(dissenting). I cannot agree with
the majority’s disposition of this case.
The plaintiff commenced this action to recover for personal injuries sustained while he was at a garbage dump operated by the defendant. He obtained a jury verdict.
The defendant, a municipal corporation, claimed immunity under recently enacted PA 1964, No 170.1 Section 7 of this act2 immunizes governmental agencies from tort liability when engaged in the exercise and discharge of a governmental function3 with exceptions not here pertinent (see footnotes 10 and 19).
The plaintiff challenged the defendant’s claim of immunity on the ground that the act violates the one-object-expressed-in-its-title provision of Michigan’s constitution. Const 1963, art 4, § 244
The trial judge and the majority of this Court have adopted the plaintiff’s argument5 Section 7 *127of this act is held to he unconstitutional because it provides that governmental agencies “shall be immune from tort liability” when discharging a governmental function whereas the title of the act6 more narrowly states that it is an act to make uniform the liability of governmental agencies for *128injuries to property and persons caused by negligence. (Emphasis supplied.)
My colleagues point out that there are intentional as well as negligent torts. The term “tort,” in its generally accepted meaning, does, of course, include liability for wrongs caused by acts or omissions that are not negligent, with the result, in this analysis, that § 7 of the act purports to exempt governmental agencies from liability for wrongs not described in the act’s title. But it is also commonplace to refer to liability for negligence as tort liability and, thus, the phrase “tort liability” is, in many every day usages, synonymous with negligence liability.
Governmental immunity from liability for tortiously caused personal injury and property damage is contrary to the spirit of the times and is slowly being whittled away by judicial decision and legislative action across the country.7 However, the Michigan legislature opted for a codification of this immunity when, in 1964, it passed this act.
It is our duty to sustain the act’s constitutionality if we can and, to that end, the language used should, if possible, be construed to preserve its constitutionality. The legislature clearly intended to deal with at least that which is headnoted in the title, namely, the liability of governmental agencies for injuries to property and persons caused by negligence. It is, therefore, not judicial legislation to read the words “tort liability” in the first sentence of § 7 as moaning liability for negligence; that much *129the legislature clearly intended. Indeed, not to so read these words judicially defeats the legislative purpose.
In several cases where the Michigan Supreme Court was confronted with the claim that the body of a statute exceeded its title the Court adopted a narrow construction of the statute so that its content would not exceed its title.8 That is what we can appropriately do and, having in mind our duty to preserve the act’s constitutionality, that is what we should do in this case.
Limiting the first sentence of § 7 to liability for negligence does not create any incongruity in the act read as a whole:
Section 19 contains definitions; none relate to the issues before us.
Sections 2 through 610 and § 811 concern governmental liability for failure to exercise due care, i.e., negligence.12
*130The second sentence of § 7 (see footnote 2) states a rule of construction. Unlike the first sentence of § 7, the second sentence does not purport to change existing law.13
*131Section. 9 authorizes governmental agencies to purchase “liability insurance” to protect governmental agencies and employees “against loss on account of any judgment secured against it, or them, arising out of any claim for personal injury or property damage.”14 There is no need to limit § 9 to the purchase of insurance covering governmental agency liability for negligence just because the first sentence of § 7 is construed to exempt only from liability for negligence. The purpose of insurance is to protect against liability, not nonliability. Furthermore, the second sentence of § 9,15 providing that the purchase of insurance will not constitute “a waiver of any defense otherwise available to the governmental agency in the defense of the claim,” suggests that insurance may be purchased in areas of doubtful liability16
Section 10 states the procedure for bringing claims against the State and § 11 concerns limitations of action17
Section 12 provides that “Claims under this act are subject to all of the defenses available to claims *132sounding in tort brought against private persons.”18 (Emphasis supplied.) This section does not negative the interpretation of the first sentence of § 7 which I advocate. Clearly, a defense that under pre-act 170 law would only be available in an action for a particular intentional or extrahazardous tort could not, by reason of § 12, be used to defend against an action for negligence under §§ 2 or 6 (defective condition of a highway or public building) or under § 5 (negligent operation of an automobile). Without regard to whether the first sentence of § 7 is limited to liability for negligence, only those defenses available in negligence actions can be asserted where the gist of the action is negligence.
Section 13 eliminates the State’s immunity from liability for damages arising out of the performance of a proprietary function,19 a subject matter expressly dealt with in the title (see footnote 6).
If the decision of our Court in this case held, as I would hold, that the first sentence of § 7 exempts the defendant from liability for negligence, it would then be necessary for us to consider and decide whether the acts and omissions charged against the defendant are nevertheless actionable. Plaintiff contends that even if the first sentence of § 7 is read as exempting governmental agencies from liability for negligence, it may still recover because its amended complaint was grounded in nuisance and not in negligence. In response the defendant asserts that the basis of the plaintiff’s nuisance action is the alleged failure of the defendants to have exercised due care, i.e., negligence and, thus, however the action is denominated, the plaintiff cannot recover.20
*133The common law of governmental immunity did not insulate governments from the classic nuisance action,21 that is, an action for invasion of an interest in land.22 Recovery from governmental defendants was also allowed for personal injuries suffered as a result of the defendant’s “direct act or trespass” upon the plaintiff’s lands23 or upon the public way.24 There is good reason to believe that the Michigan legislature did not by act 170 intend to create immunity in an area of the law where it did not exist before decision in Williams v. City of Detroit (1961), 364 Mich 231.25 If that be the correct view, governmental agencies are still liable for the commission of classic nuisances or so-called direct trespasses causing loss suffered on or affecting a defendant’s land or on the public way without regard to whether the act or omission causing the nuisance is intentional or negligent.
*134Garbage dumps have been held to be nuisances.26 The plaintiff points out that the defendant’s garbage dump is a place to which the public is invited and also relies on cases allowing recovery on the theory of nuisance where personal injuries were suffered on the premises of the alleged wrongdoer.27 Additionally, there is a substantial question in this case whether the acts or omissions charged against the defendant should, as the plaintiff strenuously contends, be regarded as constituting something more than ordinary negligence, i.e., reckless, intentional or abnormally dangerous conduct.
To reconcile these at once both disparate and overlapping theories of tort liability and the superimposed legislative purpose to exempt governmental agencies from liability for negligence would involve an excursion into what Dean Prosser warns is an “impenetrable jungle.”28 Having in mind that this dissenting opinion is not precedential, I will heed his warning.
MOLA §§ 691.1401-691.1415 (Stat Ann 1968 Cum Supp SS 3.966 [101] — 3.966[115]).
“See. 7. Exeept as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all eases wherein said governmental agency is engaged in the exercise and discharge of a governmental function. Except as otherwise provided herein, this aet shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is hereby affirmed.” MCLA § 691.1407 (Stat Ann 1968 Cum Supp § 3.996[107]).
It has not been asserted that the operation of the city dump constituted the exercise of a proprietary (see footnote 16) rather than a governmental function. See Curry v. City of Highland Park (1928), 242 Mich 614.
“No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.”
I agree with the majority in rejecting the defendant’s contention that the first sentence of art 4, § 24, as well as the second sentence, is modified by the following clause added to the second sentence in the 1963 Constitution: “as determined by its total content and not alone by its title.”
The convention comment states , that the 1963 Constitution was “a revision combining parts of §§21 and 22, art 5, of the present [1908] *127Constitution. No substantive change is involved.” See United States Gypsum Company v. Department of Revenue (1961), 363 Mich 548 (majority opinion of Edwakds, J. and dissenting opinion of Black, J.).
The seeond sentence of present § 24 expresses a different concept than the first sentence of that section, a difference which was entirely clear when the two sentences were in two different sections of the Constitution but which now may have been somewhat obscured by the inclusion of both concepts in the same section. A function of the first sentence is to alert the members of the legislature and the publie to the fact that legislation concerning a particular object has been introduced. The purpose of a bill may, however, be narrower than the object expressed in its title. The function of the second sentence is to prevent a ehange in purpose after introduction.
The first sentence concerns laws. The seeond sentence concerns hills. Even if the original purpose of a bill as introduced is not altered or amended in its passage through the house it is unconstitutional if its object is not expressed in its title. A construction of the language added by the 1963 Constitution to the second sentence which would allow the total content of a law to be considered in determining whether its object has been expressed in its title would make altogether superfluous the first sentence, thereby effecting (contrary to the convention comment) a fundamental substantive change. If we could look at the total content of a law in deciding whether that content is expressed in its title, no law could fail to express its object in its title as so supplemented by the “total content.” Clearly the “total content” cannot be considered in passing on a claim that the law violates the requirement that the object of a law must be expressed in the title.
Only where it is asserted that the original purpose of a bill has been changed by alteration or amendment after its introduction and before passage may reference be made to the total content.
The title of PA 1964, No 170, reads:
“An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in a governmental function, for injuries to property and persons caused by negligence; to define and limit such liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of such liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; and to repeal certain acts and parts of acts.”
Sovereign Immunity and Public, Responsibility, U 111 L F 795, particularly pp 979, 980 (1966); Littlefield, Stare Decisis, Prospective Overruling, and Judicial Legislation in the Context of Sovereign Immunity, 9 St Louis U L J 56 (1964); James G-. Hamill, The Changing Concept of Sovereign Immunity, 13 Defense L J 653 (1964); also authorities mentioned in footnote 28. A comprehensive scholarly critique of the doctrine will be found in Borehard, Governmental Liability in Tort (pts 1 — 3), 34 Yale L J 1, 129, 229 (1924, 1925); Borehard, Governmental Responsibility in Tort (pts 1-3), 36 Yale L J 1, 757, 1039 (1926, 1927).
Arnold v. Ogle Construction Company (1952), 333 Mich 652, 663; Scott v. Alsar Company (1953), 336 Mich 532, 539; Booth v. Eddy (1878), 38 Mich 245; Rogers v. Kent Board of County Road Commissioners (on rehearing) (1948), 319 Mich 661, 668, 673. Cf. People v. Smith (1929), 246 Mich 393, 397; American Baptist Missionary Union v. Peck (1862), 10 Mich 341, 348; Bates v. Nelson (1882), 49 Mich 459, 462.
MOLA § 691.1401 (Stat Ann 1968 Cum Supp § 3.996[101]).
Section 2 provides that “each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.” MCLA § 691.1402 (Stat Ann 1968 Cum Supp § 3.996 [102]). Section 3 states that no governmental agency shall be liable for injuries or damages caused by “defective highways” unless the governmental agency knew or in the exercise of reasonable diligence should have known of the existence of the defect and had reasonable time to repair it before the injury took plaeo. MCLA § 691.1403 (Stat Ann 1968 Cum Supp § 3.996[103]). Section 4 requires a written notice within 60 days from the time of the injury as a condition to any recovery for injury sustained by reason of any “defective highway.” MCLA § 691.1404 (Stat Ann 1968 Cum Supp § 3.996[104]). Section 5 provides that governmental agencies shall be liable for injuries and damages resulting from the “negligent operation” by governmental employees of a motor vehicle owned by the governmental agency. MCLA § 691-.1405 (Stat Ann 1968 Cum Supp § 3.996[105]). Section 6 imposes *130upon governmental agencies the obligation to repair and maintain publie buildings under their control and open for use by members of the publie and provides that governmental agencies are liable for injury and damage resulting from “dangerous or defective condition” of a publie building if the agency had actual or constructive knowledge of the defeet and for a reasonable time after acquiring knowledge failed to remedy the condition or to take action “reasonably necessary” to protect the public against the condition. MCLA § 691.1406 (Stat Ann 1968 Cum Supp § 3.996 [106]).
Section 8 provides that governmental agencies are authorized to engage attorneys to represent officers or employees of a govern? mental agency in actions for injury “caused by negligence” of the officer or employee while in the course of his employment and while acting within the seope of his authority. The second sentence of § 8 provides that the governmental agency may indemnify the officer or employee as to a judgment for damages awarded against him "as a result of any eivil action for personal injuries or property damage.” Clearly the second sentence could well be construed as limited to that which is implied in the first sentence, i.e., actions for personal injuries or property damage “caused by negligence.” MCLA § 691.1408 (Stat Ann 1968 Cum Supp § 3.996‘ [108]).
The language of § § 2 through 4 parallels CL 1948, § 242.1 et seq., which was repealed by § 14 of act 170 (MCLA § 691.1414 [Stat Ann 1968 Cum Supp § 3.996(114)]). Section 6 follows the format of sections 2 through 4. Time does not permit an examination of the large number of cases decided under CL 1948, § 242.1 et seq. or under companion and still operative CL 1948, § 224.21 (Stat Ann 1958 Eev § 9.121) but it would appear that the gist of the former statutory action for injury caused by a defective highway was negligence. The cases are collected in volumes 6 and 6A, CL 1948 (Case Annotations) §§ 224.21, 242.1 et seq.; see Fulton Iron Engine Works v. Township of Kimball (1883), 52 Mich 146; Goodrich v. County of Kalamazoo (1943), 304 Mich 442; Township of Medina v. Perkins (1882), 48 Mich 67, 72; Seeger v. Village of Kart (1910), 160 Mich 134; Malloy v. Township of Walker (1889), 77 Mich 448.
It is not unknown for a draftsman to repeat a word in the same section and intend two different meanings. See Guastello v. Citizens Mutual Insurance Company (1968), 11 Mich App 120, 136. Thus, even if tort liability, as that term is used in the second sentence of § 7, means intentional and other tort liability as well as negligent tort liability, we are not inhibited from construing the first sentence of § 7 so as to preserve the constitutionality of the act.
And, if the words “tort liability” as used in the second sentence are also read as meaning only liability for negligence this would not necessarily preclude a judicial interpretation that act 170 does not, except as therein expressly provided, modify or restrict the State’s pre-act 170 tort immunity. See McDowell v. State Highway Commis*131sioner (1961), 365 Mich 268; Myers v. Genesee County Auditor (1965), 375 Mich 1, 8. At the time of the approval of act 170, the status of the State’s immunity differed considerably from that of other governmental agencies such as municipal corporations (Williams v. City of Detroit [1961], 364 Mich 231), counties, townships and villages (Myers v. Genesee County Auditor [1965], 375 Mich 1).
MOLA § 691.1409 (Stat Ann 1968 Cum Supp § 3.996[109]).
MCLA § 691.1409 (Stat Ann 1968 Cum Supp § 3.996[109]).
Moreover, municipal corporations and other governmental agencies have been liable for a long time by judicial decision for tortious eonduet arising out of the performance of a proprietary function. Myers v. Genesee County Auditor, supra, p 9; Dohm v. Township of Acme (1958), 354 Mich 447. There is nothing in act 170 concerning such liability; but see § 13 (MOLA § 691.1413 [Stat Ann 1968 Cum Supp § 3.996(113)]) which eliminates the State’s liability for injuries arising out of its performance of a proprietary function. Nevertheless, § 9 should and no doubt will be interpreted to permit purchase by governmental agencies other than the State of liability insurance for protection against tortious liability arising from the discharge of a proprietary function.
MCLA §§ 691.1410, 691.1411 (Stat Ann 1968 Cum Supp § § 3-.996[110], 3.996[111]).
MOLA §691.1412 (Stat Ann 1968 Cum Snpp § 3.996[112J).
MCLA §691.1413 (Stat Aim 1968 Cum Supp § 3.996[113]).
Cf. Royston v. City of Charlotte (1936), 278 Mich 255, 260; *133Denny v. Garavaglia (1952), 333 Mich 317, 329-332; Dahl v. Glover (1956), 344 Mich 639, 644; Mechay v. City of Detroit (1961), 364 Mich 576, 584 (Carr, J., dissenting); Buckeye Union Fire Insurance Company v. State of Michigan (1968), 13 Mich App 498, 503.
Ashley v. City of Port Huron (1877), 35 Mich 296; Northwest Home Owners Ass’n v. City of Detroit (1941), 298 Mich 622; Attorney General, ex rel. Township of Wyoming v. City of Grand Rapids (1913), 175 Mich 503, 534.
Generally, see Restatement of Torts, Second, Tentative Draft No 15 (1969), § 821D.
It has been said that “although there has been occasional careless usage of 'nuisance’ to include almost anything unpleasant, harmful or disagreeable, it has no proper application in the law other than to” an invasion of rights common to all members of the public (public nuisance) or of a private interest in the use and enjoyment of land (private nuisance) and that the latter action “is always a tort against land, and the plaintiff’s action must always be founded upon his interest in the land.” Restatement of Torts, Second, Tentative Draft No 15 (1969), § 821A, pp 10, 11. See Prosser, Law of Torts (3d ed), § 87, pp 593, 594, and also cases cited in footnote 28.
Ferris v. Board of Education of Detroit (1899), 122 Mich 315, 318; Rogers v. Kent Board of County Road Commissioners (on Rehearing) (1948), 319 Mich 661, 668, 671; Herro v. Chippewa County Road Commissioners (1962), 368 Mich 263.
Pound v. Garden City School District (1964), 372 Mich 499. But, see McDonell v. Brozo (1938), 285 Mich 38, 43.
See Baum, Governmental Immunity in Michigan — Some Becent Developments, 44 Mich St B J 37, 44 (1965).
See Smith v. City of Ann Arbor (1942), 303 Mich 476, whore the operation of a dump was regulated by .an injunction. See, generally, 18 McQuillin, Municipal Corporations (3d ed rev) § 53.50, p 262.
Bluemer v. Saginaw Central Oil & Gas Service, Inc. (1959), 356 Mich 399, 410-416; Munson v. County of Menominee (1963), 371 Mich 504, 515. But see Pound v. Garden City School District, supra, p 502; Royston v. City of Charlotte, supra; Watson v. School District of the City of Bay City (1949), 324 Mich 1, 13 (Dethmers, J.) ; Daniels v. Board of Education of City of Grand Rapids (1916), 191 Mich 339, 355. Cf. Awad v. McColgan (1959), 357 Mich 386.
Prosser, Law of Torts (3d ed), § 87, p 592; similarly see Awad v. McColgan, supra.
See Prosser, Law of Torts (3d ed), § 125, pp 1009, 1010, n 29-32, discussing the “nuisance” exception to governmental immunity, also 2 Harper and James, the Law of Torts, § 29.6, pp 1626, 1627, n 46, 47; 18 McQuillin, Municipal Corporations (3d ed rev), §§ 53.47-53.50 a, 53.112; Mechay v. City of Detroit, supra; Watson v. School District of the City of Bay City, supra; Daniels v. Board of Education of City of Grand Rapids, supra; Williams v. Primary School District #3, Green Township (1966), 3 Mich App 468; Buckeye Union Fire Insurance Company v. State of Michigan, supra.