dissenting:
The appeal involves the rule of governmental immunity from tort liability. The claimant (appellant) asks that we abolish the doctrine by judicial act, asserting all of the reasons expressed in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, and particularly relying upon the recent decision of this court in Rice v. Clark County, 79 Nev. 253, 382 P.2d 605. The state’s (respondent’s) opposing view is founded on two premises. Initially it argues that Nev. Const, art. 4, § 22 (“Provision may be made by general law for bringing suit against the state as to all liabilities originating after the adoption of this constitution.”) precludes a judicial abrogation of the immunity doctrine and, second, it contends that the principle of stare decisis should control in a suit against the state. Taylor v. State and Univ., 73 Nev. 151, 311 P.2d 733; Hill v. Thomas, 70 Nev. 389, 270 P.2d 179.
It seems to me that the rule of governmental immunity from tort liability should be abolished in this state once and for all. In expressing this view, I am cognizant of the need to practice judicial restraint in areas reserved for legislative control. However, for the reasons *79hereinafter stated, I do not believe that the constitutional provision was intended to, nor does it, preclude judicial intervention in this area. Nor should stare decisis give us concern when the rule of law under consideration is out of step with the society in which we live. The desire for predictability in the law (which is, perhaps, the best reason for a judicial decision to be controlled by precedent) must, in this instance, bow to the reasonable demand that injured people be given an equal opportunity to ask for and receive justice in our courts without penalty due to the tortfeasor’s identity.
Adherence to stare decisis in dealing with the immunity of the state and its political subdivisions is a tribute to confusion and not to certainty. Many proofs are available. Hill v. Thomas, supra, held that the enactment of the bond trust fund act was an implied consent by the state to suit. The claimant was, therefore, not precluded from suing the state as surety on an official bond given for his benefit. Yet, in Taylor v. State and Univ., supra, appropriation of money to the University, some of it being used to purchase liability insurance, was deemed not to be an implied consent to suit. There the claimant was barred. It strikes one as strange that the state may be liable if there is a surety bond to indemnify the plaintiff, but immune if there is merely an insurance policy purchased expressly for his benefit.
The pattern of inconsistency is quite noticeable in the court’s treatment of the public road cases. A city, having exclusive control of its streets, may be liable for the breach of a common law duty to make them safe for travel, if the legislative act (city charter) does not expressly exempt the city from liability. Pardini v. City of Reno, 50 Nev. 392, 263 P. 768; McDonough v. The Mayor and Aldermen of Virginia City, 6 Nev. 90; Barnes v. City of Carson, 33 Nev. 17, 110 P. 3. Recently, liability was extended to embrace the county. Rice v. Clark County, 79 Nev. 253, 382 P.2d 605. The majority opinion in today’s case precludes state liability. The rule of governmental immunity from tort liability, and the concept of a governmental (as distinguished from a proprietary) function is involved whether suit be *80brought against city, county or state. The rule was not discussed in the city cases cited; it was rejected in Rice v. Clark County, supra, and allowed to intervene and control today’s case.
Particularly puzzling is the scope of a county hospital’s liability in tort. McKay v. Washoe General Hospital, 55 Nev. 336, 33 P.2d 755, 36 P.2d 78, and Bloom v. So. Nev. Hospital, 70 Nev. 533, 275 P.2d 885, tell us that county hospitals, created pursuant to state statute, are without legal entity and not subject to suit. McKay v. Washoe General Hospital, supra, did not mention the immunity defense. Bloom v. So. Nev. Hospital, supra, did, but found it unnecessary to decide the point. Then, in 1957 Hughey v. Washoe County, 73 Nev. 22, 23, 306 P.2d 1115, came before the court. It was a tort action by one who had fallen in the county hospital. Relying on McKay v. Washoe General Hospital, supra, and Bloom v. So. Nev. Hospital, supra, the trial court dismissed the case. The Supreme Court of Nevada reversed. It held that the suit could be maintained against the county, even though not maintainable against the hospital. Again, the court did not reach the immunity question, stating, “Freedom of the county from liability for any other reason is a question which has not yet been reached in these proceedings.” Placing these cases side by side for study is a rare experience. By statute the exclusive control of the hospital is vested in its board of trustees. It cannot be sued. However, the county which has no control over the hospital operation may be sued! One can only speculate as to what might have occurred had the Hughey v. Washoe County case, supra, come before the court a second time on the issue of governmental immunity as a defense.
The cases which I have mentioned, together with Gurley v. Brown, 65 Nev. 245, 193 P.2d 693, and Granite Oil v. Douglas County, 67 Nev. 388, 219 P.2d 191, 16 A.L.R.2d 1069, constitute the precedent in Nevada. There may be one or two that I have not found. It is most difficult, if not impossible, to square the results of the decided cases in this area of the law. It appears that “adherence to precedent” is a lame reason for requesting an affirmance in this case.
*81I turn now to discuss art. 4, § 22 of the Nev. Const. The constitution refers to “suits against the state.” It should have equal application to a suit against a county. It is a political subdivision of the state, exercising only those powers granted by its parent. Yet, neither Rice v. Clark County, supra, nor Granite Oil v. Douglas County, supra, discussed the point, perhaps because it was not raised. Rice v. Clark County, supra, concerned county liability in the performance of a governmental function, the maintenance of a county road. Granite Oil v. Douglas County, supra, involved the county’s liability acting proprietarily in the operation of an airport. Suit was allowed in each instance. If the constitutional provision has the substantive significance given it in Hill v. Thomas, supra, Taylor v. State and Univ., supra, and the case at hand, it is exceedingly difficult to reconcile the results of these decisions with those reached in the county cases. I believe that the constitutional provision must have a different meaning and purpose.
As I read it, that provision does not itself create an immunity from suit. It does no more than permit the legislature to prescribe a procedure for suit. Perhaps there are situations (budgeting, investigation) concerning which the legislature would desire to have specific procedural requirements in addition to those involved in an ordinary action at law. If the legislature chooses to impose such additional requirements, the constitutional mandate is that they have general application throughout the state and not be of a local nature. Indeed, the legislature has, by general law, established additional procedural requirements for an action against a city (NRS 268.020; Hart v. City of Las Vegas, 73 Nev. 29, 307 P.2d 617; City of Reno v. Fields, 69 Nev. 300, 250 P.2d 140) or a county (NRS 244.245, 244.250; Rice v. Clark County, supra), which requirements are applicable to a claim for damages sounding in tort. And, of course, the legislature has passed a general law designating the procedure to be followed in a suit against the state for services or advances (NRS 41.010-41.030).
Notwithstanding the legislative enactment of a general law establishing the additional procedural requirements for suit, the defense of governmental immunity *82has invariably been raised by a political subdivision when sued in tort, thus illustrating quite plainly that the immunity rule is not related to the constitutional section under consideration. Rice v. Clark County, supra; Granite Oil v. Douglas County, supra. It therefore seems to me that the defense of sovereign immunity is not to be found in Nev. Const. art. 4, § 22. As stated by way of dictum in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 217, 11 Cal.Rptr. 89, 92, 359 P.2d 457, 460, while passing comment upon a similar provision of the California constitution, “If the section has any substantive significance it would appear to be a waiver of immunity. On its face it seems to say that the state may be held liable when suits are brought against it in accordance with a legislatively prescribed procedure.” The defense of governmental immunity from tort liability is a relic of the common law quite unrelated to the constitutional provision in question. Having been judicially created, it may be judicially abolished. Rice v. Clark County, supra.
The majority opinion in Rice v. Clark County, supra, did not mention the earlier cases of McKay v. Washoe General Hospital, supra; Gurley v. Brown, supra; Hill v. Thomas, supra; and Taylor v. State and Univ., supra. Each of them contained pointed language to the effect that the legislature alone has the power to waive immunity. Though none of those cases were suits against the county, I nonetheless can only read Rice v. Clark County, supra, as overruling by necessary implication the earlier expressions contained in those opinions. I can find neither rhyme, reason nor consistency, if a different meaning is given the Rice v. Clark County opinion, supra.
It is, of course, true that the legislature has not executed its constitutional authority to prescribe the procedure for a tort action against the state. However, that phase of the total problem of immunity presented no difficulty to the court in deciding Hill v. Thomas, supra. There the suit was against the state as surety on an official bond given under the bond trust fund act. The court read art. 4, § 22 of the constitution to mean that *83the state must consent to suit before one may be maintained (which construction is contrary to mine). It held that, by enacting the bond trust fund act, the state had by implication (not expressly) consented to suit. It is of importance to note, however, that the bond trust fund act did not provide a procedure for suit against the state. As to this aspect of the case, the court said [70 Nev. 389, 400, 270 P.2d 179, 184], “It should not be said, however, that failure to provide a specific procedure results in depriving such person of his right to recover. The procedure theretofore existing was resort to the courts by an action at law.” So it is in this case. The absence of a specific procedure for processing a tort claim against the state will not preclude a claimant from court relief.1
For the reasons mentioned, I conclude:
1. Nev. Const, art. 4, § 22, applies not only to suits against the state, but also to suits against its political subdivisions.
2. Nev. Const, art. 4, § 22, neither creates governmental immunity from tort liability, nor requires a consent to suit. It merely grants permissive authority to the legislature to prescribe additional procedural requirements for suit, if done by a statute having general application throughout the state.
3. The failure of the legislature to designate the procedure for a suit in tort against the state does not preclude court relief.
4. Governmental immunity from tort liability is a relic of the common law, judicially created, and may be judicially abolished.
5. That the recent decision in Rice v. Clark County, supra, by necessary implication, overruled prior opinions *84sustaining the defense of governmental immunity and should be followed here.
I would reverse the ruling below and permit the case to be tried on its merits.
There appears to be no statute or rule designating wbo shall be served with process in a suit against the state, other than in ail action for services or advances authorized by law. NRS 41.010. NRCP 4(d) (5) expressly provides for service of process in an action against a county, city or town. The state is not mentioned. This point was not raised in either Hill v. Thomas, supra, or in the ease before us. In each instance the state appeared generally, pleading governmental immunity as an affirmative defense.