specially concurring.
Because I would affirm the judgment, I concur in the result reached by the majority opinion; however, I disagree with its rewriting of ORS 133.565(3) relating to the execution of the search warrant after 10 p.m.
The separation of powers mandated by our constitution, Or Const, Art III, § l,1 appears to be ignored, or overlooked, by judges more and more frequently. Perhaps judges think they can legislate as well as the legislators, but even if that be true, ability does not equal authority. Neither does the raw power to do so make it right. To the contrary, it emphasizes the need for judicial restraint, because even legislation duly enacted by the legislative assembly is subject to veto by the governor; judicial legislation is not.2
Aside from the constitutional mandate against our rewriting statutes, there are practical considerations militating against it. A court hears only the parties to a given dispute before it; the legislature is a forum for any and all interested parties. The legislative result is typically an accommodation of those interests, a compromise of the views expressed in the open forum; a judicial determination is not.
When judges go off on their own inclinations, we cease to have a government of laws — each judge is free to rewrite a statute in his or her own image. That is a dangerous process to tolerate; unfortunately, it is only when one disagrees with the result a given opinion reaches by rewriting a statute that one becomes annoyed — an *801intellectual application of the pain and pleasure theory. Historically, rules have evolved, largely of judicial origin, designed to avoid a court’s invasion of the legislative domain. They are called, appropriately, rules of statutory construction, and, when properly applied, have the effect of limiting a particular judge’s inclination to do what he thinks the legislature should have done. They make the judicial function more objective and less subjective.
The keystone of those rules is that if a statute is clear and unambiguous, courts must apply it as written without resort to extrinsic evidence to give it a different meaning. A statutory recognition of this general rule is contained in ORS 174.010:
"In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”
Very recently, the Supreme Court in Whipple v. Howser, 291 Or 475, 632 P2d 782 (1981), emphasized the importance of that fundamental rule. The court pointed out that the starting point in every case is the language of the statute; it went on to state:
"More specifically, in State ex rel Cox v. Wilson, 277 Or 747, 562 P2d 172 (1977), we held (at 750) that:
"' "There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.”’ Quoting United States v. American Trucker’s Ass’ns, 310 US 534, 542-44, 60 S Ct 1059, 84 L Ed 1345 (1940).”
"As also held in Lane County v. Heintz Const. Co. et al, 228 Or 152, 157, 364 P2d 627 (1960), quoting with approval from Barrett v. Union Bridge Co., 117 Or 566, 570, 245 P 308, 45 ALR 527 (1926):
"'Section 715, Or. L. [now ORS 174.010], directs that the courts in the construction of statutes, are "simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, nor to omit what has been inserted. ” We ought never to import into a statute words which are not to be found there, unless from a careful consideration of the entire statute it be ascertained that to import such words is necessary to give *802effect to the obvious andplain intention and meaning of the legislature. Under the directions of the statute last referred to, we are not at liberty to give effect to any supposed intention or meaning in the legislature, unless the words to be imported into the statute are, in substance at least, contained in it.’” (Emphasis in original.)
It is not the proper function of the court "to make its own policy judgments * * 291 Or at 480. Not infrequently the meaning of a statute is not clear; but even then we are not free to give it the meaning we prefer — many rules of construction come into play to assure that judges do not usurp the legislative function. Those rules help to assure the integrity of the constitutional separation of powers. Notwithstanding the function of those rules, they are not a precise method of attempting to ascertain legislative intent, and resort to them ought to be avoided unless the language of the statute itself requires extrinsic aids. See Whipple v. Howser, supra, 291 Or at 483.
The statute involved here makes the point. It would be difficult to make it more clear or less ambiguous. ORS 133.565(3) provides:
"(3) Except as otherwise provided herein, the search warrant shall be executed between the hours of 7 a.m. and 10 p.m. and within five days from the date of issuance. The judge issuing the warrant may, however, by indorsement upon the face of the warrant, authorize its execution at any time of the day or night and may further authorize its execution after five days, but not more than 10 days from date of issuance.” (Emphasis supplied.)
Prior to the Criminal Code Revision, of which the quoted section is a part, a search warrant could be executed during either the daytime or nighttime. As revised, the statute requires the warrant to be executed between the hours of 7 a.m. and 10 p.m. unless the judge issuing the warrant, by indorsement upon the face of the warrant, authorizes execution at any time of the day or night. That is all that the statute requires, and that was done in this case.
Both the United States and Oregon constitutions3 require only that there be probable cause shown to the *803issuing magistrate prior to the issuance of the warrant; it does not require that the warrant be executed prior to 10 p.m. The legislature, of course, may make the requirements more stringent than constitutionally required, and has done so here to the extent that the statute requires the issuing magistrate to indorse upon the face of the warrant authority to execute the warrant after 10 p.m.
Because the statute is clear and unambiguous, there is no occasion to look to extrinsic evidence or aids in construction, including the legislative history, to resolve an ambiguity; there is none. The majority attempt to force an ambiguity by stating that the statute does not say under what circumstances a warrant may be executed after 10 p.m. But it does: when the issuing magistrate makes the required indorsement on the face of the warrant. It ought to at least occur to us that the legislature meant exactly what it said.
Even if we indulge the majority’s (and the dissent’s) compulsion to seek the legislature’s "true intent” by reviewing the legislative history, that review does not support either opinion’s view of what the legislature intended. In fact, it demonstrates rather vividly that the Criminal Law Revision Commission’s preliminary draft of this subsection specifically required a special finding by the judge justifying a nighttime search. That draft read as follows:
"(3) Time of execution. Except upon finding as hereinafter provided, the search warrant shall provide that it be executed during the daytime, and within five days from the date of issuance. Upon a finding by the judge of probable cause to believe that the place to be searched is not readily accessible, or that the objects to be seized are in danger of imminent removal, or that the warrant can only be safely or successfully executed at nighttime, or under circumstances the occurrence of which is difficult to predict with accuracy, the judge may, by appropriate provision in the warrant, authorize its execution at other times but not more than 10 days from the date of issuance.”
See Criminal Law Revision Commission 1969, Preliminary Draft No. 3, § 6. The original bill as introduced in the Senate did not contain the requirement of a specific finding. That language of the bill is the same as the enacted statute. See Or Laws 1973, ch 836, § 85.
*804It is true that there is no indication why the Commission changed the proposed wording, and thus the requirements, of the statute. The fact is, however, that it did change it to eliminate the requirement of making a record stating the reasons for authorizing a search after 10 p.m. Accordingly, if anything is be gleaned from the legislative history, which I do not believe to be a proper inquiry here, it is that requirements along the line of either the majority or the dissent were specifically rejected, albeit we do not know for what reason.
The majority contends that ORS 133.565(3) would be meaningless if we applied the statute as written. That is an overstatment: the issuing magistrate must specifically authorize a search after 10 p.m., which authorization was not necessary before the revised code was adopted. That may not be much, but it is all the legislature required and is more than was required before the amendment. The majority also state that the statutory limitation would be one of form only, rather than of substance, if applied as written. Accordingly, they say, the statute means that the magistrate may authorize a search after 10 p.m. "only on the basis of facts presented to him during the warrant application process which demonstrate the necessity of a nighttime search.” 53 Or App at 793. They go on to conclude that there were no such facts presented here,4 and therefore the search was invalid.
That conclusion sounds like substance. But the majority’s bottom line is, "So what?” — the evidence is admissible notwithstanding the invalidity of the search and seizure. Some substance!
If I felt the need, or that we had the authority, to rewrite the statute, I would vote for an amendment which would require a sworn, written pre-authorization record. I think that amendment would make a better statute, albeit a different one, from what the legislature clearly provided.5
*805I would hold that the statute means exactly what it clearly says: it is sufficient to authorize the warrant’s execution after 10 p.m. if the warrant contains on its face the indorsement of the issuing magistrate authorizing the nighttime search. Therefore, I would affirm.
Warden, J., and Van Hoomissen, J., join in this opinion.Or Const., Art III, § 1 provides:
"The powers of the Government shall be divided into three seperate [sfc] departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”
Or Const., Art IV, § 1(1) provides:
"(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.”
Of course, the Supreme Court has an analogous power over decisions of this court, but there is nothing to stem the exercise of power by that court other than the legislature’s authority to enact new legislation to undo what the court has done.
Fourth Amendment to the United States Constitution; Oregon Constitution, Article I, section 9.
It is not clear how the majority would review the pre-warrant justification for the nighttime search, because they do not appear to require a record of the basis for a request. Presumably, an ex post facto determination would be permissible, depending on what facts the state may adduce after the fact to justify the special authority.
1 could probably be persuaded to go along with the Criminal Law Revision Commission’s proposed draft, quoted earlier, depending on what the interested *805parties had to say during hearings in the House, if I were a Representative, or in the Senate, if I were a Senator. As Governor, I would not veto either proposal, if enacted.