ROSE, Justice.
CONTENTION OF THE PARTIES
The plaintiffs charge that damage to their home was caused from a sewer backup which occurred as a result of the defendant-city’s negligent planning, construction and maintenance of its sewer line. Plaintiffs ask money damages and injunc-five relief to compel the city “to take necessary steps to replace the sewer line.” Additionally, the plaintiffs-appellants rely upon the doctrine of res ipsa loquitur to supply evidence of defendant’s failure to exercise due care.1
In response, the defendant-appellee-City of Worland contends that it was not negligent in the construction — design—operation or maintenance of the sewer line, nor was its alleged negligence a proximate cause of the purported damage. The city also asserts the doctrine of res ipsa loquitur is not available under the applicable law and the facts of this case. Moreover, the city says that the plaintiffs cannot rely upon negligent construction and design of the sewer nor the doctrine of res ipsa loquitur because construction and design of a sewer is a governmental function for which, contends Worland, the city enjoys governmental immunity.2
ISSUES FOR DECISION
With the legal position of the parties thus defined, we address ourselves to these issues:
A. Was the city’s alleged negligence in the planning, construction and maintenance of the sewer line a proximate cause of the plaintiffs’ damages?
B. Is the doctrine of res ipsa loquitur available to the plaintiffs, absent immunity ?
C. Does the doctrine of sovereign immunity apply in Wyoming in a way such as to make the concepts of negligence in design and construc[421]*421tion and res ipsa loquitur moot in this case?
D. Is the doctrine of sovereign immunity any longer applicable in Wyoming?
FACTS
An expert testified the sewer line in question was a six-inch line which emptied into an eight-inch line — that the line would probably be an eight-inch line if it were built today — he judged that it had. not been anticipated that the line would be extended at the time it was built and said that at one time he had suggested it be replaced. He agreed that the grade could have some effect on the plugging propensities of a sewer line and he noted the grade for this line was not constructed as originally planned. The witness prepared a study of the line which shows that it is adequate to serve the 287 people now served by it. There was testimony to the effect that the way the line was designed and built was not the way it should be designed and built and that the city should have gone to an eight-inch line. A witness said it was bad practice to have a minimum flow of less than two feet per second and the minimum flow of this line was less than that in its west segment. It was the expert’s observation that in designing, all possibility of plugging cannot be eliminated, but:
“ . . . [Y]ou try and design as best yoa can to eliminate as many problems as possible . . . ”
There was testimony to the effect that there was no way to prevent a sewer from becoming plugged with foreign objects. Officials of the city testified that this was the first plugging in this line in this area since its construction in 1950.
The plaintiffs-householders testified about the water in the basement and in the manhole behind their house and further said that the city crew, once it located the plug, had no trouble in unplugging the line.
Except for damages, this was the essence of the proof as shown by the record and as summarized by the appellants’ brief.
Appellants contend that they have made a prima facie showing of the appellee’s negligence and have adequately proven such negligence to be a proximate cause of the damage complained of.
PROXIMATE CAUSE
At the end of the plaintiffs’ case, the ap-pellee-city made a motion to dismiss which was granted. A judgment was entered, the court stating:
“. . . [T]he Plaintiffs have failed to prove by a preponderance of the evidence that any negligence on the part of the City was the proximate cause of Plaintiffs’damage; . . .”
We agree with the holding of the trial court, except that we would have omitted the words “a preponderance of the evidence” so that the sense of the pronouncement would read that the plaintiffs had failed to prove proximate cause with any evidence. There is no causal relationship shown by this record connecting any alleged negligence of the defendant with damage claimed by the plaintiffs.
Plaintiffs have to show in the trial of their cases that the negligence caused the injury and damage unless some other acceptable proof theory comes to their rescue. Furthermore, negligence cannot be presumed from the mere happening of the accident. Elite Cleaners and Tailors, Inc. v. Gentry, Wyo., 510 P.2d 784, 788.
We do not pass upon the question of whether or not the plaintiffs made a prima facie showing of negligence in the area of construction, design or maintenance, but we do affirm the trial court and hold that there was no proof that any such purported negligence was the proximate cause of plaintiffs’ claimed property damage.
In Savage v. Town of Lander, 77 Wyo. 157, 175, 309 P.2d 152, 158, where a verdict was directed against the plaintiff who charged negligent maintenance of a gutter, we held that, although there was some proof of negligence, there was no proof of proximate cause and said:
[422]*422“To justify a recovery the wrongful act charged must be the proximate or legal cause of the injury complained of. See Lemos v. Madden, 28 Wyo. 1, 200 P. 791; 15 Am.Jur., Damages, § 65; 38 Am.Jur., Negligence, § 51; 52 Am.Jur., Torts, § 30; 65 C.J.S. Negligence,- §§ 104, 106.”
That rule is applicable here.
Where is the evidence of negligent planning, construction or maintenance from which the trial court or this court could find the damages to have flowed ?
The engineering experts were never asked whether or not, in their opinion, the alleged faulty design, construction and/or maintenance was or could have been a contributing cause of the clogged sewer line under the proven facts of this case. Furthermore, they did not testify that, in their opinion, such was the case.
To satisfy the plaintiffs’ proof requirements in a way which would have withstood the onslaught of a motion to dismiss (unless res ipsa supplies the evidentiary deficiency) it was necessary either to have testimony as to the cause of the plugging or an opinion of an expert based upon evidence from which he could draw an acceptable conclusion. There was no proof that the defendant’s purported negligence was the proximate cause of the plaintiffs’ damage.
We do not pass upon whether there was sufficient evidence in the record to furnish the foundation for a hypothetical question from which an opinion could be elicited. We do hold, however, that without properly-founded expert opinion and absent hard evidence connecting the plugging with the alleged negligent construction, design and/or maintenance, the causation requirements were not fulfilled.
RES IPSA LOQUITUR
The appellants-plaintiffs further assign error charging that the doctrine of res ipsa loquitur applies and, because of it, the court should have ruled the plaintiffs to have been rescued from the severe result which comes with the sustaining of the defendant’s motion to dismiss.
The defendant-appellee contends that res ipsa is not applicable for the reason that the consulting engineer, Robert L. Champ-lin, in his testimony, stated that there was no way to prevent a sewer from becoming obstructed by foreign objects. Defendant therefore reasons that appellants are precluded by Stanolind Oil & Gas Co. v. Bunce, 51 Wyo. 1, 62 P.2d 1297, 1301-1302, where we held that the doctrine does not apply unless the “apparatus” (sewer line) is such
“that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; . . . ”
It is true that the essence of Dr. Champ-lin’s testimony is as contended by appellee. The witness testified:
“Q. What has your experience or familiarity shown you ?
“A. All sorts of things are found in sewer lines. The Denver system has their main sewer plant is downstream from several meat packing areas and have had cows [sic] heads, steers .[sic] heads, coming down the sewer lines, tremendous limbs. How they get in the sewer line I have no idea. All sorts of materials show up in sewer lines, yes, sir.
“Q. If the experience in Worland have been they have long pieces of two by four, large boulders and foreign objects like that, could you accept that as being true ?
“A. Yes, sir, I would.
“Q. And there isn’t any way that the City by design or maintenance can prevent clogging from those causes, is there ?
“A. From my experience every city seems to have some of this happening at certain periods, yes, sir.”
At page 66, line 12, these questions were asked:
[423]*423“Q. You do know that sewers generally plug every place, don’t they ?
“A. Occasionally.
“Q. It isn’t only in the four or six inch but in the eight and ten inch too, isn’t it?
“A. That is a possibility .
“Q There isn’t any way for the — for a municipality to anticipate where and when a sewer is going to be plugged, is there?
“A. No, sir. Cities do have certain areas of towns certain areas of the town or city that they have problems with. This is a normal thing. A certain section might have more problems than other sections. Again, it has to do with the velocities and the use of the sewers themselves and so forth. You cannot predict that, no, sir." [Italics supplied]
There is no evidence elicited to refute the witness’ position that all sewers occasionally become plugged and that this condition occurs even though due care is exercised in the design, construction and maintenance of a sewer line.
The doctrine of res ipsa loquitur cannot substitute the missing causal evidence here in face of the rule announced first by us in Stanolind, supra, and later in Rafferty v. Northern Utilities Company, 73 Wyo. 287, 278 P.2d 60S, and thereafter followed in Hall v. Cody Gas Company, Wyo., 477 P. 2d 585; Sayre v. Allemand, Wyo., 418 P. 2d 1006; North Central Gas Company v. Bloem, Wyo., 376 P.2d 382; and Langdon v. Baldwin-Lima-Hamilton Corporation, Wyo., 494 P.2d 537, which is:
“ . . . ‘[W]hen a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an éxplanation, that the injury arose from the defendant’s want of care.’ ” [Italics supplied] (From Stanolind Oil & Gas Co. v. Bunce, supra, wherein we adopted the definition of the doctrine of res ipsa loquitur from San Juan Light & T. Co. v. Requena, 224 U.S. 89, 32 S.Ct. 399, 401, 56 L.Ed. 680.)
We must therefore conclude, based upon the uncontradicted testimony of competent witnesses in this case, that sewer lines in the ordinary course of things do cause damage by reason of plugging even though due care is exercised in construction, design and maintenance and thus the doctrine of res ipsa loquitur is not applicable.
In reaching this conclusion, we do so based upon the evidence in this record and we do not hold that, in the proper case, the doctrine of res ipsa loquitur can never come to the aid of a plaintiff who has suffered injury or damage from a municipally-constructed, designed, owned and operated sewer line. See Cummins v. City of West Linn, Or.App., 536 P.2d 455 (1975).
INJUNCTIVE RELIEF
Since there is no liability, there can, of course, be no injunctive relief. Before injunctive relief will be granted the thing complained of must have caused actual injury and the cause must be proven and identified. It is said in 42 Amjur2d, Injunctions, § 30, p. 766:
“ . . .It must be a material and actual injury, existing or presently threatened, and not one that is fanciful, theoretical, or merely possible, or that is doubtful, eventual, or contingent.”
GOVERNMENTAL IMMUNITY3
Introduction
Notwithstanding our holding on the issues of proximate cause and res ipsa loqui-tur, I would hold that the question of gov[424]*424ernmental immunity is squarely before us because the appellee, City of Worland, urges that even if it were shown to be negligent in the construction and design of the sewer system and its negligence proven to be the proximate cause of the damage— nonetheless, it is not liable because the construction and design of sewers are governmental functions and in these pursuits the city is immune from tort claims.4 The cases cited in support of this proposition are: Quest v. Town of Upton, 36 Wyo. 1, 252 P.2d 506; Wilson v. City of Laramie, 65 Wyo. 234, 199 P.2d 119; Savage v. Town of Lander, 77 Wyo. 157, 309 P.2d 152; Maffei v. Incorporated Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808; Lore v. Town of Douglas, Wyo., 355 P.2d 367; Chaves v. City of Laramie, Wyo., 389 P.2d 23; Town of Douglas v. York, Wyo., 445 P.2d 760; and McCormick v. Town of Thermopolis, Wyo., 478 P.2d 67.
If Worland enjoys governmental immunity, it would not matter whether it was negligent in the design or construction of its line or whether its negligence was a proximate cause of the alleged damage to the plaintiffs, or whether, if the negligence and proximate cause could not be proven, the doctrine of res ipsa loquitur would come to the aid of the complainants in an evidence-supplying or burden-of-proof-shifting context.
Plaintiffs, when bringing suit in Wyoming against the state, counties, municipalities or their various subdivisions must invade and destroy the sacrosanct and heretofore impenetrable citadel of governmental immunity or they have no cause of action in tort unless the state has waived the immunity of the governmental entity or unless the court, by decision, will modify, waive or abrogate the defense of immunity.
ABROGATION OF SOVEREIGN IMMUNITY
Do We Dare Disturb the Universe ?5
In holding that the governmental subdivisions of the state are subject to suit for damage to individuals injured by the negligent or wrongful acts or omissions by their agents and employees, the North Dakota Supreme Court, in Kitto v. Minot Park District, N.D., 224 N.W.2d 795 (1974) cited a “veritable host of courts which have abolished the doctrine.”6 There have been [425]*425others since and I will use many of these opinions in support of my position here.
I am ready to come to grips with this problem of governmental immunity — no holds barred. I am ready (as Mr. Justice Parker, in his dissenting opinion in Collins v. Memorial Hospital of Sheridan County, Wyo., 521 P.2d 1339, would have had us do) to
“ . . . clean the ‘Aegean stable’ . forthrightly and not by innuendo.”
The “stables” would then be spotless— antiseptic, in fact.
The sovereign or governmental immunity principle holds that the state, its subdivisions and municipal entities may not be held liable for a tortious act perpetrated while engaged in a governmental .function.7 The historical origin of the rule is popularly said to be in the English case, Russell v. The Men of Devon, 2 Term.Rep. 667, 100 Eng.Rep. 359 (KB 1788). However, there is some question as to just how and where the doctrine originated — a matter which takes on some importance in this opinion. Justice Harnsberger, in Maffei v. Incorporated Tovun of Kemmerer, 80 Wyo. 33, 338 P.2d 808 (April 1959), wrote that this court is committed to the concept of immunity through legislative fiat by reason of the doctrine’s fusion with the common law of England in the 1500’s and our legislature’s enactment of § 8-17, W.S.1957, adopting the common law prior to the fourth year of James I (1607) as the decision law of Wyoming. Maffei, the statute and applicable constitutional provisions will be analyzed because, in repudiating sovereign immunity for Wyoming — which I would do — I would overrule the holdings in the Maffei case and all other opinions in conflict with what I say here.
In rejecting sovereign immunity, I would hold, as we did in Collins v. Memorial Hospital, supra,8 that the doctrine is court-created and thus may be court-abrogated; I would reject and deny the doctrine of immunity for the state, county and municipal governments, as well as every division, subdivison and agency of the state, counties or municipalities. In other words, if mine were the majority opinion on this issue, sovereign immunity, by this decision, would be abrogated in Wyoming.
“The King Can Do No Wrong”
The Repudiation of an Archaic Anomaly
In the article, “Governmental Immunity from Damage Actions in Wyoming,” by David Minge, Assistant Professor of Law, [426]*426University of Wyoming,9 the author observes :
“ . . . ‘[T]he King can do no wrong,’ was an early expression of the doctrine . . . ”
and
“ . . . It is one of the anomalies of legal history that in England the growth of parliamentary democracy was accomplished by the retention of a rule that placed the losses caused by the wrongful acts of the crown upon the innocent victim . . . ”
The Wisconsin Supreme Court says, in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 NW.2d 618, 620 (1962):
“The rule of sovereign immunity developed in this country from an English doctrine and has been applied in the United States far beyond its original conception. The doctrine expanded to the point where the historical sovereignty of kings was relied upon to support a protective prerogative for municipalities. This, according to Professor Borchard, ‘is one of the mysteries of legal evolution.’ Borchard, Government Liability in Tort, 34 Yale L.J. 1, 4 (1924). It would seem somewhat anomalous that American courts should have adopted the sovereign immunity theory in the first place since it was based upon the divine right of kings.”
If there was ever a time when the doctrine had a place in the judicial processes of this country or this state (which I doubt), it has long since passed. Justice Montoya, writing ably for the New Mexico Supreme Court’s rejection of governmental immunity in Hicks v. State of New Mexico, N.M., 544 P.2d 1153 (1975), attaches a score card as an appendix which shows that 21 states have abolished immunity — 9 have partially abolished it- — 8 states have abolished or waived the concept where insurance is carried — while only 13 states (including Wyoming) continue to fully retain the doctrine.10
In Hicks, supra, Justice Montoya alludes to what the Supreme Court of Pennsylvania said in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877, 881-882 (1973):
“Governmental immunity can no longer be justified on ‘an amorphous mass of cumbrous language about sovereignty . ’ Le Fiar and Kantrowitz, Tort Liability of the States, 29 N.Y.U.L.Rev. 1363, 1364 (1954). As one court has stated:
“ ‘ . . . it is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism sup-' posed to be implicit in the maxim, ‘the King can do no wrong,’ should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.” Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 480, 482. Likewise, we agree with the Supreme Court of Florida that in preserving the sovereign immunity theory, courts have overlooked the fact that the Revolutionary War [427]*427was fought to abolish that “divine right of Kings” on which the theory is based.” ’ ”
In Spanel v. Mounds View School District No. 631, 264 Minn. 279, 118 N.W.2d 795, 799 (1962), where the doctrine had been invoked with the result that the courts of Minnesota were constrained to deny the petitions of a blind man, a lame man, and a woman who was “halt,” the court, speaking through its conscience, said:
“ . . . We have been troubled for three generations by the unheeded petitions of the lame Frederick Bank, the halt Jennie Snider, and the blind Frank Mokovich. Since we have repeatedly proclaimed that this defense [immunity] is based on neither justice nor reason, the time is now at hand when corrective measures should be taken . . . ”
[Bracketed matter supplied]
The author of the opinion in Spanel, supra, observed that the Florida Supreme Court, in Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 132, 60 A.L.R.2d 1193, 1195; Annotation, 60 A.L.R.2d 1198,
“. . . abolished tort immunity as to the governmental functions of municipalities on the ground that the Revolutionary War abrogated the doctrine that ‘the king can do no wrong.’ ”
California abolished tort immunity in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 92, 359 P.2d 457, 460; 49 Calif.L.Rev. 400, when Mr. Justice Traynor said of the doctrine that it is
“an anachronism, without rational basis, and has existed only by the force of inertia . . .”
It was said in Evans v. Board of County Commissioners of County of El Paso, 174 Colo. 97, 482 P.2d 968, 969:
“. . . The monarchical philosophies invented to solve the marital problems of Henry VIII are not sufficient justification for the denial of the right of recovery against the government in today’s society. Assuming that there was sovereign immunity of the Kings of England, our forebears won the Revolutionary War to rid themselves of such sovereign prerogatives. [ Footnote omitted] ”
We could go on ad infinitum citing court decisions which articulate the philosophy of the doctrine’s repudiation in America. The above excerpts are typical.
STARE DECISIS
Time to Change? 11
In his writing against the age-old acceptance of the traditional mistakes of the law which he found moribund by the chains of legal doctrinaire, Justice Benjamin N. Cardozo said in “Law and Literature,” published in 1931:
“The time is ripe for betterment. ‘Le Droit a ses epoques,’ says Pascal in words which Professor Hazeltine has recently recalled to us. The law has ‘its epochs of ebb and flow.’ One of the flood seasons is upon us. Men are insisting, as perhaps never before, that law shall be made true to its ideal of justice. Let us gather up the driftwood, and leave the waters pure.”
It was Cardozo’s fear that the courts had become so precedent-bound by stare decisis and the rules of the common law which no longer serve us, that the profession could not escape without help from the outside. He was advocating the establishment of a “Ministry of Justice” in the Executive Branch of the Government, the purpose of which would be to save lawyers and courts from themselves.
[428]*428Perhaps in 1931 Justice Cardozo could not envision the possibility of the courts finding their way out of their dilemma— but progress is being made — and we are making it here.
Justice Raper of this court, in Tavares v. Horstman, Wyo., 542 P.2d 1275, 1278, when repudiating the doctrine of caveat emptor as applied to the sale of real property and, alternatively, adopting the philosophy of implied warranty, turned to the writings of Justice Cardozo who said:
* * * If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.’ ”12
Judge Johnson, writing for the Supreme Court of North Dakota in Kitto v. Minot Park District, N.D., 224 N.W.2d 795, 802 (1974), where that court was engaged in the repudiation of the concept of sovereign immunity from tort action, said of stare decisis:
“Interrelated with this question of legislative and judicial function is the role of stare decisis — reliance upon precedent. This is a rule of life, as well as the law. Even the smallest child expects that what has been granted in the case of his older brother will also be granted to him. However, the rule is not inflexible or we should still be literally following decisions of the courts of William the Conqueror. The common law requires the personal evaluation and experience of individual judges. As Chief Justice Erick-stad has observed, ‘If it were the sole purpose of this court to decide today’s controversies in light of its earlier decisions, much of our work could be taken over, after proper programming, by a computer, . . . ”
Justice Wheeler, in Dwy v. Connecticut Co., 89 Conn. 74, 99, 92 A. 883, 891, described the atmosphere in which stare de-cisis should be contemplated when he said:
“That court best serves the law which recognizes that the rules of law which grew up in a remote generation may in the fullness of experience be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance upon the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the Legislature.”
It was said in Long v. City of Weirton, W.Va., 214 S.E.2d 832, 859 (1975) :
“For the foregoing reasons, we believe the rule of municipal government immunity from tort liability previously applied in this jurisdiction to be unsound and unworkable ... As respects the doctrine of stare decisis, the writer calls upon the words and recitations of Justice Caplan in the decision of Adkins v. St. Francis Hospital, 149 W.Va. 705, 143 S. E.2d 154 (1965). In the process of overruling the doctrine of charitable immunity, the Court said:
“ ‘We think that it is sufficient to say that a rule or principle of law should not be adhered to if the only reason therefor is that it has been sanctified by age. As expressed in Lovings v. Norfolk & W. Ry. Co., 47 W.Va. 582, 35 S.E. 962, “It has been well said that ‘it is better to be right than to be consistent with the errors of a hundred years’.” ’ ”
In addressing himself to the role of stare decisis in the sovereign immunity context, [429]*429now Chief Justice Guthrie said in Collins v. Memorial Hospital, supra:
“. . . The writer freely concedes the importance, necessity, and strength of the doctrine of stare decisis and following precedents in areas which might or do threaten the stability of the law, and which may or might conceivably interfere with vested rights, but is unable to utilize this doctrine as a justification for the continuance of an unfair and improper rule which operates to the detriment of those who may suffer tortious injury from such institutions (as hospitals) and which may be ameliorated at least to the extent of the liability insurance coverage without harm to any person or institution.” [Parenthetical matter supplied]
I join the writers and courts quoted and cited here and I adopt the philosophy expressed by them as it relates to the doctrine of stare decisis where sovereign immunity is the issue. I cannot go blindly on embracing an age-old doctrine which not only no longer serves us (if indeed it ever did) but which, in fact, imposes a great disservice upon us when its evils are viewed under the magnifying glass of this different and enlightened age.
The judicial conscience must no longer permit us to tolerate a principle of human behavior which, out of hand, denies the injured, the maimed and the loved ones of the dead a right of action against wrongdoing just because the wrongdoer is a servant of the state or municipality. If the state and its entities are to expose the people and their property to negligent acts, then government must expect to respond to suit.
Governmental entities in Wyoming should no longer receive protection from a doctrine whose only claim to judicial integrity is that it is ancient. A concept should not be permitted to longer live here just because it is old — it must also be just.
JUDICIAL ABROGATION OF SOVEREIGN IMMUNITY IN WYOMING
A. The Constitutional Question
I turn my attention to a constitutional overlay which is present in the state sovereign immunity area.
The Wyoming Constitution, Article 1, § 8, provides:
“. . . Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.”
The question posed is whether Article 1, § 8, presents such an impasse as would prevent our abrogating the common-law doctrine of state sovereign immunity. In other words, does this provision grant immunity to the state? I think it does not. For us to hold that the defense of immunity can no longer be raised by the state is in no way offensive to the Constitution which provides that the legislature will specify the manner of bringing the suit and the forum in which it will be brought.
The decisions of this court do not indicate that the genesis of the state’s sovereign immunity is lodged in the Constitution. We have held to the contrary when we said in Collins, supra, that the rule of immunity is court-created.
While the earliest Wyoming case on the question holds that Article 1, § 8, of the Wyoming Constitution precludes a suit to quiet title of University of Wyoming land as being a suit against the state without its consent,13 we have subsequently recognized that the state can be sued without the authority of the legislature where the act complained of was undertaken while in pursuit of a proprietary function.14
[430]*430We said in National Surety Co, v. Morris, 34 Wyo. 134, 152, 241 P. 1063, 1067, that the state loses its sovereign immunity when it
. . places itself in the same class and on the same footing with private individuals in connection with its property rights . .
This rule was held to be applicable where the state had deposited its funds in an interest-bearing account at a bank and, by so doing, waived preference in the bank’s assets upon liquidation.
In Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 32, 177 P.2d 397, 402, when considering the question of whether the State Liquor .Commission (the alter ego of the state) could be made liable to suit without consent of the state, we said:
“The ultimate test of liability or non-liability to suit in this case must then be found in the answer to the question whether the Wyoming Liquor Commission was or was not an agency engaged in a governmental function . . . ”
In Ellis v. Wyoming Game and Fish Commission, 74 Wyo. 226, 286 P.2d 597, we held that an action against an agency of the state engaged in a governmental function does not lie without the consent of the state.
It would, then, seem incongruous indeed to say that the Constitution prohibits all suits against the state except those to which the legislature has consented, while at the same time recognizing that in some instances suit may be brought without legislative authority if the complained-of undertaking is being carried on while the state is engaged in a proprietary function. It must be assumed that the Constitution either grants immunity or it does not. I think it does not and that the birthplace of the doctrine is in the common law. (Collins, supra)
It is my judgment and opinion that Article 1, § 8, is intended to and does furnish specific recognition that suit may be brought against the State of Wyoming, provided only that the State Legislature must establish the conditions and the forum under and in which the litigation may be undertaken.15
For this court to hold that the Constitution does not endow the state with immunity squares with our previous holding in Collins, supra, that the doctrine is court-created. If the Constitution granted immunity to the state neither this court nor the legislature could take jurisdiction of matters coming within the perimeter of the problem without an amendment.
Consistent with these thoughts and, I presume, in an effort to cause the statutes to comport with our holding in Collins v. Memorial Hospital,16 the legislature in 1975 provided that the defense of governmental immunity will be waived to the [431]*431extent of the limits of liability insurance carried by the government entity.17
This statute surely says that the legislature recognizes that the basis of the doctrine is not founded in the Constitution because if it were the legislature would be without power to pass § 1-1018.1, Laws 1975, ch. 197, § 1. (W.S.1957, 1975 Cum. Supp.)
B. The Statutory Question
The Town of Kemmerer v. The Men of Devon
In Maffei v. Incorporated Town of Kemmerer, supra, Justice Harnsberger cited from what we said in Savage v. Town of Lander, 77 Wyo., 157, 164-165, 309 P.2d 152, 153-154, where we held:
“ ‘. . . The rule is generally recognized that in the absence of statutory provision there can be no recovery against a municipal corporation for injuries occasioned by its negligence or non-feasance in the exercise of a function which is essentially governmental in character. * * ”
This had long been the accepted rule in Wyoming. In Maffei it was reaffirmed in the face of appellant’s challenge to the court to
" . . . renounce this generally recognized doctrine of municipal immunity and to judicially declare that what is said to be a modern and better public policy is the law of this State.”
Justice Harnsberger, writing for the court, said:
“ . . . This we may not do.” — at the same time recognizing the unfairness of the doctrine when he said:
“We can agree that a rule of law which is merely the product of judicial decision, 'born of the necessities of particular circumstance, is subject to judicial repudiation when the reasons which gave rise to its judicial adoption have failed or no longer exist . . . ”18
Before we in this court can accomplish the rejection of the doctrine of sovereign immunity we must contemplate our holding in Maffei, as reinforced by Davis v. Board of County Comm’rs, supra.19 We must determine whether we are possessed of the jurisdiction to abrogate the doctrine. In Maffei this court held that it does not possess the power (it is without jurisdiction) to repudiate the doctrine of sovereign immunity since only the legislature had the authority to so act under the present state of the law and the statutes.
The paraphrased reasoning and effect of the Maffei opinion is as follows:
The old English case of Russell v. The Men of Devon (decided 1788) was not the “judicial parent of the doctrine” (Holytz v. City of Milwaukee, supra), but, rather, the concept had long before this (in the 1500’s) become a part of the common law. The effect of arriving at such a conclusion was to place the decision-making on the question of sovereign immunity outside the jurisdiction of this [432]*432court and vest it in the legislature. This is so because, as we said in Maffei:
“Section 16-301, W.C.S.1945 [now 8-17, W.S.1957]20 says the Common Law of England prior to the fourth year of James I (1607) ‘shall be the rule of decision in this state.’ Thus by statute the doctrine of municipal immunity became the rule of decision in our State and it is only by statute that the doctrine should be abrogated.” [Bracketed matter supplied]
Therefore — if the common law provided for immunity before the fourth year of James I (1607), Wyoming has, by legislative enactment, adopted the rule of immunity as a part of the common law and this court (it is argued in Maf-fei) is powerless to act. If, however, the doctrine was born after 1607 (for example, in Russell v. The Men of Devon (1788)), then we are not so inhibited.
I here reaffirm the Collins holding that sovereign immunity is a “court-created rule” and in so doing would repudiate and overrule any finding or conclusion reached in Maffei, Davis, and any and all other opinions of' this court which would have the effect of preventing us from exercising this court’s decision-making powers in the realm of governmental immunity. In doing this, I submit these reasons which now support a conclusion opposite that reached in Maffei and Davis.
Justice Harnsberger, in Maffei, discovered a reference in The Men of Devon case to Brooke’s Abridgement, published before 1558, which indicated to him that the doctrine of sovereign immunity had been a part of the body of the common law since that time. All other scholars and writers that I have studied (except the opinion in one case, infra,) subscribe to the theory and belief that the doctrine had its genesis in Russell v. The Men of Devon (1788), supra.21 In the sixteen years since the publication of Maffei, I have found only once court which subscribes to or adopts our theory that the birth of the doctrine occurred before The Men of Devon.22 I would be constrained, therefore, to repudiate the theory that the origin of immunity is in the cases reviewed in Brooke’s Abridgement and accede to the school of legal thought which dates the doctrine as 1788, the year The Men of Devon was decided. To accept this concept would have the following effect: Since the statute adopts the common law extant prior to 1607 as the rule of decision in Wyoming, this court is, therefore, in no way impeded by statute or legislative prohibition in its contemplation of a common-law doctrine which had its birthdate the year 1788.
Since, therefore, the rule is court-made, and not legislatively-adopted, this court has exclusive jurisdiction over it.
[433]*433• I would hold the doctrine of sovereign immunity at all levels of state, county and municipal government to be prospectively abrogated from the date of this opinion, provided, however, that no action could be brought under its authority prior to August 1, 1976. I would establish the last-mentioned date for the purpose of permitting the state, through the legislative session of 1976, to accommodate its budget and insurance program to this holding, and likewise, to allow adequate time for counties, municipalities and other governmental subdivisions to make their financial and liability insurance arrangements.23
Affirmed.
McCLINTOCK and THOMAS, JJ., not participating.