*1 ARTHUR NAFTALIN FOSTER v. EX CHARLES REL. STATE AND OTHERS.1 January 1956. 36,749.
No.
1Reported (2d) in 74 N. W. *2 Lord, Lowell Attorney General, Grady, Attorney
Miles J. Deputy Joseph Bright, Attorney and J. Assistant General, General, for appellants. H. Peterson
Harry and Leonard Frank, respondent. for Justice. Knutson, proceeding This originally was commenced as an action for a declaratory judgment seeking a determination of the constitution- ality of L. c. an injunction and restraining defendants acting from thereunder. While a temporary injunction motion for a was pending, by parties, stipulation, converted action into quo a proceeding in warranto for the purpose speedily of testing right of defendants Arthur Naftalin, Hansen, Arthur Morris and Hursh to hold and respectively exercise the offices of secretary of the State Executive Council, of the State Investment secretary and secretary Council; of the State Board of Pardons. The trial court determined that the act was unconstitutional, appeal and this followed. dispute
There no to facts. L. 1955, c. 857, was first intro 2 duced in house as House File 1233 on March 7, 1955. The bill comprehensive reorganization many was a of departments of government. reported After introduction it by its back committee on civil administration with certain amendments with its it pass.3 reported recommendation that As passage, so for article X read in :’4 as follows House, 1955, p.
2 Journal of the 835. House, 1955, p.
3 Journal of the 1672. House, 1955, p.
4 Journal of the 1693. this provided otherwise Except 1. “Section Subdivision auditor, of the state duties powers as to other and except and section upon imposed and in, vested this are transferred by to, act now duties powers or all departments agencies, other state hereby auditor statute the state imposed vested in, imposed upon the commissioner transferred vested to, in, administration. rights, exercise the
“Subd. auditor continue to The state shall hereafter may been or powers and which heretofore have duties relating certifying imposed upon law him to in, vested certifying relating tax to county auditors, state the several made necessary any tax loans to be levied in connection respect or in the state board investment constituted as heretofore any obligations purchased by investment, such state board any taxes way levy other relating the certification purposes Minnesota. any for and on behalf of the state appli- other Subject provisions “Subd. 3 act and shall continue laws, cable Minnesota 6.02 Statutes Section *3 full force and effect. of the state as a member continue
“Subd. 4 The auditor shall and the state hoard exchange commission, executive land council, constituted.” of investment as heretofore by house.5 adopted the committee was
The recommendation of as follows:6 Article X of the thereafter was amended in lieu thereof the “In Article Section 1 and insert X, strike following:
“ responsibilities 1. All duties now vested powers, ‘Section and or imposed upon keeping the state auditor to the relating system general books of account of the state and the of a keeping vested hereby of uniform records and transferred to, accounts are audi- imposed upon in and administration. The commissioner of other perform tor shall continue to of and all preauditing duties him to the imposed upon by duties now and not transferred law House, 1955, p. 5 Journal of 1698. House, p.
6 Journal of the by comply administration this act. The commissioner of auditor shall system of prescribed by with the accounts and records commis- of sioner administration and shall at all times have access to the ” general of books account of the state.’ April As so house on 1955.7 amended, Insofar as the text of the bill as so amended and approved house is it is of concerned, importance except little here to indicate position what the of the house was the enactment of this bill. The bill was sent to the April senate on 16. was considered special senate April as a order on at 19, which time 11 amend- proposed ments were including amendment passed, an to article X,8 which was as follows: * * *
“In Article X strike all of Section 1 amended and insert in lieu the following: thereof
“ powers 'Section 1. All the and duties now or imposed vested in upon the state auditor relating keeping general books hereby account of the state to, in, transferred im- vested posed upon the commissioner of administration. The auditor shall perform continue to duties preauditing shall maintain such control records and accounts as these duties com- require. The missioner administration consultation the auditor and after the post-auditor, as now by law, constituted shall hereafter formu- late and prescribe all departments agencies the state a system records, accounts procedures with suitable of uniform instructions governing installation and use The auditor thereof. shall at all times have access to the general boobs account of the state. commissioner of administration shall at all have times to the access files and records (Italics auditor.’” supplied.) will be referred to hereafter as This amendment amendment No. 1. *4 Immediately adoption after the of amendment No. X 1, article of was further amended follows: the bill as of the House, 1955, p. Journal 2115. Senate, 1955, p. 8 Journal 2004.
“In and Art. strike Section insert lieu X, amended, thereof the following: powers
“Section 1. All the and duties now imposed vested or upon the state relating keeping general auditor boobs hereby account of the state are transferred to, vested and im- in, posed upon the commissioner of administration. The auditor shall to perform continue the duties preauditing and shall maintain such control records and accounts as these require. duties The state with the advice auditor, assistance the commissioner ad- ministration and the post-auditor as now or constituted hereafter by law, shall prescribe departments all agen- formulate cies the state a system records, accounts pro- of uniform cedures with suitable instructions governing installation and use The auditor at all shall times have general access thereof. books account of the state. The commissioner of administration at all shall times have access to the files and records of the auditor.” (Italics supplied.)
This amendment will be referred hereafter as amendment No. 2.
The house to concur refused in the senate amendments9 and re quested that a conference committee appointed. Pursuant to that request conference committee appointed by both after houses, which the agreed conference to certain pertinent amendments not here,10 thereafter accepted house and passed the bill with X article as amended the senate.
Due to a mistake on the of the enrolling clerk, someone the bill as else, transmitted to and signed governor included amendment No. 1 instead of amendment No. 2. Amendment No. 1 passed by was never the legislature.
The trial held that the court variance between the bill as passed containing amendment legislature, pre- No. and the bill to the amendment governor, containing sented No. was a material Senate, 1955, p. 2025; House, 1955, p. 9 Journal of the Journal of the 2353. Senate, 1955, p. 10 Journal of the 2278. House, 1955, p. Journal of the *5 a law failed to become the entire bill result, as that, and
variance and is void. not a is the variance (1) that appellants position
It is the 1 of variance, material § if it and variance, (2) that, material from the is severable occurs, in the variance article which IX,12 rest of act. the requires an in this case
A of the issues involved determination material far as interpretation which, Const. art. as of Minn. here, reads:
“Every passed have the Senate and House of which shall bill conformity in to of each house and the the rules Representatives, it law, the two before be joint houses, shall, pre- rules of becomes to the the State. If he he shall governor approves, sign sented deposit it secretary in office of of state for preservation, notify originated the house where it But if not, fact. he objections, shall return the house in it it, his to shall objections originated; large have when shall be entered at such on journal proceed and the house shall to same, reconsider the bill. after If, such two-thirds of that reconsideration, house shall agree pass bill, sent, together it shall be with the objections, by the other it house, which shall likewise be reconsidered; and if it approved by of that it be two-thirds house shall a law. become But in all such of both by yeas cases votes houses shall be determined persons and the voting names of nays, against bill each journal respectively. any be entered on If house, shall returned by governor shall within days (Sundays three presented it shall excepted) him, after have been the same shall signed in like manner if he by a law as had unless the it, legislature, adjournment prevents within that its time, return; in which case . n shall a law. The governor may not be approve, sign file secretary days adjourn- within state, three after the (cid:127)office changed originally drafted was later X the bill 12 Article pertinent to hereafter as IX IX, will be referred article article and the .article final bill. it is any passed ment of act legislature, during days the last three and the become session, same shall a law.” apparent from this provision constitutional that a bill re- embryonic mains an state and does not become a law until three things occur, namely, passage by both houses of the approval either signing or governor, constitutional lapse of time, unless over his veto by two-thirds both houses of the legislature. In considering the issues before us, it *6 becomes important, keep that we therefore, in mind the distinction a Mil between A a law. Mil never becomes a law until all the
constitutional prerequisites respecting manner of enactment have fully been complied with. rule have in mind,
Another
that we should
which is
dis
puted
firmly
here, is that Minnesota
committed to the so-called
“journal
the
entry
journals
legislature
under which
rule,”
may be examined in order to ascertain whether
constitutional
prerequisites
to the enactment of a law
been complied
have
with.
journal entry
We have
rule
Super
followed
ever
since Board
visors v.
Heenan,
(330). See,
Minn.
Bull v.
205 Minn.
King,
On the quéstion materiality of the variance involved, appellants first contend inasmuch that, as the material portions of the two amendments require concurrence of the commissioner of post-auditor administration auditor with the in amendment No. 1 and the auditor and commissioner post- of administration and auditor amendment No. and that 2 of article IX provides as § follows:
“The office legislative post-audit is created in government. appointment branch of the The method of of the direc-. tor of this office, qualifications, his his compensation, his term of provisions his removal and definition of his office, duties will be by concurrent resolution of the established legislature,” portions of the act involved have no significance because the legis- appoint post-auditor lature failed to a as provided by 2. They argue the matter legislature the intention of it was a should prescription system of uniform records formulation the commissioner namely, the state officers, auditor, rest with three legis- post-auditor; that, and the inasmuch as administration, if even provide post-auditor, “Therefore, failed to lature variance correctly in which this had been sentence enrolled, legis- in accordance with the incapable of execution occurs would be any that the cannot be of intention”; consequently, lative variance materiality. provides course,
Of overlooks the fact act argument If we now constituted law.” post-auditor for a or hereafter “as at legislature on this appellants contention, hold with were to thereby conceivably provide post-auditor, session could the next appel- according had been an immaterial rendering variance, what the act a material one. To now hold constitutional argument, lants’ lead much chaos we later to might well were ground on that had then become material when compelled to hold that the variance placed should not on provided. The decision post-auditor tenuous basis. such a think that itself has determined
Furthermore, materiality of the variance. When the bill was amended *7 in concur the house refused to the amendment. Had the senate, entirety bill in its there, probability the all remained matter Only defeated. after a conference had have been committee would the passage of the senate amendment did house concur. recommended contend, immaterial, the variance was it is difficult appellants If, legislature how the of the two houses would differ to understand the the bill. two versions emphatically so Mut. L. Ins. Co. v. 212 Minn. 4 Johnson, Minnesota N. W. 571, In attorney state general then of this was on the opposite the 625, (2d) attorney general The brief of the in the question. presen of this side apt that case here contained following statement:13 tation 16, Brief, p. Johnson, 13 Appellants’ L. Ins. Co. v. Mut. 212 Minnesota 571, (2d) 625. 4 W. Minn. N.
189 *“* * held that a which relates to fact, In has been variance argument, the amendment Mil material. The courts is, without speculate materiality will not even such cases as to rule if the amendment. The reason for the is that matter constitut- ing the amendment were not would not have material, bothered to amend it.” (Italics supplied.) support Mayor
Cited
of this
we find
statement
cases
Aldermen of West End v.
165 Ala.
51
Simmons,
So.
359,
638,
Moog v.
“* * * it would not become our office speculate upon degree of importance attached to it in the mind.”
We think it generally is the rule that, where the variance re- lates to an amendment in or included omitted from the passed, the variance is Certainly material as a matter of course. that is true where the impasse two houses reach an they on amendment as did here.
Appellants next argue variance becomes immaterial when c. L. 1955, Chapter is considered with 863. origi c. nated F. February as S. 726. It introduced was on 1955,14 quite prior some time to the introduction of H. F. It was 1233. passed by the senate on March transmitted to the was house on 11.16 passed by March It was the house on April 20,17 day on H. F. Both passed. approved same bills were by the on governor April 21.18
Chapter powers 863 deals with the and duties of the auditor. state portion material A. 1953, here is which amends M. S. 6.21, respect duties auditor. reads: Senate, p. Journal 368. Senate, 1955, p. 701. 15 Journal of House, p.
16 Journal of 966. House, 1955, p.
17 Journal of 2475. 2295; House, 1955, p. Senate, 1955, p. 18 Journal Journal of *8 is amended to Section 6.21, Minnesota Statutes “Sec. read: continue to exercise auditor shall Duties. The state
“6.21 upon his office. imposed vested in and duties now and powers, rights, of the financial affairs of the administration charge He shall have the state. books of account of keep general state. He shall entry basis, a double control account shall be on books of general The will liability and accounts as expenditure, asset revenue, with such operations expenditure all financial and control over complete give agencies and officials, departments, over all of the state and and expenditures set as to Accounts shall be both government. state accepted practice governmental generally according revenue the advice and assistance of com- auditor, The with accounting. shall formulate public and the examiner, of administration missioner system departments agencies and other state for all prescribe and receipt revenue accounts, statements, estimates, records, of uniform gov- and demands with suitable instructions bills, vouchers, forms, accounting system and use thereof. The the installation and erning by all adopted employed officials, and prescribed shall form so auditor, the state The agencies government. and departments, shall exercise constant public examiner, the assistance and financial rec- accounting control thereof. All and supervision year ending of 12 months at kept on the fiscal basis ords shall July desig- 30 and 1. The auditor and his June between midnight records, all have free access to the books, shall at times agents nated departments agencies. papers of the several accounts, designated employees shall of administration his commissioner records, accounts, all to the books, have free access at times allow the auditor and the auditor shall commis- papers of the state space using inspecting desk agents and his sufficient sioner the same.” same appellants that c. 863 dealt with the is the contention of the two
matter and that the later of it, being as c. art. reads: controlling under M. S. A. subd. which laws, 645.26,
[191] provisions of two or more laws passed during “When same legislature irreconcilable, are the law latest in date session of irrespective enactment, date, prevail of its effective shall final except from the time it becomes in effective, provided as otherwise (Italics supplied.) section 30.” respect
This passed rule was construed with acts at the same approved by Syndicate time and at the time the governor same Printing Co. 446, v. Minn. 132 N. Cashman, 916, W. 450, 915, where we said:
*“* * Chapter 221, though approved on the day chap- same presumed ter 203, is to be it presumed the later enactment, is approved the acts were their numerical If, order.19 therefore, two chapter acts inconsistent, 221, being latest expression on the operates repeal implication as a subject, of the prior inconsistent law, and be given (Italics must effect.” supplied.) difficulty with argument application and the of this
authority is that it presupposes that H. F. 1233 became a law. M. S. A. subd. 645.26, 3, specifically likewise deals with “two or passed during more laws the same session.” If H. F. because 1233, of a material variance, never became a the rule in- wholly is law, applicable. If the appellants contention of it were tenable, would if passed mean H. F. 1233 been that, approved had as it was, by the same variance as are now governor, confronted early at with, an un- it would be session, passed constitutional when and would not then, become a law. If, passed c. were during at a later time session, according appellants’ it would in argument, some manner breathe life into the bill that had never been born. on the other c. 863 had been If, hand, approved a day before H. it 1233, F. would not correct the constitu- tional defect it existing at all. We believe it evident that c. 857 must stand on its feet fall and that passage own c. 863 could in no manner if bring constitutionally it to life defec-
19 For
view,
Chapman,
a contra
see Stuart v.
104 Me.
tive, governor was not signed that the bill the fact change having become a there law, The bill never legislature. by implication. to repeal lawno to the second and more serious contention then We come invalid, c. art. 1955, 857, even if L. that, appellants, namely, severability rule of and sustain balance apply the we should adversely to determined twice question act. This has been N. 205 Minn. 286 W. appellants King, Bull contention of —in Inferentially 287 N. Minn. W. 238. Goff, and Freeman v. time the third in Minnesota Mut. at has been determined least, N. Appellants L. Ins. Co. v. 212 Minn. 4 W. Johnson, (2d) *10 ground (1) seek to avoid the effect of these decisions the that distinguishable the the case, Freeman case is from instant and that overruled (2) (a) the Freeman case should be because is contrary weight authority; (b) to the of because it incon great is statutory of purpose severability sistent the rule encom by there (c) M. S. A. and because reason 615.20; is no sound the rule. appellants At the that argue supra, while Freeman v. outset, Goff, nonseverability adopted the first case where rule of requires this it is clear that reexamination of court, question Bull v. supra, Appellants an examination of as well. King, contend nonseverability the authorities cited in of the rule support support in the Bull do not that rule. In the important case view of have public involved, issue reexamined all authorities in cited all case, Bull as well as records and briefs in the Bull, Freeman, cases, Minnesota Mutual and from such and examination we are every argument nearly now advanced and all convinced severability by appellants support cited in rule of authorities presented rejected in thoroughly were considered those cases and by us. distinguish in Freeman case from seeking
In facts those appellants argue: now before us, Goff case a variance in L. c. 444
“The involved entitled: liquors relating signs advertising intoxicating ‘An act and non- intoxicating penalties malt liquors; providing for violations The legislative only thereof.’ act involved the Goff case related exclusively signs advertising intoxicating and nonintoxicat- liquors. signed The bill as there enrolled ing malt the gov- spurious not passed upon legis- ernor contained a provision, Court the spurious lature. The found that addition so ex- greatly coverage passed by tended the of the act as variance was a vital and material one and that the rule of severa- bility apply. spuriously provision not there did added there was clearly integrated with and related to and connected with the entire subject of rest of the act. In instant case that does situation As pointed Eeorganization exist. heretofore Act out, composed of 10 separate and distinct while all and, articles, may be said parts general system articles to be govern- state yet parts, respect those different no ment, to their have operation, legal provisions connection with each and each of its other other, provision than the the variance complete occurs is in and of itself and capable being executed in accordance with apart separate IX intent, from 1 art. of the Act, wherein this occurs.” variance
Literally may that statement be true speaking, Freeman supra, an Goff, alone, although arguments examination of the pre- hardly surely sented in that case could lead to that conclusion. is not true as to the Bull That case. case involved constitution- *11 ality of L. upheld constitutionality c. 446. The trial court on the act that the ground, variance in the bill first, could stricken meaningless, second, severability the rule of apply if should even the one section held should be invalid. The na- ture of the bill by respondent is best described in his brief here case, as follows:20
“The only act is 24 divided into whose relation each sections, to other that each an amendment tax existing involves of income
20 Respondent’s Brief, p. 24, King, Bull v. 205 Minn. 286 N. 311.W.
194 subject of the sections and their matter will A summary brief
law. 2 exemptions. 1 and relate to lack relation. Sections their of show accounting 4 to personal to credits. Section relates 3 relates Section 5 6 gross income. Sections for the determination periods to income. Section 7 relates deduc- gross to from relate exclusions 12 or prop- 11 and relate to income of estates Sections 9, 10, tions. relates trust the taxation thereof. Section 13 to erty periods 14 partners. Section treatment credits relates upon the assessment collection of tax. Section 15 limitation payment 16 for refund and the thereof. Section relates claims superfluous penalty 17 relates to repeals provision. pro- a Section agreements. relates to settlement cedure and forms. Section 18 by 19 the refund a subsection c-1 provision adding Section amends preserves which the plaintiff proceeding. under here Section previous law to incurred relates previously taxes, etc. Section to the Tax Commission’s examination of returns and assessment of provides period taxes a limitations for refunds. Sections and 23 deal with the of income to allocation Minnesota. Section provides for the effective date of the act. except
“All of these presented gov- section were sections, they ernor in the identical form in passed. were Because a clerk erred copying section should all of the other amendments, many of them major be defeated? Must the entire importance, purposes of the legislature beyond event frustrated because an its control has repeal caused doubt as to whether did or did not given credit to special class of ?” taxpayers question The severability thoroughly presented, only by able counsel for a brief amicus parties, but filed curiae attorney urged the court to attorney general adopt general. severability. rule and the rule of enrolled-bill rules, namely, two respect to the rule we said rejected severability, both. We With 313) N. : Minn. 286 W. (205 governor approval to the for his must be the presented
“The bill legislature. requirement This same bill which was If them the bill mandatory. there is material variance between *12 presented to the governor cannot be said to be the bill same passed by was In legislature. that a approves situation he passed by bill the legislature, but another. A material variance be- tween the bill passed by the legislature by and that approved governor invalidates the entire enactment .” (Italics supplied.)
Shortly after our decision in the Bull
Freeman
case,
Goff,
Minn. 49,
“* * * prevents any part a material variance of the act from ever a The subdivisions an act are but statute. becoming parts whole. Under our constitution supplied.] (art. 11), 4, § [Italics * * * * * * 'every shall, bill it a law, becomes before * * * presented governor’ approval. apparent to the Here it is passed by legislature that the has been presented never presentation nor governor approved him. Without such approval being cannot become a valid law. the variance And, supra, material the rule announced in Bull v. and the one, King, 431, 286 313], cases cited sustain that view that Minn. N. W. [205 passed by material variance between the bill ” approved by governor invalidates the entire enactment.’ In Minnesota Mut. L. Ins. Co. v. 212 Minn. 4 N. Johnson, W. (2d) the question severability directly was not but involved, argued attorney general seeking obtaining appellants’ In sub- brief, trial determination. court’s
reversal attorney following we find the case, general mitted of his contentions:21 one *13 the the passed by a material variance between
“If there is by the enactment governor, and that entire signed is void.” attorney side general opposite where the was on the case,
In question appears from that on which he now in this case, support Bull and Freeman are relied in of the above cases respect contention, (212 574, statement. With to this we said Minn. 4 N. 627): W. [2d] “It is clear that amendments numbered 10 are material, any if one of three was not in the bill when it passed, but appears approved by now in the enrolled bill there governor, * * * a fatal variance.
[*****] the engrossed bills and journal, “The concludes that court delete the lines amend- that the omission enrolled bill disclose a clerical error of the engrossing H. F. 767 was ment No. 8 to No. L. 218.” c. staff of the senate vitiates in attorney said also the Minnesota Mutual case:22 general legislative of clerks “It is lamentable that errors on should calling But the rule action of bodies. strict defeat requirements compliance is, with constitutional absolute may one. In cases it work a long run, good hardship, but, some government.” it beneficial to democratic large, adopt rule of hardly It can that we should sever- be contended ability as to numerous sections and the rule of non- having bills the rule severability to those fewer sections. Either should having as adopted bills that applicable the law in all meet state, this Johnson, 21 Appellants’ Brief, p. 20, Mut. L. Ins. Co. v. Minnesota (2d) Minn. 4 N. W. 625. Brief, Johnson, 22 Appellants’ p. 21, Minnesota Mut. L. Ins. Co. v. (2d) Minn. 4 N. W. at all. We fail to adopted not be or should severability, of
the test Freeman cases and the one Bull and distinction between any see arguments between the any distinction now nor do we see presented, in these cases. severability of support of the rule advanced v. Goff, supra, of Freeman the rule Appellants argue next contrary weight to the great it is should be overruled because weight against it is authority. While we doubtful thoroughly considered in the Bull argument has been authority, upon by have appellants and Freeman The authorities relied cases. apparently Some 20 or more states fol- rejected been those cases. question severability low the enrolled-bill rule under which support never reached. It cannot be said that those states the rule they adopt entry If severability. journal were to we have rule, way they adopt reject no whether would the rule knowing severability. Be that the Freeman case is may, against no more authority now than it was when we the case. weight decided *14 The general applicable rule to this situation is stated in 50 Am. Jur., Statutes, as follows: 97,§ governor steps
“Presentation of the bill to the is one of the neces- sarily in involved the enactment of a since it is a law, common con- provision every stitutional that passed legislature shall, bill the before it the law, presented becomes be chief executive for his approval rejection. provision regarded mandatory. or Such a as presented approval The bill to the chief executive for his must be passed by the bill which the If legislature. same there is them, presented material variance between the bill to the chief execu- properly tive cannot be passed by said be same bill which was entire legislature, generally regarded and the enactment invalidated. Absolute is not correspondence, however, required; minor discrepancies and clerical which do not change errors the sub- (Italics disregarded.” effect of the statute will be legal stance and supplied.) support in of the above text. supra,
Bull v. is cited King, following: we find the Statutes, C. J. S., 60b, In 82 § power authority clerk or committee has no enrolling “The legislature. juris- In those modify any respect passed regarded the enrolled act is not conclusive as to where dictions contents of the infra bill, 83j the existence and as discussed presented approved held that the enrolled and generally to, bill as must that governor legislature, be same as by, legal where, through at and in some effect; least substance change in the enrollment of the a material has been bill, mistake altogether presented signed by, or an different to, bill is made, it does become a will governor, law; nor, held, has been (Italics a bill become law where a serious clerical error occurs.” supplied.) support Mutual are cited in Minnesota cases Freeman and text.
above supporting there are authorities both conceded must these and have heretofore considered authorities have views. We severability. the rule of rejecting those accepted supra, that Freeman be over- argue Goff, next should Appellants A. which reads: 645.20, inconsistent with M. S. it is ruled because provisions shall provision there is a law “Unless any all laws severable. If provisions shall be severable, not be unconstitutional the re- provision void, of a law is found valid, shall remain unless the court maining provisions of law essentially insepa- are provisions finds the valid law so dependent provisions rably upon, connected and so void with, presume would the court cannot have enacted the void one- or remaining provisions valid without unless the standing áre in- remaining provisions, aloné, court finds valid incapable executed in accordance complete being with the *15 intent.” a bill. law, pointed a not As we statute deals with Here, again, pre- a a law until constitutionál out bill does become above, here, there is a material váriance'as requisites have been met. Where question the bill does not become a This under our constitution law. effectively Freeman In answered case. that case, also has been L. c. read: § provisions phrases and the Act, clauses,
“The various any if thereof, severable, part provision sentences shall invalid, thereof to be it shall shall be held not be construed invali- dating other any portion thereof.” provision
In spite express of that the act itself, held that whole was void on the ground act had never become law. Surely provision in persuasive such the act itself is more than general statute of application. argument Goff, next that Freeman v. should supra, be over
ruled no Appellants rely because there is sound reason for it. heavily on ex People rel. Honore v. Olsen, People Ill. N. E. Brady ex rel. Bank, v. LaSalle Street T. & S. 269 Ill. N. E. 38. 518, 110 All that need be said about that they those cases is have been thor oughly considered Bull in the and Freeman both cases, in of which we refused to follow Illinois cases. The argument here is based proposition on the inasmuch that, as we follow the rule of sever- ability in cases where the prerequisites to constitutional enactment of a law have been parts followed but where of the act are unconsti tutional comply for some other reason failure such as with Minn. good art. 4, 27, application Const. no § reason exists of a differ ent here. course, argument rule Of the answer to this is that in the one case the bill becomes a law and in the other case it does not. The rulé is almost universal where law is en that, constitutionally part provision, acted but some contravenes some constitutional parts upheld.23 of the act which can alone will be stand does'not that, follow where a never has become law for failure to follow can process constitutional mandates in the of it enactment, be sustained. Bull
Again this distinction has been considered case. On page appellants’ 35 of brief here we find the following: Jur., Law,
23 11 Am. Constitutional
200 where a called upon least two situations court is are at
“There portion a con- is invalid under statute, thereof, that a declare most frequently arises where occurring one, The first, stitution. provision conflict with some of the constitu- of the statute terms equal arises protection clause. The second example, for tion, as, enactment not meet the constitutional does the method where the latter case falls within since is category, This requirements. IX Reorganization 1 of art. of the as Act, that § contended presented never to the art. governor was under legislature, 4, Constitution. 11,§ legislature passed an act is intended has which each case
“In a portion law in its but of which is operative entirety, question por- before the Court is: Because a In each case invalid. inoperative?” is shall declare entire invalid, this act law tion respondent taken verbatim from the brief of in the statement This exception that the words art. IX of case, “§ Bull Act” are substituted for the “section 8 of the words Reorganization bül”24 supra, question again clearly con- Goff,
In Freeman v. following statement found in the illustrated sidered, attorney general appellants:25 appearing brief the application divisibility that to limit rule submit “We power involving particular constitutional limitations to questions provisions unsound. If the defective of section 1 Chapter process 444 were invalid because of violation of the due Article I clause section of the Minnesota State 7, Constitution, Chapter seem would clear remainder 444 would valid. respectfully predicated submit no sound distinction We can be the fact in the hypothetical case above supposed, arose 1, vice because of violation of section Article whereas in 7, at the case bar the arose of a vice because violation of section Article 4. validity In each instance the of the remainder of law
24 Respondent’s Brief,
p.
King,
205 Minn.
This distinction was not overlooked inus the Freeman case. We (206 there said Minn. 287 N. 241)W. :
“The argument that a variation is not different from an uncon- provision stitutional may be stricken from a yet statute and leave the remainder intact falls it ignores because the fact that the *17 provision unconstitutional in a validly exists statute while enacted, a material variance prevents any part of the act from ever becoming a statute.”
Appellants contend that the cases support cited in of the rule of nonseverability in Bull v. King, supra, do not support that rule. From a reexamination of those we think might cases that it be said that do they not specifically severability. discuss the rule of That is true of our early cases. In Sharp v. 41 Minn. 43 Merrill, N. W. 385, held that the variance involved was not material. We there said:
“* * * An omission of words from the enrolled bill, does not change the substance or legal effect passed of the it statute as the legislature, wholly is immaterial.” did
We not state what result if would be the omission did change or effect legal substance of the statute. Security v. & Sjoberg Sav. Loan Assn. Minn. 75 N. W. 203, 1116, involved an act in which the enacting contrary clause was omitted, to Minn. Const. art 13. We 4, held the constitutional requirement § mandatory and that a statute without an enacting clause is void. respect With to Minn. Const. art. 4, 11, say (73 we had this to Minn. § 75 N. W. 1118) : * * * “It claimed appellant question that the in law con- tained an enacting clause at passed the time it legislature, the trial court' erred excluding evidence of such fact. ruling was for the correct, fact itself immaterial for the reason that a bill, law, it although passes never becomes a legislature, unless it be presented to the governor pursuant to article an clause question enacting If contained the bill
the constitution. to presented gov- it was never passed legislature, it when him approved by to and place presented of it a bill was ernor, but containing no enacting clause. * * (Italics void, “It c. follows Laws supplied.) presented never a law unless the the Gov-
If the bill became it is difficult the legislature, ernor was same as make severability apply see the rule of could so as to how a law. juris- many foreign from
Much same true of decisions them need not all of here. dictions which we cited. We discuss support nonseverability is that Probably strongest case in respect Ala. 597.2 The there with Moog Randolph, facts in the are almost identical with those passage bill involved (77 case. The court said Ala. 599) instant : “* * * inagmuch mandatory provisions under the of this bill, law, only gone through can it has all instrument, become when necessary give validity such, made force as the courts forms it a pronounce law, law, according will *18 may records disclose a or failure of with compliance, compliance, requirements. these constitutional
“* * * Assembly if the passed by bill which is the General varies materially, legal effect, substance and that which is approved from by the variance especially subject where this involves Governor — a the incorporation matter of without which in the amendment, bill one of the refused to concur the other final houses in its identity there a passage legal exists such want of and actual —then that neither them passed between the bill and the one as approved, acquires the force of In a valid and constitutional enactment. such the not the one passed by Assembly approved bill the General case, Moody State, 26 See, also, Hutchinson, 721; Ala. Ala. Jones v. v. Crow, 504, Mayor 115, 28; King 646; 17 Am. R. Co. v. 155 Ala. So. Lbr. Simmons, and Aldermen of West End 165 Ala. 51 So. v.
by approved by is, .converso, and the e one Governor Governor, * ** by Assembly. passed not the one the General
“* * * enrolling-elerk The House Journal that the shows, omitted to incorporate in the enrolled no bill, inadvertently, doubt material amendment, component which was a it complete bill as passed legislative these two bodies. vitiates the That this omission * * entire hill, I there can be no room for *. think, doubt; * * “* a MU is an entirety, product and a law is the of the com- bined, harmonious and unanimous action of the and execu- departments tive acting strictly each scope within the government, of its constitutional according prescribed authority, forms of the constitutional mandate. When, as we have therefore, said, by measure assented one of departments these substance not, and legal effect, by measure assented but differs other, from it materially operation its as a is in law, proper no sense a constitutional or valid (Part enactment.” supplied.) italics
In Rode
Phelps,
“* * * These radical differences between the act found statute-book, it passed, preclude any idea of to save attempting any portion act. passed never ** the Legislature, and (Italics is null void, supplied.) respect With to the effect of the rule, (80 court said Mich. 45 N. 497): W.
“It is to deeply regretted be important that as law as cover- this, ing a subject public of great interest, should, gross because -carelessness, worse, one, wiped bodily some from the statute- book. But the responsible this; they courts are not nor usurp can legislation, shutting eyes functions of to the records and, their of legislative doings, Legis- declare a valid that never law lature, may well the certificates of however authenticated officials.”
204 759, 762, 68 N. 369, 94 Wis. W. 379, v. Wendler,
In State court said: Wisconsin
"* * * absolutely essential requirement The which has approve the same law which governor shall it makes want of law, the fact makes a passed. This is paper.” mere waste Examiners, Pollard v. Board of Medical in State ex rel.
Again, said: the Wisconsin court 172 N. W. 317, 321, 177 Wis. *“* * approved governor not the one was. * * by the a void enactment, legislature, which we
Probably more than the cases persuasive, however, even support the rule those the rule which supporting cited rejected. In of the trial court on seeking sustain decision respondent King, supra, rule in Bull v. cited severability, Gwynn 343; People relied 92 Fla. 110 upon27 v. So. Hardee, 543, Brady Ill. Olsen, People ex rel. Honore v. 222 78 N. E. ex rel. 117, 23; People & 38; v. LaSalle Street T. N. E. Bank, 518, S. Ill. E. v. Brady, ex rel. Sellers v. 262 Ill. 105 N. McAuliffe O’Con 578, 1; Attorney General v. ex rel. 258 Ill. 101 N. E. State nell, 186, 419; Drum Point & Berry Baltimore C. 16 Am. R. v. Platt, 647; S. 150, R. Co. 41 Md. 20 Am. R. 69. 446, case, Bull in the attorney in his amicus curiae general, brief following: State cases cited addition some above R. State 204; 12 A. S. Boyd 899, rel. v. 24 Fla. So. Deal,
ex Bayou Plum Attorney 13 C. Ford v. 46; ex rel. General v. S. Hagood, rel. State ex 613; 258 S. Improvement Road Dist. 162 Ark. W. Lonoke-Cabot N. Rice v. Casper 299; 37 Neb. 55 W. v. Moore, 142 Ark. 221 S. 179. Improvement Road Dist. W. urged now these are the we are
With a few same cases additions, support if could be said that cases cited to follow.28 Even nonseverability support of the rule of in the Bull case do not 27 See, King, Respondent’s Brief, p. 28, seq., Bull 205 Minn. et 286 N. W.
28 See,Appellants’ Brief, p. 38. *20 it that we did not consider both of the rule, cannot said sides supporting the authorities each view. question to of urged In we are now to do is follow decisions what essence, rejected at least refuse to foreign courts which we have twice adhere slavishly follow our own decisions. While we should not to applicable present-day conditions, decisions that no longer to that have lightly carefully neither should we overrule decisions been arrived at it can be shown thorough consideration, after unless have to changed social or economic conditions so as make present applicable decision no conditions or that the statu- longer tory or case on which the decision has been so that law rests altered it no we longer by is sustained such decision or are convinced that present the case improperly was decided because of failure to consider matters now before us which did before we not have us at time the decision was rendered. Our attention has not been any called to of these situations in this case.
Determination of this involves of the long-range policy case no year state. more elapse than a will until Slightly again will if it then fit to do it can reenact convene, and, so, sees the bill present to the Governor in constitutional manner. Government law instead is the bulwark man, main our democratic form of respect demands a decent government, the rule for of stare in order that decisis citizens of state will good be assured that decisions of the court are than for more “one trip day only.” and one Our decision in v. Bull Freeman v. King, Goff, and Minnesota Mut. L. Ins. Co. Johnson, supra, v. were all were unanimous and decided personnel serving same then on only the court.29 It by concluding had the members present that, court been have serving then, differently would decided that we justify overruling could these If decisions. the decisions of subject this court are time change every personnel changes assumption court on unwarranted that our wisdom is superior to that of our then there will be little remain- predecessors,
29 Henry Gallagher, Holt, Royal Stone, Hilton, M. A. Clifford L. Andrew Loring, Olson, Harry Charles J. Julius H. Peterson. fur- stability old of stare decisis and the has
ing doctrine nished the law. case and that of Mut. L. Co. John- instant Minnesota Ins.
son, supra, inadvisability fluctuating posi- illustrate the from one attorney tion to the general argues other. In this case the severability. rule attorney In the Minnesota Mutual the then case general argued against severability. the rule of If we are to decide purely cases on the case exigencies particular basis before us, then the decisions of this court of little value. soon will be carefully
We have considered the filed in this case. The dissents dissent of Mr. Gallagher Justice Thomas that we overrule advocates our severability. former decisions respecting rule He cites in *21 support of position his for the most which we hereto- cases fore rejected. fully have We have question covered in above opinion, which was on released November positions
The Murphy taken Mr. in Justice his dissent also have been answered the above in view opinion, but, impor- in tance of the case public and the in interest manifested there are it, some conclusions reached in this dissent which we believe should answered.
In the first place, dissent recognize refuses difference between the rule of severability applied to unconstitutional pro- visions of a law constitutionally and a enacted bill which fails to meet the prerequisites constitutional for enactment into law and therefore never fully becomes law. We have covered that matter in opinion. our It is completely disposed of Freeman v. Goff, in 287 N. 238, 241, Minn. W. where we said: “The that a variation not different from an argument unconsti- provision yet tutional be stricken from a statute and may because it the fact that the ignores leave remainder intact falls provision- validly enacted, exists in a statute while unconstitutional becoming ever prevents any part a material variance of the act from parts The an act of the whole.” statute. subdivisions of are but quotations category in the dissent are from cases in the former application and have no here. place, attempts
In the next the dissent to distinguish our former from the case position decisions now before us. It takes that our Goff, supra, in Freeman v. distinguishable decision there because were fewer sections in bill involved in that case than are involved in bill now before us. not possible distinguish Since Bull v. King, Minn. N. W. on that contention basis, is that our rejects decision in that case, insofar as it the rule of severability, is mere binding “dicta” therefore not on at us agree time. We cannot with either contention. respect
With to the contention of the dissent that the bill involved supra, Freeman Goff, has than the less sections bill before now us, all that surely need said is that we cannot one rule have apply law having bills few sections and apply another rule bills having more finally sections. The places dissent the distinction between the the Freeman case one the case now before us on the proposition that “Unlike the case which we have to consider the entire act Freeman infected [in case] spurious portion applied referred to.” That statement, to the supported Freeman case, is not the decision of court,30 the trial the briefs of counsel for the or our decision in the Freeman parties, case. On the page first of argument in the appellants (county brief of attorney of Hennepin County) in the Freeman filed case in this court31 we find the following:
“It would seem clear portion that that the enrolled act which did not receive question sanction is not the law. The spurious portion would then seem to effect of the be—the *22 remainder the act.” 14 pages appellants’
Thereafter brief in the Freeman case an argument urging adopt severability. to us to the rule of devoted respondent’s in contrary argu- Most brief that case is devoted to a A ment. amici therein, part brief curiae was filed of which discusses In question. opinion the same our in the case Freeman we follow the Judge Record, p. 29, Goff, 30 See memorandum of Hall in Freeman v. supra.
31 Appellants’ Brief, 6,p. Goff, supra. Freeman v. severability. For us now the rule of apply refusing
Bull case, all, really involved at was not say question severability that the really means, is, of the dissent the above statement which is what say quite presumptuous. the least, supra,, that Bull v. cannot obvious, above, King,
It is as stated in claimed that what we said basis, so it is now distinguished on us. binding case is “dicta” and not Bull is considered dicta,” generally “obiter properly or more “Dicta,” beyond the facts opinion go expressions to be in a court’s which of the author before the therefore are individual views court and how subsequent Where, in cases. opinion binding of the and not by coun argued and are ever, or more issues are before the court two though a decision places and the court decision both sel, its on even on have of the might dispose case, one issue been sufficient is well equally to both issues.32 This rule binding decision & City Dodge Pac. R. Co. v. Mason Fort R. Co. stated in Union 50 L. U. S. 26 S. Ct. ed. as follows: 160, 166, 19, 20, 134, 137, “* * * where there are two either grounds, court judgment rested, appellate of the trial court can be judg- ruling obiter, sustains on neither each is the both, but equal validity ment of the court and of the other. Whenever fairly question there is a distinct trial, arises the course of thereto question, ruling respect decision of of the court in can, just mere sense, in no be called dictum.” That quoted following Schutte, case from Cent. R. Co. v. Florida (13 103 U. S. 26 L. Otto) ed. 336: “* ** authority point that a one cannot be said case is on point presented and decided because, although properly was else something regular cause, course consideration Here the disposed was found the end which whole matter. elabo- precise fully question properly argued, was presented, rately question The decision on this opinion. considered in 32 See, 11 L. Rev. 373. Minn.
209 any that on as was judgment much court other depended.” the case as a the several on which whole matters questions is obvious. The reason for the rule obiter dicta in- actually counsel are argued thoroughly before the court when so investi- deliberately care, and, considered with vestigated, gated respect a decision on those issues is entitled to considered, hand, in future cases. on the other is a statement of dictum, Obiter deliberately for that judge investigated and, on an issue not so respect. not to the same reason, is entitled decision,
In the Bull the trial case, only place not did court its nonacceptance at in on of the rule of part, severability,33 least but the major portion appellant respondent of the briefs of both question. in that an of that argument addition, case is devoted to In attorney general adopt filed a curiae urging brief amicus us to portion up by rule in which a substantial of his brief taken an is argument question. of the same After that thorough consideration, we emphatically disposed Bull refusing issue case adopt say ignores the rule. To that such decision is dicta defini- tion of the term. Nor consider it in the did we dicta later case of Freeman v. Goff (206 when we said Minn. 287 N. : 241)W.
“* * * the variance rule a material announced in being one, Bull v. King, supra, and the cited cases to sustain view that Minn. 286 N. W. £a 313], material variance between the bill [205
passed by the legislature approved by governor and that invali ” dates the entire enactment,’ (italics supplied) or in Minnesota Mut. L. Ins. Co. 212 Minn. 4 Johnson, 571, N. W.
(2d) attorney general where the appeared opposite on the side question. of this In that case (212 we said Minn. N. W. [2d] 626):
“It clear that amendments numbered 10' are material, any and if one of the three in the bill when it but passed, appears now approved by the enrolled bill there a governor, Record, p. 34, King, 33 See memorandum of court Bull v. Minn. 427, 286 N. 311.W. stricken the eighth The lines amendment
fatal variance.
remain
approved by
governor.
presence
Their
in the bill
cannot be
Sharp
v. Merrill,
under such cases
41 Minn.
overlooked
*24
Bull
205 Minn.
King,
N. W.
v.
In authority for the rule of King, supra, as did not nonseverability, the Bull case as dicta. To now hold that consider this decision is support any theory. on dicta lacks accept would then have foreign dissent us decisions of
jurisdictions rejected. we heretofore have Practically all them have in been considered our former decisions. We have covered our opinion that matter in above. advocating repudiation entry without
Next, journal rule, which we have followed since the beginning statehood34 consistently and have since, argues followed the dissent it is good not a rule. fail argument We to see what the to unless amounts dissent wishes advocate that it be It overruled. is either the law of or it this state is not. If it is the it should be adhered to law, rejected until it is accepted some new law in place. Appar- its ently the dissent to do wishes neither.
Finally, argues dissent the rule of stare decisis appropriate. says:
“* * * subject since the act under consideration here procedural administrative and in nature and since no business or property rights are stare involved, appropriate.” decisis is not Surely that is doctrine in new the field of law. It is true that stare apply decisis does not with the same strictness some fields of law inas others. In the field of real estate or property for law, instance, applied greatest it is with the force for the reason that in those fields rights may have become property vested in reliance our deci- any sion. it is not However, inapplicable field. Before decisions of this court should ignored subsequent be overruled or cases, Supervisors Heenan, (330).
34 Board of 281 Minn. there should be That is good doing particularly some reason for so. true of decisions constitution. Where such construing decisions our lightly have unchallenged many years they stood should not be overruled. In 217 Minn. University Trustees Hamline v. Peacock, 399, 411, N. W. (2d) we said: 773, 779,
“We should not desirability continuity be ‘unmindful of the decision in Only constitutional of former questions.’ ‘when convinced error’ should we overrule a many years’ line of decision stand- law ing. Smith v. In Allwright, 321 S. 64 Ct. U. S. the words of Mr. Justice Roberts in his (321 dissent U. S. 666, S. Ct. 766), we should permit be careful not to ‘intolerance for what those who have composed conscientiously in the past court have deliberately indulge assumption nor in ‘an concluded,’ should to our in us which was denied knowledge and wisdom reside ” predecessors.’ except overruling there is reason for former decisions
Here, good no *25 If desirability uphold particular this bill. of the dissent it mean that decision and all adopt position are to that would this only. field are for one case Such not been good others has in the it the law in the hope law and we will not become past, that future. impossible inconsistency it of the
Furthermore, is to reconcile positions attempt taken the dissent. First an is made to distin- guish our former it cases and then is claimed that stare decisis inappropriate. necessary If why stare decisis is inapplicable, former distinguish application decisions ? If have no in this they field of make no law, should difference what we have said for- mer cases of a similar nature.
Affirmed.
Murphy, Justice (dissenting).
I agree there exists a variance which might be considered material in L. c. art. 9, 1, signed by the Governor from that passed legislature and would not with a quarrel decision holding part of the act I agree unconstitutional. cannot that the are independent self-sustaining, and remaining parts, the entire act unconstitutional. to render so as invalid comprehensive pat- of 1955 is a Act Reorganization The so-called achieving purpose for the designed enactments légal tern of de- important of the efficiency in the administration economy and with We are not concerned government. of state partments provisions that these were provisions. The fact wisdom of by the Governor is signed by both' houses of L. into importance. their c. divided sufficient warrant of independent of the other each separate enactments, ten and distinct activity in the only by the fact that each deals with an and related organization government. of our state administration It covers Department Highways.
Article I deals with qualifi- subject department, appointment organization certain to it among cations of other transfers personnel, and, things, the Minnesota Secretary functions of the officeof the of State Historic Sites and Commission. Markers and in addi- of Conservation Department
Article II deals with to it duties transfers organization relating to its provisions tion Resort of Hotel and the Division Board and Geographic State Inspection. con- Apprehension, Bureau of Criminal deals with the
Article III law enforcement reference to statewide provisions tains Attorney the office of the jurisdiction places the bureau under General. Depart- to the relating important provisions
Article IY contains func- tax collection to it certain of Taxation and transfers ment departments. carried on other heretofore tions and in addition Department of Commerce Y deals with Article transfers to organization to its provisions relating to various *26 of Department out the heretofore carried department functions Great Commission, Waters the Tri-State Development, Business and Mississippi Commission, Upper Lakes-St. Lawrence Tidewater Range Resources and Iron Improvement Commission, St. Croix River Board. Compensation and Insurance Rehabilitation Commission, Agriculture. of Department the Article VI deals with Welfare; places the Department of to do with the Article VII has to com- department; grants in that State Parole Commission paroles of granting governing to make rules power mission provisions various offenders; and contains discharges and of final of probation by the courts paroles of and imposition relation to with record of state. Administration, Commissioner of
Article VIII deals with the coordinating that of powers including to his refers duties other and, among agencies state, functions various Secretary of the Executive Council. provides that he shall be things, of certain powers Article IX ten relate to contains sections which Legislative Administration, Auditor of State and Commissioner the Treasurer Post-audit, State Investment of Council, duties This report money particu- etc. treasury, reference of in the state keeping of provisions lar article also with relation to includes Board records for the the Publication Pardons; Board abolishes It 1 of article transfers its duties to Executive Council. is § litigation, IX which this gives contains variance that rise to further which reference will be made. hereafter Article X variety subjects relating organiza- with a deals tion administration various state functions. foregoing scope encompass résumé is not intended to full import point intended various enactments. only
up variety the fact that the with a reorganization so-called act deals problems administrative distinct articles each separate dealing with a capable standing well-defined and each subject act. itself as an independent reference to the trial court noted with
In his memorandum controversy: subject of variance dozen here consists of some words “The fatal variance involved includes more than seven and embraces thousand, document which many subjects.” different great signed by 1 of article IX. The law as The variance occurs administration con- provides: “The commissioner Governor after *27 mth (italics empowered the auditor” supplied) sulfation is to formu- prescribe system late a accounts, and uniform etc. As records, “The actually by legislature provided: the the law state audi- tor, with the advice the commissioner and assistance adminis- (italics tration” empowered is to supplied) prescribe formulate system accounts, uniform etc. records, This variance occurred as a result of a made the during closing days legisla- mistake of the tive session enrollment of the act. cannot agree I that this mistake should invalidate entire the enactment.
The essential of the merits issue here can best be understood an examination of the circumstances and rise gave conditions to the variance. c. L. passed during closing days the of the session. to Pursuant established legislative procedure, bill was referred to the clerical legislature prepara- staff tion in the form of an enrolled signatures presiding bill for the of the both officers of the houses and signature thereafter for the approval which follows work final Governor. This detail engrossment of deletion of legislature involves the amendments agreed passage. perform final To this changes upon duty before is including copy clerical staff furnished with various documents, proposed of the committee and various notes and memo- bill, reports, represent provisions agreed legislature. randa which alone, From this material or if informed of the members are from available, information from in its secured them, prepared. final form is
It recognized is vast legislative bulk of final work is done the last during days ten as a result of which the cleri- session, cal is staff a great important burdened with amount of work which limit. completed must be within definite time The constitution provides the work of the legislature ninety must be limited to legis- days lative and sign Governor must within three days bills Const, adjournment. from Minn. is art. and 11. It not unusual 4, §§ for the legislature require complete work, additional time to their when happens complied sanction constitutional by the fiction of covering operates the clocks. But the calendar date of the constitutional days from to three the Governor limit happens practice In sign the bill. in which adjournment, enrolling processes engrossing, enacting, infrequently houses officers presiding time the during on going study and theoretically engaged and the Governor should required staff measures. clerical verification of the moment confusion of the haste and work time against not understandable mistakes occur. is understandable *28 part of independent reference to an that the of a clerk with mistake legislature of the thwart the will comprehensive measure should emphasize to this observation is purpose to the whole. The relating legislative to having provisions practical disadvantages out until point that, to procedure embedded in the constitution and policy of narrow not follow the constitution is we should revised, results. will about bring construction which absurd enactment legislative of a construing constitutionality In rule of construction guided by court must be the cardinal The rule legislature. requires that effect be to the intent of given Maguey State which should be Mr. Justice followed is stated 229, 244, v. Minnesota 218 Minn. Federal Sav. & Loan Assn. N. W. (2d) as follows: 568, 576, duty constitutional,
“Our construe a statute so as render also to but extends construction, limited to may not be if possible, position. support Cases cited part of a statute. elimination limited certain the statute which provision By eliminating can be avoided discrimination only, associations deductions to state extended to credit would thus be upheld. The same the statute and and accomplishes equality and state associations. defendant * * * of. complained now the discrimination eliminates the act every part that each provides “L. c. 405, 58, 1933, § Supp. (Mason St. Minn. St. 645.20 be § shall severable. states: 10933-21), “ provisions that the shall provision in the law there is a ‘Unless any If of all shall be severable. provisions laws severable, be not the re- void, unconstitutional provision of a found law is shall remain maining provisions law unless the court valid, provisions finds the are so essentially insepara- valid law dependent upon, provisions connected and so the void bly with, the court presume cannot would have enacted the ** remaining provisions valid without the void *.’ one;
“It seems clear that the intent would be to sustain the application statute in a limited entirely rather than to eliminate tax legislative purpose otherwise valid. The impose was to an income tax on both federal state Equality may associations. be allowed discrimination eliminated far less wiping drastic action than * * * out the entire tax imposed upon federal associations. We see reason why objectionable no feature properly could not eliminated upheld.” and the statute
The foregoing paragraph is well recognized as the rule of con
adopted
struction
by our court.
In discussing M. A.
S.
645.20
State ex rel. Grozbach v. Common School Dist. No.
237 Minn.
150, 154, N.
(2d)W.
Mr. Chief Justice
Loring said:
“In State ex rel. Finnegan v. Burt,
“Our conclusion here supported is by M. S. A. 645.20.” In State ex rel. v. 225 Minn. N. Finnegan Burt, 86, (2d) 29 W. we 655, held L. c. that, although 1945, 607, 8, invalid, § subject not being expressed the title of the act in violation Const, Minn. art. did not 4, section render the whole act 27, § invalid. Kempien County Ramsey, 69, 72,
In v. 160 Minn. 199 N. 442,W. duty out that it is the court Taylor pointed Commissioner 448, view the act as a and that is not defeated because whole statute that “It imperfectly stating must assumed that drawn, * * * legislature intended to enact a valid and effective law. To bring may this about obvious mistakes omissions be corrected ** *.” supplied, Smiley
In State ex rel. v. Minn. N. 228, 241, 238 W. Holm, 494, this court stated: “The legislature upon fact that voted the subject matter form of a controlling. Form not does control. We look They particular substance. voted measure. No one They misunderstood. The clear. definitely gave issue was their assent expressed their determination definite fixing accom- lines, plishing the redistricting they They saw fit. prescribed the dis- tricts within the said meaning I, art. 4. In short, they did what the constitution said they do. should Their action was effectual.”
In Saari v. Gleason, 126 Minn. N. W. 293, held that a whole statute is declared void only when “the valid and parts the invalid interdependent are so subject- so connected in matter and purpose that it presumed legislature cannot be would passed have the one without the other.” And in State ex rel. Ander son 72 Minn. Sullivan, 75 N. W. 9, Mr. Justice Mitchell said: a statute conflicts portion
“Where with the constitution, other are also question parts whether the void must depend upon a object of law, in what consideration manner and to portion what extent the unconstitutional affects the remainder. The subject that, although familiar rule on the of the statute is fact does not authorize the unconstitutional, courts to declare provisions remainder unless all the also, void are connected in depending other, together each subject-matter, operating on for the together purpose, same or otherwise so connected in meaning that it presumed would have cannot the one with- the other. 210. And in Cooley, out Const. Lim. determining whether *30 the rale as in applies the act same whole portion avoids
the invalid every that as viz. invalid, a statute is assailed where cases other constitutionality of the intendment is favor presumption justified in it pronouncing he invalid the courts will not the act, repugnance to the beyond reasonable doubt its satisfied unless constitution.” the should not majority say foregoing the would authorities
But question. the It is their hold- our construction of statute in control status a bill and L. c. never rose above the ing 857, that 1955, validly foregoing the not law enacted to which consequently is at apply. how this is arrived is might authorities Just conclusion readily majority The that the recognized but not understood. holds passed by the signed bill the Governor not the same bill as is the legislature. change of one section one of ten articles in Why it a not explained bill should make different nor does bill is explain change deprive identity how this the bill of its decision could recognize so to make it a this court cannot as document which as an I Certainly inclusive, act of the are legislature. VIII, articles X all same. Article is the of article IX with the same, and exception of 1 same. But is a told, nevertheless, § majority support different bill. The feels that apparently reasons unnecessary. they agree conclusion are While that all but will a very part small of the represents bill will of legislature, is not the part that small same. they hold because there a material variance may § assumed Since rejected. L. may of the bill Since part IX, article legislature, at the same session which was c. 868, § duties bookkeeping relation to subject covers same force, now in variance is provision Auditor, State important. manifest majority thus results in a given construction spurious nature was attacked because distortion. The bill majority of that strikes down part IX. Because of article parts. today 1 of article IX is in force remaining Section good paradox strange of L. c. and we see before us
219 of the good parts of a destroyed hill the while offending portion lives on because of the enactment of 863. A judicial c. construction which permit will incongruous an such result cannot be sound. judicial
It that sound reason and policy should be considered good the bill would dictate that much of as is should be so retained. majority But the of is because of the defect that, the in answer § never and, of article the never came into since the law IX, being law nothing may concept there is which be retained. This existed, it arbitrary punitive; judicial and from a that invokes policy derives harmony the the It is not right discipline legislature. to in with spirit grants respect separation the which for the of construction powers. easy and so final its rule, state, of It is a contrived to qualifications unnecessary. consequences exceptions seem reasoning ignores bill, represents This the fact that insofar as and unrelated independent parts, the will of the toas actually to the exception became a law. Articles I with X, inclusive, IX the full of requirements of of article have met § by the These procedures up rules and set Constitution. numerous provisions passed by in the bill and house con- were senate Const, formity Minn. art. 4, rules with The § majority received a vote of all members35 elected to each branch of journal and the vote thereon entered legislature, was Const, by of each Minn. required house art. 13. The bill was 4, § subject considered the committees of the two houses, was joint joint pursuance and in conferences of Minn. committees, Const, art. met the requirements with § reference three read- It ings in the houses. signed two was- officer of presiding each Const, house as required Minn. art. 21. It pur- was enrolled § suant to 21, except for 1 of IX and, article of the act, spoke § will of the The legislature. subject true matter of act is within power constitutional legislature, approved by Const, required by Governor Minn. art. parts 11. The 4, § bill relating agencies to the various referred all the 35 The was 112 vote to 4 in the house and unanimous in the senate. provided legal enactment, safeguards tests
constitutional severable. offending part which is independent they of their opinion support majority in the cited authorities readily be may act unconstitutional that the entire construction relied 206 Minn. 287 N. W. Goff, distinguished. Freeman construc- consideration the In court had under upon. that case the subject advertis- signs L. dealt with the c. tion liquor premises about retail ing liquor in and beer and having all do with extent sections, five dealer. contained liquor advertising his merchandise. might to which a dealer ingo permitted he was not provision Section of the act contained a premises public to his on signs adjacent have exterior on or *32 provision travelers. streets where be visible to This they would the and, not passed by legislature course, included in the bill the Const, necessarily 11, 4, act fell it violated Minn. art. because * * * provides “Every shall, which bill before it becomes presented Unlike the case governor the of the State.” law, the spurious which have to the was infected consider, entire act portion referred to. 311, Minn. 286 N. W. 427, 431, v. 205 King, cites Bull majority
The relating of a 1939 law provision was a variance in 313, where there not held that the variance was mate- tax. The court there income deciding of the act but in constitutionality the rial and sustained majority the expressed court certain dicta case King Goff and Bull v. Freeman v. notwithstanding here. But relies has never an entire court struck down remains that this the fact enrollment of an inde- mistake made in the because of a enactment v. part. in Freeman Goff and separable language pendent and majority which the relies are overstatements and King upon v. Bull that “Gen- the truth of Mr. Justice Holmes’ observation demonstrate cases.”36 should like- do not decide concrete propositions eral King supports Bull v. that while dicta in be observed wise 547, 45, 539, York, 76, 49 L. U. 25 Ct. ed. v. New S. S. 36 Lochner (Mr. dissent). 937, Holmes’ Justice important view it to note that
majority case the court severability did not raise issue of or make holding thereon. Sharp v. 41 Minn. Merrill, 492, upon by 43 N. W. relied 385, majority, particular dealt with a variance which was not material, in Bull King, v. court was not faced responsi- with the bility of an act overturning legislature.
Sjoberg Security Sav. &Loan Assn. 73 Minn. 75 N. W. 1116, authority respondent’s position because there the act was entirety stricken in its for failue to contain an enacting clause. The doctrine of severance apply cannot when constitutional defect inheres in whole enactment.
In Minnesota Mut. L. Ins. Co. v. 212 Minn. 4 N. Johnson, W. (2d) court held an enactment invalid because the bill as passed by the April senate and house on had not been prop- erly corrected the engrossing to take clerks into account certain prior amendments to the bill. The involved place defects took before preparation Prior to the bill’s for the reading. the final Governor’s had to enact a legislature failed accordance signature the widely from the This differs situation here where the Constitution. all question no followed constitutional there is steps enacting process. in the Michigan major are the or Wisconsin authorities cited
Nor in a determination of case. Rode v. ity helpful Mich. Phelps, distinguished. The there may N. law related to 45 W. approved by taxation. subject liquor Amendments single in the adopted by were there was a variance house; never senate *33 in the pay; of tax a wholesaler should there was a variance amount paid tax on and vinous malt, brewed, amount of which should be with reference the and there was substantial variance liquors; through ran penal record-keeping provisions. These variances the entire bill. N. likewise be 369,
State v. 94 Wis. 68 W. should Wendler, confused case to two bills which became distinguished. This relates and fish game them related to legislative process. in the One of change involving related to elections while other preservation, 222 game reference to the and fish involved county bill, seats. With it 68 (94 760) was held Wis. N. W. “That decision,
in court’s if it did it did not passed legislature, pass, fact or, it never in yea nay vote; and hence that it was not constitution by a pass appropriation public a law ally making because an passed, art. sec. 8.” the unconstitutional money. VIII, Moreover, Const. Referring specific of the bill infected whole. defect, (94 762): Wis. N. W. court said “* * * many parts This affected of the and cannot be re- bill, any a moment immaterial trivial. garded Granting for or absolutely legislature, at all certain that it was entirely governor different bill from that which the signed.” an
State ex rel. Pollard v. Board of Medical Examiners, Wis. 177 N. distinguishable W. since it relates to the inter- in pretation provision the Wisconsin statute setting forth the qualifications practice admission to the of medicine, surgery, etc. This statute dealt with one osteopathy, subject narrow meaning turned on the of the words “or” and “and.” None of these had to interpretation cases do with the dealing statutes subjects having independent various and self-sustaining parts. are told that the We wisdom of the rule in Freeman v. Goff derives experience past from of the are guided to Mr. Justice Flan- drau’s Supervisors decision in Board of v. Heenan, Minn. 281 at p. (330 p. at 336), where he warns of “tricks and finesse” legislative proceedings. danger But this has been rendered negligible if not eliminated adoption journal of the entry rule which guarantees integrity of legislation at each step in the channel of constitutional enactment. Moreover, integrity of a bill may application enlightened sufficiently protected rule severability. skepticism vague attitude An unwarranted chicanery legislative process shape should not apprehension should be viewed with con- thinking. our Acts respect of its for their integrity members; enactments; fidence in effect give constitutional willingness, limitations, within to find purposes accomplish. their seek to is difficult acts
22S support arbitrary position for the harsh and policy reason or respondent contends. which majority hinges interpretation
The decision of the an “bill” It distinction words and “law.” that a defect between holds prevents part in an of an enactment independent part any of a law. to becoming from In answer this it should be noted that the word “bill” does not have meaning. fixed immutable In Attorney ex General v. C. Platt, State rel. S. (Richardson) 150, 157, 16 Am. R. the court out that points the term “Bill” properly applicable while to enactment a whole as should not used be in its technical sense where would it not be consistent with the clear intent of the instrument:
* * If we should hold that the regards Constitution the enact- ment an as in exclusive we would be led to whole, sense, the inevi- table conclusion become a law all of parts the substantial together passed measure must have through all the requisite stages. consequences of this would that alteration be, in a sub- part progress such during stantial would be fatal to the whole Bill. “* * * it Whether regarded to be de- as does not substantial, pend upon importance its unimportance or rest the Act, in upon its being, itself, but an expression legislative will, capable being subject of a separate Act. would lead to us in the present conclusion, if the case, that, law in question, although, legal a code of substance, it procedure, differed, from Houses, Act, respect any enrolled matter, though mere word, covered a expression legisla- distinct tive will, capable being not made by applied out construction, the rest Act, regarded whole must be as unconstitutional. That no absurdity, the Constitution intended such is manifest.” analogy that, out reason of points
That decision where error in a or it be the error will be elimi- executed, deed contract cannot when that reformation, nated “either construction can destruction of that in inheres.” done without the substantial why perceive any designated difficult The court observed was of an subject of a statute which in itself be the inde- might regarded a bill. It enactment should pendent C. 158): states S. (2
“* * * construing sub- class, It is obvious clauses that, *35 object is The to be form, rather than to be considered. stance, for, expressions to be not alone the formal of sought secured is the of em- Constitution, yet in the technical character the means nor ployed ends, to secure but in the nature of the intended subject, its upon to be through language acted such means. In a of word, Constitution, largest to in the sense cases, such is be construed fairly objects attributable to and that it, will best subserve the has view. to the belong under examination of Constitution
“The clauses our in the being prevent to abuses objects their just class specified, important government, namely, function of exercise of most solemnity and of by securing deliberation making laws, that of responsibility form fix a at personal in such as to authentication altogether of Act of every progress legislation. an stage in suppose that of these clauses was object view to mistaken signatures attesting power officers confer either to up passage Acts, fatal defects in the of to conserve the cover tangible form of without consideration law, visible and outward, that are contained it. We would alto- for the vital matters within gether appreciate spirit system that animates of con- fail native stitutional the flower of to our own law, jurisprudence, apply should we narrow rules of technical construction country, question. principles The for the clauses in characteris- contended system highest been from the tic have evolved reason under political system securing of a field of experiences largest enterprise They and motive for the thought. action are human atmosphere animating breathe, all-pervading, like the if sharpness highest with that of outline that definable affords yet capable to the scientific qualification mind, reducing they precision of outline the and laws definiteness institutions vigor which derive their from them.” substance and the same problem Faced with with which we are confronted here, (2 South Carolina court held 160) S. C. “the residue the Act, beyond held not to portion us law, of force unaffected thereby, inasmuch as that is a distinct and independent no matter, way affecting scope and efficiency the Act, to the according intention the law-maker(Italics supplied.) Supreme Court of the State of Wisconsin in harmony reasoning. Callahan, In Loomis v. Wis. 220 N. W. University Appropriation the entire Act was attacked on the ground body that the that that journal senate showed without voted, calling yeas important for to withdraw an nays, fiscal amendment which governed the transfer to the State Historical Society of an unexpended appropriation of which had $550,000 been made to the University Regents in 1925 the purpose an constructing addi library. tion to a There the court said (196 Wis. N. W. 820):
“* * * It would harsh, rule that strict, senseless would *36 condemn the entire act because the senate consented to the elimina- tion of yea amendment No. without a nay 2S vote. It would call for a blind adherence the strict letter of the constitution which killeth rather than an accordance spirit with the giveth which life.”
In Gwynn v. 92 Fla. Hardee, So. 343, where the Supreme Court of Florida had under consideration act an which contained spurious passed by matter not it legislature, was held that genuine provisions should be distinguished from and independent of the spurious so as not to affect good part of the bill. It stated Fla. (92 348): 110 So.
“* * * give spurious To effect to the portion would cause results not the Legislature. intended To by declare the entire act invalid spurious because contains matter would frustrate legisla- tive not because of will, an unconstitutional act or omission of the by but because Legislature, spurious clerical error a provision was inserted in the bill after passage. its This would destroy a law be- by cause provision clerical mistake, by the Legisla- by legislative as authenticated incorporated
ture clearly may identified and spurious provision which officers, law-making effect to the given eliminated and full intent regarded provisions duly that were enacted.” in the expressed by have these authorities heretofore been We are told considered the fact If that be true does not detract from the force court. reasoning. their validity of I that L. c. given believe should be effect Furthermore, plainly A. 645.20 provisions virtue of M. S. states that provided any of all laws shall be severable unless otherwise and if remaining of a law be found unconstitutional and void its pro- they essentially visions shall nevertheless deemed valid unless with the inseparably provisions. connected void This court presume cannot would not have enacted the remaining provisions without the void again one. But here we are conception faced with majority presents the same which to the an majority insurmountable obstacle. The would assert that while this statute would to an act apply which is unconstitutional reason of a defect in substance, apply does not to an act which is uncon- stitutional because of a procedural majority fault. con- While greater portion cedes successfully gamut of the act ran the of all of tests enactment, nevertheless it holds good parts must suffer guilt spurious part association with the so that the entire act must fall. There is no basis for the subtle dis- tinction types between two unconstitutionality. A law either constitutional or it is unconstitutional. In State ex rel. Kohlman v. Wagener, Minn. 424, 428, 153 N. W. this court said: * * “* It is say not too presumption much to that the favor regular enactment of a great presumption law is as as the in favor constitutionality of the subject matter of a and the rule law, *37 in such cases is upheld law is to be its unless unconstitu- tionality appear is made to beyond a reasonable doubt.” apparently more majority 20 or states follow agrees some question severability rule the enrolled-bill under which the enrolled bill is conclusive of never raised. Under rule this 227 impeached by law and cannot be resort to journals. The go courts will not bill to behind the enrolled see whether a statute regularly has Crawford, Statutory been enacted. Construction, 139. § This is the Supreme rule followed the United States Court in Field v. 143 U. S. 12 S. Ct. Clark, 36 L. ed. 649, 495, 294. The authorities of jurisdictions gathered other 4in Wigmore, Evi (3 ed.) dence 1350; Ritzman v. Campbell, 93 Ohio St. 246, 112 N. E. L. 591, R. A. The majority disposes 1916E, impressive authority by the surprising deduction if jurisdictions now follow enrolled-bill rule should sometime in the future adopt the journal-entry they might rule not consider question of sever- ability. It is speculate useless what courts might do the event they changed their policy other may than observe that expected guided by spirit courts will be the same which has shaped their in the judgment past. The important point is that in those jurisdictions the rule Freeman v. Goff could be applied. never addition jurisdictions
In
to the
which follow
enrolled-bill rule
numerous other
support
courts
appellants
contention of the
reference to the doctrine
severability
where there is a material
variance in a provision or section of the
provided
statute
the valid
portion of the section is severable from the rest of
act.
v.
Rice
Impr.
Road
Dist. 142 Ark.
221
454,
179;
Bayou
S. W.
v. Plum
Ford
Impr.
Road
162
Dist.
Ark.
258
475,
613; Gwynn
S. W.
92
Hardee,
v.
543, 110
Fla.
So.
People
rel.
v.
222
343;
ex
Honore
78
Olsen,
Ill. 117,
N. E. 23; People
Brady
ex rel.
v. LaSalle Street T. &
269
S. Bank,
Ill.
110
E.
518,
N.
State ex
38;
rel.
v.
163
Williams
Kan.
Robb,
502,
228 upon majority which the relies rule arbitrary journal-entry
The compliance strict with constitu to enforce primarily designed is the the last usage into in middle of and came procedure tional 15 L. B. cope legislatures. Neb. corrupt in to century order Minn. 153 130 Wagener, ex rel. Kohlman 238. State early in Minnesota the rule as reflected recognized N. 749,W. 750, have authority may these decisions that “The of cases but noted Minn. 67 N. but Canfield, Miesen v. W. by been shaken An examination disposed not at time to overrule them.” are of Mitchell reserva the Miesen that Mr. Justice had case indicates open departure the left for a respect tions with to door was by King. from the dictum in Bull v. While it until it was revived Reorganization given invoking so-called Act can be effect severability necessary doctrine of and it is therefore not to consider overruling journal-entry many practical an are here, of rule there compel the court consider reasons attention should abandon ing it.37 also numerous See, 1350; 4 Wigmore, (3 ed.) Evidence journal-entry impairs
37 The rule because it has been said to be unsound stability vacillating Supreme be the law. after The Court Iowa many years journal-entry tween the strict rule and rule enrolled-bill (2d) 883, 901, Grimes, decided in Carlton v. 237 Iowa 23 N. W. return to the enrolled-bill The rule. court stated: “* * * people generally, departments public The and the the various government, public state, all the officers of look and the courts laws of the state. the laws the statutes set Codes Not out in these something maybe, perhaps, fantastic and absurd or There is but laws. really holding: saying Codes Iowa are in a court ‘No. These not facie, They prima only presumptively, laws. and on condition.’ laws ignorance perhaps But rule of the law excuses no one. is harsh necessary presumed know it is a The rule not so harsh one is rule. not, readily may Iowa, law he have a Code of or if one is statute because may available, may provide, he read know the statutes he what lawyer provisions. him of its consult a who will turn to the Code advise readily But law no chart if what read is in fact he has available legal rights.” him as inform to his Supreme has the strict inter-
The Court Wisconsin also retreated from pretations journal-entry rule. case Since Wendler Supreme upset single had not on the Court of Wisconsin enrolled bill 151; L. Rev. 147 to 16 Iowa L. discussed 32 Iowa Rev. authorities 21 Iowa L. Rev. 99; 551; 584; Iowa L. Rev. 538 573 to Wis. L. Rev. 439. brings disturbing position to an awareness of the in which
This us Supreme The this court itself. Court Minnesota reason finds journal-entry interpreted by majority, deciding rule, important most case an area of law limited author- minority ity. majority only here can holding have the effect of *39 further legislative process, for complicating rather than: risk the present ever having of an entire danger measure nullified an error in a part, legislature will be forced into the involved and time- practice of consuming considering and acting provision each separate as a bill. respect for decisis the
We that out of stare decision in are told again not be disturbed. should be noted Freeman v. Goff should authority controlling precise that Freeman v. is not for the Goff here. majority making Moreover, which the since the sub- holding here ject pro- of the act under consideration is administrative and property rights cedural in nature and since no business or are appropriate. is not Johnson v. Chicago, stare decisis involved, Q. (2d) B. & 66 N. 68, R. Co. 243 Minn. W.
grounds
See, also,
procedural
passage.
Bergh,
of
defects in its
Weed v.
L.R.A.(N.S.)
1217;
Callahan,
Wis.
124 N. W.
Loomis v.
following
present
Wis.
“Only way the doctrine of stare complete decisis stands in the of aban- journal property. donment of the rule. ‘This is not a rule of No vested rights difficulty experienced in the rule have been created. No would be ” profession changed.’ were it to be change presumptuous are warned that for us consider
We the court Freeman and Bull v. holding which decided v. Goff distinguished credit neither to the King. We do members nor to rever- which decided those cases a fatuous court ourselves They forth these be the opinions. the dicta set would ence deny the claim their observations should be enshrined first the eternal verities. responsibility with Confronted with making say judgment a decision in no one can this case what their jurists they be. do able would know, however, would We acknowledge rjght encourage first to our- interest our a reexamination of their in the facts light decisions concrete present-day actualities.
We warned of danger overturning established law the possibility might produce. chaos which action such again This on premise is based Goff doubtful Freeman v. specific questions we are King apply Bull that because Freeman my opinion v. Goff extends It is confronted. judicial to exercise a veto and thwarts power thereby license represents danger the will of the in itself serious legislature, stability government. that a determination of case respondent contends involves *40 provisions and if its are of suffi- long-range policy that, indicates no they again reconsidered the legislature can be when importance, cient represents an indifference to meets. attitude unwarranted This legislative legislature The fact of importance of action. comprehensive fit to Act pass Reorganization the state has seen many of involving expenditure of deliberation after weeks money impress public deal of time and should us with the great matter. should importance We not maintain an immediate permits where the law of detached indifference an inter- attitude give expression will which mandates. pretation majority quote it add to the force decision to Nor does in former cases and point from briefs submitted out length at years gone expressed have incon- attorneys general views attorney, general for in this action. The with those contended sistent
231 any attorney only like other an advocate. We interested position if his correct and in this determining particular now case. ample A consideration the issues should be limited to the deci- which are the guide sional authorities true law.
For the I foregoing respectfully reasons dissent. Gallagher, (dissenting). Justice
Thomas
decisions in Bull v.
supra,
am
that our
opinion
King,
I
against
should be overruled as
supra,
Freeman v.
trend of
Goff,
adopt
should
what has been
authority
designated
modern
an
severability.”
legis-
enactment
Thereunder,
“rule of
of which contains a
some minor section
material variation
lature,
not be
by the
would
held invalid
signed
Governor,
from that
as to
no
to which the variance had
which
relation,
those sections
fully
specific
executed on the basis of the
language
therefore could be
applied in the
case,
1955,
thereof. Under this
if
instant
L.
rule,
857,
provisions designed
c.
numerous
to streamline
its
modernize
our state
would for the most
departments,
many
become
and the vast amount of
operative,
time,
study,
effort
expended by
our
as well
the experts
consulted in
drafting the
would
lost. Certainly,
bill
not be
those sections of the
are unrelated to the
in which
sections
the variance has
been discovered cannot be said to have failed to meet the constitu-
legislation.
for the enactment of
prerequisites
See, Rice
tional
v.
221
179;
142 Ark.
S. W.
Ford
454,
v. Plum
Impr.
Bayou
Road
Dist.
475,
613; Gwynn
162 Ark.
258 S. W.
v.
Impr.
Road
Dist.
Hardee,
ex
People
rel. Honore v.
343;
Fla.
222
543, 110
Olsen,
92
So.
Ill. 117,
Brady
ex rel.
v. LaSalle Street
People
N. E.
T. &
23;
78
S. Bank, 269
rel.
110 N. E.
State ex Williams v.
518,
38;
Ill.
163
Robb,
Kan. 502,
Berry
&
P.
v. Baltimore Drum Point R.
41
(2d) 223;
183
Co. Md. 446,
Casper
Am. R.
ex rel.
v.
37
69; State
Neb.
Moore,
Frank minority the carefully majority opinions have considered I is a the undisputed and it that there material variance between legislature by and the approved governor. one being proposition This so we confronted to whether we material should overrule our former decisions that a variance passed by approved between the bill and the one Bull governor King, the entire enactment. invalidates 205 Minn. 311; N. W. Freeman v. 206 Minn. Goff, N. 238.W. dissenting opinion Gallagher of Mr. Justice Thomas would
overrule those while the dissent of Mr. Murphy decisions Justice distinguish seeks to without overruling them. Both dissents advocate adopt severability that we permits rule of which the unconstitu- part tional of a law duly enacted to be severed from constitutional part. That rule applied has been approved where the bill cases passed by the legislature was the same bill which was governor parts declared supreme court statute un- subsequently no rule where there are material vari- I favor such a constitutional. parts of the unconstitutional permits the elimination
ances as part the function that of the law destroying a statute without which is constitutional. have before here that is not the situation which we us
However disputes a material variance which as neither dissent inasmuch entire act. Because of previous decisions invalidates the under our severability I see how rule of can that distinction cannot became a words how can a MU never law. In other applied to something never good part the bad we separate from existed? say that makes no dif- though attempted material
Even auditor or the commissioner of adminis- state whether ference system prepared variation formulated tration fact section, ignore we cannot that it is in some minor occurred journals the house and it did from review of senate apparent members of a difference both houses which of those make *42 principal officials -would have the responsibility of preparing system. was only after conference committee from the house and senate made recommendations that desig- the state auditor was nated “with advice and assistance of the admin- commissioner of post-auditor” istration and the system. to prepare formulate and Murphy’s Justice dissent & cites State v. Federal Sav. Minnesota Loan Assn. 218 Minn. N. W. 229, 15 (2d) support to its conten tion construing constitutionality of a enact ment the court must be guided the rule of construction that effect be given intent the legislature. heartily I agree prin with that ciple of construction, but an examination of that case discloses the court there was considering passed statute had the legis lature and signed governor in the same form as the bill passed by legislature. ex Again State rel. Grozbach v. Com mon School Dist. No. 65, 237 Minn. 54 N. and the (2d) 130, W. cases cited therein, this court was considering severability parts passed by legislature of a unconstitutional statute approved by the form. governor the same Other Minnesota cases by the minority severability cited the doctrine refer to involving duly approved materially statutes in a not Mils differ ent passed by from those the legislature. form
I jurisdictions have also considered the other cited cases from principle him, rejected. of which we have heretofore I not do them of consider sufficient weight justify reversing our the well- established own decisions our court. I am eternally
While attached to the doctrine of stare decisis without regard changing conditions, I do feel that much weight to our own given must decisions before we for substitute them the of foreign jurisdictions, decisions if especially appears that we have previously rejected such outside if ap- authorities and it also pears own that our make law decisions sound and have been relied by lawyers years. and other courts
With another due convene session within logical present readily seems that the material year, differences can subsequent in a corrected enactment of the law. concur respectfully therefore I herein stated the reasons
For majority. C. RIGG.1 DOUGLAS ROBERT J. KOALSKA EX REL. STATE January 20, 1956. 36,801.
No. *43 pro
Robert Koalska, J. se. Attorney Houston, Miles E. Solicitor Lord, General, Charles prison. respondent for as warden of the state General, Per Curiam. deny- court order of the district from an appeal whose Petitioner, moves corpus is now pending, of habeas for writ petition his ing stenographic production subpoena to secure this court pro- for the the district court and proceedings record made proceedings. such the exhibits introduced duction entirety subpoena since a denied in its motion is Petitioner’s Any purpose. a futile and by this court for useless issued will the district court will proceedings in the before exhibits used following procedure the usual routine upon appeal by available wholly unnecessary. subpoena therefore 1 Reported (2d) N. W.