(dissenting).
I concur in the dissent of Judge Knud-son.
The matter of certain communications being privileged against disclosure by a witness is a rule of evidence based on public policy declared by statute. In the absence of statute, the general rule is that there is no privilege. 97 C.J.S. Witnesses § 252.
Subsection 3 of Section 31-01-06, N.D. C.C., as originally enacted, was construed in Auld v. Cathro, 20 N.D. 461, 128 N.W. 1025, 32 L.R.A.,N.S., 71, to provide that a physician cannot testify as to the mental capacity of a testator if his opinion is formed solely from information given while treating the testator professionally. Several subsequent court opinions cited in Judge Knudson’s dissent have followed the rule established in that case.
*857In 1965 the Legislature amended subsec-. tion 3 but retained and readopted the exact language used in the original act relative to the privilege, with like context, but broadened the privilege relationship to include any communication made to the physician in' the course of professional employment.
In construing amendments to statutes the court takes judicial notice of the history of the original Act as well as the amendment, and it must presume that the Legislature has, at all times, been aware of the history of the terms used in the original Act which are repeated in the amendment. Gimble v. Montana-Dakota Utilities Co., 77 N.D. 581, 44 N.W.2d 198.
Where a statute which has been construed by a court of last resort is re-enacted in the same, or substantially the same, terms, the Legislature is presumed to have been familiar with the construction and to have adopted the construction as a part of the law, unless a contrary intent clearly appears. State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849; Lapland v. Stearns, 79 N.D. 62, 54 N.W.2d 748.
‘‘Judicial and executive construction of amended act. In arriving at the legislative intent, the language of an amendment must be construed in the light of previous decisions by courts of last resort construing the original act, it being presumed that the legislature when adopting the amendment had in mind such judicial construction; and the construction placed on the language of the original act must be adhered to after an amendment thereof which does not in any way change the particular language.” 82 C. J.S. Statutes § 384, page 900.
No intent appears from the language of the amendment in 1965 to establish a rule different from that announced in Auld v. Cathro, supra.
When the Legislature amended and reenacted subsection 3 and readopted the identical language used in the original Act, which language had been construed by this court in Auld v. Cathro, supra, it adopted the construction given it by the court and it became a part of the legislative Act as a clear expression of legislative intent. Therefore, if we reverse Auld v. Cathro, supra, we are, in effect, amending subsection 3 as amended by the Legislature in 1965.
For the reasons aforesaid, it is my opinion the majority have not only overruled Auld v. Cathro, supra, but have amended the statute. This is a usurpation of a purely legislative power and contrary to the constitutional provisions distributing the powers of government among the three departments, the legislative, executive and judicial. Courts cannot legislate. It is the function of the courts to, interpret law and not to make law.