¶1(concurring specially).
¶2I concur in the majority opinion but favor an additional statement expressing dissatisfaction with governmental immunity as a matter of public policy.
¶3I dissent.
¶4The sole issue before us is whether, absent specific statutory authority, the State University of Iowa or its officers as public officials, are immune from suit alleging breach of contract between the institution as an arm of the state and an individual citizen, the breach thereof and damages.
¶5I. The majority’s strong and well fortified opinion expresses the Iowa case law as it exists to this time. Except where specific consent to be sued is granted by statute the quote in Division I of the majority opinion is accurate: “[W] hether the claim for damages be considered to be in tort for wrongful conversion of plaintiff’s property, or for breach of plaintiff’s contract with the state, it cannot be asserted against the state, directly or indirectly, and payment compelled out of state funds. As to that plaintiff’s remedy is legislative and not judicial.”
¶6This court in Boyer v. Iowa High School Athletic Association, 256 Iowa 337, 127 N.W.2d 606 refused to change the immunity rule as it applied to tort claims against the state. The dissent in the 5 to 4 decision analyzes the various reasons for abandonment of the doctrine in the tort field. An effort will be made to avoid duplication. Most, if not all of the reasons for change there cited are also applicable in the field of contracts. The legislature subsequently acted in the tort field by passage of the Iowa Tort Claims Act, code of Iowa, 1966, Chapter 25A, and Acts of the 62nd General Assembly, Chapter 405, p. 793 (in relation to units of local government).
¶7Thus the question is not the existence of the rule, but whether the rule can and should be changed in the contract field. It is well to note that immunity need not be abandoned entirely in order to hold the rule inapplicable to contract actions.
¶8II. Where the suit is based on claimed contract many courts have held the state waives its immunity from suit by authorizing its agents to enter into the contract. The broad approach mentioned by Mr. Justice Frankfurter in his dissent in Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 59, 64 S.Ct. 873, 879, 88 L.Ed. 1121, should first be noted: “But consent does not depend on some ritualistic formula. Nor are any words needed to indicate submission to the law of the land. The readintss or reluctance with which courts find such consent has naturally been, influenced by prevailing views regarding the moral sane*822tion to be attributed to a State’s freedom from suability. Whether this immunity is an absolute survival of the monarchial privilege, or is a manifestation merely of power, or rests on abstract logical grounds, see Kawananokoa v. Polyblank, 205 U.S. 349, 27 S.Ct. 526, 51 L.Ed. 834, it undoubtedly runs counter to modern democratic notions of the moral responsibility of the State. Accordingly, courts reflect a strong legislative momentum in their tendency to extend the legal responsibility of Government and to confirm Maitland’s belief, expressed nearly fifty years ago, that ‘it is a wholesome sight to see “the Crown” sued and answering for its torts’. 3 Maitland, Collected Papers, 263.”
¶9Governmental consent to suit in contract actions has been recognized in several states where immunity is otherwise upheld.
¶10In George & Lynch, Inc. v. State (1964), Del., 197 A.2d 734 the Delaware Court held at page 736: “By 17 Del.C. § 132 (b) (9), the State Highway Department is authorized to ‘make and enter into any or all contracts, agreements or stipulations.’ It must be assumed that the General Assembly, in granting to the State Highway Department the power to contract, intended that it should have power to enter into only valid contracts. A valid contract is one which has mutuality of obligation and remedy between the parties to it. 1 Williston on Contracts, (3rd Ed.), § 1. It follows, therefore, that in authorizing the State Highway Department to enter into valid contracts the General Assembly has necessarily waived the State’s immunity to suit for breach by the State of that contract.”
¶11In Ace Flying Service, Inc. v. Colorado Department of Agriculture (1957), 136 Colo. 19, 314 P.2d 278 the court said: “The request [for payment] naturally enough was filed with the other party to the legislatively authorized contract because it was that party who was authorized by the state to make the payments. Thus the contract itself was a waiver by the state of any statutory provisions urged upon us.’”
¶12In Georgia an employee of the state university, hired under authority of the Board of Regents, brought suit in a contract dispute; Regents of the University System of Georgia v. Blanton (1934), 49 Ga.App. 602, 176 S.E. 673 holds: “[A] state or any of its departments entering into contracts lays aside its attributes of sovereignty, and binds itself substantially as one of its citizens does when he enters into a contract, and, in general, its contracts are interpreted as the contracts of individuals are, and are controlled by the same laws” (176 S.E. at 675).
¶13In the same vein are the following cases: Meens v. State Board of Education, 127 Mont. 515, 267 P.2d 981; Souza and McCue Construction Company v. Superior Court of San Benito, 57 Cal.2d 508, 20 Cal.Rptr. 634, 370 P.2d 338 (1962); In E. H. Morrill Company v. State, 65 Cal.2d 787, 56 Cal.Rptr. 479, 423 P.2d 551 (1967) and Todd et al. v. Board of Educational Lands and Funds of Nebraska et al., 154 Neb. 606, 48 N.W.2d 706 (1951).
¶14In an analogous situation, action by an heir to escheated property previously collected by the state, Justice Weaver speaking for this court in McKeown v. Brown, 167 Iowa 489, 497, 149 N.W. 593, 596, stated: “III. It is objected, however, that this proceeding is in the nature of a suit against the state of Iowa, and that the court cannot properly entertain an action against a state without its consent. … Even if the state were a necessary party, it would be no great stretch of construction to hold that the enactment of such statute, recognizing the right of the heir to establish his identity after the money had been placed in the school fund, and authorizing the court, as we think it does, to enter whatever judgment is necessary to make the right effective, is to all intents and *823purposes a consent by the state to submit its adverse claims, if any it has, to the adjudication of such court. While the courts should exercise scrupulous care to respect the sovereignty of the state, they should not go far out of their way to relieve the sovereign from the duty of fair dealing. The plaintiff having appeared within the time which the state itself has prescribed, and having established her right as the heir of the deceased to the satisfaction of the court having jurisdiction of the settlement of the estate, the enforcement of her rights in the premises ought not to be denied, except for reasons of the most clear and cogent character. Such reasons are not here apparent.
¶15“It is further to be said that the act of the state in entering a voluntary appearance in the suit and in filing answer to plaintiff’s claim upon its merit is a clear waiver of its right to deny its consent to the jurisdiction of the court.”
¶16The views expressed in the foregoing cases are essential to operation of modem government. In the instant case, the action is actually against employees of our Board of Regents which is empowered to operate the university system. Iowa Code, 1966, Chapter 262. The board has all powers necessary to operating the university and may delegate necessary powers to appropriate committees, administrative officers and faculty, Iowa Code, section 262.12. We have not reached the questions of proper delegation of power or authority of these defendants. We can never reach such questions under the result reached here.
¶17The defendants may well have had the power to make a contract that is binding on the state. If plaintiff can prove a contract with the University which was made by lawfully authorized officers of the University, she will have proved the first element of her case. Of course she must also prove breach of contract and damages. But, these problems do not concern us now. The first question is can the state be sued on a claimed contract? The majority’s negative answer disposes of the case.
¶18This rule, if invoked with any regularity must seriously undermine, if not destroy, the state’s ability to perform its expanding governmental functions. This is at the bottom of the reasoning of the cases heretofore cited. In this situation alone we are dealing with an institution operating on a budget of $125,000,000 per year, Iowa Official Register, 1967-1968, for which the legislature appropriated in excess of $30,000,-000 for the 1965-1967 biennium (the period relevant here) for salaries, support, maintenance, replacements and alterations for the State University of Iowa, Acts of the Regular Session 61st General Assembly, Chapter 4, page 36.
¶19The myriad multi-million dollar activities constituting state government must be implemented by contracts and these contracts must command the faith and respect of our people. This cannot be achieved by assigning a claimed contractee to a legislative committee. Such committees are not equipped to settle the good faith differences between the parties in the same manner as the judiciary.
¶20Simple justice, as well as protection of the state’s good name, demands that con-tractees with the state be afforded the same entree to the courts as is afforded-in contracts between individuals. Speaking of governmental immunity as a defense in suit by a highway contractor, the Delaware court concluded in George & Lynch, Inc. v. State, supra, 197 A.2d at page 736: “Any other conclusion would ascribe to the General Assembly an intent to profit the State at the expense of its citzens. *824We are unwilling to assume that the General Assembly intended the State to mislead its citizens into expending large sums to carry out their obligation to the State and, at the same time, deny to them the right to hold the State accountable for its breach of its obligations. To state the proposition is to demonstrate its injustice; indeed, so unjust is it that it might amount to the taking of property without due process of law.” This is also true of employment contracts.
¶21The view that the government waives its immunity when it enters into validly authorized contracts seems to me to be eminently sound. As a necessary corollary to such rule the alleged contractee must be given an opportunity to prove his contract and that the contract is in fact and law validly authorized. The questions of ultra vires acts of state officers or employees, validity and relevancy of the authorization, factual matters giving rise to the contract and other appropriate issues must all be met later. But they should not be summarily cut off by denying the proposed litigant a forum.
¶22III. The majority opinion relies heavily on the existence of Rule 9 of the Iowa Rules of Civil Procedure, and sections 613.8 and 613.12, Iowa Code, 1966. The rule simply recognized the existence of the judicially inspired principle of governmental immunity in force at the time of adoption of the procedural rule. It does not promulgate the rule of governmental .immunity. True, absent the governmental immunity principle, Rule 9 would be unnecessary but this simply gives recognition to the existence of the principle, it does not create it.
¶23The same may be said for sections 613.8, Code, 1966 (allowing suit in matters involving real estate), 613.12 (as against the state highway commission), chapter 25A, (the Iowa Tort Claims Act) and chapter 405 of the Acts of the 62nd General Assembly (allowing suit against units of local government).
¶24This area is well covered (albeit in a case dispensing with tort immunity) in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 and quoted in the dissent in Boyer v. Iowa High School Athletic Ass’n, 256 Iowa 337, 353, 127 N.W.2d 606, 615 as follows: “The doctrine of governmental immunity was originally court made. …
¶25“The state has also enacted various statutes waiving substantive immunity in certain areas. …
¶26“Nor are we faced with a comprehensive legislative enactment designed to cover a field. What is before us is a series of sporadic statutes, each operating on a separate area of governmental immunity where its evil was felt most. Defendant would have us say that because the Legislature has removed governmental immunity in these areas we are powerless to remove it in others. We read the statutes as meaning only what they say; that in the areas indicated there shall be no governmental immunity. They leave to the court whether it should adhere to its own rule of immunity in other areas.”
¶27IV. It would unduly prolong this dissent to examine the many other arguments raised against the common sense proposal that when the state makes a contract it consents to adjudication of such contract. These arguments are all answered in the cases cited and in the note, Sovereign Immunity of the States: The Doctrine and Some of Its Recent Developments, 40 Minnesota Law Review 234.
¶28The legislature must always have empowered the state contract action in advance. Our Constitution of the State of Iowa, Article III, section 24, reads: “No money shall be drawn from the treasury but in consequence of appropriations made by law.” Section 31 states in part: “nor, shall any money be paid on any claim, the subject matter of which shall not have been provided by pre-existing laws, … ”. Iowa Code, 1966, section 8.38 provides “No *825state department, institution, or agency, or any board member, commissioner, director, manager, or other person connected with any such department, institution, or agency, shall expend funds or approve claims in excess of the appropriations made thereto, nor expend funds for any purpose other than that for which the money was appropriated, except as otherwise provided by law.” No payment may be extracted from the state unless these constitutional and statutory conditions are met. We are not concerned here with payment but with the right to litigate the claim. The subject matter of a state university and the power to operate the institution have clearly been provided in advance, as has the appropriation.
¶29Among the arguments against this doctrine are the artificial distinctions that result from its application. A contractor who builds a road under Highway Commission jurisdiction can sue but if he builds for the Board of Regents he has no legal remedy on what he thought was a contract. A contractee with the state may sue if real property is involved but cannot sue if personal property or his own labor is in issue. The great bulk of the business of the state affords no protection to the contractee. We have found no case that attempts a rational explanation for this rule other than recognition of the historic governmental immunity doctrine. In the modern governmental business climate prevailing today the doctrine must surely be held to have lost its relevancy.
¶30We need not examine the subject in greater detail. The short answer to the problem presented is that reason and justice demand that the state recognize its obligations. Implicit in the principle is the absolute necessity to allow the claimant his day in court.
¶31For the above reasons I would allow this action against the state and overrule prior precedent inconsistent with such result.
¶32MOORE and MASON, JJ., join in this dissent.