dissenting:
The majority opinion relies on Title 19 O.S.1971, § 1, which provides that a county may sue and be sued, and the statute which provides for measures by which counties might finance payment of judgments. Title 19 O.S.1971, § 6. The provisions of Okla.Const. art. X, § 28 are also cited. I do not find these authorities to persuasively support the position of the majority opinion. Arguments that sovereign immunity has been thus waived have been denied in previous decisions of this Court. I find nothing here which would cause me to disagree with the reasoning of our earlier opinions.
Title 19 O.S.1971, § 1 has been said not to serve as a waiver of sovereign immunity or authorize negligence actions against the county, and it has been reiterated that absent a statute specifically and expressly imposing liability for damages upon statutorily created political subdivisions of state government for negligence, there is no such liability. Board of County Commissioners v. Guaranty Loan & Investment Corp., Okl., 497 P.2d 423 (1972). This Court has also consistently held that a county is not liable for damages resulting from the negligent conduct of an officer or employee, despite the existence of statutes providing for measures by which counties might finance payment of judgments.1 Hazlett v. Board of County Commissioners, 168 Okl. 290, 32 P.2d 940 (1934). Merely providing a procedure for financing judgment does not lead to the conclusion that the legislature intended an abrogation of sovereign immunity with regard to tort liability. The legislation was intended to cover circumstances where judgments have traditionally been allowed against counties: e. g. where land is taken for a lawful public purpose (eminent domain). Board of Commissioners v. Baxter, 113 Okl. 280, 241 P. 752 (1925).
In addition, the majority opinion emphasizes Title 25 O.S.1971, § 29, which provides that statutes in derogation of the common law are to be liberally construed to effect their objects and to promote justice. The purpose of this statute is to allow effectuation of expressed legislative intent. In re Captain’s Estate, 191 Okl. 463, 130 P.2d 1002 (1942). We have also held that important aspects of the common-law will not be held abrogated by inference from subsequent statutes which do not expressly or necessarily destroy them. Roxana Petroleum Co. v. Cope, 132 Okl. 152, 269 P. 1084 (1928). A statute'creating the capacity to sue and be sued does no more than create that capacity, where the right is not otherwise limited by statute or decisional law. Authority to maintain an action in negligence must be premised on statutory waiver. Sullivan v. Big Horn County, 66 Mont. 45, 212 P. 1105 (1923).
One, if not the principal, reason assigned by the majority opinion for upholding the right of the injured plaintiff to maintain suit against the defendant-county is the theory that, because a city would be held liable under the same circumstances (for negligence in maintaining streets), the county should also be held liable (for negligence in maintaining county roads). However, cities and counties are fundamentally different and the fundamental differences between the two serve as the basis for holding a city to be involved in a proprietary activity when maintaining streets while holding a county to be involved in a governmental activity when maintaining county roads.
In James v. Trustees of Wellston Township, 18 Okl. 56, 90 P. 100 (1907), there is presented an in-depth analysis of liability with regard to cities, townships, counties, and states. A clear distinction is made between cities and townships:
*237Cities, towns, and villages are municipal corporations proper, while counties, townships, school districts and road districts are quasi corporations. The difference between the two classes of corporations is well established, and a principle applicable to one class is not necessarily applicable to the other.
90 P. at 102.
As noted in James, supra, 90 P. at 105, counties are but subdivisions of the state and a suit against the county is in effect a suit against the state. However, cities are merely municipal corporations, voluntarily formed, and the sovereign immunity of the state in no way extends to such corporations. The powers and duties of a county are the powers and duties of the state of which the county is the agent and governmental duties of the sovereign are not, absent clear waiver, amenable to individual tort suit.
Cities are corporate bodies capable of much the same acts as private corporations, and having special and local interests and relations, not shared by the state. Cities are voluntarily formed municipal corporations formed generally for the benefits of the inhabitants thereof, whereas counties are legislatively mandated subdivisions of the state. It is unreasonable to hold an entity liable for negligence in the performance of duties imposed upon it by the legislature, as distinguished from those voluntarily assumed. W. Prosser, Law of Torts § 131 at 978 (4th ed. 1971).
A long list of opinions of this Court appears in the 1970 opinion in Henry v. Oklahoma Turnpike Authority, Okl., 478 P.2d 898 wherein it is written:
“. . . highways, . . . are the property of the State and in the building of such the State is acting in its governmental capacity, rather than business capacity.”
In Board of Com’rs of Seminole County v. Barker, 119 Okl. 206, 249 P. 296 (1926) it was held:
“In this state counties are merely quasi municipal corporations charged by law with certain governmental and administrative functions as state agencies, and as such are not liable in damages for negligence in the construction of a bridge, which results in injury to one using the same, in the absence of express statute, and the board of county commissioners is without legal authority to bind the county by contract to pay such character of claim.”
It was also said in that case: “That these quasi municipal corporations are not liable for the negligent construction of bridges [and] highways has been determined by this court and is no longer an open question. (Cases cited.)”
I can only reiterate what was stated by Justice Davison for the Court in Henry v. Oklahoma Turnpike Authority, supra. First, quoting from an earlier case:
“The right of the sovereign state to immunity from suit is a public right and must not be treated as relinquished or conveyed away by inference or construction, and statutes must clearly permit the states to be sued or the right to do so will not exist.” 2
and,
“. . .If the present policy is to be changed it should be done by the legislature, as representatives of the people, and not by [the] court.”
I understand the majority opinion takes the position the county-defendant here voluntarily assumed the obligation to maintain the road involved when it entered into a contract with the city-defendant for that *238purpose. I do not find that by agreeing to do some of the maintenance the county commissioners thereby waived the county’s immunity from suits in tort. Immunity was waived to an action upon the contract. The immunity of the county from suit in tort remains unaffected, in my view. Certain it is, the plaintiff can point to no provision in the city/county contract by which the county agreed to be liable in tort for the negligence of its officers and agents. But, regardless of these facts, limited as they are to the circumstances of this case, the majority opinion would apparently reach the same result, namely that the maintenance of county roads by a county is a proprietary function in the negligent exercise of which the general funds of the county may be reached. It is with these conclusions I most strongly disagree.
In 1978 the Legislature, obviously believing the doctrine of sovereign immunity would continue to be upheld as it had been since statehood, nevertheless, in the interest of providing some compensation to persons injured by the negligence of public employees, passed “The Political Subdivision Tort Claims Act.” It now appears as Title 51 O.S.1978 Supp., §§ 151-170. Although it was not in effect at the time the cause of action here arose, it is my view that by the passage of such legislation the doctrine of sovereign immunity was legislatively recognized and adopted as the official public policy of the state.
The Legislature is much more able to provide the policy in the area of sovereign immunity than are the courts. The Legislature is aware of the limited funds available to the various political subdivisions for the payment of injury claims, or for the payment of insurance premiums, and can provide accordingly.
In this case I would hold that the doctrine of sovereign immunity continued fully extant in this jurisdiction until, and then only to the extent, modified by the above act of the Legislature.
I am authorized to state that IRWIN, V. C. J. and WILLIAMS, J., concur in the views herein expressed.. Statutes providing for means for counties to finance payment of judgments have been on the books since statehood, yet this court has consistently ascribed to the court-made doctrine of sovereign immunity with regard to tort liability on the part of counties.
. Notwithstanding statements in some recent opinions that a waiver may be implied [Coffey v. Robert McMullan & Son, Inc., Okl., 570 P.2d 1152 (1977); State Bd. of Pub. Affairs v. Principal Funding Corp., Okl., 542 P.2d 503 (1975); State ex rel. Coffey v. District Court of Okia. Co., Okl., 547 P.2d 947, 951 (1976); Lamont Ind. Sch. Dist. # I 95 of Grant Co. v. Swanson, Okl., 548 P.2d 215 (1976)], the Court has uniformly adhered to the principle of governmental immunity for tort liability and, if an implication that a waiver of the immunity is relied on, the circumstances must be such so that one would be lead to no other conclusion except that waiver of immunity was intended and did occur.