The opinion of the court was delivered by
Schroeder, J.:
Pursuant to post-decision motions to modify and to supplement the decisions in Brown v. Wichita State University, 217 Kan. 279, 540 P. 2d 66, and Brown v. Wichita State University, P. E. C., Inc., 217 Kan. 661, 538 P. 2d 713, this court, considering the motions as motions for rehearing, consolidated those matters and granted a rehearing. The order granting a rehearing requested counsel to brief four questions, two of which are pertinent to the courts opinion on rehearing:
“1. Where the court abrogates judicially imposed governmental immunity does the Legislature have the constitutional authority to reimpose governmental immunity?
“2. Assuming the answer to the foregoing question is in the affirmative, does 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?”
Pursuant to request the Attorney General of Kansas; the Kansas Legislative Counsel for the Kansas Senate, Kansas House of Representatives and Kansas Legislative Coordinating Council; the Kansas Trial Lawyers Association; the Kansas Association of Defense Counsel; and the League of Kansas Municipalities all filed briefs amicus curiae on these questions materially aiding the court in resolving these questions.
The court reaffirms its decision holding that the trial court erroneously granted summary judgment, and it reaffirms the first thirteen syllabi and the corresponding portions of the opinion in Brown v. Wichita State University, 217 Kan. 279, 540 P. 2d 66, pertaining to third party beneficiaries, agency relationships and contractual obligations.
[5]*5After due consideration, however, the portion of the opinion declaring K. S. A. 46-901, et seq., unconstitutional is vacated.
The facts surrounding this controversy are fully reported in the court’s previous opinions and need not be expanded.
In view of the legislature’s statutory imposition of governmental immunity, the history of governmental immunity is important in three respects. First, the governmental immunity doctrine was judicially created. Second, it was part of the common law at the time the Kansas Constitution was adopted. (See, Maffei v. Town of Kemmerer, 80 Wyo. 33, 338 P. 2d 808 [1959].) Third, on March 26, 1970, the Kansas Legislature explicitly enacted a comprehensive governmental immunity statute, K. S. A. 46-901, et seq., (L. 1970, ch. 200, §§ 1-13, March 26).
Prior to March 26, 1970, the governmental immunity dootrine was of judicial origin in Kansas. This was recognized in Carroll v. Kittle, 203 Kan. 841, 847, 457 P. 2d 21. There it was said our constitution does not touch on the subject and the legislative enactments were characterized as “a series of sporadic statutes,” and not “a comprehensive legislative enactment designed to cover the field.” (Carroll v. Kittle, supra at 847-848.) In Carroll the court further recognized courts throughout the country were widely split on questions of govenmental immunity and the governmental or proprietary character of a state hospital operation. The court there stated:
“After careful consideration a majority of the court is now of the opinion that it is appropriate for this court to abolish governmental immunity for negligence, when the state or its governmental .agencies are engaged in proprietary activities, in the absence of the legislature’s failure to adopt corrective measures.” (p. 848.)
Carroll, as indicated by the quotation from Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934, and the dissenting opinions, was based on matters of public policy and not based on constitutional grounds.
Carroll’s judicial abolition of governmental immunity which was judicially, not statutorily, created finds support in many other states. It must be recognized that many states have judicially abrogated to varying degrees their judicially created doctrine of governmental immunity. (See, City of Fairbanks v. Schaible, 375 P. 2d 201 [Alas. 1962], overruled in part, Scheele v. City of Anchorage, 385 P. 2d 582 [Alas. 1963]; Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P. 2d 107 [1963]; Parish v. Pitts, 244 Ark. 1239, 429 [6]*6S. W. 2d 45 [1968]; Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P. 2d 457 [1961]; Evans v. County Comm., 174 Colo. 97, 482 P. 2d 968 [1971]; Hargrove v. Town of Cocoa Beach, 96 So. 2d 130, 60 A. L. R. 2d 1193 [Fla. 1957]; Smith v. State, 93 Idaho 795, 473 P. 2d 937 [1970]; Molitor v. Kaneland Com. Unit Dist., 18 Ill. 2d 11, 163 N. E. 2d 89, 86 A. L. R. 2d 469 [1959], cert. denied, 362 U. S. 968, 4 L. Ed. 2d 900, 80 S. Ct. 955 [1960]; Campbell; Knotts v. State, 259 Ind. 55, 284 N. E. 2d 733 [1972]; Klepinger v. Bd. of Comm. Co. of Miami, 143 Ind. App. 155, 239 N, E. 2d 160 [1968]; Haney v. City of Lexington, 386 S. W. 2d 738, 10 A.L. R. 3d 1362 [Ky. 1964]; Board of C. of P. of New Orleans v. Splendour S. & E. Co., 273 So. 2d 19 [La. 1973]; Sherbutte v. Marine City, 374 Mich. 48, 130 N. W. 2d 920 [1964]; Williams v. City of Detroit, 364 Mich. 231, 111 N. W. 2d 1 [1961]; Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N. W. 2d 795 [1962]; Brown v. City of Omaha, 183 Neb. 430, 160 N. W. 2d 805 [1968]; Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N. W. 2d 286 [1969]; Rice v. Clark County, 79 Nev. 253, 382 P. 2d 605 [1963]; Merrill v. City of Manchester, 114 N. H. 722, 332 A. 2d 378 [1974]; Willis, et al. v. Dept. of Cons. & Ec. Dev., 55 N. J. 534, 264 A. 2d 34 [1970]; Hicks v. State, 88 N. M. 588, 544 P. 2d 1153; Kitto v. Minot Park District, 224 N. W. 2d 795 [N. D. 1974]; Ayala et al. v. Phila. Bd. of Pub. Educ., 453 Pa. 584, 305 A. 2d 877 [1973]; Becker v. Beaudoin, 106 R. I. 562, 261 A. 2d 896, reargument denied, 106 R. I. 838, 261 A. 2d 896 [1970]; Long v. City of Weirton, 214 S. E. 2d 832 [W. Va. 1975]; Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N. W. 2d 618 [1962]; and Spencer v. General Hospital of District of Columbia, 425 F. 2d 479, [D. C. Cir. 1969].) In all of the above cases it was common law or judicially created immunity which was abrogated, and not a comprehensive statutory enactment. These cases often dismissed the legislative enactments which they encountered as “sporadic” or “not comprehensive.” (Carroll v. Kittle, supra at 848; Muskopf v. Corning Hospital Dist., supra at 218; Brown v. City of Omaha, supra at 433-434.)
Following Carroll’s judicial abrogation of judicially created governmental immunity, the Kansas Legislature quickly passed a “comprehensive” enactment reimposing governmental immunity in Kansas. (See, Woods v. Kansas Turnpike Authority, 205 Kan. 770, 774, 472 P. 2d 219.) This enactment reads in part:
[7]*746-901—
“(a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:
“(1) The state of Kansas; and
“(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and
“(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.
“(b) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.
“(c) The state of Kansas and all boards, commissions, departments, .agencies, bureaus and institutions and all committees, assemblies and groups declared to be immune from liability and suit under the provisions of subsection (a) of this section shall, in all express contracts, written or oral, with members of the public, give notice of such immunity from liability and suit.”
46-902—
“(a) Nothing in section 1 [46-901] of this act shall apply to or change the liabilities of local units of government, including (but not limited to) counties, cities, school districts, community junior colleges, library districts, hospital districts, cemetery districts, fire districts, townships, water districts, irrigation districts, drainage districts and sewer districts, and boards, commissions, committees, authorities, departments and agencies of local units of government.
“(b) The provisions of section I [46-901] of this act shall not create any liability not now existent according to law, nor effect, change or diminish any procedural requirement necessary for recovery from any local unit of government.”
In analyzing K. S. A. 46-901, et seq., the first query on rehearing is:
“Where the court abrogates judicially imposed governmental immunity does the Legislature have the constitutional authority to reimpose governmental immunity?”
The court answers this question in the affirmative, subject to the limitation that an unconstitutional act is of no binding force.
The Kansas Constitution grants all legislative power to the House of Representatives and to the Senate. (Art. 2, § 1.) In Leek v. Theis, 217 Kan. 784, 539 P. 2d 304, the court held all governmental sovereign power is vested in the legislature, except such as is granted to the other departments of the government, or expressly withheld from the legislature by constitutional restrictions. (Syl. ¶ 7.)
Absent violation of constitutional rights, the legislature may control governmental immunity. Our oases prior to Carroll have consistently recognized this. (American Mut. Liability Ins. Co. v. [8]*8State Highway Comm., 146 Kan. 239, 243, 69 P. 2d 1091; Shields v. State Highway Commission, 178 Kan. 342, 346, 286 P. 2d 173; Wendler v. City of Great Bend, 181 Kan. 753, 769, 316 P. 2d 265; Caywood v. Board of County Commissioners, 194 Kan. 419, 423, 399 P. 2d 561; Parker v. City of Hutchinson, 196 Kan. 148, 155, 410 P. 2d 347; and McCoy v. Board of Regents, 196 Kan. 506, 512, 413 P. 2d 73.)
In Carroll v. Kittle, supra, the court in abrogating judicially created immunity stated:
". . . [W]e want it clearly understood that we recognize the authority of the legislature to control the entire field including that part covered by this opinion. . . .” (p. 848.)
The invitation for legislative action in the face of Carroll’s abolition of judicially created immunity is significant. In 1986, in Parker v. City of Hutchinson, supra, the court recognized where other courts had abrogated governmental immunity:
“ . . [T]he legislatures have hastened to undo the damage done by the courts and have restored immunity entirely or stated the areas of immunity and liability, prescribed limitations on recovery, and otherwise restored the stature of government as government. . . (p. 152.)
The experiences of Illinois, California and Wisconsin were -discussed in the Parker opinion. (See also, McCoy v. Board of Regents, supra at 509.) Thus K. S. A. 46-901, etseq., was not totally unexpected by the court. The court, in effect, requested legislative judgment. It has been given. Regardless of the personal views of members of the court, the legislative policy has been clearly enunciated and should be accepted, unless the legislative policy is found to be unconstitutional.
Our cases following Carroll, and the legislative reimposition of governmental immunity, have recognized:
“. . . [S]o-und judicial policy dictates that further inroads by this tribunal into the immunity doctrine as it relates to liability of the state is neither warranted nor justified. . . .” (Woods v. Kansas Turnpike Authority, 205 Kan. 770, 774, 472 P. 2d 219.)
(See also, Daniels v. Kansas Highway Patrol, 206 Kan. 710, 713, 482 P. 2d 46; and Allen v. City of Ogden, 210 Kan. 136, 138, 499 P. 2d 527.)
In many of the cases upon which the appellants rely the courts, in abrogating judicially created immunity, have recognized the authority of the legislature to reinstate immunity if it deems it to be better public policy. (Holytz v. Milwaukee, supra at 40; [9]*9Evans v. County Comm., supra at 105; Smith, v. State, supra at 803; Williams v. City of Detroit, supra at 235, 244, 260-261; Brown v. City of Omaha, supra at 434; Merrill v. City of Manchester, supra at 730, 332 A. 2d at 384; and Becker v. Beaudoin, supra at 571.)
Furthermore, in at least nine jurisdictions judicial abrogation of judicially imposed governmental immunity has been foEowed by at least limited legislative reimposition of immunity. Nothing indicates there was ever any doubt in these jurisdictions that the legislature could occupy the governmental immunity field. (See, Ark. Stat. Ann. §§ 12-2901-03 [Supp. 1975]; Cal. Gov’t Code §§ 810-996.6 [West 1966]; Colo. Rev. Stat. Ann. §§ 24-10-101-117 [1973]; Ill. Ann. Stat., ch. 85, § 1-101, et seq., [Smith-Hurd 1966]; Mich. Stat. Ann. § 3.996 [101], et seq., [1969]; Minn. Stat. Ann. §§ 466.01-17 [1973]; Nev. Rev. Stat. §§ 41.031-.039 [1973]; N. J. Stat. Ann. § 59:1-1, et seq., [Supp. 1974]; and Wis. Stat. Ann. § 895.43 [1966].)
In Leek v. Theis, supra, the court’s view on the separation of powers doctrine was clearly enunciated. The separation of powers doctrine is designed to avoid a dangerous concentration of power, and to aEow the respective powers to be assigned to the department best fitted to exercise them. It must be conceded the legislature is better equipped to resolve the difficult policy questions inherent in the field of governmental immunity. As judges our desire to achieve what may seem fair to us as individuals cannot overcome the laws enacted by our duly eleoted legislators. Ayala et al. v. Phila. Bd. of Pub. Educ., supra at 608, indicates the legislatures of Hawaii, Iowa, New York, Oklahoma, Oregon, Utah and Washington have statutorüy abrogated governmental immunity. The Kansas legislature has chosen to statutorüy impose governmental immunity. That view, if constitutional, represents the law which the court must apply to this case.
Having concluded 'the legislature had the power to reimpose governmental immunity, the query becomes:
“. . . [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?”
It is the court’s opinion, after carefully reviewing the many decisions cited in the briefs on rehearing, K. S. A. 46-901, et seq., does not offend any constitutional provision.
Long-standing and well established rules of the court are that the constitutionality of a statute is presumed, that all doubts must [10]*10be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. (Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 877; Moore v. Shanahan, 207 Kan. 645, 651, 486 P. 2d 506; and Leek v. Theis, supra at 793.)
With this standard in mind, the court first examines Section 18 of the Kansas Bill of Rights. That section provides:
“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
The appellants argue our abolition of charitable immunity announced in Noel v. Menninger Foundation, supra, and enforced in Neely v. St. Francis Hospital & School of Nursing, 192 Kan. 716, 391 P. 2d 115, as well as our decision in Sanders v. State Highway Commission, 211 Kan. 776, 508 P. 2d 981, requires that Section 18 be recognized to abrogate governmental immunity. For the reasons hereafter assigned these cases do not require this result.
Section 18 does not create any new rights, but merely recognizes long established systems of laws existing prior to the adoption of the constitution. (See, 16 Am. Jur. 2d, Constitutional Law, § 385, p. 721.) Since the right to sue the state for torts was a right denied at common law, such right is not protected by Section 18. This conclusion is consistent with our view that the laws at the time the constitution was framed are relevant in interpreting our constitution. (Leek v. Theis, supra at 793.) It seems unlikely framers of our constitution intended Section 18 to abrogate governmental immunity. Were this true, our early court decisions would have reached that result. Instead, our prior decisions uphold governmental immunity.
Noel v. Menninger Foundation, supra, and Neely v. St. Francis Hospital & School of Nursing, supra, are distinguishable because charitable immunity was not a right existing at common law. As the Noel case (p. 756) indicates, the United States first adopted charitable immunity in 1876 and Kansas first adopted charitable immunity in 1916. Governmental immunity, however, was part of our common law before the Kansas Constitution was adopted. Thus, it was proper for the court to rule in Noel that charitable immunity violated Section 18.
[11]*11Reference is also made to Sanders v. State Highway Commission, supra, a case dealing with inverse condemnation by the state highway commission. The constitutional provision primarily involved there was Article 12, Section 4. That Section provides:
“No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation.”
In Sanders the court held:
“The appropriation of a landowner’s right to the lateral support of his land, while constructing a state highway, is a taking for which our constitution guarantees payment of full compensation.” (p. 787.)
The court further recognized inverse condemnation was outside the mantle of immunity provided by K. S. A. 46-901, et seq. Thus Sanders affords no support for the appellants whose tort claims fall directly within the language of K. S. A. 46-901.
In Caywood v. Board of County Commissioners, supra at 423, and in McCoy v. Board of Regents, supra at 511-512, both of which were decided after Noel and Neely, the court held Section 18 and governmental immunity are not irreconcilable. Those decisions are hereby recognized as authoritative and correctly hold Section 18 does not require that governmental immunity be held unconstitutional.
An analogous situation is found in Arkansas whose Supreme Court judicially abrogated the common law of governmental immunity. (Parish v. Pitts, supra.) The legislature quickly imposed statutory governmental immunity. (Ark. Stat. Ann. §§ 12-2901-2903.) The Arkansas Supreme Court has accepted the legislative statement of public policy as being “plain and unambiguous” and leaving “no room for doubt.” (Sullivan, Adm’r v. Pulaski County, 247 Ark. 259, 261, 445 S. W. 2d 94 [ 1969].) Arkansas has a constitutional provision. (Art. 2, § 13) guaranteeing remedies for injuries which is sinr'lar to our Section 18. In the latest Arkansas governmental immunity case, Hardin v. City of DeValls Bluff, 256 Ark. 480, 508 S. W. 2d 559 (1974), it was held:
“Where there was no established jural right to recovery from a city in a tort action at the time of the adoption of the Arkansas Constitution, Art. 2, § 13 does not prohibit legislation involved in Act 165 of 1969 [Ark. Stat. Ann. 12-2901, et seq.] granting governmental immunity to cities and counties.” (Syl. ¶ 4.)
[12]*12It has been acknowledged that our Kansas Constitution was modeled after that of Ohio. (Leek v. Theis, supra at 798.) Their constitution, Art. 1, § 16, has a “due course of law” constitutional provision similar to Section 18 of our constitution. In Williams v. Columbus, 33 Ohio St. 2d 75, 294 N. E. 2d 891 (1973), Justice Gray, dissenting, argued that Art. 1, § 16 of the Ohio Constitution meant persons should have relief against the city. But the majority disagreed. (See also, Nanna v. Village of McArthur, 44 Ohio App. 2d 22, 335 N. E. 2d 712 [1974].)
In Wisconsin their constitution, Art. 1, § 9, is similar to our Section 18. In Firemens Ins. Co. v. Washburn County, 2 Wis. 2d 214, 85 N. W. 2d 840 (1957), it was held:
“The provision in sec. 9, art. I, Const., that every person is entitled to a certain remedy in the laws for all ‘injuries or wrongs’ which he may receive in his person, property, or character, must be construed in the light of the common law as it stood at the time of the adoption of the constitution in 1848; immunity of all governmental units from liability for negligence occurring in 'the performance of a governmental function, such as maintenance of highways, was then well recognized in the common law; hence the application of such common-law rule of governmental immunity does not violate such constitutional provision.” (Syl. ¶ 3.)
(See also, Cords v. State, 62 Wis. 2d 42, 214 N. W. 2d 405 [1974]; Hazlett v. Board of Com’rs of Muskogee County, 168 Okla. 290, 32 P. 2d 940 [1934]; and Lundbeck v. State, Department of Highways, 95 Idaho 549, 511 P. 2d 1325 [1973].)
In our opinion the view expressed in these states is persuasive.
Judicial foresight requires that Section 18 not be invoked to invalidate every statutory or judicial limitation on remedies. Section 18 has been held to refer to remedies in the courts. Yet in Shade v. Cement Co., 93 Kan. 257, 144 Pac. 249, it was held a workmen’s compensation act does not violate Section 18. In Fisher v. Toler, 194 Kan. 701, 401 P. 2d 1012, it was held that despite Section 18 neither spouse may maintain an action in tort for damages against the other. The interpretation given Section 18 by the appellants would endanger these decisions.
A broad application of Section 18 would jeopardize retention of governmental immunity even for governmental functions. Nearly every state in the union recognizes a need for governmental immunity in functions characterized as “governmental.” Section 18 does not require the court to hold K. S. A. 46-901, et seq., unconstitutional.
[13]*13The court next examines the equal protection clause of the Fourteenth Amendment to the United States Constitution which finds its counterpart in Sections 1 and 2 of the Kansas Bill of Rights, (Manzanares v. Bell, 214 Kan. 589, 522 P. 2d 1291.)
In Tri-State Hotel Co. v. Londerholm, supra, Chief Justice Fatzer set forth clearly and concisely the rules which govern the constitutionality of legislative enactments. There it was stated:
“This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution; and every legislative act comes before this court surrounded with the presumption of constitutionality. That presumption continues until the Act under review clearly appears to contravene some provision of the Constitution. All doubts of invalidity must be resolved in favor of the law. It is not in our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; those are purely legislative matters. . . .” (p. 760.)
This is particularly true with regard to the Fourteenth Amendment equal protection clause. In social and economic legislation, a statutory classification does not violate the equal protection clause merely because its classifications are imperfect. (See, Village of Belle Terre v. Boraas, 416 U. S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536; San Antonio School District v. Rodriguez, 411 U. S. 1, 36 L. Ed. 2d 16, 93 S. Ct. 1278, reh. denied, 411 U. S. 959, 36 L. Ed. 2d 418, 93 S. Ct. 1919; and Jefferson v. Hackney, 406 U. S. 535, 32 L. Ed. 2d 285, 92 S. Ct. 1724, reh. denied, 409 U. S. 898, 34 L. Ed. 2d 156, 93 S. Ct. 178.) Nor does the equal protection clause require a state “to choose between attacking every aspect of a problem or not attacking the problem at all.” (Dandridge v. Williams, 397 U. S. 471, 487, 25 L. Ed. 2d 491, 90 S. Ct. 1153, reh. denied, 398 U. S. 914, 26 L. Ed. 2d 80, 90 S. Ct. 1684; and San Antonio School District v. Rodriguez, supra at 42.) The foregoing principle was well stated in West Coast Hotel Co. v. Parrish, 300 U. S. 379, 81 L. Ed. 703, 57 S. Ct. 578:
“. . . This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature ‘is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.’ If ‘the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.’ There is no ‘doctrinaire requirement’ that the legislation should be couched in all embracing terms. . . .” (p. 400.)
(See also, Williamson v. Lee Optical Co., 348 U. S. 483, 99 L. Ed. 563, 75 S. Ct. 461, reh. denied, 349 U. S. 925, 99 L. Ed. 1256, 75 [14]*14S. Ct. 657; San Antonio School District v. Rodriguez, supra at 42; and Manzanares v. Bell, supra at 609.)
The appellants contend K. S. A. 46-901, et seq., denies equal protection by discriminating between the various levels of governmental tort-feasors by imposing liability based on the unit of government involved. But withholding a legal remedy for persons injured by the state, while allowing a remedy for a non-govemmental tortious activity, or a municipal government’s tortious activity, is not discriminatory governmental action. (Krause v. State, 31 Ohio St. 2d 132, 145, 285 N. E. 2d 736 [1972], appeal dismissed for want of a substantial federal question, 409 U. S. 1052, 34 L. Ed. 2d 506, 93 S. Ct. 557, reh. denied, 410 U. S. 918, 35 L. Ed. 2d 280, 93 S. Ct. 959; Hutchinson v. Board of Trustees of Univ. of Ala., 288 Ala. 20, 25, 256 So. 2d 281 [1971]; and O’Dell v. School District of Independence, 521 S. W. 2d 403, 409 [Mo. 1975].) The constitution does not require things which are different in fact or opinion to be treated in law as though they were the same. (Tigner v. Texas, 310 U. S. 141, 147, 84 L. Ed. 1124, 60 S. Ct. 879, reh. denied, 310 U. S. 659, 84 L. Ed. 1422, 60 S. Ct. 1092.) The Fourteenth Amendment does not deny to states the power to treat different classes of persons in different ways. (Reed v. Reed, 404 U. S. 71, 75, 30 L. Ed. 2d 225, 92 S. Ct. 251.)
Many states hold governmental immunity does not violate the equal protection clause of the Fourteenth Amendment. In states which have refused to judicially abrogate common law immunity, equal protection arguments have failed. (Crowder v. Department of State Parks, 228 Ga. 436, 185 S. E. 2d 908 [1971], appeal dismissed for want of a substantial question, 406 U. S. 914, 32 L. Ed. 2d 113, 92 S. Ct. 1768 [1972]; Azizi v. Board of Regents, 132 Ga. App. 384, 208 S.E. 2d 153 [1974], aff’d 233 Ga. 487, 212 S. E. 2d 627 [1975]; O’Dell v. School District of Independence, supra; and Swafford v. City of Garland, 491 S. W. 2d 175 [Tex. Civ. App. 1973].) States whose constitution requires legislative action to abrogate governmental immunity have held governmental immunity does not violate the equal protection clause of the Fourteenth Amendment. (Krause v. State, supra; and Hutchinson v. Board of Trustees of Univ. of Ala., supra.)
The appellants direct our attention to New Hampshire, Michigan, Pennsylvania and Wisconsin where the courts judicially abrogated varying degrees of governmental immunity. Yet in those states immunity for the state government is retained, a classification based [15]*15solely on the unit of government involved. In none of these states have equal protection arguments succeeded. (Sousa v. State, 115 N. H. 340, 341 A. 2d 282 [1975]; Kriger v. Mutual Aid Pact, 49 Mich. App. 7, 211 N. W. 2d 228 [1973]; Knapp v. Dearborn, 60 Mich. App. 18, 230 N. W. 2d 293 [1975]; Hall v. Powers and Commonwealth, 6 Pa. Cmwlth. 544, 296 A. 2d 535 [1972], aff’d 455 Pa. 645, 311 A. 2d 612 [1973]; Forseth v. Sweet, 38 Wis. 2d 676, 158 N. W. 2d 370 [1968]; and Cords v. State, supra.)
In Kriger v. Mutual Aid Pact, supra, the court said:
“. . . Withholding legal remedy from persons injured by the state, while granting one to persons injured by nongovernmental tort-feasors does not offend the equal protection clause. . . .” (p. 11.)
In Sousa v. State, supra, the court stated:
“. . . Nor does it [immunity for the state but not local governmental units] constitute a violation of plaintiffs’ rights to equal protection as all those who are similarly situated are similarly treated. . . .” (341 A. 2d at 285.)
The United States Supreme Court has held sovereign immunity constitutional. In the early history of this nation it was said in Beers v. State of Arkansas, 61 U. S. 527, 15 L. Ed. 991:
“It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts . . . without its consent and permission. . . .” (p. 529.)
In Palmer o. Ohio, 248 U. S. 32, 63 L. Ed. 108, 39 S. Ct. 16, involving a property damage claim against the State of Ohio, the court said:
“The right of individuals to sue a State, in either a federal or a state court, cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the State. [Citations omitted.] Whether Ohio gave the required consent . . . is a question of local state law, as to which the decision of the State Supreme Court is controlling with this court, no federal right being involved. . . .” (Emphasis added.) (p. 34.)
The passage of time has not diminished the impact of Palmer. In Parden v. Terminal R. Co., 377 U. S. 184, 12 L. Ed. 2d 233, 84 S. Ct. 1207, reh. denied, 377 U. S. 1010, 12 L. Ed. 2d 1057, 84 S. Ct. 1903, the United States Supreme Court allowed suit against Alabama on the ground that Alabama consented by entering into activities within the scope of federal legislation. But the Court was careful to distinguish that case from Palmer where consent was not found. (See also, Harris v. Pennsylvania Turnpike Commission, 410 F. 2d 1332 [3rd Cir. 1969], cert. denied, 396 U. S. 1005, 24 L. Ed. 2d 497, 90S. Ct. 558.)
[16]*16If K. S. A. 46-901, et seq., does create a discriminatory classification, that classification is reasonable and thus not violative of the equal protection clause. In the absence of a suspect classification or a violation of a fundamental right, a statutory discrimination should not be set aside 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, 81 S. Ct. 1101; and Tri-State Hotel Co. v. Londerholm, supra at 760-761.)
The United States Supreme Court states in Ferguson v. Skrupa, 372 U. S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028, 95 A. L. R. 2d 1347:
“. . . Statutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution. . . .” (p.732.)
Obviously there are arguments on both sides of the governmental immunity issue. But it is only necessary to reasonably conceive a state of facts to support governmental immunity to uphold the legislative classification set out in K. S. A. 46-901, et seq. Three interests support the legislative classification.
First, is the necessity to protect the state treasury. While a sítate can better afford to pay judgments than a city, and while the experience of states which have abrogated sovereign immunity indicates they have not gone bankrupt, the financial considerations are still relevant. The Missouri Supreme Court, which has consistently held the issue of governmental immunity is for the legislature, said in Payne v. County of Jackson, 484 S. W. 2d 483 [Mo. 1972]:
“. . . [Wholesale abrogation of the sovereign immunity doctrine could very well deplete the governmental treasury to a point where proper performance of governmental duties would be impaired. . . .” (p. 486.)
Second, governmental immunity enables government to function unhampered by the threat of time, and energy consuming legal actions, which would inhibit the administration of traditional state activities. This serves to aid long-range state planning. Knowledge of the unlimited nature of the state’s resources might encourage suits which would otherwise never be brought. Certainly to judicially abrogate legislatively imposed governmental immunity complicates this problem. The Missouri Supreme Court in Payne v. County of Jackson, supra, referred to the Indiana experience:
“. . . Following Perkins v. Indiana, 252 Ind. 549, 251 N. E. 2d 30 (1969), which did not eliminate the doctrine entirely but authorized recovery against the state for negligence arising from a non-governmental function, [17]*17the Indiana Attorney General’s Office reported (as of April 16, 1971): ‘Since the Perkins decision, approximately 85 cases have been filed against the State, and the rate is steadily increasing, the State cannot settle these claims; the State cannot hire local counsel to assist in their defense; the State has no procedural mechanism equipped to handle the heavy case load, and perhaps most significant, in the face of millions of dollars worth of suits pending and several large judgments, the state has no money appropriated with which to pay these judgments so that successful plaintiffs may not be able to get execution of their judgments in view of the restrictions in Art. IV, Sec. 24 of the constitution that “no special act making compensation to any person claiming damages against the state shall ever be passed.” ’” (pp. 486, 487.)
The hazards of incomplete “judicial legislation” as mentioned in Payne is 'apropos in Kansas. Under Art. 2, § 24 of our constitution the legislature must make the appropriations for tort claims.
Third, governmental immunity affords that degree of protection demanded by the numerous administrative and high-risk activities undertaken by the various governments. Public agencies engage in activities of a scope and variety far beyond that of any known private business. (Kennedy & Lynch, Some Problems of a Sovereign Without Immunity, 36 S. Cal. L. Rev. 161, 177 [1963].) Activities need only be commercial to be classified as proprietary. (Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265.) Thus an activity which is financially unprofitable may be provided as a service, or for some other reason, by a governmental unit, but it would not be provided at reasonable cost, if at all, by private enterprise. The appellants would make such commercial activity, regardless of nature, subjeot to liability. (See, Brown v. City of Omaha, 183 Neb. 430, 160 N. W. 2d 805 [1968] [J. Newton, dissenting].)
Many governmental activities are of a nature so inherently dangerous that no private industry would wish to undertake the risk of administering them. These activities are so important to the health, safety and welfare of the public that they could not possibly be abandoned, although the imposition of broad tort liability upon the agencies engaging in these activities might become extremely burdensome to the taxpayers. (Kennedy & Lynch, Some Problems of a Sovereign Without Immunity, supra.)
The appellants contend these arguments also would apply to municipalities. In Sousa v. State, supra, the New Hampshire Supreme Court answered the argument as follows:
“. . . [S]tate immunity for torts involves certain factors not present in the immunity of cities and towns. By its magnitude the striking of a balance between granting relief to injured claimants and protecting the solvency of the State is a more complex problem at that level than it is for [18]*18most cities and towns. Extremely broad considerations of public policy and governmental administration are involved. . . .” (341 A. 2d at 285-286.)
The appellants argue our language in Carroll v. Kittle, supra, compels this court to find that equal protection is violated. There the oourt stated:
“We are forced to conclude that the rule of governmental immunity from liability for torts committed while engaged in proprietary functions is today without rational basis and hence there is no logical compulsion to extend it. . . .” (Emphasis added.) (p. 850.)
The foregoing statement in isolation is misleading. This court has frequently said that a statement of law in a given oase must be tempered by the facts which give rise to its pronouncement. In Carroll the court was faced with judicial abrogation of a judicially created immunity on grounds of public policy, not constitutional law. Carroll oannot be stretched to hold that no reasonable set of facts may be conceived to uphold the clear and explicit legislative enactment.
The greatest objection to the equal protection argument lies in the fact that the most ardent advocates of abolition of governmental immunity recognize the need to retain some degree of tort immunity. Yet this need to retain some degree of tort immunity in governmental activities forces an attempt to distinguish the indistinguishable under the equal protection clause. For example, the appellants argue equal protection is violated when liability is determined by the unit of government involved. They would prefer to have liability based on the function of the governmental tort-feasor.
It must be recognized an injured party has no power to select the tort-feasor causing his injury. If the appellants’ distinction is valid, the injury could be occasioned by the activity of a governmental unit whose functions are purely governmental in character and for which no liability would attach, or it could be occasioned by the activity of a governmental unit whose functions are strictly proprietary in character and for which liability would attach. On this argument the appellants assert the legislative classification determined by the unit of government involved creates a distinction which rises to constitutional magnitude.
Regardless of the classification scheme used by the courts or by the legislatures, if some immunity is retained certain persons injured by the government will recover, while others injured, to an equal or greater degree, will not recover. This allegedly discriminatory situation will occur whether the governmental immunity [19]*19is based on the “governmental-proprietary” distinction, the “disoretionary-nondiscretionary” distinction, or an “open-ended” or a “close-ended” statute.
Many of the Tort Claims Acts which are cited by the appellants as examples of constitutional legislation contain limits on reoovery. (See, e. g., Wis. Stat. Ann. §895.43, and Colo. Rev. Stat. Ann. § 24-10-101, et seq.) Yet if a state may within the framework of the equal protection clause limit the amount of recovery against the government, why can it not defeat recovery altogether?
The arguments advanced establish that some classification scheme is necessary, and that any classification scheme adopted is a policy decision. If the court declares the policy judgment made by the legislature in K. S. A. 46-901, et seq., unconstitutional, then anyclassification scheme which retains any governmental immunity is unconstitutional.
There are no cases which hold governmental immunity invalid based on the equal protection clause of the Fourteenth Amendment. One case cited by the appellants seems to support their position. In Molitor v. Kaneland Com. Unit Dist., 18 Ill. 2d 11, 163 N. E. 2d 89, 86 A. L. R. 2d 469 (1959), cert. denied, 362 U. S. 968, 4 L. Ed. 2d 900, 80 S. Ct. 955 (1960), the Illinois Supreme Court abrogated governmental immunity for local governmental units. (In Illinois the sovereign immunity of the state had a constitutional basis. Section 26 of Article IV of the 1870 Illinois Constitution [repealed 1970] provided that “the state of Illinois shall never be made defendant in any court of law or equity.”) The legislature reacted by enacting Ill. Rev. Stat. 1963, ch. 105, par. 12.1-1. In Harvey v. Clyde Park Dist., 32 Ill. 2d 60, 203 N. E. 2d 573 (1965), the Illinois Supreme Court held legislative classification granting complete immunity to some, partial immunity to others and no immunity to others, based upon a variety of factors, violated Section 22 of Article IV of the 1870 Illinois Constitution, which forbade the granting of “any special or exclusive pnuilesre. immunity or franchise” to any corporation, association or individual.
A careful analysis of the Harvey case indicates it to be distinguishable on a factual basis as well as a constitutional basis. There the court paraphrased the numerous statutes enacted by the Illinois General Assembly relating to municipal tort liability as follows:
“The legislation thus adopted established the following pattern: Forest preserves, park districts and the Chicago Park District are not liable for negligence. (Ill. Rev. Stat. 1963, chap. 57½ par. 3a, chap. 105, pars. 12.1-1,333.2a.) [20]*20There is no general provision granting immunity to municipalities — cities, villages and incorporated towns. The substance of earlier provisions relating to liability in specific situations has, however, been retained. Municipalities are liable for injuries caused by the negligent operation of motor vehicles by firemen and volunteer firemen. Municipalities having a population in excess of 500,000 must completely indemnify policemen for their nonwilful torts; other municipalities must indemnify them to the extent of $50,000. Municipalities are liable for damage to property caused by the removal, destruction or vacation of a building as unsafe or unsanitary under certain circumstances. In specified cases municipalities having a population in excess of 5,000 are liable for damage occasioned by mob violence. (Ill. Rev. Stat. 1963, chap. 24, pars. 1-4-1 to 1-4-8.) The negligent tort liability of private schools and of school distriots generally is limited to $10,000. (Ill. Rev. Stat. 1963, chap. 122, pars. 821-31.) The Board of Education of the City of Chicago, however, is required to insure its employees, thus apparently permitting unlimited recovery. (Ill.. Rev. Stat. 1963, chap. 122, par. 34-18.1.) Counties are not liable for negligence; however, they must indemnify sheriffs and deputy sheriffs to the extent of $50,000, for losses occasioned by nonwilful torts. (Ill. Rev. Stat. 1963, chap. 34, par. 301.1.) The liability of county superintendants of highways is limited to $10,000. (Ill. Rev. Stat. 1963, chap. 121, pars. 381-87.) But township and district highway commissioners are fully liable for neglect of duty. (Ill. Rev. Stat. 1963, chap. 121, par. 6-402.) Drainage districts are liable for negligent torts, but the district commissioners are absolved of personal liability. (Ill. Rev. Stat. 1963, chap. 42, par. 4-40.) Counties, township and district highway commissioners, school districts, and townships are authorized to purchase liability insurance for their agents, employees and officers. (Ill. Rev. Stat. 1963, chap. 34, par. 429.7; chap. 121, par. 6-412.1; chap. 122, pars. 10-21.6, 10-22.3, 29-9; chap. 139, par, 39.24.) These governmental units are thus apparently given unrestricted freedom to determine for themselves whether or not they will be liable for their own negligence.” (pp. 62-63.)
The constitutional provisions in Kansas differ materially from those in Illinois and many other states. The Kansas Bill of Rights, Secbion 2, on privileges reads:
“. . . No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”
It has consistently been held in Kansas: Section 2 relates to political privileges, not property interests. (Johnson v. Reno County Comm’rs, 147 Kan. 211, 225, 75 P. 2d 849; and State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 439, 296 P. 2d 656.) Our constitution seemingly contemplates that special privileges may be granted under certain circumstances which the legislature may control. (See, Goodrich v. Mitchell, 68 Kan. 765, 769, 770, 75 Pac. 1034 [Veterans Preference Law upheld].)
[21]*21On the facts and the constitutional provisions underlying Harvey, which held the Illinois legislative enactment declaring a park district immune from tort liability unconstitutional, a basis for its application to the comprehensive Kansas legislative enactment here under consideration is lacking.
Last the appellants 'argue constitutional due process is violated by K. S. A. 46-901, et seq. For constitutional due process to be violated, the legislation before this court must bear no reasonable relation to a permissive legislative objective. (Manzanares v. Bell, supra; and City of Colby v. Hurtt, 212 Kan. 113, 509 P. 2d 1142.) Obviously, retaining some immunity is a permissive legislative objective,. Even the appellants argue “it is not a tort to govern.”
Judicial history provides some insight. There was a time when the courts used the Fourteenth Amendment due process clause to strike down laws thought to be unwise. (See, Lochner v. New York, 198 U. S. 45, 49 L. Ed. 937, 25 S. Ct. 539.) Since then courts have returned to the original concept of constitutional interpretation, that courts do not substitute ¡their social and economic beliefs for the judgment of legislative bodies whose function it is to pass .the laws. (Ferguson v. Skrupa, 372 U. S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028, 95 A. L. R. 2d 1347; and Manzanares v. Bell, supra.)
The court has been cited to no case where constitutional due process has been used as: a basis for the abrogation of legislatively imposed governmental immunity. Neither Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P.2d 457 (1961); Carroll v. Kittle, supra; nor Martin v. State Highway Commission, 213 Kan. 877, 518 P. 2d 437, deal with constitutional due process in the context of governmental immunity.
The court is here presented with a clear 'and comprehensive legislative enactment on the subject of governmental immunity in K. S. A. 46-901, etseq. Recognizing our past pronouncements on ■the legislative prerogative, it would be unwise 'and 'an untenable judicial encroachment upon a matter within the legislative domain for this court to declare K. S. A. 46-901, etseq., unconstitutional on any ground.
Counsel for the appellees in case No. 47,706 assert on rehearing the failure of this corut to deal with ¡the Coleman claim. The appellees’ motion for summary judgment recites this claim is for the wrongful death of Ray Coleman. The claimants are Willa Hall, Ruth Richardson and Vada White. Interrogatories were served seeking the relationship of these claimants to the decedent. The [22]*22motion further recites Vada White did not answer the interrogatories and her claim was dismissed by the trial court. Willa Hall and Ruth Richardson answered that they were respectively full sister and half sister of the decedent, and that they were not dependent upon the decedent.
Upon this premise the appellees argue that under Kansas law substantive rights flowing from wrongful death are determined by the law of the state where the injury and death occurred (citing McDaniel v. Sinn, 194 Kan. 625, 400 P. 2d 1018); and under Colorado law (ithe place where the, accident occurred) sisters of a decedent cannot maintain an action for the wrongful death of a brother (citing Blom v. United Air Lines, 152 Colo. 486, 382 P. 2d 993 [1963] and cases cited therein).
While the foregoing recitals are set forth in the appellees’ motion for summary judgment, the trial court in sustaining the motion stated no reasons. Presumably tire motion was sustained for the reasons stated by the trial court in the companion case of Brown v. Wichita State University, 217 Kan. 279, 540 P. 2d 66. (See, Brown v. Wichita State University, P. E. C., Inc., 217 Kan. 661, 664, 538 P. 2d 713.)
Our reversal of the trial court for the reasons stated in these cases, consolidated on rehearing, recognizes the viability of the wrongful death action by the claimants in the Coleman matter. We cannot accept the appellees’ position, that the trial court must be affirmed as to these claims because the claimants have advanced no theory in opposition to the appellees’ motion.
Assuming the facts recited are true, the mere citation of two cases by the appellees on an important conflict of laws question is insufficient briefing for this court to resolve the issue stated. The determination of this question may ultimately affect the disposition of many claims asserted in these cases. We leave this question open. Our recital of the appellees’ contention should not be construed as a determination of the issue one way or the other.
The claimants in the Coleman matter are entitled to pursue their cause of action in the trial court until an authoritative determination is made on the basis of the issues presented in the trial court.
In remanding to the district court our original opinion in Brown v. Wichita State University, 217 Kan. 279, 540 P. 2d 66, as modified on rehearing this date, controls the disposition of the tort claims in the cases herein consolidated for rehearing. (Brown v. Wichita State University, 217 Kan. 279, 540 P. 2d 66 and Brown v. Wichita [23]*23State University, P.E. C., Inc., 217 Kan. 661, 538 P.2d 713.) In other words, the constitutional validity of K. S. A. 46-901, et seq., which grants governmental immunity to agencies of the state as set forth in the legislative enactment, must be recognized. Factual issues remain to be determined at the trial level on viable issues sounding in contract.
For the reasons stated in the first thirteen syllabi and the corresponding portions of the opinion in Brown v. Wichita State University, 217 Kan. 279, 540 P. 2d 66, the judgment of the trial court, granting the appellees’ motion for summary judgment, is reversed.