dissenting:
Mr. Justice Moore and Mr. Justice Doyle have one thing in common in their opinions: recognition of the doctrine of sovereign immunity. They diverge only on whether the doctrine should apply to this case. Their divergence arises solely from the views they entertain regarding the nature of county activity, and in particular the storage of dangerous explosives by the county. Each in his own way, however, in doing homage to sovereign immunity has submitted to a doctrine which *228has only synthetic roots in our American common law.
I thought I had been accessory to the deliberate despatch of sovereign immunity. Racing Commission v. Racing Association, 136 Colo. 279, 316 P. (2d) 582; Stone v. Currigan, 138 Colo. 442, 334 P. (2d) 740. It now appears that what I considered death was only a coma, an apparent death, which the majority have resuscitated, to the extent at least that the doctrine is ambulatory in the field of torts.
I can never accede to the doctrine of immunity of government from suit or liability, or to its variant that the state or its branches are “immune from liability because the doctrine of respondeat superior [is] held to be inapplicable. This [is] a rudimentary survival of the maxim, ‘The King can do no wrong.’ ” Evans v. Berry, 262 N.Y. 61, 186 N.E. 203, 89 A.L.R. 387. Such doctrine is as repugnant to me as a rule that would permit the government to take from its people with impunity. Refinement of the taking would not make the power less offensive to me.
That there is no historical foundation for the rule formed the basis of my dissent in the case of Denver v. Madison, 142 Colo. 1, 351 P. (2d) 826; that sovereign immunity is philosophically uncongenial to our concepts of government, and to the culture and temper of our people, forms the thesis of this opinion. Its adoption was tantamount to an ipse dixit of the court, and nothing more, since its acceptance as authority was made without understanding the doctrine’s raison d’etre.
In showing that the doctrine is philosophically alien and foreign to the common genius of our people and their government, I mean nothing in disparagement of those of my brethren who disagree with me. But I do warn them that the names of those who espoused the doctrine should make it suspect.
“Bodin (1576) and Hobbes (1651) with Machiavelli (1513) are probably the fathers, though not without some earlier philosophical authority, of the modern no*229tion that the sovereign (king) is above the law, that sovereignty is ‘the absolute and perpetual power of a commonwealth,’ that the sovereignty is the ‘supreme power over citizens and subjects unrestrained by the laws,’ that the chief function of sovereignty was the creation of law and that as the creator of law, the sovereign was not bound by the law. Bodin did not conceive the State itself as sovereign, but only one element in it, the king. Law is the ‘command of a sovereign using his sovereign power.’ ” (Emphasis supplied.) Borchard, Governmental Responsibility in Tort, 36 Yale L. J. 757, 785. See also Reinhardt, A Realistic Philosophy, 181. Hegel and Austin were later exponents of the doctrine.
There is a vast difference in the concepts of Blackstone and his 13th century prototype, the ecclesiastic and jurist, Bracton. “To Bracton the maxim ‘the king can do no wrong’ meant that the king was not privileged to do wrong, but to Blackstone the phrase was not so restricted, and in his Commentaries the following is to be found:
“ ‘Besides the attribute of sovereignty, the law also ascribes to the king in his political capacity absolute perfection. The king can do no wrong * * *
“ ‘The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing: in him is no folly or weakness.’ ” Pugh, Historical Approach to the Doctrine of Sovereign Immunity, 13 La. L. Rev. 476, 479.
Today, statism is a rampant political philosophy. “What is statism? It is any form or structure of government which regiments the citizen and reduces him to the status of a ward of government, so that the citizen becomes a subject of his own government and ceases to be a free citizen.” Holman, Must America Succumb to Statism, 35 A.B.A.J. 801. Today, the absolutism of the state in many countries is substituted for the absolutism of the monarch. And a facet of this philosophy is the *230doctrine of immunity which is so incompatible with the genius of America and of Colorado. According to this doctrine, the state is not bound by the law of torts; it can commit no wrong; it is not liable, notwithstanding its servant has wrongfully injured a citizen.
Such philosophy is antithetical to the word and spirit of our federal and state constitutions. Our nation and our state are votaries of the philosophy of natural rights; they rejected the materialism of statism, and each and all of its particulars. Government is established by and for its people, whether it is the national or state government.
Men are endowed by their “Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men * * * ” These are familiar words of the Declaration of Independence. No person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.” Fifth Amendment to the Federal Constitution. No state shall “deprive any person of life, liberty or property without due process of law * * * ” Fourteenth Amendment to Federal Constitution.
This state was forbidden to form a government “repugnant to the constitution of the United States and the principles of the declaration of independence.” Section 4, Enabling Act. Accordingly, several sections of Article II of the state constitution give unequivocal recognition to the natural rights of man. Note:
“In order to assert our rights, acknowledge our duties, and proclaim the principles upon which our government is founded, we declare:
“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; *231and 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; and right and justice should be administered without sale, denial or delay.
* $ *
“Section 15. Private property shall not be taken or damaged, for public or private use, without just compensation.
* * *
“Section 25. No person shall be deprived of life, liberty or property, without due process of law.” (Emphasis supplied.)
The right to enjoy life is an inalienable right; and no court can render alienable by decision that which the constitution says is inalienable. The mandate of the constitution is that the courts afford a remedy for “every injury to person,” not for “every injury to person, except those suffered by the tort of a servant of the state or of one of its governmental agencies.”
It seems to me that by his very nature certain rights belong to man and that these rights are inalienable because they are inherent in the human being. These human rights outrank the claims and rights of the community or government. Why? Because the constitution proclaims that they are “natural, essential and inalienable.” They existed and were his before he became a part of the family, the state and society. They are not bestowed upon him by the constitutions, federal and state, but are recognized as inhering in him and therefore are subject to the constitutional guarantees that they be and remain inviolable.
This is my conviction and the reasons for my original statement that I can never accede to the doctrine of sovereign immunity. Regardless of the passage of years in which this false doctrine has been recognized as a gospel of the law, when it becomes obvious through further *232study that adherence to it is contrary to the fundamental purposes of our government and the fundamental documents under which our government operates, we should abandon and repudiate it. The Court never has the power to perpetuate error regarding the Constitution. We should do as was done in the case of Hargrove v. Cocoa Beach (Fla.), 96 So. (2d) 120, 60 A.L.R. (2d) 1193: put an end to a doctrine which should never have gained viability in this country.