dissenting in part.
I dissent from that portion of the majority opinion which holds that the State Board of Higher Education is immune from tort liability even if it was negligent in selecting a site for the “Indian Powwow.” Smith v. Cooper, 256 Or 485, 475 P2d 78, 45 ALR3d 857 (1970), is the key Oregon opinion dealing with the immunity of state agencies in the exercise of discretionary as distinguished from ministerial functions. In attempting to resolve this perplexing problem, the court there stated:
“The most decisive factor but one most difficult to articulate is that it is essential for efficient government that certain decisions of the executive or legislative branches of the government should not be reviewed by a court or jury. The reason behind such factor is that the bases for the legislative or executive decision can cover the whole spectrum of the ingredients for governmental decisions such as the availability of funds, public acceptance, order of priority, etc.” 256 Or at 506.
The court conceded, however, that:
“* * * A line differentiating ministerial functions from those which are discretionary has never been clearly drawn. This court and many others have had difficulty with this task.” 256 Or at 495.
The court concluded:
“* * * that at some point along the continuum of discretion a division must be made with liability on one side and immunity on the other and this division must necessarily be arbitrary.” 256 Or at 499.
*292I, in turn, must concede that the facts of Smith itself lend support to the conclusion of the majority here that the selection of a site for an authorized function falls on the immunity side of the “continuum.” Nevertheless, I find it difficult to believe that the Supreme Court intended that the selection of the site for a “powwow” was so important in terms of public policy and the use of public money as to require immunity for negligence in the selection.
For the foregoing reason I respectfully dissent.