(concurring specially).
I agree with the majority that the notice of claim and statute of limitations provisions of the Civil Damages Act, Minn.Stat. § 340.95-.951 (1980), are violative of equal protection. However, I would go further and hold that the entire Act is constitutionally infirm because the Legislature’s failure to impose liability under the Act upon 3.2 beer vendors is without a rational basis. The reasoning of the majority opinion clearly supports this proposed result although the majority concludes that only a portion of the Act is invalid.
We have never directly confronted an equal protection challenge to the Civil Damages Act. We are now faced with that issue and I believe we should address it squarely.
The majority examines the history of the Civil Damages Act in detail and concludes that 3.2 beer was defined as “non-intoxicating” by the 1933 Minnesota Legislature so that vendors could sell 3.2 beer without violating prohibition. Notwithstanding the validity of the majority opinion’s historical analysis, I respectfully believe that this discussion does not help us resolve the issue at bar.
The crux of the problem before us is that the statute on its face creates a classification between two types of liquor vendors; vendors of “intoxicating liquor” and vendors of 3.2 beer. “Intoxicating liquor” vendors are subject to liability under the Act while 3.2 beer vendors who engage in the *282same conduct are not. Consequently, victims of illegal sales of “intoxicating liquor” and those injured by sales of 3.2 beer are placed in different classifications.
The majority correctly sets forth the appropriate standard of review but does not go far enough in applying it. Legislative classifications must apply uniformly to all similarly situated persons and the distinctions which separate those who are included within a classification and those who are not must be natural and reasonable. Schwartz v. Talmo, 295 Minn. 356, 362, 205 N.W.2d 318, 322 appeal dismissed, 414 U.S. 803, 94 S.Ct. 130, 38 L.Ed.2d 39 (1973); See Guilliams v. Commissioner of Revenue, 299 N.W.2d 138, 142 (Minn.1980). The majority concludes that the statute does not meet this test, noting that “[t]he classifications (sale of 3.2 beer versus sale of intoxicating liquor) are not genuine or relevant to the purpose of the law”, that “the distinctions which separate those included within the classification from those excluded are manifestly arbitrary and fanciful”, and that “there is no rational basis for distinguishing between persons injured by those intoxicated from 3.2 beer and those intoxicated as a result of consuming stronger liquor.” It is further recognized that “the legislative distinctions between 3.2 beer and intoxicating liquor are based, at best, upon historical anachronisms.” In the face of these statements, the majority proposes to leave the Act intact and selectively strikes only the notice-of-claim and statute of limitations provisions.
The majority forcefully asserts that “the classifications at issue * * * rest on a legal foundation less sound than those in Kossak and Pacific Indemnity," where disparate statutes of limitations favoring certain persons were declared violative of equal protection. In my opinion, the majority reads these cases too narrowly, overlooking the underlying rationale for striking the statutes there at issue. The statutes in Kossak and Pacific Indemnity were declared unconstitutional because the legislative classifications were without a rational basis.
I submit that if the legislative classifications created between liquor vendors and their respective victims have no rational basis, the Civil Damages Act as a whole is repugnant to the equal protection clause.
Respondents argue that the disparity in treatment accorded the two types of liquor vendors exists by virtue of our decision in Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973). The fact that a Trail negligence cause of action is available against a 3.2 beer vendor is, in my view, irrelevant to the resolution of the constitutional issue. The Civil Damages Act is nevertheless defective on its face, because no statutory liability is imposed upon vendors of 3.2 beer.
The availability of a common law action in situations in which the Civil Damages Act is inapplicable does, however, accentuate the need to strike the Act in its entirety. Both the majority and the dissent note a number of “anomalies and absurdities” inherent in continued recognition of two separate causes of action against liquor vendors who should, in my opinion, be subject to the same liability. Of these, the cap on damages of $250,000 in dramshop actions while damages are not so limited in Trail actions is the most blatant. Confusing problems are also evident with regard to the defenses available to a negligent 3.2 beer vendor and those which may be asserted by a dramshop vendor.1 As recognized by the majority, further problems in proof and evidence may arise in an action alleging both negligence and dramshop liability. These differences raise perplexing constitutional problems which are best solved by declaring that actions against all liquor vendors are to be governed by common principles and procedural requirements. Nullifying only the disparate statute of limitations and notice of claim requirement of the Civil Damages Act begs the issue and merely *283defers an ineluctable result: any distinction made between the liabilities of 3.2 beer and “intoxicating liquor” vendors or the rights of their respective victims are violative of equal protection. It is inevitable that challenges based on these and other potential disparities between a negligence cause of action and one brought pursuant to the Act will be before this court in the future. I see no reason to engage in piecemeal rulings when the result is eminently clear at this time.
I agree with the dissent that the solution lies in an amendment to the Civil Damages Act to include 3.2 beer in the Act’s definition of intoxicating liquor. However, I disagree that this court should sit in silence and await legislative action to remedy the problems inherent in that Act for a number of reasons. First, as Mr. Chief Justice Marshall noted in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), when an act is repugnant to the constitution it is the court’s duty to invalidate that law immediately. Any other result “would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory.” Id. at 177, 2 L.Ed. 60. Second, our oath of office compels us to strike down unconstitutional laws. Once we determine that a law is unconstitutional we would be remiss in our duty to merely request the Legislature to enact corrective legislation.
Third, I do not find relevant Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962), in which we refused to abrogate governmental tort immunity until after the next legislative session ended. That case involved a rule of substantive tort law created by this court, not the constitutionality of a state law. Additionally, while courts traditionally follow a general rule of retroactive ruling, see e. g., Hoven v. McCarthy Brothers Co., 163 Minn. 339, 341, 204 N.W. 29, 30 (1925), Spanel fell within an exception to that rule. See Note, The Retroactivity of Minnesota Supreme Court Personal Injury Decisions, 6 Wm. Mitchell L.Rev. 179, 185-88 (1980). When the abolition of a tort immunity is involved, courts usually apply their rulings prospectively because litigants have justifiably relied on prior case law. Id. In Spa-nel, abrogating the doctrine of tort immunity allowed governmental entities sufficient time to procure insurance.
No similar inequity exists in the instant cases to justify a prospective or tentative invalidation of the Civil Damages Act. Liquor vendors are not, by virtue of the proposed result, deprived of a substantive defense upon which they previously relied. This is not a case in which there has been a longstanding rule of immunity from suit; both types of liquor vendors are now liable to innocent third persons and commonly procure appropriate insurance.
Fourth, by prospectively declaring the unconstitutionality of the Civil Damages Act, the dissent ignores the policy of providing incentives for challenging unconstitutional laws and outmoded legal doctrines. Courts and commentators have long recognized that public policy should encourage litigants to challenge unconstitutional law and obsolete legal rules. See e. g., Li v. Yellow Cab Co., 13 Cal.3d 804, 829-830, 532 P.2d 1226, 1244, 119 Cal.Rptr. 858, 876 (1975) (doctrine of contributory negligence abrogated and new rule of comparative negligence given retroactive application); Mishkin, Foreward: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 60—62 (1965).
Finally, the dissent in effect would have this court issue advisory opinions. This court has long had a policy of refusing to provide legal opinions in advisory form.
Although I recognize that the Legislature “may implement [its] program step by step * * * adopting regulations that only partially ameliorate a perceived evil and referring complete elimination of the evil to future regulations,” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 457, 101 S.Ct. 715, 725, 66 L.Ed.2d 659 (1981), the Civil Damages Act has been in force since 1911 and has been amended numerous times since its enactment. The Legislature has *284had the opportunity to correct the constitutional infirmities of the Act and has not done so.
Where the Civil Damages Act was applicable, we have consistently declined to find a common law action against a liquor vendor because of legislative pre-emption in the area. Blamey v. Brown, 270 N.W.2d 884, 890 (Minn.1978); Fitzer v. Bloom, 253 N.W.2d 395, 403 (Minn.1977). Striking the statute would obviate that impediment. I would hold that actions against both 3.2 beer vendors and “intoxicating liquor” vendors are to be governed by the common law principles established by Trail and its progeny until such time as the Legislature enacts a statute which passes constitutional muster.
. In 1977, the Legislature amended the Civil Damages Act to provide that our comparative fault statute, Minn.Stat. § 604.01 (1980), was applicable in dramshop actions unless the action is brought by a dependent of an intoxicated person. Act of June 2, 1977, ch. 390, § 2, 1977 Minn. Laws 888 (current version at Minn. Stat. § 340.95 (1980)).