(concurring specially) — In Macy v. Town of Chelan (1962), 59 Wn. (2d) 610, 369 P. (2d) 508, I joined the dissent because the views set out therein by Foster, J., were in my judgment most cogent and convincing — in fact, well nigh unanswerable. Thus, in the instant case, agreement with the majority is in order. I have signed it; however, the turn of events here involved requires at least the burning of the above small votive candle, and inspires the highlighting of several considerations which loom large in my evaluation respecting the reasoning and conclusions in the Macy dissent, supra, and the majority opinion herein.
First of all, in the instant case I do not agree with the position of the dissent that there is some doubt regarding the significance of the action of the legislative branch of state government in enacting (a) Laws of 1961, chapter 136, § 1, RCW 4.92.090, and (b) Laws of 1963, chapter 159. But assuming, arguendo, that there may be some lingering doubt, I would, in what seems to me the cause of more contemporary or perhaps ultimate justice, specifically overrule Kilbourn v. Seattle (1953), 43 Wn. (2d) 273, 261 P. (2d) 407, and any other decisions of this court insofar as they may be controlling or may provide support for the summary judgment entered in the instant case. This, I think, should find convincing support in the following:
The doctrine of sovereign immunity is in essence a common-law type of product, customized or synthesized by the judicial branch of government. In accepting or assuming, as the case may be, the responsibility for initiating judge-*920made rules of law or precedents in the common-law field, the judiciary (in the best common-law tradition) should also accept or assume some responsibility for re-examining such rules of law or precedents in terms of continuing reasonableness or workability. In other words, judge-made rules in the common-law area of Anglo-American jurisprudence, although consistent with the needs and norms, morals and mores, of a given time, do not necessarily remain so. Failure or refusal of the judiciary to re-examine an established common-law solution of a given problem is not justified automatically and completely by a judicial declaration of deference to legislative handling of the problem. It is more than naive to assume the legislative branch will act affirmatively on matters involving governmental immunity from tort liability simply because the judicial branch defers, and refers the problems to the legislature for handling. In common parlance, the best bill gets nowhere in the legislature without considerable organized support.1 Relative to policy determinations in the common-law field, the judicial branch certainly is as capable of expertise and good judgment as the legislative branch and has equal or possibly even greater responsibilities pro bono publico. Furthermore, reconsideration of common-law doctrine on an ad hoc basis — which of course is stare decisis in the best and most enlightened sense and, historically, is the modus operandi of the common law — could be less jarring in effect and, perhaps, could be accomplished with more consistency and finesse than if undertaken by less deliberate and more embracing or inclusive legislative action.
It has been said by some that the doctrine of sovereign immunity was justified in an earlier and pastoral era as a protection for limited governmental revenues; furthermore, that the doctrine soundly served the best interests of the community as a protective shield against unexpected liability and damages for official negligence which might otherwise necessitate budgetary cutbacks of expanding governmental services in certain other desirable areas.
*921Despite the fears of other years, the time seems propitious for reconsideration of the doctrine of governmental immunity and the theoretical bases therefor, not only by the legislative branch (as witnessed in the recent legislation cited above), but also by the judicial branch (as witnessed by the dissent in Macy and the majority in the instant case). Among other things, liability insurance of all kinds and varieties, modernly, is available to protect the public treasury and to assure the financial stability and continuity of government services in vital categories. Lastly, it is apparently the practice of numerous units of government today to carry public liability insurance (ostensibly upon the payment of reasonable premiums), possibly anticipating substantial deterioration of the protection heretofore afforded by the doctrine of governmental-immunity.
See The Role of the Courts and Legislatures in the Reform of Tort Law by Cornelius J. Peck, 48 Minn. L. Rev. 265 (December 1963).