State Ex Rel. Foster v. Naftalin , 246 Minn. 181 ( 1956 )

Murphy, Justice

(dissenting).

I agree that there exists a variance which might be considered material in L. 1955, c. 857, art. 9, § 1, as signed by the Governor from that passed by the legislature and would not quarrel with a decision holding that part of the act unconstitutional. I cannot agree that the remaining parts, which are independent and self-sustaining, are invalid so as to render the entire act unconstitutional.

The so-called Reorganization Act of 1955 is a comprehensive pattern of légal enactments designed for the purpose of achieving economy and efficiency in the administration of the important departments of state government. We are not concerned with the wisdom of the provisions. The fact that these provisions were passed by both' houses of the legislature and signed by the Governor is sufficient warrant of their importance. L. 1955, c. 857, is divided into ten separate and distinct enactments, each independent of the other and related only by the fact that each deals with an activity in the organization and administration of our state government.

Article I deals with the Department of Highways. It covers the subject of organization of the department, appointment and qualifications of personnel, and, among other things, transfers to it certain functions of the office of the Secretary of State and of the Minnesota Historic Sites and Markers Commission.

Article II deals with the Department of Conservation and in addition to provisions relating to its organization transfers to it duties of the State Geographic Board and the Division of Hotel and Resort Inspection.

Article III deals with the Bureau of Criminal Apprehension, contains provisions with reference to statewide law enforcement and places the bureau under the jurisdiction of the office of the Attorney General.

Article IY contains important provisions relating to the Department of Taxation and transfers to it certain tax collection functions heretofore carried on by other departments.

Article Y deals with the Department of Commerce and in addition to various provisions relating to its organization transfers to that department functions heretofore carried out by the Department of Business Development, the Tri-State Waters Commission, Great Lakes-St. Lawrence Tidewater Commission, Upper Mississippi and St. Croix River Improvement Commission, Iron Range Resources and Rehabilitation Commission, and Compensation Insurance Board.

Article VI deals with the Department of Agriculture.

Article VII has to do with the Department of Welfare; places the State Parole Commission in that department; grants to the commission the power to make rules governing the granting of paroles and final discharges of offenders; and contains various provisions with relation to imposition of paroles and probation by the courts of record of the state.

Article VIII deals with the Commissioner of Administration, refers to his powers and duties including that of coordinating the functions of the various agencies of the state, and, among other things, provides that he shall be Secretary of the Executive Council.

Article IX contains ten sections which relate to certain powers of the State Auditor and Commissioner of Administration, Legislative Post-audit, State Investment Council, duties of the Treasurer with reference to report of money in the state treasury, etc. This particular article also includes provisions with relation to the keeping of records for the Board of Pardons; abolishes the Publication Board and transfers its duties to the Executive Council. It is § 1 of article IX which contains the variance that gives rise to this litigation, to which further reference will hereafter be made.

Article X deals with a variety of subjects relating to the organization and administration of various state functions.

The foregoing résumé is not intended to encompass the full scope and import of the various enactments. It is intended only to point up the fact that the so-called reorganization act deals with a variety of administrative problems in separate and distinct articles each dealing with a well-defined subject and each capable of standing by itself as an independent legislative act.

In his memorandum the trial court noted with reference to the variance which is the subject of this controversy:

“The fatal variance here involved consists of some dozen words in a document which includes more than seven thousand, and embraces a great many different subjects.”

The variance occurs in § 1 of article IX. The law as signed by the Governor provides: “The commissioner of administration after consulfation mth the auditor” (italics supplied) is empowered to formulate and prescribe a system of uniform records, accounts, etc. As actually passed by the legislature the law provided: “The state auditor, with the advice and assistance of the commissioner of administration” (italics supplied) is empowered to formulate and prescribe a system of uniform records, accounts, etc. This variance occurred as a result of a mistake made during the closing days of the legislative session in enrollment of the act. I cannot agree that this mistake should invalidate the entire enactment.

The essential merits of the issue here can best be understood by an examination of the circumstances and conditions which gave rise to the variance. L. 1955, c. 857, was passed during the closing days of the session. Pursuant to established legislative procedure, the bill was referred to the clerical staff of the legislature for preparation in the form of an enrolled bill for the signatures of the presiding officers of both the houses and thereafter for the signature of the Governor. This detail work which follows final approval by the legislature involves the engrossment of amendments and deletion of changes agreed upon before final passage. To perform this duty the clerical staff is furnished with various documents, including a copy of the proposed bill, committee reports, and various notes and memoranda which represent the provisions agreed upon by the legislature. From this material alone, or if informed members of the legislature are available, from information secured from them, the bill in its final form is prepared.

It is recognized that the vast bulk of final legislative work is done during the last ten days of the session, as a result of which the clerical staff is burdened with a great amount of important work which must be completed within a definite time limit. The constitution provides the work of the legislature must be limited to ninety legislative days and the Governor must sign the bills within three days from adjournment. Minn. Const, art. 4, §§ 1 and 11. It is not unusual for the legislature to require additional time to complete their work, and when this happens the constitutional sanction is complied with by the fiction of covering the clocks. But the calendar operates to limit the Governor to three days from the constitutional date of adjournment, in which to sign the bill. In practice it happens not infrequently that the enacting, engrossing, and enrolling processes are going on during the time the presiding officers of the houses and the Governor should theoretically be engaged in the study and verification of legislative measures. The clerical staff is required to work against time and in the haste and confusion of the moment it is understandable that mistakes occur. It is not understandable that the mistake of a clerk with reference to an independent part of a comprehensive measure should thwart the will of the legislature as to the whole. The purpose of this observation is to emphasize the practical disadvantages of having provisions relating to legislative procedure embedded in the constitution and to point out that, until the constitution is revised, we should not follow a policy of narrow construction which will bring about absurd results.

In construing the constitutionality of a legislative enactment the court must be guided by the cardinal rule of construction which requires that effect be given to the intent of the legislature. The rule which should be followed is stated by Mr. Justice Maguey in State v. Minnesota Federal Sav. & Loan Assn. 218 Minn. 229, 244, 15 N. W. (2d) 568, 576, as follows:

“Our duty to construe a statute so as to render it constitutional, if possible, may not be limited to construction, but extends also to elimination of part of a statute. Cases cited support that position. By eliminating the provision of the statute which limited certain deductions to state associations only, discrimination can be avoided and the statute upheld. The same credit would thus be extended to defendant and to state associations. It accomplishes equality and eliminates the discrimination now complained of. * * *

“L. 1933, c. 405, § 58, provides that each and every part of the act shall be severable. Minn. St. 1941, § 645.20 (Mason St. 1941 Supp. § 10933-21), states:

“ ‘Unless there is a provision in the law that the provisions shall not be severable, the provisions of all laws shall be severable. If any provision of a law is found to be unconstitutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one; * * *.’

“It seems clear that the legislative intent would be to sustain the statute in a limited application rather than to eliminate entirely a tax otherwise valid. The legislative purpose was to impose an income tax on both federal and state associations. Equality may be allowed and discrimination eliminated by far less drastic action than wiping out the entire tax imposed upon federal associations. * * * We see no reason why the objectionable feature could not properly be eliminated and the statute upheld.”

The foregoing paragraph is well recognized as the rule of construction adopted by our court. In discussing M. S. A. 645.20 in State ex rel. Grozbach v. Common School Dist. No. 65, 237 Minn. 150, 154, 54 N. W. (2d) 130, 133, Mr. Chief Justice Loring said:

“In State ex rel. Finnegan v. Burt, 225 Minn. 86, 90, 29 N. W. (2d) 655, 657, where we held that the invalidity of part of a statute does not require that all of the statute be held invalid, we said, quoting from State ex rel. Anderson v. Sullivan, 72 Minn. 126, 133, 75 N. W. 8, 9:

"“* * * The familiar rule on the subject is that, although a part of the statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other. Cooley, Const. Lim. 210.’

“Our conclusion here is supported by M. S. A. 645.20.”

In State ex rel. Finnegan v. Burt, 225 Minn. 86, 29 N. W. (2d) 655, we held that, although L. 1945, c. 607, § 8, was invalid, the subject not being expressed in the title of the act in violation of Minn. Const, art. 4, § 27, that section did not render the whole act invalid.

In Kempien v. County of Ramsey, 160 Minn. 69, 72, 199 N. W. 442, 448, Commissioner Taylor pointed out that it is the duty of the court to view the act as a whole and that a statute is not defeated because it is imperfectly drawn, stating that “It must be assumed that the legislature intended to enact a valid and effective law. * * * To bring this about obvious mistakes and omissions may be corrected or supplied, * * *.”

In State ex rel. Smiley v. Holm, 184 Minn. 228, 241, 238 N. W. 494, 500, this court stated:

“The fact that the legislature voted upon the subject matter in the form of a bill is not controlling. Form does not control. We look to the substance. They voted upon the particular measure. No one misunderstood. The issue was clear. They definitely gave their assent to and expressed their determination fixing definite lines, accomplishing the redistricting as they saw fit. They prescribed the districts within the meaning of said art. I, § 4. In short, they did what the constitution said they should do. Their action was effectual.”

In Saari v. Gleason, 126 Minn. 378, 384, 148 N. W. 293, 296, we held that a whole statute is declared void only when “the valid and the invalid parts are so interdependent and so connected in subject-matter and purpose that it cannot be presumed the legislature would have passed the one without the other.” And in State ex rel. Anderson v. Sullivan, 72 Minn. 126, 133, 75 N. W. 8, 9, Mr. Justice Mitchell said:

“Where a portion of a statute conflicts with the constitution, the question whether the other parts are also void must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. The familiar rule on the subject is that, although a part of the statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other. Cooley, Const. Lim. 210. And in determining whether the invalid portion avoids the whole act the same rale applies as in other cases where a statute is assailed as invalid, viz. that every presumption and intendment is in favor of the constitutionality of the act, and the courts will not he justified in pronouncing it invalid unless satisfied beyond reasonable doubt of its repugnance to the constitution.”

But the majority would say the foregoing authorities should not control our construction of the statute in question. It is their holding that L. 1955, c. 857, never rose above the status of a bill and consequently is not a law validly enacted to which the foregoing authorities might apply. Just how this conclusion is arrived at is recognized but not readily understood. The majority holds that the bill signed by the Governor is not the same bill as that passed by the legislature. Why the change of one section of one of ten articles in the bill should make it a different bill is not explained nor does the decision explain how this change could deprive the bill of its identity so as to make it a document which this court cannot recognize as an act of the legislature. Certainly articles I to VIII, inclusive, are the same. Article X is the same, and all of article IX with the exception of § 1 is the same. But we are told, nevertheless, it is a different bill. The majority apparently feels that reasons to support this conclusion are unnecessary. While they will agree that all but a very small part of the bill represents the will of the legislature, they hold that because of that small part the bill is not the same.

Since it may be assumed there is a material variance as to § 1, article IX, that part of the bill may be rejected. Since L. 1955, c. 868, § 15, which was passed at the same session of the legislature, covers the same subject with relation to the bookkeeping duties of the State Auditor, which provision is now in force, the variance is not important.

The construction given by the majority thus results in a manifest distortion. The bill was attacked because of the spurious nature of § 1 of article IX. Because of that part the majority strikes down the remaining good parts. Section 1 of article IX is in force today as part of L. 1955, c. 863, and we see before us the strange paradox of the good parts of a hill destroyed while the offending portion lives on because of the enactment of c. 863. A judicial construction which will permit such an incongruous result cannot be sound.

It should be considered that sound reason and judicial policy would dictate that so much of the bill as is good should be retained. But the answer of the majority is that, because of the defect in § 1 of article IX, the law never came into being and, since the law never existed, there is nothing which may be retained. This concept is arbitrary and punitive; it derives from a judicial policy that invokes the right to discipline the legislature. It is not in harmony with the spirit of construction which grants respect for the separation of powers. It is a contrived rule, easy to state, and so final in its consequences that exceptions and qualifications seem unnecessary. This reasoning ignores the fact that the bill, insofar as it represents the will of the legislature as to independent and unrelated parts, actually became a law. Articles I to X, inclusive, with the exception of § 1 of article IX have met the full requirements of legislative rules and procedures set up by the Constitution. These numerous provisions were in the bill passed by the senate and house in conformity with the rules and with Minn. Const, art. 4, § 11. The bill received a majority vote of all members³⁵ elected to each branch of the legislature, and the vote thereon was entered upon the journal of each house as required by Minn. Const, art. 4, § 13. The bill was considered by the committees of the two houses, was the subject of joint conferences of joint committees, and in pursuance of Minn. Const, art. 4, § 20, met the requirements with reference to three readings in the two houses. It was- signed by the presiding officer of each house as required by Minn. Const, art. 4, § 21. It was enrolled pursuant to § 21, and, except for § 1 of article IX of the act, spoke the true will of the legislature. The subject matter of the act is within the constitutional power of the legislature, and it was approved by the Governor as required by Minn. Const, art. 4, § 11. The parts of the bill relating to the various agencies referred to passed all the constitutional tests and safeguards provided for legal enactment, and they are independent of the offending part which is severable.

The authorities cited in the majority opinion in support of their construction that the entire act is unconstitutional may readily be distinguished. Freeman v. Goff, 206 Minn. 49, 287 N. W. 238, is relied upon. In that case the court had under consideration the construction of L. 1939, c. 444, which dealt with the subject of signs advertising beer and liquor in and about the premises of a retail liquor dealer. It contained five sections, all having to do with the extent to which a liquor dealer might go in advertising his merchandise. Section 1 of the act contained a provision that he was not permitted to have exterior signs on or adjacent to his premises on public streets where they would be visible to travelers. This provision was not included in the bill passed by the legislature and, of course, the act necessarily fell because it violated Minn. Const, art. 4, § 11, which provides that “Every bill * * * shall, before it becomes a law, be presented to the governor of the State.” Unlike the case which we have to consider, the entire act was infected by the spurious portion referred to.

The majority cites Bull v. King, 205 Minn. 427, 431, 286 N. W. 311, 313, where there was a variance in a provision of a 1939 law relating to income tax. The court there held that the variance was not material and sustained the constitutionality of the act but in deciding the case the court expressed certain dicta upon which the majority relies here. But notwithstanding Freeman v. Goff and Bull v. King the fact remains that this court has never struck down an entire enactment because of a mistake made in the enrollment of an independent and separable part. The language in Freeman v. Goff and Bull v. King upon which the majority relies are overstatements and demonstrate the truth of Mr. Justice Holmes’ observation that “General propositions do not decide concrete cases.”³⁶ It should likewise be observed that while the dicta in Bull v. King supports the majority view it is important to note that in that case the court did not raise the issue of severability or make a holding thereon.

Sharp v. Merrill, 41 Minn. 492, 43 N. W. 385, relied upon by the majority, dealt with a particular variance which was not material, and as in Bull v. King, the court was not faced with the responsibility of overturning an act of the legislature.

Sjoberg v. Security Sav. & Loan Assn. 73 Minn. 203, 75 N. W. 1116, is not authority for respondent’s position because there the act was stricken in its entirety for failue to contain an enacting clause. The doctrine of severance cannot apply when the constitutional defect inheres in the whole enactment.

In Minnesota Mut. L. Ins. Co. v. Johnson, 212 Minn. 571, 4 N. W. (2d) 625, the court held an enactment invalid because the bill as passed by the senate and house on April 8, 1941, had not been properly corrected by the engrossing clerks to take into account certain prior amendments to the bill. The defects involved took place before the final reading. Prior to the bill’s preparation for the Governor’s signature the legislature had failed to enact a bill in accordance with the Constitution. This differs widely from the situation here where there is no question that the legislature followed all constitutional steps in the enacting process.

Nor are the Michigan or Wisconsin authorities cited by the majority helpful in a determination of this case. Rode v. Phelps, 80 Mich. 598, 45 N. W. 493, may be distinguished. The law there related to the single subject of liquor taxation. Amendments approved by the senate were never adopted by the house; there was a variance in the amount of tax a wholesaler should pay; there was a variance in the amount of tax which should be paid on malt, brewed, and vinous liquors; and there was a substantial variance with reference to the penal and record-keeping provisions. These variances ran through the entire bill.

State v. Wendler, 94 Wis. 369, 68 N. W. 759, should likewise be distinguished. This case relates to two bills which became confused in the legislative process. One of them related to game and fish preservation, while the other related to elections involving the change of county seats. With reference to the game and fish bill, involved in the court’s decision, it was held (94 Wis. 374, 68 N. W. 760) “That it never in fact passed the legislature, or, if it did pass, it did not pass by a yea and nay vote; and hence that it was not constitutionally passed, because it is a law making an appropriation of public money. Const. art. VIII, sec. 8.” Moreover, the unconstitutional part of the bill infected the whole. Referring to specific defect, the court said (94 Wis. 378, 68 N. W. 762):

“* * * This affected many parts of the bill, and cannot be regarded for a moment as immaterial or trivial. Granting that any bill at all passed the legislature, it is absolutely certain that it was an entirely different bill from that which the governor signed.”

State ex rel. Pollard v. Board of Medical Examiners, 172 Wis. 317, 177 N. W. 910, is distinguishable since it relates to the interpretation of a provision in the Wisconsin statute setting forth the qualifications for admission to the practice of medicine, surgery, osteopathy, etc. This statute dealt with one narrow subject and turned on the meaning of the words “or” and “and.” None of these cases had to do with the interpretation of statutes dealing with various subjects having independent and self-sustaining parts.

We are told that the wisdom of the rule in Freeman v. Goff derives from the experience of the past and are guided to Mr. Justice Flandrau’s decision in Board of Supervisors v. Heenan, 2 Minn. 281 at p. 288 (330 at p. 336), where he warns of “tricks and finesse” in legislative proceedings. But this danger has been rendered negligible if not eliminated by the adoption of the journal entry rule which guarantees the integrity of legislation at each step in the channel of constitutional enactment. Moreover, the integrity of a bill may be sufficiently protected by the application of the enlightened rule of severability. An unwarranted attitude of skepticism or vague apprehension of chicanery in the legislative process should not shape our thinking. Acts of the legislature should be viewed with confidence in the integrity of its members; respect for their enactments; and a willingness, within constitutional limitations, to give effect to the purposes their acts seek to accomplish. It is difficult to find in reason or policy support for the harsh and arbitrary position for which the respondent contends.

The decision of the majority hinges upon an interpretation of the distinction between the words “bill” and “law.” It holds that a defect in an independent part of an enactment prevents any part of the bill from becoming a law. In answer to this it should be noted that the word “bill” does not have a fixed and immutable meaning. In State ex rel. Attorney General v. Platt, 2 S. C. (Richardson) 150, 157, 16 Am. R. 647, 654, the court points out that the term “Bill” while properly applicable to the enactment as a whole should not be used in its technical sense where it would not be consistent with the clear intent of the instrument:

* * If we should hold that the Constitution regards the enactment as a whole, in an exclusive sense, we would be led to the inevitable conclusion that to become a law all the substantial parts of the measure must have together passed through all the requisite stages. The consequences of this would be, that alteration in a substantial part during such progress would be fatal to the whole Bill.

“* * * Whether it is to be regarded as substantial, does not depend upon its importance or unimportance to the rest of the Act, but upon its being, in itself, an expression of the legislative will, capable of being the subject of a separate Act. It would lead us to the conclusion, in the present case, that, if the law in question, although, in substance, a code of legal procedure, differed, as it passed the Houses, from the enrolled Act, in respect of any matter, though a mere word, that covered a distinct expression of the legislative will, not capable of being made out by construction, applied to the rest of the Act, the whole must be regarded as unconstitutional. That the Constitution intended no such absurdity, is manifest.”

That decision points out by analogy that, where by reason of error in a deed or contract it cannot be executed, the error will be eliminated “either by construction or reformation, when that can be done without the substantial destruction of that in which it inheres.” The court observed it was difficult to perceive why any designated part of a statute which in itself might be the subject of an independent legislative enactment should not be regarded as a bill. It states (2 S. C. 158):

“* * * It is obvious that, in construing clauses of this class, substance, rather than form, is to be considered. The object to be secured is to be sought for, not alone in the formal expressions of the Constitution, nor yet in the technical character of the means employed to secure its ends, but in the nature of the subject, intended to be acted upon through such means. In a word, the language of the Constitution, in such cases, is to be construed in the largest sense fairly attributable to it, and that will best subserve the objects it has in view.

“The clauses of our Constitution under examination belong to the class just specified, their objects being to prevent abuses in the exercise of the most important function of the government, namely, that of making laws, by securing deliberation and solemnity of authentication in such form as to fix a personal responsibility at every stage in the progress of an Act of legislation. It is altogether a mistaken view to suppose that the object of these clauses was either to confer upon the signatures of the attesting officers power to cover up fatal defects in the passage of Acts, or to conserve the outward, visible and tangible form of a law, without consideration for the vital matters that are contained within it. We would altogether fail to appreciate the spirit that animates the system of constitutional law, the flower of jurisprudence, native to our own country, should we apply the narrow rules of technical construction contended for to the clauses in question. The principles characteristic of that system have been evolved from the highest reason under the experiences of a political system securing the largest field of human action and motive for the enterprise of thought. They are like the atmosphere we breathe, animating and all-pervading, and if not definable with that sharpness of outline that affords the highest qualification to the scientific mind, yet they are capable of reducing to precision and definiteness of outline the institutions and laws which derive their substance and vigor from them.”

Faced with the same problem with which we are confronted here, the South Carolina court held (2 S. C. 160) “the residue of the Act, beyond that portion held by us not to be of force as law, is unaffected thereby, inasmuch as that is a distinct and independent matter, no way affecting the scope and efficiency of the Act, according to the intention of the law-maker(Italics supplied.)

The Supreme Court of the State of Wisconsin is in harmony with this reasoning. In Loomis v. Callahan, 196 Wis. 518, 220 N. W. 816, the entire University Appropriation Act was attacked on the ground that the senate journal showed that that body voted, without calling for yeas and nays, to withdraw an important fiscal amendment which governed the transfer to the State Historical Society of an unexpended appropriation of $550,000 which had been made to the University Regents in 1925 for the purpose of constructing an addition to a library. There the court said (196 Wis. 528, 220 N. W. 820):

“* * * It would be a strict, harsh, and senseless rule that would condemn the entire act because the senate consented to the elimination of amendment No. 2S without a yea and nay vote. It would call for a blind adherence to the strict letter of the constitution which killeth rather than an accordance with the spirit which giveth life.”

In Gwynn v. Hardee, 92 Fla. 548, 110 So. 343, where the Supreme Court of Florida had under consideration an act which contained spurious matter not passed by the legislature, it was held that the genuine provisions should be distinguished from and independent of the spurious so as not to affect the good part of the bill. It stated (92 Fla. 558, 110 So. 348):

“* * * To give effect to the spurious portion would cause results not intended by the Legislature. To declare the entire act invalid because it contains the spurious matter would frustrate the legislative will, not because of an unconstitutional act or omission of the Legislature, but because by a clerical error a spurious provision was inserted in the bill after its passage. This would destroy a law because by a clerical mistake, a provision not passed by the Legislature was incorporated in the bill as authenticated by the legislative officers, which spurious provision is clearly identified and may be regarded as eliminated and full effect given to the law-making intent as expressed in the provisions that were duly enacted.”

We are told these authorities have heretofore been considered by this court. If that be true the fact does not detract from the force and validity of their reasoning.

Furthermore, I believe that L. 1955, c. 857, should be given effect by virtue of M. S. A. 645.20 which plainly states that the provisions of all laws shall be severable unless otherwise provided and if any part of a law be found unconstitutional and void its remaining provisions shall nevertheless be deemed valid unless they are essentially and inseparably connected with the void provisions. This court cannot presume that the legislature would not have enacted the remaining provisions without the void one. But here again we are faced with the same conception which to the majority presents an insurmountable obstacle. The majority would assert that while this statute would apply to an act which is unconstitutional by reason of a defect in substance, it does not apply to an act which is unconstitutional because of a procedural fault. While the majority concedes that the greater portion of the act successfully ran the gamut of all tests of legislative enactment, nevertheless it holds that the good parts must suffer guilt by association with the spurious part so that the entire act must fall. There is no basis for the subtle distinction between two types of unconstitutionality. A law is either constitutional or it is unconstitutional. In State ex rel. Kohlman v. Wagener, 130 Minn. 424, 428, 153 N. W. 749, 750, this court said:

“* * * It is not too much to say that the presumption in favor of regular enactment of a law is as great as the presumption in favor of the constitutionality of the subject matter of a law, and the rule in such cases is that the law is to be upheld unless its unconstitutionality is made to appear beyond a reasonable doubt.”

The majority agrees that some 20 or more states apparently follow the enrolled-bill rule under which the question of severability is never raised. Under this rule the enrolled bill is conclusive of the law and cannot be impeached by resort to legislative journals. The courts will not go behind the enrolled bill to see whether a statute has been regularly enacted. Crawford, Statutory Construction, § 139. This is the rule followed by the United States Supreme Court in Field v. Clark, 143 U. S. 649, 12 S. Ct. 495, 36 L. ed. 294. The authorities of other jurisdictions are gathered in 4 Wigmore, Evidence (3 ed.) § 1350; Ritzman v. Campbell, 93 Ohio St. 246, 112 N. E. 591, L. R. A. 1916E, 1251. The majority disposes of this impressive authority by the surprising deduction that if jurisdictions which now follow the enrolled-bill rule should sometime in the future adopt the journal-entry rule they might not consider the question of sever-ability. It is useless to speculate what courts might do in the event they changed their policy other than to observe that it may be expected courts will be guided by the same spirit which has shaped their judgment in the past. The important point is that in those jurisdictions the rule of Freeman v. Goff could never be applied.

In addition to the jurisdictions which follow the enrolled-bill rule numerous other courts support the contention of the appellants with reference to the doctrine of severability where there is a material variance in a provision or section of the statute provided the valid portion of the section is severable from the rest of the act. Rice v. Road Impr. Dist. 142 Ark. 454, 221 S. W. 179; Ford v. Plum Bayou Road Impr. Dist. 162 Ark. 475, 258 S. W. 613; Gwynn v. Hardee, 92 Fla. 543, 110 So. 343; People ex rel. Honore v. Olsen, 222 Ill. 117, 78 N. E. 23; People ex rel. Brady v. LaSalle Street T. & S. Bank, 269 Ill. 518, 110 N. E. 38; State ex rel. Williams v. Robb, 163 Kan. 502, 183 P. (2d) 223; Berry v. Baltimore & Drum Point R. Co. 41 Md. 446, 20 Am. R. 69; State ex rel. Casper v. Moore, 37 Neb. 13, 55 N. W. 299; Cancilla v. Gehlhar, 145 Ore. 184, 27 P. (2d) 179; In re House of Representatives, 45 R. I. 289, 120 A. 868; State ex rel. Attorney General v. Platt, 2 S. C. 150, 16 Am. R. 647; City of Nashville v. Browning, 192 Tenn. 597, 241 S. W. (2d) 583; State ex rel. Board of Commrs. v. Wright, 62 Wyo. 112, 163 P. (2d) 190; Loomis v. Callahan, 196 Wis. 518, 220 N. W. 816.

The arbitrary journal-entry rule upon which the majority relies is designed primarily to enforce strict compliance with constitutional procedure and came into usage in the middle part of the last century in order to cope with corrupt legislatures. 15 Neb. L. B. 238. State ex rel. Kohlman v. Wagener, 130 Minn. 424, 428, 153 N. W. 749, 750, recognized the rule as reflected in early Minnesota cases but noted that “The authority of these decisions may have been shaken by Miesen v. Canfield, 64 Minn. 513, 67 N. W. 632, but we are not disposed at this time to overrule them.” An examination of the Miesen case indicates that Mr. Justice Mitchell had reservations with respect to it and the door was left open for a departure from it until it was revived by the dictum in Bull v. King. While the so-called Reorganization Act can be given effect by invoking the doctrine of severability and it is therefore not necessary to consider an overruling of the journal-entry rule here, there are many practical reasons which compel attention should the court consider abandoning it.³⁷ See, 4 Wigmore, Evidence (3 ed.) § 1350; also numerous authorities discussed in 32 Iowa L. Rev. 147 to 151; 16 Iowa L. Rev. 99; 21 Iowa L. Rev. 538 to 551; 21 Iowa L. Rev. 573 to 584; 1941 Wis. L. Rev. 439.

This brings us to an awareness of the disturbing position in which this court finds itself. The Supreme Court of Minnesota by reason of the journal-entry rule, as interpreted by the majority, is deciding a most important case in an area of law limited by minority authority. The holding of the majority here can only have the effect of further complicating the legislative process, for rather than: risk the ever present danger of having an entire measure nullified by an error in a part, the legislature will be forced into the involved and time-consuming practice of considering and acting upon each provision as a separate bill.

We are told that out of respect for stare decisis the decision in Freeman v. Goff should not be disturbed. It should again be noted that Freeman v. Goff is not controlling authority for the precise holding which the majority is making here. Moreover, since the subject of the act under consideration here is administrative and procedural in nature and since no business or property rights are involved, stare decisis is not appropriate. Johnson v. Chicago, B. & Q. R. Co. 243 Minn. 58, 68, 66 N. W. (2d) 763, 770.

We are warned that it is presumptuous for us to consider a change in the holding of the court which decided Freeman v. Goff and Bull v. King. We do credit neither to the distinguished members of the court which decided those cases nor to ourselves by a fatuous reverence for the dicta set forth in these opinions. They would be the first to deny the claim that their observations should be enshrined with the eternal verities. Confronted with the responsibility of making a decision in this case no one can say what their judgment would be. We do know, however, that as able jurists they would be the first to acknowledge our- rjght and encourage our interest in a reexamination of their decisions in the light of concrete facts and present-day actualities.

We are warned of the danger of overturning established law and of the possibility of the chaos which such action might produce. This again is based on the doubtful premise that Freeman v. Goff and Bull v. King apply to the specific questions with which we are confronted. It is my opinion that because Freeman v. Goff extends the power or license to exercise a judicial veto and thereby thwarts the will of the legislature, in itself it represents a serious danger to the stability of government.

The respondent contends that a determination of this case involves no long-range policy and indicates that, if its provisions are of sufficient importance, they can be reconsidered when the legislature again meets. This attitude represents an unwarranted indifference to the importance of legislative action. The fact that the legislature of the state has seen fit to pass a comprehensive Reorganization Act after many weeks of deliberation involving the expenditure of a great deal of time and public money should impress us with the immediate importance of the matter. We should not maintain an attitude of detached indifference where the law permits an interpretation which will give expression to legislative mandates.

Nor does it add to the force of the majority decision to quote at length from briefs submitted in former cases and to point out that attorneys general in years gone by have expressed views inconsistent with those contended for in this action. The attorney, general like any other attorney is an advocate. We are interested only in determining if his position is correct now and in this particular case. A consideration of the issues should be limited to the ample decisional authorities which are the true guide to the law.

For the foregoing reasons I respectfully dissent.

35 The vote was 112 to 4 in the house and unanimous in the senate.

36 Lochner v. New York, 198 U. S. 45, 76, 25 S. Ct. 539, 547, 49 L. ed. 937, 949 (Mr. Justice Holmes’ dissent).

37 The journal-entry rule has been said to be unsound because it impairs the stability of the law. The Supreme Court of Iowa after vacillating between the strict enrolled-bill rule and the journal-entry rule for many years decided in Carlton v. Grimes, 237 Iowa 912, 946, 23 N. W. (2d) 883, 901, to return to the enrolled-bill rule. The court stated:

“* * * The people and the public generally, the various departments of government, all the public officers of the state, and the courts look upon the statutes set out in these Codes as the laws of the state. Not the laws maybe, or perhaps, but the laws. There is something fantastic and absurd in a court saying and holding: ‘No. These Codes of Iowa are not really the laws. They are only the laws presumptively, prima facie, and on condition.’ It is perhaps a harsh rule that ignorance of the law excuses no one. But it is a necessary rule. The rule is not so harsh that one is presumed to know the statute law because he may have a Code of Iowa, or if not, one is readily available, and he may read and know what the statutes provide, or he may consult a lawyer who will turn to the Code and advise him of its provisions. But if what is read is not in fact law he has no chart readily available to inform him as to his legal rights.”

The Supreme Court of Wisconsin has also retreated from the strict interpretations of the journal-entry rule. Since the Wendler case in 1896, the Supreme Court of Wisconsin had not upset a single enrolled bill on the grounds of procedural defects in its passage. See, also, Weed v. Bergh, 141 Wis. 569, 124 N. W. 664, 25 L.R.A.(N.S.) 1217; Loomis v. Callahan, 196 Wis. 518, 220 N. W. 816. The following summarization of the present law in Wisconsin might as well apply to Minnesota. 1941 Wis. L. Rev. 457:

“The confusing, ambiguous nature of the Wisconsin cases together with the repeated refusals of the court to find that the legislátive procedure was unconstitutional pretty obviously demonstrates the weakness of the journal rule. The rule is easy to state and logically there seems to be no necessity for qualifying it with numerous exceptions. * * * [It is] a doctrine which was developed without much thought from the sheer force of the habit of judicial review [and] they [judges] refuse to apply it except in extreme cases.

“Only the doctrine of stare decisis stands in the way of complete abandonment of the journal rule. ‘This is not a rule of property. No vested rights in the rule have been created. No difficulty would be experienced by the profession were it to be changed.’ ”