Further Opinion of
Justice ELLETT:My concurring colleagues think that the opinion of the Court as above set out is sufficient for the decision of the issues of this case. However, it is my judgment that such is not the case and that it is proper and would be helpful for me to set forth in this “Further Opinion” my views on a matter which was raised in the complaint but not determined in the opinion. (My concurring colleagues do not join in this further opinion.)
Paragraph 1 of the prayer of the complaint is as follows:
1. Adjudging and declaring that said provisions of Section 5(1) of Senate Bill 10, 38th Legislature, relating to the appointive powers of defendants, are unconstitutional, void and of no force or effect for the reasons set forth above, and that plaintiff Calvin L. Rampton, as Governor of the State of Utah, has the exclusive power, subj ect to consent of the Senate, to appoint members of the State Board of Higher Education, created by Senate Bill 10.
In my opinion we have only done half of our work by the above decision. We have said that the Act is void as it relates to the appointive power of the defendants, but we have not yet said that the plaintiff has the power to appoint — subject to the consent of the senate- — the six members improperly appointed by the defendants Barlow and Pace.
In fact, the concurring and dissenting opinions tend to cast grave doubts upon the validity of the entire act, and I want to make my position clear.
*392This is a case of partial invalidity of a statute, and the law in that regard is set out in 82 C.J.S. Statutes § 92 as follows:
A statute may be in part valid or constitutional and in part invalid or unconstitutional; and the language of the unconstitutional part may be referred to in order to clarify and sustain the part that is constitutional. If the parts are wholly independent of, or separable from, each other, the part which is valid or constitutional may stand while that which is invalid or unconstitutional will be rejected, provided the valid part is complete in itself and capable of being executed or enforced and of being given legal effect, and is fully operative as a law, provided such valid part fairly answers the object or purpose cf the passage of the law, and provided the deletion of the unconstitutional part will not make the statute meaningless, impair its efficacy, destroy its main and essential features, or substantially affect its other features and purposes.
This rule applies even though the valid and the invalid parts are in the same paragraph, sentence, or section of the act.
On the other hand, the entire statute will be held void if the parts are inseparably connected with each other, or are so connected, or dependent on, each other in subject matter, meaning, or purpose that the good cannot remain without the bad, if the invalid provisions are integral parts of the act or enter so entirely into its scope and design that it would be impossible to maintain it without those provisions, or if the entire act is predicated on the invalid sections.
It is my opinion that our legislature was sincere when it stated the intent with which Chapter 138 L.U.1969 was enacted. That intent is stated in Sec. 2 of the Act, which reads:
It is the purpose of this act to afford the people of the State of Utah a more efficient and more economical system of high quality public higher education through centralized direction and master planning providing for avoidance of unnecessary duplication within the system, for the systematic and orderly development of facilities and quality programs, for coordination and consolidation, and for systematic development of the role or roles of each institution within the system of higher education consistent with the historical heritage and tradition of each institution.
The purpose of this act is to vest in a single board the power to govern the state system of higher education and within the board’s discretion to delegate certain powers to institutional councils.
To make sure that the purposes of the Act would not be thwarted by the decisions of the courts, the legislature by Sec. 27 *393enacted a savings clause in the following language:
If any provision of this act, or the application of any provisions to any person or circumstance, is held invalid, the remainder of the act shall not be affected thereby.
It thus seems obvious to me that the purpose of attempting to reserve unto the presiding officers of the two houses the right to appoint three members each to the State Board of Higher Education was not a motivating factor in passing the statute. To impute to the legislature such a motive is to accuse them of being willing to forego legislation of tremendous importance to the people of this state as set out in Sec. 2, supra, unless they can do an unconstitutional act to wit: participate in a constitutionally executive function of the government. I cannot believe that the honorable members of our legislature would be so crass and politically motivated as to want us to hold the entire Act unconstitutional unless the appointments are to be made as specified in the act, and this is especially true where the Act provides that no more than eight of the fifteen members can belong to the same political party. Those honorable members specifically said that if any of the provisions of the Act as it applies to any person or circumstance be held invalid, that the remainder of the Act shall not be affected thereby. I- am, therefore, led to the unalterable conclusion that the legislature intended to have a State Board of Higher Education consisting of fifteen members and that if the provision for the appointment of any member thereto be held invalid that Act would otherwise stand and that the appointment should be made according to the laws of this state. It, therefore, follows that nine of the fifteen members of the Board have been properly appointed and that there are six vacancies the appointment to which has not been lawfully made. Therefore, those six vacancies should be filled by appointment as provided in Article VII, Sec. 10 of the Constitution of Utah, to wit: by the Governor, by and with the consent of the senate.
This to me is a reasonable interpretation to' be placed upon the meaning of the statute, and it is one which gives life to the entire Act. Any other interpretation will cast doubt upon the validity of the Act and perhaps render it entirely impotent and of no force or effect.
We are not asked by either party to hold the entire Act unconstitutional, and we should not do so indirectly or by implication. Our duty is to hold it constitutional if by any reasonable construction we can do so. Gubler v. Utah State Teacher’s Retirement Board, 113 Utah 188, 192 P.2d 580, 2 A.L.R.2d 1022 (1948); Snow v. Keddington, 113 Utah 325, 195 P.2d 234 (1948).