability and predictability may be of the utmost concern. We are dealing with the law of torts where there can be little, if any, justifiable reliance and where the rule of stare decisis is admittedly limited. See Pound, supra, 13 N.A.C.C.A.L.J. at 22; Seavey, Cogitations on Torts, 68 (1954); Cowan, “Torts,” 10 Rutgers L. Rev. 115, 119 (1955).’ Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 141 A. (2d) 276, 283.”
More recently, on February 25, 1960, the Supreme Court of the State of Michigan, in Montgomery v. Stephan, (Mich.), 101 N.W. (2d) 227, guided by reason which ran head-on into long established precedent, said:
“ * * * Our concern is not with the family of the middle ages, with its tyrannies and abuses, but with the family of today. If this is the interest to be protected, and we conclude that it is, the law’s protection should extend as well to the negligent as to the intentional in*223jury. In each case the loss is equally severe and the importance to our society of the welfare of the family unit outweighs the importance of the defendant’s claims to immunity.
“ * * * We are now at the heart of the issue. In such circumstances, when her husband’s love. is denied her, his strength sapped, and his protection destroyed, in short, when she has been forced by the defendant to exchange a heart for a husk, we are urged to rule that she has suffered no loss compensable at the law. But let some scoundrel dent a dishpan in the family kitchen and the law, in all its majesty, will convene the court, will march with measured tread to the halls of justice, and will there suffer a jury of her peers to assess the damages. Why are we asked, then, in the case before us, to look the other way? Is this what is meant when it is said that justice is blind?
“No, we see the suffering. But it is urged that the precedents tie us. A wife, said the ancient precedents, could not sue because she was a legal nonentity. And, even if she could, she had no cause of action to assert because a servant has no ‘right’ to the services of her master. * * *. The precedents of the older cases are not valid precedents. They are violative of women’s statutory rights and constitutional safeguards. They are out of harmony with the conditions of modern society. They do violence to our convictions and our principles. We reject their applicability. The reasons for the old rule no longer obtaining, the rule falls with it. The obstacles to the wife’s action were judge-invented and they are herewith judge-destroyed. * * *.
“So far as Blair v. Seitner Dry Goods Co., 184 Mich. 304, 151 N.W. 724, and Harker v. Bushouse, 254 Mich. 187, 236 N.W. 222, may be interpreted as authority otherwise, they are overruled.” (Emphasis supplied.)
That language is the language of five members of that court. Three justices dissented, being unwilling to overthrow precedent, and further contending that the prob*224lem calls for legislative determination. One justice did not participate.
Former Chief Justice Holland, in speaking for the court in Boxberqer v. Highway Dept., 126 Colo. 438, 250 P. (2d) 1007, said:
“ * * * The rights of a citizen remain the same whether they collide with an individual or the government * *
To that language I subscribe, and that language is and should be the answer to the problems presented in this case.
The second phase of the majority opinion deals with the question of whether public officials may be held answerable for their negligent acts in performing official duties. The majority seem to hold that county commissioners may be so held. The universal rule is to the contrary.
In 20 C.J.S. 881, §97, Counties, it is stated:
“The duties of members of a county board are ordinarily fixed by the legislature, and such members are not ordinarily personally liable to individuals for their negligent acts or omissions in connection with their official powers and duties, except where statutes expressly create such liability. The reason for exempting members of a county board from personal liability to individuals, in the absence of statute, is that, with respect to official acts, the members perform in an official, and not in an individual, capacity, and their duty is ordinarily to the public, rather than to any particular individual. * *
In People v. Hoag, 54 Colo. 542, 131 Pac. 400, this court, in speaking of the non-liability of a county clerk for his official actions or inaction, said:
“ * * * When the duty imposed upon an officer is one to the public only, its non-performance must be a public, and not an individual injury, and must be redressed in a public prosecution of some kind, if at all. — 2 Cooley on Torts, (3rd Ed.) 756. Numerous instances are given by the author. For instance, the duty of a policeman is to watch the premises of individuals and protect them *225against burglary and arson. If he goes to sleep in front of a house, and a burglar enters it or it burns down, which would have been prevented had the policeman been awake, the owner can not recover from the policeman, for the latter owed the former no legal duty. His duty was to the public. * * *.”
In Richardson v. Belknap, 73 Colo. 52, 213 Pac. 335, cited in the majority opinion, plaintiff brought an action against the members of the Board of County Commissioners of Fremont County, and in his complaint alleged that:
“ * * * the defendants, who were county commissioners, ‘carelessly and negligently failed to erect or build on said bridge any stationary, permanent or safe railings, and carelessly and negligently failed to keep the railings on said bridge in repair.’ ”
In affirming the action of the trial judge in sustaining a demurrer to the complaint, this court said:
“The demurrer raises the question, and it is the only question that need be considered upon this review, whether the county commissioners are liable, as individuals, for injuries caused by their failure to maintain and keep in repair a public highway. In the view we take of this case, as hereinafter appears, it is immaterial whether such failure takes the form of negligence, nonfeasance or misfeasance.
“Applying the rule thus announced in the two Colorado cases above cited [People v. Hoag, and Miller v. Ouray, supra], it necessarily follows that since the duty the defendants are charged with violating or having violated is a duty to the public, the plaintiff cannot maintain an action against them on his own behalf.
“It would be inconsistent to relieve counties from liability and yet hold the officers liable. * * (Precisely what the majority opinion does.) (Emphasis supplied.)
In Miller v. Ouray, supra, the Court of Appeals, in *226pronouncing the rule of non-liability of county commissioners, stated:
“ * * * If the contention of plaintiff be the law, then each individual commissioner would be liable in like actions to this, because of damages suffered by an individual by reason of alleged defects in a public highway or in a county bridge, or in any public building, or in the public grounds in which it might be situate. To so hold would tend in the large counties of the state, at least, to bring about, as was said by the supreme court of Idaho, ‘the literal abrogation of the office of county commissioner, for no sane man would assume the position with such a liability attached.’ — Worden v. Witt, et al., 39 Pac. 1114.
“The duty imposed by the statute under consideration being with reference to the care, custody and supervision of public property, it would seem clear that the county commissioners as to the performance of that duty come within the class of public officers who are recognized by the authorities as subordinate governmental, officers and administrative agents whose duty is owing primarily to the public collectively — to the body politic and not to any particular individual — who act for the public at large. — Mechem on Public Officers, §590, et seq.; Cooley on Torts, p. 442; Shearman and Redfield on Negligence, §302.
“This being true, a breach of the duty here charged will not support an individual action for damages against the commissioners. Mr. Cooley authoritatively lays down this doctrine, and it is supported by the great weight of authority, and so even in cases where a nonperformance of the duty might prejudice an individual. This is held not to constitute a private wrong for which the injured party could have redress by individual action. — Cooley on Torts, 2d ed., p. 446, et seq.; Mechem on Public Officers, §§598, 599, 606; Shearman and Red-field, supra. The court did not err in sustaining the demurrer of the county commissioners.”
*227The majority, in holding that the county commissioners might be held individually responsible in damages to private individuals for negligence in performing official duties may, as stated in Miller v. Ouray, and above quoted:
“ * * * bring about * * * the literal abrogation of the office of county commissioner, for no sane man would assume the position with such a liability attached.”
One week ago this court, in City and County of Denver v. Madison, supra, stated:
“ * * * It is not within the province of the judicial branch of the government thus to change long established principles of law. * *
Thus the majority is in the anomalous position of paying homage to stare decisis in Denver v. Madison and decries upsetting the well established law of sovereign immunity, and now, in this case, the majority disregards stare decisis and overthrows well settled law holding that governmental officers are not liable, as set forth in People v. Hoag, supra; Richardson v. Belknap, supra, and Miller v. Ouray, supra.
The judgment of the trial court should be reversed in toto, with directions for further proceedings in conformity with the views herein expressed.
I am authorized to state that Mr. Justice Frantz concurs in this dissent.