The undersigned concurs in the majority opinion in all particulars, except the paragraph reading:
"The writer, speaking for himself alone, is of the opinion it is not unreasonable to assume defendant knew, approved, and made use of the conjectured seductive effect of `hostesses' to give a semblance of respectability to its business, and clearly Gannon decided that such use would promote the interests of the defendant."
The law of our state under which the defendant was carrying on business was enacted as an initiated law by the people of the state at an election held November 3, 1936.
It is the opinion of the undersigned that the above quoted paragraph carries with it a strong imputation that the business referred to is not a respectable one, and that there should be a judicial determination on that point at the expense of criticizing the wisdom of the people in providing for the sale of intoxicating liquor. It is quite clear that the wisdom, justice, policy, or expediency of a statute are for the legislature *Page 65 alone. This applies as well to an initiated law when the people act as law makers.
"This court is itself created by law, and is not superior to, but bound by, all valid enactments of the legislature. Its function is to interpret — not to make — laws. Whether or not valid legislative enactments are wise or unwise, desirable or undesirable, is not for us to say, but is purely a question for the legislature, and the responsibility for the continuation or abolishing of such legislative policy rests solely upon the legislature, and not upon the courts." Van Woort v. Modern Woodmen, 29 N.D. 441, 151 N.W. 224. "A statute which violates, neither expressly nor by necessary implication, any constitutional provision, is itself conclusive evidence of its propriety and justice." 8 Cyc. 804; State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N.W. 561, LRA1918A 156, Ann Cas 1918A 583.
Under our laws a judge, or any other person, has the right to express publicly his private opinion concerning the wisdom of any law passed by the legislature, or any initiated law, but it seems to be well-settled that the three constitutional branches of government should each refrain from criticizing the official acts of the other.