State Ex Rel. Foster v. Naftalin

74 N.W.2d 249, 246 Minn. 181, 1956 Minn. LEXIS 504

• Court: Supreme Court of Minnesota
• Decided: January 20, 1956
• Docket: 36,749
• Status: Published

Opinions

Knutson, Justice.

This proceeding originally was commenced as an action for a declaratory judgment seeking a determination of the constitutionality of L. 1955, c. 857, and an injunction restraining defendants from acting thereunder. While a motion for a temporary injunction was pending, the parties, by stipulation, converted the action into a proceeding in quo warranto for the purpose of speedily testing the right of defendants Arthur Naftalin, Arthur Hansen, and Morris Hursh to hold and exercise respectively the offices of secretary of the State Executive Council, secretary of the State Investment Council; and secretary of the State Board of Pardons. The trial court determined that the act was unconstitutional, and this appeal followed.

There is no dispute as to the facts. L. 1955, c. 857, was first introduced in the house as House File 1233 on March 7, 1955.²The bill was a comprehensive reorganization of many of the departments of government. After its introduction it was reported back by the committee on civil administration with certain amendments with its recommendation that it pass.³ As so reported for passage, article X read in part as follows :’⁴

“Section 1. Subdivision 1. Except as otherwise provided in this section and except as to other powers and duties of the state auditor, which by this act are transferred to, vested in, and imposed upon other state departments or agencies, all the powers and duties now vested in, and imposed upon the state auditor by statute are hereby transferred to, vested in, and imposed upon the commissioner of administration.

“Subd. 2 The state auditor shall continue to exercise the rights, powers and duties which heretofore have been or may hereafter be by law vested in, and imposed upon him relating to certifying the state tax to the several county auditors, relating to certifying the tax necessary to be levied in connection with any loans made by the state board of investment as heretofore constituted or in respect to any obligations purchased by such state board of investment, or in any other way relating to the certification and levy of taxes for any purposes for and on behalf of the state of Minnesota.

“Subd. 3 Subject to the provisions of this act and other applicable laws, Minnesota Statutes 1953, Section 6.02 shall continue in full force and effect.

“Subd. 4 The auditor shall continue as a member of the state executive council, the land exchange commission, and the state hoard of investment as heretofore constituted.”

The recommendation of the committee was adopted by the house.⁵ Article X of the bill thereafter was amended as follows:⁶

“In Article X, strike Section 1 and insert in lieu thereof the following:

“ ‘Section 1. All the powers, duties and responsibilities now vested in or imposed upon the state auditor relating to the keeping of the general books of account of the state and the keeping of a system of uniform records and accounts are hereby transferred to, vested in and imposed upon the commissioner of administration. The auditor shall continue to perform the duties of preauditing and all other duties now imposed upon him by law and not transferred to the commissioner of administration by this act. The auditor shall comply with the system of accounts and records prescribed by the commissioner of administration and shall at all times have access to the general books of account of the state.’ ”

As so amended, it was passed by the house on April 15, 1955.⁷

Insofar as the text of the bill as so amended and approved by the house is concerned, it is of little importance here except to indicate what the position of the house was in the enactment of this bill.

The bill was sent to the senate on April 16. It was considered by the senate as a special order on April 19, at which time 11 amendments were proposed and passed, including an amendment to article X,⁸ which was as follows:

“In Article X * * * strike all of Section 1 as amended and insert in lieu thereof the following:

“ 'Section 1. All the powers and duties now vested in or imposed upon the state auditor relating to the keeping of the general books of account of the state are hereby transferred to, vested in, and imposed upon the commissioner of administration. The auditor shall continue to perform the duties of preauditing and shall maintain such control records and accounts as these duties require. The commissioner of administration after consultation with the auditor and the post-auditor, as now or hereafter constituted by law, shall formulate and prescribe for all departments and agencies of the state a system of uniform records, accounts and procedures with suitable instructions governing the installation and use thereof. The auditor shall at all times have access to the general boobs of account of the state. The commissioner of administration shall at all times have access to the files and records of the auditor.’” (Italics supplied.)

This amendment will be referred to hereafter as amendment No. 1.

Immediately after the adoption of amendment No. 1, article X of the bill was further amended as follows:

“In Art. X, strike Section 1, as amended, and insert in lieu thereof the following:

“Section 1. All the powers and duties now vested in or imposed upon the state auditor relating to the keeping of the general boobs of account of the state are hereby transferred to, vested in, and imposed upon the commissioner of administration. The auditor shall continue to perform the duties of preauditing and shall maintain such control records and accounts as these duties require. The state auditor, with the advice and assistance of the commissioner of administration and the post-auditor as now or hereafter constituted by law, shall formulate and prescribe for all departments and agencies of the state a system of uniform records, accounts and procedures with suitable instructions governing the installation and use thereof. The auditor shall at all times have access to the general books of account of the state. The commissioner of administration shall at all times have access to the files and records of the auditor.” (Italics supplied.)

This amendment will be referred to hereafter as amendment No. 2.

The house refused to concur in the senate amendments⁹ and requested that a conference committee be appointed. Pursuant to that request a conference committee was appointed by both houses, after which the conference agreed to certain amendments not pertinent here,¹⁰ and thereafter the house accepted and passed the bill with article X as amended by the senate.¹¹

Due to a mistake on the part of the enrolling clerk, or someone else, the bill as transmitted to and signed by the governor included amendment No. 1 instead of amendment No. 2. Amendment No. 1 was never passed by the legislature.

The trial court held that the variance between the bill as passed by the legislature, containing amendment No. 2, and the bill as presented to the governor, containing amendment No. 1, was a material variance and that, as a result, the entire bill failed to become a law and is void.

It is the position of appellants (1) that the variance is not a material variance, and (2) that, if it is a material variance, § 1 of article IX,¹² in which the variance occurs, is severable from the rest of the act.

A determination of the issues involved in this case requires an interpretation of Minn. Const. art. 4, § 11, which, as far as material here, reads:

“Every bill which shall have passed the Senate and House of Representatives, in conformity to the rules of each house and the joint rules of the two houses, shall, before it becomes a law, be presented to the governor of the State. If he approves, he shall sign and deposit it in the office of secretary of state for preservation, and notify the house where it originated of the fact. But if not, he shall return it, with his objections, to the house in which it shall have originated; when such objections shall be entered at large on the journal of the same, and the house shall proceed to reconsider the bill. If, after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and if it be approved by two-thirds of that house it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for or against the bill shall be entered on the journal of each house, respectively. If any bill shall not be returned by the governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the legislature, by adjournment within that time, prevents its return; in which case it .■shall not be a law. The governor may approve, sign and file in the •office of the secretary of state, within three days after the adjournment of the legislature, any act passed during the last three days of the session, and the same shall become a law.”

It is apparent from this constitutional provision that a bill remains in an embryonic state and does not become a law until three things occur, namely, passage by both houses of the legislature and approval by the governor, either by signing or by the constitutional lapse of time, unless it is passed over his veto by two-thirds of both houses of the legislature. In considering the issues before us, it becomes important, therefore, that we keep in mind the distinction between a Mil and a law. A Mil never becomes a law until all the constitutional prerequisites respecting manner of enactment have been fully complied with.

Another rule that we should have in mind, which is not disputed here, is that Minnesota is firmly committed to the so-called “journal entry rule,” under which the journals of the legislature may be examined in order to ascertain whether the constitutional prerequisites to the enactment of a law have been complied with. We have followed the journal entry rule ever since Board of Supervisors v. Heenan, 2 Minn. 281 (330). See, Bull v. King, 205 Minn. 427, 286 N. W. 311.

On the quéstion of the materiality of the variance involved, appellants first contend that, inasmuch as the material portions of the two amendments require concurrence of the commissioner of administration and auditor with the post-auditor in amendment No. 1 and the auditor and commissioner of administration and post-auditor in amendment No. 2 and that § 2 of article IX provides as follows:

“The office of legislative post-audit is created in the legislative branch of the government. The method of appointment of the direc-. tor of this office, his qualifications, his compensation, his term of office, provisions for his removal and definition of his duties will be established by concurrent resolution of the legislature,”

the portions of the act involved have no significance because the legislature failed to appoint a post-auditor as provided by § 2. They argue that it was the intention of the legislature that the matter of the formulation and prescription of a system of uniform records should rest with three officers, namely, the state auditor, the commissioner of administration, and the post-auditor; that, inasmuch as the legislature failed to provide a post-auditor, “Therefore, even if the bill had been correctly enrolled, the sentence in which this variance occurs would be incapable of execution in accordance with the legislative intention”; consequently, that the variance cannot be of any materiality.

Of course, the argument overlooks the fact that the act provides for a post-auditor “as now or hereafter constituted by law.” If we were to hold with appellants on this contention, the legislature at the next session could conceivably provide a post-auditor, thereby rendering what had been an immaterial variance, according to appellants’ argument, a material one. To now hold the act constitutional on that ground well might lead to much chaos were we later to be compelled to hold that the variance had then become material when a post-auditor was provided. The decision should not be placed on such a tenuous basis.

Furthermore, we think that the legislature itself has determined the materiality of the variance. When the bill was amended by the senate, the house refused to concur in the amendment. Had the matter remained there, the bill in its entirety in all probability would have been defeated. Only after a conference committee had recommended passage of the senate amendment did the house concur. If, as appellants contend, the variance was immaterial, it is difficult to understand how the two houses of the legislature would differ so emphatically upon the two versions of the bill.

In Minnesota Mut. L. Ins. Co. v. Johnson, 212 Minn. 571, 4 N. W. (2d) 625, the then attorney general of this state was on the opposite side of this question. The brief of the attorney general in the presentation of that case here contained the following apt statement:¹³

“* * * In fact, it has been held that a variance which relates to the amendment of a Mil is, without argument, material. The courts in such cases will not even speculate as to the materiality of the amendment. The reason for the rule is that if the matter constituting the amendment were not material, the legislature would not have bothered to amend it.” (Italics supplied.)

Cited in support of this statement we find the cases of Mayor and Aldermen of West End v. Simmons, 165 Ala. 359, 51 So. 638, and Moog v. Randolph, 77 Ala. 597. In the West End case, the court said with respect to the materiality of an amendment (165 Ala. 360, 51 So. 638):

“* * * it would not become our office to speculate upon the degree of importance attached to it in the legislative mind.”

We think that it generally is the rule that, where the variance relates to an amendment included in or omitted from the bill passed, the variance is material as a matter of course. Certainly that is true where the two houses reach an impasse on the amendment as they did here.

Appellants next argue that the variance becomes immaterial when L. 1955, c. 857, is considered with c. 863. Chapter 863 originated as S. F. 726. It was introduced on February 16, 1955,¹⁴ quite some time prior to the introduction of H. F. 1233. It was passed by the senate on March 10¹⁵ and was transmitted to the house on March 11.¹⁶ It was passed by the house on April 20,¹⁷ the same day on which H. F. 1233 was passed. Both bills were approved by the governor on April 21.¹⁸

Chapter 863 deals with the powers and duties of the state auditor. The portion of it material here is that which amends M. S. A. 1953, § 6.21, with respect to the duties of the auditor. It reads:

“Sec. 15. Minnesota Statutes 1953, Section 6.21, is amended to read:

“6.21 Duties. The state auditor shall continue to exercise the rights, powers, and duties now vested in and imposed upon his office. He shall have charge of the administration of the financial affairs of the state. He shall keep the general books of account of the state. The general books of account shall be on a double entry control basis, with such revenue, expenditure, asset and liability accounts as will give complete control over all financial and expenditure operations of the state and over all officials, departments, and agencies of the state government. Accounts shall be set both as to expenditures and revenue according to generally accepted practice in governmental accounting. The auditor, with the advice and assistance of the commissioner of administration and the public examiner, shall formulate and prescribe for all departments and other state agencies a system of uniform records, accounts, statements, estimates, revenue receipt forms, vouchers, bills, and demands with suitable instructions governing the installation and use thereof. The accounting system and form so prescribed shall be adopted and employed by all officials, departments, and agencies of the state government. The auditor, with the assistance of the public examiner, shall exercise constant supervision and control thereof. All accounting and financial records shall be kept on the fiscal year basis of 12 months ending at midnight between June 30 and July 1. The auditor and his designated agents shall at all times have free access to the books, records, accounts, and papers of the several departments and agencies. The commissioner of administration and his designated employees shall have free access at all times to the books, records, accounts, and papers of the state auditor and the auditor shall allow the commissioner and his agents sufficient desk space for using and inspecting the same.”

It is the contention of appellants that c. 863 dealt with the same matter as c. 857, art. 9, § 1, and that it, being the later of the two laws, is controlling under M. S. A. 645.26, subd. 3, which reads:

“When the provisions of two or more laws passed during the same session of the legislature are irreconcilable, the law latest in date of final enactment, irrespective of its effective date, shall prevail from the time it becomes effective, except as otherwise provided in section 30.” (Italics supplied.)

This rule was construed with respect to acts passed at the same time and approved at the same time by the governor in Syndicate Printing Co. v. Cashman, 115 Minn. 446, 450, 132 N. W. 915, 916, where we said:

“* * * Chapter 221, though approved on the same day as chapter 203, is presumed to be the later enactment, as it is presumed that the acts were approved in their numerical order.¹⁹ If, therefore, the two acts are inconsistent, chapter 221, being the latest expression of the legislature on the subject, operates as a repeal by implication of the prior inconsistent law, and must be given effect.” (Italics supplied.)

The difficulty with this argument and the application of this authority is that it presupposes that H. F. 1233 became a law. M. S. A. 645.26, subd. 3, likewise deals specifically with “two or more laws passed during the same session.” If H. F. 1233, because of a material variance, never became a law, the rule is wholly inapplicable. If the contention of appellants were tenable, it would mean that, if H. F. 1233 had been passed as it was, and approved by the governor, with the same variance as we are now confronted with, at an early part of the legislative session, it would be unconstitutional when passed and would not become a law. If, then, c. 863 were passed at a later time during the session, according to appellants’ argument, it would in some manner breathe life into the bill that had never been born. If, on the other hand, c. 863 had been approved a day before H. F. 1233, it would not correct the constitutional defect existing in it at all. We believe that it is evident that c. 857 must stand on its own feet or fall and that passage of c. 863 could in no manner bring it to life if it was constitutionally defective, nor could c. 863, even though dealing with the same subject, change the fact that the bill signed by the governor was not the bill passed by the legislature. The bill never having become a law, there is no law to repeal by implication.

We come then to the second and more serious contention of appellants, namely, that, even if L. 1955, c. 857, art. 9, § 1, is invalid, we should apply the rule of severability and sustain the balance of the act. This question has been determined twice adversely to the contention of appellants — in Bull v. King, 205 Minn. 427, 286 N. W. 311, and Freeman v. Goff, 206 Minn. 49, 287 N. W. 238. Inferentially at least, it has been determined the third time in Minnesota Mut. L. Ins. Co. v. Johnson, 212 Minn. 571, 4 N. W. (2d) 625. Appellants seek to avoid the effect of these decisions upon the ground (1) that the Freeman case is distinguishable from the instant case, and (2) that the Freeman case should be overruled (a) because it is contrary to the great weight of authority; (b) because it is inconsistent with the purpose of the statutory rule of severability encompassed by M. S. A. 615.20; and (c) because there is no sound reason for the rule.

At the outset, while appellants argue that Freeman v. Goff, supra, is the first case where the rule of nonseverability was adopted by this court, it is clear that a reexamination of this question requires an examination of Bull v. King, supra, as well. Appellants contend that the authorities cited in support of the rule of nonseverability in the Bull case do not support that rule. In view of the important public issue involved, we have reexamined all authorities cited in the Bull case, as well as all records and briefs in the Bull, Freeman, and Minnesota Mutual cases, and from such examination we are convinced that every argument now advanced and nearly all the authorities cited by appellants in support of the rule of severability were thoroughly presented and considered in those cases and rejected by us.

In seeking to distinguish the facts in the Freeman case from those now before us, appellants argue:

“The Goff case involved a variance in L. 1939, c. 444 entitled: ‘An act relating to signs advertising intoxicating liquors and nonintoxicating malt liquors; and providing penalties for violations thereof.’ The legislative act involved in the Goff case related only and exclusively to signs advertising intoxicating and nonintoxicating malt liquors. The bill as there enrolled and signed by the governor contained a spurious provision, not passed upon by the legislature. The Court found that the spurious addition so greatly extended the coverage of the act as passed by the legislature that the variance was a vital and material one and that the rule of severability did not there apply. The spuriously added provision there was clearly integrated with and related to and connected with the entire subject of the rest of the act. In the instant case that situation does not exist. As heretofore pointed out, the Eeorganization Act is composed of 10 separate and distinct articles, and, while all of the articles may be said to be parts of a general system of state government, yet those different parts, in respect to their operation, have no legal connection with each other, and each of its provisions other than the provision in which the variance occurs is complete in and of itself and is capable of being executed in accordance with the legislative intent, apart and separate from § 1 of art. IX of the Act, wherein this variance occurs.”

Literally speaking, that statement may be true as to Freeman v. Goff, supra, alone, although an examination of the arguments presented in that case could hardly lead to that conclusion. It surely is not true as to the Bull case. That case involved the constitutionality of L. 1939, c. 446. The trial court upheld the constitutionality of the act on the ground, first, that the variance in the bill could be stricken as meaningless, and second, that the rule of severability should apply even if the one section should be held invalid. The nature of the bill is best described by respondent in his brief here in that case, as follows:²⁰

“The act is divided into 24 sections, whose only relation to each other is that each involves an amendment of the existing income tax law. A brief summary of the sections and their subject matter will show their lack of relation. Sections 1 and 2 relate to exemptions. Section 3 relates to personal credits. Section 4 relates to accounting periods for the determination of gross income. Sections 5 and 6 relate to exclusions from gross income. Section 7 relates to deductions. Sections 9, 10, 11 and 12 relate to income of estates or property in trust and the taxation thereof. Section 13 relates to the treatment of credits to partners. Section 14 relates to periods of limitation upon the assessment and collection of tax. Section 15 relates to claims for refund and the payment thereof. Section 16 repeals a superfluous penalty provision. Section 17 relates to procedure and forms. Section 18 relates to settlement agreements. Section 19 amends the refund provision by adding a subsection c-1 under which the plaintiff is here proceeding. Section 20 preserves previous law as to previously incurred taxes, etc. Section 21 relates to the Tax Commission’s examination of returns and assessment of taxes and provides a period of limitations for refunds. Sections 22 and 23 deal with the allocation of income to Minnesota. Section 24 provides for the effective date of the act.

“All of these sections, except section 8, were presented to the governor in the identical form in which they were passed. Because a clerk erred in copying section 8, should all of the other amendments, many of them of major importance, be defeated? Must the entire purposes of the legislature be frustrated because an event beyond its control has caused doubt as to whether it did or did not repeal a credit given to a special class of taxpayers ?”

The question of severability was thoroughly presented, not only by able counsel for the parties, but by a brief filed amicus curiae by the attorney general. The attorney general urged the court to adopt two rules, namely, the enrolled-bill rule and the rule of severability. We rejected both. With respect to the rule of severability, we said (205 Minn. 431, 286 N. W. 313) :

“The bill presented to the governor for his approval must be the same bill which was passed by the legislature. This requirement is mandatory. If there is a material variance between them the bill presented to the governor cannot be said to be the same bill which was passed by the legislature. In that situation he approves not a bill passed by the legislature, but another. A material variance between the bill passed by the legislature and that approved by the governor invalidates the entire enactment .” (Italics supplied.)

Shortly after our decision in the Bull case, Freeman v. Goff, 206 Minn. 49, 287 N. W. 238, came before us. That case involved the validity of L. 1939, c. 444. There the trial court held the act unconstitutional. Again the main contention was that, even though a part of the act was invalid, the balance should be sustained under the rule of severability. Again, many of the cases now cited as authority for that rule were cited and considered by us and again rejected. Here, too, a brief amicus curiae was filed by able counsel discussing the severability rule. It is true that the act itself involved only five sections and that it did not involve as many sections as in the Bull case or in the instant case, but the same arguments were advanced for sustaining that part of the act not affected by the variance as were advanced in the Bull case and as are advanced here. Again we said in the Freeman case (206 Minn. 53, 287 N. W. 241):

“* * * a material variance prevents any part of the act from ever becoming a statute. The subdivisions of an act are but parts of the whole. [Italics supplied.] Under our constitution (art. 4, § 11), 'every bill * * * passed * * * shall, before it becomes a law, be presented to the governor’ for approval. * * * Here it is apparent that the bill as passed by the legislature has never been presented to the governor nor approved by him. Without such presentation and approval it cannot become a valid law. And, the variance being a material one, the rule announced in Bull v. King, supra, and the cases cited to sustain that view is that [205 Minn. 431, 286 N. W. 313], a material variance between the bill passed by the legislature and that approved by the governor invalidates the entire enactment.’ ”

In Minnesota Mut. L. Ins. Co. v. Johnson, 212 Minn. 571, 4 N. W. (2d) 625, the question of severability was not directly involved, but it was argued by the attorney general in seeking and obtaining a reversal of the trial court’s determination. In appellants’ brief, submitted by the attorney general in that case, we find the following as one of his contentions:²¹

“If there is a material variance between the bill passed by the legislature and that signed by the governor, the entire enactment is void.”

In that case, where the attorney general was on the opposite side of the question from that on which he now appears in this case, the Bull and Freeman cases are relied upon in support of the above statement. With respect to this contention, we said (212 Minn. 574, 577, 4 N. W. [2d] 626, 627):

“It is clear that amendments numbered 2, 8, and 10 are material, and if any one of the three was not in the bill when it passed, but now appears in the enrolled bill approved by the governor, there is a fatal variance. * * *

*****

“The court concludes that the journal, and the engrossed bills and enrolled bill disclose that the omission to delete the lines by amendment No. 8 to H. F. No. 767 was a clerical error of the engrossing staff of the senate and vitiates L. 1941, c. 218.”

The attorney general said also in the Minnesota Mutual case:²²

“It is lamentable that errors on the part of legislative clerks should defeat the action of the legislative bodies. But the strict rule calling for absolute compliance with constitutional requirements is, in the long run, a good one. In some cases it may work a hardship, but, by and large, it is beneficial to democratic government.”

It can hardly be contended that we should adopt the rule of sever-ability as to bills having numerous sections and the rule of nonseverability as to those having fewer sections. Either the rule should be adopted as the law in this state, applicable to all bills that meet the test of severability, or it should not be adopted at all. We fail to see any distinction between the Bull and Freeman cases and the one now presented, nor do we see any distinction between the arguments advanced in support of the rule of severability in these cases.

Appellants next argue that the rule of Freeman v. Goff, supra, should be overruled because it is contrary to the great weight of authority. While we are doubtful that it is against the weight of authority, this argument has been considered thoroughly in the Bull and Freeman cases. The authorities relied upon by appellants have been rejected in those cases. Some 20 or more states apparently follow the enrolled-bill rule under which the question of severability is never reached. It cannot be said that those states support the rule of severability. If they were to adopt the journal entry rule, we have no way of knowing whether they would adopt or reject the rule of severability. Be that as it may, the Freeman case is no more against the weight of authority now than it was when we decided the case. The general rule applicable to this situation is stated in 50 Am. Jur., Statutes, § 97, as follows:

“Presentation of the bill to the governor is one of the steps necessarily involved in the enactment of a law, since it is a common constitutional provision that every bill passed by the legislature shall, before it becomes a law, be presented to the chief executive for his approval or rejection. Such a provision is regarded as mandatory. The bill presented to the chief executive for his approval must be the same bill which was passed by the legislature. If there is a material variance between them, the bill presented to the chief executive cannot properly be said to be the same bill which was passed by the legislature, and the entire enactment is generally regarded as invalidated. Absolute correspondence, however, is not required; minor discrepancies and clerical errors which do not change the substance and legal effect of the statute will be disregarded.” (Italics supplied.)

Bull v. King, supra, is cited in support of the above text.

In 82 C. J. S., Statutes, § 60b, we find the following:

“The enrolling clerk or committee has no power or authority to modify in any respect a bill passed by the legislature. In those jurisdictions where the enrolled act is not regarded as conclusive as to the existence and contents of the bill, as discussed infra § 83j it is generally held that the enrolled bill as presented to, and approved by, the governor must be the same as that passed by the legislature, at least in substance and in legal effect; and where, through some mistake in the enrollment of the bill, a material change has been made, or an altogether different bill is presented to, and signed by, the governor, it does not become a law; nor, it has been held, will a bill become law where a serious clerical error occurs.” (Italics supplied.)

The Freeman and Minnesota Mutual cases are cited in support of the above text.

It must be conceded that there are authorities supporting both views. We have heretofore considered these authorities and have accepted those rejecting the rule of severability.

Appellants next argue that Freeman v. Goff, supra, should be overruled because it is inconsistent with M. S. A. 645.20, which reads:

“Unless there is a provision in the law that the provisions shall not be severable, the provisions of all laws shall be severable. If any provision of a law is found to be unconstitutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one- or unless the court finds the remaining valid provisions, standing aloné, áre incomplete and are incapable of being executed in accordance with the legislative intent.”

Here, again, the statute deals with a law, not a bill. As we pointed out above, a bill does not become a law until the constitutionál prerequisites have been met. Where there is a material váriance'as here, under our constitution the bill does not become a law. This question also has been effectively answered in the Freeman case. In that case, L. 1939, c. 444, § 4, read:

“The various provisions of this Act, and the clauses, phrases and sentences thereof, shall be severable, and if any part or provision thereof shall be held to be invalid, it shall not be construed as invalidating any other portion thereof.”

In spite of that express provision in the act itself, we held that the whole act was void on the ground that it had never become law. Surely such provision in the act itself is more persuasive than a statute of general application.

The next argument is that Freeman v. Goff, supra, should be overruled because there is no sound reason for it. Appellants rely heavily on People ex rel. Honore v. Olsen, 222 Ill. 117, 78 N. E. 23, and People ex rel. Brady v. LaSalle Street T. & S. Bank, 269 Ill. 518, 110 N. E. 38. All that need be said about those cases is that they have been thoroughly considered in the Bull and Freeman cases, in both of which we refused to follow the Illinois cases. The argument here is based on the proposition that, inasmuch as we follow the rule of sever-ability in cases where the constitutional prerequisites to enactment of a law have been followed but where parts of the act are unconstitutional for some other reason such as failure to comply with Minn. Const. art. 4, § 27, no good reason exists for application of a different rule here. Of course, the answer to this argument is that in the one case the bill becomes a law and in the other case it does not. The rulé is almost universal that, where the law is constitutionally enacted but some part of it contravenes some constitutional provision, parts of the act which can stand alone will be upheld.²³ It does'not follow that, where a bill never has become a law for failure to follow constitutional mandates in the process of enactment, a part of it can be sustained.

Again this distinction has been considered in the Bull case. On page 35 of appellants’ brief here we find the following:

“There are at least two situations where a court is called upon to declare that a statute, or a portion thereof, is invalid under a constitution. The first, and most frequently occurring one, arises where the terms of the statute conflict with some provision of the constitution, as, for example, the equal protection clause. The second arises where the method of enactment does not meet the constitutional requirements. This case falls within the latter category, since it is contended that § 1 of art. IX of the Reorganization Act, as passed by the legislature, was never presented to the governor under art. 4, § 11, of the Constitution.

“In each case the legislature has passed an act which is intended to be operative as law in its entirety, but a portion of which is invalid. In each case the question before the Court is: Because a portion of this act is invalid, shall we declare the entire law inoperative?”

This statement is taken verbatim from the brief of respondent in the Bull case, with the exception that the words “§ 1 of art. IX of the Reorganization Act” are substituted for the words “section 8 of the bül”²⁴

In Freeman v. Goff, supra, this question again was clearly considered, as is illustrated by the following statement found in the brief of the attorney general appearing for appellants:²⁵

“We submit that to limit the application of the divisibility rule to questions involving particular constitutional limitations to the power of the legislature is unsound. If the defective provisions of section 1 of Chapter 444 were invalid because of violation of the due process clause in section 7, Article I of the Minnesota State Constitution, it would seem clear that the remainder of Chapter 444 would be valid. We respectfully submit that no sound distinction can be predicated upon the fact that in the hypothetical case above supposed, the vice arose because of a violation of section 1, Article 7, whereas in the case at bar the vice arose because of a violation of section 11, Article 4. In each instance the validity of the remainder of the law depends upon whether the invalid portion is divisible or separable from the valid portions thereof.”

This distinction was not overlooked by us in the Freeman case. We there said (206 Minn. 53, 287 N. W. 241) :

“The argument that a variation is not different from an unconstitutional provision which may be stricken from a statute and yet leave the remainder intact falls because it ignores the fact that the unconstitutional provision exists in a statute validly enacted, while a material variance prevents any part of the act from ever becoming a statute.”

Appellants contend that the cases cited in support of the rule of nonseverability in Bull v. King, supra, do not support that rule. From a reexamination of those cases we think that it might be said that they do not specifically discuss the rule of severability. That is true of our early cases. In Sharp v. Merrill, 41 Minn. 492, 493, 43 N. W. 385, we held that the variance involved was not material. We there said:

“* * * An omission of words from the enrolled bill, which does not change the substance or legal effect of the statute as it passed the legislature, is wholly immaterial.”

We did not state what the result would be if the omission did change the substance or legal effect of the statute.

Sjoberg v. Security Sav. & Loan Assn. 73 Minn. 203, 75 N. W. 1116, involved an act in which the enacting clause was omitted, contrary to Minn. Const. art 4, § 13. We held the constitutional requirement mandatory and that a statute without an enacting clause is void. With respect to Minn. Const. art. 4, § 11, we had this to say (73 Minn. 214, 75 N. W. 1118) :

“It is * * * claimed by appellant that the law in question contained an enacting clause at the time it passed the legislature, and that the trial court' erred in excluding evidence of such fact. The ruling was correct, for the fact itself was immaterial for the reason that a bill, although it passes the legislature, never becomes a law, unless it be presented to the governor pursuant to article 4, § 11, of the constitution. If the bill in question contained an enacting clause when it passed the legislature, it was never presented to the governor, but in place of it a bill was presented to and approved by him containing no enacting clause.

“It follows that Laws 1897, c. 250, is void, * * (Italics supplied.)

If the bill never became a law unless the bill presented to the Governor was the same as that passed by the legislature, it is difficult to see how the rule of severability could apply so as to make part of it a law.

Much the same is true of many of the decisions from foreign jurisdictions which we cited. We need not discuss all of them here.

Probably the strongest case in support of nonseverability is that of Moog v. Randolph, 77 Ala. 597.²⁶ The facts there with respect to the passage of the bill involved are almost identical with those in the instant case. The court said (77 Ala. 599) :

“* * * inagmuch as a bill, under the mandatory provisions of this instrument, can become a law, only when it has gone through all the forms made necessary to give it validity and force as such, the courts will pronounce it a law, or not a law, according as the legislative records may disclose a compliance, or failure of compliance, with these constitutional requirements.

“* * * if the bill which is passed by the General Assembly varies materially, in substance and legal effect, from that which is approved by the Governor — especially where this subject of variance involves a matter of amendment, without the incorporation of which in the bill one of the houses refused to concur with the other in its final passage — then there exists such a want of legal and actual identity between the bill passed and the one approved, as that neither of them acquires the force of a valid and constitutional enactment. In such a case, the bill passed by the General Assembly is not the one approved by the Governor, and the one approved by the Governor is, e .converso, not the one passed by the General Assembly. * * *

“* * * The House Journal shows, that the enrolling-elerk omitted to incorporate in the enrolled bill, no doubt inadvertently, a material amendment, which was a component part of the complete bill as it passed these two legislative bodies. That this omission vitiates the entire hill, I think, there can be no room for doubt; * * *.

“* * * a MU is an entirety, and a law is the product of the combined, harmonious and unanimous action of the legislative and executive departments of government, each acting strictly within the scope of its constitutional authority, and according to the prescribed forms of the constitutional mandate. When, therefore, as we have said, the measure assented to by one of these departments is not, in substance and legal effect, the measure assented to by the other, but differs from it materially in its operation as a law, it is in no proper sense a constitutional or valid enactment.” (Part italics supplied.)

In Rode v. Phelps, 80 Mich. 598, 608, 45 N. W. 493, 496, the court, after discussing a variance in the bill as passed and as signed by the governor, said:

“* * * These radical differences between the act found upon the statute-book, and the bill as it passed, preclude any idea of attempting to save any portion of the act. It was never passed by the Legislature, and is null and void, * * (Italics supplied.)

With respect to the effect of the rule, the court said (80 Mich. 610, 45 N. W. 497):

“It is to be deeply regretted that as important a law as this, covering a subject of great public interest, should, because of the gross -carelessness, or worse, of some one, be wiped bodily from the statute-book. But the courts are not responsible for this; nor can they usurp the functions of legislation, and, by shutting their eyes to the records of legislative doings, declare a law valid that never passed the Legislature, however well authenticated it may be by the certificates of officials.”

In State v. Wendler, 94 Wis. 369, 379, 68 N. W. 759, 762, the Wisconsin court said:

"* * * The requirement which is absolutely essential is that the governor shall approve the same law which the legislature has passed. This is the fact which makes a law, and want of it makes mere waste paper.”

Again, in State ex rel. Pollard v. Board of Medical Examiners, 172 Wis. 317, 321, 177 N. W. 910, 912, the Wisconsin court said:

“* * * the bill approved by the governor was. not the one passed by the legislature, and is a void enactment, * *

Probably even more persuasive, however, than the cases which we cited in support of the rule are those supporting the rule which we rejected. In seeking to sustain the decision of the trial court on the rule of severability, respondent in Bull v. King, supra, cited and relied upon²⁷ Gwynn v. Hardee, 92 Fla. 543, 110 So. 343; People ex rel. Honore v. Olsen, 222 Ill. 117, 78 N. E. 23; People ex rel. Brady v. LaSalle Street T. & S. Bank, 269 Ill. 518, 110 N. E. 38; People ex rel. Sellers v. Brady, 262 Ill. 578, 105 N. E. 1; McAuliffe v. O’Connell, 258 Ill. 186, 101 N. E. 419; State ex rel. Attorney General v. Platt, 2 S. C. 150, 16 Am. R. 647; Berry v. Baltimore & Drum Point R. Co. 41 Md. 446, 20 Am. R. 69.

The attorney general, in his brief amicus curiae in the Bull case, in addition to some of the above cases cited the following: State ex rel. Boyd v. Deal, 24 Fla. 293, 4 So. 899, 12 A. S. R. 204; State ex rel. Attorney General v. Hagood, 13 S. C. 46; Ford v. Plum Bayou Road Improvement Dist. 162 Ark. 475, 258 S. W. 613; State ex rel. Casper v. Moore, 37 Neb. 13, 55 N. W. 299; Rice v. Lonoke-Cabot Road Improvement Dist. 142 Ark. 454, 221 S. W. 179.

With a few additions, these are the same cases we are now urged to follow.²⁸ Even if it could be said that the cases cited in support of the rule of nonseverability in the Bull case do not support that rule, it cannot be said that we did not consider both sides of the question and the authorities supporting each view.

In essence, what we are now urged to do is to follow decisions of foreign courts which we have at least twice rejected and refuse to follow our own decisions. While we should not slavishly adhere to decisions that no longer are applicable to present-day conditions, neither should we lightly overrule decisions that have been carefully arrived at after a thorough consideration, unless it can be shown that social or economic conditions have changed so as to make the decision no longer applicable to present conditions or that the statutory or case law on which the decision rests has been altered so that it no longer is sustained by such decision or we are convinced that the case was decided improperly because of a failure to present or consider matters now before us which we did not have before us at the time the decision was rendered. Our attention has not been called to any of these situations in this case.

Determination of this case involves no long-range policy of the state. Slightly more than a year will elapse until the legislature again will convene, and, if it then sees fit to do so, it can reenact the bill and present it to the Governor in a constitutional manner. Government by law instead of by man, which is the main bulwark to our democratic form of government, demands a decent respect for the rule of stare decisis in order that citizens of this state will be assured that decisions of the court are good for more than “one trip and one day only.” Our decision in Bull v. King, Freeman v. Goff, and Minnesota Mut. L. Ins. Co. v. Johnson, supra, were all unanimous and were decided by the same personnel then serving on the court.²⁹ It is only by concluding that, had the present members of the court been serving then, we would have decided differently that we could justify overruling these decisions. If the decisions of this court are to be subject to change every time the personnel of the court changes on the unwarranted assumption that our wisdom is superior to that of our predecessors, then there will be little remaining of the old doctrine of stare decisis and the stability it has furnished the law.

The instant case and that of Minnesota Mut. L. Ins. Co. v. Johnson, supra, illustrate the inadvisability of fluctuating from one position to the other. In this case the attorney general argues for the rule of severability. In the Minnesota Mutual case the then attorney general argued against the rule of severability. If we are to decide cases purely on the basis of the exigencies of the particular case before us, then the decisions of this court soon will be of little value.

We have carefully considered the dissents filed in this case. The dissent of Mr. Justice Thomas Gallagher advocates that we overrule our former decisions respecting the rule of severability. He cites in support of his position for the most part the cases which we heretofore have rejected. We have fully covered that question in the above opinion, which was released on November 16, 1955.

The positions taken by Mr. Justice Murphy in his dissent also have been answered in the above opinion, but, in view of the importance of the case and the public interest manifested in it, there are some conclusions reached in this dissent which we believe should be answered.

In the first place, the dissent refuses to recognize the difference between the rule of severability as applied to unconstitutional provisions of a law constitutionally enacted and a bill which fails to meet the constitutional prerequisites for enactment into law and therefore never becomes law. We have fully covered that matter in our opinion. It is completely disposed of in Freeman v. Goff, 206 Minn. 49, 53, 287 N. W. 238, 241, where we said:

“The argument that a variation is not different from an unconstitutional provision which may be stricken from a statute and yet leave the remainder intact falls because it ignores the fact that the unconstitutional provision- exists in a statute validly enacted, while a material variance prevents any part of the act from ever becoming a statute. The subdivisions of an act are but parts of the whole.”

The quotations in the dissent are from cases in the former category and have no application here.

In the next place, the dissent attempts to distinguish our former decisions from the case now before us. It takes the position that our decision in Freeman v. Goff, supra, is distinguishable because there were fewer sections in the bill involved in that case than are involved in the bill now before us. Since it is not possible to distinguish Bull v. King, 205 Minn. 427, 286 N. W. 311, on that basis, the contention is that our decision in that case, insofar as it rejects the rule of severability, is mere “dicta” and therefore not binding on us at this time. We cannot agree with either contention.

With respect to the contention of the dissent that the bill involved in Freeman v. Goff, supra, has less sections than the bill now before us, all that need be said is that surely we cannot have one rule of law apply to bills having few sections and another rule apply to bills having more sections. The dissent finally places the distinction between the bill in the Freeman case and the one in the case now before us on the proposition that “Unlike the case which we have to consider the entire act [in the Freeman case] was infected by the spurious portion referred to.” That statement, as applied to the Freeman case, is not supported by the decision of the trial court,³⁰ the briefs of counsel for the parties, or our decision in the Freeman case. On the first page of argument in the brief of appellants (county attorney of Hennepin County) in the Freeman case filed in this court³¹ we find the following:

“It would seem clear that that portion of the enrolled act which did not receive legislative sanction is not the law. The question would then seem to be — the effect of the spurious portion upon the remainder of the act.”

Thereafter 14 pages of appellants’ brief in the Freeman case are devoted to an argument urging us to adopt the rule of severability. Most of respondent’s brief in that case is devoted to a contrary argument. A brief amici curiae was filed therein, part of which discusses the same question. In our opinion in the Freeman case we follow the Bull case, refusing to apply the rule of severability. For us now to say that the question of severability really was not involved at all, which is what the above statement of the dissent really means, is, to say the least, quite presumptuous.

It is obvious, as stated above, that Bull v. King, supra,, cannot be distinguished on that basis, so it is now claimed that what we said in the Bull case is “dicta” and not binding us.

“Dicta,” or more properly “obiter dicta,” generally is considered to be expressions in a court’s opinion which go beyond the facts before the court and therefore are the individual views of the author of the opinion and not binding in subsequent cases. Where, however, two or more issues are before the court and are argued by counsel, and the court places its decision on both even though a decision on one issue might have been sufficient to dispose of the case, the decision is equally binding as to both issues.³² This rule is well stated in Union Pac. R. Co. v. Mason City & Fort Dodge R. Co. 199 U. S. 160, 166, 26 S. Ct. 19, 20, 50 L. ed. 134, 137, as follows:

“* * * where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other. Whenever a question fairly arises in the course of a trial, and there is a distinct decision of that question, the ruling of the court in respect thereto can, in no just sense, be called mere dictum.”

That case quoted the following from Florida Cent. R. Co. v. Schutte, 103 U. S. (13 Otto) 118, 143, 26 L. ed. 327, 336:

“* * * It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was found in the end which disposed of the whole matter. Here the precise question was properly presented, fully argued, and elaborately considered in the opinion. The decision on this question was as much a part of the judgment of the court as was that on any other of the several matters on which the case as a whole depended.”

The reason for the rule of obiter dicta is obvious. The questions actually before the court and argued by counsel are thoroughly investigated, deliberately considered with care, and, when so investigated and considered, a decision on those issues is entitled to respect in future cases. Obiter dictum, on the other hand, is a statement of the judge on an issue not so deliberately investigated and, for that reason, is not entitled to the same respect.

In the Bull case, not only did the trial court place its decision, at least in part, on nonacceptance of the rule of severability,³³ but the major portion of the briefs of both appellant and respondent in that case is devoted to an argument of that question. In addition, the attorney general filed a brief amicus curiae urging us to adopt the rule in which a substantial portion of his brief is taken up by an argument of the same question. After that thorough consideration, we emphatically disposed of the issue in the Bull case by refusing to adopt the rule. To say that such decision is dicta ignores the definition of the term. Nor did we consider it dicta in the later case of Freeman v. Goff when we said (206 Minn. 53, 287 N. W. 241) :

“* * * the variance being a material one, the rule announced in Bull v. King, supra, and the cases cited to sustain that view is that [205 Minn. 431, 286 N. W. 313], £a material variance between the bill passed by the legislature and that approved by the governor invalidates the entire enactment,’ ” (italics supplied)

or in Minnesota Mut. L. Ins. Co. v. Johnson, 212 Minn. 571, 4 N. W. (2d) 625, where the attorney general appeared on the opposite side of this question. In that case we said (212 Minn. 574, 4 N. W. [2d] 626):

“It is clear that amendments numbered 2, 8, and 10' are material, and if any one of the three was not in the bill when it passed, but now appears in the enrolled bill approved by the governor, there is a fatal variance. The lines stricken by the eighth amendment remain in the bill approved by the governor. Their presence cannot be overlooked under such cases as Sharp v. Merrill, 41 Minn. 492, 43 N. W. 385, or Bull v. King, 205 Minn. 427, 286 N. W. 311.” (Italics supplied.)

In the latter case, the attorney general, in relying upon Bull v. King, supra, as authority for the rule of nonseverability, did not consider the Bull case as dicta. To now hold that this decision is dicta lacks support on any theory.

The dissent would then have us accept the decisions of foreign jurisdictions which we heretofore have rejected. Practically all of them have been considered in our former decisions. We have covered that matter in our opinion above.

Next, without advocating the repudiation of the journal entry rule, which we have followed since the beginning of statehood³⁴ and have followed consistently since, the dissent argues that it is not a good rule. We fail to see what the argument amounts to unless the dissent wishes to advocate that it be overruled. It is either the law of this state or it is not. If it is the law, it should be adhered to until it is rejected and some new law accepted in its place. Apparently the dissent wishes to do neither.

Finally, the dissent argues that the rule of stare decisis is not appropriate. It says:

“* * * since the subject of the act under consideration here is administrative and procedural in nature and since no business or property rights are involved, stare decisis is not appropriate.”

Surely that is new doctrine in the field of law. It is true that stare decisis does not apply with the same strictness in some fields of law as in others. In the field of real estate or property law, for instance, it is applied with the greatest force for the reason that in those fields property rights may have become vested in reliance upon our decision. However, it is not inapplicable in any field. Before decisions of this court should be overruled or ignored in subsequent cases, there should be some good reason for doing so. That is particularly true of decisions construing our constitution. Where such decisions have stood unchallenged for many years they should not be lightly overruled. In Trustees of Hamline University v. Peacock, 217 Minn. 399, 411, 14 N. W. (2d) 773, 779, we said:

“We should not be ‘unmindful of the desirability of continuity of decision in constitutional questions.’ Only ‘when convinced of former error’ should we overrule a line of decision law of many years’ standing. Smith v. Allwright, 321 U. S. 649, 665, 64 S. Ct. 757, 765. In the words of Mr. Justice Roberts in his dissent (321 U. S. 666, 64 S. Ct. 766), we should be careful not to permit ‘intolerance for what those who have composed this court in the past have conscientiously and deliberately concluded,’ nor should we indulge in ‘an assumption that knowledge and wisdom reside in us which was denied to our predecessors.’ ”

Here, there is no good reason for overruling former decisions except the desirability of the dissent to uphold this particular bill. If we are to adopt that position it would mean that this decision and all others in this field are good for one case only. Such has not been the law in the past, and we hope that it will not become the law in the future.

Furthermore, it is impossible to reconcile the inconsistency of the positions taken in the dissent. First an attempt is made to distinguish our former cases and then it is claimed that stare decisis is inappropriate. If stare decisis is inapplicable, why is it necessary to distinguish former decisions ? If they have no application in this field of law, it should make no difference what we have said in former cases of a similar nature.

Affirmed.

2 Journal of the House, 1955, p. 835.

3 Journal of the House, 1955, p. 1672.

4 Journal of the House, 1955, p. 1693.

5 Journal of the House, 1955, p. 1698.

6 Journal of the House, 1955, p. 2111.

7 Journal of the House, 1955, p. 2115.

8 Journal of the Senate, 1955, p. 2004.

9 Journal of the Senate, 1955, p. 2025; Journal of the House, 1955, p. 2353.

10 Journal of the Senate, 1955, p. 2278.

11 Journal of the House, 1955, p. 2609.

12 Article X as the bill originally was drafted was later changed to .article IX, and the pertinent article will be referred to hereafter as article IX as it is in the final bill.

13 Appellants’ Brief, p. 16, Minnesota Mut. L. Ins. Co. v. Johnson, 212 Minn. 571, 4 N. W. (2d) 625.

14 Journal of the Senate, 1955, p. 368.

15 Journal of the Senate, 1955, p. 701.

16 Journal of the House, 1955, p. 966.

17 Journal of the House, 1955, p. 2475.

18 Journal of the Senate, 1955, p. 2295; Journal of the House, 1955, p. 2676.

19 For a contra view, see Stuart v. Chapman, 104 Me. 17, 70 A. 1069.

20 Respondent’s Brief, p. 24, Bull v. King, 205 Minn. 427, 286 N. W. 311.

21 Appellants’ Brief, p. 20, Minnesota Mut. L. Ins. Co. v. Johnson, 212 Minn. 571, 4 N. W. (2d) 625.

22 Appellants’ Brief, p. 21, Minnesota Mut. L. Ins. Co. v. Johnson, 212 Minn. 571, 4 N. W. (2d) 625.

23 11 Am. Jur., Constitutional Law, § 152.

24 Respondent’s Brief, p. 26, Bull v. King, 205 Minn. 427, 286 N. W. 311.

25 Appellants’ Brief, p. 10, Freeman v. Goff, 206 Minn. 49, 287 N. W. 238.

26 See, also, Jones v. Hutchinson, 43 Ala. 721; Moody v. State, 48 Ala. 115, 17 Am. R. 28; King Lbr. Co. v. Crow, 155 Ala. 504, 46 So. 646; Mayor and Aldermen of West End v. Simmons, 165 Ala. 359, 51 So. 638.

27 See, Respondent’s Brief, p. 28, et seq., Bull v. King, 205 Minn. 427, 286 N. W. 311.

28 See, Appellants’ Brief, p. 38.

29 Henry M. Gallagher, Andrew Holt, Royal A. Stone, Clifford L. Hilton, Charles Loring, Julius J. Olson, and Harry H. Peterson.

30 See memorandum of Judge Hall in Record, p. 29, Freeman v. Goff, supra.

31 Appellants’ Brief, p. 6, Freeman v. Goff, supra.

32 See, 11 Minn. L. Rev. 373.

33 See memorandum of court in Record, p. 34, Bull v. King, 205 Minn. 427, 286 N. W. 311.

34 Board of Supervisors v. Heenan, 2 Minn. 281 (330).