specially concurring:
Arguments advanced by counsel for plaintiff in error and comments in the dissenting opinion of Mr. Justice Frantz constrain me to file this specially concurring opinion.
It is freely admitted that by numerous opinions of this Court in this jurisdiction, it has been firmly established that net pecuniary loss is the measure of damages in an action for wrongful death. Such action may be brought only by those persons upon whom the right has been conferred by statute.
It is asserted that this rule is “discordant with the word and spirit of the Constitution of this state.” Article II, Sec. 3, of that instrument is the only provision mentioned which, it is asserted, should impel us to repudiate *320the many opinions of this Court which have announced the rule. An examination of this constitutional provision will very quickly expose the fallacy of the argument. It provides in pertinent part that:
“All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties * * (Emphasis supplied.)
Constitutional guarantees have never operated to confer upon any person a claimed “right” which has never been recognized under any concept of law. The above-quoted language does not give a constitutional right to such person to “enjoy” the life of another. By the express provisions of the constitution the right of “enjoying and defending their lives and liberties” is the constitutionally protected right of the individual whose own life and liberty is involved.
The foundation of the “right” to bring an action for damages for the wrongful death of another is laid in the statute (C.R.S. ’53, 41-1-2). Prior to its adoption such “right” was nonexistent. Under this statute it has consistently been held that the measure of damages is the reasonably expected net pecuniary benefit to the prescribed survivors had the deceased lived, “but not a solatium for grief of the living.” An early case upholding this rule was announced in 1894, namely, Pierce v. Conners, 20 Colo. 178, 37 Pac. 721. This rule has been adhered to by this Court in numerous cases for over sixty-five years. Recent decisions are Rigot v. Conda, 134 Colo. 375, 304 P. (2d) 629; Lehrer v. Lorenzen, et al., 124 Colo. 17, 233 P. (2d) 382; and Bates v. Ward, 142 Colo. 125, 349 P. (2d) 991. In the Bates case Mr. Justice Frantz concurred in upholding the “net pecuniary loss” rule.
On several occasions since the original statute was interpreted by this court to limit recovery to “net pecuniary loss” the statute has been amended by legislative action. But the rule of “net pecuniary loss” as the measure of damages has not been changed although sev*321eral attempts to accomplish that result have failed in the General Assembly.
The reference to Article II, Section 3 of the constitution has no pertinence to the issues. Other sections of the constitution are clearly applicable. They are basic and fundamental. Article III thereof divides governmental power into three departments and admonishes each that no “* * * persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, * *
This Court is frequently called upon to curb and invalidate the actions of officials who purport to act in a manner beyond the powers which they possess under the constitution and the limitations imposed upon their authority. We should be equally willing to give recognition to, and obey, the mandates of the constitution which place definite limitations upon the power of the judiciary. As stated by Mr. Justice Sutton in the opinion of the Court, such a radical change in the long-established construction of this statute is a matter for consideration by the legislature. To accomplish that result by judicial fiat, as I view the matter, would be a repudiation of one of the most basic concepts of our way of life, and would amount to a declaration that the judiciary recognizes no limitations upon its power to change the law to correspond to what the individual members of the Court may, from time to time, believe the law should be. If, upon every change in the personnel of this Court, we were to bend or reshape the law to conform to the philosophical views of the judges who currently occupy the bench, we would destroy all semblance of legal stability and be open to the criticism expressed by Mr. Justice Jackson of the United States Supreme Court when he said in Brown v. Allen, 344 U. S. 443 (at 535):
“Whatever has been intended, this court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that *322words no longer mean what they have always meant to the profession, that the law knows no fixed principles.”
There is yet another provision of the constitution which requires us to follow the well-established precedents pertinent to the question under discussion. Article II, Section 11, provides in pertinent part that no law “* * * retrospective in its operation, * * * shall be passed by the general assembly.” At the time the acts of the defendant were committed, which gave rise to the wrongful death action under the statute, the law as then proclaimed throughout the state placed the limit of liability to “pecuniary loss.” To retrospectively enlarge this limited liability by judicial invasion of the legislative function would be to approve acts done in excess of jurisdiction, which could not be upheld if enacted by those whose exclusive function it is to legislate. If the General Assembly were to enlarge liability and attempt to give it “retrospective” effect, such result could not be upheld by this Court. Yet the contention seems to be that this court, by indulging in legislative activity which the constitution enjoins, can nevertheless produce a result which the legislature itself could not accomplish. This is a dangerous doctrine. The separation of powers of government is the keystone of our system. The judiciary should be the very first to give full effect to constitutional limitations upon its own power.
The Constitution of Colorado, in no uncertain terms, prescribes the duty of the jurist confronted with the existence of a well-established rule of law which he believes to be unjust or subject to amendment. Article VI, Section 27, provides in pertinent part that, “* * * the judges of the supreme court shall, on or before the first day of December of each year, report in writing to the governor, to be by him transmitted to the general assembly, together with his message, such defects and omissions in the constitution and laws as they may find to exist, together with appropriate bills for curing the same.” If the provision on separation of powers needed *323any clarification, which it does not, the foregoing direction to judges concerning their constitutional duties should leave nothing to be desired.
There can be no equal justice under law unless the law has stability. Numerous persons have been limited to damages for “pecuniary loss” resulting from wrongful death. In the absence of legislative action which acts prospectively, I can have no part in creating inequality of treatment under a single statute, making “fish” out of all plaintiffs whose cases have already been determined, and “fowl” out of the plaintiff who persuades the judiciary to amend the law to provide a more favorable result than would otherwise apply to him.
The foregoing is also applicable to the views expressed in the specially concurring opinion of Mr. Justice Frantz in Herbertson v. Russell, 150 Colo. 110, 372 P. (2d) 422.