specially concurring, in which ROONEY, Chief Justice, joins.
I concur that error took place and completely agree with the court’s opinion authored by Justice Brown, but I see this case as one to be the catalyst to point up some misleading and poor Wyoming jurisprudence.
It is my concern that in this case an appeal through the district court, rather than through the bill of exceptions procedure, by the State of Wyoming would have been the proper means of bringing the issue to the supreme court. I doubt the case would have gotten beyond the district court, the error is so blatant. The opinion of the court is extremely kind and patient in its disposition based upon elementary law. It may have been partly through past decisions of this court that there has developed a belief- — even a rule — that the State may never appeal in a criminal case, regardless of the point in the proceedings at which the alleged error against the State occurs. For example, it was loosely and unnecessarily said in State v. Heberling, Wyo., 553 P.2d 1043 (1976) — which I authored — at fn. 1:
“A bill of exceptions is the only way by which the State may challenge and have reviewed any adverse ruling of the district court in criminal prosecutions. * * ”
In that case, the defendant was in jeopardy, having been tried and found guilty.
In State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977 (1906), which is the sire of the rule with more progeny than a rabbit, this court also unnecessarily set out the rule repeated in Heberling. In State ex rel. Gibson the proceeding was dismissed because the bill of exceptions was not sealed! Even though the dismissal was for a technical reason, the court volunteered the rule that “[n]o provision is made by this or any other statute for an appeal by the state, or any other proceeding on behalf of the state, to vacate, or modify the judgment rendered in a criminal case.” It was dicta, pure and simple and has been blindly followed ever since and demonstrates how dicta can become settled law, though erroneous.
This court adopted the rule of State ex rel. Gibson in State v. Ginther, 53 Wyo. 17, 77 P.2d 803 (1938) in an appeal by the State in a case dismissed by the district court because it thought the information inadequate, but added what it considered to be the prevailing rule that
“[i]t seems generally held under the common law as administered in this country that the State may not bring a writ of error or take an appeal or have exceptions in a criminal case, unless the right thereto has been expressly granted by statute, though there are some decisions which appear to hold that without statutory authority the prosecution may obtain a review of judgments favorable to the defendant upon questions of law when no verdict of acquittal has been had. * * ”1 77 P.2d at 803.
*373The bill of exceptions provisions pertaining to proceedings initiated by the State has its roots in and implements § 11, Art. 1, Wyoming Constitution:
“No person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put in jeopardy for the same offense. If a jury disagree, or if the judgment be arrested after a verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.”
As I see it, the intent of the constitution is that a person is not entitled to avoid prosecution unless that person has been placed in jeopardy. The statutory bill of exceptions proceedings authorized to be taken by the State is one designed for use when the defendant has been placed in jeopardy, a serious error of law against the State has taken place, and the defendant is acquitted. In order to prevent that same error of law to crop up again and become a practice in other cases, a means is provided to prevent it in the future. A good example of this real purpose and legislative intent is found in State v. Selig, Wyo., 635 P.2d 786 (1981), where it appeared that an improper practice had grown up of not giving lesser-included-offenses instructions in first degree homicide cases. The defendant had been tried and, in a new trial, acquitted; in the first case there was a hung jury. The court had refused to instruct on the lesser-included offenses. The bill of exceptions served the valuable purpose of preventing such error against the State in future instances.
Section 7-12-105, W.S.1977, provides:
“The judgment of the court in the case in which the bill was taken shall not be reversed nor in any manner affected, but the decision of the supreme court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered, or which may afterwards arise in the state.”
A careful examination of that language indicates that the particular proceeding in which the bill of exceptions was taken cannot be disturbed. However, if the defendant was not in jeopardy at the time and an erroneous decision at law was made in his favor, that does not mean that new proceedings may not be initiated and pursued. An analogous situation exists when, as a result of a preliminary hearing, a complaint is dismissed. As was said in Richmond v. State, Wyo., 554 P.2d 1217, 1221-1222 (1976):
“The rule has long been that one preliminary hearing, unproductive for the State, does not prohibit another. As set out in United States ex rel. Rutz v. Levy, 1925, 268 U.S. 390, 393, 45 S.Ct. 516, 517, 69 L.Ed. 1010, 1011:
“ ‘Under state law it has uniformly been held that the discharge of an accused *374person upon a preliminary examination for want of probable cause constitutes no bar to a subsequent preliminary examination before another magistrate. Such an examination is not a trial in any sense and does not operate to put the defendant in jeopardy. * * * ’
“Since that 1925 decision, there has been no change in the law.2 ”
Footnote 3 to the foregoing enlarges upon the text:
“3 A proceeding before an examining magistrate is not a judicial trial but merely a judicial inquiry and dismissal of a complaint is not an absolute bar to further prosecutions. State v. Elling, 1973, 19 Ariz.App. 317, 506 P.2d 1102; Skinner v. Superior Court, In and for Pima County, 1970, 106 Ariz. 287, 475 P.2d 271. Following are more of some of the recent cases holding that dismissal does not bar refiling before another magistrate: Commonwealth v. Smith, 1975, 232 Pa.Super. 546, 334 A.2d 741; Perkins v. State, 1975, 26 Md.App. 526, 339 A.2d 360; State v. Thomas, Mo.1975, 529 S.W.2d 379; People v. Uhlemann, 1973, 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609; State v. Fish, 1963, 20 Wis.2d 431, 122 N.W.2d 381.”
Since Richmond, this rule has been incorporated into Rule 7(c), W.R.Cr.P. where it is provided that if the commissioner dismisses the complaint and discharges the defendant at a preliminary hearing, “[t]he discharge of the defendant shall not preclude the state from instituting a subsequent prosecution for the same offense.”
While not all complaints dismissed at a preliminary hearing are the result of arbitrary action by the commissioner, the State does need protection from not only arbitrary and capricious action by a tribunal but also errors of law and must not be forever foreclosed from proceeding upon what may be a meritorious complaint when the defendant has not been placed in jeopardy. The proper administration of justice in criminal matters requires a balancing of the defendant’s constitutional rights with the interests of society in being protected from those who violate our criminal laws.
It was well put in a musty old volume with a fresh view, State v. Buchanan, 5 Harris and Johnson (Md.) 317, 329-330 (1821):
“ * * * Hence it is manifest that, in the opinion of Lord Hale, the King might have a writ of error in a criminal case; since it would be absurd to say that a man who had obtained a judgment of acquittal for a defect in the indictment, or on a special verdict, could never again be indicted for the same offence, until that judgment was reversed by writ of error, if a writ of error would not lie. * * But instances are not wanting of writs of error being prosecuted by this state, in criminal cases, [citations]. In each of those cases there was a demurrer to the indictment, and judgment on the demurrer for the defendant, in the court below.
sfc * * if
In Commonwealth v. Wallace, 114 Pa. 405, 6 A. 685 (1886), the court noted that several different statutes of Pennsylvania mentioned the rights of criminal defendants to writs of error to the supreme court, but none mentioned any such right in the state. It stated in that regard that “[a] view of the statutes reveals the purpose to secure to defendants or accused persons the right of removal and review, — not to take away any right from the commonwealth.” The court went on to hold that for error in quashing an indictment, arresting judgment after verdict of guilty, and the like, the commonwealth may have a writ of error.
The appellate jurisdiction of this court is derived from § 2, Art. 5, Wyoming Constitution:
“The supreme court shall have general appellate jurisdiction, co-extensive with the state, in both civil and criminal causes * * *
and § 3, Art. 5, Wyoming Constitution:
“ * * * The supreme court shall also have power to issue writs of mandamus, review,® prohibition, habeas corpus, certio-rari, and other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. * * * ”
*375Section 1, Art. 2, Wyoming Constitution provides:
“The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”
I seriously question that the legislature has the authority to restrict our “complete” appellate jurisdiction to hear appeals taken by the State in proper cases if in fact the bill of exceptions procedure does that. There is no constitutional prohibition against the State taking an appeal in a criminal case as long as it is to an issue which would not place the defendant in jeopardy for a second time. Section 11, Art. 1, Wyoming Constitution, supra. When a statute and the constitution collide, the constitution prevails.
We can, and should, avoid the constitutional issue of the legislature’s authority to do so if we can reasonably interpret the statute in such a way that it is not viewed as unconstitutional. Schoeller v. Board of County Commissioners of County of Park, Wyo., 568 P.2d 869 (1977). We can do that here by holding the design of §§ 7-12-102 through 7-12-105 to be applicable only in those cases where the defendant has been placed in jeopardy, and appeals can be taken by the State in all other cases. In other cases the State may appeal within the spirit of § 11, Art. 1, Wyoming Constitution, supra.
A somewhat similar approach was made in Prosecuting Attorney v. Judge of Recorder’s Court, 59 Mich. 529, 26 N.W. 694 (1886). The prosecuting attorney in that case applied to the Michigan Supreme Court for a writ of mandamus to compel the trial judge to proceed to trial on indictments for bribery which the judge had quashed for want of jurisdiction. The supreme court noted that under the Michigan Constitution it has “general superintending control over all inferior courts, with power to issue all the various classes of original and remedial writs, including writs of error, mandamus, procedendo, etc.” The court observed that,
“ * * * Under the common law and under our constitution no writ of error or other proceeding lies on behalf of the public to review a judgment of acquittal in a criminal case, as no one can be twice put in jeopardy; but there is no rule of law to prevent the review of proceedings which have not gone to a trial. It is very well settled that a decision quashing an indictment may be reviewed. * * * ” 26 N.W. at 695.
The court concluded that it could have considered the ease on either writ of error or mandamus but preferred mandamus because of the lesser delay in setting aside the order, thus permitting an earlier trial of the improperly quashed indictment. Michigan, some forty years later, adopted a statute specifically authorizing the State to appeal in such cases, People v. Weiden, 239 Mich. 169, 214 N.W. 120 (1927), but in the meantime the 1886 case was the law of the state.
The Idaho Supreme Court has been confronted with a similar problem as to appeals by the State. In State v. Lewis, 96 Idaho 743, 536 P.2d 738 (1975), an appeal was taken by the State from an order not listed in a statute “authorizing” appeals by the State. The question became whether the statute exclusively defined the authority of the Idaho Supreme Court in such cases. The court held that it did not and that its appellate jurisdiction was governed by the State constitution, providing that
“ ‘[t]he Supreme Court shall have jurisdiction to review, upon appeal, any decision of the district courts * *
“ * * * So long as we do not order a disposition of the case that subjects the defendant to being twice put in jeopardy for the same offense, our holding is in conformity with the Constitutions of Idaho and of the United States and we are exercising powers that have been given to this Court by the Constitution of Idaho and which cannot be withheld by the legislature. ‘The legislature shall have *376no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it * * *.’ Idaho Constitution, Art. 5, § 13. * * * ” 536 P.2d at 741-742.
The Idaho court thereupon proceeded to overrule and set aside other cases in conflict which had held the statute to be exclusive and stood on its plenary right of review.
My concern is not so much the rather minor case we have before us, but the major crimes of homicide, other crimes of violence, serious larcenies, drug-related offenses, and heavy frauds. It is shocking to me that the State should be foreclosed from appealing the dismissal of indictments or informations which may have been improvidently set aside. I am also concerned about the instances where a trial judge may have, in a pretrial proceeding, suppressed evidence necessary to the State in proceeding with the prosecution, or because of a holding that the statute under which the State was going ahead was unconstitutional, or even the post-trial situation of an illegal sentence which does not raise a jeopardy question, which rulings may also have been ill-founded.
I would have pointed out in this ease that a final order of the district court based upon a motion by the defendant or upon the court’s own motion dismissing an indictment or information under the provisions of Rule 16, W.R.Cr.P., for insufficiency is ap-pealable by the State. Like motions with orders of dismissal in courts of limited jurisdictions, Rule 8, W.R.Cr.P.J.C. and Rule 11, W.R.Cr.P.C.C., should also be appealable to district courts by the State. I would set aside any decision of this court holding to the contrary.
I would also point out in this case that the State, if that is the desire of the prosecutor, may file a new complaint in the case now before us, in that the defendant has never been in jeopardy.
. See Annot., 92 A.L.R. 1137 “Right of prosecution to review of decision quashing or dismissing indictment or information, or sustaining demurrer thereto.” My examination of the cases in this annotation and in the Later Case Service leads me to believe that practically every state has a specific statute authorizing the State to appeal from an order or judgment dismissing an information or indictment. That would seem to be the only reason for the expression that there must be a statute — a most *373frail rationale. The United States has had such a statute ever since 1907, 18 U.S.C. § 3731:
“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
“An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [s>c] suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
“The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.
“Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be released in accordance with chapter 207 of this title.
“The provisions of this section shall be liberally construed to effectuate its purposes.”
What the presence of such statutes says to me is that the nationwide policy is that the State should be permitted to appeal in the absence of double jeopardy. I am not convinced there must be a statute. The real fact is that there are such statutes, so there is a misconception that there is such a requirement. My view is that the constitution of this state gives this court authority to entertain an appeal by the State, as I shall later develop.
. A writ of review is any form of process issuing from an appellate court and intended to bring up for review the record or decision of the court below. Black’s Law Dictionary (5th ed. 1979).