dissenting.
Plaintiff argues that our municipal ante litem notice requirement violates the constitutional guarantees of due process and equal protection. This notice of claim (ante litem notice) requirement, Code Ann. § 69-308, is applicable to claims for money damages against municipal corporations on account of injuries to persons or property. Being applicable to claims for money damages, its applicability in suits in equity is negligible at best. The requirement is not applicable to suits for breach of contract. City of Atlanta v. J. J. Black & Co., 110 Ga. App. 667 (139 SE2d 515) (1964). Thus the notice requirement applies to tort claims against municipalities.
On the other hand, the ante litem notice requirement applicable to counties, Code Ann. § 23-1602, is 12 months in length as opposed to 6 months for municipalities, and is satisfied by the filing and service of suit within 12 months. Compare Code Ann. § 69-308.
The Code section here in issue creates two classes of tortfeasors, municipal tortfeasors and all other tortfeasors, private tortfeasors as well as other governmental tortfeasors. At the same time, it creates two classes of tort victims — those with tort claims against municipalities and those with tort claims against others. See Hunter v. North Mason High School, supra.
There being no fundamental right or suspect classification involved, the rational relationship test is applicable.1 “Under the rational relationship test a statutory classification is presumed valid and will comport with constitutional standards as long as it bears a reasonable relationship to a legitimate governmental purpose.” See McDaniel v. Thomas, 248 Ga. 632, 638-639 (285 SE2d 156)(1981).
What is the “legitimate governmental purpose” of the requirement? The majority say it is to prevent needless litigation; to save unnecessary expense and costs by affording an opportunity for settlement before suit is brought; to give municipal authorities an opportunity for investigation while the witnesses are available and before conditions have changed; to enable municipal authorities to determine intelligently whether there is liability and if so, to make prompt settlement and avoid costs of suit, and if not, to enable the municipal corporation to prepare its defense; to prevent perjury and *434fraud and avoid injustice due to the faulty recollection of witnesses and thereby guard against unfounded claims; and to enable the municipal officers to judge the reasonableness of the amount claimed as damages.
These are laudable objectives, so laudable that perhaps they should apply to every tort defendant. Yet our Code provides that “No demand shall be necessary to the commencement of an action, except in such cases as the law or the contract prescribes.” Code Ann. § 3-106. If private tortfeasors are not entitled to protection for these reasons, one would expect other governmental entities to have the same protection but they do not. School districts are not entitled to notice of claim and the opportunity for settlement is not necessarily afforded counties because the suit acts as notice of the claim.
Statutes of limitations of 2 or 4 years (Code Ch. 3-10) are considered adequate as to private tortfeasors and school districts to insure that there is an adequate opportunity for investigation while the witnesses are available and before conditions change, and to prevent perjury and fraud and avoid the faulty recollection of witnesses and guard against unfounded claims.
Today, many if not all municipalities and counties have insurance coverage as to automobile accidents, Code Ann. § 56-2436, as well as possibly other liabilities. The ante litem notice requirement applies regardless of whether the municipality’s or county’s insurance is applicable.
Because there is no requirement of notice as to school districts, because of the different times for notice as between counties and cities (12 months vs. 6 months), because one requirement is satisfied by the suit itself whereas the other is not, because many of the objectives of the notice would serve private tortfeasors but are not made available to them, and because the requirements are applicable whether or not insurance applies whereas private tortfeasors with insurance do not get the benefits of notice of claim, I would find that this ante litem notice requirement does not bear a reasonable relationship to a legitimate governmental purpose and I would hold that it constitutes a denial of equal protection and due process of law. I therefore dissent.
This assumes that the right to recover compensatory damages from a negligent tortfeasor is not a “fundamental right.”