(dissenting) — The majority says that the legislature has done that which we have said it ought to do,2 and has eliminated in this state governmental immunity of a city for the tortious acts of its agents while performing a governmental function.
As an individual, I am moved to cheers; it is good riddance. As a member of this court, I am compelled to state my opinion: That the legislature did not do any such a thing. I truly regret that I cannot join with my brethren in their appraisal of what the legislature intended by Laws of 1961, chapter 136, § l,3 and Laws of 1963, chapter 159, § 2.4
*922' The language of these statutes, as set forth in the footnotes, is no more than a waiver by the state of its right to assert the defense of governmental immunity in an action against the state, and it is no more than wishful thinking to say that the legislature thereby intended to waive, for the City of Tacoma or any other city, its right to that defense.
The majority says that the words “state of Washington,” in the statutes quoted in the footnotes, mean all the cities in the state of Washington too. And then it says:
“ . . . If it [the legislature] desired to preserve the doctrine of governmental immunity for these political subdivisions, it should have so stated; and the legislature, not the courts, must find the remedy for their omission.”
It seems to me that the logic is all the other way and that we could more aptly say:
“If it [the legislature] desired to eliminate the doctrine of governmental immunity for these political subdivisions, it should have so stated; and the legislature, not the courts, must find the remedy for their omission.”
Most significant to me is the fact that the quoted 1963 section relied upon (footnote 4), amending the 1961 act (footnote 3), is part of a 12-section act dealing with the handling and payment of tort claims against the state and its agencies, describing the duties of the attorney general and the budget director, et al. These, by no stretch of the imagination, have any application to cities, unless any action against a city for a tort is by this legislation converted into an action against the state on the theory of respondeat superior.
Much as I would like to see the legislature make the cities (and all governmental subdivisions) liable for the torts of *923their agents while exercising governmental functions, I do not believe the legislature has done so and, therefore, I dissent.
Donworth, J., and Dawson, J. Pro Tern., concur with Hill, J.
Kilboum v. Seattle (1953), 43 Wn. (2d) 373, 261 P. (2d) 407; Hagerman v. Seattle (1937), 189 Wash. 694, 66 P. (2d) 1152, 110 A.L.R. 1110.
“The state of Washington, whether acting in its governmental or proprietary capacity, hereby consents to the maintaining of a suit or action against it for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. The suit or action shall be maintained in the county in which the cause of action arises: Provided, That this section shall not affect any special statute relating to procedure for filing notice of claims against the state or any agency, department or officer of the state.”
“The state of Washington, whether acting in its governmental or proprietary capacity, ((hereby consents to the maintaining of a suit or action against it)) shall be liable for damages arising out of its tortious *922conduct to the same extent as if it were a private person or corporation. ((The suit or action shall be maintained in the county in which the cause of action arises: Provided, That this section shall not affect any special statute relating to procedure for filing notice of claims against the state or any agency, department or officer of the state.))” The material enclosed in double parenthesis was lined through in the original to indicate that such material was stricken from the existing law.