dissenting:
I dissent.
Although the majority opinion limits its holding as follows: “We hold merely that sovereign immunity does not extend to counties so as to relieve them for their negligent operation of roads,” I am fearful that the clear effect of the opinion will ultimately be the complete abrogation by this court of sovereign immunity. It is frankly conceded by the majority opinion that the weight of authority sustains county immunity when the county is acting in its governmental capacity, and likewise, that the weight of authority establishes the rule that the maintenance of roads and highways by a county is a governmental function. In support of abandonment of the doctrine in its entirety, the opinion relies on Johnson v. City of Billings, 101 Mont. 462, 54 P.2d 579, Stone v. Arizona Highway Commission, 381 P.2d 107 (Ariz. 1963), and Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457. It might have added Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1; Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469; Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618; Spanel v. Mounds View School District, 118 N.W.2d 795 (Minn. 1962).
*262The reasons given in the opinions cited, attacking the governmental immunity doctrine are quite persuasive, and most certainly the language used is condemnatory in the extreme of the doctrine itself. Despite the fact that it is still the prevailing doctrine in the United States, including the State of Nevada, this dissent is primarily based, not on the ground that as a matter of public policy it should be retained (upon which I am presently expressing no opinion), but on the ground that an abrupt abrogation of the doctrine, if such action appears advisable as a matter of public policy, should be by way of legislative action.
On such phase of the subject the decisions relied upon are not so persuasive, and are not persuasive at all in view of the decisions of this court and the conditions in this state.
In Granite Oil v. Douglas County, 67 Nev. 888, 219 P.2d 191, 16 A.L.R.2d 1069, we placed counties within the same category as municipal corporations with reference to liability when acting in a proprietary capacity, and held that sovereign immunity did not exist when the county was acting in such capacity. We cited authorities from many states and quoted at length, with approval, from Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371, 376, in which the North Carolina court concurred in the view, that a county when acting in its governmental capacity cannot be sued without legislative sanction, and that if it were thought wise to exempt municipalities from tort liability in connection with operation of airports (the point involved in Granite Oil), such exemption “should be expressly granted by the Legislature, rather than by judicial decree.”
In Jensen v. Labor Council, 68 Nev. 269, 281, 229 P.2d 908, 913, we quoted Mr. Justice Frankfurter, speaking for the court in International Brotherhood v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995, to the effect that in the determination of matters of state policy “the clash of fact and opinion should be resolved by the democratic process and not by the judicial sword.” Mr. Justice Merrill in writing the opinion of this court noted *263that although this was said with respect to the interpretation of statutes or with respect to property or contract rights (Minnesota Mining Co. v. National Mining Co., 3 Wall. 332, 70 U.S. 332, 18 L.Ed. 42), it should likewise apply to torts.
In Springer v. Federated Church, 71 Nev. 177, 180, 283 P.2d 1071, 1072, dealing with immunity of charitable institutions, we were urged to overrule Bruce v. Young Men’s Christian Ass’n, 51 Nev. 372, 277 P. 798. While recognizing that “Plaintiff unquestionably has made out a strong and persuasive case for the abandonment of the beneficiary theory there announced,” we called attention to the fact that the overruling of the Bruce case would impose liability retroactively so that we must adhere to stare decisis, and referred to Jensen v. Labor Council, supra. We then said: “If an abandonment of the rule of the Bruce case is to be deemed desirable, the abandonment should be prospective rather than retroactive and the determination should be legislative rather than judicial.”
We should note here that the State of New York by statute abolished the sovereign immunity doctrine in 1929 (Laws of New York, 1929, ch. 467, § 1), and the State of Washington by statute abolished it in 1961 (Wash. Sess. Laws 1961, ch. 136).
Some comment is necessary on the opinions relied upon in support of the abrogation of the doctrine. The Montana case, Johnson v. City of Billings, supra, bitterly rejecting in the strongest terms the entire doctrine of sovereign immunity, then indicates that the entire opinion is dictum, using the following language: “Conceding, for the purpose of this opinion, that ordinarily the repair of * * * our highways constitutes a governmental function, it is not so with respect to the particular situation presented here,” a joint project of the city and county in the construction of a drain ditch for the benefit of both, “for which purpose the county might have been included in a drain district and treated in the same manner as a private corporation.” The opinion then referred to an earlier Montana case in which, in *264the construction work, “the city and county were each acting in the proprietary, and not in the governmental, capacity.”
In Williams v. City of Detroit, 864 Mich. 231, 111 N.W.2d 1, 9, 16, the single headnote informs us that the lower court’s holding of governmental immunity was affirmed, because the Supreme Court of Michigan was equally divided. The majority decided to abrogate the doctrine, but for future cases only, thus rendering that part of the majority opinion dictum. In the opinion of Mr. Justice Carr the following was said:
“We have cited herein a number of decisions from various States in support of the general principle that in dealing with the doctrine of governmental immunity from damages for tortious acts committed in carrying out governmental functions the legislature alone is clothed with authority to modify, extend or abrogate such doctrine. Additional quotations from such decisions to those above included herein would be merely cumulative and would extend this opinion to an unnecessary length. Unquestionably the overwhelming weight of authority supports the rule that has heretofore obtained in Michigan. Abrogation of that rule by this Court is in excess of the powers vested in the judiciary of the State by the Constitution adopted by the people acting in their sovereign capacity. The practical situation presented is that if the legislature deems it necessary so to do it may act to modify, or even abrogate entirely, the doctrine of governmental immunity. It is also true that the people acting under the initiative provisions of the State Constitution may accomplish a like result by legislation or by Constitutional amendment.”
On the opposite side the opinion by Mr. Justice Edwards said:
“All distinguished writers recommend corrective legislation, enacted with the adjusted detail carefully drawn statutes only can provide. So do I. But what is an appellate court to do when the legislative process remains comatose, year after year and decade after decade, the court meanwhile bearing the onus of what *265was done judicially during the dim yesterdays and maintained to this day by the self-stultifying fetish of stare decisis? Must the court continue to proclaim its impotence as legislators shrug their responsibility with a nod of risus sardonicus toward the error-guilty judicial branch? My answer is that this Court may relieve itself of past error by confessing and adjudging that error, and that it may at the same time force what all students of the problem have rightly sought for lo these many years; a statute relieving the injured citizen from the total burden of municipal negligence and still controlling the result so that municipal functions may be carried on without serious financial risk.” (Emphasis supplied.)
In the concurring opinion in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, 627, which approved both the abrogation of the sovereign immunity doctrine and that such abrogation should, in the absence of legislative action, be accomplished by the court, it was stated: “The legislature still has the last word and may restore the court abolished rule if it determines public policy so requires.” This kind of reasoning does not appear to be logical and merely indicates all the more strongly that such determination of policy should be made by the legislature in the first instance.
In Spanel v. Mounds View School District, 118 N.W.2d 795, 804 (Minn. 1962), the trial court dismissed an action on the ground of governmental immunity. The appellate court decided that the doctrine should be abrogated, but that this should operate in futuro and felt compelled to affirm the judgment of dismissal. In its closing paragraph it said: *266injury and other tort claims at the time of their occurrence in order that defendants may marshal and preserve whatever evidence is available for the proper conduct of their defense.” We see, then, that the action of the trial court dismissing the claim against the school district was affirmed, and the rule abrogating sovereign immunity made to apply only in futuro. This is the treatment recommended in many of the cases, in all of which cases, then, virtually the entire opinion becomes dictum. But this is simply legislating on matter not before the court. The power of this court on appeal is governed by NRS 2.110 reading: “Power of court on appeal. This court may reverse, affirm or modify the judgment or order appealed from as to any or all of the parties, and may, if necessary, order a new trial * * Following the dissenting opinion in State v. Corinblit, 72 Nev. 202, 298 P.2d 470, in which the majority of this court authorized neither a reversal nor an affirmance nor a remand but simply a “declaration of error,” the legislature amended NRS 177.060, by the addition of NRS 177.065, so as specifically to permit the state to appeal questions of law in criminal cases where such questions had become moot. So far as can be found, this is the only instance in which this court has been authorized to determine moot questions, in other words, advisory opinions. In some states, but not in Nevada, such course is specifically authorized.
*265“It may appear unfair to deprive the present claimant of his day in court. However, we are of the opinion it would work an even greater injustice to deny defendant and other units of government a defense on which they have had a right to rely. We believe that it is more equitable if they are permitted to plan in advance by securing liability insurance or by creating funds necessary for self-insurance. In addition, provision must be made for routinely and promptly investigating personal
*266Mr. Justice Schauer, with whom Mr. Justice McComb concurred, dissenting in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 359 P.2d 457, 463, convincingly spoke as follows:
“As recently as 1958 this court, in Vater v. County of Glenn, 49 Cal.2d 815, 820 [4], 323 P.2d 85 (per Chief Justice Gibson, with only Justice Carter dissenting), although it expressly recognized that there has been much learned criticism of the principle of governmental immunity, held that ‘abrogation or restriction of this doctrine is primarily a legislative matter.’ And Talley v.' Northern San Diego Hosp. Dist. (1953), 41 Cal.2d 33, 41 [15], 257 P.2d 22 (per Justice Shenk, with only *267Justice Carter dissenting), upon facts materially identical with those of the present case, held that ‘Whether the doctrine of sovereign immunity should be modified in this state is a legislative question.’ Also this court, in denying petitions for hearing after decisions of the District Courts of Appeal, has during the last decade frequently adhered to this view. [Citing many cases] But today’s majority apparently impatient with the Legislature’s failure to act as speedily and comprehensively as they believe it should, usurp the legislative function, refuse reasonable respect for the doctrine of stare decisis, and sweepingly announce (p. 90 of 11 Cal.Rptr., p. 458 of 359 P.2d) that ‘After a re-evaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust.’ ”
No satisfactory answer has been forthcoming to destroy this logical and convincing argument.
Mr. Justice Schauer’s reference to the fact that the legislature enacted various statutes concerning immunity during the period while California was holding that the abolishment of governmental immunity was a legislative function finds an echo in our own situation. After the City of Reno had been made defendant in many tort actions growing out of defective sidewalks, the legislature of this state by an act approved March 28, 1957, Stats. Nev. 1957, ch. 287, § 5, amended the charter of the City of Reno by providing that the construction, maintenance and repair of sidewalks, curbs and gutters within the city was declared to be a governmental function and that “no action, suit or proceeding shall be instituted or maintained against the City of Reno, its officers and agents for injuries to persons or property resulting from any failure on the part of the City of Reno, its officers and agents to construct, maintain or repair any sidewalk, curb or gutter within the city.”
The necessity for legislative action is further illustrated in an article entitled, “The work of the California Law Revision Commission on SOVEREIGN IMMUNITY,” by Thomas Stanton, of San Francisco’, 38 Calif. *268S.B.J. 177. The author first refers to Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 95, 359 P.2d 457, 463, in which it was determined in the majority opinion that the “doctrine of governmental immunity for torts for which its agents are liable has no place in our law.” The author notes that the decision in Muskopf “was preceded by an extended study by the Conference of the problem of sovereign immunity from liability, which culminated in 1956 in the approval of a committee report, recommending the adoption of a statute making public agencies in California liable for all torts committed by their employees within the scope of their employment.” (Emphasis supplied.) The action of the Conference then came before the governors, and the board referred it to the California Law Revision Commission. The California legislature in 1957 then authorized the Commission to make a study to determine whether the doctrine of sovereign or governmental immunity in California should be abolished or revised. The legislature then in 1961 enacted a statute suspending the effect of Muskopf until the 91st day after the adjournment of the 1963 session, contemplating that further legislative action would be taken prior to the deadline date, and it looked to the Commission for recommendations on the form of such legislation. The Commission devoted two years to the study, resulting in the submission to the legislature of a series of seven recommendations. These are too detailed for inclusion here, but clearly indicate the complex nature of the recommended legislation — a veritable code governing the ramifications of the proposed legislation, which in turn required amendment of other subsisting acts of the legislature — things that no court of last resort could possibly undertake. The factual matters above recited are taken entirely from Mr. Stanton’s article.
The matter of abrogating the rule of sovereign immunity is a classic example of a policy that should be determined, if at all, by the legislature. Single car accidents on the vast stretches of Nevada roads áre becoming more and more frequent. Small rocks on the roads may launch a hundred tort actions against the county. *269The policing of such roads and the furnishing of investigators would be a major financial problem, to say nothing of the clogging of the courts with jury actions, as well as the great increase of burdens upon the appellate court. The legislature, with its investigative machinery, should attack the problem and declare the policy under such rules as may seem proper.
But perhaps the most cogent reason against abrogating government immunity by court decree is the fact that it operates in praesenti rather than in futuro as would an act of the legislature. In the future all governmental agencies will appreciate the necessity of insuring against liability. Persons who have in the past abstained from filing actions against a county because of our declared rule of governmental immunity will, if not barred by limitations, be clothed with the right to sue governmental agencies which, relying on our declared doctrine, have not found it necessary to take out liability insurance.
I would affirm the judgment of the trial court in dismissing the action.