TOBRINER, J. I dissent.
The statute challenged in the instant case is a most peculiar law. From the wide range of automobile accident victims, the statute singles out one very narrow class—automobile passengers who happen to own the car in which they are injured—and bars this, and only this, class of victims from obtaining recoveiy from drivers who negligently cause their injuries. As I shall explain, this unusual law, which, to my knowledge, has no counterpart in any other jurisdiction in the country, originated as an addition to California’s automobile guest statute in response to conflicting judicial decisions on whether an “owner-passejiger” was a “guest” within the meaning of the guest statute; in that context, the purpose of the statute was somewhat understandable, treating injured owner-passengers in the same manner as the bulk of nonownerpassengers injured during a “social” ride. In Brown v. Merlo (1973) 8 Cal.3d 855 [106 Cal.Rptr. 388, 506 P.2d 212, 66 A.L.R.3d 505], .however, this court held the basic automobile guest statute unconstitutional as a denial of the equal protection of the laws; in light of the demise of the underlying guest statute, the instant provision can no longer claim the justification of according injured owner-passengers the same treatment as most injured social guests. In terms of its original purpose, therefore, the statute’s application has become entirely anamolous and irrational.
[526]The majority, ignoring the obvious objective of the statute as demonstrated by its legislative history, seek to sustain the provision without reference to its relationship to the recently invalidated guest statute. As I shall explain, however, none of the hypothetical legislative purposes proffered by the majority rationally justifies a classification scheme which strips only the narrow class of “injured owner-passengers” of protection from the negligence of an automobile driver; moreover, the suggested purposes relied upon by the majority simply cannot plausibly be ascribed to the Legislature. Under'these circumstances, the majority’s analysis is inadequate to sustain the provision’s constitutionality.
Finally, the majority suggest at one point that the challenged statute represents an attempt at legislative “reform” in the automobile liability field. (Ante, pp. 520-521.) As discussed below, I do not believe that it can reasonably be maintained that the Legislature intended to “reform” automobile accident law by depriving injured owner-passengers, and only injured owner-passengers, of a negligence cause of action. Furthermore, if legislative reform is to be made in the automobile accident field, as I believe it should, our Constitution demands that such reform be achieved in a manner which does not “irrationally single out one class of individuals for discriminatoiy treatment.” (Brown v. Merlo, supra, 8 Cal,3d at p. 882.) With all respect to the majority opinion, I believe the challenged statute exhibits just such an unconstitutional vice.
Before beginning my discussion of the challenged statutory provision, I believe that, in light of one footnote in the majority opinion (ante, pp. 518-519, fn. 2), I should explain what I see as the proper mode of equal protection analysis in a case such as this. I agree completely with the majority that in this case the appropriate equal protection standard of review is the traditional “restrained” review, with the judiciary affording the challenged legislation a presumption of constitutionality and placing a heavy burden of persuasion on the party attacking the statutory provision.
Over the years, both this court and the United States Supreme Court have utilized various formulations in describing the test to be applied in such cases, sometimes requiring the plaintiff to show that the challenged classification scheme does not “bear some rational relationship to a conceivable legitimate state purpose,” (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784 [87 Cal.Rptr. 839, 471 P.2d 487]), at other times indicating that to be valid, “[a] classification ‘must be reasonable, not arbitrary, and must rest upon some grounds of difference having a fair and substantial relation to the object of the legislation, so that all persons [527]similarly circumstanced shall be treated alike.’ ” (Reed v. Reed (1971) 404 U.S. 71, 76 [30 L.Ed.2d 225, 229, 92 S.Ct. 251]; Eisenstadt v. Baird (1912) 405 U.S. 438, 447 [31 L.Ed.2d 349, 358, 92 S.Ct. 1029]; Royster Guano Co. v. Virginia (1920) 253 U.S. 412, 415 [64 L.Ed. 989, 990, 40 S.Ct. 560]; Brown v. Merlo, supra, 8 Cal.3d 855, 861.) Indeed, even a cursory review of past equal protection decisions reveals the very great variety in terminology through which the “restrained” equal protection standard has been articulated.1
Although the majority choose to single out one of these alternative formulations as the “appropriate” test,2 I believe all of the various formulations, however phrased, reflect a similar conception of the [528]principle embodied in the equal protection clause, a principle that holds simply that, to be constitutional, statutory, classifications must be reasonable rather than arbitrary. The determination of whether a particular statutory classification is “arbitrary” or “reasonable” cannot, of course, be made in the abstract; in this context, “arbitrariness” or “reasonableness” only have meaning in terms of a classification’s relation or nonrelation to the purpose or purposes of the legislation embodying the classification. All of the varying formulations that have been used by the courts recognize the need to evaluate a classification on the basis of whether it is “reasonably,” “rationally,” or “fairly” related to a legitimate legislative purpose.
Although it is sometimes suggested that the differing equal protection formulations establish different guides for determining the “legislative purpose” against which a classification scheme is to be measured, the apparent linguistic differences are more superficial than real; the cases ..which utilize the “conceivable legislative purpose” language adopted by the majority, like the cases which incorporate different terminology, refer to a legislative purpose which, though not necessarily articulated in the legislation itself or even in the legislative history, is at least a realistic, plausible purpose which the Legislature may have intended to pursue. (See Note, Developments in the Law—Equal Protection (1969) 82 Harv.L.Rev. 1065, 1078.) Courts do not uphold classification schemes on the basis of a theoretically “conceivable” purpose which may be imagined by a court to justify a particular classification, but which, under all the circumstances, cannot plausibly or realistically be attributed to the Legislature.
The case of Weinberger v. Weisenfeld (1975) 420 U.S. 636 [43 L.Ed.2d 514, 95 S.Ct. 1225], decided by the United States Supreme Court only last year, clearly demonstrates this point. In Weisenfeld, a young widower challenged the constitutionality of a provision of the Social Security Act which provided benefits to a widow who stayed at home to care for a small child upon the death of her wage earning husband, but denied similar benefits to a widower who provided the same fulltime child care after the death of his wage earning wife. The government attempted to justify the distinction as one “reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families.” (420 U.S. at p. 648 [43 L.Ed.2d at p. 524]; cf. Kahn v. Shevin (1974) 416 U.S. 351, 355 [40 L.Ed.2d 189, 193, 94 S.Ct. 1734].)
[529]After reviewing the legislative history of the challenged provision, however, the Weisenfeld court concluded “that Congress’ purpose in providing benefits to young widows with children was not to provide an income to women who were, because of economic discrimination, unable to provide for themselves. Rather .,. [the statute] was intended to permit women to elect not to work and to devote themselves to the care of children.” (420 U.S. at p. 648 [43 L.Ed.2d at p. 525].) Consequently, the court refused to measure the classification’s rationality against the theoretically conceivable, but unrealistic, purpose suggested by the government and struck down the widow-widower classification scheme as unrelated to the statute’s purpose of promoting parental child care.3
In reaching its conclusion, the Weisenfeld court explicitly emphasized: “This Court need not in equal protection cases accept at face value assertions of legislative purposes, when an examination of the legislative scheme and its history demonstrates that the asserted purpose could not have been a goal of the legislation.” (420 U.S. at p. 648, fn. 16 [43 L.Ed.2d at p. 525].) This is clearly the appropriate judicial approach, for equal protection principles would become meaningless and ineifectual if courts simply engaged in the fantasy of conjuring up a “conceivable,” but entirely unrealistic, purpose that will sustain a statutory classification. In no other area is constitutional adjudication carried on in such highly fictional terms; the application of the equal protection clause demands an equally realistic approach.
When viewed from such a realistic perspective, the purpose of the statutory provision challenged in the instant case becomes relatively clear. The statutory clause at issue, barring an injured owner-passenger from suing the driver of his car to recover for injuries sustained by virtue of the driver’s negligence, was enacted in 1961 as an explicit amendment [530]to the then existing automobile guest statute.4 (Stats. 1961, eh. 1600, § 1, p. 3429.) A few years prior to the 1961 enactment, the question of whether an “owner-passenger” was a “guest” within the meaning of the automobile guest statute, and hence precluded from recovering for injuries caused by the negligence of the automobile driver, had arisen in California for the first time; under the original guest statute, a “guest” was defined as a passenger who had not given “compensation” for the ride.
In Ray v. Hanisch (1957) 147 Cal.App.2d 742, 747-751 [306 P.2d 30], the Court of Appeal held that although “the mere fact plaintiff was riding in her own car while it was driven by defendant, her friend, does not classify her as a guest,” the social arrangement between the parties in that case demonstrated, as a matter of law, that the owner had not given, “compensation” for the ride; consequently, the court held that the owner-passenger was a “guest” and could not recover. In Ahlgren v. Ahlgren (1960) 185 Cal.App.2d 216 [8 Cal.Rptr. 218], however, on facts closely analogous to the Ray case, the Court of Appeal concluded that an injured owner-passenger was not a “guest” under the guest statute, apparently reasoning that in permitting the driver to use his car, the owner had given “compensation” within the meaning of the act. (See also Ahlgren v. Ahlgren (1957) 152 Cal.App.2d 723, 725 [313 P.2d 88].)
The confusion illustrated by the Ray and Ahlgren cases was not unique to the California scene. Courts in. other states had reached varying conclusions on this very issue (see Annot. (1959) 65 A.L.R.2d 312; Note (1957) 4 U.C.L.A.Rev. 652; Note (1958) 32 So.Cal.L.Rev. 93) and Dean Prosser had pointedly observed that among the guest statute’s “knotty little problems involving petty and otherwise entirely inconsequential points of law” was the question: “Can the owner of the car be a guest in it when someone else is driving?” (Prosser, The Law of Torts (4th ed. 1971) §34, p. 187.)
To eliminate this confusion, the Legislature in 1961 enacted the provision at issue in this case, establishing that a passenger-owner was to [531]be treated in a similar manner as an automobile “guest,” whether or not the owner’s conduct could be construed as providing “compensation” for the ride. (See Review of Selected 1960-1961 California Legislation (1961) 36 State Bar J. 858.)
The 1961 “owner-passenger” amendment to the automobile guest statute came before this court for the first time in Patton v. La Bree (1963) 60 Cal.2d 606 [35 Cal.Rptr. 622, 387 P.2d 398], In Patton the plaintiff, a car owner who had taken her car to an automobile dealer to be serviced, was injured while riding as a passenger; the accident occurred while one of the car dealer’s employees was driving. Plaintiff claimed initially that because she had paid for the servicing of her car she had given “compensation” for the ride; she then argued that insofar as the amended guest statute distinguished between nonownerpassengers who had given compensation and owner-passengers who had given compensation, allowing recovery by the former but barring recovery by the latter, the statute’s classification scheme was invalid under the equal protection clause.
Our court rejected that equal protection claim, but the scope of the Patton holding is much narrower than the majority opinion in the instant case suggests. As explained above, the statute before the court in Patton accorded all injured owner-passengers the same treatment as most injured social passengers. While the Legislature had concluded that the giving of compensation represented a real distinction in the “guest” context, and justified differential treatment between those passengers who had paid for the ride and those who had not, the Legislature had apparently concluded that in the context of an “owner-passenger” the concept of giving “compensation” had little meaning; as noted earlier, in some sense every owner-passenger provides some “compensation” (e.g., the rental value of the car) for the ride. (See, e.g., Lorch v. Eglin (1952) 369 Pa. 314 [85 A.2d 841, 843]; Parker v. Leavitt (1960) 201 Va. 919 [114 S.E.2d 732, 737].) Thus, rather than having the application of the guest statute turn on the spurious notion of “compensation” when an owner-passenger was involved, the Legislature provided that all owner-passengers were to be accorded the same treatment as the majority of social guests. Our holding in Patton did no more than uphold such a legislative decision as reasonable.
Contrary to the assertion of the majority, the constitutional issue before our court in the instant case is totally different from the question presented in Patton. At the time Patton was decided, the statutory [532]provision denying an owner-passenger recovery for a driver’s negligence simply operated to place injured owner-passengers on a par with most injured social guests; in the instant case, by contrast, the challenged provision inflicts a burden on injured owner-passengers borne by no other class of automobile accident victims. The difference in circumstances, of course, is attributable to this court’s intervening decision in Brown v. Merlo, supra, 8 Cal.3d 855, in which we held that in denying recovery to nonpaying “guests” the basic statute violated the equal protection of the laws.
In light of the demise of the automobile guest statute in Brown v. Merlo, it is clear that the disparate treatment accorded owner-passengers by the challenged provision bears no rational relation to the original legislative purpose. As we have seen, the provision at issue was enacted in order to treat owner-passengers as “guests” under the guest statute; now that automobile guests are no longer denied recovery for injuries suffered at the hands of a negligent driver, the instant classification clearly does not further the legislative purpose of according owner-passengers the same treatment as such guests, blit rather defeats that purpose by singling out owner-passengers for differential treatment from all other automobile accident victims.
Moreover, the present statutory classification scheme cannot be justified by reference to the two legislative purposes, protecting hospitality and combating collusive lawsuits, that had been proffered in support of the basic guest statute. In Brown v. Merlo we explained that the hospitality argument did not support the differential treatment of automobile guests, as distinguished from other varieties of guests, and also ignored the general prevalence of liability insurance. (8 Cal.3d at pp. 864-872.) We further explained that the interest in eliminating collusion could not rationally justify the wholesale preclusion of numerous bona fide claims. {Id., at pp. 872-878.)
In light of our conclusions in Brown v. Merlo, it is clear that these same rationales cannot sustain the owner rule at issue here. In the first place, the preclusion of negligence actions by owners certainly does not rationally further any state interest in promoting hospitality, for unlike the basic guest statute, the owner provision deprives the host of his negligence claim, and not the guest. (See Ahlgren v. Ahlgren, supra, 185 Cal.App.2d 216, 223-225; Peterson v. Winn (1962) 84 Idaho 523 [373 P.2d 925, 928]; Note, Problems of Recovery under the Iowa Guest Statute (1962) 47 Iowa L.Rev. 1049, 1056.) Moreover, even if we assume that in [533]some instances it is the “guest” driver who is the more “hospitable” party, as we explained in Brown v. Merlo, in light of the prevalence of automobile liability insurance “it is the insurance company, and not the [defendant driver] that in the majority of instances wins protection under [the challenged statute.]” (8 Cal.3d at p. 868.)
Second, the legislative objective in preventing collusive litigation can no more justify a rule precluding all actions by owner-passengers than it could a rule eliminating all actions by automobile guests. As we noted in Brown v. Merlo, “[ijnstead of confining its disability to those who actually institute collusive suits, the provision reaches out beyond such persons and burdens the great number of honest automobile [owners]. . . . Although the [equal protection clause does] not require absolute precision in the designation of classifications, [it does] not tolerate classifications which are so grossly overinclusive as to defy notions of fairness or reasonableness. . . . [I]n barring suits by all automobile [owners] simply to protect insurance companies from some collusive lawsuits, the .. . statute exceeds the bounds of rationality and constitutes a denial of equal protection.” (8 Cal.3d at p. 877; see also Jiminez v. Weinberger, supra, 417 U.S. 628, 636-637 [41 L.Ed.2d 363, 370-371]; U.S. Dept. of Agriculture v. Moreno, supra, 413 U.S. 528, 537-538 [37 L.Ed.2d 782, 789-790]; Gomez v. Perez (1973) 409 U.S. 535, 538 [35 L.Ed.2d 56, 59-60, 93 S.Ct. 872]; Glona v. American Guarantee Co. (1968) 391 U.S. 73, 76 [20 L.Ed.2d 441, 444, 88 S.Ct. 1515].)
Although the provision at issue was enacted as an integral part of this state’s automobile guest statute, the majority do not suggest that the challenged classification scheme bears a rational relation to any legislative purpose related to the guest statute. Instead, the majority opinion appears to suggest that because the provision was reenacted in 1973, after our decision in Brown v. Merlo had invalidated the basic guest statute, the challenged provision was necessarily intended to serve a purpose unrelated to the former guest statute. The instant case, of course, arose under the pre-1973 statute (see ante, p. 516) and thus it is not at all clear what weight, if any, the 1973 reenactment should be given in the instant case. Assuming, however, that the 1973 legislative action is relevant to our present inquiry, I cannot agree with the majority that the provision, either in its pre- or post-1973 form, passes constitutional muster.
To begin with, in terms of political realities, I believe that the majority place far too much significance on the “reenactment” of the challenged provision in 1973. Inasmuch as our decision in Brown v. Merlo, supra, [534]had specifically declined to pass upon the constitutionality of the owner provision of the former guest statute because that portion of the statute was not at issue in that case (see 8 Cal.3d at p. 862, fn. 3), the 1973 “reenactment” may simply reflect a legislative decision to leave the question of the continued validity of the owner-passenger provision to the courts. If that is the case, it is clear that, under the reasoning discussed above, the provision is invalid.
Assuming, however, as do the majority, that in reenacting the provision the Legislature intended to promote some legitimate purpose independent of the original guest statute, it is still necessary to identify a reasonably conceivable legislative purpose which rationally justifies the disparate treatment provided by the provision’s classification scheme. That classification scheme, once again, singles out those injured automobile passengers who happen to own the car in which they are injured and bars such injured passengers, and only such passengers, from recovering damages for injuries negligently caused by the driver of the vehicle. The peculiar nature of this classification scheme brings to mind the United States Supreme Court’s admonition in Morey v. Doud (1957) 354 U.S. 457, 464 [1 L.Ed.2d 1485, 1490-1491, 77 S.Ct. 1344], that: “ ‘Discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the [equal protection] provision.’ [Citations.]”
The majority initially suggest that the challenged provision may be justified on the ground that an owner-passenger has the “right” to direct and control the driver while a nonowner-passenger does not have such right. The opinion, however, never explains the significance, in this context, of the owner’s ostensible “legal right.” The majority virtually concede that the distinction cannot rest on any significant difference in the ability of an owner, as compared to a nonowner, to prevent automobile accidents. It is common knowledge, of course, that as a result of the speed at which cars now travel and the congestion of streets and freeways, most traffic accidents develop almost instantaneously, leaving any owner-passenger little opportunity to intercede. Moreover, as for those few occasions when he has surrendered the wheel, the owner, to revert to a cliche, is no longer “in the driver’s seat” and physical intercession in all likelihood would increase rather than reduce the probability of mishap. Finally, and most importantly, the likelihood and effectiveness of physical intercession as well as verbal assistance such as the sounding of a warning are, of course, functions of a passenger’s presence in the car, not his title to the car.
[535]The majority claim, however, that it is not the owner’s superior “ability” to exercise effective control that makes differential treatment rational, but rather it is the owner’s “standing to seek recovery for injuries” that makes the difference. (Ante, at pp. 519-520) With all respect, I find this resort to notions of “standing” less than illuminating.5 From what I can gather from the majority’s further explanation, the suggestion seems to be that since an owner could not recover for injuries which he negligently inflicted on himself if he were driving, the Legislature may have concluded that he should not recover for injuries which someone driving his car with his permission negligently inflicts upon him.
This suggested “legislative purpose” is simply a non sequitur. The fact that an individual cannot recover damages when he negligently injures himself does not rationally explain why that individual should not be able to recover damages when another person negligently injures him. Linder general tort principles, although a principal is vicariously liable for injuries which his agent negligently inflicts on third parties (see Civ. Code, § 2338), it is the negligent agent who bears the primary liability (see Bradley v. Rosenthal (1908) 154 Cal. 420, 423 [97.P. 875]), and a principal has always been able to recover for injuries which he sustains as a result of his agent’s negligence. (See, e.g., Dahl-Beck Electric Co. v. Rogge (1969) 275 Cal.App.2d 893, 906 [80 Cal.Rptr. 440], See generally Seavey, Law of Agency (1964) § 155, p. 253.)
The Legislature has explicitly incorporated these principles into the automobile liability area. Thus, whereas Vehicle Code section 17150 provides that an automobile owner is liable for injuries to third parties resulting from a permissive driver’s negligent operation of the owner’s vehicle, section 17152 explicitly declares that it is the negligent operator or driver who is primarily liable and “recourse shall first be had against the property of the operator”; moreover, section 17153 specifically provides that “[i]f there is recovery . . . under this chapter against an owner . . ., the owner ... is subrogated to all the rights of the person [536]injured . . . and may recover from the operator the total amount of any judgment and costs... ,”6
These provisions establish beyond dispute that in California the general legislative policy is one which holds the negligent driver primarily responsible for injuries he causes. In light of these provisions, it is patently unrealistic to suggest, as the majority do, that the purpose of the challenged provision was to “attribute” or “impute” the driver’s negligence to the owner so as to bar any recovery by the owner against the negligent driver.
Of course, to the extent that an owner’s own negligence—in entrusting his car to ah incompetent, intoxicated or known careless driver, for example—is a proximate cause of his own injury, the owner’s right to recover would be diminished under governing common law principles. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226].) The instant statute, however, cannot even be explained as a legislative codification of the now displaced contributory negligence rule, because under the classifications drawn by the present statute even the most careful owner, who selected only the most cautious driver and scrupulously supervised the driving, would be barred from recovery if the driver negligently causes an accident. If the Legislature had intended the provision to encourage owners to use due care in selecting those to whom they entrust their vehicle, the statute would necessarily have distinguished between those owners who did and those who did not use such care. Accordingly, the statute cannot be justified with reference to an owner’s “right” to control the driver.
In addition to relying on the owner’s legal right to control and direct the driver, the majority suggest that the classification scheme is rational because the Legislature might have felt it was “unfair” to permit the owner to recover “at the expense of the driver.” (Original italics.) {Ante, [537]p. 522.) To support this thesis, the majority point to section 11580.1 of the Insurance Code, which permits automobile liability policies to exclude coverage for injuries sustained by “an insured” (i.e., the owner of the car). The majority reason that if the owner’s policy does not cover the accident, the injured owner can only recover from the driver or the driver’s insurer.
Even assuming that the majority of outstanding insurance policies issued to owners contain valid clauses excluding coverage of injuries to such owners (cf. State Farm Mut. Auto. Ins. Co. v. Jacober (1973) 10 Cal.3d 193 [110 Cal.Rptr. 1, 514 P.2d 953]), the majority’s theory does not explain on what basis the Legislature could rationally decide that it was “unfair” to permit an owner to recover against a negligent driver. It is the basic policy in this state, of course, that every person is responsible for the consequences of his negligent acts (Civ. Code, § 1714) and California statutory law explicitly provides that all automobile drivers, as well as automobile owners, are required to obtain adequate insurance coverage. (See Veh. Code, § 16020.)7 In light of the longstanding California policy of seeking to encourage automobile drivers to carry liability insurance (see Note, Financial Responsibility Laws in Constitutional Perspective (1973) 61 Cal.L.Rev. 1072, 1076-1078), it cannot realistically or plausibly be maintained that the Legislature enacted or reenacted section 17158 to protect those drivers who choose not to obtain their own insurance, and, in particular, to afford that protection at the expense of the very victims whom such uninsured drivers negligently injure. The majority point to nothing in the legislative history which even remotely supports such a fanciful and speculative theory.
To reiterate, the statutory classification scheme at issue here is a total anomaly. Enacted to provide injured owner-passengers with the same treatment accorded injured social guests, the statute now operates to deny owner-passengers the legal rights enjoyed by every other class of automobile accident victims. As I have explained, the deprivation of a negligence cause of action to this narrow class of automobile victims is not rationally related to any reasonably conceivable legislative purpose. For this reason, the classification scheme is violative of the state and federal equal protection guarantees and cannot stand.
[538]Accordingly, I would reverse the judgment of nonsuit with respect to plaintiff’s negligence claim.
Mosk, J., concurred.
See, e.g., Rinaldi v. Yeager (1966) 384 U.S. 305, 309 [16 L.Ed.2d 577, 580, 86 S.Ct. 1497] (“the distinctions that are drawn [must] have ‘some relevance to the purpose for which the classification is made’ ”); McGowan v. Maryland (1961) 366 U.S. 420, 425 [6 L.Ed.2d 393, 399, 81 S.Ct. 1101] (“The constitutional safeguard is.offended only if the classification rests on grounds wholly irrelevant to the achievement of the state’s objective”); Morey v. Doud (1957) 354 U.S. 457,465 [1 L.Ed.2d 1485, 1491, 77 S.Ct. 1344] (“a statutory discrimination must be based on differences that are reasonably related to the purpose of the Act in which it is found”); Railway Express v. New York (1949) 336 U.S. 106, 115 [93 L.Ed. 533, 541, 69 S.Ct. 463] (Jackson, J. concurring) (“differentiation must have an appropriate relation to the object of the legislation”); Lindsley v. National Carbonic Gas Co. (1911) 220 U.S. 61, 78 [55 L.Ed. 369, 377, 31 S.Ct. 337] (“The equal protection clause ... [invalidates a classification] only when it is without any reasonable basis and therefore is purely arbitrary. ... A classification having some reasonable basis does not offend that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality”); Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 131 [216 P.2d 825, 13 A.L.R.2d 252] (“A classification is reasonable . . . only if there are differences between the classes and the differences are reasonably related to the purposes of the statute”).
The majority emphasize that the formulation the opinion quotes was utilized by our court in the recent decision of D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16 [112 Cal.Rptr. 786, 520 P.2d 10], In Cossack v. City of Los Angeles (1974) 11 Cal.3d 726 [114 Cal.Rptr. 460, 523 P.2d 260], decided three months after the D’Amico decision, however, our court utilized two alternative formulations of the “restrained” equal protection test: one, the “fair and substantial relation tb the object of the legislation” formula, initially articulated by the United States Supreme Court in Royster Guano Co., supra, and quoted in Brown v. Merlo, supra, and, two, a formulation from an earlier California appellate decision, which states: “It is ... well settled that a statute makes an improper and unlawful discrimination if'it confers particular privileges upon a class arbitrarily selected from a larger number of persons all of whom stand in the same relation to the privileges granted and between whom and the persons not so favored no reasonable distinction or substantial difference can be found justifying the inclusion of the one and the exclusion of the other.” (11 Cal.3d at p. 734.)
My point, of course, is not that the Cossack formulations are the only “correct” standards because that decision is more recent than D’Amico. Rather, I simply note that in recent, as in past, years, different formulations of the “restrained” equal protection standard have been continually utilized in an attempt to describe the applicable equal protection test. No one formula can be isolated as the only appropriate test.
It is worthy of some note that Weisenfeld was a unanimous decision. Justice Rehnquist, in a special concurrence, explicitly joined the majority ruling, observing that “the Court’s opinion establishes that the Government’s proffered legislative purpose is so totally at odds with the context and history of [the challenged statute] that it cannot serve as a basis for judging whether the statutory distinction between men and women rationally serves a valid legislative objective." (420 U.S. at p. 655 [43 L.Ed.2d at p. 529].)
In several other recent equal protection cases, the Supreme Court has similarly rejected a “theoretically conceivable” purpose that, under all the circumstances, could not reasonably be attributed to the Legislature. (See, e.g., Jimenez v. Weinberger (1974) 417 U.S. 628, 634 [41 L.Ed.2d 363, 369, 94 S.Ct. 2496]; U.S. Dept. of Agriculture v. Moreno (1973) 413 U.S. 528, 536-537 [37 L.Ed.2d 782, 789-790, 93 S.Ct. 2821]; Eisenstadt v. Baird, supra, 405 U.S. 438, 448-449 [31 L.Ed.2d 349, 359-360]; cf. McGinnis v. Royster (1973) 410 U.S. 263, 275-277 [35 L.Ed.2d 282, 291-293, 93 S.Ct. 1055].)
Vehicle Code section 17158, as amended in 1961, read in full: “No person riding in or occupying a vehicle owned by him and driven by another person with his permission and no person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the owner or guest during the ride, unless the plaintiff in any such action establishes that the injury or death p'roximately resulted from the intoxication or willful misconduct of the driver.” The emphasized language was added by the 1961 amendment.
It seems relatively clear that the majority cannot be referring to the traditional legal concept of “standing.” The statute at issue here directly burdens those who sue on behalf of an injured owner-passenger; plaintiffs fall precisely within the burdened class and thus clearly have “standing” to raise the present issue. Moreover, the statute in question is clearly not simply a procedural measure, designed to deal with issues of “justiciability” and the like; automobile accident litigation, of course, is perhaps the plainest example of a traditional justiciable controversy. Thus, the majority’s reference to the “standing” concept is at best obscure.
Section 17152 provides in full: “In any action against an owner, bailee.of an owner, or personal representative of a decedent on account of liability imposed by Sections 17150, 17154, or 17159 for the negligent or wrongful act or omission of the operator of a vehicle, the operator shall be made a party defendant if service of process can be made in a manner sufficient to secure personal jurisdiction over the operator. Upon recovery of judgment, recourse shall first be had against the property of the operator so served.”
Section 17153 provides in full: “If there is recovery under this chapter against an owner, bailee of an owner, or'personal representative of a decedent, the owner, bailee of an owner, or personal representative of a decedent is subrogated to all the rights of the person injured or whose property has been injured and may recover from the operator the total amount of any judgment and costs recovered against the owner, bailee of an owner, or personal representative of a decedent.”
Section 16020 provides in full: “Every driver of, and owner of, a motor vehicle shall, at all times, maintain in force one of the forms of financial responsibility specified in Section 16021.” (Italics added.)