dissenting:
Being of the opinion that the defense based upon sovereign immunity was not apparent from the facts set forth in the' complaint so as to justify the trial court’s dismissal of the action, I dissent from the views expressed in the majority opinion concerning sovereign immunity. However, I concur in the limited reversal. Even though the doctrine of sovereign immunity is repugnant to my personal viewpoint, I cannot assent to the concept of Mr. Justice Frantz that the entire doctrine is subject to judicial uprooting and destruction.
Noteworthy at the outset is the fact that a county now has a corporate existence and is subject to suit. C.R.S. ’53, 36-1-1 (1). Although immunity from suit is not before us, the question being whether the county is immune from liability, this latter doctrine originates in the idea that the county cannot be sued.
The principle that a county enjoys full immunity from liability for personal injuries appears to be based upon the maxim that “The King can do no wrong.” Borchard, Governmental Responsibility in Tort, 36 Yale L. J. 1, 39, provides a succinct explanation of the origins of the doctrine and shows that it is in fact a result of the concept of immunity from suit:
“Inasmuch as the English king was a personal ruler and the fountain of justice it was perhaps not unnatural that he should be regarded as exempt from the jurisdic*233tion of any court, except in the manner and to the extent that he consented to submit. It is said that this rule, which constituted a part of the common law, was introduced into the United States after American independence, notwithstanding that the sovereign here has from the beginning been separated from the government and that the latter has been deemed merely the agent of the sovereign. But in the early days of the nation the Supreme Court in Chisholm v. Georgia concluded that the doctrine of State immunity from suit was characteristic of autocracy and inconsistent with popular sovereignty. The eleventh amendment, however, though confined to the federal courts, restored the ancient doctrine to full effect, and the courts, since Cohens v. Virginia, have accepted it as immutable, regardless of its historical origin in an autocratic conception of a personal sovereign, of the diametrically opposed democratic theory of the American commonwealth and of the fact that a great part of the rest of the civilized world has denied its validity. Indeed it is regarded by our courts as a matter of simple logic, expressed as follows by Mr. Justice Holmes, an extreme Austinian:
“ ‘A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.’ And, comes the logical conclusion, as he is exempt from suit, therefore he can do no wrong. ‘The United States has not consented to be sued for torts, and therefore it cannot be said that in a legal sense the United States has been guilty of a tort.’ ”
Since the county has the capacity to sue and to be sued, the historical reason for the rule (incapacity to sue and be sued) has disappeared. This incapacity was a major factor in the leading authority on county immunity, the decision of Russell v. Devon County, 2 TR 667, 100 Eng. Reprint, 359, 362 (1788), a case which is the universally recognized original authority for the *234principle of unqualified immunity as applied to a county or a city. The decision finally turned on the fact that the defendants were sued as individuals and not as a legal entity- — -a corporation, and upon the further fact that even considering the county as a corporation, “there is no corporation fund out of which satisfaction is to be made.” The Court further said:
“But the question here is, whether this body of men, who are used in the present action, are a corporation, or qua a corporation, against whom such an action can be maintained.”
Undoubtedly the English Court was also disturbed over the lack of precedent for such liability. Notwithstanding its questionable legal basis, the case has come to be recognized as authority for the proposition that a county has an unqualified immunity from liability as well as from suit.
At the present time the county has a corporate character similar to that of a municipality and like the municipality has had to extend its activities beyond traditional governmental functions and consequently no reason is apparent for applying a full immunity to a county and a partial immunity to a city. When the county performs a function as an agency of the state, there is a reason for holding that immunity of the state should be available to it. Where, on the other hand, the county has not been commissioned by the state to perform a function on its behalf, and is acting in an independent non-governmental capacity, there is no justification in either history or logic for holding it to be immune from liability for tortious personal injuries.
The authoritative American case recognizing municipal immunity is Bailey v. New York, 3 Hill’s Reports 531 (1842). This decision introduced the variation which has been since applied to municipalities — that the city is liable even though the act is authorized by statute if it is engaged in a private rather than a public endeavor. The distinction between functions proprietary and gov*235emmental, and liability based upon the nature of the function, developed from the analysis of Chief Justice Nelson in that case. A tremendous body of confusing law has developed — differentiating between governmental and proprietary functions — and denying liability in the former but not in the latter. The accepted test is whether the city is engaged in the performance of functions on behalf of or as an agency of the state. See Rhyne, Municipal Law, 732:
“ * * * No tort liability attaches with respect to the exercise of governmental functions because the city performs such functions under powers delegated by the state and under the same immunity enjoyed by the state. * * * "
Although current decisions recognize a limited or qualified immunity in a county similar to that recognized in the municipality, the early decisions applied the doctrine of full immunity to a county. One can only speculate as to the reason for this'but it was possibly due to the limited scope of county activities as compared with the extensive activities of the municipality.
Thus in the case at bar, where the injury complained of was a consequence of storage by the county of dangerous explosives, there can be no possible basis in reason or tradition for denying a remedy to the person injured thereby on the ground that the county, in performing the acts complained of, is discharging duties imposed upon it by the state and is thus entitled to the protection of the state’s immunity. The activity described in the complaint cannot, by any stretch of the imagination, be classified (at least at the county or state level) as governmental. A private person would, of course, be subjected to liability for injuries inflicted as a result of activity of the kind alleged. Garden of the Gods Village v. Hellman, 133 Colo. 286, 294 P. (2d) 597. This fact points up the injustice of the rule of complete county immunity.
In this day and age a county engages in many activi*236ties which are non-derivative and non-governmental. In so acting, it is logical and just that it be held responsible for injuries inflicted as a result of negligent conduct or ultra-hazardous activity. Neither the maxim “The King can do no wrong” nor present day policy considerations provide an acceptable justification for shielding it from liability beyond that to which a city is subjected.
The tendency to hold counties liable for injuries inflicted in connection with their non-governmental activities is a growing one. See the cases collected in 20 C.J.S. 1068, Sec. 215, Counties, under the following heading:
“On the other hand, a county, if amenable to suit, is liable for its torts when it is acting, not as a governmental agent, but as a private corporation, or in a proprietary capacity, or is performing special duties imposed on it with its consent, or voluntarily assumed by it, or when the tort amounts to an appropriation of property.”
See also the numerous cases collected in the supplement to this section.
In 16 A.L.R. (2d) 1079 the author summarizes the present trend of the decisions by saying:
“Although the theory that counties, as subdivisions of the state, engage only in governmental functions still remains in some jurisdictions, the current trend of decisions supports the view that a county does in some cases exercise private or proprietary functions for which they may be liable in tort. In the following cases the court either recognized or applied the distinction between governmental and proprietary functions as affecting the liability of counties for torts arising out of the exercise of such functions. * * * ”
See also Harper and James, Volume 2, Sec. 29.5, p. 1619. The Restatement of the Law of Torts, Sec. 887, declares:
“No one, except the State, has complete immunity from liability in tort.”
Thus it seems clear that the immunity of the county *237must be held to be qualified, and properly limited to governmental activity, although previous Colorado cases have not so limited it and have assumed that the immunity was complete. These decisions have been made, however, without reference to whether the activity involved was governmental, and so the question is really one of first impression here. The cases all seem to repeat that: “Even when a duty is imposed by statute, the county is not liable for failure to perform it, in the absence of express provisions creating such liability.” See County Commissioners of El Paso County v. Bish (1893), 18 Colo. 474, 33 Pac. 184; Board of Commissioners of Pitkin County v. Ball, 22 Colo. 125, 43 Pac. 1000; Town of Fairplay v. Board of Commissioners of Park County, 29 Colo. 57, 67 Pac. 152; County Commissioners v. Adler, 69 Colo. 290, 194 Pac. 621; Richardson v. Belknap, 73 Colo. 52, 213 Pac. 335.
Although I agree with the opinion of Mr. Justice Frantz that the county should be held liable under the facts disclosed in this case, I disagree with his theory that we should judicially “repeal” the entire doctrine of sovereign immunity on the basis that it is unconstitutional or legally unsound, or upon the theory that it violates natural rights. The problem is entirely too complex to permit the kind of simple treatment proposed by his dissenting opinion.
There is the problem of whether the changeover should operate retrospectively. A holding that its operation is prospective in cases other than the decided cases would produce a highly unjust and illogical result. The Illinois Court discovered just how complex and deep rooted the problem is in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. (2d) 11, 163 N.E. (2d) 89. The majority in that case ruled that this decision would have no retrospective effect except as to the particular claimant. The numerous other claimants who were injured in the same bus accident now contend that this constitutes an invalid discrimination. I agree with their *238contention and undoubtedly the Court will be compelled to retreat from this part of its decision. It seems to me that the fact that the Illinois Court considered it necessary to apply the rule prospectively bolsters my contention that the abolition of the doctrine constitutes judicial legislation. Professor Borchard, the outstanding authority on, and the severest critic of, sovereign immunity, recognizes the high degree of complexity incident to any changeover and acknowledges that it is a legislative problem rather than a judicial one. See his articles in 20 Am. Bar Assn. Journal, 747; 34 Yale L. Journal 229. See also Fuller and Casner, Municipal Tort Liability in Operation, 54 Harv. L. Rev. 437, 460; Pound, A Survey of Public Interests, 58 Harv. L. Rev. 909; Prosser on Torts, 2d Ed. 774, 775; Pound, 13 NACCA Law Journal 25. In this latter article, the learned author sums up the problem as follows:
“Judicial Compared with Legislative Changes. Mr. Justice Holmes has told us that judicial lawmaking can be ‘interstitial’ only. By reasoned building upon judicial experience, by analogical application of past decision, by reasoning from established legal principles the courts will fill out gaps in the law and in deciding new cases by the application of old principles can keep abreast of the changes in social and economic conditions that are continual and inevitable in any but an exceptionally stagnant society. This, however, is as far as the courts can or ought to go. Radical and far-reaching changes, superseding of settled doctrines by wholly new starting points for judicial reasoning must be the task of legislation. Such things as providing for death by wrongful act, emancipating married women, workmen’s compensation, extension of relief of debtors to farmers and working men, and doing away with the immunities of sovereignty must by (sic) done by legislation. The legislature may, if it chooses, do the work of interstitial lawmaking also. Moreover, the line is not sharply drawn and there is a zone in which both court and legislature *239may appropriately act. But as a rule legislators are no longer willing to act except in the larger field. The time when legislatures could be relied upon for the minor, everyday tasks of keeping the law in a condition of maximum effectiveness for the administration of justice has gone by.” (Emphasis supplied.)
Applying Dean Pound’s distinction between interstitial and fundamental law changes to the present problem whether we are justified in holding a county liable for its non-governmental tortious conduct as against substituting an entirely new legal fabric by declaring the doctrine of immunity void, it seems clear that the modification which I suggest is valid. It involves mere reclassification and redefinition within the framework of our system.
The fact that the sovereignty rule is unjust or is violative of natural justice; or that it is historically unsound; or that it is contrary to the American tradition of protecting the dignity of the individual as against the state, does not justify a concurrence in the revolutionary change proposed in the dissent of my learned brother. The matter is so clearly legislative in character as to require careful survey, study and preparation. This kind of treatment cannot, as a practical matter, be provided by the courts.