Vogts v. Guerrette

MR). Justice Frantz

dissenting:

Candor requires the admission that appellate courts of a number of states have held Guest Statutes not violative of some of the constitutional provisions cited in the proceedings of this case. But, in my humble opinion, these courts have not, as intimated in the majority opinion, resolved all or satisfactorily the serious problems presented to us for determination. In those decisions relied upon by the majority, constitutional safeguards apparently were , fed to the capacious maw of police power, as if rights guaranteed by a written constitution must succumb to the unwritten law known as the police power.

Broken bodies, loss of eye or limb, and even loss of *548 life, resulting from negligence of the host, must go uncompensated, no matter how meritorious the claim of the non-paying guest, because in the exercise of the police power an end must be put to those suits in which hosts and guests collude to mulct insurance companies in damages. What injustice to the many claims based upon the legitimate ground of negligence!

If collusion and perjury warrant legislation such as the Guest Statute, perhaps the legislature could with as much justification do away with trial courts. For notwithstanding the existence of constitutional provisions for the establishment of courts, the police power with equal propriety could be invoked to put an end to trial process in order to prevent collusion and perjury. As well confess that .the whole trial machinery for arriving at truth has failed, that the taking of depositions, propounding written interrogatories, pretrial procedures, cross-examination, evidence and counter-evidence, and so forth are deficient totally, as to recognize futility in one segment of our system of adversary proceedings.

This opinion is more than just a dissent — it is a warning and the sounding of an alarm. In the ultimate the stakes in this case are high: the rights of man as an individual and person are under fire. On this matter there shall be no leap in the dark by this court; if the opinion shall be that the Guest Statute is valid, it shall be accepted for what it is: a derogation of the “natural, essential and inalienable” rights of man which we as judges are sworn to protect and enforce.

Permit the legislature to despoil the man, permit inch-meal destruction of his innate rights as an individual, and eventually he will not be what the Declaration of Independence and the Constitution recognize him to be — a creature endowed with certain inherent, inalienable rights — but something greatly less than man, subject to the dictates, yes, the whims of the state. Every retreat, if only by inches, from the concept of man as a person of individual, innate rights, is a move nearer the *549 complete divestiture of those attributes which distinguish man from the remainder of creation. The Bill of Rights, the protective shield of natural rights, marks the great difference between this country and those authoritarian states subscribing to materialistic statism.

There is a proneness to regard constitutions as instruments of boundless accommodation, taking on so many shapes as in truth to be shapeless, and all because of the seductive notion that constitutions are Protean. That their generalities make for living documents covering changes in a developing society, no one will deny; but there are “no trespass” signs in these constitutions, effective against encroachment by the executive, legislative and judicial departments in certain areas, and among these areas are the natural rights of man enumerated in the Bill of Rights.

Natural rights, recognized and professed and secured by language of lucidity and in terms of utmost solemnity in the Constitution of this state, hold a precedent position in that fundamental document. And this is rightfully so when the rank of rights is clearly understood, for there is a hierarchy of rights. In a descending scale of importance, rights are natural, civil, political and social. Rights which are natural are necessarily inherent, innate, coming from the very elementary laws of nature, such as life, liberty, the pursuit of happiness, and self-preservation. All other rights are the outgrowth of civilization, and are derived, defined and circumscribed by the positive law of the community. Byers v. Sun Savings Bank, 41 Okla. 728 , 139 Pac. 948 , 52 L.R.A.N.S. 320 , Ann. Cas. 1916 D 222.

It was not fortuitous that the Bill of Rights of our Constitution was placed after the Preamble and Article I, fixing the boundaries of this state. A study of the Constitution induces the belief that the Bill of Rights was designedly given such preeminence. Primacy of position resulted from primacy of importance. We should *550 be ever mindful that the Constitutional Convention was imbued with the political philosophy in which natural rights were fundamental and paramount, and, moreover, that this body had a mandate to see that these rights were memorialized and preserved. Sec. 4, Enabling Act.

The Enabling Act (Section 4) provided for a Constitutional Convention which was “authorized to form a constitution and state government for said territory; Provided, That the constitution shall be republican in form, * * * and not be repugnant to the constitution of the United States and the principles of the Declaration of Independence” (Emphasis supplied.) Among the principles of the Declaration of Independence thus to be inviolate are these timeless, treasured, ineraticable truths: that men “are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights, governments are instituted among men,” and so forth. (Emphasis supplied.)

Pursuant to the precise requirements of the Enabling Act the Constitutional Convention formed a constitution which was adopted by the people of the proposed State of Colorado. Article II thereof was entitled “Bill of Rights.” Not only was this Constitution in harmony with the precepts of the Declaration of Independence, but the Bill of Rights contained express and affirmative provisions which made these precepts a vital part of the Constitution and shored them up with living, positive language.

Seldom has there'been such felicitous coincidence of literalism and spirit of a document as appears in the language employed in the Bill of Rights. Both the letter and the spirit “giveth life”; heeding one, we heed the other.

In unadorned, direct and concise language the Bill of Rights in part reads:

“In order to assert our rights, acknowledge our duties, *551 and proclaim the principles upon which our government ¿s founded, we declare:

í ^ Í

“Section 3. Inalienable rights. —All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.

* ❖ ❖

“Section 6. Equality of justice. —Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.

“Section 25. Due process of law. —No person shall be deprived of life, liberty or property, without due process of law.

* * *

“Section 28. Rights reserved not disparaged. —The enumeration in this constitution of certain rights shall not be construed to deny, impair or disparage others retained by the people.” (Emphasis supplied.)

In the Declaration of Independence, the Enabling Act, and the Constitution of this state is language which should control our decision of this case. To these sacred and solemn instruments we should defer; indeed, it is our grave duty to obey the ordinations so explicity to be found in these documents.

Often forgotten in the resolution of the rights of the individual are the enabling acts. Generally, enabling acts forbid the-formation of constitutions in which the rights of man as defined in the Declaration of Independence are disregarded or abridged. Life, liberty and the pursuit of happiness are among these rights said to be “unalienable.” Neither federal nor state government *552 may take away or impair these rights, for men “are endowed by their Creator with” them.

The Enabling Act under which the State of Colorado was admitted to the Union is fundamental and paramount law to which the Constitution and the laws of the state must conform. People v. Cassiday, 50 Colo. 503 , 117 Pac. 357 ; Murphy v. State, 65 Ariz. 338 , 181 P. (2d) 336 ; Frantz v. Autry, 18 Okla. 561 , 91 Pac. 193 .

“This Enabling Act was accepted by the people of Arizona * * * , and it, therefore, became and is the fundamental and paramount law. It cannot be altered, changed, amended, or disregarded without an act of Congress. * * * The Arizona Constitution cannot be inconsistent with the Enabling Act.” Murphy v. State, supra.

“ * * * The convention has and can exercise plenary power subject to the limitations: (1) that the Constitution shall be republican in form; (2) that it shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence; (3) that no distinction shall be made on account of race or color; and (4) that the convention shall accept by ordinance irrevocable all the terms and conditions of the enabling act.

“It is true that Congress has the power to impose conditions upon a territory, as a condition precedent to entitle it to admission as a state. Accordingly, Congress placed certain restrictions and limitations upon the Convention, which it was required to incorporate into the Constitution, and to be ratified by the people. These limitations and restrictions, when ratified by the people, become a part of the fundamental law of the state.” (Emphasis supplied.) Frantz v. Autry, supra.

What is this Bill of Rights which incorporated in detail and in definitive form the philosophy of the dignity of the individual enunciated in the Declaration of Independence? The Bill of Rights is a litany of “certain great political truths essential to the existence of free *553 government.” Weimer v. Bunbury, 30 Mich. 201 . That these rights are essential to the continued existence of our government as an institution of free men should be pondered, for, I am certain, the longer the mind dwells upon the import of this truth the more zealous and jealous we become in a determination that these rights should retain their God-given integrity.

Our Bill of Rights should not be regarded as a mere “compilation of glittering generalities. * * * Many of its sections are clear, precise, and definite limitations upon the power of the legislature, and every other officer and agency of the people.” An act of the legislature in an attempted avoidance of limitations placed upon it by the Bill of Rights is a nullity. Rights guaranteed thereunder may not be nullified by legislative action. Atchison Street Ry. Co. v. Missouri Pac. Ry Co., 31 Kan. 661 , 3 Pac. 284 .

Do we render mutable that which was intended to be constant and invariable by sanctioning the legislation in question? “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” West Virginia State Board v. Barnette, 319 U.S. 624 , 87 L. Ed. 1171 , 63 S. Ct. 1628 , 147 A.L.R. 674 . See Zavilla v. Masse, 112 Colo. 183 , 147 P. (2d) 823 .

If there is one lesson to be learned from the foregoing quotation other than the unchangeableness of rights guaranteed by the Bill of Rights, it is this: that the full measure of these rights remains at a certain level, never to be diminished or whittled away by majority, legislature or official, and certainly not by the courts; that these rights are “established” “as legal principles to be *554 applied by the courts.” They are not subject to contraction by the political climate of any particular time.

In fact, the rights guaranteed by the Bill of Rights are so complete and so impervious to diminution by majority, legislature or official that they have been held to be self-executing. Quinn v. Buchanan, (Mo.) 298 S.W. (2d) 413 ; Perkins v. Cooper, 155 Okla. 73 , 4 P. (2d) 64 ; Burnham v. Bennison, 121 Neb. 291 , 236 N.W. 745 ; Payne v. Lee, 222 Minn. 269 , 24 N.W. (2d) 259 . “Constitutional provisions are self-executing when it appears that they shall take immediate effect, and ancillary legislation is not necessary to the enjoyment of the right thus given, or the enforcement of the duty thus imposed. In short, if a constitutional provision is complete in .itself, it executes itself.” Lyons v. Longmont, 54 Colo. 112 , 129 Pac. 198 .

Conviction of the self-executing character of the Bill of Rights is immediate when one reads the applicable portion of Quinn v. Buchanan, supra. To read it should be to adopt it:

“* * * Provisions of a Bill of Rights are primarily limitations on government, declaring rights- that exist without any governmental grant, that may not be taken away by government and that government has the duty to protect. 1 Cooley’s Constitutional Limitations 93, 358; Am. Jur. 1092, Sec. 308; 16 C.J.S., Constitutional Law, §199, p. 976. As these authorities show, any governmental action in violation of these declared rights is void so that provisions of the Bill of Rights are self-executing to this extent. See also 1 Cooley’s Constitutional Limitations 166 note. They do not, however, usually provide methods or remedies for their enforcement and certainly it is proper and within the legislative power to enact laws to protect and enforce the provisions of the Bill of Rights. 11 Am. Jur. 1094 , Sec. 309. In the absence of legislation, individuals may enforce and protect these rights from infringement by other individuals by any appropriate common law or code remedy. Householder v. Kansas City, 83 Mo. 488, 495 , and cases cited; see also *555 Local Union No. 324, International Brotherhood of Electrical Workers v. Upshur-Rural Electric Cooperative Corp., Tex. Civ. App., 261 S.W. (2d) 484 ; Texas & N.O.R. Co. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548 , 50 S. Ct. 427 , 74 L. Ed. 1034 . Sec. 14, Art. I, 1945 Constitution, provides: ‘That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character.’ This means ‘that for such wrongs as are recognized by the law of the land, the courts shall be open and afford a remedy.’ 11 Am. Jur. 1124 , Sec. 326. Certainly violation of one’s fundamental rights by another would usually be such a wrong.” (Emphasis supplied.)

This court should “give a liberal construction to our own Bill of Rights when a question is raised concerning a denial of the rights and liberties of the individual against encroachment by the state, whether it be by executive, legislative or judicial power. These rights are self-executing and do not depend upon enabling legislation to make them effective.” (Emphasis supplied.) Hoy v. State, 225 Ind. 428 , 75 N.E. (2d) 915. Why? The Supreme Court of Indiana supplies the answer: “If this were not the law, mere inaction by the legislative department of this state would make such rights mere shadows devoid of substance and power to protect life and liberty.”

In dealing with rights pledged to be preserved intact in the Bill of Rights, the majority, the legislature or official can act only to protect these rights or to enhance their value; none may act contrarily, and by one drop reduce the measure of these rights. Brimful they must remain. This is the significance of the Bill of Rights.

But I suggest that we consider the anatomy of these rights, assured in perpetuity by the Bill of Rights. By virtue of their very nature, the Bill of Rights could signify nothing other than what has been heretofore said. The Bill of Rights ordains that the right to life and the enjoyment thereof is “natural, essential and inalienable.” *556 It provides that if a person is injured courts shall afford him a remedy, that right and justice be accorded him without denial. He shall not be deprived of his life without due process of law. Other personal rights are mentioned.

It is now well settled that these rights have their origin in natural law, are immutable and absolute, and transcend the power of any authority to impair, abridge or abolish them. West Virginia State Board v. Barnette, supra; Thiede v. Town of Scandia, 217 Minn. 218 , 14 N.W. (2d) 400 ; Bednarik v. Bednarik, 18 N.J. Misc. 633 , 16 A. (2d) 80; Richmond F. & P. R. Co. v. Richmond, 145 Va. 225 , 133 S.E. 800 ; Daily v. Parker, 152 F. (2d) 174.

“Man as an individual possesses certain rights which are called inherent rights, inborn and inbred, the gift of his Maker, and essential to his existence and well-being, such as the rights of life, liberty, and the pursuit of happiness, which are not surrendered by entering into organized society. They existed before society was organized and are not surrendered by entering into the organization .” (Emphasis supplied.) Richmond F. & P. R. Co. v. Richmond, supra.

“Under the English common law and under our American constitutional law, natural rights are such as appertain originally and essentially to each person as a human being, as a member of organized society and as a citizen of a free government. They are rights recognized as inherent in the individual member of the state, personal, absolute and inalienable.” (Emphasis supplied.) Bednarik v. Bednarik, supra. “The entire social and political structure of America rests upon the cornerstone that all men have certain rights which are inherent and inalienable.” Thiede v. Town of Scandia, supra.

The right to life, to its enjoyment, the right not to be deprived of it without due process — what do these terms contemplate? They mean the right to life, to integrity of the body and its members and faculties, to health, free from the injurious wrongs of others, regard *557 less of the grade or quality of fault. Their origins were not in constitutions; they antedated such documents. They inhere in the person and are preserved inviolate by every American Bill of Rights.

“The main guaranty of private rights against unjust legislation is found in that memorable clause in the bill of rights, that no person shall ‘be deprived of life, liberty or property without due process’; (Const., Art. 1, sec. 6). This guaranty is not construed in any narrow or technical sense. The right to life may be invaded, without its destruction. One may be deprived of his liberty in a constitutional sense without putting his person in confinement. Property may be taken without manual interference therewith or its physical destruction. The right to life includes the right of the individual to his body in its completeness and without dismemberment; the right to liberty, the right to exercise his faculties and to follow a lawful avocation for the support of life; the right of property, the right to acquire power and enjoy it in any way consistent with the equal rights of others and the just exactions and demands of the State.” Bertholf v. O’Reilly, 74 N.Y. 509 , 30 Am. R. 323.

Man’s right to life includes those things necessary to its enjoyment; and he shall have the right to enjoy his faculties in all lawful ways. People v. McClean, 3 N.Y.S. (2d) 314. Personal security “consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” Bednarik v. Bednarik, supra; 16 C.J.S. Const. Law §205.

These rights of which we have said much are not only natural but “inalienable.” A “natural and inalienable right” is one which “is immutable and absolute and transcends the power of any authority to change or abolish it.” McGovern v. Van Riper, 137 N.J. Eq. 24 , 43 A. (2d) 514. Webster’s New International Dictionary (2d Ed.) compares “inalienable” and “indefeasible,” and distinguishes thus:

“That is indefeasible which one cannot be deprived of *558 without one’s consent; that is inalienable which one cannot give away or dispose of even if one wishes. Thus, one has an indefeasible title to the house one owns absolutely, but this right may be alienated to another; under the Constitution of the United States, personal liberty, freedom of speech, etc., are inalienable rights.”

Rights that are “unalienable” or “inalienable” are those natural, essential and inherent rights which belong to all men; rights which in their very nature cannot be surrendered to government or to society because no equivalents can be received for them, and which neither the government nor society can take away, because they can give no equivalents. Hale v. Everett, 53 N.H. 9 , 16 Am. R. 82.

Besides these definitive expressions, it seems to me that Section 28 of the Bill of Rights furnishes clues to the meaning of inalienable rights. “The enumeration in the constitution of certain rights shall not be construed to deny, impair or disparage others retained by the people.” Rights that may not be denied, impaired or disparaged are in essence indestructible in any manner or to any degree by any governmental agency. And it should be noted that rights not mentioned, yet naturally belonging to the individual, are not to be construed as being denied, impaired or disparaged for lack of their enumeration in the Constitution. It must follow then that those which are mentioned are not subject to denial, impairment or disparagement.

Notwithstanding these rights (right to life and to the enjoyment thereof, the right not to be harmed in body or its members through the wrongdoing of others) are natural, essential and inalienable rights, they may be alienated, i.e., denied, impaired or disparaged by legislative action in the exercise of the police power according to the majority of this court, and reliance for this position is placed upon authorities which do not discuss and consider natural and inalienable rights. Sanction for such exercise of the police power is found in the attempt to *559 thwart collusion between host and guest in effectuating a recovery against insurance companies. See 111 A.L.R. 1011 , et seq.

There are two overriding reasons for scuttling this attitude which is so inimical to basic concepts. Those reasons were suggested in my initial remarks. They are: (1) express provisions of the Constitution may not be made subordinate to the police power, and (2) legitimate claims should not be denied presentation to the courts because there may be a large number of fictitious ones.

A right protected or created “by a constitutional provision * * * is guarded from attack or interference of any kind by the Legislature, or any other, governmental agent of the state.” Menge v. Morris & E. R. R. Co., 73 N.J. Eq. 177 , 67 Atl. 1028 . “The police power of a state cannot transcend the fundamental law, and cannot be exercised in such manner as to work a practical abrogation of its provisions.” Smith v. Farr, 46 Colo. 364 , 104 Pac. 401 . “Any legislative exercise under the police power which violates any right guaranteed by the national or state Constitutions is invalid.” People v. Harris, 104 Colo. 386 , 91 P. (2d) 989 , 122 A.L.R. 1034 .

Must legitimate negligence claims give way because other claims of the same category may be fictitious and provable through collusion? My answer is contained in the following language which I would have this court adopt:

“A legislative enactment should not be lightly set aside, but where the violation of the fundamental law is clear, it should not be allowed to stand.

“No doubt suits for breach of promise are sometimes used as a form of blackmail, but that is a matter to be dealt with in a special way. The fact that the right is abused by some is hardly a justification for the denial of the fundamental right to redress by those who have a just cause of action.” (Emphasis supplied.) Daily v. Parker, 61 F. Supp. 701 .

How astute the last quotation is may be shown by an *560 example. A and B are partners in the conduct of a mercantile establishment. C is the manager of the business. D is a friend of B. A, B and C are required to travel some distance to attend to a matter involving the partnership. They get into the car owned and operated by A, and D is invited by his friend B to go along for the ride. As they proceed toward their destination, they are all injured in a serious accident resulting from the negligence of A in the operation of the automobile. B and C have a right to sue A fo,r their damages sustained by reason of his negligence, but under the Guest Statute D has no right and he has no remedy. Yet as surely as B and C have a meritorious claim, so should D have the same.

It would unduly lengthen this opinion to reiterate what I said in Noakes v. Gaiser, 136 Colo. 73 , 315 P. (2d) 183 , in discussing the import of Article II, Section 6, quoted above. Having had the opportunity more thoroughly to study the matter in the course of writing this dissent, I am more firmly convinced than ever that my position in that case was correct. In fact, I entertain the conviction that I was guilty of understatement in advocating the invalidity of the Guest Statute, in view of the mandate to courts of justice of this state contained in said Section 6.

I failed in that case to recognize the nature of the right involved, probably because of language in some of the cases cited, all to the effect that this provision preserved the common law right of action for injury to person. A more thorough study at that time, I am certain, would have convinced me that the right involved is more than a common law right. It is a natural, essential and inalienable right, inherent in man and never bestowed by government. I realize now that the common law recognized this right and in effect preserved it. Holdsworth’s History of English Law, 218', 219, 282-284. I should further have realized that our Constitution did not create this right, but merely recognized its natural *561 and inherent quality and said that it should be preserved.

With this important modification of view, I hold that what I said in Noakes v. Gaiser is the law; that anything contrary thereto is a frustration of the Constitution.

It is asserted by Vogts that Article II, Section 3, concerning natural, essential and inalienable rights, Section 6, providing for courts of justice to be open to every person and to afford remedies for injuries, Section 14, prohibiting the taking of private property for private use, Section 15, forbidding the taking of private property for public use without just compensation, and Section 25, prescribing deprivation of life, liberty or property without due process of law, all part of our Bill of Rights, and the Fourteenth Amendment to the Constitution of the United States, are violated by the Guest Statute. The opinion of the majority concludes by saying that “Reason and the authorities above recited, including the highest judicial tribunal in the nation, justify our conclusion that the Colorado guest statute does not violate the ‘due process’ clause of the Federal or Colorado Constitutions, neither does it violate” the other mentioned sections. A summary review of the cases cited by the majority opinion will now be undertaken, merely to show that the authors of the opinions in those cases did not decide the questions raised by Vogts, and that none considered natural, essential and inalienable rights per se in perspective or at all.

The first case said to be in point is Pickett v. Matthews, 238 Ala. 542 , 192 So. 261 , which on first reading appears to be the most sweeping and the most damaging to the position that I would have this court take. Upon a second reading the conclusion must be reached that the case is not well-reasoned, is distinguishable because of markedly different constitutional provisions, and contains the same confusion regarding common law rights and natural, inherent rights that I displayed in my dissent in Noakes v. Gaiser, of which I have already made mention. In the Pickett case, the court considered Section 13 of the Ala *562 bama Constitution, which “provides ‘that every person, for an injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law.’ ” The court also considered Sections 1, 6 and 22 of their state Constitution, and the equal protection provision of the Federal Constitution. In the course of the opinion, the court declared:

“These taken together guarantee the equal protection of the laws, protect persons as to their inalienable rights; prohibit one from being deprived of his alienable rights without due process; and prohibit irrevocable or exclusive grants of special privileges or immunities.

“It is claimed that by those principles the legislature cannot legalize a negligent injury to one’s person or property, thereby changing the rule of duty not to cause damage by a negligent act, whether that duty is a creature of the common law or statute. It is thought that to do so deprives one of ‘life, liberty, or property’ without due process (section 6, Constitution), because such rights are inalienable under section 1, and create a special privilege under section 22, and violate the equal protection of the Fourteenth Amendment.

“The duty to use due care not to harm the person or property of another is of common law origin. It is therefore a right of property or of life and liberty safeguarded by the due process and other features of the Constitution, unless they yield to some power recognized to be superior in respect to the situation.

“The police power sometimes is superior to such personal and property rights.”

If the right were merely a common law right other than a fundamental, inherent, inalienable right, I might have no quarrel with the decision of the court. Those rights recognized by the common law as natural, essential and inalienable may not be alienated in the exercise of the police power, as I have already indicated. In any view of this decision of the Supreme Court of Alabama, it is not persuasive in the case before us, particularly *563 since police power cannot in this state override express constitutional provisions.

The next case considered by the majority is that of Shea v. Olson, 185 Wash. 143 , 53 P. (2d) 613 , 186 Wash. 700 , 59 P. (2d) 1183 , 111 A.L.R. 1011 . The Guest Statute was attacked in that case on the ground that it violated the constitutional provisions of the State of Washington relating to the title of an Act, and relating to due process, to class legislation and equal protection, to trial by jury, to a section requiring mandatory construction unless expressly declared otherwise, to the judicial powers of the state (apparently similar to our Section 6), and that it violated the due process and equal protection provisions of the Federal Constitution. Concerning the provisions relating to state due process, to class legislation and equal protection, the court said: “None of these constitutional provisions apply to laws enacted by a state legislature in the exercise of its police power.” Concerning the remaining provisions, the court followed the authority of the Silver case, concerning which comment will be made later.

The majority opinion then considers the case of Wrights’ Estate v. Pizel et al., 168 Kan. 493 , 214 P. (2d) 328 . The only attack made on the Guest Statute in that case involved Section 18 of the Kansas Bill of Rights, which provides that “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” In upholding the Guest Statute the court relied upon the case of Silver v. Silver, and it should be noted that that case eventually went to the Supreme Court of the United States, which held that the Constitution does not forbid the abolition o-f old rights recognized by the common law to obtain a permissible legislative object. There may be old rights recognized by the common law that are subject to denial, impairment or disparagement, but certainly not inalienable rights. The Kansas court *564 failed to consider the rights of the guest from the standpoint of their inalienability.

Clarke v. Storchak, 384 Ill. 564 , 52 N.E. (2d) 229, is another case relied upon by the majority. The court considered an attack upon the Illinois Guest Statute based upon an alleged faulty title, that the Act was destructive of their constitutional provision requiring a remedy to every person for injuries and wrongs to person, property, or reputation, and that it violated federal due process. There is no discussion of natural and inalienable rights in the decision, and one wonders what the able Illinois Supreme Court would do with the question if it were directly presented to the court, particularly in view of the recent case of Molitor v. Kaneland Community Unit Dist. No. 302, 163 N.E. (2d) 89, disowning sovereign immunity.

The state of Arkansas adopted a Guest Statute which in part denied any remedy to persons riding as guests who were related to the host either by consanguinity or affinity in certain degrees. This portion of the Act was declared unconstitutional in the case of Emberson v. Buffington, 228 Ark. 120 , 306 S.W. (2d) 326 . It is true that in the course of the opinion the court discussed' the constitutional provision granting to every person a certain remedy for injuries or wrongs. It held that portion of the Act attacked invalid by reason of such constitutional provision. It also held that the Act was severable and that the remaining portion of the Guest Statute did not violate the constitutional provision mentioned.

Still another case relied upon in the majority opinion is that of McMillan v. Nelson, 149 Fla. 344 , 5 So. (2d) 867 . I find nothing in this case to warrant its citation as authority here. As I understand the decision, it stands for nothing more than the proposition that the Guest Statute is based upon a reasonable classification inoffensive to the provision that all courts shall be open so that *565 every person shall have a remedy by due process of law for any injury.

Silver v. Silver, 108 Conn. 371 , 143 Atl. 340 , 65 A.L.R. 943 , and on appeal to the United States Supreme Court resolved at 280 U.S. 117 , 74 L. Ed. 221 , 65 A.L.R. 939 , is considered a leading case. The majority opinion quotes from both the Connecticut Supreme Court decision and the United States Supreme Court decision: On questions involving the Constitution of Connecticut, the court was divided three to two for constitutionality. An attack was made on the Guest Statute on the ground that it violated the equal protection provisions of the state and federal Constitutions. Three members of the court held that it did not, and the Supreme Court of the United States said it was not violative of the equal protection provisions of the United States Constitution. This case resolved none of the questions raised by Vogts in this case, and the question of inalienable rights was not considered.

The only questions resolved in Perozzi v. Ganiere, 149 Ore. 330 , 40 P. (2d) 1009 , related to the constitutional provisions of the state of Oregon, providing (1) that all laws of the territory should continue in force until altered or repealed, and (2) that every man shall have a remedy by due course of law for injury. On the first, the court held that the common law or laws of legislative origin were subject to alteration or repeal. Of course, inalienable rights are not subject to alteration or repeal in this state, whatever the law may be as to common law or acts of the legislature. The fallacy of this decision arises from the view that the Supreme Court of Oregon apparently did not realize it was dealing with inalienable rights as a part of the law preserved by the common law.

Lastly, the majority opinion cites the case of Hazzard v. Alexander, 6 W.W. Harr. 212 , 36 Del. 212 , 173 Atl. 517 , in which the court actually decided that the Guest Statute could be given a retroactive effect without violating any provision of the state Constitution.

A review of the cases cited in the majority opinion *566 shows that in only one case was the court confronted with the question of natural and inalienable rights. In that case, as already pointed out, the court failed to consider these rights as inherent rights, indestructible and immutable, but discussed them in terms of common law rights. I submit that on the basis of fundamental constitutional law, logic, and the basic concepts of our form of government as outlined in this opinion, the Guest Statute should be held unconstitutional.

Mr. Justice Hall joins in this dissenting opinion.