Dissenting. — As recently as 1958 this court, in Vater v. County of Glenn, 49 Cal.2d 815, 820 [4] [323 P.2d 85] (per Chief Justice Gibson, with only Justice Carter dissenting), although it expressly recognized that there has been much learned criticism of the principle of governmental immunity, held that “ abrogation or restriction of this doctrine is primarily a legislative matter.” And Talley v. Northern San Diego County Hospital Dist. (1953), 41 Cal.2d 33, 41 [15] [257 P.2d 22] (per Justice Shenk, with only Justice *222Carter dissenting), upon facts materially identical with those of the present case, held that “Whether the doctrine of sovereign immunity should be modified in this state is a legislative question. ’ ’ Also this court, in denying petitions for hearing after decisions of the District Courts of Appeal, has during the last decade frequently adhered to this view.1 But today’s majority, apparently impatient with the Legislature’s failure to act as speedily and comprehensively as they believe it should, usurp the legislative function, refuse reasonable respect for the doctrine of stare decisis, and sweepingly announce (ante, p. 213) that “After a reevaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust. ’ ’2
Our state Constitution, the instrument which rules (or should rule) our decisions, provides (art. Ill, §1), “The powers of the government of the State of California shall be divided into three separate departments — the legislative, executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except as in this Constitution expressly directed or permitted.”
It appears that the Legislature specifically intended that a governmental unit such as the one sued here — a hospital district — should not be liable for the torts of its employes under the principle of respondeat superior. Since this court held in the Talley case (1953), supra, 41 Cal.2d 33, 40 [14], that substantive immunity was not abolished by subdivision (b) of section 32121 of the Health and Safety Code (which provides that hospital districts have power “To sue and be sued in all courts and places and in all actions and proceed*223ings whatever”), four amendments of section 32121 have become effective (Stats. 1949, eh. 964; Stats. 1951, ch. 536; Stats. 1953, ch. 1208; Stats. 1957, ch. 641) and several other sections concerning the powers of hospital districts have been amended or added, but the Legislature has refrained from providing for their tort liability in a situation such as that in Talley and the present case. (An even more direct example of legislative recognition of, and failure to abolish, governmental immunity is found in the Water Code sections considered in the Yater case (1958), supra, 49 Cal.2d 815, 818-819 [3].)
While this court was repeatedly holding that abolishment of governmental immunity was a legislative question, the Legislature enacted various statutes which reduced such immunity in certain fields but did not abolish it, and enacted and reenacted statutes which dealt with the related problem of suability of the government; therefore, it should be concluded that the Legislature agreed with this court that the questions should be resolved by statute rather than judicial decision. (See Richfield Oil Corp. v. Public Util. Com. (1960), 54 Cal.2d 419, 430 [2] [6 Cal.Rptr. 548, 354 P.2d 4].)
“ ‘ [I]n adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them. ’ [Buckley v. Chadwick (1955), 45 Cal.2d 183, 200 [14] (288 P.2d 12, 289 P. 2d 242).] The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in' other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.” (Cole v. Rush (1955), 45 Cal.2d 345, 355 [8,9] [289 P.2d 450, 54 A.L.R.2d 1137].) Yet the majority refuse to apply the just quoted rules and say instead that the “continuous reenactment” of section 32121 (subd. (b)) indicates only “a clear legislative purpose to remove all procedural obstacles when the state is liable.” (Ante, p. 218.) An informed refusal to respect either the doctrine of stare decisis or the constitutional division of powers seems manifest.
One of the grounds upon which the majority seek to justify their invasion of the legislative province is that statutory and judicial exceptions to the governmental immunity doctrine “operate so illogically as to cause serious inequality.” (Ante, p. 216.) I had thought that the Legislature could abolish immunity in some areas and modify it in others, as it has *224done, without judicial interference with its efforts, so long as the unevenness of the legislation was not so great as to be unconstitutional.
Furthermore, I am impelled to comment that it is unfortunate that a court’s reversal of itself on a point of law which it has recently and repeatedly considered should appear to depend upon a change of personnel. A change of court personnel is not, in my concept of judicial duty (under our historic form of government), properly to be regarded as carte Manche for the judiciary to effectuate either a constitutional amendment or legislative enactment. Such power, I think, should be exercised only by the People or by representatives directly responsible to them.
Because I believe that the question of abolishing governmental immunity is for the Legislature, I would affirm the judgment.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied February 21, 1961. Sehauer, J., and McComb, J., were of the opinion that the petition should be granted.
County of Butte v. Superior Court (1960), 178 Cal.App.2d 310, 311 [2 Cal.Rptr. 913] (hearing denied); Ingram v. County of Glenn (1960), 177 Cal.App.2d 649, 650 [1, 2] [2 Cal.Rptr. 304]; Durst v. County of Colusa (1958), 166 Cal.App.2d 623, 625 [1] [333 P.2d 789] (hearing denied); Madison v. City 4 County of San Francisco (1951), 106 Cal. App.2d 232, 244-245 [234 P.2d 995, 236 P.2d 141] (hearing denied); Latham v. Santa Clara County Hospital (1951), 104 Cal.App.2d 336, 337 [1] [231 P.2d 513] (hearing denied).
The scope of this pronouncement is defined by the further statement (ante, p. 220) that “Nor does our decision herein affect the settled rules of immunity of government officials for acts within the scope of their authority. Moreover, since defendant’s employees are not immune from liability for their negligence in caring for and treating plaintiff, the question of the extent to which the state should be immune when its officers are is not involved in this case. (See Lipman v. Brisbane Elementary School Dist., post, p. 224 [11 Cal.Rptr. 97, 359 P.8d 465].)’’