dissenting:
I dissent because in my opinion Chief Judge Foster correctly held in the lower court (1) that the provision of Code, Article 48A, section 245(2) that the trial court on appeal from a legislative action by the State Insurance Commissioner may reverse or modify the Commissioner’s order or decision if it “is not supported by the preponderance of the evidence on consideration of the record as a whole” was unconstitutional and (2) that this provision was not severable so that no part of section 245(2) or any other provision in Article 48A in regard to appeals to the Baltimore City Court could be applied by the trial court.
(1)
Article 8 of the Declaration of Rights of the Maryland Constitution provides:
“That the Legislative, Executive and Judicial powers of Government ought to be forever separate and *311distinct from each other; and no person exercising the fanctions of one of said Departments shall assume or discharge the duties of any other.” (Emphasis supplied.)
It will be observed that although the doctrine of separation of governmental powers between the three great divisions of government is stated in hortatory terms, the implementation of that great principle to insure the freedom and liberty of the individual citizen is in mandatory terms addressed to each official of the State government. It is clear to me that this means that judges, whose courts possess all of the judicial power of the State government, Dal Maso v. Board of County Comm’rs of Prince George’s County, 182 Md. 200, 34 A. 2d 464 (1943), may not constitutionally exercise legislative power. Although the courts have the power and the obligation to declare unconstitutional legislation which violates constitutional guarantees, they have no power to amend a legislative act for the obvious reason that they are not permitted under Article 8 of the Declaration of Rights to exercise a legislative function. We have held that we may not under the guise of construction of a statute, in effect, amend it. Amalgamated Casualty Ins. Co. v. Helms, 239 Md. 529, 534-35, 212 A. 2d 311, 315 (1965).
Alas, as I see it, what the majority has done in the case at bar is, in effect, to amend section 245(2) by construction. I will consider this more fully later in this dissenting opinion.
Not only may the courts not exercise either legislative or executive power, but the other branches of the State government may not exercise judicial power, which has been given exclusively to the courts by Article IV of the Maryland Constitution. Dal Maso v. Board of County Comm’rs of Prince George’s County, supra. See also Heaps v. Cobb, 185 Md. 372, 45 A. 2d 73 (1945). Nor, as the majority points out, may the General Assembly constitutionally impose either executive, legislative or other non-judicial powers upon the courts. Cromwell v. Jackson, 188 Md. 8, 52 A. 2d 79 (1947).
The essence of the judicial fact-finding process lies in the evaluation of evidence. In a civil case, the plaintiff must estab*312lish his case by a preponderance of the evidence. The determination of whether the plaintiff has accomplished this does indeed, as the majority indicates, depend upon the “weight” of evidence. To determine the weight of evidence, the trier of fact —the jury in a jury case, the court in a non-jury case —must evaluate or “weigh” the testimony presented to ascertain the “preponderance of the evidence.” The trier of fact must determine whether the plaintiff has established his case by the greater weight of the testimony. It is well established that the number of witnesses does not establish the preponderance of the evidence.
As Judge Offutt, for the Court, in Carter v. Carter, 139 Md. 265, 267-268, 114 Atl. 902, 903 (1921), aptly stated:
“ 'Preponderance/ used in connection with the weight of evidence, refers to something more than the number of witnesses who furnish it. It relates not only to the number of witnesses who testify to a fact or facts in issue, but also to the character of the witnesses, and to the intrinsic characteristics of the evidence itself, and the probabilities of its truth when tested by the ordinary experience of average people in their daily affairs. Courts should not disassociate testimony from the witnesses who give it, because if the witnesses are unworthy of confidence their testimony naturally has little value.”
To the same effect see Garver v. Garver, 52 Colo. 227, 232, 121 P. 165, 166-167 (1912), in which Mr. Justice White stated for the Supreme Court of Colorado:
“The preponderance of the evidence is never determined by the number of witnesses, but by the greater weight of all the evidence. And the greater weight does not necessarily mean a greater number of witnesses who testify on either side of the issue or issues involved. Witnesses may be of 'equal candor, fairness, intelligence, and truthfulness/ and be equally well corroborated by all the other evidence, and may have no great interest in the result of the suit, yet *313the weight to be given their testimony may differ materially. The opportunity for knowledge, the information possessed, the manner of testifying, and many other things that go to convince the mind, must be taken into consideration.”
I agree fully with the majority that the establishment of insurance rates by the Commission is the exercise of a delegated legislative power. I further agree that the courts have the inherent power in the exercise of their protection of constitutional rights to declare a legislative act or the exercise of legislative power unconstitutional and void if such an act or exercise of legislative power is arbitrary, unreasonable or capricious and thus denies the citizen of his life, liberty or property without due process of law. Heaps v. Cobb, 185 Md. 372, 379, 45 A. 2d 73, 76 (1945).
The majority correctly equates “preponderance” with “weight” of the evidence on the whole record. I part with the majority, however, when they further equate “preponderance” with the requirement of the presence of “substantial evidence,” or the equivalents of “substantial evidence,” such as “when a reasoning mind could reach the result” or whether the issue was “fairly debatable.” I cannot believe this can properly be done as a matter of statutory construction. There is, in my opinion, an important difference between the standard of whether there is sufficient evidence to go to the trier of fact for consideration and how the trier of fact evaluates that evidence after the case is before it for determination. There is the difference between the irreduceable minimum of evidence to justify determination at all and a sufficient quantum of testimony for recovery.
The General Assembly in the Administrative Procedure Act1 provides for appellate tests indicating these differences in degree. In Code, Article 41, sec. 255(g) eight tests are provided for the guidance of the reviewing court, any one of which may result in reversal or modification of the agency’s decision. Among them are:
*314“(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or
“(6) Against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency and including de novo evidence taken in open court;” (Emphasis supplied.)
Bernstein v. Real Estate Commission, 221 Md. 221, 156 A. 2d 657 (1959), relied on by the majority, gives no support, in my opinion, to the conclusion reached by the majority in the present case. Bernstein involved the validity of an order of the Real Estate Commission of Maryland suspending the licenses of a real estate broker and his associate. It is entirely clear that on the appeal under the provisions of the Administrative Procedure Act, the reviewing court did take evidence de novo and made its determination upon both the record before the Commission and the de novo testimony. This Court stated:
“The trial court found that there was competent, material and substantial evidence in the entire record as submitted including the de novo evidence taken in open court — not overcome by countervailing evidence —to support the commission’s finding of fact and conclusion of law to the effect that the brokers had violated one of the provisions of Section 224(o) [of Art. 56], We agree.” (Page 234-35 of 221 Md., page 664 of 156 A. 2d.)
The situation was quite different from the case at bar, where the reviewing court in considering an order of the Commission establishing rates is not permitted to take testimony de novo, and, indeed, could not, in my opinion, be permitted to do this as this would clearly impose a legislative function upon the Court, i.e., to determine what the rate should be. The decision in Bernstein indicates to me that the determination by the trial court was of a judicial matter and was not a legislative one.
*315It is clear also that by the express provision of Code, Article 41, section 244(a), the Administrative Procedure Act is not applicable to the State Insurance Department.
When one compares the final test laid down by the majority, i.e., “whether a reasoning mind reasonably could have determined that the factual conclusion reached was proven by the weight of the evidence on the record as a whole,” and that imposed by section 245(2) viz. “If the Baltimore City Court finds that the Commissioner’s order or decision is not supported by the preponderance of the evidence on consideration of the record as a whole,” it is apparent to me that there is a substantial difference between what the General Assembly stated and what the majority holds that it meant. The majority here blends “reasonably” (the equivalent of “supported by substantial evidence”) with “weight,” and says that the blended result is the same as the statutory “preponderance” (“weight”) test. In my opinion, the majority is not permitted to reach this conclusion as it is, in effect, an amendment to the statute and substitutes a new test for the one set forth by the General Assembly.
I have been critical of what I consider a departure from the doctrine of separation of powers by this Court in a number of prior cases. See my dissenting opinions in MacDonald v. Board of County Comm’rs of Prince George’s County, 238 Md. 549, 557 to 608, especially pages 602-608, 210 A. 2d 325, 329-358, especially pages 354-358 (1965); Woodlawn Area Citizens Ass’n v. Board of County Comm’rs of Prince George’s County, 241 Md. 187, 201-218, especially pages 203-213, 216 A. 2d 149, 158-168, especially pages 159-165 (1966) and most recently in Delbrook Homes, Inc. v. Mayers, 248 Md. 80, 234 A. 2d 880 (1967) ; and my concurring opinions in Hyson v. Montgomery County Council, 242 Md. 55, 77-84, 217 A. 2d 578, 592-595 (1966) and Gaywood Community Ass’n v. Metropolitan Transit Authority, 246 Md. 93, 101-105, 227 A. 2d 735, 739-742 (1967).
Several of these dissenting or concurring opinions indicated disagreement with the concept of res judicata as applied to decisions of administrative agencies. Others involved the importance of safeguards required for judicial hearings to legis*316lative action when not required by statute. In Part IV of my dissent in MacDonald, however, I considered, in part, the constitutionality of a provision of the Act of 1959, Chapter 780 (for the prior act see Acts of 1957, Chapter 712), then codified as Subtitle 59-85 (i) of the Prince George’s County Code which provided that in considering the rezoning decision of the District Council, the Circuit Court for Prince George’s County could reverse the District Council for seven listed tests, one of which was if the court found that the decision was “(6) against the weight of competent, material and substantial evidence in view of the entire record, as submitted by the agency.” It was pointed out that in four cases prior to MacDonald, this provision was possibly involved but we had declined to pass upon its validity. These four prior cases were Board of County Comm’rs of Prince George’s County v. Donohoe, 220 Md. 362, 152 A. 2d 555 (1959); Bishop v. Board of County Comm’rs of Prince George’s County, 230 Md. 494, 187 A. 2d 851 (1963); Board of County Comm’rs of Prince George’s County v. Oak Hill Farms, Inc., 232 Md. 274, 192 A. 2d 761 (1963); and, Board of County Comm’rs of Prince George’s County v. Levitt & Sons, Inc., 235 Md. 151, 200 A. 2d 670 (1964). In Donohoe the Court indicated that even if the challenged subsection (6) “should be declared invalid” that subsection was not “inseparably connected with” the subsections concededly valid and there was no reason to suppose that the Act would not have been passed without subsection (6). In Sampson Bros. v. Board of County Comm’rs of Prince George’s County, 240 Md. 116, 213 A. 2d 289 (1964), the Court again found it unnecessary to pass upon the constitutionality of subsection (6), and referred to the prior cases in which such a determination was also unnecessary.
In footnote 11 in my dissent in MacDonald (238 Md. 607, 210 A. 2d 358), I respectfully suggested to the General Assembly that a happy solution in regard to subsection (6) would be to repeal it. I was pleased to note that subsection (6) was repealed by the Acts of 1965, Chapter 898. As I had suggested in footnote 11, that subsection (6) might “even be an invalid grant of legislative power,” the repeal of this subsection indicates to me that the General Assembly was most likely of the *317opinion that subsection (6) was indeed an invalid grant of legislative power. I also pointed out in the MacDonald dissent that Judge Powers of the Seventh Judicial Circuit was of the opinion that subsection (6) was unconstitutional. See 238 Md. 607-608, 210 A. 2d 358.
The distinction between the holdings in Sampson and in Oak Iiill Farms, referred to above, was pointed out in Sampson as follows:
“This case is to be distinguished from Board of County Commissioners of Prince George’s County v. Oak Hill Farms, 232 Md. 274, 192 A. 2d 761 (1963) as in that case the disapproval of the Technical Staff was based upon a tentative master plan which it had prepared, but which had not been adopted and indeed never was adopted as proposed. In Oak Hill Farms there was no competent, material and substantial evidence to support the District Council’s refusal to reclassify and the Circuit Court so held. In the case at bar the Master Plan had been adopted— less than one month before the petitions were filed— and it was clearly debatable as to whether there was any substantial change in conditions to justify a change contrary to that recently adopted Master Plan.” (240 Md. 120, 213 A. 2d 291-292.)
The distinction between the “substantial evidence” test and the “weight of the evidence” test is aptly considered by Leonard E. Cohen, Some Aspects of Maryland Administrative Law, 24 Md. L. Rev. 1 (1964) 38-42. After reviewing the language in the opinion in Oak Hill Farms indicating that the difference between the two tests was “difficult to delineate” and that the line between them was “thin”, the author commented as follows :
“On the facts of the Oak Hill Farms case, this reasoning is understandable in that there was practically no evidence to support the decision of the County Commissioners. The decision would have been reversible under either of the two tests. The question *318remains, however, whether the court will also equate the substantial evidence rule with the weight of the evidence rule in a case where the result could depend on which test is employed. To explain, first assume a set of facts similar to those in the Oak Hill Farms case. There are one hundred pieces of evidence in favor of proposition I and only one piece of evidence in favor of proposition II. Although there would be evidence supporting proposition II, it would clearly not be substantial evidence, considering the evidence to the contrary. Also, the weight of the evidence would clearly be in favor of proposition I. Next assume that five pieces of evidence favor proposition I and one piece of evidence favors proposition II. This is similar to the illustration given at the beginning of this section. It would seem that, even taking into account the contrary evidence, there would be substantial’ evidence supporting proposition II, assuming that the one piece of evidence is of a reliable nature. Nevertheless, it would also seem that the weight of the evidence is against proposition II. In this type of situation, the test employed would probably be determinative. If under these circumstances the Court of Appeals still equates the substantial evidence test with the weight of the evidence test, it would be ignoring the fact that the leading writers in the field of administrative law have recognized a meaningful difference between the two tests.”
My view finds support in two Texas cases. See Southern Canal Company v. State Board of Water Engineers, 311 S. W. 2d 938 (Texas Civ. App. 1958), affirmed by the Supreme Court of Texas, 159 Tex. 227, 318 S. W. 2d 619 (1958). See also Farmers and Merchants Insurance Co. v. State Board of Insurance, 321 S. W. 2d 354 (Texas Civ. App. 1959).
As the lower court pointed out, the striking down as unconstitutional of the provisions of Section 245(2) does not mean that there is no remedy afforded to an insured party from an allegedly improper rate action by the Commissioner. *319A person aggrieved by such an order may seek relief in equity or by way of the issuance of a writ of mandamus, if the Commissioner’s action is arbitrary, unreasonable or capricious and, thus denies the person due process of law. Heaps v. Cobb, supra.
(2)
In my opinion, the unconstitutional “preponderance of evidence” test in section 245(2) is not severable from the statute and Chief Judge Foster was correct in dismissing the appeals to the Baltimore City Court of the Bureau and of State Farm. Notwithstanding the severability clause in section 13, it seems clear that section 245(3) establishes a legislative intent that the provisions of sections 35 to 40 providing for a de novo hearing on appeal, with substantially the eight tests for modification or reversal of the order of Commissioner as contained in the provisions of the Administrative Procedure Act relating to appeals, “shall not apply to rating.” This mandatory provision should not be ignored. Nor does the alternative provision in section 245(2) “or not in accordance with law”, which follows the review of the evidence provision, provide a test which the General Assembly could be thought to have provided if the “preponderance of evidence” test were not part of section 245(2). There is a clear legislative intent to provide for a full and intensive review by the Baltimore City Court of the decision of the Commissioner in regard to rates and this legislative intent would be frustrated by an attempt to continue a fragmented section 245(2) with a most limited test of “not in accordance with law.” The two provisions of section 245(2) are dependent and cannot be separated. In order to separate the second clause from the unconstitutional clause, the valid part must be independent of and separable from the void portion. Schneider v. Duer, 170 Md. 326, 340, 184 Atl. 914, 921 (1936). As indicated, this is not the situation here presented.
I would affirm the orders of the lower court.
. Act of 1957, Chapter 94, as amended.