FATZER, C.J., concurring and dissenting:

As this nation commemorates its 200th year of freedom from a tyrannical monarch, the court today replaces the despotic mantle of "the King can do no wrong" on the shoulders of our state government. By the partial affirmance of Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66, the court validates the constitutionality of an irrational statutory scheme which causes serious inequality for persons in Kansas. The decision of the majority on rehearing renders the doctrine of governmental immunity no less anachronistic; it merely decides the Legislature has constitutionally reimposed this ancient creature of inequity. I must respectfully dissent.

To put the challenged statute, K.S.A. 46-901 et seq., into proper perspective, it is necessary to review the evolution of governmental immunity from tort liability in Kansas. The doctrine is of judicial origin, having first been recognized by this court in Eikenberry v. Township of Bazaar, 22 Kan. 389 [*556], 31 Am. Rep. 198 (1879). As originally applied, it conferred absolute immunity from liability for tortious conduct on all governmental entities absent their consent to suit.

From this beginning, the court gradually limited the doctrine's application to temper its harshness. Cities were made liable for injuries caused by street defects ( see, e.g., Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634; City of Topeka v. Tuttle, 5 Kan. 186 [*311]) and for creating and maintaining a nuisance. ( E.g., Adams v. City of Arkansas City, 188 Kan. 391, 362 P.2d 829.) School districts were also liable for activities constituting a nuisance. ( Neiman v. Common School District, 171 Kan. 237, 232 P.2d 422.) The most significant limitation on governmental immunity as applied to cities imposed liability for activities of a "proprietary" nature. ( See, e.g., Grover v. City of Manhattan, 198 Kan. 307, 424 P.2d 256; Hinze v. City of Iola, 92 Kan. 779, 142 P. 947.) By contrast, townships, counties, the state and its agencies were clothed with absolute immunity regardless of the function involved. ( See, McCoy v. Board of Regents, 196 Kan. 506, 413 P.2d 73; Caywood v. Board of County Commissioners, 194 Kan. 419, 399 P.2d 561; Eikenberry v. Township of Bazaar, supra.)

In 1969, before the court rendered its decision in Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21, different rules applied to different units of government, totally independent of the function involved. Carroll found this anomaly in the application of the governmental immunity doctrine indefensible and corrected it. Carroll extended the "proprietary" limitation on immunity, previously applied only to cities, to all levels of government thereby applying governmental immunity uniformly to all governmental entities and equalizing responsibility for tortious acts no matter what unit of government was involved.

The statute under attack in the instant case is the legislative response to Carroll.

I cannot accept the majority's characterization of K.S.A. 46-901 et seq., as a "comprehensive" statute. Only in the sense that it touches every level of government is it comprehensive. It is certainly not comprehensive in the sense of being a reasoned legislative application of governmental immunity in Kansas. The statute is an abrupt legislative reaction that perpetuates and reimposes the irrational classifications recognized and corrected in Carroll. Absolute immunity is reinstated for the state and its agencies, unless excepted by other statutes (K.S.A. 46-901); liability of all other governmental entities is to be determined under the rule of Carroll (K.S.A. 46-902). By enacting K.S.A. 46-901 et seq., the Legislature, for the first time, sanctioned the application of governmental immunity based on the nature of the governmental unit involved. Once again, redress for one tortiously harmed by government depends entirely on the identity of the tort-feasor.

The first question considered by the court on rehearing was:

"Where the court abrogates judicially imposed governmental immunity does the Legislature have the constitutional authority to reimpose governmental immunity?"

The majority answers this question in the affirmative "subject to the limitation that an unconstitutional act is of no binding force." I concur with that portion of the opinion. Our decisions clearly reflect the view that the Legislature may control governmental immunity short of violating constitutional rights. ( See, Carroll v. Kittle, supra; McCoy v. Board of Regents, supra; Wendler v. City of Great Bend, 181 Kan. 753, 316 P.2d 265; American Mut. Liability Ins. Co. v. State Highway Comm., 146 Kan. 239, 69 P.2d 1091.) But any act of the Legislature either imposing or waiving governmental immunity may be put to the constitutional test. See, Cashin v. State Highway Comm., 137 Kan. 744, 22 P.2d 939.

This limitation on the Legislature's constitutional authority to act is the very essence of the judiciary's role among the coordinate branches of government. As the guardian of the Constitution, it is the court's duty and final responsibility to decide the constitutional validity of the acts of the Legislature. It is axiomatic that an act of the Legislature purporting to impose or waive governmental immunity in this state is subject to the limitation contained in the state and federal Constitutions. Where such act exceeds the bounds of authority vested in the Legislature and violates constitutional limitations, it is null and void, and it is the clear duty of the courts to so declare. In this sphere of responsibility, courts have no power to overturn laws enacted by the Legislature within constitutional limitations, even though the laws may be unwise, unpolitical and unjust. The remedy in such case lies with the people. But when the legislative action transcends a sacred right guaranteed a person by the state or federal Constitution, final decision on the validity of such action must rest exclusively with the courts. ( Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877, 887-88; Harris v. Shanahan, 192 Kan. 183, 206-07, 387 P.2d 771, 790-91.)

I now turn to the second question submitted on rehearing:

". . . [D]oes Chapter 200, Laws of 1970, (K.S.A. 46-901 et seq) offend constitutional guarantees in Sections 1, 2 and 18 of the Kansas Bill of Rights, the Fourteenth Amendment to the Constitution of the United States or any other constitutional provisions?"

In exercising its responsibility to rule on the constitutional validity of a legislative act, this court in Brown v. Wichita State University, supra, held K.S.A. 46-901 et seq., violated constitutional guarantees in Sections 1, 2 and 18 of the Kansas Bill of Rights and the Fourteenth Amendment to the United States Constitution. On rehearing, a majority of the court now holds the statute offends none of these constitutional provisions.

I am in accord with the statement of rules set forth in the majority opinion to the effect that the constitutionality of a statute is presumed, that all doubts are resolved in favor of its validity and that before a statute may be stricken down, it must clearly appear it violates the Constitution. Further, it is the court's duty to uphold a statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe it as constitutionally valid, that should be done. Leek v. Theis, 217 Kan. 784, 539 P.2d 304; Tri-State Hotel Co. v. Londerholm, supra.

After due consideration, I have been persuaded on rehearing that the correct application of Section 18 of the Kansas Bill of Rights is that expressed by the majority opinion; therefore, I concur with that portion of the opinion. However, I cannot abide the majority's ruling that K.S.A. 46-901 et seq., does not violate Sections 1 and 2 of the Kansas Bill of Rights and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. I dissent from that portion of the majority opinion.

It should first be made clear that the doctrine of governmental immunity per se is not here under attack. The majority cites several cases which have upheld the doctrine of governmental immunity, existing either at common law or by provision of a state's Constitution, against equal protection challenges. ( Hutchinson v. Board of Trustees of Univ. of Ala., 288 Ala. 20, 256 So.2d 281; Crowder v. Department of State Parks, 228 Ga. 436, 185 S.E.2d 908, appeal dismissed for want of jurisdiction, 406 U.S. 914, 32 L.Ed.2d 113, 92 S.Ct. 1768; O'Dell v. School District of Independence, 521 S.W.2d 403 [Mo. 1975]; Sousa v. State, 115 N.H. 340, 341 A.2d 282; Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736, appeal dismissed for want of a substantial federal question, 409 U.S. 1052, 34 L.Ed.2d 506, 93 S.Ct. 557, rehearing denied, 410 U.S. 918, 35 L.Ed.2d 280, 93 S.Ct. 959; Hall v. Powers and Commonwealth, 6 Pa. Commw. 544. 296 A.2d 535, aff'd 455 Pa. 645, 311 A.2d 612; Swafford v. City of Garland, 491 S.W.2d 175 [Tex. Civ. App. 1973]; Cords v. State, 62 Wis.2d 42. 214 N.W.2d 405; Forseth v. Sweet, 38 Wis.2d 676, 158 N.W.2d 370.) The wisdom of these decisions need not concern us here. In Brown v. Wichita State University, supra, we did not hold the doctrine of governmental immunity per se violated equal protection guarantees. Rather, we held the statutory application of the doctrine was constitutionally impermissible.

Cases upholding the doctrine of governmental immunity per se against equal protection challenges are distinguishable from the instant challenge to a statutory application of the doctrine. It does not follow that because a state may validly choose to maintain or waive its governmental immunity, any statutory classification scheme, no matter how arbitrary or irrational, may be imposed in the process. When the state chooses to create statutory classifications allowing redress for some governmental wrongs and denying redress for others, such legislative classifications must conform to the equal protection guarantees of the state and federal Constitutions.

Other courts have been presented with the equal protection challenges to the statutory application of governmental immunity. (See Flournoy v. State of California, 230 Cal.App.2d 520, 41 Cal.Rptr. 190 [Dist. Ct. App. 1964]; Sullivan v. Midlothian Park Dist., 51 Ill.2d 274, 281 N.E.2d 659; Knapp v. Dearborn, 60 Mich. App. 18, 230 N.W.2d 293; Kriger v. Mutual Aid Pact, 49 Mich. App. 7, 211 N.W.2d 228.) In each of these cases the challenged statutory classifications based governmental liability on the function of governmental entities. The traditional equal protection test was applied and, in each case, a rational basis for the legislative classification was found. In Brown v. Wichita State University, supra, such a rational basis was found wanting.

The majority cites no cases and my research reveals none which remain good authority for the proposition that a Legislature possesses unlimited power to statutorily grant or deny governmental liability in tort. That such legislative action is subject to the requirement of some rationality is illustrated by Harvey v. Clyde Park Dist., 32 Ill.2d 60, 203 N.E.2d 573. There a statute making governmental immunity turn on the character of the governmental unit involved, as does K.S.A. 46-901 et seq., was held to violate an "equal protection" provision of the state Constitution by being arbitrary, irrational and unconstitutionally discriminatory.

Sections 1 and 2 of the Bill of Rights of the Kansas Constitution are our counterparts to the Fourteenth Amendment to the United States Constitution and are given the same effect as that amendment's Due Process and Equal Protection Clauses. The sections provide in substance that "[A]ll men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness," and that ". . . all free governments . . . are instituted for [the] equal protection and benefit [of the people]." ( Henry v. Bauder, 213 Kan. 751, 518 P.2d 362.)

The Fourteenth Amendment to the United States Constitution provides that no state shall ". . . deny to any person within its jurisdiction the equal protection of the laws."

Although some jurists have suggested the right of reasonable access to the courts without the consent of government is just as fundamental as other "fundamental rights" recognized by the United States Supreme Court, ( see Lunday v. Vogelmann, 213 N.W.2d 904, 908 [Iowa 1973] [Reynoldson, J., dissenting]; Krause v. State, 31 Ohio St.2d 132, 150 n. 14, 285 N.E.2d 736, 747 n. 14 [1972] [Brown, J., dissenting]) the high court has not yet denominated such right as "fundamental." Therefore, the less restrictive "reasonable relation" equal protection test is applicable. This test gives great deference to the legislative classification.

Under the "reasonable relation" test only invidious discrimination offends equal protection guarantees; reasonable classifications of persons are permissible. Distinctions inherent in a particular classification must furnish a proper and reasonable basis for such classification, and the classification cannot be made arbitrarily. ( Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291; Henry v. Bauder, 213 Kan. 751, 518 P.2d 362; Pinkerton v. Schwiethale, 208 Kan. 596, 493 P.2d 200.)

In Rinaldi v. Yeager, 384 U.S. 305, 308-09, 16 L.Ed.2d 577, 580, 86 S.Ct. 1497, the United States Supreme Court stated:

"The Equal Protection Clause requires more of a state law than non-discriminatory application within the class it establishes. . . . It also imposes a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. . . . Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have `some relevance to the purpose for which the classification is made.' . . ."

In James v. Strange, 407 U.S. 128, 32 L.Ed.2d 600, 92 S.Ct. 2027, the United States Supreme Court, relying on Rinaldi, ruled the discriminatory treatment of a class created by a Kansas statute violated the Equal Protection Clause, notwithstanding a finding that the statutory classification might further legitimate state interests and that all members of the class were treated alike.

In Reed v. Reed, 404 U.S. 71, 75-76, 30 L.Ed.2d 225, 229, 92 S.Ct. 251, 253-54, it was said:

". . . [T]his Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. . . . The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.' Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). . . ."

In Henry v. Bauder, supra, at 753, 518 P.2d at 365, we said:

". . . The concept of equality of all citizens under the law is, of course, basic to our free society. We have stated that classifications may not be created arbitrarily, discriminatorily or unreasonably, or the principle of equality would be violated. There must be some difference in character, condition, or situation, to justify distinction, and this difference must bear a just and proper relation to the proposed classification and regulation; otherwise, the classification is forced and unreal, and greater burdens are, in fact, imposed on some than on others of the same desert."

From the above, it is apparent that when a statute provides one class is to be treated differently from another, equal protection requires (1) the legislation apply alike to all within the class and (2) reasonable grounds must exist for making a distinction between those who fall within the different classes.

K.S.A. 46-901 et seq., creates two classes of governmental entities: (1) the state and (2) all others. It treats the state differently than all other levels of government by making it completely immune from liability and suit on any implied contract, negligence or tort action except as specifically provided otherwise by statute. All other levels of government are subject to liability for injuries caused by "proprietary" activities. K.S.A. 46-902 ( a); Carroll v. Kittle, supra, Syl. 6.

K.S.A. 46-901 et seq., also creates two classes of persons. Victims of the tortious conduct of the state are placed in one class; victims of the tortious conduct of all other governmental entities, in another.

The Fourteenth Amendment prohibits unreasonable classification of persons. It is the classification of persons which results from K.S.A. 46-901 et seq., which must satisfy equal protection guarantees.

Appellees argue and the majority agrees that K.S.A. 46-901 and 902 treat similarly situated persons in a similar manner — that all persons within each class created by the statute are treated equally. To the extent that each person injured by tortious acts of the state is absolutely barred from seeking recovery while each person injured by tortious acts of any other level of government may seek redress in the courts, it is true that similarly situated persons receive similar treatment. However, the practical effect of K.S.A. 46-901 and 902 is that similarly situated persons do not receive similar treatment.

Local units of government are creatures or instrumentalities of the state which, along with the state, exercise state power. In Eikenberry v. Township of Bazaar, supra, at 391 [*561], this court noted: "[A]ll the powers with which [the townships] are intrusted are the powers of the state, and all the duties with which they are charged are the duties of the state." In Caywood v. Board of County Commissioners, 194 Kan. 419, 399 P.2d 561, we presented a compendium of cases holding counties are agents of the state and auxiliaries to state government. Likewise, in Parker v. City of Hutchinson, 196 Kan. 148, 410 P.2d 347, we noted that municipalities are arms and agents of the state and the immunity they enjoy flows from the state. Where two persons are each injured by an arm of the state yet only one may seek redress in the courts, they are not treated equally although they are similarily situated. Consequently, the classifications created by K.S.A. 46-901 and 902 fail to satisfy the first requirement of equal protection.

But even if K.S.A. 46-901 and 902 did treat similarly situated persons in a similar manner, the equal protection inquiry would not be ended. To pass constitutional muster, there must also be a reasonable ground for making a distinction between the classes created by the statute.

Without question, the statute is discriminatory. Without question, it causes serious inequality for persons within the jurisdiction of this state. But it is only "invidious discrimination" which offends the constitutional guaranty of equal protection. ( Ferguson v. Skrupa, 372 U.S. 726, 10 L.Ed.2d 93, 83 S.Ct. 1028, 95 A.L.R.2d 1347.) Statutory classifications, although discriminatory, are not invidious if based on reasonable grounds. Only when the distinction between the statutorily created classes lacks rationality, does the statute fall under equal protection.

Giving great deference to legislative wisdom, courts will not set aside a statutory discrimination "if any state of facts reasonably may be conceived to justify it." ( McGowan v. Maryland, 366 U.S. 420, 426, 6 L.Ed.2d 393, 399, 81 S.Ct. 1101.) The majority opinion claims three interests — three states of fact which may reasonably be conceived — justify the legislative classification and thereby uphold the statute. These three interests are: (1) the need to protect the state treasury; (2) the need for government to be able to function unhampered by the threat of time and energy consuming legal actions; and (3) the need to protect government in the high-risk activities it performs. None of these apologetics purporting to show the rationality of the statutorily created classes withstand careful analysis.

Governmental immunity persists today primarily because of inertia and financial fears. Leflar Kantrowitz, Tort Liability of the States, 29 N.Y.U.L. Rev. 1363, 1364 (1954); Sherry, The Myth That the King Can Do No Wrong: A Comparative Study of the Sovereign Immunity Doctrine in the United States and New York Court of Claims, 22 Ad. L. Rev. 39, 54 (1969) [hereinafter cited as Sherry].

"[The doctrine's survival is but a] . . . state of mind conditioned by the spectre that its relinquishment will bankrupt the sovereign and result in governmental paralysis. Such a theory may well have been justifiable in colonial times. But today there is universal agreement that immunity has far outlived its usefulness and is a discredited relic of the past not consonant with the needs of civilized society." Sherry at 57.

Fears have frequently been expressed that the removal of governmental immunity would result in dissipation of public funds, the curtailment or disruption of essential governmental functions and the forced insolvency of public entities. Yet experience does not bear out these fears. Since the federal government assumed responsibility for its torts with the enactment of the Federal Tort Claims Act in 1946, it has not suffered financial ruin. A number of states as well as many foreign countries have also adopted comprehensive rules of government responsibility in tort without suffering the above feared consequences. See Blades, A Comment on Governmental Tort Immunity in Kansas, 16 Kan. L. Rev. 265 (1968), [hereinafter cited as Blades]. Cities have long been subject to varying degrees of liability in tort, yet it has never been shown that adverse tort judgments have forced a city into insolvency proceedings or caused a serious threat to financial stability. See O'Dell v. School District of Independence, supra, at 417 (Finch, J., dissenting); Ayala et al. v. Phila. Bd. of Pub. Educ., 453 Pa. 584, 305 A.2d 877; David, Tort Liability of Local Government: Alternatives to Immunity from Liability or Suit, 6 U.C.L.A.L. Rev. 1 (1959). In the more than thirty years since the doctrine of charitable immunity began its decline, there is no indication in the states abolishing it that donations have diminished, that funds in charitable institutions have been depleted or that the mortality of charitable institutions has increased. ( President and Dir. of Georgetown College v. Hughes, 130 F.2d 810 [D.C. Cir. 1942]; O'Dell v. School District of Independence, supra, at 417 [Finch, J., dissenting].) In short, governmental immunity is not necessary to protect the state treasury. Experience indicates that the state treasury would not fall to rack and ruin if the shield of immunity were lifted.

In abrogating governmental immunity for all levels of government in New Mexico, the court in Hicks v. State, 88 N.M. 588, 590, 544 P.2d 1153, 1155 (1975), made some remarks relevant to our present discussion:

". . . The argument has been presented that the elimination of sovereign immunity will result in an intolerable financial burden upon the State. We believe it is safe to say that adequate insurance can be secured to eliminate that possible burden in a satisfactory manner. In addition, it would appear that placing the financial burden upon the State, which is able to distribute its losses throughout the populace, is more just and equitable than forcing the individual who is injured to bear the entire burden alone. . . ."

There are several techniques through which government can absorb the burden and spread the cost of government responsibility for tort. Liability insurance offers a buffer. Distribution of the losses from government maladministration can also be achieved through taxation. In any event, it is readily apparent that the shield of governmental immunity is not a necessity to protect the state treasury.

That this "interest" fails to show the rationality of the statutorily created classes was aptly stated in Comment, Governmental Immunity in Kansas: Prospects for Enlightened Change, 19 Kan. L. Rev. 211, 224 (1971):

". . . [T]his classification of governmental agencies is irrational because it contradicts the major policy rationale behind the immunity doctrine. The argument advanced is that abrogation of immunity will cause the financial breakup of the government. The state has more assets than any other governmental body and is thus better able to resist a breakup. But the statute renders the state immune while allowing other entities, less able to pay, to be held liable. Thus, this classification permits plaintiffs to have a remedy only against the governmental agencies least able to bear the burden. This is not a rational classification."

The necessity of protecting the state treasury fails as a rational justification for discriminating between those persons who fall within the different classes created by K.S.A. 46-901 and 902.

The second "interest" cited as justifying the discriminatory classifications is equally indefensible. To say that government needs to be able to operate unhampered by the threat of legal actions intimates that the state should not be bothered by the fact it has injured people because it has more important things to do.

". . . A government `of, by and for the people' derives its strength from being just and reasonable and not irresponsible in its dealings with the people. . . . `To submit, in justification of the rule, that the immunity is necessary for the proper functioning of [government], is to propound the obvious contradiction that the agency formed to protect society is under no obligation, when active itself, to protect an individual member of society.'" Blades at 267-68.

To say that the threat of legal actions will intolerably hamper government activities is to say that government alone, among all our institutions, cannot properly function if it shoulders responsibility for its actions.

". . . For negligent or tortious conduct liability is the rule. Immunity is the exception. Human beings ordinarily are responsible for their own legally careless action. They respond also for negligent harms inflicted by their agents and employees. So do business corporations. Likewise trustees and other fiduciaries generally are liable for their own negligence in administration and operation of the business or property committed to their control. . . ." ( President and Dir. of Georgetown College v. Hughes, supra, at 812.)

There is little doubt that immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution. ( Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934; O'Dell v. School District of Independence, supra, at 415.) Looking at the experience of foreign countries, the federal government, other state governments, certain local governmental entities in this state, as well as that of business, commerce and private individuals, I am unable to see the rationality of justifying the discrimination resulting from K.S.A. 46-901 and 902 on the ground it is necessary for the proper administration of state government.

The third "interest" cited by the majority is the need to protect government in high-risk activities which it, of necessity, performs. Is this a state of facts which justifies the statutory discrimination and gives rationality to the distinction made between the statutorily created classes? Implicit in this state of facts are two assumptions: (1) that governmental entities performing such "high-risk" activities need the protection of immunity for their financial security and (2) that the public needs to have these governmental entities so protected to insure essential services will not be curtailed. But experience in other jurisdictions indicates absolute immunity in even these "high-risk" activities such as law enforcement is necessary neither for the financial security nor for the proper functioning of government. ( E.g. Mason v. Bitton, 85 Wn.2d 321, 534 P.2d 1360.) Not only does K.S.A. 46-901 et seq., give such high-risk activities complete immunity, except as modified by other statutes, it completely immunizes all state activities. The statute paints with an overly broad brush.

"`. . . [T]oday cities and states are active and virile creatures capable of inflicting great harm, and their civil liability should be co-extensive. Even though a governmental entity does not profit from its projects, the taxpaying public nevertheless does, and it is the taxpaying public which should pay for governmental maladministration. If the city operates or maintains injury-inducing activities or conditions, the harm thus caused should be viewed as a part of the normal and proper costs of public administration and not as a diversion of public funds. The city is a far better loss-distributing agency than the innocent and injured victim. See 2 Harper and James, Torts, 622 (1956).'" Ayala et al. v. Phila. Bd. of Pub. Educ., supra, at 594-95.

But all three "interests" fail as reasonable justifications for making a distinction between the classes created by the statute for an even more basic reason; the arguments supporting discrimination in favor of the state apply equally well to other governmental entities. If the state treasury needs protection, why do the treasuries of lesser units of government not need it even more? If the state must be free from the bother of threatened legal actions, how can cities and counties perform their essential public services without the same protection? While many levels of government perform certain "high-risk" activities, why does only the state need the complete protection afforded by the statute? The three "interests" simply do not provide a rational justification for the statutory discrimination resulting from K.S.A. 46-901 and 902.

The difference in immunity protection given the state and other governmental entities in Kansas has long perplexed this court. In Carroll v. Kittle, supra, at 847, 457 P.2d at 27, we said: "It is difficult for the majority of the court to see why one governmental agency [city, county, state, etc.] performing precisely the same acts . . . should be liable for negligence and others should not." In Carroll we also said: ". . . the rule of governmental immunity from liability for torts committed while engaged in proprietary functions is today without rational basis. . . ." ( Id. at 850, 457 P.2d at 29 [emphasis added].) In Wendler v. City of Great Bend, 181 Kan. 753, 759, 316 P.2d 265, 270, Mr. Justice Schroeder, speaking for the court, said: "What justifies the difference [in immunity protection] between the State and its municipal subdivisions is baffling." What justifies the irrational, discriminatory classifications of K.S.A. 46-901 et seq., is equally baffling.

It is illogical, irrational and unfair to premise the availability of remedies upon the nature of the governmental entity causing the harm. As previously noted, local units of government are creatures or instrumentalities of the state which, along with the state, exercise state power. Yet a patient injured in a city or county hospital may seek redress in our courts while his neighbor, injured by an identical act of negligence in the State University Medical Center, may not. Each was harmed by an arm of the state, yet redress is allowed only one. The statutory classifications of K.S.A. 46-901 and 902 which cause such discrimination are without rational basis and consequently violate equal protection guarantees.

In Sanders v. State Highway Commission, 211 Kan. 776, 508 P.2d 981, we held that the State Highway Commission was liable for undermining a property owner's backyard. There, as a result of excavation along a roadway, a sizable portion of plaintiff's backyard caved in. The state was required to respond in damages. Had the Sanders or their children fallen with the dirt and suffered injury or death, K.S.A. 46-901 et seq., would allow no remedy. Such discrimination against personal rights and in favor of property rights makes the statute even more irrational.

The foregoing examples merely serve to illustrate what is by now obvious — that the practical effect of K.S.A. 46-901 and 902 is invidious discrimination of the rankest kind. Persons falling within the same class created by the statutes do not receive equal treatment; the distinctions made between the classes are without rational basis. Such discrimination fails to conform to the equal protection guarantees of the state and federal Constitutions.

The majority attempts to distinguish Harvey v. Clyde Park District, 32 Ill.2d 60, 203 N.E.2d 573, on both a factual and constitutional basis, but that case is strikingly appropriate to the instant decision. In Harvey, a statute barred plaintiff's recovery for injuries sustained through the negligence of a park district. Plaintiff challenged that statute as violating provisions of the Illinois Constitution in light of the statutory pattern applying governmental immunity to other governmental entities. By statute, Illinois had applied varying degrees of governmental immunity to all levels of government. Although the Constitution prohibited suits against the state, the Legislature had effectively eliminated the state's governmental immunity by establishing a court of claims with jurisdiction over tort claims against the state and by eliminating the defense of governmental immunity in such claims. Id. at 64, 203 N.E.2d at 575. If the plaintiff in Harvey had sustained his injury in a park operated by a city or village, there would have been no legislative impediment to full recovery. If such injury had occurred in recreational facilities maintained by a school district or the state, limited recovery could have been had. Recovery for such injury occurring in a forest preserve district or park district was absolutely barred. The Harvey court could find "no discernible relationship to the realities of life" in this statutory pattern and held the statute barring plaintiff's recovery was arbitrary, irrational and discriminatory. Id. at 67, 203 N.E.2d at 577.

Such a statutory scheme making recovery depend entirely on a fortuitous circumstance — what level of government the tort-feasor happens to be — is directly analogous to K.S.A. 46-901 et seq. The discrimination resulting from K.S.A. 46-901 et seq., is equally irrational and equally unconstitutional.

Differences in the Illinois constitutional provision violated in Harvey and Section 2 of the Kansas Bill of Rights do not render Harvey meaningless authority as the majority suggests. In light of Henry v. Bauder, supra, earlier holdings that Section 2 of the Kansas Bill of Rights applies only to political privileges are rendered suspect. In Henry, the Kansas Guest Statute was held to violate Sections 1 and 2 of the Kansas Bill of Rights and the Equal Protection Clause of the Fourteenth Amendment by denying recovery for personal injury in an arbitrary, discriminatory and irrational manner. Id. at 754, 518 P.2d at 366. In the instant action, K.S.A. 46-901 et seq., infringes on similar rights in violation of the equal protection provisions of the Kansas and United States Constitutions.

More importantly, the rationale applied to test compliance with the Illinois constitutional provision is directly analogous to the rationale by which compliance with the Fourteenth Amendment Equal Protection Clause and Section 2 of the Kansas Bill of Rights is tested. Sections 1 and 2 of the Kansas Bill of Rights are given much the same effect as the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. ( Manzanares v. Bell, supra; Henry v. Bauder, supra; Tri-State Hotel Co. v. Londerholm, supra.) The Fourteenth Amendment requires there be a rational basis for legislating different treatment for classes created by statute. When a statute is challenged as violating Section 22 of Article 4 of the 1870 Illinois Constitution (now Section 4 of Article 13 of the 1970 Constitution), "[t]he determinative question . . . is whether the statutory classification is rational." ( Harvey v. Clyde Park District, supra, at 64, 203 N.E.2d at 575.) (Emphasis added.) The rationale of the Harvey court and its treatment of the statutory pattern of discrimination is clearly analogous to the instant case.

The majority says that if K.S.A. 46-901 and 902 are unconstitutionally arbitrary and irrational, then any statutory classification applying governmental immunity must be similarly defective. This conclusion is fraught with logical inconsistencies. While it is true that all statutory classifications discriminate against certain persons, it does not follow that all classifications applying governmental immunity are equally discriminatory and equally irrational. Not all such statutory classifications invidiously discriminate. As the Harvey court noted, its holding the statutory classification based on level of government was unconstitutionally discriminatory did not mean no valid classification for the purposes of tort liability was possible. The court said it was feasible and perhaps desirable to classify in terms of types of governmental functions instead of classifying in terms of different governmental agencies that perform the same function. The tort claims acts of the federal government, California and Michigan are all examples of statutes applying governmental immunity based on functional distinctions. (See 28 U.S.C. § 2671 et seq.; Cal. Gov't Code, § 810 et seq.; Mich. Stat. Ann. § 3.996 [107].)

Kriger v. Mutual Aid Pact, 49 Mich. App. 7, 211 N.W.2d 228, is another illustration that there may be a rational basis for a statutory classification applying governmental immunity based on governmental function. Michigan has, by statute, equalized governmental immunity for all levels of government. (Mich. Stat. Ann. § 3.996 [107].) All governmental entities are immune from liability for injuries arising from "governmental" functions; all are subject to liability for injuries arising from "proprietary" functions. In Kriger, an equal protection challenge to the statute failed; the court found a reasonable basis for the statutory classification.

Although the "governmental-proprietary" distinction still has vitality, as we noted in Brown v. Wichita State University, supra, it is not the only functional distinction applying uniformly to all units of government that can be made, nor is it necessarily the most desirable. Implicit in any such distinction is the recognition that "it is not a tort for government to govern." ( See, Dalehite v. United States, 346 U.S. 15, 57, 97 L.Ed. 1427, 1452, 73 S.Ct. 956, 979 [Jackson, J., dissenting].) Other functional distinctions may be more workable and less confusing than the "governmental-proprietary" one which has been condemned by courts and commentators. ( See, e.g., W. Prosser, Laws of Torts, § 131, at 979 [4th ed. 1971].) The Restatement (Second) of Torts, Ch. 45A (Tent. Draft No. 19, 1973), reflecting the reasoned view of many of our best legal minds, offers a useful guide for the application of governmental immunity.

Under the Restatement view, liability is the rule and immunity the exception. Within that exception are acts or omissions constituting the exercise of a judicial or legislative function. These are immune because an action in tort for damages is neither the appropriate form of review of such acts or omissions nor a suitable remedy. Likewise, all legislative acts or omissions and those executive acts or omissions involving basic policy decisions are immune because the courts should not pass judgment on such policy decisions of coordinate branches of government. But immunity is not retained for executive and administrative acts not involving basic governmental policy decisions. For these acts or omissions, all levels of government are subject to liability. For example, a governor's decision to activate the National Guard and a state hospital orderly's decision to leave a mop in a hallway are both decisions of a state officer or employee involving some discretion. Only one involves a basic governmental policy decision. The Restatement would give immunity for only the governor's action; K.S.A. 46-901 gives immunity to both.

The Restatement notes that elimination of general tort immunity does not establish liability for acts or omissions which are otherwise not tortious. Actions of a governmental officer or employee may be privileged under regular principles of tort law. A privilege defeats the existence of the tort itself; an immunity, on the other hand, admits the tort, but bars any resulting liability. (W. Prosser, Laws of Torts 970 [4th ed. 1971].) Likewise, the state's failure to perform a service or provide a benefit is not tortious if it has no affirmative duty to act.

Little need be said about due process. To pass constitutional muster under the due process provisions of our state and federal Constitutions, a statute must bear a reasonable relation to a permissible legislative objective. ( Manzanares v. Bell, supra.) That the application of governmental immunity is a permissible legislative objective is illustrated by the tort claims acts of the federal government and many other states. However, the element of reasonableness is also required to satisfy the due process test. Due process considerations cannot be isolated from the foregoing discussion baring the stark irrationality of the statutory classifications created by K.S.A. 46-901 and 902. The "interests" advanced by the majority, which fail to provide a rational basis for the statutory discrimination, likewise fail to satisfy the reasonableness requirement of due process. For these reasons and those more fully set forth in Brown v. Wichita State University, supra, I would affirm the court's holding in Brown that K.S.A. 46-901 and 902 violate the guarantee of due process of law as provided in the Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the Kansas Bill of Rights.

Clearly, there are constitutionally permissible ways in which the Legislature may apply governmental immunity in Kansas. But just as clearly, the line K.S.A. 46-901 et seq., draws between immunity and liability fails to conform to constitutional requirements. Governmental immunity offers great possibilities for abuse of the individual by the oppressive hand of government. It should be applied with great caution.

". . . The doctrine, which was originally promulgated to immunize a weak government against oppressive and insensitive individual demands, has in its present form outlived its usefulness. Today it is the citizen who is helpless when faced with increasing governmental intrusion in his daily life. It is likely that this intrusion will grow as our society becomes even more complex and difficult to manage. The results of governmental presence are and will continue to be frequently unpredictable and sometimes tragic. Because the immunity doctrine is an anachronism, and also because, uncontrolled, it is a threat to our collective sense of justice, prompt legislative and judicial modifying action is necessary." Comment, Governmental Immunity in Kansas: Prospects for Enlightened Change, 19 Kan. L. Rev. 211, 214-15 (1971).

Webster's Third New International Dictionary, unabridged, defines "anachronism" as a thing that is chronologically out of place — something that belongs to a former age and is incongruous if found in the present. What better example than governmental immunity. "The social climate which fostered the growth of absolutism . . . has long since been tempered with the warm winds of humanitarianism and individual freedom." Smith, Municipal Tort Liability, 48 Mich. L. Rev. 41, 48 (1949). Once the people existed for the sovereign; today, our government is of, by and for the people. Once it was thought better that an individual sustain an injury than the public suffer an inconvenience; today, imposing the entire burden of government's wrongful acts on the single injured individual is abhorrent to our social philosophy. A fundamental concept of our system of laws is that one may seek redress for every substantial wrong. Today, there is widespread acceptance of the philosophy that those who enjoy the fruits of an enterprise must accept the burden of its risks and responsibilities. Yet the shield of governmental immunity persists — an enigma perpetuated by inertia and unfounded financial fears.

Governmental immunity as applied by K.S.A. 46-901 and 902 is completely contradictory to the principles on which our government is based — that government exists for the benefit of the people and must be held responsible to them. In 1976, insulating state government at the expense of the personal well-being of the people shocks the conscience. To maintain a system of laws whereby we are individually liable but collectively immune is more than irrational, it is immoral.

The Legislature may choose to respond with indifference to the majority's affirmation of the existing statutory application of governmental immunity in Kansas. I can only hope that, instead, the Legislature will respond to this decision of the court with a critical and searching re-examination of these statutes. An abundance of evidence is at hand which convincingly demonstrates it is both desirable and feasible that government at all levels accept increased responsibility for its actions. I look forward to the day the Legislature enacts new measures more in keeping with the needs of Kansas citizens and Kansas government.

I concur in the majority's affirmance of the first thirteen syllabi and the corresponding portions of the court's opinion in Brown v. Wichita State University, supra. I would adhere to the court's holding in Brown that the doctrine of governmental immunity as applied by K.S.A. 46-901 and 902 violates the guarantees of equal protection and due process of law as provided in the Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the Kansas Bill of Rights, and I would direct the district court to proceed to trial on all viable issues sounding in tort and contract.

OWSLEY and PRAGER, JJ., join in the foregoing dissent.