interpreting the legislature’s use of the term “shall” as permissive to save the constitutionality of an otherwise unconstitutional statute
How later courts described this case
- interpreting the legislature’s use of the term “shall” as permissive to save the constitutionality of an otherwise unconstitutional statute
- construing certified question statute as permissive to avoid constitutional infirmity
- declining, for reasons of comity, to answer a certified question from a federal court
- court adopted rule held unconstitutional and withdrawn
Written by the judges who cited it.
The opinion
Weaver, J.
(dissenting in part)—I have signed Judge Hale’s dissent, but I wish to add some thoughts of my own. A few years ago, I opened my dissent to an en banc decision 8 with a quotation:
I have the misfortune to differ from the Lord Justice Cotton, and I do so with a deep sense of the probability that he is right. Bowen, L.J., In re Haseldine, 31 Ch.D. 511, 517 (1886).
After due consideration, I agree with the cogent arguments set forth in the dissenting opinion, which holds unconstitutional the statute under consideration. I do so for the simple reason that the majority opinion stretches my understanding of our state constitution, as it now exists, beyond permissible bounds.
I agree, wholeheartedly, with the philosophy that it is incumbent upon the judiciary ever to be vigilant to promote all the possible means for the improvement of judicial administration; but it must be done by the adoption of those means that do not violate constitutional principles.
I fear that the statute is not the nostrum outlined by the majority opinion; and I also fear that the thesis and reasoning of the majority opinion will lead the court into a legal labyrinth of suggested changes, statutory or otherwise, from which it cannot extricate itself without a complete reexamination and perhaps reversal of the decision treating with the problem before us.
*645 In my extracurricular reading, I stumbled across a quotation, gleaned from the dissent of Clarkson, J., in Oliver v. Raleigh, 212 N.C. 465 , 471, 193 S.E. 853 (1937):
I know that this, like every other case, will become the parent stock from which a motley progeny will spring. In those after years when this case, elevated to high authority by the cold finality of the printed page, is quoted with the customary “It has been said,” perchance another Court will say, “Mayhaps the potter’s hand trembled at the wheel.” Possibly when that moment comes these words may give that Court a chance to say, “Yea, and a workman standing hard by saw the vase as it cracked.”
The majority opinion is “parent stock.” Its progeny can be earth-shaking in the development of judicial administration in this state.
Judge Hale, in his dissent, with commendable foresight, has “seen the vase as it cracked.” He has alerted us.
Finally, the majority opinion disposes of the instant question upon the merits. (I refrain from saying “case,” for I do not believe we have a justiciable question before us that is within our jurisdiction.)
If we reach the merits of the instant question, I agree with the disposition made by the majority opinion.
Adler v. University Boat Mart, Inc., 63 Wn.2d 334, 343 , 387 P.2d 509 (1963).