(dissenting).
I am constrained to dissent.
All statutory references are to Utah Code Ann., 1953, unless otherwise indicated.
Art. VIII, Sec. 28, Constitution of Utah, adopted at the general election November 5, 1968, and effective upon its adoption, states, in relevant part: “The Legislature may provide uniform standards for mandatory retirement ... of judges from office . . . ”
Sec. 49-7-1.1, effective May 13,1969, and Sec. 49-7a-39, effective July 1, 1971, are recited in the per curiam opinion. The only differences between these two sections are substitutions of the phrases “on May 13, 1969” for “the effective date of this act”; “during the term he was serving on May 13, 1969” for “during his present term”; and finally “present term” for “such term.”
Sec. 68-3-6 states:
The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.
And the rule stated in this statute is expressed more fully in 73 Am.Jur.2d, Statutes, Sec. 391:
Where a statute is repealed by a new statute which relates to the same subject matter, and which re-enacts substantially *950the provisions of the earlier statute, and the repeal and re-enactment occur simultaneously, the provisions of the original statute which are re-enacted in the new statute are not interrupted in their operation of the so-called repeal; they are regarded as having been continuously in force from the date they were originally enacted. Thus, it has been said that the simultaneous repeal and re-enactment of substantially the same statutory provision is to be construed, not as a true repeal, but as an affirmation and continuation of the original provisions. All rights and interests arising under the original statute are therefore preserved; by the same token, liabilities which have arisen under a statute are not affected by its repeal and re-enactment.1
Because of Sec. 68-3-6, ante, the other cited authorities, and my reasons given infra, I believe that Sec. 49-7-1.1 (the 1969 statute) and Sec. 49-7a-39 (the 1971 statute) form a continuum, not separate laws, and that the 1971 statute is “an affirmation and continuation of the original provision,” i. e., the 1969 statute. The substitutions in the 1971 statute were adopted, I believe, to eliminate any doubt concerning the Legislature’s wanting to affirm the prior statute by the new one.. Otherwise, references noted ante in the 1971 statute of “May 13, 1969” would be meaningless.
Further, the insertion of this date of May 13, 1969, twice in the 1971 statute is not vitiated by the provision in Sec. 49-7a-37 that:
Provisions of this act shall not be applied retroactively unless specifically so provided.
It rather re-enforces the argument that affirmation — not abrogation — was legislatively intended in this matter because the insertion of this date is a specific provision that retroactivity — and hence, affirmation— should obtain with respect to ages of mandatory retirement, notwithstanding the usual usage of the word “repeal” by the Legislature when it terminated the old Title 49, Chapter 7 (Utah Judges’ Retirement Act), of which the 1969 statute was a part, prior to re-enacting a new Title 49, Chapter 7.
The use of the word “repeal” — in the context herein described — in no way manifests a legislative intent to use that term as a true repeal. But even, arguendo, if that were the intent “. . .a declaration by the legislature that it (a statute) has been repealed is merely a legislative opinion on a judicial question and is not binding on the courts . . . ”2 The re-enactment in this matter, I urge, “. . .is considered a reaffirmance of the old law, and a neutralization of the repeal . . . ”3
I submit that “uniform standards for mandatory retirement” of judges, Art. VIII, Sec. 28, Constitution of Utah, ante, will be realized only if efficacy is given to the date of May 13, 1969, as the pivotal beginning, beyond which sitting judges can serve out their term of office, where the issue of mandatory retirement is pertinent, only if they have reached the age of mandatory retirement on that date or will do so during the term they were serving on that date.
It is important to note that the 1969 and 1971 statutes clearly state the ages that judges must retire. Matters discussed herein refer primarily to exceptions to that general rule and, because of my analysis and reasons, I feel the defendant is not within the scope of those exceptions.
I have in this dissent stated what I perceive the law to be concerning this matter according to my official view, but, of course, I do not wish these comments to be construed as a diminishment of my personal belief that Mr. Justice J. Allan Crockett is, and will continue to be a distinguished jurist.
*951ELLETT, C. J., HALL, J., HENRIOD, Justice Retired, and SWAN, District Judge, participate in the opinion, with WILKINS, J., dissenting as appears hereinabove..See also 77 A.L.R.2d 336; Allied Veterans Council v. Klamath County, Ore., 544 P.2d 190 (1975); King v. Uhlmann, Ariz., 437 P.2d 928 (1969); State v. Webb, Ida., 279 P.2d 634 (1955).
. 77 A.L.R.2d 345 (and authorities cited therein).
. Ibid.