(concurring in part, dissenting in part).
Consistent with my dissents in National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982) and Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982), I part company with that part of the majority opinion which remands and instructs the trial court to determine whether Shea’s actions were discretionary or ministerial.
The facts before us are essentially identical to those in Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981), which the majority either overlooked or ignored. The appellant in Merrill was injured while participating in a public school wrestling class supervised by an employee of the school system. The sole issue was whether the trial court’s summary judgment was properly granted on the basis of sovereign immunity. In Merrill we reaffirmed the settled rule that “A school district officer in the performance of his duties acts in a political capacity, as much so as the Governor of a state, and is not liable for negligent acts of omission occurring in the performance of such political or public duties[.]” Id., quoting Plumbing Supply Co. v. Board of Education, etc., 32 S.D. 270,142 N.W. 1131, 1132 (1931). In Merrill we unanimously concluded the instructors were acting within the scope of their employment and affirmed the summary judgment.
If we are in effect reversing or modifying Merrill why not say so? The discretionary-ministerial injections of Leir and Kruger have provided enough confusion concerning sovereign immunity. It does not need a reversal or modification by implication. It would be better to lay it on the line that we are repudiating our consistent, constitutionally based1 position that if there is to be a departure from sovereign immunity, it must be declared, and the extent of liability fixed, by the legislature. Arms v. Minnehaha County, 69 S.D. 164, 7 N.W.2d 722 (1943).
. The South Dakota Constitution, Article III, § 27, provides: “The Legislature shall direct by law in what manner and in what courts suits may be brought against the state.”