(dissenting).
While dissenting as to the construction of the subject legislation, I am not adverse to retirement programs generally. I simply cannot go along with the majority’s conclusion that such legislation empowers severance at 70 of the tenure of a judge whose capabilities, according thereto, are of such sterling quality. Some of our best legal talent, representing this Judge, do not share the easy and simple solution of the majority. I believe the simple language of the amendment does not warrant any delegation of power so comprehensive as that sanctioned by this decision, by one branch of government over another, nor does it merit the cacophonic interpretation of something that isn’t there.
This case is somewhat unique, where three of the five members of this court, for different, but legitimate reasons deemed participation herein inadvisable. Had they been qualified to act, this case well may have gone, guesswise, the other way. However, my learned colleagues of the District Court have given of their time and talents unitedly in the conclusion of his case. If their concurrence would have been the *292same had the legislature set the retirement date at 45, the judicial tenure of each would have been very shortlived, demanding his return to private practice that may not be there any more, which points up the possibilities here.
This case also points up basic problems in our tri-partite governmental system, checks and balances anent thereto and the philosophy of independence of the three branches of government we learned about at an early age, a part of which this case destroys.
Personally I suppose I should care less about this decision, since it will affect me not at all tenure-wise or otherwise, — perhaps the only one here so positioned. I would have preferred a more discerning and critical examination of the clear language of the amendment that I believe justified, and correctly so, a certain degree of protection for the members of the Bar .and the judiciary against their own knockout drops and their disposition to become beholden to the legislative and executive branches. Whittling away the independence' of the judiciary with the knife of this decision, in my opinion, downgrades its members, waters down its power and dignity, and debilitates it to the point of foreseeable impotence. I hope the scriveners of it will not be its regretters.
The main opinion indulges some disarming peripatetics in an ipse dixit interpretation of the amendment that has no minikin referring to any legislative authority to fix the age of retirement any more than it does to the price of butter. Had its framers intended it (which mayhap they did with tongue in cheek) they could have put 70 therein and this case then may not have been necessary (in which event I think il would have been defeated), or they could have delegated that chore of date fixing to the legislature (in which event I think its defeat also would have been accomplished). The amendment did neither, which to me is highly significant. With an assumptive conclusion this court has elected itself as amanuensis in recording that the amendment said something that it said not at all. The opinion here reads into that amendment the lilting but wilting gratuity that “In the society of today mandatory retirement has become a way of life.” If there be any genuine conviction in that pronouncement, this court should hasten to recommend to the legislature that it pursue the same course to enact legislation prohibiting any elected public official from holding office or running for election who has attained the age of, say, 50, 60 or 70, whichever it chooses, for reasons of senility born of legislative fiat.
The quotation mentioned above apparently paraphrases Point III of defendant’s brief, that “When the voters * * * approved the constitutional amendment, they believed, that it was a provision to manda-torily retire judges from office upon the attainment of a given age.” What a falja-*293cious tribute to the omniscience of the voters in analyzing an amendment about which the lawyers in this case, and the judges in this case themselves cannot agree, in which amendment nothing was said about age, much less the attainment of it! The true electorate analysis seems to have been found, not in the rhetoric or assumptions of counsel for Mr. Miller, but in the whopping 80% majority vote cast for Judge Nelson in the Fourth Jttdicial District,' — a specific, practical and emphatic negation by the voters of what defendant’s counsel said they intended. Their vote seems to be the most living testimonial to the effect that neither did they read the amendment the way the legislature did, nor the way this court now has interpreted it, but that on the contrary they did not intend that the legislature should be allowed to eliminate a highly competent choice of the constituency in his community, and did not intend that this court or anyone else should tell them what was in the recesses of their minds, and no reason is apparent that this was not reflective of the attitude of voters elsewhere.
I think the main opinion’s dogma about retirement being a way of life is glued to the roof of its mouth, irrespective of the main opinion’s remark that it is not as “sticky” as supposed. If such philosophy be infallible, it should find its bourn in the legislative halls, the Governor’s Office, the Treasurer’s Office, the Auditor’s'Of fice, the Secretary of State’s Office and the Attorney General’s Office, — in either of which, under the constitution and laws of this State, octogenarians or nonagenarians, — who may be as senile, I think as judges, — are perfectly free to impose their senility on the body politic, — but not judges, the only elected, or presumably elected public officials singled out for pasteurization or pasturization. Had the decision in this case been the law of the land a few years back, the gems of wisdom and truth' of Oliver Wendell Holmes never would have found their way to the galley proofs of history, and the international impact of Roscoe Pound on the Bench and Bar would have been lost to history in the superficial printer’s ink pronouncing an artificial and unrealistic senility by legislative fiat.
The amendment which 49-7-1.1 is claimed to implement, in clear, understandable English, without any reference of any kind with respect to age of retirement, interdicts and cautions that “Legislation implementing this section shall be applicable only to conduct’’ I repeat, “applicable only to conduct.”
The main opinion, with the suavity of a sequestered brook, as to the urgence that this language means what it says, simply but with little substance or documentation, says “There is no merit to such contention.” Its reason: “Mandatory retirement is not to be equated with removal for misconduct.” No one said otherwise. ’ It is not a question of equating anything with anything else,— • *294it is a matter of interpreting clear, unambiguous, meaningful and understandable English, and there is no justification for what I think is a circumlocutious rape of the body of English language.
By no stretch of one’s imagination can attaining the age of 70 be construed to be the conduct of a judge because of that fact. All this age bit has to do with conduct, relates, if at all, back to the good conduct or misconduct of a couple of people three and a half score years before, with the assistance of a cell or two. The opinion’s reasoning is not warranted lexically, and appears to be a gratuitous non sequitur.
The amendment’s other language negates the gist of this decision. It provides for a review by this court “as to both law and facts.” If the main opinion will not tamper with that provision, and refrain from saying that there is no merit to the urgence that it means what it says, it would seem that this case becomes infected with some sort of juridical ridiculosity, because if the age of the judge is the only basis for retirement, and that fact is reviewable by this court, it would seem to be somewhat puerile for five grown men to don black robes and call for an “Oyez,” only to appear quite silly in examining a birth certificate or one’s varicose veins. Besides, the plain language leaves the entire matter of mandatory retirement up to the Supreme Court, not the Legislature. If the deserved praise so justly heaped upon Judge Nelson in the main opinion is not something other than faint, this court should sustain him in his election based on those laudatory facts, stipulated to, by both sides of this case and by all their lawyers, based on the law which I think is so clearly expressed, and upon the facts as provided for review on Sec. 28, Art. VIII, Constitution of Utah. That praise lost its resonance later in the main opinion by a lengthy lift-out of an opinion written by Judge Nelson which seems to serve no useful purpose save to discredit the position he takes in this case.
I appreciate profoundly the kudo for loquacity bestowed upon me by my learned colleague of the majority, but must remark that this opinion loquaciouswise, is comparable and as unsurpassed as this dissent, and quite as rattly, — so I return it to him for placement wherever he is wont to place kudoes.
Reference was made to 49-7-8, U.C.A. 1953 (1969 Pocket Supp. 190) in support of the main opinion. In passing I simply comments that I have gone on record in an April 28, 1970, minute entry, as questioning that section’s constitutionality after Rampton v. Barlow, 23 Utah 2d 383, 464 P.2d 378 (1970).
The author of the main opinion takes me to task, and perhaps rightly so, for language used that seemed offensive. I have deleted or rephrased a few sequences here and there, but feel so strongly about my position that I cannot hope to please those whose *295views are antithetical with the most soft-spoken of words. I am sure, however, that my friend is dead wrong and quite as sarcastic when he says that I failed to consider constitutional principles of law. That is the unkindest cut of all. What I failed to consider was the constitutional sensibilities of my worthy opponent in this quite debatable debate.
CALLISTER, C. J., concurs in the views expressed by Mr. Justice HENRIOD also. TUCKETT, ELLETT and CROCKETT, JJ., having disqualified themselves, do not participate herein.