(dissenting). I cannot agree to the decision of this case because:
1. To marry is a natural right. • It is thus guaranteed by the purpose and spirit of the constitution: “All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Sec. 1, art. I, Oonst. of Wis.
2. Legislative authority, called the police power, to regulate natural rights is necessarily limited to safeguarding those rights. That which 'conserves is, therefore, constitutional, while that which is so unduly oppressive as to materially impair is unconstitutional. So it is held that those regulations* which are promotive of rights are reasonable and constitutional while those which are not appropriate in kind to conserve, or are so severe as to be unduly oppressive, are unreasonable and unconstitutional.
3. The marriage right is a proper subject for legislative regulation; but not for legislative destruction or material impairment. .Whether the means of regulation are legitimate and whether the degree of restraint is unduly oppressive, are judicial questions.
4 The law in question requires, as a condition of competency to marry, that the male shall be free from any type of specified human infirmities, the proof to be made by scientific tests, which the evidence shows but few are sufficiently expert and have the instrumentalities to apply, and which cannot be applied for the fee named in the law, or without such expense as to operate as a serious restraint upon mar*658riage, and the result of which would he liable, in many cases, to take away the right, though there were no acquired infirmity of the particular kind and none of transmissible character, — an entire absence of danger as to the wife and ■none as to descendants, — except within mere possibility, — so-remote as to be infinitesimal, — or less than danger from any one of several infirmities which lawmakers would not venture to set up as a prevention of marriage.
5. It is legitimate to condemn a separable part of an enactment and sustain the rest, where there is reasonable certainty that the legislature would have enacted the latter had it appreciated the invalidity of the former, and where such latter, by itself, forms a complete workable enactment; and, where there is ambiguity in an act and, yet, it will admit of a reasonable construction which will sustain it, and there are no persuasive circumstances to indicate legislative intention not to include the legitimate idea, that is to be regarded as the proper one; but the court cannot properly ascribe a meaning to an enactment which cannot reasonably be read out of it, nor one which plainly violates the legislative purpose. To do the latter would be to make law instead of declaring the law as made by the lawgivers.
6. According to all evidence in this ease/ the enactment in question means one thing and cannot reasonably be said to mean anything else, and all concede that, given such meaning, it is^unquestionably, a destructive interference with the marriage right. There is no legitimate way, in my judgment, of judicially recasting the legislative work in that respect. Rules for construction are not adequate for the situation. If there were less of, in effect, judicially making written law over by weeding' out inconsistencies and twisting words out of their natural or obviously designed orbit so as to make, them operate sensibly and conservatively instead of destructively, there would be less efforts to make people conform to artificial standards set up by well meaning theorists, *659regardless of personal liberty and the' very spirit and purpose of our system.
7. The penal features of a police regulation, designed to prevent and punish its violation, are such an essential portion thereof as to be inseparable therefrom. Without them the law would he a collection of words without vitality, which a legislature would not, consciously, indulge in. Therefore, where such element is so harsh as to violate the prohibition of cruel or unusual punishments, or so tends to terrorize as to prevent freedom of appeal to the courts for redress or prevention of supposed wrongs, the whole enactment partakes of the unconstitutional character of such element and is void. Ex parte Young, 209 U. S. 123, 28 Sup. Ct. 441; Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885.
8. The penal clause here seems to be in the class with those found to be fatally unusual and unduly oppressive in the cases above cited. It is conceded, as I understand it, that it is impracticable to satisfy the certificate prescribed by the law, — in any event the evidence seems all one way on the subject, and that something less severe as to the examination must be found to be satisfactory, yet, if a county clerk issues a license, except upon the particularly worded certificate, he will be guilty of a felony and liable to confinement in the state prison for the term of five years. So if an intended bridegroom finds- himself unable to carry out his promise, or an intended bride finds herself stranded, so to speak, on the shoals of this drastic regulation, — 'though there be no real danger in the contemplated union being consummated, — or if the parents of either or any one having knowledge of the facts, though acting from the purest motives and in explanation of the unfortunate dilemma, discloses the reason why the-mutual promises cannot be carried out, such person will be liable to punishment by confinement in the state prison for five years. The mere statement of the matter seems enough to condemn the act utterly
*6609. There is no reasonable necessity for such a law, as the evidence amply shows. It is competent for any prospective wife to protect herself, or, in most cases, her parents to do it in her behalf, as fully as the legislation was designed to do and accomplish it by treaty. There is perfect freedom of self-protection by demanding evidence of purity as a condition of marriage. Why should the public step in because of a case of danger now and then, and impose on the great mass of men the burdens of such a law ? That it is an interference with a right which goes so far beyond fair conservation as to materially impair, seems plain.
10. Eecapitulating: The act unduly casts suspicion of immorality and criminality of most serious nature upon every male candidate, present, prospective, or possible, for the marriage state. It imposes such an oppressive burden upon all such candidates as to proving competency to enjoy the natural right of marriage, or so takes such right away without justification in many cases and restrains its exercise .generally, as to efficiently discourage an institution which is absolutely essential to public welfare and so recognized and protected by the fundamental law. By so oppressively interfering with the constitutional right of marriage as to partially or wholly destroy that right, the tendency will inevitably be to promote immorality and social and racial retrogression. The penal feature is so severe as to destroy freedom of appeal to the law of the land for redress. To so read the law as to take from it any of these infirmities is to go outside the judicial field and make a law.
For the reasons stated, I think it is the duty of the court to condemn the act in question as subvertive of constitutional liberty and right. That the motives of those whose activities resulted in imposing such enactment upon the people of this state were of the purest, I do not question; but if all the well-meant suggestions of volunteer social reformers were vitalized by written law, we might have a system worse than *661anything yet ventured npon, even under the paternalism of nations unfettered by constitutional safeguards, and all our rights would be turned into mere uncertain privileges and practically destroyed. To prevent despotism of that kind is one of the most important functions of constitutional guaranties coupled with an independent judicial agency to enforce them. I think here is a case where enforcement is required. I think to thus meet the situation, would consist with the requirements of judicial duty and result in greater care in giving legislative sanction to well-meant suggestions-thrust npon attention and appreciation that, “The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles.”
The court’s opinion constrains me to add this:
The history of a legislative enactment may be looked to in aid of judicially clearing up its obscurities, but not to justify putting words into or taking words out of it not therein or thereout by reasonable implicationand, in the end, no meaning can properly be ascribed thereto, not fairly found expressed by the words thereof, taken in their reasonable scope, — which violates the rules of language or of law, — reven though there be evidence aliunde the writing that such was the legislative purpose. To overstep this is to make rather than to declare and apply law, forgetting “that the judicial office is jus dicere, et non jus dared1
An act of the legislature regulating civil conduct establishes public policy within the scope of legislative power; but when the enactment contravenes the higher public policy, enshrined in the fundamental law, the latter prevails and the former is not law at all.
The statement “that the police power does not wait upon the slow processes of jury trial” is rather too broad and in my opinion is subject to many important exceptions accord*662ing to the situations dealt with. Where the subject is a principal constitutional right, like that of marriage, and opportunity for jury interference is so essential for its due conservation, to take away or materially impair it without such opportunity, — there being no imperative necessity therefor,— would be destructively harsh and not due process of law in a constitutional sense, and inconsistent with the spirit of the fundamental law. If there is any imperative necessity why the right of marriage should be liable to confiscation as under the law in question, without opportunity for the protection against injustice afforded by opportunity for some semblance of a common-law hearing, none has been suggested.
I think I as fully appreciate as any one the importance of social purity and protection of the newly elected mothers of the races to come from contamination and suffering; but there is reason in all things and there is a realm beyond and between the two stands the constitution. Removal of all responsibility for self-care would eventually result in a weak and degenerate race. Undue regulations of ordinary affairs and rights tend to produce the very condition they are aimed to prevent, or something worse, and are self-destructive where not unconstitutional.
I have aimed to state my views of the legislation in question in its constitutional aspect with a minimum of discussion of the enactment in detail, preferring to formulate, concisely, elementary principles, associated with a few observations appropriate to the situation and trust the reader to apply them to the act and the court’s opinion as they will be found in the report of this case. If those principles, briefly illustrated, without the aid of judicial decisions, do not efficiently indict and condemn the enactment they will show much clearer the grounds for my opinion than lengthy discussion would and will be more likely to be helpful in respect to future legislative efforts.
*663Viwje, J. I concur in the foregoing dissenting opinion of Mr. Justice Marshall.