dissenting in part and concurring in part:
The plaintiff basically raises three issues on appeal:
(1) The state governmental immunity statute (K.S.A. 46-901) does not include the Kansas Turnpike Authority.
(2) If the Kansas Turnpike Authority is included in K.S.A. 46-901, then a constitutionally impermissible classification has been created.
(3) The designation of the Kansas Turnpike as an “Interstate” highway constitutes an express warranty that the road meets all federal standards for interstate highways.
I concur with the majority’s determination of issues 1 and 3. I strongly disagree with both the result reached on issue 2 and the rationale on which it is based.
K.S.A. 46-901 provides:
“(a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:
“(1) The state of Kansas; and
“(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and
“(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.
“(b) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.
“(c) The state of Kansas and all boards, commissions, departments, agencies, bureaus and institutions and all committees, assemblies and groups declared to be immune from liability and suit under the provisions of subsection (a) of this section shall, in all express contracts, written or oral, with members of the public, give notice of such immunity from liability and suit.”
The statute grants across-the-board immunity from liability and suit on implied contract, negligence or other tort, to every *13arm, elbow, wrist and finger of the government of the State of Kansas. It would be difficult to conceive how the statute could be broader or more encompassing. The statute, as the majority concedes, was enacted after this court abrogated the judicially imposed state governmental immunity in Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969). Legislative intent is clear — the legislature was restoring that which this court had taken away.
The only exception to the blanket immunity of the statute is “except as is otherwise specifically provided by statute.”
In Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976) (Brown II), the new statute was attacked on the same ground as here, that it denied equal protection. The argument in Brown II was that the discriminatory classification existed by virtue of the fact other units of government (municipalities) were not included therein. Likewise, it was argued that it created an improper classification by discriminating between activities of the state government which were similar to those of private industry. The classification argument in Brown II was that the class created by the statute was discriminatory when compared to some classes outside the statute (private industry and municipalities). In upholding the constitutionality of the statute, this court said:
“The appellants contend K.S.A. 46-901, et seq., denies equal protection by discriminating between the various levels of governmental tort-feasors by imposing liability based on the unit of government involved. But withholding a legal remedy for persons injured by the state, while allowing a remedy for a nongovernmental tortious activity, or a municipal government’s tortious activity, is not discriminatory governmental action. [Citations omitted.] The constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. [Citations omitted.] The Fourteenth Amendment does not deny to states the power to treat different classes of persons in different ways.” p. 14.
Much of the Brown II opinion deals with the special need for protection of the class (state activities) as opposed to those outside the class (private industry and municipalities).
The classification in K.S.A. 46-901 exempts all state agencies from liability except where such immunity is waived, conditionally or otherwise, by statute. The statute does not classify the Kansas Turnpike any differently than a highway within the state highway system. K.S.A. 68-419 conditionally abrogates the immunity granted by 46-901.
*14The Kansas Turnpike is clearly different from other highways in the state in that it was constructed from private funds and operates on self-generated income. The legislature is better equipped to handle the difficult policy question of the Kansas Turnpike Authority’s immunity than is this court. Brown II. The stated need for change, fiscal impact, etc., would all need to be studied carefully before the legislature acted.
K.S.A. 46-901 was held to be constitutional in Brown II. I will not attempt to repeat the lengthy and well reasoned majority opinion therein, but simply adopt the relevant parts of same as a part of this dissent.
In the case before us a different twist is made on the unequal protection issue. Here the plaintiff is attacking one member of the class granted immunity on the ground the legislature has seen fit to conditionally waive the immunity of another member of the same class by a specific statutory enactment (highway defect statute, K.S.A. 68-419). The governmental immunity statute before us treats the Kansas Turnpike and the highways that are a part of the state highway system identically. I fail to see how this constitutes discrimination, invidious or otherwise.
I feel, however, that some discussion on the term “classifications” is necessary since the majority has taken that term from Brown II and, by a tortured construction, used it to hold that failure to include the Kansas Turnpike in the highway defect statute (K.S.A. 68-419) constitutes a “class of motorists who are subjected to invidious discrimination in violation of the equal protection clauses of the federal and state constitutions.”
It must be noted that plaintiff does not attack the constitutionality of the highway defect statute. If any classification, proper or improper, has occurred, it would have had to occur in K.S.A. 68-419, where one highway is treated differently from another. Yet, the majority holds that K.S.A. 46-901, with no distinction or classification of any kind among highways operated by the state or agency thereof (including the Kansas Turnpike Authority), creates a discriminatory and fatally defective classification.
The plaintiff herein has waged a direct attack on the constitutionality of the governmental immunity statute and asks this court to overrule Brown II and declare the statute unconstitutional. The majority has declined to do either. Instead, on its own initiative, the majority has elected to perform a prefrontal lobotomy on the *15statute to obtain what it considers to be a fair result. The statute still looks the same, but an unseen part of it has been removed without leaving even a telltale scar.
The means used to accomplish this feat of judicial surgery is to declare that it is only a little bit unconstitutional. The old saying about the impossibility of being a little bit pregnant immediately comes to mind, but let us study how this result was reached. The majority cites the following from Mintz v. Baldwin, 2 F. Supp. 700, 705 (N.D.N.Y. 1933):
“It is well settled that a statute may be constitutional as applied to one set of facts and unconstitutional as applied to another.”
To put the statement in context, some sentences following the above need to be included:
“And this is so, not only when the unconstitutional operation of the statute is the result of a distinct and grammatically separable provision, but also when it is the result of general prohibitory language contained in a single clause, provided the intent of the Legislature will not be violated by allowing the statute to operate in a limited Held. . . .
“. . . To enforce the order within constitutional limits will in no way violate the intent with which it was promulgated. Though it could not constitutionally operate upon . . . [some persons], the plaintiff . . . has not brought himself within the class of persons on whom it could not constitutionally operate. He cannot be heard to complain that the order is unconstitutional as applied to others.” p. 705.
Although it is not intended that this be a voluminous dissent it is important to note how the majority has skillfully mixed apples and oranges to reach the result it desires. 16 Am. Jur. 2d, Constitutional Law § 181 et seq., deals extensively with the question of partial unconstitutionality. It first deals with severability which is not before us, as not even the majority is attempting an actual severance of any part of the statute. However, it does illustrate that to sever a statute something has to be visibly removed from it. The majority holds that a particular result of the statute (when read in conjunction with the highway defect statute) is unconstitutional. At first blush, the majority’s carefully excerpted statement from Mintz appears to support its position; however, it relates to a different situation entirely. 16 Am. Jur. 2d, Constitutional Law §§ 194, 195, explain the situations where such interpretation is appropriate.
§ 194 states:
“Statutes may be unconstitutional and void as to their application to a part of *16their subject matter and valid as to other parts, or, to state the problem more concretely, they may be constitutional in operation with respect to some persons and states of fact and unconstitutional as to others. It has been said that if a statute is reasonably appropriate in its overall approach, it should be upheld notwithstanding it may be unconstitutional in special circumstances, especially when it is apparent that the legislature would want the act to prevail where constitutionally it may. And even though the provision is a single idea, a statute partially void because of inapplicability to a portion of the subject matter covered will be treated as operative and enforceable as to the one portion and inoperative as to the other if the subject matter is of such a nature that it may be divided.
“A statute which contains separate prohibitions of different acts or a prohibition applying to different classes of objects may usually be severed without much difficulty. A law may be unconstitutional so far as it affects natural persons, and yet as to corporations it maybe valid.
“In some cases the statute cannot be severally construed so as to be given partial application consistent with its purpose as designed by the lawmakers, and if it cannot be made effective in accordance with the legislative intent in enacting it originally by limiting its operation to proper subject matter, the whole statute falls. Moreover, where the same general clause of a statute appears to operate equally on all classes of cases, it seems that it is not proper judicially to limit the effect of the language to those who alone may be properly subject to statutory regulation.” pp. 427-28.
§ 195 states:
“A class of cases in which a statute may be in part valid and in part invalid consists of laws enacted by a legislature in general terms, covering not only persons and property as to which the legislature clearly has the right to make regulations, but apparently applying also to individuals and property protected from such legislation. A law may be unconstitutional and void in relation to particular cases, and yet valid to all intents and purposes in its application to other cases which differ from the former in material characteristics. In other words, where a statute has been passed by the legislature and, in relation to certain cases which it affects, some part of it is not within the competency of the legislative power or is repugnant to some provision of the constitution, such part may be adjudged void and of no avail, while all other parts of the act not obnoxious to the same objection may be upheld as valid and have the force of law. The courts in some instances by a restrictive construction have limited the effect of a statute to cases clearly within the field of legislative control.
“The rule which sustains portions of a law in and of themselves valid in their operation arises from the theory that a statute which is unsustainable in its literal terms because it is valid in some of its applications but not in others is to be read as though the latter were excepted from its operation.
“It has been said by the Supreme Court of the United States that an exception of a class constitutionally exempted cannot be read into general words merely for the purpose of saving what remains.
“The most common cases in which the field of legislation is restricted by implication are those in which certain individuals are protected from legislative interference by reason of the operation of the clauses prohibiting the impairment *17of the obligation of contracts, the passage of retrospective laws, and encroachments by Congress and the state legislatures respectively on each other’s domain. [State v. Smiley, 65 Kan. 240, 69 Pac. 199.] Thus, an act of the legislature may be unconstitutional so far as it purports to operate retrospectively or to have retroactive application to past contracts, or to the extent that it is found to impair the obligation of a contract, and yet it may be valid and constitutional in other respects and as applied to future cases.
“The general principle has also been applied to the large and important class of cases where state laws are partially invalid as interfering with interstate commerce. Such statutes have frequently been treated as severable and sustained to the extent of regulating commerce within the confines of the state. The reverse is the case where an act of Congress, while embracing subjects within its authority in regulating commerce, also includes subjects not within its constitutional power. If the two are so interblended in the statute that they are incapable of separation, the entire statute will be held to be repugnant to the Federal Constitution and nonenforceable. Thus, if the terms of a state law are broad enough to apply to trusts and conspiracies of all persons, including those engaged in interstate commerce, it would be proper for the courts to limit such a statute by construction to those cases to which it could alone legally apply. On the other hand, if Congress should pass an antitrust law the general terms of which should include subjects lying without as well as those within its sphere of legislation, such act might be restricted by construction to those matters in respect to which Congress was qualified to enact regulations, without nullifying it as a whole.” pp. 429-30.
The cases cited by the majority arise on a variety of factual situations. There is, however, a common thread. In each case a member of a class within the statute itself objects to his inclusion at all therein, or that the restrictions are too broad as to him. One of the cases, Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 66 L.Ed. 239, 42 S.Ct. 106 (1921), involved a statute wherein a class was partially controlled by federal regulation (interstate commerce).The statute was held to extend only to those who could legally be subject to it (not under federal regulation). The statute in Mintz v. Baldwin, 2 F. Supp. 700 (N.D.N.Y. 1933), pertained to the quarantine of diseased cattle and the conflict between state and federal regulations was again the issue. The statute was limited, by the court’s opinion, to apply to cattle which were not yet under federal jurisdiction, as the applicable federal law preempted the field as to cattle which had been federally inspected. The statute in Kansas City Ry. v. Anderson, 233 U.S. 325, 58 L.Ed. 983, 34 S.Ct. 599 (1914), imposed double damages on railroads for certain acts if the claims were not paid within thirty days. The effect of the decision was that the statute was constitutional when limited to cases where the claim did not exceed the loss, but unconstitutional when the claim exceeded the loss.
*18The sole Kansas case cited in this area deserves additional consideration. State v. Smiley, 65 Kan. 240, 69 Pac. 199 (1902), aff’d 196 U.S. 447, 49 L.Ed. 546, 25 S.Ct. 289 (1905), has been frequently cited in opinions from other jurisdictions. The state statute involved was antitrust legislation which was literally so broad as to cover virtually any agreement between businessmen. This court said:
“He cannot be heard to object to the statute merely because it operates oppressively upon others. The hurt must be to himself. The case, under appellant’s contention as to this point, is not a case of favoritism in the law. It is not a case of exclusion of classes who ought to have been included, the leaving out of which constitutes a denial of the equal protection of the law, but it is the opposite of that. It is a case of the inclusion of those who ought to have been excluded. Hence, unless appellant can show that he himself has been wrongly included in the terms of the law, he can have no just ground of complaint. This is fundamental and decisively settled. (City of Kansas City v. Railway Co., 59 Kan. 427, 53 Pac. 468, 52 L.R.A. 321, affirmed under the title Clark v. Kansas City, 176 U.S. 114, 20 Sup. Ct. 284, 44 L.Ed. 392; Supervisors v. Stanley, 105 U.S. 305, 311, 26 L.Ed. 1044; Pittsburg &c. R. Co. v. Montgomery, 152 Ind. 1, 49 N.E. 582, 71 Am. St. Rep. 301, 311.)” p. 247.
The common thread in these cases is that each involves a person (or corporation) seeking to void a statute in which it is expressly included. The objecting party is a member of the class whose conduct (or liability) is regulated by the statute. The objecting party is attempting to reduce the class or limit the liability assigned to his class. In no instance have I found where a class was modified or limited on complaint by someone not included within the class.
The majority, however, is using these cases to change a class objected to by an outsider when the entity within the class is urging that no change be made.
All of the discussion in this dissenting opinion and in the majority opinion as to partial unconstitutionality arises by virtue of the innovative approach taken by the majority. Partial unconstitutionality is not urged or briefed by the parties. It is my belief that this subject is not properly before the court, but its inclusion in the majority opinion leaves me no alternative but to respond.
At the time of Broum II no state in the United States had abrogated statutorily imposed governmental immunity. The majority has found one opinion, Harvey v. Clyde Park Dist., 32 Ill. 2d 60, 203 N.E.2d 573 (1964), which, although not directly in *19point, gives some support for the abrogation of statutory governmental immunity. It does little, however, to bolster the majority opinion as the Illinois court was concerned with one of a patchwork quilt of statutes which dealt with the general topic of governmental immunity. The court struck the one statute down as unconstitutional. The question of partial invalidity of a particular statute was not involved.
There is an old legal saying that “harsh facts make bad law.” This arises where an extreme factual situation makes the application of a legal principle so unjust as to be unacceptable. To resolve the problem, courts from time to time create exceptions in judicially established principles to serve the ends of justice in particular areas. These exceptions are sharply limited in application to situations where the general rule is unduly harsh. Such exceptions deal with the application of legal principles or statutes and not with their constitutional validity. Such exceptions should only be, and generally are, cautiously created or applied.
In my opinion, the majority opinion is in fact unwarrantably creating such an exception under the guise of partial unconstitutionality. By so doing the doors have been flung open to innumerable problems in the future. To reach a result it deems desirable in this case, the court has hacked a dangerous path of uncertainty in the law which is legally unsupportable and, because of its broad implications, will create a multitude of future problems.
Before closing, I direct attention to the following statement from Brown II, 219 Kan. at 9: “As judges our desire to achieve what may seem fair to us as individuals cannot overcome the laws enacted by our duly elected legislators.”
I submit that the majority has failed to apply this basic judicial precept to the case at hand. I would reaffirm Brown II and Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219 (1970), as controlling in this case, and affirm the trial court on all issues.
I disagree completely with the result reached by the majority that the Kansas Turnpike Authority is not immune from suit by virtue of K.S.A. 46-901. However, if such determination is to be made, then at the very least it should be subject to the same conditional abrogation of immunity as are highways that are a part of the state highway system, including notice of claim and prior notice of defect, all as set forth in K.S.A. 68-419.
Schroeder, C.J., and Fromme, J., join in dissent.