(separately commenting on the dissent of Mr. Chief Justice WADE, supra).
I feel constrained to answer the dissent, without expecting my learned colleagues, who have concurred in the main opinion, to pass on the merits or demerits of the personal differences of opinion which Mr. Chief Justice WADE and I have harbored and do harbor here with respect to sovereign immunity and the authorities which *69the former cites in support of his conclusion.
I note with interest that the Chief Justice refers to a dissenting opinion of Justice Wolfe in Bingham v. Board of Education, “where he advocated the complete overruling of sovereign immunity.” Advocacy for a personally desired result is a poor substitute for stare decisis, or for the emasculation of legislation which has been interpreted time and again by this court, and which I personally think construable differently than does.the Chief Justice. I submit that the authorities overwhelm his conclusion.
It is conceded that Muskopf v. Corning Hospital, cited in the dissent, is the closest case supporting Mr. Chief Justice WADE’S thesis, but the cases he urged in Springville Banking Co. v. Burton, Fairclough v. Salt Lake County and the others, it is submitted, did not and do not support his contention. In the Muskopf case, the main opinion, it is true, survived a strong and very convincing-dissent. That case heavily suggests judicial legislation, and shares Mr. Chief Justice WADE’S refusal to worship at the shrine of sovereign immunity, and equally and just as religiously refuses to do else but justify objectivity, with an irreverence for precedent. Although not binding on the California Supreme Court, nor this court, it is noteworthy that subsequent cases in the intermediate California appellate courts, seem to have interpreted the decision as not applicable to situations where the legislature has created the immunity or spoken with reference thereto.1 The Muskopf case finds little comfort in the other cases cited by Mr. Chief Justice WADE.
Hargrove v. Cocoa Beach 2 has to do only with municipal liability on the city level, but nowhere else. Subsequent Florida cases clearly demonstrate its limitations. The Florida Supreme Court in City of Miami v. Keton,3 held that immunity could be imposed as a bar to a suit to remit erroneously collected fines. In Smith v. Duval County Welfare Board,4 the court concluded that the Hargrove case did not purport to waive *70state immunity, relying on Keggin v. Hillsborough County 5. It appears clear that the Hargrove case does not pretend to eliminate sovereign immunity on the state or other levels, but only as to a city, where, in effect, the distinction between governmental and proprietary functions was eliminated.
Illinois abolished municipal immunity in Molitor v. Kaneland Community Unit Dist. No. 302,6 and by dicta gave the appearance of extending the abolition to other levels; however, the state of Illinois enjoys constitutional immunity.7 This decision is therefore not directly applicable to suits against the state. Even so, the subsequent history demonstrates the weakness of this case as precedent. Within 40 days of the next legislative session, the Illinois Legislature passed five bills that in effect recognized the doctrine of sovereign immunity as to local agencies. Hickman, Municipal Tort Liability in Illinois.8 Subsequent cases from that state, both federal and state, have recognized that the Illinois Legislature had much at stake in the sovereign immunity principle. Miller v. City of Chicago.9
The most recently expressed effort to eliminate sovereign immunity was reflected in Williams v. City of Detroit.10 The case itself netted plaintiff nothing, since the court divided on the question of abolishing sovereign immunity. A majority indicated, however, that from that time on the doctrine would not apply. The opinion of Justice Carr is persuasive in reflecting the objection to such action, when he said that “The radical departure from existing law in this State contemplated by Justice Edwards, and those of like mind with him, obviously involves the exercise of legislative authority. The fact that the change to be made is prospective only is significant in this respect.” A most appalling factor of the Michigan decision is the majority opinion’s noting of the fact that the legislature had failed to respond to pleas for abolition of the doctrine and hence the courts, in the name of “Justice,” are justified in engaging in legislation in spite of constitutional mandates to the contrary. The decision is too recent to canvass the response of the Michigan Legislature to the court’s new estate, but it is sufficient to note that the court recognizes the minority position in the case, when Mr. Justice Carr says that “Attention is called to court decisions in Florida, Illinois and California, in each instance by a divided court, rejecting the doctrine of governmental immunity. We cannot agree that such decisions, in view of the overwhelming weight of authority to the contrary, indicate any *71‘major trend’ toward the general abolition of the doctrine.”
The writer is convinced that any drainage of taxpayers’ funds by abolition of the doctrine, is the subject of legislative attention in our tri-partite system of government,— not the courts. The legislature better may inventory the practical effects of creating a Pandora’s Box. The courts better may interpret, from a strictly judicial, not economic standpoint, the meaning and extent of legislation. As we have stated in other cases, damaged citizens are not wholly without redress in isolated cases, since under our same system of government, the legislature itself might grant relief to an applicant if his claim properly is processed through the Board of Examiners.11 It takes little imagination to' visualize a situation where, particularly in the remoter areas of a sparsely settled state like this, a school district, or a small town might suffer sudden death were it not protected by a shield of immunity.
Neither the Florida nor Illinois decisions would be operative in the instant case, and it may be equally true of the California ruling. The Michigan decision, with ifs questionable reasoning, and its bitterly divided court, offers little argument to dispose of precedents of this jurisdiction, and to fly in the teeth of the majority rule.
The cases cited in the dissent’s footnote do not show any modern trend away from a sovereign immunity, as suggested by Mr. Chief Justice WADE. In our surrounding sister states, the cases quite definitely challenge and refute any such suggestion. Berger v. Dept. of Highways, 143 Colo. 246, 353 P.2d 612 (1960); Vendrell v. School Dist. No. 26C Malheur County, 360 P.2d 282 (Or.) (1961); Maffei v. Incorp. Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808, 340 P.2d 759 (1959); Kilbourn v. City of Seattle, 43 Wash.2d 373, 261 P.2d 407 (1953); Livingston v. Regents of N. M. College of Agriculture, 64 N.M. 306, 328 P.2d 78 (1958). (Emphasis added.)
. Ngim v. City and County of San Francisco, Cal.App., 13 Cal.Rptr. 849 (1961); Akers v. City of Palo Alto, Cal.App., 14 Cal.Rptr. 767 (1961).
. Fla., 96 So.2d 130, 60 A.L.R.2d 1193 (1952).
. Fla., 115 So.2d 547 (1959).
. 118 So.2d 98 (D.C.App.Fla.1960).
. 71 Fla. 356, 71 So. 372 (1916).
. 18 Ill.2d 11, 163 N.E.2d 89 (1959).
. Ill.Const. Art. 4, Sec. 26.
. Illinois Law Forum, 1961, p. 475; 54 North Western U.L.Rev. 588 (1959).
. 25 Ill.App.2d 56, 165 N.E. 724 (1960).
. 364 Mich. 231, 111 N.W.2d 1 (1961).
. Utah Constitution, Art. VII, See. 13; Title 63-6-1, Utah Code Annotated 1953.