Page:Parish v. Pitts, 244 Ark. 1239 (1968).pdf/30

1268 functions. I do not know whether we should consider them to be bound by this decision or not.

It gives me cause for concern that we unhesitantly applied the doctrine of tort immunity in City of Fort Smith v. Anderson, 241 Ark. 824, 410 S. W. 2d 597, less than one month before the submission of this case, and now permit recovery of one whose alleged damage occurred two years and nine months prior to that a jury found to have been inflicted upon the plaintiffs in that case.

The difficulty of the majority in deciding just what claimants shall be beneficiaries of today's decision emphasizes the fact that the court is acting legislatively. I do not agree that the solution is a proper one. I would prefer that we rule on the cases as they come here and without declaring whether rules are prospective or retroactive in operation.

I respectfully submit that the investigative powers of the General Assembly, not available to us, could have reached a sounder conclusion in this matter. Such an investigation would probably not have created more questions than it answered.

I fully agree with the remarks of the Chief Justice with reference to judicial change of the common law. I agree that courts have the power to overrule their own decisions, but not the common law adopted by this state. If Ark. Stat. Ann. § 1-101 (Repl. 1956) does not mean that this law can be altered or repealed by the General Assembly, only, then, I ask, what does it mean?

With all due respect for my brethren of the majority, whom I hold in the highest esteem, I cannot help but feel that this step is unwise, is in violation of the separation of powers prescribed by Article 4, § 2, of our Constitution and that it is being taken with only a superficial examination of the ultimate consequences. Legislative attention is more plainly indicated now than ever before.