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Show THURSDAY, JANUARY 22, 1970 PAGE SIX ,THE DAI Lf RECORD has been ellected. However, the statute attempts to go beyond the power three members each to the State Board of Higher Education was not a of each the officer it in authorizes that to the highest legislature granted motivating factor in passing the statute. To impute to the legislature an to and the board by to members three approval house requires such a motive is to accuse them of being willing to forego legislation appoint the senate of the nine members to be appointed by the governor. The control of tremendous importance to the people of this state as set out in Sec. of the board, which performs an executive function, is thus effectively 2, supra, unless they can do an unconstitutional act to wit: participate of the control in the in a constitutionally executive function of the government. 1 cannot legislature. placed believe that the honorable members of our legislature would be so insofar to allow Act the as of that the is court This purports opinion crass and politically motivated as to want us to hold the entire Act unconstituthree appointments to be made by each of the presiding officers of the two tional unless the appointments are to be made as specified in the act, and houses of the legislature, it is contrary to the provisions of Article V, this is especially true where the Act provides that no more than eight of Sec. 1, of the Constitution of Utah and is void. the fifteen members can belonto Uje same political party. Ihose honorable members specifically said that lJthe provisions of the Act as it applies to The judgment of the lower court is, therefore, reversed with directions any person or circumstance be held invalid, that the remainder of the Act to enter a declaratory judgment in accordance with this opinion. No costs shall not be affected thereby. I am, therefore, led to the unalterable are awarded. conclusion that the legislature intended to have a State Board of Higher Education consisting of fiteen members and that if the provision for the appointment of any member thereto be held invalid that Act would otherWE CONCUR: wise stand and that the appointment should be made according to the laws of this state. It, therefore, follows that nine of the fifteen members of the Board have been properly appointed and that there are six vacancies the appointment to which has not been lawfully made. Therefore, those six J. Allan Crockett, Chief Justice vacancies should befilled by appointment as provided in Article VII, Sec. 10 of the Constitution of Utah, to wit: by the Governor, by and with the consent of the senate. R. L. Tuckett, Justice Further Opinion of Justice Ellett: above My concurring colleagues think that the opinion of the Court as set out is sufficient for the decision of the issues of this case. However, it is my judgment that such is not the case and that it is proper and would be on a matter helpful for me to set forth in this "Further Opinion" my views in the not determined opinion. (My conwhich was raised in the complaint but curring colleagues Paragraph not join in this further opinion. ) of the prayer of the complaint is as follows: do 1 Adjudging and declaring that said provisions of Section 5(1) of Senate Bill 10, 38th Legislature, relating to the appointive powers of defendants, are unconstitutional, void and of no force or effect for the reasons set forth above, and that plaintiff Calvin L. Rampton, as Governor of the State of Utah, has the exclusive power, subject to consent of the Senate, to appoint members of the State Board of Higher Education, created by Senate Bill 10. This to me is a reasonable interpretation to be placed upon the meaning of the statute, and it is one which gives life to the entire Act. Any other interpretation will cast doubt upon the validity of the Act and perhaps render it entirely impotent and of no force or effect. are not asked by either party to hold the entire Act unconstitutional, and we should not do so indirectly or by implication. Our duty is to hold it constitutional if by any reasonable construction we can do so. Gubler v. Utah State Teacher's Retirement Board, 113 Utah 188, 192 P. 2d 580 (1948); Snow v. Keddington, 113 Utah 325, 195 P. 2d 234 (1948). We 1. In my opinion we have only done half of our work by the above decision. We have said that the Act is void as it relates to the appointive power of the defendants, but we have not yet said that the plaintiff has the power to six members improperly to the consent of the senate-th- e appoint--subje- ct Pace. and Barlow appointed by the defendants In fact, the concurring and dissenting opinions tend to cast grave doubts upon the validity of the entire act, and I want to make my position clear. This is a case of partial invalidity of a statute, and the law in that regard is set out in 82 C. J.S. Statutes Sec. 92 as follows: A statute may be in part alid or constitutional and in part invalid or unconstitutional; and the language of the unconstitutional part may be referred to in order to clarify and sustain the part that is constitutional. If the parts are wholly independent of, or separable from, each other, the part which is valid or constitutional may stand while that which is invalid or unconstitutional will be rejected, provided the valid part is complete in itself and capable of being executed or enforced and of being given legal effect, and is fully operative as a law, provided such valid part fairly answers the object or purpose of the passage of the law, and provided the deletion of the unconstitutional part will not make the statute meaningless, impair its efficacy, destroy its main and essential features, or substantially affect its other features and purposes. This rule applies even though the valid and the invalid parts are in the same paragraph, sentence, or section of the CROCKETT. Chief Justice: (Concurring specially) I agree with the proposition that the attempt of the legislature to confer authority upon itself (its officers) to make appointments in the Executive Department, the effect of which could lead to legislative control of executive functions, is contrary to constitutional principles. And I am appreciative of the efforts of Justice Ellett in setting forth the reasoning and authorities which so demonstrate. But I think that, consistent with the principle of the separation of powers, and our own duty of judicial restraint arising therefrom, that the proposition just stated above fulfills the purpose of this case. Accordingly, I do not see either necessity or wisdom in making further observations or indulging in conjecture as to what other method of selection of the members of the Board of Higher Education, or whether the legislation would have been enacted at all. if the legislature had thought the method it did prescribe was improper. This is said notwithstanding the savings clause referred to. Such clauses are effective only as to separate provisions of an act whicji can stand independently. But if the parts of the Act are so interrelated that the voiding of one portion would so substantially change the nature of the legislation that it cannot fairly be determined what the legislative intent would have been, nor whether the legislation would have been enacted, it is not within the prerogative of the court to rule that certain portions of the Act are invalid and assume that the legislature would have enacted other interrelated portions of the Act without them. See Carter v. Beaver County, 16 Utah 2d 280, 399 P. 2d 440; Pride Oil Co. v. Salt Lake County. 13 Utah 2d 183, 370 P. 2d 355; and State v. Salt Lake City, 21 Utah 2d 318, 445 P. 2d 691. I therefore do not believe that under this act either the Legislature or the Governor can make the six appointments which were designated to be made by the President of the Senate and the Speaker of the House of Representatives. TUCKETT. Justice: (Concurring) I concur in the decision of the court in the judgment of the district court. I am of the opinion that Sectionreversing 5(1), Chapter 138, Laws of Utah 1969, is unconstitutional and void insofar as it to confer upon the President of the Senate and Speaker of the House purports of Representatives power to appoint members of the State Board of Higher Education which was created by the act. act. On the other hand, the entire statute will be held void if the parts are inseparably connected with each other, or are so connected, or dependent on, each other in subject matter, meaning, or purpose that the good cannot remain without the bad, if the invalid provisions are integral parts of the act or enter so entirely into its scope and design that it would be impossible to maintain it without those provisions, nr if the entire act is predicated on the invalid sections. It is my opinion that our legislature was sincere when it stated the intent with which Chapter 138 L. U. 1969 was enacted. That intent is stated in Sec. 2 of the Act, which reads: It is the purpose of this act to afford the people of the State of Utah a more efficient and more economical system of high quality public higher education through centralized direction and master planning providing for avoidance of unnecessary duplication within the system, for the systematic and orderly development of facilities and quality programs, for coordination and consolidation, and for systematic development of the role or roles of each institution within the system of higher education consistent with the historical heritage and tradition of each institution. The purpose of this act is to vest in a single board the power to govern the state system of higher education and within the board's discretion to delegate certain powers to institutional councils. To make sure that the purposes of the Act would not be thwarted by the decisions of the courts, the legislature by Sec. 27 enacted a savings clause in the following language: If any provision of this act, or the application of any provisions to any person or circumstance, is held invalid, the remainder of the act shall not be affected thereby. It thus seems obvious to me that the purpose of attempting to reserve unto the presiding officers of the two houses the right to appoint CALLISTER, Justice: (Concurring in the result) I concur in the result of the majority opinion on the ground that Section 5(1) of Senate Bill 10, which confers certain powers of appointment to the State Board of Higher Education members of the Legislature upon is unconstitutional in that it violates Article V, Section of the Constitution of Utah, which provides for the separation of powers of the three departments of government. The provisions of this one section of the act concerning the appointment of the members to the Board are interrelated, and it is not within the scope of this court's function to select the valid portions of this section and conjecture that they should stand independently of the portions which are invalid;! therefore, all of Section 5(1) is unconstitutional 1 I. State v. Salt Lake City, 21 Utah 2d 318, 325, 445 P. 2d 691 Carter v. Beaver County Service Area No. One, 16 Utah 2d 280 (1968); 283 ' 3QQ P. 2d 440 (1965); Pride Oil Co. v. Salt Lake County, 13 Utah 2d mi. 187, 370 P. 2d 355 (1962). HENRIOD, Justice: (Concurring and Dissenting) I concur in the main opinion with respect to the unconstitutionalitv of the power of appointment given as to the six members, but dissent from the suggestion that the act is offensive only insofar as it purports to sanction the appointment of the six members of the fifteen member board; ergo that the remaining nine members appointed by the governor constitutionally may remain in esse, and he may now appoint the other six. rd I think all of Section 5 (1) of Chapter 138, is unconstitutional. em as well as the power to appoint its cated 6::hyerc "PMy The members, and r.l.l.d to ri.e .. ,h' pUin,i" Gov'rnor R"Plon, ogre.., when he that "SHoPP51mthal 18 constitutional and invalid," ' Sf,on 8 in the last line of his brief that "Section . . mu,t be declared 5(1). unconstitutional and invalid. " (Emphasis added.) ..y. |