(dissenting). My views respecting this now really contagious business of judicial amendment of statutes, effected by retroactively effective overrulements of long standing, steadily accepted and unanimously mature interpretations and applications thereof, came to extended spread upon our record when Burns v. Van Laan, 367 Mich 485; Harris v. City of Detroit, 367 Mich 526; and Halfacre v. Paragon Bridge & Steel Co., 368 Mich 366, were handed down in 1962.1
Since then the key vote of restraint, provided by Chief Justice Carr in matters of proposed overrulement, is no longer here. In the resultant circumstances it is—for the time being—useless to write much more against what I look upon as a judicial disease; a disease which—if not quickly cured— is bound to destroy the only substance which sustains our judicial system. That substance is public *541confidence in the intellectually steadfast devotion of judges to law as it is written; distinguished from law judges want ordained.
That this Court has legislated, boldly, retroactively and steadily since Chief Justice Carr departed, just as the Court so grievously legislated when the present criticized Hajduh Case was signed and released, is neither doubted nor denied. It cannot be denied now. The 375th and 376th Michigan Reports are at large and beyond recall. Such judicial legislation is a naked fact confronting every lawyer, and now most citizens, as all of us go about the necessarily continuous effort to carry on the affairs of society according to the principle of government by law rather than government by men, the edicts of whom are now being stamped nunc pro tunc.
The time has come for all lawyers and judges of Michigan to resign themselves to this real, if temporal, usurpation of legislative power. Too, the minority seated here must philosophically accept the situation until our personnel is changed by those inexorables all lifetime seekers of public office have ever feared and always have known.
Agreeing only with what I concede to be rightful damnation of the Court’s 32-year-old error (Hajduh, 268 Mich 220), and viewing that error as correspondingly identical with the error considered in Half-acre,3 I am moved to stand in favor of legislative correction of the error of Hajduh. If that is not to be, then certainly I would stand for wholly prospective overrulement of Hajduh and the subsequent cases that are applicatory thereof (the latest being simultaneously and unanimously decided Babcoch *542v. General Motors Corporation, 340 Mich 58 and Malleis v. Employment Security Commission, 340 Mich 78). For reasons see Linkletter v. Walker, 381 US 618 (85 S Ct 1731, 14 L ed 2d 601), Tehan v. United States, ex rel. Shott, 382 US 406 (86 S Ct 459, 15 L ed 2d 453), and the new text of American Jurisprudence (20 Am Jur 2d, Courts, § 234, p 562, “Change in construction of statute”). Nunc pro tunc law, enacted judicially by the process of overruling unanimous and mature decisions dealing with standing statutes, is consummately indefensible. That is why no member of our Court attempts to defend the practice as he proceeds with it.
One outvoted re the above must simply bide the passage of time, hopeful that this hell-for-breakfast enterprise of now-for-then legislation by the Court is transitory and that it will not—because really it cannot—go on much longer. Even a'legislature could not, consistent with constitutional guaranties, do what the Court has continued to do in 1965, and does now in 1966, that is, destroy defensive rights of substance which, by law, had become vested long-before the date of the legislative attempt. Too, and no matter what branch of government tries it, the result is palpably invidious discrimination, effected in favor of those who seek retrospective overthrow of laws others of their class have obeyed.
At one time students and citizens, lay and professional, were taught that everyone is presumed to know the law, and hence is duty bound to act in accord therewith. But how may even skilled lawyers, and correspondingly skilled subordinate court judges, “know the law” when they are taught that the law in the books is not law at all, unless upon litigatory test a bare majority of this very ordinary Supreme Court happens to like it? Former Justice Voelker’s latest epigram comes to mind at this *543point. I quote it from “Laughing Whitefish”, p 239 (McGraw-Hill 1965):
“Clapping a black nightshirt on a lawyer and packing him off to the state capital and thenceforth calling him “Mister Justice” makes him no less fallible and uncertain than he was when he was back home drawing five-dollar wills.”
I vote to affirm, without an award of costs.
Since the foregoing opinion was submitted to other members of the Court, Justice Souris has written 14 additional pages for the case; all devoted to the Court’s most disputatious topic, that is, the “now for then” overrulement of unanimous and long standing decisions which have construed and applied legislatively unamended statutes. Beginning riposte, I shall presume that the reader of this postlude has read the 14 pages; also that he perceives clearly that our continuant debate turns upon the specificity of that respect which is due to the constitutional injunction against usurpation, by one branch of the government, of the powers belonging properly to another (Const 1963, art 3, §2).
The 14 pages, boiled down to actual fact, are aimed at my unconditional indorsement of two opinions Justice Voelker wrote prior to Justice Souris’ appointment to the Court. I shall come to them, noting with a modicum of satisfaction that the stinging challenge, delivered in the foregoing opinion, has finally brought this debate out into the open; on our public record distinguished from the elaustrally safe smugness of the Court’s conference room. The challenge, repeated here as and for a textual start, is this: “That is why no member of our Court attempts to defend the practice [nunc pro tunc overruling] as he proceeds- with it.”
*544Now really, I would rather have the record made by my pen exhibit my views, the pertinent subject being “legislative acquiescence,” than permit those views to be selectively twisted and turned around by one who, at long last, has been forced to attempt some defense of this mushrooming policy of judicial amendment of standing statutes:4 My Brother should know the record that pen has made, pretty well by now, since he opposed it directly in the 3 pointedly divisive cases to which reference was initially made in the opinion above (Burns, 367 Mich 485; Harris, 367 Mich 526; Halfacre, 368 Mich 366).
Here is that record. It cannot be changed now. Too many thousand Michigan lawyers have it booked on their shelves. {Burns at p 493, handed down September 10, 1962.)
“The whole argument for and against ‘extension of our recent ruling in Montgomery v. Stephan’ adds ..up to this: Some in today’s situation of longtime and steadily unanimous construction of an old statute would ‘extend’ the power of the judiciary to rewrite that statute so that it means what in Staal ' we said it does not mean. Others—the writer being one—would respect the almost conclusive force of the doctrine of ‘legislative acquiescence’ where, as here, such acquiescence is proven by many years of unanimous interpretation; the legislature meanwhile remaining acquiescently compliant.”
(Harris at pp.536 and 537, handed down the same day.)
“This is not a case where, by a nonunanimous and nomnature decision challenged at the bar, a standing statute is shown as having been miscon*545strued and misapplied. An example of that kind of judicial blunder was examined and set right in Park v. Employment Security Commission, 355 Mich 103. Here a 70-and-more-year-old statute, which by its terms created the very right of action this plaintiff pleads, has been construed by a long series of unanimous decisions as denying such right where the pleader is unable to allege and prove a violation of what lawyers have come to know as the ‘2-inch rule.’ The sole question is whether any ‘cogent' cir-. cumstanees’ are disclosed, or may be judicially noticed, which might lead us to depart from that which was settled so many years ago. I perceive none, and so would stand by the general rule which is applicable to stare clecisis in the field of statutory construction distinguished from that of the common law. Such general rule appears in 14 Am Jur, Courts, § 66, pp 287, 288. It was the subject of some little debate in the Park Case, supra.
“Stressed for special emphasis is the fact that we are asked to overrule unanimous cases construing an unamended statute; not a case or line of cases announcing a rule of the common law.”
(Halfacre at pp 381, 382, 384-388 handed down December 4, 1962.)
“This is another case, like recent Burns and Harris, where one who claims under a long-standing statute would have us rewrite that statute so that it’ provide for him exactly what this Court, 30 years ago and consistently since, has said unanimously it does not provide. So comes to public assay the solemnly recorded and wholly united word of this Court, given repeatedly upon oath to lawyers, legislators, and judges, that this statutory proviso of 1927 spells out 2 kinds rather than 1 kind of defense against payment of double compensation to illegally employed minors.” (pp 381, 382.)
“My Brother Souris’ proposal to overrule is too rashly impetuous for me. After all? the doctrine' oí *546legislative reliance upon and acceptance of judicial interpretation has its value and its place. Moreover, there is present today one only of those ‘cogent circumstances’ which, in Sheppard v. Michigan National Bank, 348 Mich 577, 596-603, and Park v. Employment Security Commission, 355 Mich 103, 138-140, 141-151, led this Court to overrule previous interpretative decisions. In today’s instance, unless we are to ignore a constantly employed axiom (that the legislature enacts with the Court’s interpretational decisions in one hand as it writes and votes with the other), we have here most of the more or less conclusive reasons why the doctrine of legislative acceptance should be applied. When a legislature, confronted constantly with unanimous interpretations like Boshaw and its progeny, deliberately reenacts without change such an interpreted statutory proviso, and does so 8 times running over a period of 30 years, it seems to me that any judge who fails to apply the mentioned doctrine wittingly or unwittingly violates the law (see Cardozo, Nature of the Judicial Process, p 129). I at least want no part of a motion to overrule what indeed was bad law but now is anchored in a regularly readopted statutory provision.” (pp 384, 385.)
“With respect to this case of Halfacre there are no previous decisions ‘in turmoil and conflict.’ Instead there are 3 unanimous decisions, upon continued strength of which the legislature presumably has legislated 8 times. Thus and today there is affirmatively more than legislative ‘silence.’ There is frequent legislative action taken in presumptive reliance upon judicial advices long since given with never a dissenting judicial voice. I repeat; never a dissenting judicial voice until these cases of Half-acre and Keller came along.
“As for the Park Case it need only be said, as was said at the time, that the single earlier decision *547(Chrysler Corp. v. Smith, 297 Mich. 438 [135 ALR 900]) was the subject of ‘sharp and unerring dissent.’ It literally forewarned the legislature that when the question came up again it would be due for something more than cozy reaffirmation. The divisive Chrysler Case actually remained in chancery, to engage the sporting phrase, until it arrived for re-examination by a court which of necessity was concerned with the need for unitary national construction of like statutes enacted (by most of the States) as a ‘part of the legislative scheme for unemployment compensation ihduced by the provisions of the social security act of 1935’ (see footnote 2, p 145, Unemployment Compensation Commission of Alaska v. Aragon, 329 US 143 [67 S Ct 245, 91 L ed 136]). Here we are confronted by 3—not just 1 —unanimous decisions, all matured and fitted to each other, which under the rule of Department of Conservation v. Connor bid us accept gracefully what the legislature has accepted.
“If Boshaw alone stood before us, divisive or otherwise, we then might avail ourselves of the principle that ‘one decision construing an act does not approach the dignity of a well settled interpretation’ (United States v. Raynor, 302 US 540, 552 [58 S Ct 353, 82 L ed 413]; quoted and followed in White v. Winchester Country Club, 315 US 32, 40 [62 S Ct 425, 86 L ed 610]). Such, however, is not today’s case. Boshaw, Blanton , and Walker , standing unitedly, constitute ‘the dignity of a well-settled interpretation’ even though all were patently wrong when written, and there we find the difference between the situation faced in Park and that which faces us now. One clearly erroneous interpretation of a statute, attested over unanswerable dissent, has little value as presumptive proof of legislative acceptance thereof. It carries its own flag of independability. Three unanimous decisions.how*548ever, supporting each, other solidly and seemingly accepted for many years by an acquiescent legislature, are quite beyond judicial repudiation when they involve statutes rather than the common law.” (pp 386-388.)
To the above consider People v. Holbrook, 373 Mich 94, 101, into which the following was penned by the writer:
“There is, I fear, an all too easygoing tendency in our midst to overrule long since settled and unanimous but unsatisfactory constructions of standing statutes. Consider Halfacre, supra; also Wallace v. Tripp, 358 Mich 668, 681; Harris v. City of Detroit, 367 Mich 526, 536-539, and now In re Carey, 372 Mich 378, 382.
“I, too, believe that provably errant precedent of statutory construction, especially that which is of recent origin and is opposed by vigorous and portentously predictive dissent, should be overruled. See, for instance, the contribution made by the undersigned to Park v. Employment Security Commission, 355 Mich 103, at 141-151. But, as pointed out in that contribution, stare decisis is the rule, and overrulement is the exception. The exception, to justify its application, calls for something more than contemporaneous disfavor.”
But Justice Souris says, today (ante at p 536) :
“Thus it is said that only one unanimous decision interpretive of a statute followed by ‘legislative ae.q.uiescence’, silent or otherwise, does not inhibit the •Court from later correcting its erroneous interpretation. See Justice Black’s opinion in Halfacre, supra. Although the single-decision exception is ban■died about, I find no rationally consistent explanation even suggested for its validity. Either the legislature is presumed to act with all of our advance sheets in hand or it is not. If it is so presumed to act, its, acquiescence in a statutory interpretation *549announced by us in one decision should be as binding as its acquiescence in an interpretation announced in several decisions.”
So my Brother can find “no rationally consistent explanation even suggested for its validity,” referring as he does above to the “one decision” exception to the general rule of legislative acceptance. His search for such “rationally consistent explanation” hardly could .have been prolonged, and his memory surely is bad. A scant five months after release of Halfacre, Halfacre with the writer’s definite reference to the “one decision” rule (final paragraph quoted above), Justice Souris joined the writer, along with Justices T. M. Kavanagh- and Otis Smith, in the unqualified indorsement of this (Smith v. Lawrence Baking Co., 370 Mich 169, 177, 178; prevailing opinion by Justice T. M. Kavanagh) :
“We do not lightly overrule settled decisions construing any section of a standing statute. Had the Wagner Case represented unanimous views of the Court, we might hesitate resolving to overrule that case since, as Justice Brandéis said so pointedly in Burnet v. Coronado Oil & Gas Co., 285 US 393, 406 (52 S Ct 443, 76 L ed 815):
“ ‘Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.’
Wagner’s dissent, however, simply postponed a final interpretive decision. And even if Wagner’s majority view had been rendered as unanimous, we would not necessarily be bound thereby since ‘one decision construing an act does not approach the dignity of a well-settled interpretation.’ See White v. Winchester Country Club, 315 US 32, 40 (62 S Ct 425, 86 L ed 619), quoting and following United *550States v. Raynor, 302 US 540, 552 (58 S Ct 353, 82 L ed 413).”
Upon reading all of Justice Souris’ comments upon the citations appearing in the 14 pages aforesaid, it will he found that my Brother’s indictment of my record of consistency is founded solely upon my indorsements of Justice Voelker’s opinions of Van Dorpel v. Haven-Busch Co., 350 Mich 135 and Wilson v. Doehler-Jarvis Division of National Lead Company, 358 Mich 510. Now Van Dorpel was a standoff; four of us standing for overrulement of “one decision,” that only. That decision was Curtis v. Hayes Wheel Co., 211 Mich 260. And Wilson overruled “one decision,” that only. That decision was Fowler v. Muskegon County, 340 Mich 522.
To conclude:
It would seem that, by harking back to Smith v. Lawrence Baking Co., we might prosperously resolve our present differences respecting the boundaries of that line, a line I concede is somewhat grayish, which separates pertinently the legislative power from the judicial process. Since the writer along with Justices Souris and Smith indorsed what Justice T. M. Kavanagh wrote into the Smith Case per quotation above, the Court might well consider writing a precedential declaration of redevotion to such quoted doctrine. It is founded on the principle, adopted in Smith from Raynor (302 US 540, 552) and White (315 US 32, 40), that “one decision construing an act does not approach the dignity of a well settled interpretation.”
“This is another case, like recent Burns and Harris, where one who claims under a long standing statute would have us rewrite that •statute so that it provide for him exactly what this Court, 30 years ago and consistently since, has said unanimously it does not provide.” Half acre at pp 381, 382.
In Hajduk, as in Boshaw v. J. J. Newberry Co., 259 Mich 333 (83 ALR 412) (see Half aere at p 382), “the court just hauled off and enacted an amendment of the statute” (the workmen’s compensation law).
See comment with respect to sueh policy, all unceremonious and with full detail, in People v. Holbrook, 373 Mich 94, 101; Currie v. Fiting, 375 Mich 440, 457-488; and Mosier v. Carney, 376 Mich 532, 587-606.