(concurring specially).
I join the majority opinion, but I wish to add some further observations concerning my reasons for doing so.
First, I take it as agreed between proponents and opponents of the guest statute that so-called “traditional” equal protection standards, rather than the “strict” rules applied in the few “suspect classification” or “fundamental interest” cases, determine this controversy. See Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212.
This is consistent with the retreat from what was once assumed to be an expansion of strict construction principles into new and hitherto untried areas. See Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); San Antonio, etc., School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973) and Metropolis Theater Co. v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 57 L.Ed. 730 (1913).
In considering equal protection disputes by these traditional rules, there is, as the majority opinion points out, a strong presumption of constitutionality which plaintiffs must refute on every reasonable hypothesis by strong, clear, and convincing proof, although those who challenge guest statutes peremptorily sweep this constitutional guideline under the rug.
Despite unabated attack, guest statutes generally survived until the California case of Brown v. Merlo, supra, decided in 1973.
That opinion has been taken as a signal for renewed assault on such statutes. In recent months Kansas (Henry v. Bauder, Kan., 518 P.2d 362) and North Dakota (Johnson v. Hassett, N.D., 217 N.W.2d 771, decided March 29, 1974) have adopted California’s minority view. Texas (Tisko v. Harrison, Tex.Civ.App., 500 S.W.2d 565) has reiterated its earlier position.
Like many other courts, we have said our guest statute was enacted to avoid collusive claims and to prevent an ungrateful guest from suing his host. It should be noted those are reasons the court has ascribed to the legislature. The legislature itself simply stated it enacted the guest statute to limit the liability of owners and drivers of motor vehicles. Chapter 119, Acts 42 G.A. (1927). It did not elaborate on why it did so.
Perhaps the reasons for limiting this liability are those we have attributed to them. But this is not necessarily the case. In any event it is important to remember these widely heralded motives were judicially conceived. They have never been legislatively expressed.
For instance, the Supreme Court in the Railway Express Agency case cited and quoted from later herein apparently bestowed its benediction on the desire to avoid vexatious litigation as a legitimate purpose of guest statutes.
Another possible reason was touched upon in McConville v. State Farm Mutual Automobile Ins. Co., 15 Wis.2d 374, 383, 113 N.W.2d 14, 19 (1962) as follows, al-' *694though that case repudiated the judicially-imposed Wisconsin guest rule:
“ * * * Liability insurance is widely prevalent today. In few cases will the [elimination of the guest statute] shift the burden of loss from the injured guest to the negligent host personally. In the great majority of cases it will shift part or all of the burden of loss from the injured individual to the motoring public * * *(Emphasis supplied.)
This policy question of who should bear the loss (guest or rest of motoring public), no matter what its determination, persists. And it seems to me our decision must be on the basis of whether, on equal protection grounds, the state can be denied the right to make that choice.
I believe the state could argue rationally, though perhaps unwisely, that the injuries resulting to an automobile guest from a negligent act of his host should be borne by the guest. The state could rationally argue the guest chose a relationship somewhat different and in many ways more dangerous than others generally experienced by a guest. It could say the rest of the motoring public should not contribute to such a class of injuries because they volunteered only to share the highways and not the automobile of the negligent driver.
Once this conclusion is reached, the arguments against constitutionality crumble. The “overinclusive” and “underinclusive” arguments are valid anyway only when strict scrutiny is to be applied. San Antonio, etc., School District v. Rodriguez, supra; McGinnis v. Royster, supra; Tisko v. Harrison, supra, 500 S.W.2d at 571.
Most of the arguments upon which guest statutes have been declared unconstitutional reflect judicial impatience with legislative inaction — impatience which has long been manifest and which has been systematically fed by most of those writing on the subject. However, even most of these severe critics have advocated legislative change, rather than judicial repudiation. 45 Temple Law Quarterly 432, 447 (1972); 22 Ohio State L.J. 629, 644 (1961); 11 Univ. of Fla.L.Rev. 287, 311 (1958); 41 S.Cal.L.Rev. 884, 896 (1968); 6 Alberta L.Rev. 211, 218 (1968); 2 Portia L.J. 105, 114 (1966); 5 Univ. of W. L.A. L.Rev. 53, 62 (1973); 42 Univ. of Cincinnati L.Rev. 709, 723 (1973). A contra view is expressed in 23 Drake L.Rev. 216, 224 (1973) and 4 Memphis State Univ.L.Rev. 197, 199 (1973), both of which exhort courts to invalidate guest statutes in the face of legislative inaction.
The overinclusive argument takes the position the statute is bad because it catches those who would not collude as well as those who would. As pointed outvin Tisko v. Harrison, supra, 500 S.W.2d 565, 572, such an argument would invalidate laws such as the Statute of Frauds since many honest claimants are frustrated in their proof because the law has taken strong measures to protect society from the fraudulent few. The wisdom of that sort of decision is exactly what makes this a legislative, rather than a judicial, function.
The underinclusive argument' — that the legislation excludes some who should be included — has been discredited by the United States Supreme Court in other circumstances on numerous occasions.
In Railway Express Agency v. New York, 336 U.S. 106, 110, 69 S.Ct. 463, 465, 93 L.Ed. 533, 539 (1949), it was held a city regulation which prohibits advertising trucks on the city streets but permits the owner of a business to advertise his own wares on his own trucks was not a violation of equal protection. The court said:
“And the fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch what may be even greater ones in a different category, such as the vivid displays on Times Square, is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.”
*695In a separate concurring opinion in that case, Justice Jackson said this at page 115 of 336 U.S., at page 468 of 69 S.Ct., at page 541 of 93 L.Ed.:
“Where individuals contribute to an evil or danger in the same way and to the same degree, may those who do so for hire be prohibited, while those who do so for their own commercial ends but not for hire be allowed to continue? I think the answer has to be that the hireling may be put in a class by himself and may be dealt with differently than those who act on their own. But this is not merely because such a discrimination will enable the lawmaker to diminish the evil. That might be done by many classifications, which I should think wholly unsustainable. It is rather because there is a real difference between doing in self interest and doing for hire, so that it is one thing to tolerate action from those who act on their own and it is another thing to permit the same action to be promoted for a price.
“Certainly the presence or absence of hire has been the hook by which much highway regulation has been supported. Rights usual to passengers may be denied to the nonpaying guest in an automobile to limit vexatious litigation. Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221, 65 A.L.R. 939.”
In Williamson v. Lee Optical Co. of Oklahoma, 348 U.S. 483, 487, 75 S.Ct. 461, 464, 99 L.Ed. 563, 571 (1955) this appears:
“The Oklahoma law [which makes it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses or to duplicate or replace lenses into frames except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist] may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. It appears that in many cases the optician can easily supply the new frames or new lenses without reference to the old written prescription. It also appears that many written prescriptions contain no directive data in regard to fitting spectacles to the face. But in some cases the directions contained in the prescription are essential, if the glasses are to be fitted so as to correct the particular defects of vision or alleviate the eye condition. The legislature might have concluded that the frequency of occasions when a prescription is necessary was sufficient to justify this regulation of the fitting of eyeglasses. Likewise, when it is necessary to duplicate a lens, a written prescription may or may not be necessary. But the legislature might have concluded that one was needed often enough to require one in every case. Or the legislature may have concluded that eye examinations were so critical, not only for correction of vision but also for detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescription from a medical expert. To be sure, the present law does not require a new examination of the eyes every time the frames are changed or the lenses duplicated. For if the old prescription is on file with the optician, he can go ahead and make the new fitting or duplicate the lens. But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction and -that it might be thought that the particular legislative measure was a rational way to correct it.
“The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”
That discussion dealt with due process but beginning at page 489 of 348 U.S., at page 465 of 75 S.Ct., at page 572 of 99 L. *696Ed. the court talks about equal protection in connection with the same regulatory-statute :
“The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. * * * Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. * * * The legislature may select one phase of one field and apply a remedy there, neglecting the others. * * * The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.”
See also Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Lindsey v. Normet, 405 U.S. 56, 70, 92 S.Ct. 862, 873, 31 L.Ed.2d 36, 49 (1972); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393, 399 (1961).
When courts intervene to take such basic decisions from the legislative body whose right and duty it is to make them, they arrogate to themselves power which is not theirs and authority which resides in the general assembly.
In other words, the fact that a statute includes more persons — or fewer — within its sweep than those who fit the pattern which the statute was designed to catch does not invalidate a law. This involves a balancing of competing advantages and disadvantages, a legislative function. Among the cases which reach this conclusion are the following: Delany v. Badame, 49 Ill.2d 168, 274 N.E.2d 353 (1971); Smith v. Williams, 51 Ohio App. 464, 1 N.E.2d 643 (1935); Perozzi v. Ganiere, 149 Or. 330, 40 P.2d 1009 (1935); Shea v. Olson, 185 Wash. 143, 53 P.2d 615 (1936), aff’d, 186 Wash. 700, 59 P.2d 1183 (1936); Harlow v. Ryland, 172 F.2d 784 (8th Cir. 1949); Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939); Hillock v. Heilman, 201 So.2d 544 (Fla.1967); Miller v. Huizinga, 23 Mich.App. 363, 178 N.W.2d 542 (1970); Romero v. Tilton, 78 N.M. 696, 437 P.2d 157 (1967); Campbell v. Paschall, 132 Tex. 226, 121 S.W.2d 593 (1938); Tisko v. Harrison, (Tex.Civ.App.1973), 500 S.W.2d 565.
I believe the trial court should be affirmed because plaintiffs have failed to prove what must be proven to strike down § 321.494, The Code, as violative of the equal protection clause. Until California took the bit in its teeth, the principle that the remedy for this allegedly unwise and unfair law lay with the legislature was not seriously challenged. Since that 1973 decision courts whose philosophy differs from that expressed by such statutes have rallied round to reach the conclusion their laws, too, are unconstitutional by “modern” standards under “present day” conditions. In doing so they have been over-zealous to search out constitutional flaws where none exist. See “Judicial Nullification of Guest Statutes,” 41 S.Cal.L.Rev. 884 (1968).
This had led to some strange results. For instance it is claimed by some that the statute offends against equal protection because it treats all guests alike. We are also told that judicial erosion of the statute by the creation of numerous (and sometimes frivolous) exceptions now somehow renders what is left unconstitutional. (See dissent in this case and statement in Henry v. Bauder, supra, 518 P.2d at 367.)
What has happened is that judicial forbearance has run out in the face of disapproval of the law itself. This hardly serves as a legitimate reason for the overthrow of the statute. Courts should pay the same deference to statutes they don’t like as to those they do.
I would affirm the trial court because to do otherwise is to intrude unreasonably in the legislative arena.
UHLENHOPP and HARRIS, JJ., join in this special concurrence.