The opinion
Finley, J.
(dissenting) — This case presents the age-old problem, discussed at some length by the late Mr. Justice Cardoza in his compact but scholarly book, The Nature of the Judicial Process. More particularly, the case poses the question of the function and the responsibility of judges when confronted with the necessity of making a choice between giving effect to (a) the clear-cut literal meaning of language or (b) the clear-cut, obvious purpose or intent that prompted such language.
In other words, where the choice is between form and substance, should the courts give effect to the thought, intent, or purpose that was being articulated or expressed, or to the method or form of the articulation of the thought, intent or purpose? In Meredith v. Kauffman, 293 Ky. 395 , 169 S. W. (2d) 37 , the court said:
“The fundamental purpose in construing a constitutional provision is to ascertain the intention of the framers and the people in adopting it. People’s Transit Co. v. Louisville R. Co., 220 Ky. 728 , 295 S. W. 1055 . Words are but imperfect vehicles designed to convey thought and in gathering the thought intended to be conveyed the purpose behind the words should be kept in mind. The Constitution is *824 concerned with substance and not with form and its framers did not intend to forbid a commonsense application of its provisions(Italics mine.)
The problem involved is not restricted exclusively to statutes and the constitution. It may arise regarding contracts, wills, articles of incorporation; in fact, wherever written language is used to express intent and purpose in a document of serious or significant legal portent or implication.
In In re Morris’ Estate, 56 Cal. App. (2d) 715, 133 P. (2d) 452 , the California court said:
“The most important duty devolving upon a court in the construction of a written instrument, whether the same be a constitution, statute or a contract, is to discover the true meaning of the instrument and to glean therefrom the purposes and objects of the same.”
The reasoning of the majority opinion and the conclusions reached therein suggest that (a) the meaning of language and (b) the purpose or intent behind or giving rise to such language are always unequivocally identical; that the only function and responsibility of a judge is to look at the unequivocal identities of meaning and purpose, and to give effect to these — and that the end result must or should be always the same.
I agree with Justice Holmes’ comment (The Path of the Law (1897), 10 Har. L. Rev. 457, 465) that, if this was true, the judicial function would involve nothing more than a problem in simple arithmetic — the judge merely adding or subtracting, with the answer always the same. The indicated method of reasoning, generally speaking, negatives any possibility or probability of different viewpoints, dissents, or divided five-to-four decisions. If there are dissents or five-to-four decisions, and if lawyers write briefs and argue in support of conflicting viewpoints, then, at least inferentially, one side or the other is either (a) not too alert mentally and are, as Holmes said, “not doing their sums right, and, if they would take more trouble, agreement'inevitably would come;” or (b) they are somewhat *825 amoral intellectually, — and attempt to distort meaning, or intent and purpose, thereby substituting an incorrect sum for the true and correct answer in the process of doing their problem in mathematics or legal logic.
If the facts of life are realistically evaluated, it seems to me that the judicial function is not too accurately evaluated by the reasoning of the majority opinion. I thoroughly subscribe to the ideal of certainty and stability, but this does not require the sacrifice of purpose and intent on the altar of form or so-called literal meaning. (See Holmes’ Law in Science and Science in Law (1899), 10 Har. L. Rev. 441, 460.) The ideal may be served effectively, honorably, and in good conscience by emphasis upon purpose and intent, as well as by emphasis upon literal meaning. This, indeed, poses a problem of judicial responsibility, which is inescapable or inherent in the very nature of the judicial process. In State ex rel. Linn v. Superior Court, 20 Wn. (2d) 138, 146 P. (2d) 543 , the court stated:
“Constitutions are designed to endure through the years, and constitutional provisions should be interpreted to meet and cover changing conditions of social and economic life.”
and quoted, with appoval, the Massachusetts court in In re Opinion of the Justices to the Senate, 291 Mass. 572 , 196 N. E. 260 , as follows:
“ ‘The Constitution of the Commonwealth was designed to be an enduring instrument so comprehensive and fundamental in its terms that a free, intelligent and virtuous people may govern themselves under its beneficent provisions through vast changes in social and industrial conditions. In construing its regulations regard must be had to their spirit and purpose as well as to their letter. The great and underlying principles announced by the Constitution and its Amendments must be kept in mind as well as possible narrow interpretations of particular phrases.’ ”
The well-known phrase, “a government of law and not men,” expresses an ideal to which most of us subscribe and try our honest best to conform. However, the phrase is one which should be accorded some degree of realistic evaluation in terms of the fact that (a) law (constitutional *826 or otherwise) and (b) government, do not, come into being and do not operate automatically.
If it could be said in the instant case that there is doubt as to the intent and purpose of the pertinent constitutional provisions, we could well be faced with a different problem; but, in the instant case, intent and purpose are undeniably crystal clear. In State ex rel. Swan v. Jones, 47 Wn. (2d) 718, 289 P. (2d) 982 , an opinion signed by four members of the court stated:
“Notice and information to the voters of a city regarding a proposed charter and its provisions was the only purpose of the procedural details written into the constitution regarding publication in two daily newspapers .”
The record in the instant case convinces me that both unquestionably sincere and undeniably effective steps were, in fact, taken in providing better than reasonably adequate notice to the electorate of Yakima respecting the proposed amendment of the city charter. I believe the trial judge arrived at the only commonsense solution of the problem involved in this case, and that his decision should be affirmed.
The reasoning as well as the result reached in the majority opinion have compelled me to offer the foregoing comment, supplementing the views expressed in Judge Ott’s dissenting opinion. On the basis of Judge Ott’s views, as well as for the reasons set out hereinbefore and in State ex rel. Swan v. Jones, supra, I dissent.
Mallery, Ott, and Hunter, JJ., concur with Finley, J.