(dissenting).
The majority says the legislature is responsible for the inequality of treatment between victims of 3.2 beer sales and victims of sales of more potent intoxicating liquor. This is because the legislature excluded 3.2 beer from the definition of intoxicating liquor in the Civil Damages Act.
Undeniably, a person can get just as intoxicated on 3.2 beer as on more potent liquor. The majority opinion traces the history of how 3.2 beer came to be regulated differently, but this does not fully explain why the legislature still did not choose to include 3.2 vendors in the Civil Damages Act after 1933. Since the Civil Damages Act was considered to be in derogation of the common law, which afforded no remedy against any liquor vendor, and since the Act was deemed to be penal in nature, the legislature may have felt it would limit the penalty to vendors of more potent intoxicating liquor, where it felt the potential for abuse was greater. This would be consistent with the rationale then prevalent that dramshop liability “is only a means of punishment for having violated the law and is not based on a wrong done to the plaintiffs.” Beck v. Groe, 245 Minn. 28, 35, 70 N.W.2d 886, 892 (1955). The legislature’s discretion to deal selectively with conduct which it deems to pose the most significant societal problems is especially broad in the penal area. State v. Witt, 310 Minn. 211, 217, 245 N.W.2d 612, 615 (1976).
The common law, however, is not static. In recent years, this court, in construing the Civil Damages Act, has focused more on the wrong done to the injured, innocent third party, i. e., on the remedial aspects of the Act rather than its penal side. For example, in Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972), after observing the Act was both penal and remedial, we construed the Act to apply to social hosts; the legislature, then, by a 1977 legislative amendment curtailed this construction of the statute by deleting the phrase “giving” from the Act’s prohibitions.
Not until 1973, with Trail v. Christian, 298 Minn. 101, 213 N.W.2d 618 (1973), did we modify the longstanding common-law rule that no cause of action existed against the liquor vendor. In Trail we held a common-law negligence action existed against a 3.2 beer vendor outside the Civil Damages Act. With the advent of Trail, an equal-protection claim plainly surfaced. A person injured by an intoxicated person should not have his or her remedy measured by delicate distinction as to whether the intoxicated person had been drinking 3.2 or strong beer. But to say the two situations should not be treated differently does not offer much insight into which way the two situations should be treated.
Since 1973 we have had an anomalous situation, as illustrated by this case. A Trail cause of action expires after 6 years; a dramshop action after 1 year. The majority here opts for 6 years and declares the shorter limitation period unconstitutional. A Trail cause of action has no notice of claim as a condition precedent to suit; a *285dramshop action has a 120-day notice requirement. Again the majority opts for no notice and declares the notice provision of the dramshop action unconstitutional. A Trail cause of action permits unlimited damages, while a dramshop action has a limit of $250,000. This restriction on damages is not before us now, but it would seem, as the majority points out, this disparity will have to be met before long. Other differences between the two causes of action (such as in the proof required and the defenses available) remain for later appeals.
I think the solution is for the legislature to amend the Civil Damages Act to include 3.2 beer in the Act’s definition of intoxicating liquor. The amendment in 1977 to make dramshop actions subject to the comparative fault statute is indicative of the legislature’s awareness of the nonpenal aspects of the Act.
I would prefer we not disturb the Act until the legislature has had an opportunity to enact its own corrective measures. This seems preferable to piecemeal judicial legislation. The difficulty in attacking the problem piecemeal is illustrated here by the striking down of the 120-day notice provision. It would seem the legislature had reasonable grounds for the notice requirement. Unlike other tort actions, a dram-shop action has some unique features. The accident in which the third party is injured frequently occurs off the vendor’s premises, at a distant time and place, so that the vendor may be unaware of the potential claim against him or her and consequently unaware of the need to make a prompt investigation.
There is authority for the solution proposed here. In Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962), we refused to abrogate governmental tort immunity in that case but stated we would do so with respect to tort claims arising after the next legislature adjourned. More recently, in State by Powderly v. Erickson, 301 N.W.2d 324, 327 (Minn.1981), we extended an injunction against demolition of row houses “until such time as the present Minnesota legislature has had an opportunity to address the problems surfaced by this litigation.
We are dealing here, of course, with constitutional infirmities which should be corrected promptly. It is not clear, however, that the legislature was fully aware of the constitutional implications of Trail; at least those implications were not alluded to in that decision. Moreover, 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, 66 L.Ed.2d 659 (1981), quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516-2517, 49 L.Ed.2d 511 (1976). In view of the history of the Civil Damages Act and the complexity of the problems and conflicting interests involved, I would, for now, defer to legislative action.