MMmmti^^ Professor R. G. Gettell Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/departmentalcoOOellirich X DEPARTMENTAL COOPERATION IN STATE GOVERNMENT THE MACMILLAN COMPANY HKW YORK • BOSTON • CHICAGO • DALLAS ATLANTA • SAN FRANCISCO MACMILLAN & CO., Limited LONDON . BOMBAY • CALCUTTA MELBOURNE THE MACMILLAN CO. OF CANADA, Ltd. TORONTO DEPARTMENTAL COOPERATION IN STATE GOVERNMENT BY ALBERT R. ELLINGWOOD, B.C.L. (Oxon.), Ph.D. ASSISTANT PROFESSOR OF POLITICAL SCIENCE IN COLORADO COLLEGE 5Jm f nrk THE MACMILLAN COMPANY 1918 All rights reserved (S^ \^ COPnUGBT, 1918 By a. R. ELLINGWOOD GIFT )UJ=^ George?Banta Pxtblishing Company Menasha, Wis. E3 To W.A.W. M633385 CONTENTS Pages Introduction ix Chapter I. The History of the Advisory Opinion 1 In England 1 In the United States 30 In Canada 79 In Other States 93 Chapter II. The Advisory Opinion in Practice 96 The Source of Interrogations 96 Nature of Questions 99 Form of Replies 146 Effect of Replies upon Interrogators 153 Chapter HE. The Interpretation of Advisory Opinion Clauses 161 Chapter IV. Other Forms of Judicial Influence 238 Chapter V. The Place of the Advisory Opinion 248 Appendix I. Text of Advisory Opinion Clauses of State Constitutions 258 Appendix II. Text of Advisory Opinion Statutes of the Dominion of Canada and the Provinces 260 Appendix III. Text of Advisory Opinion Provisions in Central and South American States 267 Appendix IV. Table of Cases 269 Appendix V. Bibliography 295 Index 297 INTRODUCTION During the last decade the searchlight of criticism has found a resting place upon the American judiciary with in- creasing frequency. The censure of our State judicial systems is no longer academic; the thinking citizen body of this democra- cy has in many ways expressed its conviction that the courts were not giving to the people what the people had a right to expect from them, that the judicial system was inefficient. This generation has witnessed a deplorable shoirtening of the terms of elected judges, and the introduction into our State constitutions of the dangerous judicial recall and the illogical and indefensible recall of judicial decisions. In some cases these "reforms" have been the result of a commendable fear- lessness in the exercise of the so-called judicial veto over im- constitutional legislation. The legislative trickster has had it in his power to shift to judicial shoulders the blame for the failure of legislation demanded by his constituency. More and more have our judges been involved in "poHtics," at the cost of a decreased efficiency as organs of government. They have become too close to the people in one sense; their vision no longer comprehends all the people, but only a constituency, a social group, or economic class; as Rousseau would say, they express not the General Will, but the will of a temporary asso- ciation of individuals within the state. Obviously this calls for correction. In the exuberance of our democracy, we have deluded ourselves into thinking that the rule of the people in a free state means concrete, tangible, personal participation of each individual citizen in the affairs of government. We have lost sight of the fact that directing the complex affairs of a large poUtical society is a task for experts, that the proper function of the citizens of a free democ- racy is to choose honest experts to act for them poUtically, and that in proportion as the inexpert meddle directly in govern- mental activities, inefficiency will result. In the American system of government, all of this applies especially to the judi- ciary. It is, then, especially important that we remove our judges as far as possible from factional or sectional politics. They should be the impartial and independent distributors of justice as approximated in the spirit of a given epoch, fear- lessly representing the General Will of the democracy from which they derive their authority. This, it must be admitted, is an ideal, and is subject to two practical quaUfications. In the first place, the citizens of our States will not agree to such an exaltation of their judiciary until they can be induced to place in it a larger measure of confidence than they do at present. This calls not only for a revision of judicial procedure (a subject which is beyond the scope of the present discussion) but also for a readjustment of the relations between the three departments of government, so devised as to enable the people to fix the responsibihty for a failure to carry out their clear mandates, and thus make it impossible for the executive and legislative departments to saddle the odium of disobedience upon the judicial. Secondly, although the judiciary must not be trammeled by the poHtical entanglements of the other two departments, neither must it be out of touch with them. It is a fundamental of the efficient government of the future, in a representative democracy, that there shall be harmony and cooperation between its component parts. Just as the creative power of the legislature and the administrative resources of the executive should be unreservedly at the command of the courts, if necessary to carry out their proper functions, so, too, the experience and skill of the judiciary should be at the service of the other departments in time of need. It is believed that the constitutional device which is de- scribed in the following pages will go far towards furnishing a solution of this difficult problem. It has been successful in the mother-state from which we derived the basic elements of our governmental organization, though in recent times it has taken a peculiar form there, scarcely applicable in the United States. It has been developed very successfully in several of our own conmionwealths, and has attained a clear- cut definiteness in the Canadian Dominion and Provinces. On its record, as revealed by the present study, it is at least worthy of a very careful consideration, with a view to a more general incorporation into our State constitutional systems. This device is the so-called advisory opinion. For the sake of the non-professional reader, not conversant with this rather unfamiliar chapter in our constitutional law, a word or two of explanation may not be amiss. It has long been recognized that the Anglo-Saxon judicial system, based on the case-by-case development of precedent, while valuable in many ways, has certain serious defects. This is especially true in the United States where the courts may declare that that which has the form of law is of no effect because its enact- ment has not been in conformity with the constitution. The very particularism of the case-system may bring about grave inconvenience, if no one cares to bring a "test case" until after many private rights have arisen under the legislation in ques- tion. Even though no rights have arisen under a statute, the State has been to the expense of enacting it and securing a subsequent judicial declaration of its unconstitutionaUty. Again, it is well known that there are many questions of a judicial nature that can be brought before a court in regular proceedings with difficulty, if at all. A "case," in a court of last resort, necessarily involves the adjudication of some private right, the settlement, once and for all, of a private claim. The judgment specifically determines only the partic- ular contention then before the court, though it may, of course, become a binding precedent in later cases of a similar nature. It is binding upon all the parties to the contention who are before the court, and execution will issue to carry it into effect, if necessary. The advisory opinion, on the other hand, is merely the advice of the judges who compose the court of last resort in a given jurisdiction, rendered at the request of certain executive or legislative organs. The privilege of requiring such advice may be restricted in many ways, for example by limiting it to a particular kind of questions. The purpose of the scheme is to enable the governor or either house of the legis- lature to ascertain the opinions of the supreme court justices upon questions of a legal nature, before taking action; in other words, to permit them to make the justices their counsellors in difficult matters upon which the latter are peculiarly qualified to give sound advice. It is not an adjudication and binds no one; the interrogator may or may not follow the opinion, as he chooses. In practice, legislative or executive action has usually been in conformity with advice so rendered and^the matter has been regarded as settled. However, if an individual is aggrieved by the result, he is free to complain to the courts in regular proceedings and the whole question will be carefully considered de novo. From this brief explanation it will appear that we have here a constitutional instrument, the potential benefit of which is not inconsiderable, while, with intelligent use, its potential harm is negligible. In the following pages, the writer has dealt with the advi- sory opinion from three standpoints. First of all its historical development in England and the United States has been traced at some length, not merely as a matter of academic interest, but as a necessary preUminary to an adequate understanding of the nature of the institution. This is followed by an ex- position of the way the advisory opinion has worked in the United States, and a statement of the more common rules evolved in its practice. Finally, an attempt is made to estimate its value in constitutional systems of the American type. DEPARTMENTAL COOPERATION IN STATE GOVERNMENT DEPARTMENTAL COOPERA- TION IN STATE GOVERN- MENT CHAPTER I THE HISTORY OF THE ADVISORY OPINION A. In England The giving of extra-judicial opinion by English judges is a practice almost as old as the legal memory defined by statute. Indeed, it is a natural outgrowth of the governmental organi- zation of the twelfth, thirteenth and fourteenth centuries, and both its existence and its nature can be explained and understood only after an examination of the evolution of the EngUsh con- stitution during that period. In the Anglo-Norman system, separation of powers was practically unknown. The same state organ exercised legislative, executive and judicial func- tions.^ The king, in whom reposed the sovereignty of the state, was not restricted to unHmited executive activity; he had the right of general legislation as well, with the advice of the Magnum Concilium^ (a group of ecclesiastics and tenants in capite who gathered primarily to pay homage) ; and through the curia Regis, presided over by the chief -justiciar, he dis- pensed such justice as was vouchsafed his subjects. As organic differentiation developed, vestiges of the privilege of consulta- ^Stubbs, C. H., I, p. 366. ^HaUam, Mid. Ages, H, p. 319. 2 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT tion and advice enjoyed in the more centralized form not un- naturally clung to the legislative and administrative bodies, now thrown upon their own uninstructed resources. Because of a diversity of practice as well as of historical and juridical considerations, it is advisable to consider separately: (1) The Judges as advisers to the King in his judicial capacity. (2) The Judges as advisers to the King in his executive capacity. (3) The Judges as advisers to the House of Lords in its judicial capacity. (4) The Judges as advisers to the House of Lords in its legislative capacity. 1. The Judges as Advisers to the King in his Judicial Capa- city. At the beginning of the twelfth century, the important administrative and judicial powers were vested in the king and his curia? This curia Regis was composed of the chief- justiciar,^ the chancellor, the steward, the treasurer, the mar- shal, and other justitiarii appointed by the king. When sitting as a financial body it was known as the exchequer. Within a hundred years a division of labor became necessary and several bodies succeeded to the duties of the old curia. There was the Exchequer, with extensive powers of financial admini- stration as well as judicial powers in cases involving the public revenue; there was the royal chancery, a clerical body presided over by the chancellor, the keeper of the great seal; and finally there was a curia Regis in a narrower sense — a body of legally trained judges^ which had inherited the judicial powers and duties of its ancestral namesake. Of the later sub-division of this court into the King's Bench and Court of Common Pleas, the development of the Court of the Exchequer and the Court of the Chancellor, we are not at present concerned. But still there was a residual judicial power in the hands of the king, "to be exercised by him in the great council of the 3 Maitland, C. H., p. 63. Stubbs, C. H., I, pp. 418 sqq. * Hallam, Mid. Ages, II, p. 332n. 6 Hallam, Mid. Ages, II, pp. 335 and 421-2. HISTORY OF THE ADVISORY OPINION 6 nation, or in some smaller council."^ In theory, of course, even till 1875, the Court of King's Bench was coram ipso domino Rege; but in fact, long after the time of which we are speaking, the king and justices held court together in different parts of the kingdom. Maitland tells us^ that "both John and Henry III did justice in person," and that only in the fourteenth century had it become uncommon for the king to sit in court. Still the separation of the executive and judicial organs had begun^ and the judges forthwith endeavored to promote that separation and secure as complete an independence as possible from executive control. With these facts in mind, it is easy to explain why the king claimed legal advice from his judges, when cases were submitted for his adjudication. Naturally, his Concilium expected the same assistance when necessary even in the absence of the king; and the chancellor, when he created a court of his own to deal with cases when the Concilium was not sitting, often solicited the help of the king's judges. In such cases (as matters within their province, though not before them for adjudication) the judges seem to have acquiesced quite wilUngly in the demands made upon them. It appears that in a Scire facias in the Hilary term of 13 Edw. Ill, the chief justice and two justices of the King's Bench sat in Chancery to pass on questions of law^ and the editor of the Year Book thinks that this was probably a regular proceeding.*^ Indeed, in 1401 the Commons complained that the judges of both the King's Bench and Common Pleas were giving so much time to Chancery that the administration of the common law was greatly delayed.^* « Maitland, C. H., pp. 69 and 136. 7 C. H., p. 134. * See Maitland, C. H., p. 133, on the abolition of the justiciarship. "Y. B. 12-13 Edw. Ill, No. 12. ^° Ibid. Intro, ci-cv. » Rot. Pari. 2 Henry IV, No. 95. 4 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Opinions have been given to the king even later than this. In the Earl of Arundel's Case (1449)^2 ^he Lords had no leisure to examine a case on precedency referred to them by the king, and by their advice the king ordered "that the Juges of the lawe of the lande beyng in the same Parlement, shuld here, see and examyn the seid maters . . . and as they conceyve therinne, they to report to the Kynges Highnesse, and to the Lordes in the same Parlement." After an examination of pleas presented to the king, the judges rephed that this was a matter for the king and Parliament to determine, "yet being thereto so commanded, they shewed what they found upon examination, and their opinions thereupon." The king and Lords then decided the case. In the famous Aylesbury Case (also known as Paty's Case),^^ when the queen was petitioned for a writ of error returnable in Parliament, she referred this first to the attorney-general and soHcitor-general and later to all the judges (on Feb. 21, 1704) asking whether she ought to grant the writ of right or of grace. The judges gave the written opinion on February 24, ten of them thinking the writ, if granted, should be of right, two of grace. Because of the disagreement of the Houses of Parliament, the queen finally prorogued them without acting at all. It remains, in this connection, to advert briefly to the evolu- tion of the Privy Council from the Concilium Regis. A per- manent royal council, distinct from the curia, had become well defined by the beginning of the fourteenth century. Its chief function was to advise the king in all matters referred to it by him. But it also exercised judicial functions,^* sometimes under statutes of Parliament, more often in spite of the protests of that body. This Council, essentially an administrative organ of the state, in spite of these persisting judicial powers, 12 Rot. Pari. 27 Henry VI, No. 18. Also 13 Co. Rep. 63. 1' 14 East 92 (n). Also reported, sub nom. Ashby and White, in 14 HoweU's St. Tr. 695-888. "Maitland, C. H., pp. 216 sqq. HISTORY OF THE ADVISORY OPINION 5 is the Privy Council of the time of Edward IV and later. Its composition was quite flexible, varying at the will of the king. In 1404, it contained three bishops, nine peers, and seven commoners. The judges, it seems, did not generally share in its deUberations; Fortescue tells us, however, they could be summoned by the councilors in case they were needed. ^^ All matters referred to the Council were dealt with through special commissions appointed to examine the facts and report to the Council. Usually such reports were accepted after the formahty of a reading, and the Council rendered judgment upon them. If difficult questions of law arose, the judges were consulted. "Indeed it was repeatedly enjoined by acts of parHament that the lords of the council should in no wise decide legal questions without the aid of the justices. On one such occasion we read of the justices being interrogated individually for their advice. P. P. C. iii, 313."^^ Under Charles II, after the Star Chamber experiment, the judicial powers of the Council were taken from it. In the eighteenth and nineteenth centuries, however, it came to include many judges and ex-judges, whose legal advice would be of great value. So in 1833 Parliament created a Judicial Committee of the Privy Council and provided that "it shall be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit, and such Conmaittee shall thereupon hear or consider the same, and shall advise His Majesty thereon in manner aforesaid. "^^ Here again, then, after nearly two centuries we have another court^^ created out of the Privy ""Also the Juges, the Barones off the excheqmer, the clerks off the rolles, and suche lordes as the forsaid coimsellours woll desire to be with thaym for materes off gret deficulte, mey be off this coimsell when thai be so desyred, and ellis not." Fortescue's Governance of England, Chap. XV, p. 148. "Baldwin, King's Council, p. 301. "3-4 Wm. IV c. 41, s. 4. "See (1912) A. C. 571, at 585. 6 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Council, and endowed with very large judicial powers (for it is the highest court of appeal for England's many colonies). At the same time it is the legal adviser of the king on all con- ceivable matters.^^ Except during the period 1641-1833, a greater or less amount of judicial power has resided in the king or the king in council. In the exercise of that power, he has always had, and still possesses, the privilege of consulting the judges of his courts. The increasing separation of powers from the thirteenth cen- tury on has not affected this prerogative, and it does not appear that the judges have ever refused to give such assistance when asked. Whether judges of the King's Bench or other divisions, who are not members of the Privy Council, would feel bound to answer is open to question. In the case already referred to, where the learned Lords of the Judicial Committee acknowl- edged their obligation to give any opinion requested under Section 4 of the Judicial Committee Act, they called attention to the fact that they are "all Privy Councillors, bound as such to advise the Crown when so required in that capacity. "^^ The question of the willingness of the other judges to give such opinions will doubtless remain unanswered as long as the Crown can refer to such excellent advisers as the Judicial Committee Act provides. 2. The Judges as Advisers to the King in his Executive Capa- city. At the close of Edward I's reign, the judicial curia and its duties had become quite definite, constitutionally. But the point of importance for us to notice is that some or all of ""Under this clause there is no limit to the extent and variety of matters referable by her Majesty to the Judicial Committee. " Macqueen, p. 689n. "This Committee, exercising most important judicial functions, is undoubtedly liable to be asked questions of any kind by the authority of the Crown, and the procedure is used from time to time, though rarely and with a careful regard to the nature of the reference." (1912) A. C. 571, at 585. " (1912) A. C. 571, at 585. HISTORY OF THE ADVISORY OPINION 7 its members are still members of the Concilium Regis, the ad- ministrative body "to which the king looks for advice and aid in the daily task of government. "^^ The necessity of separate judicial organs has become manifest, but the king is loath to deprive himself of valuable assistance and expert counsel from whatever quarter it may come. In the fifteenth century, though the judges were not in regular attendance upon the Concilium, their presence could be requested in case of neces- sity.^^ As long as this state of affairs continued, the king, it seems, commanded the advice of his judges, even in admini- strative questions. Hallam asserts that the Council appear to have advised the king as to his approval of laws passed by Parliament, regularly during the reigns of Edward I and Edward 11.^ Whether the king, apart from the Council, can consult the judges on administrative matters is not clear. But it is more than reasonable to suppose that he would deem their intermittent membership in the Council and their immediate dependence on him as the fountain of all justice sufficient reasons for claiming their advice, especially in matters of a legal character, and also, to a certain extent, in questions pertaining to his executive rights and duties apart from the enforcement of the laws. Illustrations of inquiries of both kinds are not wanting. In 1388, Richard II commanded the opinions of the judges on a set of questions concerning certain acts of the last Par- liament, and secured from them sealed statements that his ministers could not be impeached without his consent, that "Maitland, C. H., p. 91. See also Hallam, Mid. Ages, III, p. 138. ^ "In the actual records of the privy council it is a constantly recur- ring regulation that the judges are to be consulted in all matters touching the king's prerogatives or freeholds (P. P. C. iii, 151, 217; iv, 63). Many instances of the presence of the judges are recorded in the Proceedings of the Council." Fortescue, 297. Plummer, the modem editor of Fortes- cue's Governance of England, gives several such instances in the Intro- duction, pages 46-7. 2»Mid. Ages, III, p. 142. 8 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the impeachment of his favorite, the Earl of Suffolk, could be revoked, that the statute estabhshing a commission of reform was derogatory to his prerogative and those who passed it guilty of treason, that the king's business took precedence in Parliament, and that he could end the sessions of Parliament at his pleasure.^ These opinions as given were probably extorted by threats,^ but it does not follow that the judges questioned the king's right to consult them, if only he did not dictate their answers. Macqueen^^ cites an interesting case (dated May 9, 1624) where James I refused to give his royal assent to a bill which had passed both Houses until the judges had given him their opinions as to whether it would be retroactive in certain re- spects or not; he finally assented, relying on their negative answer "as a principal motive." George I, in 1717, sent a letter by the Lord Chancellor to the judges requesting them to meet and give their opinions as to whether or not the education and care of his Majesty's grandchildren and the Prince of Wales, the ordering of their abode, the approbation of their marriages, etc., belonged of right to his Majesty. The judges apparently did not question their duty to comply, indeed impliedly admitting it in their reply to the request of the Prince of Wales to hear counsel in his behalf, "that in cases wherein our advice is required by His Majesty, we cannot hear counsel without His Majesty's leave. "27 After a prolonged consideration of the case they gave their opinions seriatim}^ The same monarch, in Sir John Fenwick's Case^^ requested the judges and attorney-general "to consider of the King's 2*Hallam, Mid. Ages, III, p. 72. ^ See report in Fortescue, p. 392, based on Rushworth, Appendix, p. 261. Also Hallam, I.e. ^ House of Lords, p. 54. " The king later granted permission for counsel to be heard. 28 Fortescue, p. 40L Also 15 Howell's St. Tr. 1195. "Fortescue, p. 385. HISTORY OF THE ADVISORY OPINION 9 pardoning the judgment;" and they all were "of opmion that the King could pardon all or any part of the judgment; and in this case all the judgment in high treason was pardoned, except severing his head from his body, and he was beheaded accor- dingly." However, cases of this nature are infrequent. Most of those which have found their way into the reports are, quite naturally, cases of a judicial nature. When the king is especial- ly interested in a prosecution, he may attempt to eUcit from the judges in advance of the adjudication in court an opinion as to the state of the existing law or ex parte suggestions to the prosecution on questions of procedure or even an actual decision on the merits of the case.^° Thus in Stafford's Case (1485)^^ where the defendant was taken from a sanctuary under the protection of the Abbot of Abingdon and held for trial in the king's court, the judges were asked to give an opinion at once, before the day set for the hearing. They objected, "How can we debate this matter which will come before us soon? and it is not good order to argue this matter, and give our opinions, before it comes before us judicially. The Attorney-General said, if the King knew that the sanctuary would save him, it should not come before them." But Hussey, C. J., went personally to the king and besought him, " that he would not desire to know their opinions beforehand ... for they thought it should come before them in the king's bench judicially, and then they would do that which of right they ought; and the king accepted of it." James I indulged in the most unsparing abuse of the con- sultative power in cases of a judicial nature in the history of "Another common method of interfering with the course of justice is to insist on the postponement of the hearing to a time more convenient for the prosecution, as in the Commendams Case. See Bacon's Works, IV, pp. 631 and 636. "Fortescue, 389. Coke, Inst. Ill, pp. 29-30. See also 2 Howell's St. Tr., 879n and Y. B. Pasch. 1 Henry VII, 15. Trin. 1. 10 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the English constitution. He was undoubtedly zealously aided by the ever-active Sir Francis Bacon, who was animated perhaps both by his ambition and his envy of Lord Coke, then chief justice of the King's Bench; for most of the cases are during the period when Bacon was attorney-general and he is most assiduous in pressing them upon the judges. Gross subversion of justice and a serious invasion of the independence of the judiciary were only prevented by the courageous defiance of that sturdy bulwark of the common law. Lord Coke. Two or three cases will illustrate the situation. Best known of all is the case of Peacham,^^ an enthusiastic clergyman too fond of privately scribbling sermonical tirades against the govern- ment never intended to reach the ears of others than himself. His house was searched and several ''treasonable" utterances brought to hght. The king, apparently, was uncertain whether a prosecution for treason would stand and directed Bacon, with the aid of the solicitor and several sergeants, to sound the judges. The original design was to prevent joint action and one interrogator was assigned to each judge, Bacon braving the chief justice himself. The first encounter was discouraging, for Coke affirmed "that such particular . . . and auricular taking of opinions was not according to the custom of this realm," and doubted whether his brethren would yield.^^ Bacon's collaborators^^ were received with more favor; Crook, J., and Houghton, J., were both wilUng to answer, and Dodderidge, J., declared that "every judge was bound ex- presly by his oath, to give your Majesty counsel when he was called; and whether he should do it jointly or severally, that rested =•2 Bacon's Works, IV, pp. 593-601. 2 Howell's St. Tr. 871. ^ Bacon's Works, IV, p. 593. '*They were instructed by Bacon, "that they should not in any case make any doubt to the judges, as if they mistrusted they would not deliver any opinion apart, but speak resolutely to them, and only make their com- ing to be, to know what time they would appoint to be attended with the papers. " HISTORY OF THE ADVISORY OPINION 1 1 in your Majesty's good pleasure." Bacon later delivered Peacham's papers to Coke, who received them, but with the protest " that judges were not to give opinion by fractions, but entirely according to the vote, whereupon they should settle upon conference: and that this auricular taking of opinions, single and apart, was new and dangerous,"^ A letter of February 11, 1614,^ tells us that when Coke heard that the other judges had finally given their opinions, he promised that his would be ready in a short time. Presumably they are the "answers" enclosed in the letter of February 14th.'^ It should be noted that the independent Coke rests his objections upon the "particular" taking of opinions, when the judges are consulted one by one and are not permitted to confer. Maitlajnd^* says Coke himself, when soUcitor and »L.c., p. 596. ^Lx., p. 601. ^'' L.C., p. 601. The comments of Foster on this case are well worth quoting: "And perhaps still less Regard will be paid to it if it be considered that the King, who appeareth to have had the Success of the Prosecution much at Heart, and took a Part in it unbecoming the Majesty of the Crown, condescended to instruct His Attorney-General with regard to the proper Measures to be taken in the Examination of the Defendant. That the Attorney at His Majesty's Command submitted to the Drudgery of sound- ing the Opinions of the Judges up)on the Point of Law, before it was thought advisable to risque it at an open Trial. That the Judges were to be sifted separately and soon, before they could have an Opportunity of conferring to- gether. .\nd that for this Purpose four Gentlemen of the Profession in the Service of the Crown were immediately dispatched, one to each of the Judges; Mr. Attorney himself undertaking to Practise upon the Chief Jus- tice, of whom some Doubt was then entertained. "Is it possible that a Gentleman of Bacon's great Talents could submit to a Service so much below his Rank and Character! "This Method of forestaUing the Judgment of a Court in a Case of Blood then depending, at a Time too when the Judges were removable at the Pleasvire of the Crown, doth no Honour to the Memory of the Persons concerned in a Transaction so insidious and unconstitutional; and at the same Time greatly weakeneth the Authority of the Judgment." Crown Law, pp. 199-200. 38 C. H., p. 270. 12 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT attorney-general, had often asked for extra-judicial opinions. Bacon seems to have felt some diffidence about pressing the "particular" feature too far, for on the same day that the judges gave their answers in Peacham's Case, he writes the king of a conference between himself, his legal assistants and all the judges (including Lord Coke), concerning the prosecution for treason of one Owen.^^ He adverts to the suggestion of the king that the *' taking of opinions apart . . . which was prescribed and used in Peacham's cause" be practiced here, but says they thought it unnecessary ''in a case so clear. ""^^ The papers were left with the judges and Bacon thinks there will be no doubt of the result. Again in the proceedings against the Earl and Countess of Somerset, the attorney-general several times consulted the judges extra- judicially as to the best course to be followed, always at the king's direction.'^^ Other cases might be cited from Bacon's writings and elsewhere, but these serve to indicate the practice of that time. There seems to have been no question of the obligation of the judges to respond to the king's interrogatories, even though it involved passing upon a case which might come before them judicially in a short time. Dodderidge, J., in the reply quoted above, does not quahfy the obligation in any way; and though Coke objected to the "auricular taking of opinions, single and apart, " he seems to have given his opinion in every case. True, when he was no longer a judge he protested against the whole custom, and argued well against its desirabiUty,^^ "Bacon's Works, IV, pp. 321 and 600. *° "Yet both my lords of the council, and we amongst ourselves, holding it, in a case so clear, not needful; but rather that it would import a diffidence in us, and deprive us of the means to debate it with the judges (if cause were) more strongly (which is somewhat) we thought best rather to use this form," i.e. a common conference. Bacon's Works, IV, p. 601. " See Letters No. 131 to 138, Bacon's Works, IV, pp. 616-25. *2"The Judges ought not to dehver their opinions beforehand of any criminall case, that may come before them judicially; . . . especially in cases of high nature, and which deserve so fatall and extreme punishment. For HISTORY OF THE ADVISORY OPINION 13 but his practice on the bench was in conformity with the pre- vailing doctrine that the judges were bound to give the king legal advice whenever he requested it.'*^ Charles I appears to have been more sparing in exercising his privilege, but extra-judicial opinions were still given. In the case of Stroud, Long, et al.,'^ the king, before proceeding in the Star Chamber against the members of the House of Commons who had been imprisoned by him, caused the attor- ney-general to request the opinions of the judges on certain questions as to the privileges of a member of Parhament not to be punished for speeches in the House, as to how long such immunity extended, etc., to all of which the judges gave their replies. But when asked if a member of Parhament could be punished for saying in Parliament that "the Lords of the Council and the Judges had agreed to trample upon the Liberty of the Subject and the Privileges of Parliament," they ''desired to be spared to make any answer thereunto, because it con- cerned themselves in particular. " And they repHed to another question that as it was a point of law, it ''would not be for the honor of the king nor the safety of the subject" to deal with the case in Star Chamber. The king dropped the Star Chamber proceedings, but kept the men in prison, and when habeas corpus was sought, he removed them to the Tower and refused to produce them in court. On Michaelmas (1629), he summoned Hyde, C. J., and Whitelocke, J., to Hampton for private ad- vice. During the next term, the court gave its opinion that the men should be released on bail. Other cases of consultation may be inferred from the statement of the son of Whitelocke, J.,*^ that his father "did often and highly complain against how can they be indifferent, who have delivered their opinions before- hand without hearing of the party, when a small addition, or subtraction may alter the case." Coke, Inst. Ill, p. 29. «Maitland, C. H., p. 270. **3 Howell's St. Tr., 235. ** Memorials, p. 14. 14 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT this way of sending to the Judges for their Opinions beforehand. '^ Indeed Fortescue records another case from the time of the Re- storation, when "the Judges met to consult concerning the prosecution of the regicides, and the Attorney-General made several queries, not only in framing of the indictments, but in relation to overt acts and evidence, in which all the Judges gave their opinions. "^^ The legal force of judicial responses to the king's questions at this period cannot easily be determined. The king seems to have acted in accord with advice so given in general, as in the Star Chamber case of 1629. But would the judges have felt bound to follow these opinions, if the same case came before them later in court? This is an important point in the light of the present practice in the United States, as will be seen, but it seems impossible to settle it. Beckman v. Maples- den (1662)'*^ throws a little light on the question. Bridgman, C. J., tells of a dispute in New Sarum between the mayor and certain vintners regarding the measures used, which was by the Lords of the Council referred for decision to certain judges who passed "resolutions" covering the disputed points. He then continues, "as for the objection made from the resolu- tion of the Judges in 1583, I give these answers to it, that it was an extra-judicial opinion; and though I must give rev- erence to the opinions of the Judges, yet I make a difference between cases adjudged upon debate and having counsel on both sides, and resolution upon a case reported or referred to them."'*^ But would he extend this principle to carefully weighed opinions solemnly given to the king? An express reservation on this very point was made in Whis ton's Case (1711).^^ There was some doubt as to whether Convocation could take original jurisdiction in a case of heresy, ♦« Fortescue, 389, on the authority of Keyl. 9, 10. *'Bridg. 60. « L.C. at p. 78. " Burnet's Own Times, p. 867. HISTORY OF THE ADVISORY OPINION 15 and the upper house requested the queen to obtain the opinions of the judges, which she did. Eight judges and the attorney- general and solicitor-general said they had jurisdiction, "but brought no express law or precedent to support their opinion; . . . they were also of opinion, that an appeal lay from the sentence of convocation to the crown; but they reserved to themselves a power to change their minds, in case, upon an argument that might be made for a prohibition, they should see cause for it." Four were contra, but the queen said Con- vocation should proceed, as there was no doubt of the juris- diction. The same principle was enunciated in the case of Lord George Sackville in 1760.^^ "But as the matter may several ways be brought, in due course of law, judicially before some of us by any party affected by that method of trial, if he thinks the court has no jurisdiction, or if the court should refuse to proceed in case the party thinks they have jurisdiction; we shall be ready, without difficulty, to change our opinion, if we see cause, upon objections that may be then laid before us, though none have occurred to us at present which we think sufficient." And Mansfield reiterated this proposition in his note to the Lord Keeper enclosing the opinion .^^ The exis- tence of this opinion is of considerable weight in determining the constitutional practice, for it is subscribed to, without protest other than the reservation mentioned, by judges of great authority .^^ It will be convenient to stop a moment to summarize the practice at this period, because it was shortly after 1760 that 50 2 Eden, 371. *^"The judges . . . are exceedingly thankful to his Majesty for his tenderness in not sending any question to them till the necessity of such reference became manifest and earnest. ... In general, they are very averse to giving extra-judicial opinions, especially where they affect a parti- cular case; but the circumstances of the trial now depending ease us of diffi- culties upon this occasion, and we have laid in our claim not to be bound by this answer." "Mansfield, C. J., Willes, Parker, Denison, Foster, Smythe, Adams, Bathurst, Wihnot, Noel, Lloyd, J J. 16 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the advisory opinion was introduced into the American judicial system. It was well recognized that the judges were bound to advise the Crown at his request. But the judges were averse to giving such opinions and preferred to do so only when " the necessity of such reference became manifest and earnest."^ (Compare this with the "important question and solemn occa- sion" clause of the United States practice). Also judicial senti- ments severely condemned the giving of opinions in any partic- ular case,^ especially in criminal cases. Even in 1485, Hussey, C. J., had taken this stand in criminal cases ;^ and Coke reiterated it emphatically in 1628,^^ though his practice did not do justice to his theory. Hargrave (writing in 1775) says that it is undesirable to give opinions in advance of any case already pending}'' Finally, in the eighteenth century, the judges have enunciated the principle that they will not be bound in actual cases argued before them by extra-judicial opinions previously given. Lord Sackville's Case is the last advisory opinion the records disclose. Very likely the questioning of the judges by the "' Mansfield's Note in Lord Sackville's Case, 2 Eden, 371. ^* See Mansfield's Note just quoted. And cf. Foster's criticism of Peacham's Case (written in 1762) — see note on p. 11 supra; Foster was one of the judges in Sackville's Case. " Stafford's Case — see p. 9 supra. •^"Inst. Ill, pp. 29-30. ^^ "But however numerous and strong the precedents may be in favor of the King's extra- judicially consulting the judges, on questions in which the crown is interested, it is a right to be understood with many exceptions, and such as ought to be exercised with great reserve, lest the rigid impar- tiality so essential to their judicial capacity should be violated. The anti- cipation of judicial opinions on causes actually depending, should be parti- cularly guarded against; and therefore a wise and upright judge will ever be cautious how he extra-judicially answers questions of such a tendency. ... It would be a presumption in us, if we were to be more particular on a subject of so much delicacy, by attempting to mark the bounds to a right, the extent of which we do not find clearly ascertained by precedent or authority." Co. Litt. 110, Hargrave's Note. 5. HISTORY OF THE ADVISORY OPINION 17 Crown is a practice "almost or altogether obsolete," desuetude for one hundred and fifty years having rendered "unconstitu- tional in the sense in which that term is understood in England, any attempt to repeat such an experiment," as has been sug- gested by the Judicial Committee of the Privy Council.^^ This is a purely academic question now, since under the Judicial Committee Act^* already referred to, the king may obtain as good legal advice as can be had in England on any point what- soever .*° The Crown can ask for opinions on particular cases under this act and indeed has actually done so.^^ It may be interesting to observe that the Local Government Act of 1888*^ 58 (1912) A. C. 571, at 586. But compare the opinion of Fitzpatrick, C. J., in 43 Can. S. C. R. 536 (1910): "The members of this court are the ofl&cial advisers of the executive in the same way as the judges in England are the counsel or advisers of the king in matters of law. ... In England the practice of calling on the judges for their opinion as to existing law is well established." He goes on to point out that the principal case does not call for the anticipation of a regular decision in court, and that the opinion if given would not be binding — cf. Mansfield in 1760. " 3-4 Wm. IV c. 41, s. 4. «° Cf. (1912) A. C. 571, at 585. *^ In re Schlimiberger (1853), 9 Mo. P. C. 1. Note especially the words of Dr. Lushington (speaking for the Committee) at p. 12: "The only con- struction which can be placed upon the fourth section of 3 and 4 Wm. IV c. 41 is a construction which shall give full and complete meaning to the words therein contained, without any limitation whatsoever. . . . Their Lordships are of opinion that there is enough in this reference not merely to justify, but absolutely to reqmre them to proceed, because this is re- ferred to them by an Order in Council . . . (which) falls within the . . . provisions of the Statute." ^2 "If any question arises, or is about to arise, as to whether any busi- ness, power, duty or liabihty, is or is not transferred to any county council or joint committee imder this Act, that question, without prejudice to any other mode of trying it, may, on the application of a chairman of quarter sessions, or of the county council, committee, or other local authority con- cerned, be submitted for decision to the High Court of Justice in such sum- mary manner as, subject to any rules of Court, may be directed by the Court; and the Court, after hearing such parties and taking such evidence (if any) as it thinks just, shall decide the question." 51-52 Vic. c. 41, s. 29. 18 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT provides that certain local executive bodies may refer questions of a particular nature to the High Court of Justice for a "de- cision." In Ex parte County Council of Kent and Council of Dover,^ Lord Halsbury, L.C., held that no appeal lay from such a "decision." It is not a judgment, order of court or decree. The appUcation is consultative only and may cover cases about to arise; furthermore it is to be without prejudice to other modes of trjdng the question. But although the practice of referring questions to the judges is now obsolete (in the absence of statute), and although a modern Judicial Committee frowns upon the "earlier practice in bad times" as of no weight with them at the present time, especially in the light of disuse for one hundred and fifty years,^ it is of great importance, for an understanding of the advisory opinion in the United States, that we should know what English statesmen, judges and legal writers deemed to be the legitimate practice, under the constitutional law of England in 1760. For, as the Massachusetts court pointed out in 1878,^^ the intro- duction of the advisory opinion clause in the constitution of Massachusetts of 1780 (its first appearance in the United States) " evidently had in view the usage of the EngHsh Constitution by which the King, as weU as the House of Lords, whether acting in their judicial or in their legislative capacity, had the right to demand the opinions of the twelve judges of England. " The form of the clause is explicable largely because of its English antecedents, and it is more than probable that certain impor- tant opinions (now regarded as "leading" in character) had their source in the practice of the EngUsh judges. 3. The Judges as Advisers to the House of Lords in its Judicial Capacity. The obligation of the judges to give advice in matters of law to the House of Lords when that body is acting as a court rests on the fact that they are members of the House and « (1891) 1 Q. B. 725. " (1912) A. C. 571, at 586. » Opinion of the Justices, 126 Mass. 557. HISTORY OF THE ADVISORY OPINION 19 consequently at its command. From the time of Edward I to the present day, the judges have been summoned to Parha- ment, along with the prelates and barons. They are not peers — the writ nms cum prelatis, magnatihus et proceribus, not cum ceteris prelatis, etc.;^ but as members of the upper house it is their duty to give counsel to the king.^^ It must be remembered that the king dispensed justice in Parliament as well as in the various Councils, and the advice of the judges on such occasions would be especially desirable. Note par- ticularly that the commune concilium regni, one of the most important founts of justice, was composed chiefly of the peers and the judges. Here, too, the learning of the judges could be drafted into service. Appeals lie either to this council or to Parliament.^^ A little later, this jurisdiction was restricted to ParUament alone,^^ but the habit of looking upon the peers in the commune concilium as judicial authorities seems to have discouraged the Commons from attempting to associate them- selves with the upper house in exercising the judicial functions of the "king in ParUament. "^° So this phrase, in a judicial sense, came to mean the king and the House of Lords.'^ But gradually, in the fourteenth and fifteenth centuries the king ceased to sit with the House in judicial matters, and the House succeeded to (perhaps received by delegation^) the final appellate jurisdiction of the "king in Parliament." Meanwhile the posi- tion of the judges in this supreme court has been changing. Matthew Hale conjectured that at an early date they had a " Maitland, C. H., p. 176. ^^"The use of the words 'tractaturi et consilium vestmin impensuri* marks the theoretical position of the upper house and its attendant judges; they are coimseUors preeminently; no such words occiu: in the writs imder which the representative members are elected." Stubbs, C. H., Ill, p. 393. «8 Maitland, C. H., p. 136. Stubbs, C. H., II, pp. 272 sqq. «8 Stubbs, C. H., Ill, pp. 476 sqq., especially note 2 on page 477. '"Stubbs, C. H., II, pp. 258-9. "Maitland, C. H., pp. 136 and 214. "HaUam, Mid. Ages, III, p. 144. 20 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT voice in judicioJ^ But before the end of the Middle Ages (Macqueen^^ says since Edward III) it was a settled principle that they had no vote and were only to give their opinions when asked.^^ Thus in 1403, when a petition from the Duke of Northumberland in the nature of a plea against a charge of treason was referred (qu., by whom?) to the justices for exami- nation to get their counsel and advice, it was ''contrary to the wish of the Lords, who thought judgment belonged to them alone. "^^ And the king and Lords later gave judgment. Here there is evidence that the Lords feared that soliciting the advice of the judges might admit them to share in the judgment. But that has completely disappeared by the middle of the century, as may be seen from the Earl of Arundel's Case^^ and again in Thorp's Case.'^^ In the latter case, the speaker of the Commons had been imprisoned upon a judgment in trespass, and the lower house petitioned the king and Lords that he be released under privilege of Parliament. The Lords stated the case to the judges and asked if Thorp should be set free; but the judges, after conference, replied that they should not answer the question or determine the privileges oi Parliament, for this was a duty belonging to the Lords ;^^ it was added, however, that if the same question were raised in a lower court (except in case of treason, felony, breach of the peace, or a con- demnation by Parliament), the prisoner would be released to attend Parliament. The Lords declined to take the same course and commanded the Commons to elect another speaker. ^3 Hale's Jvirisprudence, p. 59. ^* House of Lords, pp. 36-7. "Maitland, C. H., p. 84. '« Rot. Pari. 5 Henry IV, Nos. 11 and 12. '^ See page 4 supra. " Rot. Pari. 31 Henry VI, Nos. 25, 26, 27, and 28. '•The Lords, "to have knowlegge what the lawe will wey in that behalve, opened and declared to the Justices the premissez, and axed of theym whether the seid Thomas ought to be delivered from prison, by force and vertue of the Privelegge of Parlement or noo. To the which question, HISTORY OF THE ADVISORY OPINION 21 In the Duke of York's Case (1460)®° which involved the title to the throne, the judges were only too glad to keep out of the controversy altogether, and volunteered no advice at all. Two interesting points may be noted. They were not merely asked for an opinion as to the state of the law, but were requested ''sadly to take avisament therin, and to serche and fynde all such objections as myght be leyde ayenst the same, in fortefying of the Kynges right." This brought forth the excuse that they "have to determyne such maters as com before theym in the lawe, betwene partie and partie, and in such maters as been between partie and partie they may not be of Coun- seill."®^ But they pleaded also that "in especiall the mater was so high, and touched the Kyngs high estate and regalie, which is above the lawe and passed ther lernyng . . . and therfore they humble bysought all the Lordes, to have theym utterly excused of eny avyce or Counseill, by theym to be yeven in that matier." But in spite of these protests, there can be little doubt that in ordinary cases the judges were consulted frequently. the chefe Justicez in the name of all the Justicez, after sadde communica- tion and mature deliberation hadde amonge theim, aunswered and said; that they ought not to aunswere to that question, for it hath not be used afore tyme, that the Justicez shuld in eny wyse determine the Privelegge of this high Court of Parlement; for it is so high and so mighty in his nature, that it may make lawe, and that that is lawe it may make noo lawe; and the determination and knowlegge of that Privelegge belongeth to the Lordes of the Parlement and not to the Justices." 8° Rot. Pari. 39 Henry VI, No. 12. Fortescue, 384. *^ Baldwin (King's Council, p. 122), I think, misunderstands this. He interprets the second "partie and partie" as referring to poUtical parties, whereas the emphasis is upon the contrast between determining matters before them and merely acting as counsel. He also says the judges were rebuked for their refusal because "they were the King's particular coun- cillors and therefore they had their fees and wages." But from the Rolls it seems this applies only to the Sergeants and Attorney who were also simi- moned as " Conseillers. " This last point is not quite clear, but there seems to be no record of further replies from the judges. 22 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT During the seventeenth century, it seems they were in constant attendance upon the House of Lords, were even required to get a leave of absence to go upon their circuits, and were severely reprimanded for a failure to be present when their assistance was required.^2 Coke recognizes the practice,^ though with the qualification that it does not belong to them (the judges) "to judge of any law, custome or priviledge of Parliament." It will be remembered that the words of their writ of summons^ do not even admit of this reservation. Apparently the opinions asked by the House of Lords on the petition for a writ of habeas corpus in the Aylesbury Case^ were granted without question. Again in 1760^^ the Lords asked whether an earl whom they had convicted of murder should receive judgment under a cer- tain statute, and whether, if the day first set for execution lapsed without execution, a new day could be set; and the judges replied promptly, the House of Lords acting in accordance with their opinion. Just before the American Revolution, then, it was well settled that the judges were, in general, bound to give advice requested on questions of law arising in cases before the House of Lords as a court. It is doubtful whether, in strict law, they had a right to refuse under any circumstances. They had given opinions in concrete (not hypothetical) cases, though this prac- tice did not persist much longer. They had disclaimed any jurisdiction in important cases of a political nature and in cases involving questions of Parliamentary privileges, though even here advice was appended to their disclaimers. There is no example of a failure to advise except the Duke of York's Case, and in that the House of Lords requested much more than judicial advice; even there the alternative excuse offered ^^Macqueen, House of Lords, pp. 37-40. MInst. IV, p. 50. " See Note 67 on page 19 supra. « 14 East, 92n. 14 Howell's St. Tr., 695. "Ferrer's Case. Foster's Crown Law, p. 138. HISTORY OF THE ADVISORY OPINION 23 by the judges did not deny their obligation to answer, but as- serted their inability and lack of jurisdiction of such matters. The binding effect of their answers has not been discussed. Of course they would not be binding on the House of Lords because it was a superior court; and the question of their binding effect upon the judges could hardly arise, as the cases in which they were given could not very well come before the judges later. A brief survey of the nineteenth century practice will not be amiss. It was accepted doctrine before the Judicature Act that the constitutional advisers of the House of Lords included the judges of the King's Bench and of the Common Pleas, the Barons of the Exchequer and the Master of the Rolls.^^ Since 1875, semble, the justices of the High Court have succeeded to this duty.^^ They do not attend regularly and usually by special order only.^^ Since it has become the settled practice of the House that only "law lords" are to sit in appeal cases, and especially since the legal abiUty of the court has been assured by the statute of 1876 which requires that three "law lords" must be present, the consultation of the judges has be- come increasingly infrequent. It took place in one hundred and twenty-five cases from 1827 to 1899, only four of which were later than 1876.®° The last important example within my knowledge is the great case of Allen v. Flood, (1898) A. C. 1; but the judges were also consulted in The Trial of Earl RusseU, (1901) A. C. 446. Of course the opinions of the judges are not binding upon the House, even when they are unanimous. "The House pays great regard to the opinions of the Judges, especially when concurrent; but the House cannot transfer to others the *'Macqueen, House of Lords, p. 35. "Maitland, C. H., p. 84. *' For the details as to procedure when the judges are summoned to attend to give advice, see Macqueen, House of Lords, pp. 256-8, 416. »°V. V. Veeder in Harv. L. R. XHI, 358. 24 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT constitutional responsibility which attaches to the adjudication of causes in the court of last resort. "^^ But as a matter of fact it is claimed that only in five cases in recent times has the House given judgment contrary to the opinion of a majority of the judges.®^ In contrast to the earlier practice, explicit decisions of con- crete cases are never given. The judges do not even suggest judgments, but merely give their opinions on abstract questions of law propounded by the House; ''but the questions propound- ed are usually so framed as to embrace abstractedly all the difiiculties of the particular case in hand. "^^ On the other hand, it seems to be the better opinion that the questions put to the judges must relate to the case before the House. In Bright V. Hutton^^ an appeal was taken on the question of the amount of contribution payable by a company in winding- up proceedings. The judges were ordered to attend, and when the case came up for argument, the Lords requested a preliminary discussion as to whether the company in question came within the Winding-Up Acts. Both counsel protested that this was not within the scope of the appeal and Lord Brougham replied: "We have now the advantage of the at- tendance of the Judges; we frequently put questions to them besides those which are the questions in the cause. . . . We " Macqueen, House of Lords, pp. 49-50. Compare the words of Eldon, L. C, in Head v. Head (1 Turner and RusseU, 138, at 140): "The answers given by the Judges therefore, although entitled to the greatest respect, as being their opinions communicated to the highest tribunal in the Kingdom, are not to be considered as judicial decisions." ^ V. V. Veeder in Harv. L. R. XIII, 358. ^ Macqueen, House of Lords, pp. 47-8. And compare Head v. Head (1 Turner and Russell, 138), per Eldon, L. C, at p. 140: "Now it is well known that the questions proposed to the Judges by the House of Lords, though made to approximate so nearly to the questions to be determined, as to enable the House to form a judgment on the case actually before it, can- not be the very questions which the House is called upon to decide." "3 H. of L., 341. HISTORY OF THE ADVISORY OPINION 25 are not bound by the form of an appeal as to any questions we may think fit to put to the Judges." The point was then argued and the judges held that the company came within the acts. Lord Brougham then explained that if the judges had held the contrary opinion and the House had agreed with them, they should not have gone on with the case, but as it was, argument would be heard on the point under appeal. So it appears that the question first submitted to the judges here was really necessary to the case, and Lord Brougham, in the words cited above, apparently only meant that the House could put questions collateral to the case in hand. It is un- hesitatingly stated by the House in (1912) A. C. 571, at 585, that the House may ask "such questions as it may think neces- sary for the decision of the particular case. That is a very diflFerent thing from asking questions unconnected with a pend- ing cause as to the state or effect of the law in general." 4. The Judges as Advisers to the House of Lords in its Legis- lative Capacity. In the Anglo-Norman period, as observed above (see p. 1), large powers of legislation were vested in the king and his Magnum Concilium ^^ The judges, as members of this Concilium J not only advised as to legislation, then, but actually participated in its enactment. Legally, their power was coextensive with that of the peers; they were all summoned for the same purpose, namely, colloquium habere et tractatum. Possibly the omission of "ceteris^* and "fide et homagio" and the insertion of "ceterisque de consilio nostra, ^^ are to be interpreted as modifying their perfect equaUty with the Lords in debate.^ From whatever cause, it is true that in the course of time the judges confined their participation to interpreting existing law and giving advice in the framing of pending legislation, but did not share in its enactment. ^^ This seems to be an excellent arrangement, the judges performing those functions for which »* And see Hallam, Mid. Ages, III, p. 143. »«Stubbs, C. H., Ill, p. 395. " Stubbs, C. H., m, pp. 445-6. 26 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT they were best fitted, while the Lords passed upon the questions of pohcy involved. Before long the Commons were admitted to share in the work of legislation,^^ but this had no effect on the advisory position of the judges. During the seventeenth and eighteenth centuries they were consulted quite freely, especially on questions concerning pending legislation, or possible legislation. When the Commons in 1614 passed a declaration against the king's right to impose taxes at the outposts and asked the Lords for a conference on the subject, the Lords first requested the opinion of the judges on the subject of these impositions. The opinion was refused, but, as Hallam conjectures,^^ this may have been due to Coke's dislike for Egerton, L. C, who had moved to consult the judges.^°o On the other hand, the judges freely gave their opinions on the construction of pending bills on November 30, 1621 (on the third reading of the Ordinance Act), on March 9, 1623 (on the third reading of a Lord's Day Act), on March 10, 1623 (after the passage of a defective bill by the Lords), on May 1, 1624 (on the Bill of Grace for Wales), on July 9, 1669 (on the second reading of a bill for reversing a King's Bench judgment), on May 9th and 12th, 1690 (on the third reading of Commons amendments to a bill; here they suggested the insertion of certain words) on May 12, 1711 (on the second reading of a bill re Mandamus and Quo Warranto), on March 6, 1717 (on the Forfeited Estates Bill), on December 22, 1718 (on the Schism Act), on January 17, 1719 (on a Corporation Bill), on May 18, 1720 (an adverse opinion on an Insolvent Debtors Bill), and on April 29, 1723 (on a bill to inflict pains and penalities on John Plunket).^''! In the case of the Schism Act, the Lords said it was "usual to ask the Judges opinions of 98Stubbs, C. H., II, pp. 257 sqq. " C. H., I, p. 340n. loo Lords' Journal, May 23, 1614. "^ Macqueen, House of Lords, pp. 53-57. HISTORY OF THE ADVISORY OPINION 27 the consequences of repealing or making any law."^^^ What appears to be an opinion concerning possible legislation is the case in Michaelmas Vacation, 1721, when the House asked the judges whether the king could prohibit the building of war ships in his dominions; the judges were of opinion that he could not. "This question was asked on occasion of ships built and sold to the Czar, being complained of by the Minister of Sweden. "^^ The only hint of a refusal to reply by the judges is the case in May, 1758, where Lord Chief Justice Willes told the House the judges were ready to answer nine of the ten questions sub- mitted, but asked to be excused from answering number 3 (concerning the operation of a proposed bill and its effect upon the subject), in which request the House acquiesced.^*^ The House, it seems, was both considerate and careful in exercising the privilege of consultation. In the Schism Act case,^°^ the Lords opposed the second question as originally framed, as touching upon "what might judicially come in question in Westminster Hall," and the Lord Chancellor altered the ques- tion; and certain members of the House objected to the third question for a similar reason, and it was voted to withdraw it. Macqueen^^ cites two cases (in 1783 and 1788) in which motions to refer questions to the judges were voted down. In at least one case, ^°^ the judges excused themselves from replying to a question, about a pending bill, "it being likely the case would come before them in the courts below." The House was not favorably impressed with this attitude, however, and the "matter of the Judges" was debated on an appomted day and its further consideration only prevented by a prorogation. In 1760, then, it is an unquestioned rule that the judges are to answer inquiries put to them concerning bills already 10= Fortescue, 385. i°3 Fortescue, 388. 1" Macqueen, House of Lords, p. 57. 1* Ubi supra. 1" House of Lords, p. 57. 1°^ Macqueen, House of Lords, p. 52. 28 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT introduced into the House of Lords, or in contemplation. There is a Httle authority for saying that they may refuse to pass on questions which will come before them in their judicial capacity. The House on the whole is sparing with its refer- ences, and usually follows the advice of the judges. New questions were raised in the nineteenth century. In 1834, an appUcation was made to Parliament for a bill to incor- porate a certain L. and W. B. Company. Such a bill passed the House of Commons and had come up for a second reading in the House of Lords, when it was moved that counsel be heard on the subject and that the judges be ordered to attend. A day was set and a question stated: "Are the provisions of this bill inconsistent with the Bank of England's rights as secured to it under the following acts" (naming seven statutes)? The judges attended, but after a short conference together, reported (through Tindal, C. J.) that "His Majesty's Judges, after con- sidering the question which has been proposed to them, find it proposed in terms which render it doubtful whether it is a ques- tion confined to the strict legal construction of existing Acts of Parliament; and they therefore, . . . request to be excused from giving an answer. "^"^^ With due respect for the learned judges who shared in that opinion, it is submitted, on the facts disclosed above, that this position is untenable. The construc- tion of pending bills has been the most frequent practice of the judges as legislative advisers to the House of Lords. A more elaborate demurrer was advanced in McNaghten's Case (1843).^^^ A verdict of Not Guilty had been returned to an indictment for murder, the defense being insanity; and the question of the extent of insanity that would be a good defense to such an indictment was made the subject of a debate in the House of Lords. They summoned the judges to attend on a given day, and put to them five questions on the existing law of insanity as a defense. Maule, J., objected to answering on "* In re London and Westminster Bank, 2 CI. and Fin. 19 L i°» 10 CI. and Fin. 200. HISTORY OF THE ADVISORY OPINION 29 three grounds: (1) The generality of the questions, not referring to any particular case. (2) The lack of arguments by counsel. (3) The embarrassment that might be caused in the administra- tion of justice.^^^ However, since his brethren disagreed with him on this point, he submitted an answer in general terms. Tindal, C. J., and the other judges subscribed to the vahdity of these objections, but thought an answer should be given. In commenting on the answers,^" the Lords with one voice asserted their undoubted right to require opinions on ab- stract questions of law; such questions are not mere matters of speculation, for the House of Lords may be called on to change the law. Lord Cottenham indulges in the dictum that opinions on a pending bill cannot be required, but he was un- doubtedly relying on In re London and Westminster Bank. Perhaps McNaghten's Case is the last instance of legislative ^^°The questions raised here are especially interesting in view of the principles developed by State courts in the United States — see later. Per- haps they are the result of American influence. "^ "Generally speaking, it is most important that in questions put for the consideration of the Judges, they should have aU that assistance which is afforded to them by an argument by counsel: but at the same time there can be no doubt of your Lordships' right to put . . . abstract questions of law to the Judges, the answer to which might be necessary to your Lord- ships in your legislative capacity." — ^per Lord Brougham. "It was most fit that the opinions of the Judges should be asked on these matters, the settUng of which is not a mere matter of speculation; for your Lordships may be called on, in your legislative capacity, to change the law. ■' — ^per Lord Campbell, "It is true they cannot be required to say what would be the construc- tion of a Bill, not in existence as a law at the moment at which the question is put to them; but they may be called on to assist your Lordships, in de- claring their opinions upon abstract questions of existing law." — per Lord Cottenham. Lord Wynford also says that he never doubted the power of the Lords to ask opinions on questions of existing law, and that he gave such opinions himself when in the Common Pleas; and the Lord Chancellor agreed as to all these comments. 30 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT consultation. Cases in the last century are rare.^^^ But the right to such consultation doubtless still exists.^^^ At least the Judicial Committee thought so in 1912:"* "There is also authority for saying that the House of Lords possesses in its legislative capacity a right to ask the judges what the law is in order to better inform itself how, if at all, the law should be altered. The last instance of this being done occurred some fifty years ago,"^ when the right was expressly asserted by Lords of undoubtedly high authority. " B. In United States 1. When Authorized hy the Constitution a. Massachusetts. The advisory opinion was formally intro- duced into the American constitutional system by the Massachu- setts Constitutional Convention of 1780."^ Even before this time it is quite possible that irregular soHcitation of judicial advice was not unknown."^ Perhaps, too, the early colonial practice of consulting the Plymouth and Massachusetts Bay clergy may have helped to famiHarize the people with the advisory system."^ Washburn tells us"^ that formal appeals "2Cf. the opinion of the court in 126 Mass. 557; "The right of the House of Lords to put abstract questions of law to the judges, the answer to which might be necessary to the House in its legislative capacity, has been often acted on in modern times." "3 Though Maitland apparently has forgotten it — C. H., p. 84. "« (1912) A. C. 571, at 585-6. "^This probably refers to McNaghten's Case. "' For the text of the provision see Appendix I. "^"In Massachusetts, in colonial days, the governor and the council claimed and exercised the same prerogative (i.e., as the king and House of Lords in England) and the colonial judges seem to have acquiesced. " Emery, C. J., in 2 Maine Law Review, 1. "* I am indebted to Dr. C. K. Maxson of the University of Pennsyl- vania for this suggestion. *Tt was the custom of the General Court," he writes, "to refer questions of law to the preachers who wrote out learned opinions. Their citations were, of course, mostly from the Mosaic law and other parts of the Bible. You may see many illustrations of this custom in the Bradford history. The same custom obtained in Massachusetts Bay. " "'Judicial History of Massachusetts, p. 21. HISTORY OF THE ADVISORY OPINION 31 for advice were made to the clergy by magistrates "imtil 1682, when, for the last time, they were consulted in relation to the surrender of the charter (1 Hutch. 303, n.)." Unfortunately the only examples he gives are cases of volimtary interference and gratuitous advice from the preachers of the colony. But whether soHcited or not, such advice was doubtless very desir- able, for apparently no one connected with the court in those early days had had a legal education.^^ Still the influence of this practice upon the introduction of the full-fledged ad- visory opinion in 1780 in all probabiUty was relatively insigni- ficant. Under the Royal governors there certainly was no magisterial consultation of the clergy. Justice was almost entirely in the hands of the governor, and members of his council commonly acted in a judicial capacity.^^ The judiciary was first clearly separated in theory from the executive and legis- lature in the charter of 1691;^^ but even after this, the same person could be both judge and councilor at the same time.^^ Executive consultation of such an ill-defined and immature judiciary passes almost unquestioned, as we saw in the case of England. So the seed of the advisory opinion in Massachusetts may have been sown both by ecclesiastical and governmental practice in the colony. However this may be, there can be Httle doubt that the Massachusetts advisory opinion owes its form at least to the influence of Enghsh practice. It bears many evidences of that influence. In the first place, the clause as first reported to the convention limited the consultative power to the governor and council, and upper house, the counter-parts of the king and House of Lords, and the privilege was only extended to the house of representatives by amendment on the floor of the "°/6«f., Chapters 1-5, passim. ^Ubid., Chapter 6. ^ Ihid., p. 139 "^IMd.yp. 159, 32 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT convention.^^ Again, as has been observed already, the English judges were on record as objecting to the giving of opinions (at least in administrative matters) except in cases of manifest and urgent necessity ;^^ while Hargrave^^^ had stated that the right of extra-judicial interrogation was "a right to be understood with many exceptions, and such as ought to be exercised with great reserve." Correspondingly, opinions of the Massachusetts justices can be required only " upon important questions of law and upon solemn occasions. " Note, too, that as there is no distinction between legislative and judicial ques- tions in England either in the case of the king or of the House of Lords, so there is no distinction here. Of course, the adop- tion of the principle of separation of powers left few judicial duties to either the governor or the legislature. These intrinsic evidences of English influence are corro- borated by the circumstances attending the formulation of this article of the constitution. In its original form it would seem to have been the work of John Adams. The convention chose a committee of thirty (or thirty-one?) to draft a con- stitution after general discussion from the floor. This com- mittee appointed a sub-committee of three — James Bowdoin, Samuel Adams and John Adams — and they in turn delegated the task of preparing the draft to John Adams.^" with the exception of a few minor alterations in committee, the consti- tution reported to the convention was his work. He frankly claims to be the drafter of the Massachusetts constitution of 1780.^2^ The importance of his authorship, for the present purpose, is that he was a lawyer and well versed in English 12* See Jour, of Mass. Const. Conv. of 1779-80, pp. 211, 85-86. 126 Mansfield's Note in Lord Sackville's Case, 2 Eden, 371. i2«Co. Lilt., 110. Hargr. n. 5. 1" Jour. Mass. Const. Conv. 1779-80, pp. 28-30; Adams' Works, IV, pp. 215-216. W8 Walsh, Political Science of John Adams, p. 7n; and see Adams* Works IV, pp. 185-187, 193-200, 203-209 and 219-267; also his correspon- dence of this period in Vol. IX of his Works. HISTORY OF THE ADVISORY OPINION 33 judicial practice.^^ In his discussion with General Brattle concerning the Independence of the Judiciary, he mentions a secret consultation of the judges by the king in Sir Edward Hale's case.^° As his grandson says, "his education, his professional studies, and his habits of generalization led him to favor the main features of the British form of government. "^^ When we couple these facts with the pecuharly EngUsh touches of the article, as pointed out above, we may fairly conclude that John Adams fathered the advisory opinion in the Mas- sachusetts constitution, and that it was a deUberate formula- tion of the existing EngHsh practice as he understood it. It may be thought queer that the advisory opinion clause should be adopted by a convention so dominated by the theory of Montesquieu. Probably there was no intention to interfere with the independence of the judiciary ;^^2 the framers of the clause aimed merely at securing coordination between the departments of government, and promoting a uniformity of interpretation that would make for greater justice and effi- ciency.^ Certainly, as will be seen, the device in operation has not impaired the independence of the judiciary to any appreciable extent. Whether it affects the independence of the other departments is a question that will be discussed later. The first opinion under the advisory opinion clause was given in 1781, at the joint request of the senate and house of representatives.^^ The judges expressed themselves as being honored by the reference, and their advice was followed by ^-^ Adams' Works, III, pp. 519 sqq., and passim. ^^^lUd., Ill, pp. 529-530. "^ Life of John Adams by Charles Francis Adams in Adams* Works, I, at p. 287. "- See The Duty of Judges as Constitutional Advisers, by H. A. Du- buque, in Am. L. Rev. XXIV, 369, at p. 374. ^'^ Note that John Adams himself was a strong advocate of the separa- tion of powers. See his Works, passim, and Walsh's Political Science of John Adams, pp. 20 sqq. I'* Opin. of Justices, 126 Mass. 547. 34 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the houses in their subsequent action. In 1784 a question was put by the senate as to whether the legislature had a consti- tutional right to fill vacancies in the council, and the judges made a brief reply .^^ The next case (1787) of which I have found any record was a reference by the legislature of a memorial from the French consul; the judges, "for substantial reasons," declined giving an extra-judicial opinion. The same year, an opinion was given to the senate as to the legislature's power to commute punishment."^ In 1791, the senate submitted several questions concerning the passage of bills, and in 1807 the governor referred a question on elections."^ These six were the only cases under the clause before 1810. Only eleven in all are reported from 1780 to 1830. Since that time opinions have been requested with increasing frequency. The total number to December 1, 1917, is one hundred and five. Of these the house and senate jointly are responsible for ten, the house alone for forty, the senate alone for twenty-three, the governor and council for twenty-four, the governor alone for six, and the council alone for two. Apparently the judges and reporters did not attach much importance to the early opinions. In no case do they appear in their proper chronological place in the reports. The 1781 case was not incorporated therein till 1879."^ Two cases (1791 and 1807) were transferred from the newspapers to 3 Massachu- setts 567, 568, in 1807.139 The 1784 case and one of the 1787 is^Opin. of Justices, 14 Mass. 470. i3« Opin. of Justices, 14 Mass. 472. "' Opin.s of Justices, 3 Mass. 567, 568. 138 Opin. of Justices, 126 Mass. 547. "8 An explanatory note by the reporter says: "The two following documents containing the solemn opinion of the court upon questions duly submitted to their consideration, pursuant to the constitution, chapter 3, article 2, it was though expedient to transfer them from the newspapers, in which they were published, into the Reports, that a more easy and general access may be had to them, should any future discussions arise on the same subjects. " HISTORY OF THE ADVISORY OPINION 35 cases were included in 14 Massachusetts in 1817; the other 1787 case is not yet on the official records. Even very much later opinions are not in their proper order. One of 1825 is reported in 1829,"° one of 1840 in 1849/^ one of 1833 in 1850/^ one of 1837 in 1861,i« and one of 1839 in 1850."* Yet in spite of this apparent neglect and the infrequent appUcation of the clause there was a strong feeUng in the con- vention of 1820 that it should be repealed. Among the dele- gates of this convention were many prominent members of the bench and bar — Parker, who was chief justice 1814-30; Jackson, who was justice 1813-23; Shaw, who was to be chief justice from 1830 to 1860; Lincohi, who became justice in 1824; Story, a justice of the United States Supreme Court; Daniel Webster; and John Adams, who is reported to have drafted the constitution of 1780. The committee on the judiciary, through its chairman, Mr. Justice Story, reported a recom- mendation that the advisory opinion scheme be dropped.^*^ In arguing for the recommendation. Story emphasized the im- portance that the judiciary should be independent, and the great danger that they would have to give opinions in cases " exclusively of a pohtical character. " Furthermore the scheme deprived individuals of the right of being heard and of the right of trial by jury. In times of pohtical excitement the judges might be consulted when it was certain their opinions would not suit the popular sentiment and "with the very view to make them odious and to effect their removal from office.^** "oOpin. of Justices, 7 Pick. 125, 130ii. 1" Opin. of Justices, 3 Cush. 584. i« Opin. of Justices, 6 Cush, 573. 1" Opin. of Justices, 1 AUen 197n. ^** Opin. of Justices, 6 Cush. 575. »«Deb. Mass. Conv. 1820, 489-90. ^*^ Probably he is referring to the opinion in 8 Mass. 548, of which ex- Justice Morton said, in 1853: "When the war of 1812 was in progress, a question arose which agitated the whole community, a question about which there was more excitement than there ever had been before, or will 36 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Also, "as the constitution now stands, the judges are bound to give their opinions if insisted upon, even in a case where private rights are involved, and without the advantage of an argument." He indicated that the recommendation was practically unanimous, and, without further debate, it was agreed to in the convention "by a large majority." The salient parts of Story's argument were incorporated in an Address to the People"^ which accompanied the proposed amendment. Un- fortunately we are unable to know the sentiment of the people of Massachusetts as to the advisory opinion at that time, for the suggested repeal was combined with a provision that all judicial officers may be removed by the governor with consent of council upon the address of a majority of each house of the legislature, after notice to the person concerned (a provision that was debated at great length and met with much opposition in the convention), the two provisions making up Amendment IX. The vote on this amendment was 12,471 pro, 14,518 contra.^*^ The attempt at repeal was repeated in the Convention of 1853, and apparently again at the instigation of the legal pro- be likely to exist for half a century to come; the question in relation to calling out the militia was got before the supreme court in some manner, I do not recollect how, and they gave an opinion which produced an immense ex- citement in the community, and which was arraigned throughout this state, and throughout the United States, which opinion was reversed by the whole court of the United States, and which opinion would have destroyed the utility and confidence in this court in this Commonwealth, had it not been foimded upon a basis which could not be shaken, and had it not been sup- ported by a law-loving community." Deb. Mass. Conv. 1853, II, 694. 1*7 Deb. Mass. Conv. 1820, 629. "* Ibid., 633. Jameson (Constitutional Conventions, p. 669) com- ments: "In Massachusetts, therefore, a proposition which received the approval of the leading lawyers and judges of the Convention, of all parties, and which involved simply a legal or constitutional question, was voted down by a majority consisting largely of farmers, mechanics, and trades- men. " But Jameson overlooks the possible effect of the second proposed change in defeating the whole amendment. HISTORY OF THE ADVISORY OPINION 37 fession. Marcus Morton, Jr., (who was elevated to the Supreme Bench in 1869) introduced an order that the committee on the judiciary inquire into the expediency of retaining the advisory opinion clause. ^^^ This committee was composed of Marcus Morton, Sr., who had been a justice of the Supreme Court 1825-39; Greenleaf, the official reporter in Maine 1820- 32; Lord, a Supreme Court justice 1859-75; Chapin, a lawyer, who became probate judge in 1858; Choate, a lawyer; and eight members of unknown qualifications. ^^° The chairman (Mar- cus Morton, Sr.) reported a recommendation that the gover- nor and legislature should not have the right to require opinions of the judges.^^^ In opening the debate he emphasized the separation of powers principle, the importance of keeping the judiciary out of the *' vortex of politics," and the ex parte character of opinions involving private rights. ^^^ Mr. Lord added that the clause permitted "the legislative or executive department of the government to put, in many important in- stances, the whole responsibiUty of their action upon the judicial department" and besides "it is very Uttle different from per- mitting the judiciary to control the legislative and executive powers."^ In reply, statements were made by Mr. Warner, Mr. Hooper and Mr. French that the scheme had worked well in practice, that no evil had resulted, that it secured a desirable uniformity of action in questions under the constitution and that " the supreme court of the State can render no better service to the Commonwealth than in answering such questions as may be propounded to them by the legislature."^^ The recom- mendation came from a unanimous committee and was adopted by the convention after a short debate. The sentiment of ^" Deb. Mass. Conv. 1853, I, 160. ^^°Ibid., I, 89, and Appleton's Cyc. of Amer. Biog. sub nom. »» Ibid., I, 447. ^Ubid., II, 685. "^Ibid., II, 687. ^Ibid., II, 686. 38 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the people is again unascertainable, however, for the repeal was only one of many changes in the revised constitution, which was rejected, 63,222 to 68,150.^ Probably it was not considered a point of great importance, for it is not discussed at all in a pamphlet "On the Proposed Constitution 1853" by G. T. Curtis, Samuel Hoar, Marcus Morton, C. F. Adams and others. The advisory opinion has now become an unquestioned fixture in the Massachusetts system. There is no disposition on the part of the governor or legislature to forego the advantages of its use. Since 1890, fifty-one such opinions have been reported — twenty-nine of them since January 1, 1910. Certain well- defined rules of construction and apphcation have been worked out, some of them Hmiting the clause in important particulars; most of this elaboration belongs to the period since 1877, when the justices, in an opinion of almost revolutionary character, asserted a claim to considerable discretion in refusing their advice.^^ Several principles regarding the juridical nature of advisory opinions have been clearly enunciated. These will be disclosed in the detailed analysis to follow. As to the effect of the scheme in Massachusetts, I can not do better than quote from a recent book from the pen of a Massachusetts writer: "The system of advisory opinions has also worked well. The Massachusetts supreme court vetoes fewer legislative enactments than the supreme court of any other of the larger states. This relatively infrequent use of the judicial veto may be partly explained by the absence of most of the constitutional limitations upon legislative powers and procedure which abound in the constitutions of many states. But it is to no inconsiderable degree the result of the legislative and executive practice of calling upon the supreme court for their opinion concerning the constitutionahty of proposed measures, when their constitutionahty is questionable, i« Ibid., Ill, 768. ^ Opin. of Justices, 122 Mass. 600. See pp. 167-70 infra. HISTORY OF THE ADVISORY OPINION 39 in advance of their enactment into law. Often there are several such requests for advisory opinions in the course of a single legislative session. The opinion of the court is invariably accepted. When the opinion is adverse to the constitutionality of a proposed measure, the legislature may, if it chooses, pro- ceed thereafter by means of a constitutional amendment. This has been done in several cases. More frequently the measure is dropped. "^^ b. New Hampshire. New Hampshire evidently borrowed the clause from Massachusetts, for the text in the constitu- tion of 1784^^^ follows the wording of the constitution of the latter state, except that "governor" is replaced by "president" and "supreme judicial court" by "superior court." The clause is repeated in the constitution of 1792, the word "gover- nor" now being used, and this wording is unchanged in the con- stitution of 1902. No trace of an appUcation of the scheme is discoverable before 1816, when the governor and council appealed to the justices to determine the constitutionaUty of the legislation amending the Dartmouth College charter, and the power of the governor and council under such legislation. A reply to the first question was refused on the ground that it affected private rights which might later come before the court in a regular action. As was the case in Massachusetts, this opinion was not reported until much later.^^^ Only four opinions are recorded as given before 1850 and but nine more from 1850 to 1870. The total to December 1, 1917 is forty-nine. Of these, twenty were in response to interrogations from the house, nine were given at the request of the senate, eighteen "'Holcombe, State Govt., p. 381. ^*^ For the text of the provision see Appendix I. ^58 Opin. of the Court, 62 N. H. 704, (1882). Three other opinions are not in chronological order: one of 1865 was reported only in 1874 (Opin. of Justices, 53 N. H. 634); one of 1877 in 1882 (Opin. of Justices, 62 N. H. 706); and one of 1889 in 1912 (Opin. of Justices, 76 N. H. 612). 40 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT at the request of the governor and council, and two at the re- quest of the governor alone. The interpretation and apphcation of the clause have dif- fered from the Massachusetts practice only in that the judges have been more generous in exercising the discretion claimed for them, as will be seen later. The writer has been unable to ascertain the effect of opinions in determining the action of the executive and legislative departments, but the inclusion of the clause in the constitution of 1902 would go far to indicate a general satisfaction with its operation in the past; for in general, the judiciary committees of constitutional conventions, composed mostly of legally trained men, oppose the practice as contrary to certain traditional theories of law and the judicial function. This has been illustrated in the conventions of 1820 and 1853 in Massachusetts, and will be further exempHfied in other cases. c. Maine. The next State to adopt the advisory opinion was Maine, in the constitution framed upon its separation from Massachusetts in 1820.^^° The influence of the consti- tution of the older State would naturally be an important factor in determining the content of this new charter of govern- ment. But it is interesting to observe that the new State made the clause part of its constitutional system the very year when a convention in the parent State was urging that it be elim- inated from theirs. The wording has been modified slightly however. One change should be noted. The Massachusetts clause gives the power of consultation to ''each branch of the legislature, as well as the governor and council." The gover- nor alone had exercised the power in 1807,^®^ and several other replies were given, either to the governor or to the council,^^^ before the justices expressed a doubt as to whether the consti- *®° For the text of the provision see Appendix I. "1 Opin. of Justices, 3 Mass. 568. "^In re Opin. of the Justices, 211 Mass. 620, and In re Opin. of the Justices, 211 Mass. 630. HISTORY OF THE ADVISORY OPINION 41 tution authorized such replies, a doubt resolved against the governor in 1913.^^ Under the Maine constitution this ques- tion cannot arise, for authorized requests may come from "the governor, council, senate or house of representatives." The clause, as reported from the committee, was adopted unani- mously by the convention. ^^ The executive and legislative departments were not slow to avail themselves of the advantages of judicial advice. The first opinion was given in 1821, and twelve are on record before 1840. The use of the scheme has been steady, though not very frequent, and the cases are well scattered. During the ninety-seven years of its operation, fifty-six opinions in all have been reported. These are distributed among the different interrogators as follows: house, sixteen; senate, eleven; gover- nor, seventeen; council, seven; governor and council jointly, five. They have been reported with reasonable promptness, though the opinions in 3 Maine, 477, and 3 Maine, 481, are of earlier date than the opinion in 2 Maine, 439.^^ No information is available as to the success or failure of the device in Maine, but the writer is not aware of any attempt to do away with it. The judges have seemed favorably dis- posed to it and there are very few refusals to answer, as com- pared with other States. The interpretation of the clause has been similar to that of Massachusetts and New Hampshire, with the exception of the doctrine of 70 Maine, 570, which can better be considered at another place. d. Rhode Island. When Rhode Island tardily substituted for her charter of 1663 a constitution (ru 1842) of more modem content, she was sufficiently impressed by the advisory opinion scheme of her New England neighbors,^^® to borrow it for her ^^ In re Opin. of the Jiistices, 214 Mass. 602. ^ Debates, etc. of Conv. of 1819, Perley, p. 175. *"Also an opinion of 1871 — Opin.s of the Justices of the Supreme Judicial Court, 64 Me. 588— was accidentally overlooked until 1875. ^«* Thayer (Cases on Constitutional Law, I, p. 183 n.) thinks it quite possible that the judges in Rhode Island at least gave extra-judicial advice 42 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT own use.^®^ But important changes appear in the version of this State. No council was created by the new constitution, so the power of consultation rests in the governor or either house of the general assembly. But the "important question and solemn occasion" qualification has disappeared; the judges are to give their opinion upon ''any question of law." The importance of this change may be seen from the fact that, though references on rather trivial and unnecessary points have not been lacking, there is no record of a refusal to give an opinion requested. The desirability of so comprehensive a requirement may well be questioned (see Chap. III). Also, the constitution explicitly states that the opinion must be in writing. This is probably a cautious superfluity, for the exist- ing practice was to give written opinions, however brief, and there is no reason to suppose that the careful lawyers who at- tain the highest judicial honors in our States would be inclined to do otherwise. No opinions were requested for twelve years, as far as the records disclose, the first one being Opinion of the Supreme Court, 3 Rhode Island, 299. The forty-six cases in the reports are well distributed from 1854 to date, except for a gap from 1858 to 1877. They are reported promptly, with one exception.^^^ The legislative department seemingly has not taken much inter- est in the scheme — one request has come from the general assembly, three from the house and nine from the senate, the governor being responsible for the other thirty-three. The cases are of a humdrum type, and the opinions commendably brief but monotonously uninteresting. The justices have in colonial times, inferring this from the statement of Howell, J. in Trevett V. Weeden, Thayer, Cases, I, p. 73: "The court was ever ready, as consti- tuting the legal counsellors of the State, to render every kind of assistance to the legislative, in framing new or repeaUng former laws." "^ For the text of the provision see Appendix I. "« In re Election of School Committee, 28 R. I. 629. Also the arrange- ment of the opinions in 4 R. I. is not chronological. HISTORY OF THE ADVISORY OPINION 43 accepted the clause as it stands, and anyone is free to indulge in its interpretation without reference to judicial precedent. The opinions are void of any contributions to the theory of the judiciary department in the American system. Perhaps this is the inevitable result of a clause as broad as this one is; perhaps it testifies to a more generous cooperation of the judges with the other departments. In any case, it seems to be the opinion in Rhode Island that the scheme is a success, for the advisory opinion was reaffirmed in a judicial amendment (Amendment XII, Section 2) which was adopted November 3, 1903}^^ e. Missouri. Heretofore the advisory opinion has been confined to the New England States. The historical explana- tion of its long leap to the Mississippi Valley is wanting. Possi- bly it was due to the efforts of lawyers or others who had been brought up in the original habitats of the device, and later turned their faces westward. This first transplanting was an unsuc- cessful experiment, for environment and culture were both adverse. An adequate conception of the origin, history and purpose of extra-judicial consultation was lacking and the deficiency foredoomed failure. The clause in question was incorporated into the constitu- tion in 1865.^^° Two new elements were introduced. Opinions must be given only upon " important questions of constitutional law, and upon solemn occasions." The effect of this change must not be over-estimated. Most questions of statutory law, if ''important," could be brought within the "solemn occasion" provision, if the latter were not too strictly con- strued. Quite likely the chief intention of the framers of this clause was to provide a means for the judges to pass upon the constitutionality of measures before, instead of after, enactment. The other new element is a direction that all opinions given un- der the clause "shall be pubhshed in connection with the re- ported decisions of said court. " Probably this was unnecessary »«8 Thorpe VI, p. 3240. ^^° For the text of the provision see Appyendix I. 44 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT in the light of modem practice, but it is worth while to make that practice certain on this point. If such opinions are to be given and are to be the basis of legislative or executive action in many cases of a difficult nature, it is by all means desirable that the public should have the means of knowing their con- tent. It is important that succeeding legislatures and execu- tives should know that certain measures are inacceptable and why, that certain policies of their predecessors were determined by constitutional considerations which will probably continue to influence the judicial department. It is important that the judges themselves and the legal profession should be able to ascertain how great constitutional jurists have dealt with problems, even though their consideration has been extra- judicial and is not binding upon the courts. The first request^^^ under the clause came from the governor on November 27, 1865, and was answered very concisely with- out comment. The second^^^ was from the senate, on Decem- ber 9, 1865, and, though in more general terms, did not differ essentially in nature from the previous request; both asked for opinions as to the power of the legislature to pass certain acts, and as to the construction of a constitutional clause. The judges refused to reply and proceeded to give a detailed inter- pretation of the advisory opinion provision. After declaring that the judges must determine what are ''questions of con- stitutional law" and what are ''solemn occasions," they con- strue the clause as if these two requirements must concur in order to bring the question within the section. A question must be "a question of law only, and it must arise upon the Constitution alone. It can scarcely be any other than some question of the proper construction and true meaning of some provision, clause, or words, contained in the Constitution; and it must be in its own nature, a judicial question, the final "^Advisory Constitutional Opin. of the Judges, 37 Mo. 129. "^ Advisory Constitutional Opin. of the Judges, 37 Mo. 135. HISTORY OF THE ADVISORY OPINION 45 determination of which, by the organic frame of our Govern- ment, properly belongs to the Judiciary. . . . Such questions should be important in reference to the pubUc interest, and the necessary and immediate action of the Legislative or Exec- utive branch of the Government, upon some matter of unusual magnitude and solemn concern for the public good." The judges' right to decide whether a request was within the section seems to have been exercised very whimsically, for the next three cases^^^ scarcely stand the tests suggested above; yet answers were given. But in 51 Missouri, 586 (a case which is with difficulty distinguishable from that in 37 Missouri, 139) a reply was refused and the above principles reaffirmed.^^^ Two opinions foUow^^^ in which the questions again fail to measure up to the standards set in 37 Missouri, 135, but proved acceptable. Then in 1874 the judges once more refuse to give their opinions, in the one case (with some reason) to the house of representatives ,^^^ in the other to the governor.^^^ In the latter case still another criterion is suggested — questions must not relate to the constitutionahty of an act already on the statute books. Such questions had already been answered in two cases.^^^ The house of representatives was the source of two references to the judges, the senate three, and the governor five. Of these ten requests, four were denied an opinion. Under these *^3 Advisory Constitutional Opin. of the Judges, 37 Mo. 139. Opinion of Court in Response to Governor, 43 Mo. 351. Opinion of Court in Re- sponse to Governor, 49 Mo. 216. "* See criticism of H. A. Dubuque in Am. L. R. XXIV, pp. 389-90. "* Opin. of Supreme Court Judges on Township Organization Law, 55 Mo. 295 (this case is not reported in chronological order); Opin. of the Judges in Response to a Resolution of the Senate, 55 Mo. 215. ^"" Opin. of the Court in Response to the Resolution of the General Assembly, 55 Mo. 497. "^ In the Matter of Inquiries Submitted by His Excellency, 58 Mo. 369. "* Advisory Constitutional Opin. of the Judges, 37 Mo. 139; Opin. of Supreme Court Judges on Township Organization Law, 55 Mo. 295. 46 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT circumstances/^^ it is no wonder that the clause was omitted from the constitution of 1875. It had been rendered ineffective by narrow judicial construction, and could be expected to be of little use while under the ban of judicial disapproval and the disadvantage of judicial misunderstanding. In 12 Colorado, 466, and again in 3 South Dakota, 548, the statement is made that Missouri "profited by her experience" and excluded the advisory opinion in 1875. This gives a false impression as to the character of the advisory opinion. It impUes that the people of Missouri gave it a fair trial and found it undesirable. This is not true. It did not have a fair trial in Missouri, first because of the unfortunate interpolation of the word "consti- tutional," and secondly because the judges were not familiar with its history, did not appreciate its usefulness, and main- tained an attitude of hostility throughout. f. Florida. The next appearance of the advisory opinion was in territory equally remote from New England, and proba- bly unaffected by the example of Missouri. It would be inter- esting to know how such a heterogeneous assemblage as the convention of 1868 happened to include so unusual a provision in their proposed constitution. Very probably the peculiar form of the clause^^^ was due to special Reconstruction con- ditions. The governor alone is permitted to interrogate the justices. Possibly the idea was to promote cooperation between the executive and judiciary, and facilitate their union against a legislature that promised to be both incompetent and untrustworthy; possibly there existed an apprehension that if they attempted to succor that incompetence by permit- ting legislative consultation the popular organ of government might pervert the privilege, to oppress or gain control of the judiciary. The section is very broad in other respects, permit- ting questions "at any time ... as to the interpretation of any portion of this constitution, or upon any point of law." "8 Cf. Thayer, Legal Essays, p. 58. '*" For the text of the provision see Appendix I. HISTORY OF THE ADVISORY OPINION 47 As in Rhode Island, the opinion must be given in writing. Very difficult questions were put to the justices from the start. On October 14, 1868,^^^ an opinion was requested as to the eligibihty of former members of the Secession Convention to hold pubHc office under the existing constitution. In Novem- ber of the same year an extraordinary session of the legislature went through the form of impeaching the governor, and the latter promptly asked the justices if the proceedings were vaUd.^^ Here, as was pointed out in the opinion, the justices practically had to decide who was acting governor of the State, for if the proceedings were vahd, the interrogator was not en- titled to an answer under the constitution.^^ The possibiUty of indirect judicial consultation by the legislature came to light in January, 1869, when the governor, at the request of the legislature, asked an opinion as to the legaUty of the recent election of a United States senator; the judges protested that this was not a matter of judicial cognizance, but felt bound under the constitution, to give the opinion required.^^ Nine more questions were referred to the judges during the next four years, one of them^^ again at the instigation of the legisla- ture. Apparently it had become obvious that the form of the clause was too Hberal, for it was materially changed by Amendment XI of 1875,^^ which limited requests by the gover- nor to questions ''as to the interpretation of any portion of this constitution upon any question affecting his executive powers and duties. "^^^ At once the tide was checked. There are two constitutional questions in 1875 and another in 1877; then there is a gap of ten years. No more questions originating ^*^In the Matter of the Executive Communication, 12 Fla. 651. "2 In the Matter of the Executive Communication, 12 Fla. 653. ^" See Baldwin, Amer. Judiciary, p. 49. ^** In the Matter of the Executive Communication, 12 Fla. 686. ^" In the Matter of the Executive Communication, 14 Fla. 320. ^^ For the text see Appendix I. **' This wording is continued in the constitution of 1885. See Appen- dix I. 48 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT with the legislature are found in the reports. With the re- sumption of interrogatories in 1887, the judges promptly availed themselves of the restrictions imposed in 1875, and since that time have refused to answer in nine different cases, on each occasion demurring that the question was not one involving the powers or duties of the executive under the constitution. The test established is reasonably clear, but the judges have not been consistent in applying it;^^^ furthermore they have construed the provision with unnecessary strictness, thereby reducing the value of judicial aid to the executive to a mini- mum. Most of the questions to which a reply can be expected, as the clause is interpreted, could as well be answered by the attorney-general or some other legal adviser. It is practically impossible to get an opinion as to the constitutionality of a statute, but perhaps this is not undesirable, as long as it is not available to the legislature before a bill has become law. Florida's contribution to the law or theory of the advisory opinion has been small, because of the limited scope of the clause, the close and unsympathetic construction placed upon it, the sameness of the questions submitted and the brevity of the repUes. Perhaps the privilege has been a source of satis- faction to the governor occasionally, but it is hard to see why the legislature has not proposed an amendment which would extend the same favors to them. The people were evidently content with the scheme when they framed and adopted the new constitution of 1885; still it may be observed that the clause had not been used for eight years, and that refusals to answer were as yet unknown. g. Colorado. There is strong evidence that the advisory opinion found its way into the constitutional system of the Centennial State, not as an experiment but as a remedy for existing ills. It does not appear in the constitution of 1876, ^** Cf . In re Executive Communication Concerning Powers of Legisla- ture, 23 Fla. 297, and In re Advisory Opinion, 43 Fla. 305. HISTORY OF THE ADVISORY OPINION 49 but was adopted as an amendment ten years later.^^^ In 1889, Chief Justice Helm sketched the historical setting in the following words: "The successive legislatures meeting after the admission of Colorado to statehood encountered great difficulty in the enactment of laws on account of numerous wise but troublesome limitations contained in the constitution. Perplexity and confusion arose in consequence of legislation which this court was ultimately compelled to hold invahd. It was deemed expedient that each house should have the privilege of submitting questions, so that the injurious consequences arising from unconstitutional legislation might be avoided by having the validity of proposed legislative acts thus deter- mined in advance. "^^'^ A similar picture is revealed in the advice of Governor Eaton to the first legislature assembling after the adoption of the amendment: "I cannot forbear to direct your attention once more to the damage that has been done the State by the enactment of laws that have proved to be unconstitutional. It is a serious matter, for it breaks down pubUc confidence in the wisdom of the Legislature. It is an error easily avoided. The Constitution had this source of danger in view when it provided that on grave occasions the Supreme Court shall give its opinion to the General Assembly on the legality of any legislation contemplated. The long hst of laws that conflict with the Constitution are a significant comment of this question. It seems to me that any occasion where there is the least doubt, is grave enough to warrant vour honorable body in seeking the advice of the court. It would save the people great expense and confusion if you would habitually do so."^^^ And corroborating this explanation is the fact that the first fifteen references (except two on the procedure of legislative enactment) were questions as to the constitutionaUty of pending or possible bills. This contempor- *" For the text of the provision see Appendix I. 19° In the Matter of the ConstitutionaUty of SB. No. 65, 12 Colo. 466. "1 Message of Jan. 7, 1887. SJ. 1887, 126. 50 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT aneous construction of the legislature is an important indication of the purpose and meaning of the amendment.^^^ ]y[j- q y. A. Greene,^^^ a member of the legislature that proposed the amendment, testified to the same effect: ''The legislative mind had neither a negative nor an affirmative purpose in regard to the value of such opinions as general judicial precedents. So far as evidence goes, both from word and act, the Legislature was confined solely to the purpose of avoiding breakers as to its own acts."^^^ True, in a later passage of the same letter^^^ he minimizes preceding legislative troubles, but the purpose of the legislators in proposing the amendment is the point in which we are interested, and not the accuracy of Chief Justice Helm's representations as to the extent of judicial repeal from 1876 to 1886. The advisory opinion clause was one of several changes in the judicial article of the constitution proposed in SB. No. 87, which was introduced by Senator James M. Freeman, on January 20, 1885.^^^ The bill was referred to the committee "2 In the' Matter of the Constitutionality of SB. No. 65, 12 Colo. 466, at p. 471. ^*>3 Mr. Greene began the practice of law in 1871, was elected represen- tative to the Colorado legislature in 1881 and 1883, and a senator in 1885, He was chairman of the judiciary committees of both house and senate in turn, and was a member of that committee in the senate when the proposed amendment was referred to it. He was the author of a Digest of Supreme Court Decisions (Colo.) and occupied the chair of Roman Law in the State University. »" From a letter to The Nation on Jan. 2, 1890, Vol. 50, p. 50. 196 "I think no instance can be found in which a competent legislator has been seriously troubled (by constitutional limitations). The diflficulty in the way of needed legislation has been the incorrigibihty of the personnel of the Legislatures. Instances of enactments pronounced void or inopera- tive on constitutional grounds are not so niunerous as might be inferred from the words of the Judge; and the cause of any such is usually traceable to the stupidity of its framers." Ibid. '^ SJ. 1885, 176. HISTORY OF THE ADVISORY OPINION 51 on the judiciary^^^ which redrafted and reported it, on February 23, w-ithout the advisory opinion clause. But this was restored in committee of the whole (March 4th). ^^^ The bill was passed upon March 9th, all the members of the judiciary committee voting for it, except Senator Chilcott. Amendments from the house compelled it to run the gauntlet of a conference committee, and final passage only took place on April 6th.i^® The governor promptly approved on April Vth.^^^ In consider- ing the Uttle opposition the measure met in the legislatiure and the apparent approval of the legal lights therein, it must be remembered that the bill contained six other proposed amend- ments, some of considerable importance. ^^^ But the act also provided that voters could designate by number those changes which they "dished to approve. The advisory opinion amend- ment was adopted on November 2, 1886, by a vote of 16,858 to 9,453.202 The wording of the clause calls for very careful considera- tion.2o^ First of all it is the "Supreme Court" and not the justices that is to give the opinion. The change may have been fortuitous and without any special meaning^^ but it did not pass unnoticed. In the opinion already referred to,^^^ Helm, C. J., makes this difference in wording together with the required pubHcity of opinions, the basis of his conclusion that the opinions "have all the force and effect of judicial pre- "' A. M. Stevenson, O. F. A. Greene, J. M. Freeman, Mason B. Car- penter, George M. Chilcott, Frank Tilford, A. J. Rising, C. C. Parsons, and B. H. Butcher. "* Greene says by "a hasty amendment." The Nation, ubi supra. i»»SJ. 1885, 1738. »«« Sess. L. 1885, 145-7. *°* The disappearance of the advisory opinion in the judiciary committee and Greene's criticism in The Nation, already referred to, indicate the usual disapproval of the profession. 2°2 Sess. L., 1887, 483; and MiU's Annot. Stat. Colo. I, 258. *°3 For the text of the provision see Appendix I. "^ O. F. A. Greene in The Nation, ubi supra. ^^ In the Matter of the Constitutionality of SB. No. 65, 12 Colo. 466. 52 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT cedents." The correctness of his position will be examined later, but to say the least the phrase in question was carelessly employed if the intention was to establish a purely extra- judicial practice. Hayt, C. J., reiterated the same argument in a later case^^o^ though guardedly. The court ultimately escaped from the inconvenient results of this proposition, ^^^^ but to this day the court acts as a whole upon questions sub- mitted and opinions are generally rendered "Per Curiam. " The second notable change is that the importance of the questions and the solemnity of the occasion are made concurrent condi- tions; both requirements must be satisfied before the court is required to answer. As already remarked, perhaps in common sense this quaUfication is unnecessarily verbose, for the solemnity of an occasion ought to make a question important, as a question of sufiicient importance might well give solemnity to the occa- sion of its consideration. Still if the judges in Colorado had been disposed to construe the clause as strictly as it has been done elsewhere, the concurrence of these requirements would have given them an excellent means of limiting its operation. Finally, as in Missouri, the opinions are to be "pubHshed in connection with the reported decisions of said court." As far as can be ascertained, this has been done faithfully and with reasonable promptness, though the group of opinions given in each session of the legislature is not chronologically arranged within itself, for the first few sessions.^^^ The privilege of judicial consultation has been more widely used in Colorado than in any other State. Ninety-three opin- ions in all have been recorded in a period of thirty years. The governor has made twenty-four requests, the senate thirty-six, the house thirty-two, and the senate and house jointly, one. 2'» In re Priority of Legislative Appropriations, 19 Colo. 58. 2°' In re Fire and Excise Commissioners, 19 Colo. 482; and see p. 229 infra. 208 The inconvenient failure to date decisions in the Colorado reports makes it diflficiilt to check up a matter like this. HISTORY OF THE ADVISORY OPINION 53 Of the sixty-nine for which the inquiring spirit of the law- makers is responsible, seventeen were given to the legislature of 1887, thirteen to that of 1889, six to that of 1891, and nme to that of 1893. Recent legislatures have Umited themselves to from one to three requests each. Possibly this is due to improvement in the personnel of the lawmaking body; cer- tainly if there is not greater abiUty there, there is at least greater self-confidence. It would be very interesting to know whether the decrease in the number of advisory opinions asked has been preceded or accompanied by a decrease in the number of laws rejected by the supreme court as unconstitutional. Refusals to answer have been unusually numerous also, reaching a total of twenty-four. Sixteen of these, beginning with the very first one,2°^ rested, in whole or in part, upon the proposition that such constitutional provisions could not be considered as authorizing an ex parte adjudication of private rights. This was a perfectly simple proposition, which had already been recognized in other States, and which was quite in accord with the best authority in the Enghsh antetype. However, the Colorado justices have given it a somewhat forced appHcation, and the frequent recurrence of this same objection must be charged partly to judicial severity, partly to legislative stupid- ity. I think it must be said that the scheme, on the whole, has worked well in Colorado. As will appear in a subsequent chapter,^^'' the advice of the court is usually followed, and its opinions have been a very valuable aid both to the executive and the legislative departments. The judicial department has suffered no loss of independence or prestige, and the judicial functions have not been seriously impaired. I am not aware that any movement has been made to do away with the device and it is to be hoped that failure would attend any such attempt. 2°^ In the Matter of Senate Resolution on the Subject of Irrigation, 9 Colo. 620. 210 See pp. 154-158 injra. 54 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT h. South Dakota. In this most recent adherent to the ad- visory opinion, as in the New England States, the clause formed part of the original constitution.^^! For some reason (perhaps because of the notorious flood of legislative interrogations in Colorado in 1887 and 1889) the privilege of judicial consultation is limited to the governor, but there is a decided improvement in wording upon the Florida clause. Opinions may be required *'upon important questions of law involved in the exercise of his executive powers and upon solemn occasions." The omis- sion of the word "constitutional" (responsible for six of the nine refusals in Florida) is most commendable. Also the adjunction of the phrase "and upon solemn occasions" as an independent class of cases should make the clause much more flexible and useful; no test case has arisen, but the judges have indicated ohiter that they would construe this dependently.^^^ However, the opinion given in 1914^^^ is contra. The device has been used very sparingly — twelve times altogether, and only once since 1900. The judges may be responsible for this, for their replies have not been cordial and they have been disposed to give the section "a restricted rather than an enlarged interpretation. "^^^ The proportion of refusals is large — four out of twelve requests — but they have not been unreasonable; more would have been quite justifiable.^!^ Ap- parently the court has construed the veto power of the governor as an executive power ,^!^ which really permits the testing of a bill's constitutionaUty before it is enacted into law.^^^ In fact the court has indicated a wiUingness to answer purely legisla- ^ For the text of the provision see Appendix I. 212 In re House Resolution No. 30, 10 S. D. 249. 2" In re Opin. of Judges, 34 S. D. 650. 21* In re Chap. 6, Session Laws of 1890, 8 S. D. 274. 215 For example In re Limitation of Taxation, 3 S. D. 456, and In re State Census, 6 S. D. 540. 2" Cf. In re Executive Communication, 23 Fla. 297. 2" In re Limitation of Taxation, 3 S. D. 456, and perhaps In re State Warrants, 6 S. D. 518. Cf. the scheme in Panama and Colombia, p. 94 infra. HISTORY OF THE ADVISORY OPINION 55 tive questions as long as private property rights were not involved.2^^ But little use has been made of these opportuni- ties. 2. When Not Authorized by the Constitution It is not the purpose of this section to examine those cases where requests have come from sources other than those empowered to interrogate the supreme court when an ad- visory opinion clause existed in the constitution.^^^ But in many of the States, there have been occasions when the need of judicial advice was so keenly felt, that attempts have been made to secure such assistance without any constitutional author- ization whatever. Indeed some legislatures have tried to impose upon the judges an obHgation to answer by law. Sometimes judicial opinions are not required in so many words, but extra- judicial duties are imposed which in effect involve the elicitation of such opinions, purely by way of advice. These different kinds of extra-constitutional judicial consultation will be reviewed here briefly. a. Federal Government of the United States. The advan- tages of judicial assistance in legislative matters was clearly seen by several of the leaders in the constitutional convention of 1787. Madison, Ellsworth, James Wilson and Gouvemeur Morris urgently advocated that the judiciary be joined with the executive as a revisory council to pass upon legislative acts of the other department. Several reasons were advanced for such a scheme. It was feared that a popularly elected legis- lature would be too strong and would become master of the other departments of government. The executive would need the reinforcement of the judiciary^^ and the judiciary must have some such means of defending itself against legislative encroachments.^^ Then, too, the character of legislation "8 In re State Census, 6 S. D. 540. "' See pp. 152-4 injra. 220 WUson, in 5 EU. Deb. p. 121. 221 Madison, ibid., p. 178-80j 56 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT would be improved. "The aid of the Judges will give more wisdom and firmness to the Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive cannot be expected always to possess."^ "It would be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicu- ity and technical propriety in the laws. ... It would . . . be useful to the community at large as an additional check on those unwise and unjust measures which constituted so great a portion of our calamities."^ It would hinder the passage of pernicious laws and discourage demagogues from attempting to get them passed; if the judges were compelled to wait till the laws came before them in judicial proceedings, they could only negative laws which were unconstitutional; in a revisory council they could negative any unjust or harmful law.^^'* The chief arguments in opposition were two. First, it was pointed out that this council would violate the principle of the separa- tion of powers.^ This evoked the reply that the separation of powers argument really had no weight in this case, or if it did it applied as well to executive revision and veto as to judi- cial; and Gouverneur Morris added that the device would really make more certain the separation of powers, for the legislature was so strong that the other departments would have to be combined to resist encroachments on their field.^^^ Then it was claimed that the judges ought not to be biassed in their exposition of the laws by having participated in the making of them.^^^ But Madison objected that "3, small proportion of the laws coming in question before a Judge would be such wherein he had been consulted."^^ Although this revisory 222 Ellsworth, ibid., p. 399. 223 Madison, ibid., p. 401. 224 Mason, ibid., p. 403. ^Ibid., pp. 122 and 401. 226 /&«;., p. 404. ^''Ibid., p. 122; and see Gerry, ibid., p. 401. ^'^Ibid., p. 122. HISTORY OF THE ADVISORY OPINION 57 council was urged on five diJ0Ferent occasions,^* the convention would not give its approval. Charles Pinckney then proposed'®® a clause which (mutatis mutandis) was identical with that al- ready existing in Massachusetts, except that opinions were to be required from the court instead of the justices.^^ This was referred without debate to the Committee of Detail, and saw the Ught of day no more. It has been intimated by Professor Beard^^ that the failure of the revisory council was due to a feeUng in the convention that the supreme court would sufficiently control legislation through judicial revision; but there is very little evidence of the sentiment of the convention on the relations between executive and judiciary. In general, they were to be indepen- dent, that is clear; but how much cooperation did this principle permit? President Washington, who had presided at the convention, evidently thought it should be Uberal in extent. In 1790 he wrote to the justices, expressing his persuasion that the judiciary should be independent in its operations, but intimating his wiUingness to receive suggestions from them on the organization of the judicial system.^ In 1793, the difficult questions involved in our relations with France prompted him to go much farther. Probably it was in a cabinet meeting of July 12th that "it was determined to request the answers of the judges of the supreme court of the United States to a series of questions comprehending all the subjects of difference which existed between the executive and the minister of France relative to the exposition of the treaties between the two coun- 229 May 29, Madison's Journal, I, p. 62; June 4, ibid., I, pp. 101 and 107; June 6, ibid., I, pp. 121-124; July 21, ibid., II, pp. 398-405; and August 15, ibid., II, p. 533. 230 Mad. Jour. II, p. 558; 5 Ell. Deb. p. 445. 22^ Cf . the form of the clause in Colorado. 2*^ The Supreme Court and the Constitution, p. 63. 2^ Spark's Washington, X, p. 86. 58 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT tries. "2^ In a letter from Jefferson, Secretary of State, to the justices, dated July ISth, the latter are informed that the war has been responsible for many difficult questions of a legal nature which were causing the executive department much difficulty, but were usually presented in such a way that they could not be brought before the courts in judicial proceedings. "The President would, therefore, be much reheved, if he found himself free to refer questions of this description to the opinions of the judges of the Supreme Court of the United States, whose knowledge of the subject would secure us against errors dan- gerous to the peace of the United States, and their authority insure the respect of all parties. He has therefore asked the attendance of such judges as could be collected in time for the occasion, to know, in the first place, their opinion, whether the pubUc may with propriety be availed of their advice on these questions? And if they may, to present, for their advice, the abstract questions which have already occurred, or may soon occur, from which they will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce Qj^ "235 Probably a day or two later twenty-nine questions were submitted to the justices, dealing almost entirely with our rights and obHgations as a neutral state.^^^ The judges evidently hesitated to reply, for in a letter of July 23rd^^ the president assents to a delay until the opinions of absent justices can be ascertained. Marshall says^^ it was about July 25th that the judges communicated^^ to the president their un- willingness to state their opinions on the question ssubmitted. " Considering themselves merley as constituting a legal tribunal 234 Marshall's Life of Washington, V, p. 433. 235 Jefiferson's Works, IV, p. 22. 23«For the text of these questions see Spark's Washington, X, App. xvm. 23' Spark's Washington, X, p. 359. 238 Life of Washington, V, p. 44L 2" Unfortunately the exact text of this communication is not available. HISTORY OF THE ADVISORY OPINION 59 for the decision of controversies brought before them in legal form, those gentlemen deemed it improper to enter the field of poUtics, by declaring their opinions on questions not growing out of the case before them. "^40 Early m August the president and cabinet acted independently of the judiciary, and, using their own judgment^ as to the points of law involved, pro- claimed the eight rules so well known in the early history of international law in the United States.^ There appears to be no other instance in our history where the executive has sought the extra-judicial advice of the supreme court justices, and the rule of this case has been accepted as a principle of our constitutional law. "The judicial department . . . can be called upon only to decide controversies brought before them in a legal form; and therefore are bound to abstain from any extra-judicial opinions upon points of law, even though solemnly requested by the executive. "^^^ It remains to consider the relations of the legislative depart- ment and the judiciary. Several times the former has endeav- ored to impose duties on the courts which were not judicial in character. On March 23, 1702, Congress passed an act dealing with widows' and orphans' claims and invaUd pensions.^ United States circuit courts were required to receive appHcations for reHef under the act and decide the merits thereof, but such decisions might be reconsidered or suspended by the secretary of war, or revised by Congress. The different circuit courts "° Marshall's Life of Washington, V, p. 441. In connection with this 1793 case, the comment of Thayer (Legal Essays, pp. 42-60) is worth quot- ing: "It was, perhaps, fortunate for the judges and their successors that the questions then proposed came in so formidable a shape as they did. . . . Had they been brief and easily answered the Court might, not improbably, have slipped into the adoption of a precedent that would have engrafted the English usage upon our national system." ^1 See letter of August 4th in Spark's Washington, X, App. xvm. '** For text see Spark's Washington, X, App. xix. ^ Story on the Constitution, II, s. 1571. ^ 1 U. S. Stat, at L., 243. 60 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT promptly sent letters to the president (on April 5th, April 18th and June 8th) stating that they would not act in such cases and setting forth their reasons for refusing.^^^ All of them referred to the separation of powers as a fundamental principle of our constitution, and denied the right of either executive or legislature to impose any but judicial duties upon the courts, to be exercised as prescribed in the constitution, the provisions of which did not empower Congress or any executive officer *'to sit as a court of errors on the judicial acts or opinion? of this court. " Some of them doubtfully indicated that they might act as individual commissioners appointed by official titles, to avoid giving distress to many meritorious individuals by a delay.^ The matter was brought before the supreme court by an application of the attorney-general for a writ of mandamus to a circuit court in a particular case.^^ Meanwhile the presi- dent had communicated the remonstrances from the various courts to Congress,^^ and while Hayburn's Case was still under advisement. Congress provided another way for the relief of pensioners ;^^ so the opinion of the supreme court remains undisclosed, but Taney, C. J., said, many years later, that "the repeal of the Act clearly shows that the President and Congress acquiesced in the correctness of the decision (sc, the opinions of the circuit courts) that it was not a judicial power. "^° An unreported case came to light at the same time (1851), in which the supreme court permitted the United States to recover money paid as a pension under an award of Jay, C. J., and Cushing, J., sitting as commissioners under the Act of 1792.251 Taney, C. J., said this meant that the supreme "8 See text in Hayburn's Case, 2 Dall. 409. ^ See especially the opinion of the court for the N. C. district — I.e. 2*7 Hayburn's Case, 2 Dall. 409. 2" On April 16th, April 21st and November 7th; see Annals of Cong. Ill, 557, 572 and 671. "» 1 U. S. Stat, at L., 324. 250 In U. S. V. Ferreira, 13 How. 40, at p. 50. ^^ U. S. V. Yale Todd, reported in note to U. S. v. Ferreira, ubi supra. HISTORY or THE ADVISORY OPINION 61 court as a whole, after argument, was convinced that when an Act intended to confer power on courts as a judicial power, it would not be construed as the nomination of the judges of those courts to act as commissioners in the exercise of that power. In U. S. v. Ferreira,'^^ Congress had passed an act^ directing the district judge for the Northern District of Florida to receive and adjudicate certain claims of Spanish inhabitants for losses suffered during the operations of the American army in Florida, and to report the decisions and evidence to the secretary of the treasury, who should pay the same, if he were satisfied that they were just and equitable. The district judge had decided a claim in favor of Ferreira, and the district at- torney appealed to the supreme court. Here the case was dismissed for want of jurisdiction, Taney, C. J., saying it was clear that the judge acted as a specially constituted commis- sioner whose award was subject only to the approval of the secretary of the treasury; this was not a judicial proceeding, and no appeal would he to the supreme court. He cited Hay- burn's Case as an authority, but U. S. v. Yale Todd was not called to his attention till afterwards. Since the days of Washington, then, it has been a settled rule that the supreme court of the United States w411 not exer- cise extra-judicial functions, at the behest either of the executive or of Congress, and cannot be compelled to do so by any means short of a constitutional amendment.^ The judicial power ex- tends only to cases arising under the constitution, laws and treaties of the United States,^ and a case arises only when a matter is submitted to the court "by a party who asserts his rights in the »M3 How. 40. =*' 9 U. S. Stat, at L., 788. 2" Cf. the words of Taney, C. J., in Gordon v. U. S., 117 U. S. 697, at p. 700: "Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot re- quire or authorize the court to exercise any other jurisdiction or power, or perform any other duty." » Const. Art. Ill, s. 2. 62 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT form prescribed by law."^^ Also the jurisdiction extends only to cases where the court can render judgment in the legal sense of the term.^^ This means that the judgment must be '' conclu- sive upon the rights of the parties, and process of execution awarded to carry it into effect. The award of execution is a part, and an essential part, of every judgment passed by a court exer- cising judicial power. It is no judgment, in the legal sense of the term, without it. . . . It would be merely an opinion, which would remain a dead letter and without any operation upon the rights of the parties, unless Congress should at some future time sanction it."^^^ More recently (in 1891) the supreme court has even frowned upon a "friendly suit" brought to test the constitutionality of a law unsuccessfully opposed in the legislature.^^ The court of claims is a curious anomaly. Created in 1855 with jurisdiction of all claims (with two exceptions) in respect of which "the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, 25« Marshall, C. J., in Osbom v. Bank of U. S., 9 Wheat. 319. 2*7 Taney, C. J., in Gordon v. U. S., ubi supra., at p. 704. ^^Ibid., at p. 702. 269 Chicago, etc. R. R. Co. v. Wellman, 143 U. S. 339. See especially Brewer, J.,'s words at p. 344: "The theory upon which, apparently, this suit was brought is that parties have an appeal from the legislature to the courts; and that the latter are given an immediate and general supervision of the constitutionality of the acts of the former. Such is not true. When- ever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act o^any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solenrn duties, determine whether the act be con- stitutional or not; but such an exercise of power is the ultimate and supreme fimction of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversies between in- dividuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act." HISTORY OF THE ADVISORY OPINION 63 if the United States were suable, " it does not seem to have been a fuU-fledged court exercising judicial powers until 1866. " Origi- nally it was a court merely in name, for its power extended only to the preparation of bills to be submitted to Congress. "^^ An amending act of 1863^" purported to authorize the rendering of final judgments, but section fourteen provided ''that no money shall be paid out of the treasury for any claim passed upon by the court of claims till after an appropriation therefore shall have been estimated for by the Secretary of the Treasury. '* Because this necessarily impUed revision of the decisions by the head of an executive department, the supreme court held that judicial power was denied the court of claims, and refused to entertain an appeal from its decisions.^^^ j^ the opinion of Taney, C. J., the action of the court of claims was like that of an auditor or comptroller. "In principle, there is no differ- ence between these two special jurisdictions . . . and neither of them possesses judicial power in the sense in which those words are used in the Constitution. The circumstance that one is called a court and its decisions called judgments cannot alter its character or enlarge its power. "^ The defect was remedied by the repeal of the offending section in 1866,^^ and the supreme court thenceforth allowed appeals from the court of claims as regulated by statute.^ Strictly speaking, there is perhaps, an exception here to Chief Justice Taney's assertion that process of execution is a necessary concomitant of judicial power; but practically the exception is only apparent, for the »" U. S. V. Klein, 13 WaU. 144. »! Chap. 92, 12 Stat. L. 765. »2 Gordon v. U. S., 2 Wall 561. See statement of court record in U. S. V. Jones, 119 U. S. 477. ^ From an opinion written for Gordon v. U. S. and printed as an ap- pendix in 117 U. S. 697. »*Chap. 19, 14 Stat. L. 9. ^ U. S. V. Jones, 119 U. S. 477, and cases cited therein. 64 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Statute really attaches an automatic execution to every final judgment of the court of claims.^^ However, the court of claims still exercises extra-judicial functions. Under the Bowman Act of 1883, the senate or house of representatives or any of their committees may refer pending claims or matters to the court of claims for the deter- mination of facts, and any executive department may refer pending claims or matters involving questions of law or fact; in either case, the court is not to enter judgment, but must report its findings of fact or opinions of law to the referring body or individual. "The function of the Court of Claims, in such a case, (is) ancillary and advisory only," and no appeal therefrom will be entertained by the supreme court.^^^ b. Pennsylvania. According to Thayer^^ opinions were given by the Pennsylvania judges to the executive department on several occasions between 1780 and 1790. RespubUca v. De Longchamps^®^ is an instance of such an opinion. The defendant had been found guilty of violence done to the consul- general of France but "sentence of the court was suspended, in consequence of a case stated by his Excellency the President, and the Honorable Supreme Executive Council, for the opinion of the Judges. It was argued in open court, on the 10th and 12th of July, by five Counsel, two for the aflarmative and three for the negative." The president and council had asked whether the defendant could be legally dehvered up to be tried in France, as demanded by the French minister, and if ^ "In all cases of final judgments by said court, or, on appeal, by the said supreme court, where the same shall be affirmed in favor of the claimant, the sum due thereby shall be paid out of any general appropriation made by law for the payment and satisfaction of private claims, on presentation to the Secretary of the Treasury of a copy of said judgment, certified by the clerk of said court of claims, and signed by the chief justice, or, in his ab- sence, by the presiding judge of said court. " Section 7 of Chap. 92, 12 Stat. L. 765. 2«7 In re Sanborn, 148 U. S. 222. *" Cases on Constitutional Law, I, p. 183 n. «9 1 Dall. Ill (1784). HISTORY OF THE ADVISORY OPINION 65 not, whether imprisonment under this conviction could con- tinue till the king of France was satisfied. The judges returned a negative answer to both questions and then pronounced sentence. The legislative department also sought judicial assistance in 1807,"° enacting "That the judges of the Supreme Court are hereby required to examine and report to the next legisla- ture, which of the English statutes are in force in this Conunon- wealth, and which of those statutes in their opinion ought to be incorporated into the statutory laws of this Commonwealth. " The judges responded cordially, indicating that they were honored by the request and more than willing to comply with it. After making a careful examination of the EngUsh statute law as well as the constitutional and statute law in Pennsylvania, they submitted a schedule of EngUsh statutes then in force in Pennsylvania, with recommendations as to their inclusion in or omission from a codification. c. New York. There is clear evidence that in New York too, the judges gave extra-judicial assistance to the other two departments of government though not required to do|so by the constitution. However, they seem to have considered legislative authorization a prerequisite. In March, 1801, Governor Jay asked the judges of the supreme court and the chancellor whether members of the council of appointment could make nominations, or could only confirm or reject the governor's nominations. They "refused to decide the question as extra-judicial.""^ With statutory assistance, the executive has fared better in a particular class of cases. A law of 1829^^ provided that, following conviction in capital cases, the pre- siding judge should communicate to the governor notice of the sentence and his own notes of the testimony; and the gov- "0 3 Binney, 595. "1 See Pellew's John Jay, p. 334; alsoT^oberts' New York, II, p. 489. "' 2 Rev. St. 658, Pt. IV, tit. 1, ss. 13. 14. 66 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT ernor might "require the opinion of the Chancellor, the Jus- tices of the Supreme Court, and of the Attorney-General, or of any of them, upon any statement so furnished. "^^^ i^ People V. Green^^^ such an opinion was required as to whether certain evidence had been properly admitted.^^^ Counsel appeared for both the People and the defendant. The Chancellor, C. J., and Beardsley, J., advised the governor that the trial court had committed no error, and the defendant was executed. At least one of these judges^^^ joined in an opinion to the legislature the following year.^^' In the absence of constitu- tional authority, the legislature passed an act (1845) recom- mending a constitutional convention and referred it to the peo- ple. The act provided that the delegates to the convention should be the same in number as the members of the Assembly. The people approved it in 1845. The apportionment of repre- sentatives had been fixed by the constitution till January 1, 1847, but in 1846 the legislature passed a new apportionment act, and a bill was introduced to base the number of convention delegates on the new apportionment. This bill was referred to the justices by the house, with the request for an opinion as to whether the legislature had power to change the act of 1845. The judges expressed their regret that "questions of so much delicacy and importance should be presented under circumstances which have given us but a few hours for confer- 2" Thayer, Cases on Constitutional Law, I, p. 183 n., says that by a statute of 1847, the judges of the court of appeals were substituted for the Chancellor, and that the law still exists in that form. N. Y. Code Crim. Proc, ss. 493, 494. 27M Denio 614. 27' The report says the governor "consulted his legal advisers in such 2'« Beardsley, J. 277 See Deb. Mass. Conv. 1853, I, pp. 138-40; it may also be found in Jameson (Constitutional Conventions, pp. 386-414 and 663), who says it was probably omitted from the regular reports because authorized by no constitutional provision. HISTORY OF THE ADVISORY OPINION 67 ring together and reducing our opinion to writing; " but answered that the act of 1845 must stand as approved by the people and that the apportionment referred to therein is the old appor- tionment.278 Notwithstanding, the legislature passed the bill and the people accepted it and elected delegates on the basis of the new apportionment. It seems doubtful that this precedent would be followed now. In a submitted controversy on an agreed case,^^^ the fifth prayer involved the question whether a city could do cer- tain things not then permitted in its charter, if the legislature amended the charter. WiUiams, J., (with the concurrence of the other justices) repHed: "We are by this submission gravely asked to say whether such an amendment, if made by the Legislature, would be constitutional. ... It is time enough to pass upon the constitutionaHty of an act of the Legislature after it has become a law. Courts do not instruct the Legislature in advance as to what powers they have under the Constitution to pass laws." But of late years several attempts have been made to estabUsh the advisory opinion in the constitutional system of New York. In 1907 and 1908, an amendment was proposed in the Assembly per- mitting either house or the governor to require the opinion of the court of appeals on important questions of law.^^*^ In 1912 and 1913 the same amendment with the addition of the phrase "and upon solemn occasions," was proposed .^^^ Also in 1913, an amendment was proposed^^ giving each house authority to require opinions upon "important bills pending in "* Jameson (I.e.) says this opinion is wrong. 2" Cataract Power Co. v. Buffalo (1909) 115 N. Y. Supp. 1045. 280 1907 Assem. No. 2239 (Int. 1648), Assam. J. 1896, and 1908 Assem. No. 773 (Int. 675), Assem. J. 293. =« 1912 Assem. No. 1051 (Int. 956), Assem. J. 459, 940, 1045, 1148; and 1913 Assem. No. 682 (Int. 656), Assem. J. 224, 1055, 1119, 1158, 1271, 1663. 2«2 1913 Assem. No. 180 (Int. 177), Assem. J. 64, 1054, 1116, 1158, 1270, 1564, 1947, 2010. 68 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the legislature, before their third reading, as to their constitu- tionality, excepting, however, private or local bills." In none of these cases did the bill reach the stage of presentment to the people.2^ Finally, in 1915, both of the above proposi- tions were introduced in the constitutional convention of that year,^^ but neither was reported out by the judiciary committee, d. North Carolina. In North Carolina, too, opinions have been given to both departments, though with express reserva- tions as to cases wherein private property rights were involved. The senate, in 1849 ,2^ asked the opinion of the court on certain constitutional questions which arose in a contested election. As the questions were of a judicial character and since there was no doubt in their minds as to the rules of law requested, the justices "deemed it a duty of courtesy and respect to the Senate, to consider the points submitted to them and to give their opinions thereon." But they stated clearly that the reply was "not strictly an act of official obUgation," and that if they had been in doubt as to the law, "they would have been obHged to defer their answer until the parties or their counsel could submit their views." Again, in 1869,^^ an opinion was requested by the General Assembly, dealing with the term of office of its members. Pearson, C. J., and Dick, J., were sure the judges were not forbidden by the constitution to answer in such cases and "the question is more easy of solution now, when it can be treated as a dry matter of con- stitutional law, than it might be hereafter, when compHcated with collateral considerations." They distinguished the re- fusal to reply in the Homestead Act case,^^^ as that involved property rights that might come before the court. But Reade, 283 N. Y. State Constitution Annotated, Pt. II, pp. 69, 137, 138. 2M The first by Mr. Donnelly on April 27th, the second by Mr. Parsons on June 10th. See Proposed Amendments, etc. No. 9 and No. 559. 2»31N C. (9Ire.) App. 288 Opin.s of the Justices of the Supreme Court, 64 N. C 785. 2" This must have been c. 1868-9; I have not been able to find it. HISTORY OF THE ADVISORY OPINION 69 Rodman and Settle, JJ., refused to give any opinion on the question stated, relying on the separation of powers principle as impliedly forbidding such extra-judicial advice — Rodman, J., adds "except on occasions of the most manifest necessity." This rebuff apparently discouraged the legislature from fur- ther interrogations — and the governor as well, though he had ceceived advice, given without question, in an extradition case of 1866.288 e, Delaware. The legislature of Delaware, in 1852, gave the governor a statutory power to request opinions from the chancellor and judges on questions of constitutional or statu- tory law, necessarily involved in the proper discharge of his duty.289 This provision was still law in 1915,^^° but the gover- nor does not seem to have made any attempt to avail himself of it. Thayer^^^ mentions a request from the legislature to the governor (1895) that he submit to the judges a question relating to the apportionment of delegates to a constitutional convention, but he found no record of executive action. f. Illinois. No advisory opinion is recorded in the Illinois reports, to the knowledge of the writer, but a dictum of 1857 may be mentioned in passing. The relator had asked for a writ of mandamus to compel the governor to issue certain bonds. This the court refused to grant, disclaiming any power to compel the other departments of government to act; but added that though the governor was independent of the court, "should he consent to appear, asking our opinion on a 2" In the matter of Hughes, 61 N. C. 57. *""The chancellor and judges, whenever the Governor shall require it for public information, or to enable him to discharge the duties of his office with fidehty, shall give him their opinions in writing, touching the proper construction of any provision in the constitution of this State or of the United States, or the constitutionality of any law enacted by the legislature of this State. " Ch. 27, s. 4, of the Rev. Sts. of 1852 as Amended (1893), p. 245. "° Rev. Code 1915, c. 13, s. 2. Par. 402 on p. 220. 2" Legal Essays, p. 55 n. 70 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT point of law, it would be readily given. "^^ It is quite possible that the court only had in mind such cases as that in 17 lUinois, 167, when the governor appeared voluntarily on an agreed case upon an application for a mandamus to compel him to issue certain commissions, and would have refused any advice to him in cases not regularly brought before them. g. Minnesota. The legislators of Minnesota were not so altruistic as those of Delaware, for when they attempted to impose upon the supreme court the statutory duty of acting as a source of general information, they bestowed the right of interrogation, not upon the governor but upon either house of the legislature.^^^ Twice the judges refused (without ex- planation) to recognize any obligation to reply to questions put under the statu te.^^^ But the senate at least chose to look upon this as an oversight, and in 1865 again asked their opinions upon certain questions. The judges now came out with a definite statement of their position with respect to the statute, and their refusal was put on record in the reports.^^^ McMil- lan, J., declares that the statute is unconstitutional, for the fundamental principle of the separation of powers "prohibits the imposition by one (department) of any duty upon either of the others not within the scope of its jurisdiction. . . . The duty sought to be imposed by the section of the act referred to, is, clearly, neither a judicial act, nor is it to be performed in a judicial manner. It constitutes the supreme court the advisers of the legislature, nothing more." Moreover "we are prevented from voluntarily complying with the request, by the views we entertain of our judicial duty and the injurious "2 People ex rel. v. Bissell, 19 111. 229. "3 Comp. Stat. s. 15, ch. 4, provided that "either house may, by reso- lution, request the opinion of the supreme court, or any one or more of the judges thereof, upon a given subject, and it shall be the duty of such court or judges, when so requested, respectively, to give such opinion in writing." »MSJ. 1858, 718; SJ. 1863, 54, and Laws 1863, 75. "* In the matter of the Application of the Senate, 10 Minn. 78. HISTORY OF THE ADVISORY OPINION 71 tendency of such precedent." And he adds that "such a con- stitutional provision does not address itself to our niinds with any favor." This definite opinion sufficiently suppressed the legislature, and no further requests appear. But the executive department evidently did not grasp that the reasons given appUed to it as well. In Rice v. Austin,^^® an action brought against the governor, this official, through the attorney-general, asked the court for an opinion as to the construction of Laws 1869 c. 96. The court declined to comply with this request for the reasons stated in 10 Minnesota 78. Again in State v. Dike,^^^ the secretary of state made a similar request, with the same result. Since then the supreme court has been undisturbed by extra- judicial interrogation. h. Connecticut. The judges of the supreme court in Connec- ticut (perhaps because of New England influence) were at first not averse to expressing extra-causal opinions upon questions of constitutional law. Acting by direction of the general assembly, the governor, in 1863, requested their opinions as to the constitutionality of the Soldiers' Voting Act of December 24, 1862.^^^ The judges, without question, examined the statute and certified to the governor that it was unconstitution- al. Later ''in accordance with the settled policy of the state and the presumed expectation of the Assembly," they furnished to the reporter their reasons for the opinion.^^^ In 1865 an opinion was given, in response to a direct interrogation from the assembly, as to whether a negro was a "citizen of the United States" within the Constitutional Amendment of October, 1845. Here there was no discussion at all.^^*^ 29«19 Minn. 103. '" 20 Minn. 363. "^Questions re Soldiers' Voting Acts are the subject matter of an advisory opinion in 44 N. H. 633 (1863). -" Opin. of the Judges of the Supreme Court, 30 Conn. 591. '°° Opin. of the Judges of the Supreme Court, 32 Conn. 565. 72 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT But two years later this growing practice came to an un- timely end.^^^ The assembly requested an opinion as to cer- tain proposed legislation for taxing the incomes from United States bonds held by inhabitants of Connecticut, and the judges unanimously decUned to answer. They limited their refusal to questions as to the "validity of contemplated legis- lation," but the objections adduced were so comprehensive as to discourage any questions at all. Such opinions would be extra-judicial, they said, and not binding on anyone; yet they might have an undesirable influence should related cases later be brought before a court. It is intimated that such judicial action is probably invalid, "both from its conflict with our judicial duties and from its conflict with the legislative duties of your honorable body." Finally they distinguish the two precedents already mentioned as cases of great impor- tance "where an immediate opinion was needed, and where the points involved could not well be reached by ordinary Htigation. " But the last statement is scarcely true of the Soldiers' Voting Acts, for the constitutionaHty of these was actually tested in regular judicial proceedings.^^^ The truth seems to be the judges wished to check a practice to them undesirable, before the force of precedent became irresistible. i. Vermont. The Soldiers' Voting Act in this State^^^ provided (s. 12) that: "This act shall not take effect until the Governor submits the same to the Judges of the Supreme Court, with the inquiry 'Are the provisions of this act con- stitutional?' and until the Governor has obtained in writing the opinion of said Judges thereon; and if the said Judges decide that the provisions of the act, or certain parts thereof, are unconstitutional, then the same, or such parts thereof as 3°i Reply of the Judges of the Supreme Court to the General Assembly, 3Z Conn. 586. ^i" Chase v. Miller (Penn.) Am. L. Reg. 2 (N.S.) 146; Morrison v. Springer, 15 la. 304; State ex rel. v. Main (Wis.), see 15 la. 340. 303 L. 1863, No. 5. HISTORY OF THE ADVISORY OPINION 73 said Judges shall decide are unconstitutional, shall be null and void, and the residue thereof shall remain in full force and virtue." The governor submitted the Act to the judges in January, 1864, and the latter gave their opinions in writing on April 1st, complaining only that they had not enjoyed the advantages of argument by counsel.^^ The success of this interrogation evidently prompted the legislators to perpetuate the practice, for in L. 1864 No. 70, we find a provision that the judges shall reply in writing, when the governor submits questions of law concerning the discharge of his duties.^°^ This continued in force^*^ almost to the date of writing. It was repealed (by a bill introduced in the senate) on March 30, 1915.^^^ However, I have been unable to dis- cover a single reference made by the governor under the statute. It might be argued that its repeal is indicative of a feeUng in the legislature that such opinions are undesirable. j. Kentucky. A single advisory opinion was given by the court of appeals in Kentucky in 1881, on a matter directly concerning the court itself .^°^ The governor referred a question as to his constitutional power to fill by appointment a vacancy in the court, where the imexpired term was greater than one year. That the question was not hypothetical appears from the reply which contains ofl&cial notice of the recent death of Cofer, J. However in 1895,^°^ the judges indicated an im- willingness to give ex parte opinions in cases which might be ^°* Opin. of the Judges of the Supreme Court, etc., 37 Vt. 665. '*"The governor, when the interests of the State demand it, may require the opinion of the judges of the Supreme Court or a majority of them upon questions of law connected with the discharge of his duties. And the judges of the Supreme Court, or any of them, shall give, in writing, their opinion upon such questions." »»Rev. L. 1880, s. 795; Pub. St. 1906, s. 1341. »"L. Vt. 1915, No. 84. 3°« Opm. of the Judges of the Court of Appeals, 79 Ky. 621. '" In re Board of Sinking Fund Commissioners, 32 S. W. 414. The opinion is marked: "Not to be officially reported;" and is not included in the Ky. reports. 74 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT brought before them in some regular judicial proceeding, although they expressly refrained from deciding the question of jurisdiction, and, semble, based their refusal to reply to the Board of Sinking Fund Commissioners on the ground that "the court would be as much embarrassed in determining the questions made as the commissioners." k. Ohio. In State v. Baughman (1882),3i^ ^^e justices of the Ohio supreme court took the stand that advisory opinions should not be given except under a constitutional clause re- quiring them. The general assembly had directed the attorney- general to institute quo warranto proceedings against the police commissioners of Xenia, and if possible to procure the decision of the supreme court on several constitutional questions sug- gested. The position of the court is clearly stated by Johnson, J.: "It is only so far as these several questions are involved in the title to the offices in question that this court is author- ized to answer them. ... A decision on any of the questions suggested, not necessary to a determination of the right of defendants to exercise these functions would not be a judicial settlement of such questions, but would be without authority conferred by the constitution to make it. . . . If the judiciary were to assume to decide hypothetical questions of law not involved in a judicial proceeding in a cause before it, even though the decision 'would be of great value to the general assembly' in the discharge of its duties, it would, nevertheless, be an un- warranted interference with the functions of the legislative department that would be unauthorized, and dangerous in its tendency." 1. Nebraska. The advisory opinion has flourished extra- constitutionally in Nebraska to as great an extent as it did in Missouri and almost as great as in South Dakota under a con- stitution. Ten opinions were given in a period of ten years, four to executive organs, six to one or both houses of the legis- 3'0 38 Ohio St. 455. HISTORY OF THE ADVISORY OPINION 75 lature. The first one recorded was in 1883,^^^ where the house of representatives asked the supreme court judges questions in connection with contemplated legislation regulating the management of railroads in Nebraska. The judges complied cheerfully, but their answers were given with diffidence because of the lack of legal assistance. The same year, questions re- garding the investment of school funds were referred, by the Board of Educational Lands (which included the governor), for the justices to answer "if not inconsistent with their duties. " They promptly replied that such a function was not inconsistent with their duties and proceeded to give the opinions requested.^^^ But after complying with two more requests of a similar nature — one from a board which did not include the govern or, ^^^ one from the auditor of pubhc accounts^^* — the court made a rule,^^^ in 1887, that "no questions not matters of actual litiga- tion, except when presented by either house of the legislature or a committee thereof, shall be presented to the court, save in the method prescribed by section 567 of the Code, and all such questions shall be filed and docketed as other causes." The legislature readily availed itself of the implied permission herein contained, and five opinions are recorded in 1889 and jg9j 316 j^ii Qf these, except the first, were entered on the docket under Rule 23, and counsel for both sides (as well as an amicus curiae in one case) were heard by the court before an opinion was given. This obviated the objection raised in 15 Nebraska, 679, but there were more serious breakers ahead. ^" In re Railroad Commissioners, 15 Neb. 679. 312 In re School Fund, 15 Neb. 684. 3" In re Board of Public Lands and Buildings, 18 Neb. 340. 31" In re Babcock, 21 Neb. 500. 316 Rule No. 23 of July Term, 1887, in 22 Neb. 11. "9 In re State Warrants, 25 Neb. 659; In re Appropriations for Deputies, etc., 25 Neb. 662; In re Senate File 31, 25 Neb. 864; In re Quaere of the Procedure of the Two Houses, etc., 31 Neb. 262; and In re House Roll 284, 31 Neb. 505. 76 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT In 1893, the board of public lands and buildings submitted to the court questions as to their statutory duties. Maxwell, C. J., and Post, J., answered without comment, but Norval, J., forcibly declined to give any opinion.^^' As the reference was not within Rule 23, the justices had not had the benefit of legal assistance, and that is a point of objection; but the dissenting opinion further declares that it is the duty of the court to pass upon the constitutionality of statutes only in actual litigations, and that even the legislature could not increase the jurisdiction of the court.^^^ The justice asserts that he had given his opinion reluctantly in the two preceding cases, and was convinced that, overloaded with regular business as the court then was, in justice to htigants, they should "call a halt. " He won the rest of the court over to his way of think- ing, for in the rules of January 4, 1894,^^^ we find (Rule No. 23) that "only questions involved in matters of actual litigation before the court will be entertained or judicially determined, and no opinion will be filed in answer to any merely hypotheti- cal question." This has been the rule to the present time.^^*^ In conformity therewith, the judges have refused to give any administrative advice whatever, even in connection with a regular action before the court.^^^ m. Oklahoma. The practice introduced in New York in 1829 of gubernatorial interrogation of the judges in capital '" In re Board of Purchase and Supplies for State Institutions, 37 Neb, 425. 318 Cf. Miller v. Wheeler, 33 Neb. 765. 31*37 Neb. xiii. 320 See Rule No. 32 of Feb. 17, 1898, in 52 Neb. xviii, and Rule No. 17 of Feb. 1, 1914, in 94 Neb. xv. 321 "The questions which may arise under this . . . revenue act . . . are innumerable, but imtil they are brought here in a proper proceeding, and we have had the benefit of argument and examination, we cannot under- take a duty which the law itself imposes upon those appointed to administer it, or lay down rules in advance of any controversy." Per Sullivan, C. J., in State v. Fleming, (1903) 70 Neb. 523. HISTORY OF THE ADVISORY OPINION 77 cases where the defendant has been convicted^ was adopted in Oklahoma m 1903.^ The supreme court gave an opinion in such a case, though with hesitation, in 1908,^ but the fol- lowing year^^ they unanimously refused further compliance with the statute. The opinion given on that occasion states that there is grave doubt as to whether the Act is constitu- tional, since it " purports to impose on this court a duty which, if discharged, would amount neither to a judicial act, nor one to be performed in a judicial manner, but one which, in effect, would make the judges of this court, or some one of them, ad- visers of the Governor." But even if the constitutionaHty be waived, they claimed all criminal jurisdiction had passed to the newly created Criminal Court of Appeals, and "any authority to express an opinion is in that court." The next case of this description that came before the governor was referred by him to the Criminal Court of Appeals.^ The judges thereof readily gave their advice, saying it was un- necessary to consider the constitutionality of the statute, "as an opinion of this kind has not the force of an adjudication, and is merely persuasive or, at most, advisory. " Subsequently two opinions were given without comment.^' But in 1911,^^ the judges stated that the intention of the statute was to re- quire an opinion only "where an appeal has not been taken ^ See p. 65 supra. 323 Wilson's Rev. and Ann. St. of 1903, ss. 5588-9: "The judge of a court at which a con\dction requiring a judgment of death is had must, immediately after the conviction, transmit to the Governor, by mail or otherwise, a statement of the conviction and judgment, and of the testimony given at the trial. The Governor may thereupon require the opinion of the Judges of the Supreme Court or any of them upon the statement so furnished. " This is in Snyder's St. ss. 6927-8. ^ State V. Johnson, 21 Okla. 40. 325 In re Opin. of the Judges, 25 Okla. 76. *» Opin. of the Judges, 3 Okla. Cr. 315. 327 In re Opin. of the Judges, 4 Okla. Cr. 594; In re Opin. of the Judges, 6 Okla. Cr. 18. 328 In re Opin. of the Judges, 6 Okla. Cr. 210. 78 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT from a judgment and sentence of death;" and in 1912,^29 j^^ the last case reported, an opinion was refused on this very ground, as "it would be improper for the judges to express any opinion in an ex parte proceeding as to the rights of a de- fendant which may afterwards be brought before them by appeal, where all parties interested would be represented. To pass upon such questions in advance of an appeal would be to deprive a defendant of his constitutional right to be heard in his own behalf." Summary. A review of the practice in the twelve States considered above will show that there is a pronounced tendency in recent years for the courts to put a stop to the giving of extra-judicial advice where it is not required by the constitution. Most of the precedents enumerated above are of remote date, and many of them have been expressly repudiated. Of those States where there was an attempt to exact some form of ad- visory opinion by statute, one has repealed the requirement, one has suffered its judicial impugnment to go unquestioned, and two still treasure it in the dark closets of supererogatory legislation, "unwept, unhonor'd and unsung." Only in Okla- homa has such a requirement been put to the test in the last twenty years, and there even the exiguous consultation per- mitted by the statute has been reduced to the vanishing point by judicial construction. It may, then, be stated as a settled principle of our constitutional law that the justices of the State supreme courts are under no obHgation to render extra- judicial advice or assistance to the executive or legislative depart- ments, even though bidden to do so by legislative enactment. There is even some doubt as to whether they may constitu- tionally yield to importunities for such advice.^*^ 329 In re Opin. of the Judges, 8 Okla. Cr. 467. 330 See Reply of the Judges, etc., 3d> Conn. 586; In the matter of the Application of the Senate, 10 Minn. 78; In re Board of Purchase and Sup- plies for State Institutions, 37 Neb. 425, per Norval, J.; Opin.s of the Jus- tices, etc., 64 N. C. 785, per Reade, Rodman and Settle, JJ.; and State v. Baughman, 38 Ohio St. 455. HISTORY OF THE ADVISORY OPINION 79 C. In Canada 1. The Dominion. The historical development of the advisory opinion in Canada is very interesting and instructive for several reasons. We have here an example of a federal supreme court bound to advise the executive department in a great V9,riety of cases. We have an unquestioned and expUcit enumeration of the cases wherein the obhgation exists. We have an authoritative and controlling statement as to the effect of such opinions. Fur- thermore, the majority of the constituent member -states have incorporated the same practice into their constitutional systems. Of course, there are certain very important differences between the situation in the United States and that in Canada. The Canadian supreme court is the creature of the legislature, acting within section 101 of the British North America Act of 1867. Thus the legislature was, and is, in a position to define the duties and jurisdiction of that court, as long as it avoids con- flict with the other sections of the act. The provincial legis- latures are equally supreme by virtue of section 92, paragraph 14, of the same act. It will be noted later that this practically eliminates the separation of powers argument from considera- tion. The judges are not even as free to discriminate as were their judicial ancestors in the mother country, at least since the end of the seventeenth century. The Dominion legislature first created a supreme court for the federation in 1875,^^ and provided in the same act for the giving of advisory opinions to the governor-general in coun- cil. The clause covered any matter which the latter thought "fit" to refer .^ There is evidence of judicial disapproval as early as 1879. In Queen v. Robertson,^ Strong, J., says: »»38 Vic. c. 11. ^ For the text of the provision see Appendix II. 3«6Can. S. C. R. 127. 80 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT "In the case of private suitors, if a special case appears to be framed for the purpose of eUciting an opinion upon a question, the decision of which is not essential to determine the rights of the parties, the court will refuse to entertain it, and I see no reason why the same rule should not be applied to a case in which the Crown is a party. As the case is presented to the court it appears that the officers of the Crown have arranged to pay the suppHant, not damages, but a gratuity, in the event of the court being of the opinion that the Crown had no author- ity to grant the license in question. This is to invoke an ad- visory, not a contentious, jurisdiction, and such a jurisdiction . . . ought not to be exercised unless conferred by statute, which has not been done." But his brethren on the bench did not agree with him and he went on to express his opinion. Five references were made under the provision prior to 1892,3^ but the possibilities of the device and the important results of its frequent use were evidently overlooked. In fact in 1884 the legislature passed an act^^ which specially provided (s. 28) that the supreme court should determine, on reference from the governor-general, as to the competency of the legis- lature to pass "The Liquor Licence Act, etc." in whole or in part.^® And in his recommendation that certain questions be referred. Sir John Thomson, minister of justice, said (in 1889) : "This provision which confers that power on your Excellency was undoubtedly intended to enable the Governor-General 3'* In re New Brunswick Penitentiary, April, 1880; In re Canada Tem- perance Act of 1878, and County of Perth, Cass. Dig. 105; In re Canada Temperance Act of 1878, and County of Kent, Cass. Dig. 106; The Thrasher Case, Cass. Dig. 480; The Manitoba Railway Crossings Case. See Cameron, p. 267. 335 47 Vic. c. 32. 'Aldington, J., argues from this that s. 37 of the original Supreme Court Act did not authorize questions to be referred re the competence of the legislature to pass pending or possible bills. 35 Can. S. C. R. 581, at 596. But it seems more probable that the provision was either a super- fluity due to forgetfulness or an example of over-abundant caution. HISTORY OF THE ADVISORY OPINION 81 to obtain an opinion from the Supreme Court of Canada in relation to some order which his Government might be called upon to make, or in relation to some action which his officers might be called upon to adopt. "^^ More careful definition was obviously in order and in 1891 the section was amended^^ to cover "important questions of law or fact touching provincial legislation, or the appellate jurisdiction as to educational matters vested in the (jovemor in Council by the 'British North America Act, 1867,' or by any other act or law, or touching the constitutionaUty of any legislation of the ParUament of Canada, or touching any other matter with reference to which he sees fit to exercise this power. *' It was added that the opinions should be given "in like manner as in the case of a judgment upon an appeal to the said court. " Furthermore the statute required that the attorney-general of a province interested in any question should be notified of the reference and heard in argument, and provided that the court in its discretion might notify any persons interested in any question referred of the hearing, and such persons should be "entitled to be heard thereon;" or might require counsel to argue the case as to any interest which was unrepresented, at the government's expense. Finally it declared that opinions given, " although advisory only, shall, for all purposes of appeal to Her Majesty in Council, be treated as a final judgment of the said court between parties. "^^ The first reference under this form of the provision seems to have been In re County Courts of British Columbia (1892).34o It related to the constitutionaUty of certain legislation enacted in British Columbia and of a statute of the Dominion legisla- ture. Counsel appeared for the province and the Dominion. In the next case (1894), the justices were asked to construe «^ 12 Legal News, 286. ^ By 54-55 Vic. c. 25, s. 4. ^' For the text of the provision see Appendix II. »*''21 Can. S. C. R. 446. 82 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the British North America Act, as well as certain Manitoba statutes, and to define the powers of the governor-general in a particular instance. Taschereau, J., participated in such a case for the first time, and expressed a doubt as to the constitu- tionahty of 54-55 Vic. c. 25, s. 4, on the ground that the court is made "an advisory board of the federal executive, substi- tuted, pro hoc vice, for the law oflQcers of the Crown, and not performing any of the usual functions of a court of appeal, nay, of any court of justice whatever;" but since the point had not been raised and the answer would bind no one, he con- cluded to answer.^^ This is the first opinion from which an appeal was taken to the Privy Council^ and it is worthy of note that the very learned Lords^ who dealt with the case there took no notice of Taschereau, J.,'s demurrer, merely recommending that the opinions of the supreme court be de- clared incorrect. But two of these same Lords^ joined a year later in an important dictum restrictive of the advisory opinion practice. The governor-general had referred eight questions concerning the power of provincial legislatures to pass pro- hibitory liquor laws, and asked specifically if the Ontario legislature had been within its powers in enacting 53 Vic. c. 56, as explained by 54 Vic. c. 46.^ The supreme court answered No to all questions and an appeal was taken to the Privy Coun- cil.^ The Ontario legislation was considered without question, but the Council prefaced their answers to the general questions with these words: "These differ from the question which has ^^ In re Certain Statutes of . . . Manitoba rel. to Education, 22 Can. S. C. R. 577. 342 Brophy et al. v. Attorney-General of Manitoba (1895) A. C. 202. 343 Lord Herschell, L. C, Lord Watson, Lord MacNaghten, and Lord Shand. 34* Lord Herschell and Lord Watson. 345 In re Provincial Jurisdiction to Pass Prohibitory Liquor Laws, 24 Can. S. C. R. 17Q 34« Attorney-General for Ontario v. Attorney-General for Dominion et al. (1896) A. C. 348. HISTORY OF THE ADVISORY OPINION 83 already been answered in this respect, that they relate to matters which may possibly become litigious in the future, but have not as yet given rise to any real and present contro- versy. Their Lordships must further observe that these ques- tions, being in their nature academic rather than judicial, are better fitted for the consideration of the officers of the Crown than of a court of law. The repHes to be given to them will necessarily depend upon the circumstances in which they may arise for decision. ... It must therefore be understood that the answers which follow are not meant to have, and cannot have, the weight of a judicial determination, except in so far as their Lordships may have occasion to refer to the opinions which they have aheady expressed in discussing the seventh question."^' Taschereau, J., referred to this dictum with approval in the Provincial Fisheries case,^^ where, too, he repeated his statement that the opinions given to the governor- general "bind no one, not even ourselves. "^^ On appeal, ^"^ L.c. at p. 370. See also the words of the Judicial Committee in Attorney-General for Ontario v. Hamilton Street Railway Company et al. (1903) A. C. 524, an appeal from an advisory opinion statute in Ontario: "It would be inexpedient and contrary to the established practice of this Board to attempt to give any judicial opinion upon those questions. They are questions proper to be considered in concrete cases only; and opinions expressed upon the operation of the sections referred to, and the extent to which they are applicable, would be worthless for many reasons. They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient and inexpedient that opin- ions should be given upon such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribimal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down and over-ride the operation of particular words when the concrete case is not before it.'* (at p. 529). *** In the matter of Jurisdiction over Provincial Fisheries, 26 Can. S. C R. 444. **' "Our answers are merely advisory, and we have to say what is the law as heretofore judicially expounded, not what is the law according to our opinion. We determine nothing. We are mere advisers, and the 84 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the Privy Council refused to answer questions in this same case concerning the rights of riparian owners, because the latter were not parties to the litigation.^^** But the dictum of the Privy Council in 1896 only came to full fruition in 1905 and 1906. The governor-general referred to the supreme court questions concerning the right of the Ontario legislature to enact certain statutes, past and pending, and concerning the right of provincial legislatures in general to pass Sunday labor acts.^^^ One of the counsel who appeared questioned the jurisdiction of the court in his argu- ment. The majority of the court agreed that the hypothetical questions of a general nature proposed were not "within the purview of the section." They admitted that questions as to the constitutionality of existing legislation were within the section, but claimed that the words " touching any other mat- ter" should be considered "as within the rule ejusdem generis, ^^ and might refer to administrative or departmental orders issued pursuant to a statute. However, since the practice had been for the supreme court, and the Privy Council as well, to answer questions similar to those under discussion, they would give their opinions. Sedgewick, J., dissented on the grounds that the amendment of 1891 was not intended to limit the governor's power of reference, and that the rule ejusdem generis did not apply (though even if it did, he thought the reference here was within that rule). Idington, J., dissents from both these views very forcibly. In a cogent argument of some answers we give bind no one, not even ourselves. The questions are of the nature of those upon which the Privy Covincil in the recent case made remarks that will, I hope, restrict in the future references such as the present one by the Department of Justice." Cf. the remarks of the same judge in the Prmce Edward Island representation case, 33 Can. S. C. R. 594. "° Attorney-General of Canada v. Attorneys-General for Ontario, Quebec and Nova Scotia (1898) A. C. 700. *•* In the matter of the Jurisdiction of a Province to Legislate Respect- ing Abstention from Labor on Sunday, 35 Can. S. C. R. 58L HISTORY OF THE ADVISORY OPINION 85 length, he insists that there is no sound authority from prece- dent or statute to give opinions on speculative questions. He closes his refusal in these words: "The jurisdiction to pass upon proposed or only possible future legislation, such as the governing power of the people might never assent to, is one of so grave a character, fraught with such far-reaching conse- quences, and such a departure from the recognized principle of severing and- keeping as distinct as possible the respective powers and duties of the legislative, executive and judicial functions of Government, that I would desire to see the power we are asked here to exercise distinctly and clearly conferred by ParUament, if it is to be conferred at all, rather than by an assumption of its existence on such slender basis as is alleged here to have expressed its existence." The legislature was not slow to give the learned justice the assurance asked, and at the same time dealt conclusively with the ejusdem generis argument. By 6 Edward VII c. 50, in addition to the questions enumerated in the 1891 statute, the governor in council was empowered to refer important ques- tions touching the powers of the Dominion or provincial legis- latures, "whether the particular power in question has been or is proposed to be executed," or touching "any other matter, whether or not in the opinion of the court ejusdem generis with the foregoing enumerations," and "any question touching any of the matters aforesaid, so referred by the governor in council shall be conclusively deemed to be an important ques- tion." This last provision is probably the result of practice in the United States, since there is no indication that the Cana- dian judges were disposed to test the magnitude of a question's importance. The present form of the advisory opinion clause, as included in the Supreme Court Act of 1906,^^^ is practically a re-enactment of the provisions of 1891, as amended by the statute of Edward VU. »' R. S. C. 1906, c. 139, s. 60. See text in Appendix II. 86 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Still, under such an explicit enactment, there were rumbhngs of judicial unrest. In a reference as to the powers of the attor- ney-general's deputies in Alberta and Saskatchewan under the Criminal Code,^^^ Davies, J., says the first three questions practically request the justices to sit as a court of appeals over the judgment of the supreme court of Saskatchewan in The King v. Duff, and only answers with great reluctance under the imperative provisions of the statute. Anglin, J.,'s reply is to the same effect. Girouard, J., only yields because the opinion can have no legal effect; and the persistent Idington, J., doubts whether section 101 of the British North America Act is broad enough to permit the legislature to make the supreme court a "court or commission of general inquiry," as is done in the act of 1906. Finally the constitutionahty of that statute came squarely to an issue in 1910.^^ The governor's reference included both general and particular questions regarding the powers of provincial legislatures, under the British North America Act, to incorporate companies (especially insurance companies) and regarding the constitu- tionahty of the Insurance Act of 1910 (Dominion). The counsel who appeared at the hearing protested against any considera- tion of the questions, arguing that section 60 of the Supreme Court Act of 1906 was ultra vires, and that previous opinions were all given in cases where everyone interested had consented, so that the question of constitutionahty had never been raised. They claimed, too, that the provincial courts would feel bound as if the opinion were a judgment. Fitzpa trick, C. J., felt bound to answer, both by the statute and the precedents, subject to the right of the court "to make all proper represen- tations if it appears to us during the course of the argument, or thereafter, that to answer such questions might in any way "« In re Criminal Code, 43 Can. S. C. R. 434. •"In re References by the Governor-General in Council, 43 Can. S. C. R. 536. HISTORY OF THE AD\T:S0RY OPINION 87 embarrass the administration of justice." He states clearly that in his opinion the judges of the Canadian supreme court are the ofi&cial advisers of the executive, after the EngUsh model. Girouard, J., dissented from this, holding that section 60 (1) b was ultra vires. Duff, Anglin and Davies, JJ., all agreed with the chief justice. The last mentioned justice thought that the statute was within the British North America Act, s. 101, since practically it made the justices an "additional court for the better administration of the laws of Canada." Idington, J., of course, dissented. Courts should not be forced to prejudge cases, he said, and when referred questions concerned matters in dispute between the Dominion and the provinces, to reply was like expressing an opinion to a possible litigant in advance. Moreover, by section 91 of the British North America Act, the Dominion ParUament had no power over subjects assigned exclusively to provincial legislatures. The administration of justice in the provinces had been assigned to them, and ParUament could only create a court of appeal, and courts to administer the laws of Canada. The provinces promptly appealed the question of jurisdic- tion to the Privy Coimcil.^ Here the whole matter was carefully considered by Lords of great erudition,^ and the constitutionaUty of the statute was unanimously sustained. The elaborate argument of the appellants is exceedingly inter- esting because of its bearing on the theory of advisory opinions,^^ but is almost entirely irrelevant to the constitutionaUty of the act. It is for the most part merely a ''commentary on the wisdom of such an enactment," emphasizing the possible perversion of justice in the operation of the act. But "the *** Attorney-General for Ontario v. Attorney-General for Canada (1912) A C. 571. '"Earl Lorebum, L. C, Lord MacNaghten, Lord Atkinson, Lord Robson, and Lord Shaw of Dunfermline. *^It is thus summarized in the judgment: "The argument on behalf of the provinces proceeded upon the following lines. They said that the power to ask questions of the supreme court sought to be bestowed . . . 88 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT , argument that to put questions is ultra vires, must be the same whether the principle is rightly or wrongly used." The Lord Chancellor admitted the possibility of abuse, with attendant evils, but did not think it imminent, because the answers were only advisory, and because the justices could qualify their replies if the questions did not admit of accurate answers or could "make the necessary representation to the Governor- General in Council." But even abuse did not import uncon- stitutionality. ''What in substance their Lordships are asked to do is to say that the Canadian ParHament ought not to pass laws like this because it may be embarrassing and onerous to a Court, and to declare this law invalid because it ought not to have been passed. " In effect the ratio decidendi of the opin- ion of the Privy Council is that the presumption that the statute is constitutional has not been overcome by the argument as to desirability put forward by the appellants. But incidentally by the impugned act, is so wide in its terms as to admit of a gross inter- ference with the judicial character of that court, and, therefore, of grave prejudice to the rights of the provinces and of individual citizens. Any question . . . can be put to the supreme court and they are required to answer it, with their reasons. Though no direct effect is to result from the answer so given, and no right or property is thereby to be adjudged, yet, say the appellants, the indirect result of such a proceeding may be and will be most fatal. When the opinion of the highest Court of Appeal for all Canada has been given upon matters both of law and of fact, it is said it is not in human nature to expect that, if the same matter is again raised upon a concrete case by an individual litigant before the same Court, its members can divest themselves of their preconceived opinions; whereby may ensue not merely a distrust of their freedom from pre-possession, but actual injustice, inasmuch as they will in fact, however unintentionally, be biassed. The appellants further insist that although the Act in question provides for requiring argument, and directing that counsel shall be heard before the questions are answered, yet the persons who may be affected by the answers cannot be known beforehand, and therefore will be prejudiced without so much as an opportunity of stating their objections before the Supreme Court has arrived at what will virtually 1 o a determination of their rights." HISTORY or THE ADVISORY OPINION 89 the Lord Chancellor goes on to strengthen the presumption of constitutionaUty by reviewing the EngUsh practice of judicial consultation, and by pointing out that apparently the thought of unconstitutionality was not entertained by any of the learned Lords who had considered the six previous appeals from opin- ions rendered under the Canadian statute. So the advisory opinion will undoubtedly remain in the Canadian system until the Parhament decides that its use is unwise. There is no indication that Parliament is so minded at present. The device has been employed very sparingly, and the evil effects, if any, have not been apparent. I have been able to discover only eighteen references during a period of forty-one years. Of these, appeals were taken to the Judicial Committee of the Privy Council in seven cases. Before passing on to consider advisory opinions in the prov- inces, mention might be made of two other forms of extra- causal advice under Dominion legislation. The Railway Act makes it a duty of the supreme court^^ to give its opinion upon questions of law involved in any case stated by the board, whether ''of its otvti motion" or at the request of the governor in council or of a third party. The justices have given opinions freely under this section. Also section 61 of the Supreme Court Act of 1906 provides that the senate or house of conmions may, by a rule or order, refer any private bill or petition to the court or any two of the judges, for an opinion thereon.^^ '^'"1. The Board may, of its own motion, or upon the application of any party, and upon such security being given as it directs, or at the request of the Governor in Coimcil, state a case, in writing, for the opinion of the Supreme Court of Canada, upon any question which in the opinion of the Board is a question of law. 2. The Supreme Court of Canada shall hear and determine the ques- tion or questions of law arising thereon, and remit the matter to the Board with the opinion of the Court thereon." 3 Edw. VII, c. 58, s. 43. See R. S. C. 1906, c. 37, s. 55. ^' "The Court, or any two of the judges thereof, shall examine and report upon any private bill or petition for a private bill presented to the 90 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT According to Cameron,^^'' only one bill has been referred under this section — the Bill to Incorporate the Christian Brothers.^^^ 2. The Provinces. Seven of the nine provinces have adopted the advisory opinion,^^^ and in all of them, as in the Dominion, the pro- vision is, of course, statutory. In three of them the enactment antedated the first revision of the Dominion act on the same subject, for the advisory opinion statutes in Ontario, Nova Scotia and Manitoba are all dated 1890. By referring to Appendix II, it will be seen that the text is very much the same in all three statutes, and the improvements upon the Dominion act of 1875 evidently furnished the basis for the later amendments to that act. It would seem that one of these was the antetype of the other two, but I have been unable to ascertain which is earliest in point of time. The title of the Ontario statute is interesting as throwing some light on the chief purpose of the scheme. It is called ''An Act for expediting the decision of Constitutional and other provincial Questions. " The scope of the permission to refer is very broad, covering any matter which the lieutenant-governor in council ''thinks fit to refer, " as in the 1875 Dominion act. But in the provin- cial acts further particularization has not taken place, no amend- ments having been made to the original statutes. In all three cases, the opinion, with reasons, is to be given "in like manner as in the case of a judgment in an ordinary action." Also they all provide that if the question relates to the constitu- tionality of a provincial statute, the attorney-general of Canada shall be notified, "in order to be heard if he sees fit;" and in general that at the discretion of the court, any person or persons interested in any question referred might be notified Senate or House of Commons, and referred to the Court under any rules or orders made by the Senate or House of Commons." R. S. C. 1906, c. 139, s. 61. ^^ Supreme Court Practice, p. 268. . 3«il876. Cass. Prac. 59. ^^ See text of these provisions in Appendix II. HISTORY OF THE ADVISORY OPINION 91 of the hearing, for the same purpose; and if any interests af- fected are not represented by counsel, the court may appoint counsel to act in their behalf, at pubUc expense. But the effect of the opinion given varies. In the statutes of Ontario and Manitoba, the opinion "shall be deemed a judgment of the court, and an appeal will lie therefrom as in the case of a judgment in an action." But in the Nova Scotia act, the opinion is declared to be advisory, and is to be treated as a final judgment of the court only for purposes of appeal to the Canadian supreme court or to the Privy Council. British Columbia followed closely in the steps of these three, enacting a statute in 1891, which differed from the Manitoba statute in only one important particular — there was no provision for the appointment of counsel to argue for interests not represented. The same omission occurs in the Quebec act of 1898; also here there is no provision for notifying the Canadian attorney-general in references connected with the constitutionaUty of provincial legislation. Also in section 4 it is declared that the opinion is advisory only and cannot be appealed from. This is undoubtedly the result of Union Col- Uery Company of British Columbia v. Attorney-General of British Columbia et al.,^ where Taschereau, J., held that no appeal would He to the Canadian supreme court from an opinion given by the supreme court of British Columbia under the statute; he declared there was no action, no parties and no controversy, and that the British Columbia legislature could not extend the jurisdiction of the Canadian supreme court by enacting that opinions given as in this case should be "deemed a judgment." Still Saskatchewan did not benefit by this de- cision, for the "Act respecting the Decision of Constitutional and other Legal Questions," of 1901, is in all essential parti- culars identical with the Ontario act of 1890. The New Brunswick statute was passed in 1906. 3«27 Can. S C. R. 637. 92 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Very little use has been made of the privilege granted by these statutes. I have found only four references in Ontario. In three of these,^^ appeals were taken to the Privy Council, which considered them without hesitation.^^^ The fourth case^^ is interesting because of the careful examination of the advisory opinion act. The question referred concerned the construction of a section of the Ontario Medical Act, 1897 — did the words ''to practice medicine" cover cases where drugs and similar substances were not used? All of the judges were reluctant to answer because of the difficulty of making a categorical reply to so general a question; Meredith, J. A., also objected on the ground that the reference was practically an appeal from Reg. v. Stewart.^^^ The majority replied, in substance, that the phrase in question might cover such cases, but that each would have to be decided on its own merits. Moss, C. J. O., observes that in spite of the statutory declaration that such an opinion "shall be deemed a judgment," it is really "for the information of the Lieutenant-Governor in Council" and is only advisory in character. But one case from British Columbia has come to my at- tention, the question as to the Coal Mines Regulation Act already mentioned.^^^ A single reference has been made in Nova Scotia, a reference in 1916 regarding the Nova Scotia Temperance Act, upon which argument has not yet been heard (January 29, 1917). The Attorney-General of New Brunswick informs me that no references for advisory opinions have been *" Attorney-General of Ontario v. Attorney-General for Dominion of Canada (1894) A. C. 189; Attorney-General for Dominion v. Attorney- General for Ontario (1898) A. C. 247; Attorney-General for Ontario v. Hamilton Street Railway Company et al. (1903) A. C. 524. ^^ Cf. Union Colliery Company of British Columbia v. Attorney- General of British Columbia et al., 27 Can. S. C. R. 637. 3««In re Ontario Medical Act (1906), 13 Ont. L. R. 501. ^^ 17 Ont. R. 4. ^* See p. 91 supra. I HISTORY OF THE ADVISORY OPINION 93 made in that province, and I have discovered none in Quebec, Manitoba or Saskatchewan. In at least two provinces there is a scheme for testing the constitutionahty of legislation that might be mentioned in passing. It is provided both in Ontario^^^ and in Alberta^^° that the supreme court shall have jurisdiction to entertain an action at the instance of either the attorney-general for the Dominion or the attorney-general for the province for a declaration as to the vaUdity of any statute, or any pro- vision in any statute (of the province), "though no further reUef should be prayed or sought. "^^^ Very few appUcations have been made under these acts. An example of such an application in Ontario is Attorney-General of Canada v. Attor- ney-General of Ontario, ^^2 where the supreme court for the Dominion allowed an appeal from a declaration by the Ontario court.^^^ Also it is provided in section 113 of the Alberta Land Titles Act that whenever a question arises as to the registrar's duties under the act, or as to the construction or legal validity of any instrument, the registrar may refer the same to a judge of the supreme court, and the judge shall decide the question. D. In Other States One evidence of the strong Anglo-American influence in the Hawaiian Islands in the middle of the nineteenth century is the incorporation of an advisory opinion clause (on New England principles) in the constitution of 1852 (Article 88). This was repeated as Article 70 of the constitution of 1864 and 3«9 Judicature Act, R. S. O. c. 51, s. 57 (2). ""Judicature Ordinance, s. 8 (6). »" Cf. N. J. Comp. Stat. IV, 4978, and 83 N. J. L. 303, for a case undei a somewhat similar statute. "' 33 S. C. R. 458. '" Cf, Union Colliery Company of British Columbia v. Attorney- General of British Columbia et al.. 27 Can. S. C. R. 637. 94 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT (with slight changes) as Article 70 of the constitution of 1887. It gave the king, cabinet or legislature power "to require the opinions of the justices of the supreme court upon important questions of law and upon solemn occasions. " Thayer^^^ says a number of opinions have been given under this clause, be- ginning with one of 1884.^^^ A very interesting constitutional device is contained in the Colombian constitution of 1886. The president is given a qualified veto on all legislation, having the power to force repassage by two-thirds of the members of each house if he returns a bill with objections in from six to fifteen days (depend- ing upon the length of the bill). But if he objects on the ground that the bill is unconstitutional and if the legislature insists on its passage, the bill is to be referred to the supreme court, which has six days to decide upon its acceptability. If the decision favors the president's objections, the bill fails; if not, it must be sanctioned and promulgated by the executive.^^^ The people seem to have been satisfied as to the value of such an unusual arrangement, for the Panamans repeated it in their constitution of 1904.^^^ I have not been able to ascertain whether the supreme court is called upon to act under this clause very frequently or at all. Colombia is responsible for still another strange provision regarding the judiciary. Article 84^^^ of the constitution of 1886 gives the judges of the supreme court the privilege of being heard by the legislature "in the discussion of bills relating to civil matters and judicial procedure." Three states have copied this clause, with some variations in the wording — Sal- vador (Constitution of 1886, Article 79), Honduras (Constitu- tion of 1904, Article 83) and Nicaragua (Constitution of 1905, "* Cases I, 176 n. "5 The Segregation of Lepers, 5 Haw. Rep. 162. 2^* For the text of the provision see Appendix III. "' Article 105. For the text of the provision see Appendix III. "* For the text see Appendix III. HISTORY OF THE ADVISORY OPINION 95 Article 71).^^^ All of these imitators, however, go even farther than Colombia, for they permit the judges to introduce or originate bills relating to the codes of the repubUc as well as as to be heard in the discussion of all such bills not coming from them. The desirability of such provisions will be considered in a later chapter. 3^^ For the text of these provisions see Appendix III. CHAPTER II THE ADVISORY OPINION IN PRACTICE A. The Source of Interrogations The cases considered in the subsequent discussion include (unless otherwise stated) only the opinions rendered in the eight States of the Union where the advisory opinion has ex- isted under the constitution. The reports yield a total of four hundred and ten such opinions. Fifty-one of these are credited to Florida and South Dakota, where the governor alone has the benefit of the clause. The remaining three hundred and fifty-nine belong to States which permitted to the executive and legislative departments alike the right of judicial consulta- tion. In this group the legislative department is responsible for two hundred and sixteen opinions, the executive for one hundred and forty-three. The inequality of distribution is probably due to two causes. Since the firm establishment in the United States of the judicial power to declare acts of the legislature to be null and void because of failure to conform to the constitution, it has become increasingly evident that it would often be very desirable to ascertain in advance of the passage of a measure, how the supreme court will look upon its validity if called upon to apply it. Questions with this end in view naturally issue from the legislature while the bill is under consideration. A majority of the legislative questions are of this nature, and many of the executive questions as well, for the governor has often sought advice from the supreme court before signing or vetoing bills presented to him. Of the three hundred and fifty-nine opinions, one hundred and twenty-eight were in response to questions concerning pending or possible legislation. The second cause is the fact that the THE ADVISORY OPINION IN PRACTICE 97 executive department has at hand a more prompt and conve- nient adviser in ordinary situations in the person of the attorney- general. The legislature naturally prefers the opinion of those officials, who will have to pass finally upon the matter in ques- tion, whose hostility to a project will be fatal in spite of legisla- tive approval. The governor feels the same way in important and difficult affairs that may possibly come before a court later, but in most of the cases that call for executive decision and action, the questions of law are elementary, and it is almost certain that the executive action will be final. A more minute examination of the initiation of inquiries in some one State may be of interest. Colorado affords the best opportunity for detailed investigation in this as in other particulars, because of the concentration of a relatively large number of cases within a few decades. In that State there have been sixty-nine legislative inquiries, thirty-six emanating from the senate, thirty-two from the house of representatives, and one from the general assembly. Six of these are questions deal- ing with the advisabihty or possibiUty of contemplated legisla- tion which apparently had not yet been introduced. Fifty- eight are questions involving the constitutionality of bills actually in course of passage. In thirty-six of these sixty-four cases, I have been able to discover from house and senate journals, the immediate interrogators. In one early case the bill was referred back to the committee in charge with instruc- tions to ask the supreme court for its opinion.^ There are six cases where the committee in charge, or some member thereof, proposed the resolution caUing upon the justices for their opinion, without any prompting.^ Senators or representatives » In the matter of the Constitutionality of HB. No. 18, 9 Colo. 623. » In the matter of the Constitutionality of SB. No. 76, 9 Colo. 623; In the matter of HB. No. 231, 9 Colo. 624; In the matter of the Constitu- tionaUty of HB. No. 270 and SBB. No. 69 and No. 106, 9 Colo. 635; In the matter of the Constitutionality of Sec. 9, of HB. No. 122, 9 Colo. 639; In re HB. No. 238, 12 Colo. 337; In re Annexation and Consolidation of School Districts, SB. No. 9, 26 Colo. 136. 98 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT having a local interest in the bill under suspicion are responsible for three opinions. But in the great majority of instances, the interrogating resolution is introduced either by the member who introduced the bill under discussion (fifteen cases), ^ or by the judiciary committee, usually following the directions of the house (eleven cases).'* The former of these two methods is the favorite modus operandi in recent years. These results appear to corroborate the complaint registered by O. F. A. Greene in 1890^ that " the supporters of a measure, in order to escape the argument of unconstitutionahty by their opponents, seek such opinions, hoping for a favorable response." This particular criticism, intended as an objection, is unreasonable, for the chief value of the advisory opinion to legislatures is in ascertaining the unconstitutionahty of a measure before placing it upon the statute books; and when the question of constitutionality is raised in debate already, there is no reason why the sponsor of the bill should not be the author of an in- quiry regarding its constitutionality. Indeed he may be acting »In re HB. No. 165, 15 Colo. 593, 595; In re Bounties, 18 Colo. 273, In re Extension of Boundaries of the City of Denver, 18 Colo. 288; In re Amendments of Legislative Bills, 19 Colo. 356; In re HB. No. 203, 21 Colo. 27; In re a Bill Providing that Eight Hours shall Constitute a Day's Labor, 21 Colo. 29; In re HB. No 107, 21 Colo. 32; In re Constitutionality of SB. No. 293, 21 Colo. 38; In re ConstitutionaHty of an Act, 21 Colo. 46; In re Consolidation of School Districts, SB. No. 23, 23 Colo. 499; In re HB. No. 99, etc., 26 Colo. 140; In re SB. No. 142, etc., 26 Colo. 167; In re HB. No. 495, etc., 26 Colo. 182; In re House Resolution No. 10, 50 Colo. 71; In re Senate Resolution No. 4, 54 Colo. 262. * In the matter of HB. No. 38, etc., 9 Colo. 631; In re SR. Relating to the Appropriation of Moneys, etc., 12 Colo. 287; In re HR. Relating to HB. No. 116, 12 Colo. 289; In re SR. Relating to SB. No. 1, 12 Colo. 290; In re SR. Relating to SB. No. 31, 12 Colo. 340; In re HR. Relating to HB. No. 218, etc., 12 Colo. 359; In re HR. Relating to HB. No. 349, 12 Colo. 395; In the matter of the Constitutionality of SB. No. 65, 12 Colo. 466; In re HR. No. 25, 15 Colo. 602; In re Inheritance Tax, HB. No. 122, 23 Colo. 492; In re SB. No. 27, etc., 28 Colo. 359. » See p. 50 supra. THE ADVISORY OPINION IN PRACTICE 99 on the recommendation of a committee, as in 21 Colorado 27. In any case if the house deems the inquiry unnecessary, the resolution can easily be defeated.^ It is not easy to verify the accuracy of Greene's observation^ that "a legislator who finds himself in a dilemma of either favoring a measure against his judgment or of making dangerous enemies against his own pet schemes, seeks a passage of escape by thus shouldering the re- sponsibility upon the court." Certainly it does not apply to the fifteen opinions soHcited by introducers of bills. But it may apply to the eleven cases referred by the judicial committee which always acted at the request of the house in committee of the whole, so that the real author of the resolution is not dis- coverable. However, as the supreme court did not declare a bill unconstitutional in a single one of these eleven cases, it is certain it did not reUeve many legislators from facing the Judg- ment of their constituents. In the sixteen cases where the supreme court has pronounced a proposed measure unconstitu- tional, there are seven interrogatories from the author of the measure, four from the committee in charge and one from a member whose district was affected — all probably sincere and not for political effect. B. Nature of Questions The subject matter of the advisory opinions rendered in the United States covers a great variety of topics in both public law and private law. An attempt has been made in this section to bring order out of the heterogeneity by classifying the topics in five groups as follows: (1) The Legislative Department; (2) The Executive Department; (3) The Judiciary; (4) Suf- frage and Elections; (5) Miscellaneous Matters. Of course, these divisions are not mutually exclusive, and one question may fall within two or even more groups and consequently may be ' Such a resolution was rejected, for example, in the matter of HB. No. 14 m 1889. HJ. 1889, 360. ^The Nation, Vol. 50, 50. 100 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT referred to below in more than one place. However, it will be endeavored to determine the class to which a case belongs by the element which receives the most emphasis or which is the most necessary to the inquiry. It must be remembered, too, that the same reference often comprises several different questions. 1. The Legislative Department a. Composition of the Legislature. These cases^ fall into three subdivisions: questions concerning the legislative dis- tricting of a State or the apportionment of members of the legislature, questions regarding the quaUfications for member- ship in the legislature, and questions as to the regularity of elections. In the first of these, there are thirteen opinions. The earliest one was rendered by a Massachusetts court in 1811,^ in reply to an inquiry as to whether towns could count aliens, as ratable polls, in determining the number of represen- tives to which they were entitled. The New Hampshire court in 1838^° was asked to deal with almost the same question. In both cases it was declared that Hability to taxation was the criterion. The Massachusetts justices have given their opinion upon the right of representation of new towns,^^ and as to what apportionment applied during a certain transition period.^^ The nine other cases deal with the constitutional duties of the legislature in the matter of apportionment. Three are in Massachusetts,^^ three in Maine,^'* and three in Colorado.^^ •Except a single extra-constitutional case on the tenure of members of the legislature — Opinions of the Justices of the Supreme Court, etc., 64 N. C. 785. ' Opin. of Justices, 7 Mass. 523. "Opinion, 8 N. H. 573. " Opin. of Justices, 6 Cush. 575. » Opin. of the Justices, 157 Mass. 595. "Opin. of Justices, 10 Gray, 613; Opin. of Justices, 142 Mass. 601; and In re Opinion of the Justices, 220 Mass. 609. 1* Opin. of Justices, 3 Me. 477; Opin.s of the Justices, 18 Me. 458; and Opin. of Justices, 33 Me. 587. 1* Veto Power — Special Session of General Assembly — 9 Colo. 642; THE ADVISORY OPINION IN PRACTICE 101 In this list of thirteen, the justices answered without objection in every case, except for a partial refusal in 18 Maine, 458. But there are two outright refusals in each of the other groups. The general question of the eUgibihty of naturalized citizens to the house of representatives was readily answered,^^ but al- most the same court declined to express any opinion as to the eligibihty of a special justice of a municipal, district or police court, or as to whether the election of such a justice to the legislature would vacate his judicial office,^^ and a Maine court followed their example in 1901 in a very similar reference regarding fish and game commissioners and trustees of State institutions.^^ In the third group, the two refusals were in response to separate inquiries by the senate and house of repre- sentatives regarding the same question.^^ The governor and council had rejected votes for certain senatorial candidates in two districts because of irregularities, and had declared other candidates elected; and the senate had subsequently ratified this action. The justices refused to express an opinion upon a completed act of the executive at the request of the legislative department, as amounting to mere criticism of a coordinate branch of the government, and added that the action of the senate on the election of its members is conclusive. Then there are three opinions in Massachusetts^^ dealing with the electoral rights of towns. Finally there are seven opinions in Maine, dehvered upon four separate occasions. The question put in 6 Maine, 486, was practically the same as in 15 Massachusetts 536, viz., if by majority vote a town having the right to elect a In the matter of HR. re Constitutionality of Legislature Redistricting State, etc., 12 Colo. 186; and In re SR. Relating to Constitutionality of Proposed Reapportionment Bill, 12 Colo. 187. ^« Opin. of Justices, 122 Mass. 594. 1' Opin. of Justices, 122 Mass. 600. ^* Opin.s of the Justices, 95 Me. 564. 18 Opin. of the Justices, 56 N. H. 570; Opin. of the Justices, 56 N. H. 574. "Opin, of Justices, 15 Mass. 536; Opin. of Justices, 3 Pick. 517; and Opin. of Justices, 23 Pick. 547. 102 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT representative waives that right, is the minority bound by such action? (The Maine house of representatives appended a similar question as to waiver by a majority of towns in a dis- trict). The Massachusetts justices thought the right to elect was corporate in character, and consequently the vote of the majority was binding on all. This opinion (as to single towns) met the approval of two of the Maine justices, but Preble, J., distinguished between the wording of the Massachusetts and Maine constitutions and held that in the latter state, the right was individual, and the house of representatives acted in accordance with this dissenting opinion. In 6 Maine, 514, there is an opinion as to the formalities necessary in an election by the two houses acting jointly to supply deficiencies in the senate, and this is approved in 7 Maine, 483. The subject mat- ter of 35 Maine, 563, is similar. The three cases of 1880 deal with the powers of the governor and council as to returns on elections to the legislature.^^ From the twenty-nine cases reviewed in this section, cer- tain rules may be readily deduced. Under an advisory opinion clause, the justices usually are willing to give advice to either house of the legislature in matters pertaining to (1) the deter- mination of the number of representatives to which a town or district is entitled, (2) the general qualifications of candidates for election to either house (?), (3) the regularity of elections of members to either house. But if the authority of precedent is to prevail, there are several necessary quahfications to these rules. (1) Opinions should not be given upon questions of fact which have been duly determined by the legislative de- partment.^ In extreme cases this may lead to a dif&culty, *^ Questions Submitted, etc. 70 Me. 560; Statement and Questions Submitted, etc. 70 Me. 570; Statement and Questions Submitted, etc. 70 Me. 600. ^ Opin.s of the Justices, 18 Me. 458. In Opin. of the Justices, 33 Me. 587, the court, assuming the facts as stated in the inquiry, passed upon the competence (a question of law) of an earlier legislature to enact a certain law. THE ADVISORY OPINION IN PRACTICE 103 as in 70 Maine, 570, and 70 Maine, 600, where in order to decide which of two legislatures was lawful, the justices had to decide which of two statements of facts was correct. (2) An opinion should not be given to the legislature upon a matter which rests in the discretion of the executive; whether action has been taken or not.^ These two exceptions are supported by good reasons and are in hne with principles announced in advisory opinions on other questions, but there are two alleged exceptions which are questionable. (3) In 95 Maine, 564, a majority (five) of the justices decHned to answer a question of law, on the ground that, the legislature having already adjourned, the occasion was not a " solemn " one as to that body, and an opinion for the guidance of a future house would be an unwarrantable interference with its right to be judge of the elections and qualifications of its members. (4 ) The refusal in 122 Massa- chusetts, 600, was based on the grounds that the question involved could not be aJBFected by legislation, and might come before the court judicially. The reasoning in these two cases is not founded upon a sound theory of the function of the ad- visory opinion or a fair construction of the constitutional clause in those States. Each house of the legislature is of course the final judge as to the elections and qualifications of its members, but in arriving at a decision it is entitled to the advice and assistance of the justices of the supreme court on points of law. As this counsel is purely advisory ,2^ it is difficult to see why an opinion for the guidance of a future legislature is an intereference with any of its rights. As the minority in 95 Maine, 564, point out, it may often be necessary and quite ^Veto Power — Special Session of General Assembly — 9 Colo, 642 Opin. of the Justices, 56 N. H. 570; Opin. of the Justices, 56 N. H. 574. " The justices went too far in 7 Me. 483, when they said the decision and proceedings in the senate "will, of course, be in accordance with the constitution, as understood and construed by the court in their opinion deUvered in answer to your questions, in connection with their former opinion, respecting the constitutionaUty of the convention and its pro- ceedings. " 104 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT practical to obtain opinions beforehand so as to avoid errors, and opinions have, in not a few cases, have given after the adjournment of the interrogating legislature.^^ This argument prevailed in 103 Maine, 506, where all the justices but one^^ returned opinions to questions received after the legislature adjourned. As to (4') supra, the reasons given for refusal to answer seem to involve incorrect statements. The questions referred might well be affected by legislative action, as a con- stitutional amendment touching the eligibility of the justices mentioned would have to be initiated by the general assembly .^^ Also, the question as to eHgibility could scarcely come before the court judicially if, through the assistance of the justices, the house of representatives should once pass upon it, since this decision is final. Among the twenty-nine cases on the composition of the legislature, are three where the inquiry came from the executive department.28 AH are in the same State, and are so unsatis- factory as to make generalization undesirable. It must be admitted that the justices were very generous in their answers on these occasions. The questions in 70 Maine, 560, all have to do with executive duties in counting the votes for members of the legislature, and are quite within the advisory opinion provision. But the questions in the other two opinions seem to concern the executive department very little; yet all were answered save two which could only be decided by the senate. These last cases are nearly a century old and quite possibly might not be followed at the present time. The Canadian supreme court has given two opinions on the right of the provin- ces to representation in the House of Commons.^^ ^ See list in Minority Opinion in 95 Me. 564. ^ Three were the minority justices of 95 Me. 564. *' Const. Amendment IX. " Opin. of Justices, 6 Me. 514; Opin. of Justices, 7 Me. 483; and Ques- tions Submitted, etc. 70 Me. 560. *' In the matter of the Representation in the House of Commons, etc. THE ADVISORY OPINION IN PRACTICE 105 b. Organization and Procedure. There are but three in- stances of questions concerning the organization of a legislative body. The first is a case of unusual difficulty, which is unique in the reports and probably could not arise again. An extra- ordinary session of the Florida legislature, summoned in 1868 for a particular purpose, started impeachment proceedings against the governor. The lieutenant-governor claimed to act as governor, but the latter kept possession of the executive offices and asked the supreme court whether the impeachment proceedings were valid, alleging {inter at.) the lack of a quorum in the senate. The justices felt bound to reply (under the 1868 form of the Florida clause), but recognized that "to answer this communication is, therefore, pro tanto, a recognition of its writer as the Constitutional Governor of Florida — to decline to answer it, is no less than a refusal so to recognize." However, they avoided passing upon the competence of a special session to impeach, by concluding that there was not a quorum in the senate.^^ Later a regular session treated the proceedings of the special session as void.^^ The other two cases on organiza- tion deal with the speakership. In 1891, a dispute in the Colo- rado house of representatives as to the selection of standing committees^^ culminated in an ouster of one speaker and the election of another. The governor promptly asked the justices of the supreme court whether a speaker could be summarily removed in that way, basing his right to an answer on the necessity of communicating with the presiding officer of the house, and of passing upon bills with his signature. The justices hesitated to give the governor an opinion upon a *' mat- ter exclusively pertaining to the legislative department," 33 Can. S. C. R. 475; In the matter of the Representation of Prince Edward Island, etc., 33 Can. S. C. R. 594. 3° In the matter of the Executive Commimication, etc., 12 Ra. 653. ^^ Baldwin, American Judiciary, p. 49. «SeeHJ. 1891, 15, 27, 114-115. 106 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT but concluded the case was within the advisory opinion clause, and declared the speaker had been properly removed.^^ It is not easy to reconcile the opinion just given with the third case.^ There the Heutenant-governor-elect having failed to qualify, his predecessor announced his intention to hold office until a successor should be elected. The senate chose a presiding officer pro tempore, and then asked the advice of the supreme court as to the status of the lieutenant-governor. A majority refused to answer for the reason that it would "involve a deter- mination of private rights in an ex parte proceeding," and observed that the acts of the lieutenant-governor as an officer de facto would unquestionably be vahd, and that they were not authorized *'to answer questions propounded to the end that solemn occasions may not arise." Of course the first of these reasons did not apply to 15 Colorado 520, but why would the second not have been a good reply to the governor? Or why, if the answer in 15 Colorado, 520, was properly given, is not the dissenting argument of Hill and Scott, JJ., in 54 Colorado, 166, perfectly good, viz., the necessity of knowing whose acts to recognize as the acts of the legal presiding officer made the question important and the occasion solemn, and that it was a "question of grave public concern, compared with which the private right sinks into insignificance. "^^ The opinions classified as relating to procedure (thirty-two in number) are, for the most part, upon various questions relating to the passage of bills.^^ Five of them have to do with the time ^ In re Speakership of the House of Representatives, 15 Colo. 520. »* In re Interrogatories of the Senate, 54 Colo. 166. ^ Cf. the Majority Opinion in In re SR. No. 10 Concerning Governor- ship Contest, 33 Colo. 307, which was ex parte as far as the supreme court was concerned. " Except Opin. of the Court, 63 N. H., 625, where the house of repre- sentatives inquired as to the operation of a statute providing that notice of a petition to the legislature might be submitted before the beginning of a session; and Opin. of Justices, 18 R. I. 824, where the house asked a question as to the power of the senate to adjourn for more than two days. THE ADVISORY OPINION IN PRACTICE 107 limit imposed upon the governor in his consideration of bills submitted for approval.^^ Six are inquiries as to the majority necessary for action upon certain kinds of bUls or clauses or for the repassage of a bill over the governor's veto. In three of these an opinion was refused — not, however, because of the nature of the question. In In re Construction of Constitution (3 S. D. 548) and In re Opinion of the Justices (208 Mass. 614) the court's principal objection was that the advice was not sought for the benefit of the body making the interrogation. In In re SB. No. 416 (45 Colo. 394), the only vaUd objection adduced was that the constitutional expiration of the session in three days did not permit time for a satisfactory consideration of the question.^^ In In re Bounties to Veterans (186 Mass. 603) the court avoided the question of majority by declaring that the bill was unconstitutional anyway. In the two re- maining cases the question was answered without hesitation.^® Then there are fifteen opinions dealing with the form or content of proposed legislation. In three,'*^ bills are disapproved as unconstitutional, because not passed by both houses in the same form. The nature of amendments permitted is passed upon in three cases.*^ In In re General Appropriation Bill " Opin. of Justices, 3 Mass. 567; Opin. of Justices, 99 Mass. 636; Opin. of Justices, 135 Mass. 594; Opin., 45 N. H. 607; In the matter of Senate Resolution, etc., 9 Colo. 632. '*The other reason given in this case that legislation was no longer pending after a final vote in both houses does not square with other cases in the same state. Cf. In re SR. Relating to the Recall of Bills, etc., 9 Colo. 630; In the matter of SR., etc., 9 Colo. 632; In re SR. Relating to SB. No. 45, etc., 12 Colo. 339; and In re HR. Relating to HB. No. 218, 12 Colo. 359. Surely legislation is not completed within the rule of In the matter of the ConstitutionaUty of SB. No. 65, 12 Colo. 466, and In re HR. No. 25, 15 Colo. 602, as to existing statutes, while it lacks the executive signature or may be duly repassed over his veto. » In re Em.ergency Clause, 18 Colo. 291; In re SR. No. 9, 54 Colo. 429. "Judicial Opin., 35 N. H. 579; Opin. of the Justices, 52 N. H., 622; In re Opin. of the Justices, 76 N. H. 601. " In the matter of HB. No. 231, 9 Colo. 624; In re Amendments of Legislative BUls, 19 Colo. 356; In re HB. No. 250, etc., 26 Colo. 234. 108 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT (16 Colo. 539) an opinion is given as to the efifect of omitting an emergency clause, and in In re Advisory Opinion (43 Fla. 305), an opinion as to the absence of the enacting clause. In In the matter of the Executive Communication (14 Fla. 283) and In the matter of the Executive Communication (14 Fla. 285), the governor questioned the constitutionality of laws because they dealt with more than one subject, and the court agreed with him. The same rule is the occasion for an opinion in In re ConstitutionaHty of an Act (21 Colo. 46). The opinion of In re Governor's Proclamation (19 Colo. 333) covers the scope of legislation permitted to a special session. The ques- tions in the other four (in one of which the opinion is extra- constitutional),^ relate to the form or manner of submission of initiated and referred measures; the Colorado court refused to answer as the measures had already been adopted by the people. Finally, there are three opinions containing questions of a miscellaneous character — the power of the legislature to recall a bill from the governor,^ the constitutionality of a senate rule on readings,^ and a general question as to the constitution- ahty of the passage of a certain bill.^^ It may be taken as settled that the justices will (under an advisory opinion clause in the constitution) give their opinions: (1) To the legislature on questions (a) as to the effect of the governor's acts or omissions regarding bills submitted for his approval, at least when there is doubt as to the necessity for further legislative action; (b) as to whether an exceptional majority is required for certain measures or clauses, at any rate if the information may conceivably be of use in connection «In re Opin. of Supreme Court, 29 R. I. 611; In re HR. No. 10, 50 Colo. 71; In re SR. No. 4, 54 Colo. 262; In re Senate File 31, 25 Nebr. 864. " In re SR. Relating to the Recall of Bills, 9 Colo. 630. ** In the matter of the Constitutionality of Senate Rule No. — (sic), 9 Colo. 641. The resolution for this opinion was the first business after the governor's message in the legislature of 1887 — SJ. 137, 159 — so the re- quest is probably the first one made under the advisory opinion amendment. « In re HR. No. 30, 10 S. D. 249. THE ADVISORY OPINION IN PRACTICE 109 with a particular bill;^ (c) as to the nature of amendments which can constitutionally be proposed in one house to a bill originating in the other. (2) To the executive department, on questions (a) alleging the unconstitutionality of a law on the ground that it did not pass both houses in the same form; (b) as to the effect of the absence of certain clauses of a procedural nature — ^in either case, semble, whether the information is needed in the exercise of the veto power, or in carrying out the provisions of a completed enactment. Before leaving this section, it might be worth while to men- tion the New Jersey statute,*^ which makes available to the executive department a summary method of securing action by the supreme court upon laws which are possibly void because of procedural defects. An example of a petition under this act may be found in 83 New Jersey Law, 303, where the chief justice declares there is no doubt the legislature could confer such jurisdiction on the supreme tourt, as the question of con- stitutionahty is always a judicial one, and the people have a right to know "whether a given law which appears upon the statute books is one which they are obHgated to obey."** « In re Opin. of the Justices, 208 Mass. 614. Perhaps this is what the court meant in In re SB. No. 416, 45 Colo. 394, but it was not applicable to that case, for the bill there might easily have come before the legislature again upon an executive veto. *'' "If, at any time wdthin one year after any law or joint resolution shall have been filed by the Secretary of State, . . . the Governor . . . shall have reason to beUeve that (it) was not duly passed by both houses of the Legislature, or duly approved as required by the Constitution of this State, he may, in his discretion, direct the Attorney-General to present a petition to the Supreme Court of this State, setting forth the facts and cir- cumstances, and prav-ing that the said law or joint resolution may be decreed to be null and void. . . . The said court shall have jurisdiction and power to proceed in a summary way and inquire into the facts and circumstances alleged; . . . and after a full hearing and consideration, . . . may dis- miss the said petition ... or decree (the law or joint resolution) or any part thereof to be null and void." 1873, Comp. Stat. IV, p. 4978. *• This reasoning would not be approved by the Colorado courts which refuse to pass upon the constitutionality of completed legislation except in regular cases inter partes. See p. 197 infra. 110 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT c. Financial Powers and Duties of the Legislature. For the sake of convenience, cases belonging here will be listed under three heads: (i) Taxation, (ii) Appropriations, (iii) Miscella- neous. The number in each class is relatively large and the cases are among the most important that the courts have dealt with in this extra-judicial manner. In Colorado particu- larly, the history of pubhc finance would be decidedly incomplete without an examination of the advisory opinions connected with that subject. In all the States, the judges have shown a tendency to generosity in answering financial questions, and the few refusals that are recorded (twelve out of a total of eighty-one cases) are for the most part quite reasonable and not because of the subject matter of the question. (i) Taxation. Opinions have been given without objection on such questions as the power of the legislature to tax person- alty at a different rate from realty ,^^ to tax shares, stocks, credits or other special forms of personalty ,^° to tax incomes generally ,^^ to tax inheritances,^^ ^q ^ax residents on land ceded to the United States for miUtary purposes,^ to tax persons living in a particular locality for educational purposes,^ to tax sales of corporation shares,^ to tax the interest from securities and exempt the securities,^^ to levy a special tax for road repairing,^^ to tax towns excluded temporarily from representa- tion,*^ to tax generally under a school fund act,*^ to impose a " In re Opin. of the Justices, 195 Mass. 607; In re Opin. of the Jus- tices, 208 Mass. 616. '°In re Opin. of the Justices. In re Taxation, 220 Mass. 613; In re Opin. of the Justices, 76 N. H. 588. " Opin. of the Justices, 53 N. H. 634. " In re Inheritance Tax, HB. No. 122, 23 Colo. 492. " Opin. of Justices, 1 Mete. 580. " Opin. of Justices, 5 Mete. 587. w Opin. of the Justices, 196 Mass. 603. "In re Opin. of the Justices, 77 N. H. 611. " An Opin. Delivered by the Court, etc., 4 N. H. 565. " Opin.s of the Justices, etc., 18 Me. 458. 6» C^in.s of the Justices, etc., 68 Me. 582. THE ADVISORY OPINION IN PRACTICE 111 different rate of taxation upon unincorporated places from that applied to corporate,^^ to lay an excise tax on railroads,^^ to levy a deficiency tax,^^ and to impose a tax on certain lands at the end of a period of constitutional exemption.^ In all these cases^ the legislature was the source of interrogation. Similar questions met with refusals in four instances. A Connecticut court declined to advise the legislature as to its power to tax the income from United States bonds, on the con- stitutionally safe basis that an answer would involve an ex parte adjudication of private rights which the judiciary was not authorized to make.^ The refusal, in South Dakota,^ to deal extra- judicially with the legislative power to tax interstate carriers, after the United States circuit court of appeals had already dealt with the matter in regular proceedings, because the occasion could scarcely be a solemn one when the opinion would be so inconclusive, is quite reasonable, if it is once ad- mitted that the justices are entitled to pass upon the solemnity of occasion s.^^ Perhaps the same may be said of the position of the Massachusetts judges^^ that the mere possibility that legislation may be introduced upon a particular subject does not make the occasion of a question thereupon a solemn occasion within the meaning of the advisory opinion clause. But it is difficult to justify the refusal of In re Opinion of the Justices (76 N. H. 597). There the justices feebly argue that since they cannot agree, in the time available, upon the question of gradation involved in an inheritance tax bill submitted to them, "it is entu"ely immaterial to which side of the question the major- «° In re State Taxation, 97 Me. 595. " In re Railroad Taxation, 102 Me. 527. " In re Limitation of Taxation, 3 S. D. 456. «3 In the matter of the Constitutionality of HB. No. 18, etc., 9 Colo. 623. " Except, of course, In re Limitation of Taxation, 3 S. D. 456. " Reply of the Judges of the Supreme Court, etc., ZZ Conn. 586. " In re Opin. of the Judges, 34 S. D. 650. " See pp. 161-77 inha. " In re Opin. of the Justicf^s, 217 Mass. 607. 112 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT ity may incline." This can be a valid reason for declining an answer only on the assumption that it is the opinion of the court as a whole that is desired. But Article 73 of Part II in the Constitution of 1902 says "the opinions of the justices of the superior court;" and, as a matter of fact, although in- dividual and dissenting opinions are not as common in New Hampshire as in other States, they are by no means unknown there.®^ Furthermore, they argue, if the law is passed, the question of constitutionality will be litigated before the court anyway, and the justices ought not to be hampered by pre- vious views. If this argument were admitted as a sufficient reason for a refusal, the usefulness of the advisory opinion in the United States would be reduced to almost nothing, for it would apply to practically all questions regarding the consti- tutionality of pending legislation. If it had been applied as a test during the past century, the number of advisory opinions in our reports would have been reduced over twenty-five percent. The advantage of obtaining a judicial opinion on the constitu- tionahty of a measure in advance of its enactment is recog- nized in the practice of all the States where the legislature may request advisory opinions, including New Hampshire itself.'^" It would have been much better had the judges contented themselves with the perfectly satisfactory answer (which was, apparently, quite consistent with the facts) that the time per- mitted for consideration was insufficient to admit of a reply. ^^ The subject matter of four interrogatories is the power of a legislature to exempt certain kinds of property from taxation «»See Opin. of the Justices, etc., 41 N. H. 553; Opin., 45 N H. 607; In re Opin. of Justices, 74 N. H. 606; and recently In re Opinion of the Justices, 77 N. H. 611 (especially the opinion of Peaslee, J.). '"An Opin. of the Justices, etc., 7 N. H. 599; Opin. of the Justices, etc., 25 N. H. 537; Opin. of Justices, 44 N. H. 633; Opin. of the Justices, etc., 45 N. H. 595; In re Opin. of the Justices, 76 N. H. 588; In re Opinion of the Justices, 76 N. H. 609; In re Opin. of the Justices, 77 N. H. 611. And see pp. 154-158 infra, " See p. 219 infra. THE ADVISORY OPINION IN PRACTICE 113 or to authorize its exemption/^ In the earliest of these a New Hampshire court was again compelled to decline to answer through lack of time for examination, and unfortunately, again tries to make doubtful excuses do the work of sound reasons. The house of representatives asked whether the law authorizing towns to exempt manufacturing property from taxation was a violation of the bill of rights. In their refusal, the judges argued ingeniously that since contracts already made under the law were vaHd in any case (previous judicial construction having favored constitutionaUty), and the invalid- ity of future contracts could be effected by repealing the law, a judicial opinion as to its true construction was unnecessary. But this assumes two premises, that the court could not change its mind as to constitutionaUty and that the house of represen- tatives is only entitled to ask opinions on points which the court has never passed upon. It is submitted that these premises are not conclusive. The court may be unwilling to overrule a regular case in an advisory opinion,^ but this does not do away with the obligation to tell an authorized inquirer what the state of the law is, whether settled or not. Suppose a legislature does not wish to repeal a statute but is desirous of amending certain clauses if they are unconstitutional, is it not entitled (under an advisory opinion provision) to know the judicial opinion as to the construction of those clauses? Other opinions relating to taxation cover the method of taxing certain kinds of property,'^ the necessity of imposing a tax on "Opin. of the Court, 58 N. H., 623; In re Opin. of the Justices, 76 N. H. 609; In re Opin. of the Justices, 77 N. H. 611; In re Construction of Revenue Law, 2 S. D. 58. "In re Bounties to Veterans, 186 Mass. 603; Opin. of the Justices, 196 Mass. 603; In re Opin. of the Justices. In re Taxation, 220 Mass. 613; In re Opin. of the Justices, 76 N. H. 588; In re House Resolutions, etc., 15 Colo. 598; In re Assessment of Property, etc., 25 Colo. 296; and many- other cases. " Taxation of National Banks, 53 Me. 594; In the matter of the Con- stitutionality of HB. No. 270 and SBB. No. 69 and No. 106, etc., 9 Colo. 635 (mining claims). 114 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT property at the close of a period of constitutional exemption/^ the power to authorize towns to lay a special tax,^^ and the power to sell in default of payment of taxes. ^^ The last two opinions were in response to requests from the governor. (ii) Appropriations. Quite a few questions deal with the power to appropriate money for a particular purpose — for bounties to veterans of the Civil War/^ as a pension to a de- ceased official's widow/^ for the development of land to furnish homes to wage-earners,^^ in aid of a church or religious society or sectarian school or other undertaking,^^ for old age pensions,^^ to aid unfinished railroads within the State,^ to reimburse coun- ty treasurers, for sums paid by them under an act of the legis- lature,^ for the relief of destitute farmers after years of severe drouth,^ to cover failure by counties to pay the expenses of " In the matter of House Resolution, etc., 9 Colo. 622. 7« In re Abolishing School Districts, 27 R. I. 598. '' Advisory Constitutional Opin. of the Judges, etc., 37 Mo. 129. ''^ In re Bounties to Veterans, 186 Mass. 603; In re Opin. of the Justices, 190 Mass. 611; In re Opin. of the Justices, 211 Mass. 608. In the first of this interesting series, the justices declared the appropriation would be unconstitutional, not being for public purposes. Again, in the second, the justices felt bound to adhere to the settled law of the State but hinted that an appropriation might be permitted, to recognize the valuable services of persons serving in the Civil War, to be paid to them or to buy medals, if the dignity of the state would be enhanced or patriotism promoted thereby. And when the third inquiry alleged that the purpose of the appropriation was to "promote patriotism" and the public good, a majority of the jus- tices declared, "We are bound to take as true the purposes declared in the proposed act as those, and those only, which the Legislature had in view in its enactment;" though Rugg, C. J., insisted that the assertion of a patriotic purpose did not change the essence of the bill at all, and that the reasoning in 190 Massachusetts, 611, should apply. • " In re Opin. of the Justices, 175 Mass. 599. 8° In re Opin. of the Justices, 211 Mass. 624. " In re Opin. of the Justices, 214 Mass. 599. w In re Opin. of the Justices, 100 Ati. 49 (N. H.). ** In the matter of the Executive Conmaunication, 13 Fla. 699. •* In re Bounties, 18 Colo. 273. M In re ReUef Bills. 21 Colo. 62. THE ADVISORY OPINION IN PRACTICE 115 girls committed to the State Home for Girls,* for payment of a stenographer in the attorney-general's ofl&ce.®^ There are four Colorado opinions^® on the power of the legislature to make appropriations from the internal improvement fund. Another Colorado case^^ merits special attention because of its influence upon the financial policy of the State. The seventh general assembly heaped up appropriations far in excess of the revenue which could be provided under the constitution. A request from Governor Cooper for a criterion to test the legaUty of any particular appropriation, eUcited from the supreme court a clear though guarded statement of the general principles that should govern the legislature in making its appropriations. The judges declared that the excess appropriations were absolutely void, and the constitution provided no method of reUef . Appro- priations for the expenses of the government were to be pre- ferred to all other appropriations, regardless of date or emergency clause, but questions of priority among other appropriations would have to be determined in regular judicial proceedings. This opinion is unquestionably the constitutional law of Colo- rado. In his message to the next legislature. Governor Cooper called their attention to the fact that there were appropriations on the statute books which were not available and asked for their repeal.^^ jjig successor. Gov. Routt, declared $600,000 » In re Constitutionality of SB. No. 196, 23 Colo. 508. " In re Appropriations for Deputies, etc., 25 Nebr, 662. ^8 In re Senate Resolution Relating to Internal Improvement Fimd, 12 Colo. 285; In re Senate Resolution Relating to Appropriation, etc., 12 Colo. 287; In re Internal Improvements, 18 Colo. 317; and In re Internal Improvement Fund, 24 Colo. 247. *' In re Appropriations by General Assembly, 13 Colo. 316. '°" After the decision of the supreme court, in answer to questions submitted to them from my oflSce, in September, 1889, the officers of State were compelled to declare certain appropriations made by the Seventh General Assembly unavailable. Thus, there stand upon our statute books certain acts authorizing expenditures of money for purposes, more or less desirable, but with no fimd available to carry out the acts. ... I recom- mend the repeal of all acts of appropriation authorizing the expenditure of 116 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT of state warrants had been taken up by the school fund (sup- posedly inviolate!) and other investment funds, and asked that the warrants be validated and provision made for their payment from surplus revenue.^^ Appropriations by the next assembly were within the constitutional limit,^^ ^nd in 1895, Hayt, C. J., could say^^ that excess appropriations had gradually decreased since the opinion we are considering. However, the twelfth general assembly enacted excess appropriations to the extent of nearly $500,000, and Governor Thomas reminded the next assembly that they were void according to the opinion of the supreme court. ^ Governor Peabody also accepted the opinion as final, in 1903.^^ Answers have been given, too, to questions as to the power of the governor to recommend appropriation items, ^^ the power moneys beyond the estimated revenues of the State. In fact, in this line, I urge the repeal of all laws for appropriations not absolutely necessary for the government of State affairs and the advancement of the interest of the people." SJ. 1891, p. 58. w See SJ. 1891, pp. 103-4. 92 See Gov. Routt's Message of January 7, 1893, SJ., pp. 46-7, and Gov. Waite's Inaugural, ibid., p. 131. 83 "These cases . . . are a part of the litigation which springs from the custom of the legislature, at each biennial session, to appropriate money in excess of the revenues of the state, in violation of express constitutional mandates. . . . This practice . . . has led to expensive and vexatious litigation, to the impairment of the credit of the state, resulting not infre- quently in the deprivation of some of our most deserving institutions of funds absolutely necessary. ... To the credit of the legislature, be it said, however, that such unconstitutional appropriations have gradually decreased in amount during the six years that have elapsed since the first opinion of this court was rendered upon the subject, which is entitled In re Appropriations, 13 Colo. 316. . . . The leading opinion in this state in reference to the subject was written in the case in 13 Colo, already referred to. . . . These principles have been followed and approved in a number of cases. " Parks v. Soldiers' and Sailors' Home, 22 Colo. 86, at p. 90. MSJ. 1901, p. 21. ^ HJ. 1903, p. 102. ^ In re Opin. of the Justices, 208 Mass. 610. THE ADVISORY OPINION IN PRACTICE 117 of the legislature to make comptroller's warrants or treasurer's certificates receivable for State dues,®^ the power of the legisla- ture to appropriate from assessed but not yet collected reve- nues,^^ the necessity for specific appropriations where continuing appropriations have been provided for,^^ and as to the nature of an appropriation for a Tax Commission.^'^*^ There are three refusals to record. A Florida court de- clined to answer a question from the governor as to his obUga- tion to deed certain land to a town and sign a warrant in its favor under an act of the legislature, on the ground that the question did not involve executive rights or duties under the constitution.^^^ In the second case,^*^ a Colorado governor asked the court its opinion as to the priority of legislative appropriations, and the court quite reasonably pointed out that, since a test case was then pending in a district court, private interests were involved and the ex parte enunciation of any general rule would be undesirable.^^ Finally the supreme court of the same State has refused to give an opinion as to the constitutionality of possible appropriations for a bureau of child and animal protection, because the inquiry was not con- nected with pending legislation and involved the construction of existing statutes.^^ (iii) Miscellaneous. The cases relegated to this subdivision cover quite a variety of matters — legislative power to remit tolls which were partial security for a bond issue,^^ to impose upon a city a debt greater than it could constitutionally as- " In the matter of the Executive Communication, etc., 14 Fla. 283. »• In re State Warrants, 6 S. D. 518. "In re Continuing Appropriations, 18 Colo. 192. '°°In re Questions of the Governor, 55 Colo. 17. '°i Advisory Opinion to Governor, 50 Fla. 169. •"In re Priority oE Legislative Appropriations, 19 Colo. 58. ^^ Cf. In re Appropriations by General Assembly, 13 Colo. 316. lo* In re Interrogatories of the House, 162 Pac. 1144 (Colo.). 1* In re Opin. of the Jusdces, 190 Mass. 605. 118 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT sume/^ to assume the bounty debts of cities and towns/"^ to authorize a board of pubhc works to spend city funds upon improvements/^^ to control the deposit of State funds/°^ to authorize a loan from the school fund/^^ to determine damages caused to private property by the State."^ In eight instances the questions relate to the power of the legislature to authorize a bond issue for certain purposes,^^ or the making of municipal loans to assist private enterprises,^' or the issuance of warrants of indebtedness.^^* One stray question calls for a definition of the fiscal year.^^^ Three interesting opinions have to do with the relative position of the two houses in financial matters — the power of the senate to determine the proportion of ratable property in towns,^^^ to originate appropriations/^^ and to originate appropriations or bills authorizing exemption from taxation."^ Two Colorado cases deal with the power of the legislature to apportion the debts of old counties when new counties are created therefrom."® A Missouri court informed the governor that an act of the legislature releasing a first Hen of the State upon a particular railroad was constitutional,^^ but seven years later a differently constituted court refused ^«» In re Opin. of the Justices, 99 Me. 515. ^" Opin. of the Justices, 53 Me. 587. 108 In re SB. Providing for a Board of Public Works, etc., 12 Colo. 188. io» In re HR. Relating to HB. No. 349, 12 Colo. 395. »° In re Loan of School Fund, 18 Colo. 195. "1 In re Constitutionahty of Substitute for SB. No. 83, 21 Colo. 69. 1" In re State Bonds, 81 Me. 602; In re Opin. of the Justices, 34 R. I. 191; In re HB. No. 165, 15 Colo. 593, 595; In re Casual Deficiency, 21 Colo. 403; In re State Bonds, 7 S. D. 42; In re House Roll 284, 31 Nebr. 505. "3 Opin. of the Justices, 58 Me. 590. »" In re Canal Certificates, 19 Colo. 63. "» In re HR. No. 25. 15 Colo. 602. "• Opin. of the Justices, 126 Mass. 547. "' Opin. of the Justices, 126 Mass. 557. "* C^in. of the Justices, 70 N. H. 642. "»In the matter of HB. No. 231, 9 Colo. 624; In the matter of the Constitutionality of Section 9 of HB. No. 122, 9 Colo. 639. 120 Advisory Constitutional Opin. of the Judges, etc., 37 Mo. 139. THE ADVISORY OPINION IN PRACTICE 119 the senate an answer to the same question (though relating to a different act), for the reason that "the matters referred to concern the property rights of the State and the vested rights of individuals and corporations, and are such as are liable at any time to be brought before the courts in real con- troversies for adjudication."^^ Practically the same court declined, the following year, to give an opinion to the house of representatives upon a bill giving a raihoad more time to repay a loan from the State, for the same reason.^ Finally there are two refusals in Colorado, besides the one noted above (In re Priority of Legislative Appropriations, 19 Colo. 58). In In re University Fund, 18 Colorado, 398, the senate asked whether the general assembly could constitutionally create a University Land Permanent Fund from certain sources or give the Board of Regents exclusive control of certain proceeds from sales of land, and the court decUned to answer because the question involved the constitutionality of existing sta- tutes,^ though it went on to say that the provisions of the bill submitted did not seem to contravene any clause of the constitution. And In In re Assessment of Property by the State Board of Equahzation, 25 Colorado 296, the governor asked {inter alia) whether the legislature could constitutionally authorize a board of equalization to assess railroads, and the court felt "constrained to withhold" any opinion, for the very good reason, that a case involving the same subject matter was at that time before the court. Summary. There is such unanimity on the part of the courts in dealing with questions concerning the financial powers and duties of the legislature, that generaUzation can be quite succinct. Such questions are, it would seem, ex sua naturae ^21 In the matter of the N. Mo. R. R., 51 Mo. 586. ^ Opin. of the Court in Response to the Resolution of the General Assembly, etc., 55 Mo. 497. ^" For the validity of this rule see pp. 193-202 infra. 120 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT "important questions," and will be answered unhesitatingly, whether put by the legislature itself or by the governor. As a matter of course, the subject matter is, in most cases, questions of taxation or appropriation, but there is a sufficient diversity in the twenty-two miscellaneous cases reviewed (where answers were given) to indicate that all questions of a financial nature will be favorably received, and, unless they fall within the rea- sons for disapproval pointed out in a later chapter,^24 readily answered. d. Police Power of the Legislature. There has been no at- tempt to bring within this section all the cases where questions were raised which involved the police power. For instance, some of the questions in the section on Labor^^ might have been listed here, had it not seemed preferable to let subject matter rather than juridical aspect determine their classification. So only the police power cases of a nondescript character having little in common with the other sections of this chapter will be found here. They are few in number and so dissimilar inter se as to discourage any eflFort at generalization. It may be observed, however, that there are but two refusals to answer out of fifteen cases, and only one of them because of the inherent nature of the inquiry. The opinions given treat of the power of the legislature to regulate patents and the rights of patentees,^^^ to exclude girls from Chinese restaurants,^^^ to prohibit gift enterprises,^^^ to control the sale of convict goods,^^^ to control price discrimina- tions in restraint of trade, and monopolies,^^^ to enact anti- »" See pp. 161-237 infra. »26See pp. 123-125 infra. ^^ In re Opin. of the Justices, 193 Mass. 605. 1" In re Opin. of the Justices, 207 Mass. 601. "8 In re Opin. of the Justices, 208 Mass. 607; In re Opin. of the Justices, 115 N. E. 978 (Mass). "9 In re Opin. of the Justices, 211 Mass. 605. "° In re Opin. of the Justices, 211 Mass. 620. THE ADVISORY OPINION IN PRACTICE 121 saloon laws,*^^ to standardize fire insurance policies/^ and to regulate the weighing of coal.^^ In four instances there are opinions upon the power to authorize cities to manufacture gas and electricity/^ run fuel yards for the benefit of their citizens/^ or establish municipal factories.^^^ One refusal was occasioned by a request from the New Hampshire governor as to the power of the legislature to amend corporation charters by increasing the number of trustees.^^^ Essentially this called for an opinion on the constitutionality of the well-known act amending the Dartmouth College charter, which had been passed five months earher, and the judges not unreasonably objected to deaUng extra- judicially with private rights which had already accrued and would in all Hkelihood come before them judi- cially.^^^ But in the other instance where an opinion was refused,^^^ no private rights had as yet come into existence, for it appears from the discussion by the court that the bill (to increase the capital stock of a corporation, enlarge its powers, etc.) was then pending in the legislature. The judges were altogether too narrow in their construction of the advisory opinion clause,^'*^ and the case should not be looked upon as estabUshing a precedent.^*^ ^31 Opin. of the Justices, etc., 25 N. H. 537. 132 In re Opin. of Justices, 97 Me. 590. '^ In re HB. No. 10, etc., 15 Colo. 600. »»*In re Public Lighting, 150 Mass. 592. I'^Opin. of the Justices. In re HB. No. 519, 155 Mass. 598; In re Municipal Fuel Plants, 182 Mass. 605. »3« 0pm. of the Justices, 58 Me. 590. 1" Opin. of the Court, 62 N. H. 704. 1** As to the vaUdity of such an excuse see pp. 181-202 infra. ""Advisory Constitutional Opin. of the Judges, etc., 37 Mo. 135. "0 See pp. 44-46 supra and pp. 181-202 infra. "1 A resolution was adopted in the Senate of Minnesota in 1863 (SJ. 1863, p. 54) asking the supreme court if the legislature could by special act create private corporations or confer certain special privileges upon individuals. There is no record of a reply in the journal or in the supreme court reports for 1863. 122 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT It might be added that the Canadian supreme court has on five occasions given opinions on questions involving the pohce power — In re Provincial Jurisdiction to Pass Prohibitory Liquor Laws (24 Can. S. C. R. 170), In the matter of the Jurisdiction of a Province to Legislate Respecting Abstention from Labor on Sunday (35 Can. S. C. R. 581), In re International and Inter-provincial Ferries (36 Can. S. C. R. 206), In re References by the Governor-General in Council (43 Can. S. C. R. 536), and In the matter of Jurisdiction over Provincial Fisheries (26 Can. S. C. R. 444). e. Eminent Domain. Only eight opinions where the right of eminent domain was involved have come to light. All but one are due to interrogatories from the legislature. In the light of advisory opinion theory, they are of Httle interest. They include questions as to the power of a legislature to authorize a city to take land for broadening streets or for warehouse sites,^^ to authorize a city to build bridges across streets, mak- ing compensation to abutting owners,^*^ to authorize a commis- sion to obtain and develop land for workingmen's homes,^** to regulate the destruction of forests by owners in the public interest,^^^ to authorize a commission to obtain land for public parks,^^^ and to compel street improvements at the expense of abutting owners.^*^ f. Education. Ten opinions (including one that is extra- constitutional) have to do with matters touching education or the educational system. They are even more barren of ^*2 In re Opin. of the Justices, 204 Mass. 607; In re Opin. of the Justices, 204 Mass. 616. I*' In re Opin. of the Justices, 208 Mass. 603; In re Opin. of Justices to Senate, 208 Mass. 625. "*In re Opin. of the Justices, 211 Mass. 624. ^« In re Opin. of the Justices, 103 Me. 506. J« In re Opin. of the Justices, 34 R. I. 191. "^ In re House Resolutions Concerning Street Improvements, 15 Colo. 598. THE ADVISORY OPINION IN PRACTICE 123 theoretical interest than those in the preceding section, but are Hsted for the sake of completeness. Four were prompted by executive inquiries. The questions answered are as follows: the right of residents on land ceded to' the United States for miUtary purposes to use the common schools of the State,"^ the meaning of school district in a certain appropriation act,^'^® the Hability of school districts abohshed by law for previous debts,^^° the power to change the location of educational in- stitutions or to consoUdate them,^^ the power of the legislature to authorize loans from the Permanent School Fund,^^^ the power to estabhsh kindergartens in the public school system,^ the power to consoUdate school districts/^ the tenure of school boards/^^ and the power of the executive to invest the permanent school fund.^^ The refusal in In re University Fund, 18 Colorado 398, to advise upon the power of the legislature to give univer- sity regents the exclusive control of certain funds, was based upon the famihar excuse^" that the question involved the construction of existing statutes. g. Labor. The eleven cases which fall within the scope of this heading come from only two States, Massachusetts and Colorado. Nine of the references fell upon good soil, five in Massachusetts: the power to compel weekly payment of wages generally,^^^ to establish an eight hour day for pubUcemployees,^^^ "8 0pin. of the Justices, 1 Mete. 580. "9 In re Opin. of the Justices, 75 N. H. 622. «o In re Abolishing School Districts, 27 R. I. 598. ^" In the matter of Senate Resolutions, etc., 9 Colo. 626. «2 In re Loan of School Fund, 18 Colo. 195. ^" In re Kindergarten Schools, 18 Colo. 234. "* In re Annexation and ConsoUdation of School Districts, SB, No. 9, 26 Colo. 136. i« In re Construction of School Law, Ch. 9. s. 7, 2. S. D. 71. »« In re School Fund, 15 Nebr. 684. '" See pp. 193-202 infra. «8 In re HB. No. 1230, 163 Mass. 589. "9 In re 0pm. of Justices, 208 Mass. 619. 124 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT to enact a pending workmen's compensation act,^^'' to exempt labor unions and the members thereof from certain tortious liability /^^ and to limit the right of railroads to discharge em- ployees ;^^^ and four in Colorado : the power to enact a compulsory arbitration law/^ to interfere with the freedom to contract for wages,^^ to estabUsh an eight hour day for certain classes of laborers/®^ and to aboUsh the use of scrip in the payment of wages.^^^ But two of the judges in the latter State, Campbell and Goddard, JJ., felt they had gone too far under the leader- ship of Hayt, C. J., and refused point blank to answer questions in no essential respect dissimilar to those which have just been mentioned — i.e. as to the constitutional authority of the legislature to aboHsh payment of laborers in anything but lawful money of the United States.^" These questions, they said, were not important questions publici juris and so came within the rule of 12 Colorado, 466; furthermore answers might affect private rights if the bill should be enacted into law. They admitted a departure from these tests in In re Bill — to Abolish the Use of Scrip, 23 Colorado, 504, and in another case, but condemned the course there followed. Although a consideration of the va- lidity of these excuses may better be deferred (see pp. 182-205 infra), it may be said at this place that if they had been appHed strictly in Massachusetts and Colorado, the eleven opinions of this section would all be labeled refusals, and scores of other cases as well. The Canadian reports disclose three opinions of the supreme court in cases involving labor questions: Union Colhery Com- 160 In re Opm. of Justices, 209 Mass. 607. "1 In re Opin. of the Justices, 211 Mass. 618. "2 In re Opin. of the Justices, 220 Mass. 627. 163 In the matter of a Bill for an Act, etc., 9 Colo. 629. "^ In re HB. No. 203, 21 Colo. 27. i«« In re a Bill Providing that Eight Hours Shall Constitute a Day's Labor, 21 Colo. 29. i6« In re Bill— to AboUsh the Use of Scrip, etc., 23 Colo. 504. 1" In re HB. No. 99, etc., 26 Colo. 140; and In re SB. No. 27, etc., 28 Colo. 359. THE ADVISORY OPINION IN PRACTICE 125 I>any of British Columbia v. Attorney-General of British Columbia, et al, 27 Can. S. C. R. 637, (an appeal from a refer- ence to the supreme court of British Columbia regarding the Coal Mines Regulation Act), In the matter of the Jurisdiction of a Province to Legislate Respecting Abstention from Labor on Sunday, 35 Can. S. C. R. 581, and In re Railway Act Amend- ment 1904, 36 Can. S. C. R. 136, (the power to regiilate the liability of railroads for injuries to employees). h. Miscellaneous Questions as to Legislative Power. It has been found necessary to refer thirty-eight cases to this hetero- geneous group, as not coming under any of the preceding sec- tions. Three of these are extra-constitutional cases from Maine, New York and Ohio. The reaction of the judges has been favorable with respect to the following questions: the power of the legislature to fill vacancies in the executive coun- cil,^^^ to commute punishments after sentence has been given,^^* to exempt certain classes from militia service,^^^ to make certain classes eligible to enroll in the miHtia,^^^ to change town or county lines,^^ to abohsh the probate and insolvency register and give his duties to another officer,^^^ to create a civil service com- mission with certain powers,^^'* to authorize the estabHshment of new ward lines before a particular census,^^^ to authorize the appointment of women as notaries public,^^^ to change ^•*Opin. of the Justices, 14 Mass. 470. i"Opm. of the Justices, 14 Mass. 472. i^oOpin. of the Justices, 22 Pick. 571. "^ Opin. of the Justices, 14 Gray, 614. ^" Opin. of the Justices, 6 Cush. 578; and In the matter of the Executive Communication, etc., 14 Fla. 320. "3 Opin. of the Justices, 117 Mass. 603. "* Opin. of the Justices, 138 Mass. 601. "*Opin. of the Justices, 157 Mass. 595. "« In re Opin. of the Justices, 165 Mass. 599; In re Opin. of the Justices, 99 Atl. 999 (N.H.);Opin.s of the Justices, etc., 62 Me. 596 (question re appointment of women as justices of the peace) ; and In the matter of HB. No. 166, 9 Colo. 628. 126 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the census date within an appointed year,^^' to authorize a guardian to convey the realty of his ward,^^^ to provide for recording deeds with town clerks,"^ to elect a United States Senator for a particular term,^^° to direct insane asylum trustees to convey land to the State/^^ to grant divorces/^^ to pass the so-called "Personal Liberty Laws/'^^ to annul a judgment of the supreme court,^^ to call a constitutional convention or sub- mit to the people the question of its desirabihty/^ to order a new election in case of failure to elect a United States repre- sentative/^^ to consolidate municipaUties,^" to decide contests for the governorship,^^^ or for any executive office/^^ to provide a special apportionment of delegates for a constitutional con- vention ;^^° and the duty of the legislature to provide for a census.^^^ In 1878 several towns asked the State of Maine for the repayment of certain sums paid out by them as bounties; a resolution was introduced in the legislature in favor of the towns, and finally the whole matter was referred to three justi- ces of the supreme court, as a commission, to determine questions of law and fact. The justices obUgingly complied with the request.^^^ ^" In re Opin. of the Justices. In re Census, 220 Mass. 609. "8 An Opin. Delivered by the Court, etc., 4 N. H. 565. 1" An Opin. of the Justices, etc., 7 N. H. 599. 180 Opin. of the Court, 60 N. H. 585. 181 Opin. of Justices, 70 N. H. 638. 182 Opin. of the Justices, 16 Me. 479. 183 Opin.s of the Justices, etc., 46 Me. 561. 184 Opin. of the Supreme Court, 3 R. I. 299. 18* In re the Constitutional Convention, 14 R. I. 649. 186 In re the Congressional Election, 15 R. I. 624. 18^ In re Extension of Boundaries of the City of Denver, 18 Colo. 288; and In re ConstitutionaUty of SB. No. 293, 21 Colo. 38. 188 In re Senate Resolution No. 10, etc., 33 Colo. 307. i8» In re Quaere of the Procedure of the Two Houses, etc., 31 Nebr. 262. i^oDeb. Mass. Conv. 1853, I, 138. i»iln re State Census, 6 S. D. 540. i«2 Opin.s of the Justices, etc., 69 Me. 585. THE ADVISORY OPINION IN PRACTICE 127 On the other hand opinions have been refused outright in six cases. When the governor of Florida asked for advice as to the general scope of legislation permitted to the current session of the legislature, that he might know what bills could properly be submitted for his approval, he was promptly told that the exercise of the veto was not an executive but a legis- lative act and therefore his question did not come within the advisory opinion clause of the constitution. ^^^ Four times the Colorado justices have declined to answer, when references were made relating to the general construction of constitutional clauses on irrigation and the power of the legislature thereun- der,^^ the constitutionality of a pending act,^^^ the constitu- tionaUty of a bill submitting an amendment,^^ and the power to repeal a law submitting an amendment.^^^ In all of these cases the justices objected that the questions as put were too general — an objection well within the practice in this State.^^^ In the first of these they also quite properly called attention to the fact that cases involving these questions were then awaiting adjudication; and in the last two they reiterated another conamon Colorado rule, that advice will not be given to the assembly on pending legislation "unless, among other things, it is shown that the same has at least passed the committee of the whole. "^•' In the Ohio case (a question of legislative power over munici- palities) the court rested its refusal upon the want of constitu- tional authority to give extra-judicial advice.^^" In two in- stances, answers to some of the questions submitted (upon the power of the legislature to appoint oflScers otherwise than as ^'^ In re Executive Communication, etc., 23 Fla, 297. *^ In the matter of Senate Resolution on the Subject of Irrigation, 9 Colo. 620. i» In re HB. No. 107, 21 Colo. 32. ^'•In re HB. No. 495, etc., 26 Colo. 182. "' In re SR. No. 7, 29 Colo. 350. "«See pp. 215-17 infra. 1" In re SR. No. 7, 29 Colo. 350. And see pp. 212 infra. 200 State V. Baughman, 38 Ohio St., 455. 128 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT provided in the constitution,^^^ and upon the vaUdity of certain impeachment proceedings^^^), were made unnecessary by the repUes to previous questions in the same reference.^^^ 2. The Executive Department a. Composition and Organization. In nearly half of the twenty-seven cases classed here, the subject matter is the tenure of office of members of the executive department — of the exe- cutive council,^^^ commissioners of pilots,^^^ the adjutant gen- eral,^^ certain officers of the miUtia,^^^ the register of probate,^^^ the register of deeds,^^^ the governor and other officers,^^^ cer- tain appointed officers,^^^ county treasurers,^^ and the board of capitol commissioners.^^^ Seven deal with eUgibiHty — to ap- pointment on a railroad commission,^^^ or as land agent ;^^^ of miUtia officers to hold a second office,^^^ of members of a Seces- sion convention to hold any State office,^^^ and of women to serve as notaries public.^^^ The other questions are miscel- laneous in character: the method of election of the executive 201 Opin. of the Justices, 136 Mass. 578. ^^ In the matter of the Executive Conununication, etc., 12 Fla. 653. 2« There is a Canadian case dealing with the power of the legislature to pass a law relating to bigamy. In the matter of the Criminal Code, etc., 27 Can. S. C. R. 461. 2M Opin. of the Justices, 3 Gray, 601. 2<» Opin. of the Justices, 154 Mass. 603. 2°" In re Opin. of the Justices, 216 Mass. 605. 207 Opin. of the Justices, 62 N. H. 706; Opin. of the Justices, 2 Me. 439. 208 Opin. of the Justices, etc., 61 Me. 601. 209 Opin. of the Justices, etc., 64 Me. 596. 210 Statement and Questions Submitted, etc., 70 Me. 570. 211 In the matter of the Executive Communication, etc., 14 Fla. 277. 212 In the matter of HB. No. 38, etc., 9 Colo. 631. 213 In re Board of Capitol Commissioners, 18 Colo. 220. 21* In re Opin. of the Justices, 75 N. H. 613. 215 Opin. of the Justices, 3 Me. 481. 216 Opin. of the Judges, etc., 4 R. I. 585. 217 In the matter of the Executive Communication, etc., 12 Fla. 651. 2i«In re Opin. of the Justices, 165 Mass. 599; Opin.s of the Justices, etc., 62 Me. 596; and In the matter of HB. No. 166, 9 Colo. 628. THE ADVISORY OPINION IN PRACTICE 129 council,^* the successor to the duties of sheriff upon the latter's death ,^° the necessity for the cooperation of the governor and council in approving an appointment by hospital trustees,^^ the successor to the acting governorship when the president of the senate ceases to act at the end of a political year,^^^ the procedure in governorship contests,^ or in contests for any executive oflSce.^ On the other hand, there have been two refusals to answer inquiries concerning the tenure of various oflScials — certain appointees of the governor,'^ and the regents of education.^ In both cases the courts advanced the excuse that any reply would compel an ex parte examination of private rights. However reasonable this excuse may be, an examina- tion of the above cases on tenure will show that it has not controlled the earlier practice in Massachusetts, New Hamp- shire, Maine, Florida, or Colorado itself. Again, in a quite recent case, the Massachusetts court declined to answer ques- tions concerning the general relations of the governor and coun- cil in that state,^^ on the ground that, as it did not appear that assistance was necessary in the performance of a pending duty, the question was not an "important question" within the constitution.^* b. Financial Administration. Twenty-seven opinions in all have to do with the financial powers and duties of the gover- nor or some other executive officer. In eight instances answers were given to questions as to the administration of appropria- tes Opin. of the Justices, 3 Gray, 601. 22°Opm. of the Justices, 126 Mass. 603. 221 In re Opin. of the Justices, 211 Mass. 632. 222 0pin. of the Justices, 6 Me. 506. «3 In re SR. No. 10, etc., 33 Colo. 307. 22* In re Quaere of the Procedure of the Two Houses, etc., 31 Nebr. 262. 225 In re Appointments by the Governor, etc., 21 Colo. 14. 22« In re Ch. 6, Session Laws of 1890, 8 S. D. 274. 227 In re Opin. of the Justices, 211 Mass. 630. 228 In re Opin. of the Justices, 211 Mass. 632, is the sequel to this refusal. 130 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT tions in general,^^ or of appropriations or funds for some special purpose — a special school fund,^^ the appropriation for the maintenance of indigent persons,^^ the appropriation for the salary or mileage of members of the legislature,^^ and the general school fund.^^^ Five are concerned with the issuing or payment of bonds, warrants or certificates of indebtedness,^ and two with the operation of a defective appropriation bill.^^ Advice was also given upon six questions of a miscellaneous nature — the power of the governor to suggest appropriation items to the legislature,^^ or to pledge the State's credit,^^ his duties in administering lotteries,^^ the liability of the trea- surer for State funds,^^ and the power of the board of equaliza- tion to levy special taxes,^^ or to make original assessments.^^ Six refusals must be recorded. Three are in Florida, where the court applied its prohibition against the construction of statutes to questions upon the governor's powers and duties in administering certain special appropriations,^ or the school 229 Opin. of the Justices, 13 Allen, 593; In re Appropriations by General Assembly, 13 Colo. 316. 230 In re Opin. of the Justices, 75 N. H. 622. 23iOpin.s of the Judges, etc., 4 R. I., 587; Opin.s of the Judges, etc., 4 R. I. 588. 232 In re Opin. to Governor, 35 R. I. 166; In the matter of the Executive Commimication, etc., 12 Fla. 689. 233 In re School Fund, 15 Nebr. 684. 23< Opin. of the Court, etc., 49 Mo. 216; In re Certificates of Indebted- ness, 18 Colo. 566; In re Contracting of State Debt by Loan, 21 Colo. 399; In re State Warrants, 6 S. D. 518; and In re State Bonds, 7 S. D. 42. 236 In re Advisory Opinion, 43 Fla. 305; and In re General Appropriation Bill, 16 Colo. 539. 23« In re Opin. of the Justices, 208 Mass. 610. 237 In re Opin. of the Justices, 76 N. H. 601. 238 Opm. of the Justices, 7 Me. 502. 239 In re HR. Relating to HB. No. 349, 12 Colo. 395. 2*0 In re State Board of Equalization, 24 Colo. 446. 2*1 In re Questions of the Governor, 55 Colo. 17. 2*2 In re Opin. of Justices, 54 Fla. 136. THE ADVISORY OPINION IN PRACTICE 131 fund,^ and in countersigning warrants for State printing.^** The three Colorado refusals are referable to the same excuse although the wording is somewhat different, the fact being emphasized that it would involve an ex parte determination of private rights to answer certain inquiries put concerning the salary and powers of the State treasurer,^ the duties of the governor and auditor in administering appropriations when questions of priority were raised,^ and the powers of the auditor and board of equalization over assessments.^^ c. Appointment and Removal Powers of Executive Officers, Most of the thirty-four cases^'*^ placed here deal with the ap- pointive power of the governor: does it extend to the selection of particular officials — the commissioners of pilots,^^ certain county officers,^" the census superintendent,^^ a committee of investigation,^ an unnamed State official,^^ the board of pubUc works,^ a justice of the supreme court,^ the matron of the insane hospital;^ or the filUng of particular vacancies — in the United States house of representatives,^^ on the railroad com- mission or board of agriculture,^^ among county officers gen- 2« In re Opin. of Judges, 62 Fla. 4. 2** In re Advisory Opin. to the Governor, 64 Fla. 1. 2« In re HR. No. 25, 15 Colo. 602. "" In re Priority of Legislative Appropriations, 19 Colo. 58. 2*7 In re Assessment of Property, etc., 25 Colo. 296. 2<*This includes two that are extra-constitutional. 2*8 Opin. of the Justices, 154 Mass. 603. 2*0 Statement of Facts, and Questions, 38 Me. 597. 2*1 In re the Census Superintendent, 15 R. I. 614. 2*2 In re the Investigating Commission, 16 R. I. 751. 2*3 In re Advisory Opin. to the Governor, 65 Ha. 434. 2** In re SB. Providing for a Board of Public Works, etc., 12 Colo. 188. 2** In re Supreme Court Vacanc>', 4 S. D. 532. 2*«In re Board of Pubhc Lands and Buildings, 18 Nebr. 340. 2*7 In re the Representation Vacancy, 15 R. I. 621. 2*8 In re Raikoad Commissioner, 28 R. I. 602. 132 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT erally,^^^ or in the court of appeals ;2^° does it authorize the appointment of women as notaries pubUc,^®^ or on the board of health, lunacy and charity ,^^2 or as county treasurer ;2^ or the preferment of Civil War veterans in civil service appoint- ments,^^ or the appointment of members of the legislature to the boards of State institutions?^^ Except two which deal with the power of appointment in general,^^ the other opinions on appointment have to do with miscellaneous questions: the governor's power to fill vacancies on a corporation,^^^ his right to appoint the first incumbent of an office when the legislature fails to elect,2^^ the method of filUng vacancies to which the governor has failed to appoint,^^^ the need of the senate's con- firmation of certain appointments,^^^ and the governor's duty to submit temporary appointments to a special session of the legislature.^^^ Interrogations connected with the power of suspension or removal are much fewer. Two are general in nature,^^ three are concerned with particular ofl&cials — county 259 Vacancies in Elective County Officers, 25 Fla. 426. 2«oOpin. of the Judges of the Court of Appeals, 79 Ky. 621. 2" Opin. of the Justices, etc., 150 Mass. 586; and In re Opin. of the Justices, 73 N. H. 621. ^i^Opin. of the Justices, 136 Mass. 578. 2MIn re Opin. of Judges, 62 Fla. 1. 2" Opin. of the Justices, etc., 145 Mass. 587; Opin. of the Justices, 166 Mass. 589. 2«* In re Members of Legislature, 49 Fla. 269. 2w Opin. of the Justices, 3 Gray, 601 ; and In re Opin. of Justices, 67 Fla. 423. 2«7 0pin. of the Court, 62 N. H. 704. 2«8 0pm. of the Justices, etc., 45 N. H. 590. 2«» In re Decision of Justices, etc., 28 R. I. 607. *'°In re Advisory Opinion to the Governor, 45 Fla. 154; and In re Question Propounded by the Governor, 12 Colo. 399. "^ In re Advisory Opin. to the Governor, 64 Fla. 16. 2" Opin. of the Justices, 3 Gray, 601; and Question Submitted, etc., 72 Me. 542. THE ADVISORY OPINION IN PRACTICE 133 cominissioners,^^ circuit judges,^^* and the fire and excise com- missioners of a city.^^^ There are four refusals. In Opinion of the Justices, 62 New Hampshire, 706, an inquiry from the mayor and aldermen of a city as to the location of the power to appoint and remove members of the fire department met with the fate that should have been anticipated. Twice a Florida court declined to ex- press any opinion as to the governor's power to appoint circuit judges, because it would necessitate the interpretation of a statute ;2^^ and in Question Submitted by the Governor, etc., 85 Maine 545, the justices declared that the possible removal of a county attorney did not create a "solemn occasion" calling for their advice. One of the Canadian opinions is in reply to a reference concerning the power of a provincial Heutenant-govemor to appoint Queen's Coimsel or grant precedence to selected mem- bers of the bar .2^^ d. Electoral Duties. Of the seventeen interrogations re- lating to the duties of the executive in connection with elections, nine belong to the State of Maine. All of these deal with the extent of the governor's duties in canvassing the returns from an election for county officers,^^^ or from general elections.^^^ Similar questions are answered in Opinion of the Justices, 53 New "' In re Advisory Opin. to Governor, 64 Fla. 168, 27«Opin. of the Justices, 67 Fla. 489. 2" In re Fire and Excise Commissioners, 19 Colo. 482. "« In re Opin, of the Justices, 69 Fla. 632; and In re Opin. of the Justices, etc., 69 Fla, 653, ^'^ Attorney-General for Dominion v. Attorney-General for Ontario, (1898) A. C. 247. "'Opin. of the Justices, etc., 25 Me. 567; Statement of Facts, and Questions, 38 Me, 597; and Opin. of the Justices, 54 Me. 602. 2" Opin.s of the Justices, etc., 64 Me. 588; Opin.s of the Justices, etc., 64 Me. 596; Opin.s of the Justices, etc., 68 Me. 587; Questions Submitted, etc., 70 Me. 560; Statement and Questions Submitted, etc., 70 Me. 570; and Statement and Questions Submitted, etc., 70 Me, 600, 134 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Hampshire, 640, and Opinion of the Court, 58 New Hampshire, 621, but the same court twice refused to give to the legislature opinions as to the power of the governor to reject certain votes, when the rejection was a fait accompli?^^ The other four questions were all answered; they deal with the duty or power of the governor to recount ballots in a contested election,^^! the powers of the secretary of state in counting the signatures on a referendum petition ,2^^ and the duty of the governor to order a new election upon failure to elect a United States representative.^^^ e. Military Questions. The subject matter of five inter- rogatories is the constitutional powers of the commander-in- chief of the State's public armed forces (to determine the exis- tence of an exigency calling for the use of the miUtia in the federal service,^^ or to disband companies of militia,^^ or to determine the rank of militia officers^^), or the position and powers of subordinate mihtia officers (when the mihtia is in the service of the United States,^^^ or in administering an oath to the judge advocate of a court martialj^^s or as to tenure generally ,2^^ or when an appHcation for a court martial has been made^^o). it will be seen that four of these five cases are from Massachusetts and only one of the five is of later date than 1860. There are no refusals. ^soOpin. of the Justices, 56 N. H. 570; and Opin. of the Justices, 56 N. H. 574. 2" Opin. of the Justices, 117 Mass. 599; and Opin. of the Justices, 136 Mass. 583. 282 In re Opin. of the Justices, etc., 114 Me., 557. 283 In re the Congressional Election, 15 R. I. 624. 2W0pin. of the Justices, 8 Mass. 548. 285 Opin. of the Justices, 1 Allen, 197 n. 28«Opin. of the Judges, etc., 5 R. I. 598. 287 Opin. of the Justices, 8 Mass. 548. 288 Opin. of the Justices, 3 Cush. 586. 289 Opin. of the Justices, 132 Mass. 600. 290 Opin. of the Judges, etc., 5 R. I. 598. THE ADVISORY OPDaON IN PRACTICE 135 f. The Execution of the Criminal Law. If we include the seven Oklahoma cases under the capital conviction statute'^^^ and three other extra-constitutional opinions, we find twenty- three opinions dealing primarily with questions of the criminal law. Seven of these treat of the executive powers of pardon, commutation and reprieve — the legal effect of the trial judge's recommendation for a commutation,^^ the need for the executive council to approve a pardon or commutation,^^^ the power of the governor and council to consider an appHcation for pardon,^^ whether the executive's pardon can restore voting privileges,^®^ the executive power to grant reprieves,^^ and the duty of the governor to communicate pardons and commutations to a spe- cial session of the legislature.^^^ Three deal with extradition problems — the right of the governor to surrender a convict under sentence, upon a request for extradition,^^^ his duty to grant extradition under a United States statu te,^^^ or upon the mere request of a foreign state.^°^ The supreme court justices have also assisted extra-judicially in the consideration of ques- tions as to the power of the governor to order the removal from one county to another of a convict under death sentence,^*'^ the power of a prison warden to discharge a prisoner without the executive pardon,^*^ and the nature of commutation.^''' =91 See pp. 76-78 supra. 292 0pin. of the Justices, 120 Mass. 600. -^ In re Opin. of the Justices, 190 Mass. 616; and In re Opin. of the Justices, 210 Mass. 609. *** In re Pardoning Power of Governor and Council, 85 Me. 547. 295 Opin.s of the Judges, etc., 4 R. I. 583. 296 In re Advisory Opinion to Governor, 62 Fla. 7. 297 In re Advisory Opinion to the Governor, 64 Fla. 21. 298 In re Opinion of the Justices, etc., 201 Mass. 609. 299 In the matter of Hughes, 61 N. C. 57. 300 Respublica v. De Longchamps, 1 Dall. (Pa.) HI. 301 Opin. of the Justices, 11 Cush. 604. 302 Opin. of the Justices, 13 Gray, 618. 303 In re Opin. of the Justices, 210 Mass. 609. 136 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT In State v. Cleveland^^ the justices very reluctantly gave to the executive council their opinions as to whether a jury found a defendant guilty of murder in the first degree according to the statutes of the State. The statutory opinions in cases of conviction on a capital charge number eight — one in New York,^°^ seven in Oklahoma.^^^ As has already been noted,^^^ two of the referred cases in Oklahoma met with refusals, and the construction of the statute in In re Opinion of the Judges (8 Okla. Crim. 467) has undoubtedly limited its appHcation to a considerable extent. Two other refusals should be mentioned. In In re Opinion of Supreme Court, 39 Florida, 397, the justices declined to tell the governor what the effect of pardons without the executive approval would be, because this did not involve an interpretation of the executive powers, or whether he had power to issue a death warrant, because this did involve the construction of a statute. A Colorado court has appHed this last excuse to a question as to the relation of the pardoning power to the paroling of prisoners.^^^ g. Miscellaneous. As in the case of the legislature, so here with the executive department, it has been found necessary to make a hodge-podge of opinions, for the most part unrelated and unclassifiable. Not a few (nine) deal with the powers and duties of various minor officials — of all civil and military officers under a particular Act of Congress,^*'^ of the president of the senate when acting governor,^^^ of jailers and other persons in 3^58 Me. 564. 3** People V. Green, 1 Denio 614. '<* State V. Johnson, 21 Okla. 40; In re Opin. of the Judges, 25 Okla. 76; Opin. of the Judges, 3 Okla. Crim. 315; In re Opin. of the Judges, 4 Okla. Crim. 594; In re Opin. of the Judges, 6 Okla. Crim. 18; In re Opin. of Judges, 6 Okla. Crim. 210; and In re Opin. of the Judges, 8 Okla. Crim. 467. 307 See pp. 77-78 supra. 3°*In re Penitentiary Commissioners, 19 Colo. 409. 309 Opin. of the Justices, 14 Gray, 614. 310 Opin. of the Justices, 7 Me. 483. THE ADVISORY OPINION IN PRACTICE 137 dealing with fugitive slaves,^^ in advising a city board of police commissioners,^^ of the board of land commissioners,^^ of the auditor of pubUc accounts,^^"* of the attorney-general in appointing deputies,^^ and of the board of public lands and buildings as regards State institutions.^^® Particular powers or duties of the governor are the subject matter of eight opin- ions — the power to hire legal agents to prosecute a military claim against the United States,^^^ the duty to arrange for the trans- portation of State officials,^^^ the power, in the absence of statute, to authorize legal proceedings at the expense of the State,^^* or to alter highways at the expense of certain towns,^° the power to adjourn the legislature,^^ or to summon it in special session,^ the duty to issue commissions.^ Finally there are opinions as to the UabiHty of a county commissioner to impeach- ment,^ the title of asylum trustees in asylum property ,^^ the need of approval by the governor and council of appointments by a license board,^ the existence of laws prohibiting racetrack gambling,^^ the effect of the suspension of a governor while '" Opin.s of the Justices, etc., 46 Me. 561. 31' In re Police Commissioners, 22 R. I. 654. 3" In re Leasing of State Lands, 18 Colo. 359; and In re Canal Cer- tificates, 19 Colo. 63. "«In re Babcock, 21 Nebr. 500. '" In re Appropriations for Deputies, etc., 25 Nebr. 662. 'i« In re Board of Purchase and Supplies, etc., 37 Nebr., 425. 3"Opin. of the Justices, 72 N. H. 601. '"In re Opin. of Justices, 74 N. H. 606. »»In re Opin. of Justices, 75 N. H. 624. «" In re Opin. of the Justices, 77 N. H. 606. 321 Opin. of the Justices, 18 R. I. 824. ^ In the matter of the Executive Commimication, etc., 15 Fla. 739. ^ In re Advisory Opin. to the Governor, 31 Fla. 1; and In re Opin. of the Justices, 68 Fla. 560. 3^ In re Opin. of the Justices, 167 Mass. 599. «* Opin. of Justices, 70 N. H. 638. ''"Opin. of the Justices, 72 N. H. 605. «7 In re Opin. of tiie Justices, 73 N. H. 625. 138 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT under impeachment,^^^ the salaries and expenses of the State board of land commissioners,^^^ the administration of a par- ticular piece of State land,^° and the nature of a railroad com- mission, if created.^^ On the other hand there have been nine instances where the justices have declined to give any opinion. Refusal to construe an existing statute was the reason given in In the matter of Inquiries Submitted, etc., 58 Missouri, 369, (relating to the power of the governor to issue commissions) and In re HR. No. 25, 15 Colorado, 602, (concerning the powers of the State treasurer). In Advisory Opinion to the Governor, 61 Florida, 1, the justices declared that the submission of proposed United States amendments to the legislature was not an exe- cutive duty calling for their assistance. No opinion was re- turned by the Colorado justices to a question as to the powers of the board of land commissioners to extend mineral leases, because the private rights of lessees might be affected.^^^ ^n interrogatory relating to the powers and duties of a police com- mission was returned unanswered because the term of the in- quiring governor had expired, in Opinion of the Justices, 70 New Hampshire, 640. Lastly, the Minnesota justices have twice refused opinions — in Rice v. Austin, 19 Minnesota, 103, (re- garding the governor's duty to transfer land to the land com- missioners) and State v. Dike, 20 Minnesota, 363, (about the powers of the secretary of state) — on the ground that extra- judicial consultation of the justices was unauthorized by the constitution. It will be remembered that the refusal of the United States supreme court to answer Washington's questions upon the neutral duties of the executive department was based essentially upon this ground. The reason for the refusal in '^^ In the matter of the Executive Communication, etc., 14 Fla. 289. '^"In re Questions by the Governor, 55 Colo. 105. ""In re Opin. of Judges, 13 S. D. 191. ^^ In re Railroad Commissioners, 15 Nebr. 679. 232 In re Leasing of State Lands, 27 Colo. 99. THE ADVISORY OPrNION IN PRACTICE 139 In re Board of Sinking Fund Commissioners, 32 S. W. 414 (Ky.) — when the board of sinking fund commissioners petitioned for advice in connection with the State's prison — is unsatis- factory, for the chief justice waives the question of jurisdiction and contents himself with saying the court would be as much embarrassed in determining the questions as the commissioners. The question of jurisdiction is also left unsettled in In the matter of the Executive Communication, etc., 12 Florida, 653, where the justices avoided expressing an opinion as to the Uabihty of the governor to impeachment by an extra session of the legislature, by declaring there was not a quorum present anyway. Two opinions by the Canadian supreme court deal with particular powers of the governor-general — to make remedial orders on appeal from provincial statutes,^ and to grant U- censes.^ 3. The Judiciary As might be expected the number of cases dealing with the third department of government is comparatively small. Of course in this section, as in the two following sections, it should be remembered that the interrogations which occasioned the opinions were, in verbis, questions as to legislative or exe- cutive powers. It is only when the consideration of these powers is quite subordinate and the emphasis is plainly upon some mat- ter which primarily affects judicial organization and procedure, or the electorate, that the opinion is adverted to under these heads. Most of the thirty-two opinions collected here are concerned with questions of organization — the tenure of justices of a pohce court or a justices' court,^ of justices of county courts,^ ^ In re Certain Statutes of . . . Manitoba Relating to Education, 22 Can. S. C. R. 577. ^ In re International and Inter-provincial Ferries, 36 Can. S. C. R. 206. '^Opin. of the Justices, 3 Cush. 584. ^^Opin. of the Justices, 3 Gray, 601. 140 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT of certain justices of the supreme court,^^ of justices of the peace,^^ of a circuit judge,^^ of county judges,^° of certain district judges ;^^ legislative power to change the number or boundaries of judicial districts,^ or the effect of such a change;^ the appointment or removal of various classes of judges;^ the eligibihty of women,^ or of a sheriff, deputy sheriff or coroner,^^^ or of a register of deeds, to be appointed justice of the peace ;^^ the effect of the creation of a new court upon a court already existing.^^ Several were prompted by questions about the jurisdiction or powers of different courts or judges — the power of a single judge to enter final judgment on a plea of guilty of murder in the first degree,^^ the power of inferior judges to instruct juries,^^ the jurisdiction of justices of the peace,^^^ or of county courts in probate matters,^^^ ^^d the pos- 3" In re Opin. of Judges, 23 R. I. 635; and In re Supreme Court Va- cancy, 4 S. D. 532. "8 In the matter of the Executive Communication, etc., 15 Fla. 735. 339 Advisory Opinion, etc., 16 Fla. 841. »*° In re Opin. of the Justices, 68 Fla. 560. '" In re Opin. of the Justices, 69 Fla. 653; and In re Election of Dis- trict Judges, 11 Colo. 373. 3*2 Opin. of the Judges, etc., 55 Mo. 215; and In the Matter of the Executive Communication, etc., 14 Fla. 320. 3*3 In re SR. No. 9, 54 Colo. 429. 3** In re Advisory Opinion to the Governor, 45 Fla. 154; In re Opinion of Justices, 67 Fla. 423; Opin. of the Justices, 67 Fla. 489; and In re Su- preme Court Vacancy, 4 S. D. 532. *« Opin. of the Justices, 107 Mass. 604. »«Opin. of the Justices, 3 Me. 484. »*'Opin.s of the Justices, etc., 68 Me. 594. 3" Opin. of the Justices, 3 Gray, 601. **» Opin. of the Justices, 9 Allen, 585. In connection with this opinion see Green v. Commonwealth, 12 Allen, 155. 350 In re Opin. of the Justices, 24 R. I. 625. 3»i In the matter of the Constitutionality of HB. No. 158, 9 Colo. 625. »*' In re SR. Relating to SB. No. 31, 12 Colo^ 340. For the questions in this case see SJ. 1889, p. 1155. THE ADVISORY OPINION IN PRACTICE I4I sible jurisdiction of a court of appeals, if created.^ Still others deal with jury problems — the constitutionality of certain restrictions as to jury trials,^ or of petit juries composed of less than twelve men, or of verdicts by less than twelve.^ The remaining questions are miscellaneous in character — the definition of justice of an inferior court,^ whether a judgment of the supreme court can be reversed by legislative enactment,^^ the effect of the aboUtion of district courts,^^ the constitution- ality of the powers of a court of appeals as contained in a pending bill,^^ the beginning of the term of a certain district court,^^** and whether a county judge was a county oflScer within the meaning of the constitution.^^^ In the entire thirty-two opinions there are only two clear refusals, both by the same court in response to the same ques- tion — the extent of a Florida governor's powers in the appoint- ment of circuit judges under a statute.^®^ The dependence of the answer upon the construction of a law differentiated these cases from In re Opinion of Justices, 67 Florida, 423, and made a refusal certain. In one other case referred to above, there was a half-way refusal. When asked about the constitutionality of verdicts in civil cases by three-fourths of a jury, a Colorado court pointed out that they had already decided, in a case brought regularly before them, that the legislature was not restricted in deaHng mth jur>^ trials in civil actions.^ Now, ^^ In re Constitutionality of a Court of Appeals, 15 Colo. 578. »* In re Opin. of the Justices, 207 Mass. 606. »w Opin. of the Justices, etc., 41 N. H. 550; and In re SB. No. 142, etc., 26 Colo. 167. ^ Opin.s of the Justices, etc., 68 Me. 594. ^^ Opin. of the Supreme Court, 3 R. I. 299. ^'Opin. of Court in Response to Governor, 43 Mo. 351. 359 In the matter of the Constitutionality of SB. No. 76, 9 Colo. 623. """In re HR. Relating to HB. No. 218, etc., 12 Colo. 359. **In re Compensation of County Judges, 18 Colo. 272. *2 In re Opin, of the Justices, 69 Ra. 632; and In re Opin. of the Jus- tices, 69 Fla. 653, »3In re SB. No. 142, etc., 26 Colo. 167. 142 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT they continued, it is not the practice of this court to review decisions in litigated cases, in ex parte proceedings; so we can express no further opinion. This is certainly not a refusal. In fact the legislature evidently was satisfied, for the bill was passed.^^ However, the reasonableness of such an answer is questionable. It is certainly not in Hne with the history of the advisory opinion, for it would make it impossible to answer many questions as to the "state of the law" on a particular point, since the "state of the law" does not depend on what a supreme court may do in the future but may well depend on what it has decided in the past.^^ Twice the Canadian supreme court has answered judicial questions, once as to the jurisdiction of provincial county courts,^^^ once as to procedure under the criminal code.^^^ 4. Sufrage and Elections. From a numerical standpoint, this is quite an important section. A full one-eighth of the opinions given under a con- stitutional requirement in the United States contain questions relating to elections or the exercise of the suffrage. Some in- quiries have been repeated in several different instances — the taxation quaUfication for voters,^^^ the property quahfication,^®^ the residence qualification,^''^ the registration requirement,^'* 3«*Sess. L. 1899, p. 244. 3«See p. 256 infra. 3e« In re County Courts of British Columbia, 21 Can. S. C. R. 446. 3" In re Criminal Code, 43 Can. S. C. R. 434. ^8 Opin. of the Justices, 11 Pick. 537; Opin. of the Justices, 5 Mete. 591; In re the Providence Voters, 13 R. I. 737; In re the Realty Voters, 14 R. I. 645; In re Canvassers' Powers, 17 R. I. 809; and Opin. to the Governor, 24 R. I. 630. '" In re the Voting Laws, 12 R. I. 586; In re the Newport Charter, 14 R. I. 655; In re Qualification of Voters, 19 R. I. 614; and Opin. of the Justices, 31 N. C. App. "" Opin. of the Justices, 1 Mete. 580; Opin. of the Justices, 5 Mete. 587; Opin. of the Justices, 7 Me. 492; and Opin. of the Justices, 7 Me. 497. 3" In re the Registry Laws, 12 R. I. 580; In re the Polling Lists, 13 R. I. 729; In re the Constitutional Amendment, 16 R. I. 754; and Opin. of the Justices, 22 R. I. 651. THE ADVISORY OPINION IN PRACTICE 143 the form of ballots,^^^ and the form or effect of official retums.^^^ The introduction of voting machines has prompted inquiries in three instances,^'** and the so-called soldiers' voting acts of the Civil War in four.^^^ In two cases the justices have given advice as to the rights of towns or districts to waive the sending of representatives to the legislature.^^® The right of particular classes of people to exercise the suffrage is the subject matter of four opinions — of inhabitants of unincorporated plantations,"^ of paupers or indigent persons,^^^ of negroes,^^^ and of certain foreign-born residents in territory acquired by- treaty .^^° Other questions are of a miscellaneous character—; the effect of paying a special poll tax upon the right to vote,^*^ the constitutional date for the election of representatives,'®^ whether annexation to towns confers a right to vote for the representatives from those towns,'^ the power of the governor "-Opin. of the Justices, 7 Me. 492; Opin. of the Justices, 7 Me. 497; Opin. of the Justices, etc., 64 Me. 596; In re the Ballot Act, 16 R. I. 766; and In re the Ballot Pro\ision, 17 R. I. 825. 3" Opin. of the Justices, etc., 25 Me. 567; Statement of Facts, and Questions, 38 Me. 597; Opin.s of the Justices, etc., 68 Me. 587; Questions Submitted, etc., 70 Me. 560; and Statement and Questions Submitted, etc., 70 Me. 570. "* In re HB. No. 1291, 178 Mass. 605; Opin. of the Justices, 19 R. I. 729; and In re Voting Machmes, 23 R. I. 630. 3-5 Opin. of the Justices, 44 N. H. 633; Opin. of the Justices, etc., 45 N. H. 595; Opin. of the Judges, etc., 30 Conn. 591; and Opin. of the Judges, etc., 37 V^t. 665. 3"* Opin. of the Justices, 15 Mass. 536; and Opin. of the Justices, 6 Me. 486. "' Opin. of the Justices, 3 Mass. 568. ^'* Opin. of the Justices, 7 Me. 497. 3'^ Opin.s of the Justices, etc., 44 Me. 505. 380 Opin.s of the Justices, etc., 68 Me. 589; there are two separate interrogatories here. 3" Opin. of the Justices, 18 Pick. 575. '« Opin. of the Justices, 23 Pick. 547. 3" Opin. of the Justices, 6 Cush. 578. 144 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT or aldermanic boards to recount ballots in contested elections,^^ the effect of making a grant of municipal suffrage to women conditional upon the approval of a majority of a certain class of voters,^^ the power of the legislature to permit women to vote upon a proposed constitution,^^ or to divide towns into voting districts,^^^ or to provide a special election for delegates to a constitutional convention,^^^ the governor's right to reject illegal ballots,^^^ the legaUty of certain irregular votes,^^^ the form of a petition for a referendum,^^^ the legaUty of election by pluralities,^^^ the power of a town council to order a new election,^^^ the method of marking the ballot,^^^ the legality of an order for a new election,^^^ the procedure in an election by both houses of the legislature,^^^ the power of a city council to elect the school committee/^^ and the control of nominations by poUtical parties.^^^ Two things are worthy of notice. All but eight of these fifty-seven opinions come from three States — Massachusetts, Maine and Rhode Island. This third midget State alone furnishes twenty-one of them (nearly half of the total number of advisory opinions found in the Rhode Island reports), while Colorado with its total of ninety-two is represented here by a single one. Secondly, there are no refusals. Apparently 3"0pin. of the Justices, 136 Mass. 583. '*5ln re Municipal Suffrage to Women, 160 Mass. 586. 38«In re Opin. of the Justices, 115 N. E. 921 (Mass.). 387 In re Opin. of the Justices, 73 N. H. 618. 388 In re Opin. of the Justices, 76 N. H. 586. 389 Opin. of the Justices, 54 Me. 602. 390 Opin.s of the Justices, etc., 64 Me. 588. 391 In re Opin. of the Justices, 114 Me. 557. 392 In re the PluraKty Elections, 15 R. I. 617. 393 In re the Narragansett Election, 16 R. I. 761. 394 In re the Vote Marks, 17 R. I. 812. 395 In re the Representative Election, 17 R. I. 820. 39« Opin. of the Justices, 18 R. I. 824. 397 In re Election of School Committee, etc., 28 R. I. 629. 398 In the matter of HB. No. 203, 9 Colo. 631. THE ADVISORY OPINION IN PRACTICE 145 questions concerning the suffrage or electoral matters are, as a rule, "important questions" within the meaning of an ad- visory opinion clause in the constitution. This point is not discussed in any of these opinions, nor is any doubt suggested as to the solemnity of the occasion. 5. Miscellaneous. Nineteen opinions have been relegated to this congeries of odds and ends. Eleven of these have to do with problems connected with the amendment of the State constitution, but in only eight instances did the justices advise on the point referred — the power of the legislature to call a convention to amend the constitution,^^^ or to determine the mode of sub- mission of amendments to the people,^"*' or to make a new apportionment apply to the election of delegates to a constitu- tional convention ;^^^ the powers of a constitutional convention called to propose special amendments, and the possibiUty of extra-constitutional methods of amendment,*^ the effect of a decree of the convention as to the time for amendments to take effect, ^''^ the time when an amendment adopted by popular vote takes effect,'*^'* the extent of publicity required for amend- ments proposed to the people,^^^ the form of such amendments and the effect of a popular adoption of two contradictory amendments.*"^ But the necessity of construing a statute prevented the Florida justices from telHng the governor whether the legislature had duly passed an amendment to be submitted to the people,*"^ and the Colorado supreme court has twice 399 In re the Constitutional Convention, 14 R. I. 649. ""In re Opinion of Supreme Court, 29 R. I. 611. *°^ Deb. Mass. Conv. 1853, 1, 138; Jameson, Constitutional Conventions, p. 663. "2 Opin. of the Justices, 6 Cush. 573. «3 Opin. of the Justices, 76 N. H. 612. *<" In re Advisory Opinion to the Governor, 34 Fla. 500. *« In re HR. No. 10, 50 Colo. 71. *°«In re Senate File 31, 25 Nebr. 864. *"In re Advisory Opin. to the Governor, 64 Fla. 1. 146 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT refused an opinion upon the constitutionality of bills connected with proposed amendments because the question was not sufficiently definite and the pending bill not far enough ad- vanced.^^^ Of the remaining eight cases, two deal with the care of paupers, under a statu te^^^ or in unincorporated places ;^^° two with county powers and liabiUties,^^^ two with problems of municipal government ;^^2 one with the amount of mileage and the choice of routes permitted to members of the legislature ;^^^ and one was a request that the justices draft a schedule of Eng- lish statutes then in force in the State of Pennsylvania.^^* In the New Hampshire case just referred to, an opinion was re- fused on the ground that a reply could not be of assistance to the interrogator and so the question did not come within the advisory opinion clause. C. Form of Reities Of the eight States in which the advisory opinion clause has found constitutional recognition, only four have set forth any requirements as to the form which such opinions must take. In Rhode Island and Florida, they must be made in writing, and the same result is necessarily attained in Missouri and Colorado by the provision that they must be pubHshed in connection with the regular decisions of the court. As a matter of fact, however, probably because of the judicial propensity for exactness and dependence upon precedent, as well as from "8 In re HB. No. 495, etc., 26 Colo. 182; and In re SR. No. 7, etc., 29 Colo. 350. <09 Opin. of Justices, 1 Mete. 572. «o Opin.s of the Justices, etc., 68 Me., 593. *" In the matter of the Executive Communication, etc., 13 Fla. 687; and In re Funding of County Indebtedness, 15 Colo. 421. *"Opin. of the Justices, 67 N. H. 601; and Opin. of the Justices, 52 Me. 595. «3 Opin.s of the Justices, etc., 69 Me. 596. *^* Report of the Judges, etc., 3 Binney 595. THE ADVISORY OPINION IN PRACTICE 147 force of habit, advisory opinions have been rendered in writing*^ and, except in a few early cases, have been preserved in the regular reports. But even at the present time there is some variation in the form of opinions in different States, and this variation was much more marked when the advisory opinion was in its infancy (in the United States). The EngUsh practice exercised con- siderable influence in Massachusetts, not only upon the extent of extra-judicial consultation permitted,^^ but also upon the atti- tude of the judges and the manner of their responses. In the first opinion given^^^ (in 1781), the justices not merely expressed their sensibility of the honor done them by such a reference,^^ but they actually came into the senate to dehver their several opinions in person.^^ This is unique. In the next few cases, the opinions are informally coromunicated in a letter-like docu- ment signed by aU the justices. Gradually this borrows from the more studied formahty of regular decisions and develops into an impersonal exposition of the law touching the questions submitted. It differs, however, from the decisions in litigated cases, in that the signatures of the advisers are stiU appended, after the epistolary model. This is the standard form in most of the Massachusetts cases, and, after the practice becomes settled, is followed in New Hampshire, Maine, Rhode Island, Missouri, Florida, and South Dakota as well. But in Colorado the opinions are recorded as given per Curiam.^^ The reader ^^ Quite possibly the request in the first opinion, of 1781 (126 Mass. 547), that the rephes be made in writing to the houses of the Massachusetts legislature had something to do with starting them off right. *^* See pp. 31-33 supra. «7 Reported in 126 Mass. 547. *^* Cf. Report of the Judges, etc., 3 Binney, 595. *^^ Cf. the appearance of the judges before the Rhode Island General Assembly in Trevett v. Weeden — ^Thayer, Cases, I, 73. *2o So, too, in Opin. of the Justices, 70 N. H. 640; In re Probate Blanks, 71 N. H. 621; In re Construction of Revenue Law, 2 S. D. 58; and In re Construction of School Law, Ch. 9, s. 7, 2 S. D. 71. 148 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT should recall that the advisory opinion clause of the Colorado constitution imposes the duty of replying upon the supreme court, while in all the other States the opinions are to be given by the justices of the supreme court.'^^ The judges have taken this quite hterally^ and these curial decisions are the result.'*^ This is varied somewhat in nearly a score of instances, where, because the questions called for more than the usual categorical replies, the writing of the opinion has been entrusted to some one justice, as in ordinary judicial proceedings; here the opinion is delivered by the justice who composed it, "for the court. "^ A similar course has been pursued in a few cases in other States.'^ <" See p. 51 supra. ♦22 In the matter of the Constitutionality of SB. No. 65, 12 Colo. 466; In re Priority of Legislative Appropriations, 19 Colo. 58; and see pp. 221-22 infra. ♦23 Cf. the two Florida cases where the opinions are given "in banc," and signed by all the justices — In re Opin. of Justices, 54 Fla. 136; and Advisory Opin. to the Governor, 61 Fla. 1. «*In the matter of the Constitutionahty of SB. No. 65, 12 Colo. 466; In re Appropriations by General Assembly, 13 Colo. 316; In re Funding of County Indebtedness, 15 Colo. 421; In re Speakership of the House of Representatives, 15 Colo. 520; In re Continuing Appropriations, 18 Colo. 192; In re Loan of School Fund, 18 Colo. 195; In re Leasing of State Lands, 18 Colo. 359; In re Priority of Legislative Appropriations, 19 Colo. 58; In re Canal Certificates, 19 Colo. 63; In re Governor's Proclamation, 19 Colo. 333; In re Amendments of Legislative Bills, 19 Colo. 356; In re Penitentiary Commissioners, 19 Colo. 409; In re Fire and Excise Commissioners, 19 Colo. 482; In re Constitutionality of SB. No. 293, 21 Colo. 38; In re State Board of Equalization, 24 Colo. 446; In re House Resolution No. 10, 50 Colo. 71; In re Interrogatories of the Senate, 54 Colo. 166; In re Questions of the Governor, 55 Colo. 17. ♦28 Opin. of the Judges, etc., 55 Mo. 215; In the matter of Inquiries Submitted, etc., 58 Mo. 369 (practically); In the matter of the Executive Commvmication, etc., 12 Fla. 651; In the matter of the Executive Communi- cation, etc., 12 Fla. 686; In the matter of the Executive Communication, etc., 14 Fla. 283; In the matter of the Executive Communication, etc., 14 Fla. 285; In the matter of the Executive Communication, etc., 14 Fla. 318; In the matter of the Executive Commimication, etc., 14 Fla. 320; In the matter THE ADVISORY OPINION IN PRACTICE 149 When the "justices" are required by the constitution to give their "opinions" these curial opinions would seem to be inadmissible. The prototypal advisory opinions in the English constitution were certainly upon an individualistic basis, the judges advising not as an organ of the state but as members of the council.'*^ The judges of the high court still give their opinions seriatim to the House of Lords and the Canadian justices usually follow the same rule in giving advisory opinions. Of course, if the judges are of one mind, there is no reason why more than one opinion should be submitted, provided it be clear that it is the opinion of each judge, as in the standard form in use in the States referred to above.'*^^ It need scarcely be added that both curial and signed unanimous opinions will commonly be the work of a single draftsman.'*^^ But if there is disagreement among the justices, either as to the reasoning or the conclusions, it will necessitate separate opinions.*^* This was the practice in England^° but in the early cases in of the Executive Communication, etc., 15 Fla. 735; Advisory Opin., etc., 16 Fla. 841; and In re Executive Communication, etc., 23 Fla. 297. ♦» Cf. Paty's Case (14 East 92 n.), Prince of Wales' Case (Fortescue, 401). *2' Cf. the opinion in Sackville's Case, 2 Eden, 371. «8 Cf. the note of the reporter to Opin. of the Justices, 52 N. H. 622. concerning the modus operandi in Judicial Opin., 35 N. H. 579, where there was a single opinion signed by all the judges: "No authorities were cited in the opinion as finally drawn up for publication, but before the consultation an elaborate opinion had been prepared by one of the members of the court, reviewing at length all the authorities . . . which patience and industry could collect. This opinion was read in consultation, the authorities were care- fully considered, the opinions of the judges were taken seriatim, and the court were unanimous. " *2' "If the questions proposed to the justices came before us as a court and I found myself imable to agree vs-ith my brethren, I should defer to their opinion \s-ithout any intimation of dissent. But the imderstanding always has been that questions like the present are addressed to us as in- dividuals and require an individual answer."— per Holmes, J., in In re Mimicipal Suffrage to Women, 160 Mass. 586. *3° Paty's Case and Prince of Wales' Case, td}i supra. 150 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT this country, even when separate opmions were given, dissenting opinions were sometimes omitted from the advice sent to the executive or legislative department, ^^ the judges apparently thinking the opinion of a majority was conclusive. But in two instances'*^^ the Maine legislature promptly ordered the dissenting justices to send in their opinions as well, and in the first of these cases actually proceeded in conformity with the dissenting opinion. Since Constitutional Law, 35 Maine, 563, there has been no case where a justice has failed to send in an individual opinion or indicate his approval of some other opinion. Indeed there are quite a good many cases where two or more opinions have been submitted, usually because of disagree- ment,^ but sometimes even when the opinions are practically the same.^ In a few cases there are separate rephes con- taining a refusal to express any opinion on the question in *^* For example see Opin. of the Justices, 3 Me. 484; Opin. of the Justices, 6 Me. 506; and later Opin. of the Court, 60 N. H. 585. *^ Opin. of the Justices, 6 Me. 486; and Constitutional Law, 35 Me. 563. ♦2' In re Municipal Suffrage to Women, 160 Mass. 586; Opin. of the Justices, 166 Mass. 589; In re HB. No. 1291, 178 Mass. 605; In re Opin. of the Justices, 211 Mass. 608; In re Opin. of the Justices, 77 N. H. 611; Opin.s of the Justices, etc., 18 Me. 458; Opin.s of the Justices, etc., 44 Me. 505; Opin.s of the Justices, etc., 46 Me. 561; Taxation of National Banks, 53 Me. 594; State v. Cleveland, 58 Me. 564; Opin.s of the Justices, etc., 64 Me. 588; Opm.s of the Justices, etc., 62 Me. 596; In re Opin. of the Jus- tices, 99 Me. 515; Opin. of the Justices, 19 R. I. 729; In re Ten Hour Law, etc., 24 R. I. 603; Opin. of Supreme Court Judges, etc., 55 Mo. 295; In the matter of the Executive Communication, etc., 12 Fla. 689; In the matter of the Executive Communication, etc., 14 Fla. 289; In re Advisory Opinion to Governor, 62 Fla. 7; and In re Opin.s of the Justices, 69 Fla. 632. *^ In re Municipal Fuel Plants, 182 Mass. 605; In re Opin. of the Jus- tices, 220 Mass. 627; Opin. of the Justices, etc., 41 N. H. 553; In re Opin. of Justices, 74 N. H. 606; Opin.s of the Justices, etc., 44 Me. 505; Opin.s of the Justices, etc., 46 Me. 561; Opin.s of the Justices, 54 Me. 602; Opin.s of the Justices, 58 Me. 590; Questions Submitted, etc., 72 Me. 542; In re Decision of Justices, 28 R. I. 607; Opin. of the Court, etc., 49 Mo. 216; In the matter of the Executive Communication, etc., 12 Fla. 653; In the THE ADVISORY OPINION IN PRACTICE 151 the reference. ^° Even where the duty of giving opinions is imposed upon the court instead of the justices, there is no reason : • why separate opinions should not be given, as in Htigated cases. In fact there are two examples of this in Colorado."*^^ Difficult situations may arise, however, when the majority think that no opinion should be given, while the minority beUeve the question submitted is within the advisory opinion clause. Where the giving of advice is made an individual duty, on principle the minority justices should be free not only to say the reference is within the constitution, but also to express their opinions.'*^^ On the other hand, if the advice is looked upon as coming from the court, and if the power to refuse opinions exists at all,^^^ probably the judgment of the majority upon the question of answerabihty should prevail. Apparently this is the view adopted in In re Interrogatories of the Senate, 54 Colorado, 166, by the two dissenting justices, who confine their rephes to a disapproval of the court's refusal to give the opinions asked. This misapprehension as to the force of majority agree- ment in advisory opinion cases has cropped out occasionally in other States. The failure to include dissenting opinions in Maine^^ was evidently the result of an assumption that the matter of the Executive Communication, etc., 13 Fla. 687; In the matter of the Executive Communication, etc., 13 Fla. 699; In the matter of the Executive Commimi cation, etc., 14 Fla. 277; and In the matter of the Executive Communication, etc., 15 Fla. 739. «s In re Opin. of Justices, 74 N. H. 606; Opin. of the Justices, 58 Me. 590; Opin.s of the Justices, 95 Me. 564; and In re Opin. of the Justices, 103 Me. 506. *» In re SB. Providing for a Board of Public Works, etc., 12 Colo. 188; and In re Interrogatories of the Senate, 54 Colo. 166. *3' Cf. Opin.s of the Justices, 95 Me. 564; and In the matter of the Executive Commimication, etc., 14 Fla. 289. «« See pp. 161-77 infra. *" Opin. of the Justices, 3 Me. 484; Opin. of the Justices, 6 Me. 486; and Opin. of the Justices, 6 Me. 506. 152 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT majority opinion would, of course, be followed. In another case^^ where one justice was out of the country, the chief justice states that he has consulted only the other justice, " by whom he is authorized to state the following, as the opinion of a majority of the court." Even the adoption of the opinion of a single dissenting justice as the guiding principle for the legislature^^ did not bring home their mistake to them, for two opinions of 1878^ were delivered by the chief justice as the "opinion of a majority of the justices." This erroneous position may have been a corollary of the Maine theory that the opinions of the court were binding upon the interrogators.'*^ At all events it has now disappeared in Maine,^ and has found favor in no other State^ save Colorado, and there only as apply- ing to the determination of the duty to give an opinion upon the question asked.'*^ There are five opinions anomalous in form which might be mentioned in closing this discussion. Twice, when the exigency of the occasion necessitated prompt replies, the New Hampshire justices have returned categorical answers to the legislative inquiries, supplementing these later with a more lengthy dis- cussion.^^ Then there is a peculiar case in Maine,^^ where, **° Opin. of the Justices, 3 Me. 487. **^ In Opin. of the Justices, 6 Me. 486. *" Opin.s of the Justices, etc., 68 Me. 593; and Opin.s of the Justices, etc., 68 Me. 594. **^ Statement and Questions Submitted, etc., 70 Me. 570. *** Opin.s of the Justices, 95 Me. 564. * *** In In the matter of the Executive Communication, etc., 12 Fla. 689, one justice delivered an opinion for the "majority," but a dissenting opinion was also included. In In re Opin. of the Justices, 193 Mass. 605, and Opin. of the Justices, 196 Mass. 603, a majority opinion is stated in the headnote as the principle decided, but this is doubtless an error of the reporter and not of the court. **• In re SR. No. 10, Concerning Governorship Contest, 33 Colo. 307; and In re Interrogatories of the Senate, 54 Colo. 166. **'' Opin. of the Justices, etc., 45 N. H. 595; and In re Opin. of the Jus- tices, 66 N. H. 629. ««Opin. of the Justices, 6 Me. 514. THE ADVISORY OPINION IN PRACTICE 153 it appears, the same questions were referred by the acting governor and by the senate, and two justices replied to the former while the third sent a concurrent opinion to the latter. Almost as strange is the opinion of a soUtary justice in In re Election of District Judges, 11 Colorado, 373. Finally there is a com- paratively recent opinion in Rhode Island^^ which is altogether unsigned — quite probably an oversight. D. Effect of Replies upon Interrogators Historically, the justification of the advisory opinion is to be found in its value to the legislative and executive depart- ments of the state. In theory, it is the judicious counsel, upon questions of a legal nature, given by men who are by train- ing and experience especially fitted for the solution of such ques- tions. It is entitled to receive only such consideration as its intrinsic qualities merit. It is spoken not ex cathedra but as a private reconmiendation. Furthermore it is often given under circumstances far from favorable to the production of good opinions. "(Questions) are perhaps almost necessarily pre- sented xmder circumstances indicating that an opinion is ex- pected speedily. And they are received, when the mind, having been greatly exhausted by the pressing labors of other official duties, no longer possesses its natural vigor, and cannot exercise even its accustomed extent of thought or power of reason. And it cannot be allowed the time for that extensive research and patient examination and reflection, which the im- portance of the questions, often a little aside from the range of its accustomed studies and duties, may demand. And it is not excited to action and aided by the elaborate examination and forcible reasoning of other minds which have been inter- ested to examine and argue them. Opinions formed under such circumstances can scarcely claim the respect which might «9 In re Abolishing School Districts, 27 R. I. 598. 154 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT be readily yielded to those formed under more favorable aus- pices, "^o Yet in practice, in the United States, advisory opinions have been received, for the most part, with all the deference accorded to the solemn decisions of a court of last resort. Both the legislative department and the executive department have usually treated the pronouncements of these opinions as final, and shaped their course of action accordingly. It is to be expected that this would be true of a majority of the cases, since the advice, even though not binding, bears the stamp of experts. Also, from a purely practical standpoint, the interrogator would tend to follow the advice given, since he realizes that if the same matter is brought before the same individuals, as a court, in regular judicial proceedings, there is a strong probabihty that the principles announced in the extra-judicial opinion will be adopted in the judicial decision; and in fact this has often been done, as will be seen in examining the effects of advisory opinions within the judiciary department itself.*5i It will be worth while to make a detailed investigation, in Colorado, of the effect of extra-judicial advice upon the activi- ties of the legislature and governor. On fifty-eight occasions the legislature has referred to the justices questions concerning pending measures. Eleven of these met with refusals, so that subsequent legislative action is immaterial to this inquiry. Among the forty-seven remaining, there is not a single instance where the interrogating legislature took any action in opposition «°Opin. of the Justices, 16 Me. 479. Cf. the words of ex- Justice Morton: "They are called upon to give an opinion, when loaded down with labor, and almost always under circumstances when the question requires to be immediately answered. They have to put off all other things and attend to this, as well as they may, without a hearing, without argument, and without time to investigate authorities, and very likely in a remote part of the Commonwealth, where they are not able to get authorities. " — Deb. Mass. Conv. 1853, II, p. 694. «^ See pp. 233-36 infra. THE ADVISORY OPINION IN PRACTICE 155 to the opinion submitted by the justices.'^^ i^ twenty-five cases the justices approved the constitutionality of the bills sent to them and the bills were subsequently enacted into law, or at least approved by the interrogating house.*^ There are three examples of failure to pass a bill after the justices had expressed their satisfaction as to constitutionaUty,^ but this of course does not signify that the legislature disagreed with the justices on that point. In another case a bill was dropped after favorable answers on a point of procedure and one of construction.^ In the other twenty-two opinions, the replies « **2 In one instance a legislature passed an act disapproved in an opinion given four years earlier. Cf. Sess. L. 1899, 232, with In re HB. No. 203, 21 Colo. 27, and In re a Bill Pro\dding that Eight Hours Shall Constitute a Day's Labor, 21 Colo. 29, and see In re Application of Morgan for Writ of Habeas Corpus, 26 Cclo. 415. «3 In the matter of the Constitutionality of HB. No. 18, 9 Colo. 623— Sess. L. 1887, 340; In the matter of HB. No. 231, 9 Colo. 624— Sess. L. 1887, 247; In the matter of the Constitutionality of HB. No. 158, 9 Colo. 625— Sess. L. 1887, 56; In the matter of HB. No. 203, etc., 9 Colo. 631— Sess. L. 1887, 347; In the matter of HB. No. 38, etc., 9 Colo. 631— Sess. L. 1887, 250; In the matter of SR.— in Relation to SB. No. 56, 9 Colo. 632— S J. 1887, 2057; In re SB. Providing for a Board of Public Works, etc., 12 Colo. 188— Sess. L. 1889, 124; In re HR. Relating to HB. No. 116, 12 Colo. 289— HJ. 1889, 2029; In re SR. Relating to SB. No. 1, 12 Colo. 290— Sess. L. 1889, 228; In re HB. No. 238, 12 Colo. 337— Sess. L. 1889, 360; In re SR. Relating to SB. No. 31, 12 Colo. 340— Sess. L. 1889, 238; In re Constitu- tionality of a Court of Appeals, 15 Colo. 578— Sess. L. 1891, 118; In re Kindergarten Schools, 18 Colo. 234— Sess. L. 1893, 436; In re Bounties, 18 Colo. 273— Sess. L. 1893, 23; In re Internal Improvements, 18 Colo. 317— SJ. 1893, 1642, SJ. 1893, 1179, HJ. 1893, 1994, SJ. 1893, 1233, HJ. 1893, 2211; In re Governor's Proclamation, 19 Colo. 333— Sess. L. 1894, 3; In re Amendments of Legislative Bills, 19 Colo. 356 — Sess. L. 1894, 45; In re ConstitutionaUty of Substitute for SB. No 83, 21 Colo 69— Sess. L. 1895, 36; In re Inheritance Tax, HB. No. 122, 23 Colo. 492— HJ. 1897, 874; In re SR. No. 4, 54 Colo. 262— SJ. 1913, 771 and 1293. *^ In the matter of HR. re Constitutionality of Legislation Redistricting State, etc., 12 Colo. 186; In re SR. Relating to Constitutionality of Proposed Reapportionment Bill, 12 Colo. 187; and In re Constitutionality of SB. No. 69, 15 Colo. 601— SJ. 1891, 1062. «• In re SR. No. 9, 54 Colo. 429. 156 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT were unfavorable and the bills either failed,'^^ or were modified to meet the objections raised by the justices.'*^^ Quite often the individual responsible for the bill or the committee in charge of it has moved that it be laid on the table because the supreme court had declared it unconstitutional.^^^ In other instances the bills came to a vote and were lost.^^^ Sometimes they *** In the matter of the ConstitutionaUty of SB. No. 76, 9 Colo. 623 — SJ. 1887, 309; In the matter of HB. No. 166, etc., 9 Colo. 628; In the matter of a Bill for an Act, etc., 9 Colo. 629— S J. 1887, 1074 and 1078; In the matter of the ConstitutionaUty of HB. No. 270 and SBB. No. 69 and No. 106, 9 Colo. 635— SJ. 1887, 1665-6 and 2104, and HJ. 1887, 1612; In the matter of the ConstitutionaUty of S. 9 of HB. No. 122, 9 Colo. 639— HJ. 1887, 1745 and 1762; In re House Resolutions Concerning Street Improvements, 15 Colo. 598; In re HB. No. 10, etc., 15 Colo. 600; In re Loan of School Fund, 18 Colo. 195; In re Compensation of County Judges, 18 Colo. 272— SJ. 1893, 658; In re HB. No. 203, 21 Colo. 27— HJ. 1895, 633; In re a Bill Providing that Eight Hours Shall Constitute a Day's Labor, 21 Colo. 29— H J. 1895, 723; In re ConstitutionaUty of SB. No. 293, 21 Colo. 38— SJ. 1895, 633; In re ConstitutionaUty of an Act, 21 Colo. 46; In re ConsoUdation of School Districts, SB. No. 23, 23 Colo. 499; In re Annexation and ConsoUdation ot School Districts, SB. No. 9, 26 Colo. 136; In re HR. No. 10, 50 Colo. 71— HJ. 1911, 704. «7 In the matter of the ConstitutionaUty of HB. No. 270 and SBB. No. 69 and No. 106, etc., 9 Colo. 635— HJ. 1887, 1612, and Sess. L. 1887, 340; cf. In the matter of the ConstitutionaUty of SB. No. 76, 9 Colo. 623, with In re ConstitutionaUty of a Court of Appeals, 15 Colo. 578 — Sess. L. 1891, 118; In re SR. Relating to Internal Improvement Fund, ' tc, 12 Colo. 285— SJ. 1889, 1023 and 1413, HJ. 1889, 2529, and Sess. L. 1889, 215, S. 7; In re HR. Relating to HB. No. 349, 12 Colo. 395— HJ. 1889, 2192; In re HB. No. 165, 15 Colo. 593, 595— Sess. L. 1891, 268; In re Extension of Boundaries, etc., 18 Colo. 288— Sess. L. 1893, 131, see S. 2 on p. 135. «8 In the matter of the ConstitutionaUty of SB. No. 76, 9 Colo. 623— SJ. 1887, 309; In the matter of the ConstitutionaUty of HB. No. 270 and SBB. No. 69 and No. 106, etc., 9 Colo. 635— SJ. 1887, 1665-6, and HJ. 1887, 1612; In re Compensation of County Judges, 18 Colo. 272— S J. 1893, 658, and cf. ibid. 822; In re HB. No. 203, 21 Colo. 27— HJ. 1895, 633; In re a Bill Providing that Eight Hours ShaU Constitute a Day's Labor, 21 Colo. 29— H J. 1895, 723; In re House Resolution No. 10, 50 Colo. 71— H J. 1911, 704. «9 In the matter of a BiU for an Act, etc., 9 Colo. 629— SJ. 1887, 1074, THE ADVISORY OPINION IN PRACTICE 157 simply died a natural death. When the subject matter was deemed sufl&ciently important the legislature has preferred to resort to the process of constitutional amendment rather than waste time in passing measures which the justices had frowned upon. For example, after several attempts to enlarge the powers of the city of Denver, and to consoUdate school districts therein with contiguous districts,^" a comprehensive amendment to the constitution was proposed and adopted as Article XX, on November 4, 1902. However, in connection with the eight hour law, the adverse opinions of In re HB. No. 203, 21 Colorado, 27, and In re a Bill Providing that Eight Hours Shall Constitute a Day's Labor, 21 Colorado, 29, were not sufficiently compeUing, and it required a formal decision'*^^ to bring about the constitutional amendment proposed in Session Laws 1901, page 108, and adopted at the following election. Turning to the executive department, it is obviously much more difficult to ascertain the precise effect of advisory opinions upon executive action. That must await the writing of a de- tailed financial history of the State, embodying the results of an examination of hundreds of auditor's and departmental reports and thousands of warrants and the relating of these to appropriation and revenue bills and treasurer's reports; for the most important of the gubernatorial interrogatories have had to do with the administration of State finances. Still we can find evidences here and there that the members of the executive department have had great respect for extra- judicial advice. How unreservedly successive governors have followed the doctrine as to excess appropriations laid down in In re Appropriations by General Assembly, 13 Colorado, 1078; In the matter of the Constitutionahty of s. 9 of HB. No. 122, 9 Colo. 639— HJ. 1887, 1745, 1762. «o In re Constitutionality of SB. No. 293, 21 Colo. 38; In re Consolida- tion of School Districts, SB. No. 23, 23 Colo. 499; and In re Annexation and ConsoUdation of School Districts, SB. No. 9, 26 Colo. 136. **^ In re Application of Morgan for Writ of Habeas Corpus, 26 Colo. 415 158 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 316, has already been pointed out.'*^^ Another illustration is at hand in In re Fire and Excise Commissioners, 19 Colorado, 482. In attempting to remove the fire and excise commis- sioners of Denver from office, the governor had met with armed resistance and had summoned the militia forces to aid him. While conflict was imminent, the governor paused to ask the justices of the supreme court who were the lawful fire and ex- cise commissioners. In their reply, the justices stated that, assuming the facts as given by the governor, he had lawfully exercised the power of removal, and then went on to tell him that it was not part of his executive duty to enforce his order of removal but that the constitutional remedy was by judicial proceedings. At once, cases were brought against the recal- citrants by quo warranto.^ It seems probable that the advisory opinion occupies a similar position in the other States where it has been introduced. Dr. Holcombe of Harvard University^ tells us the opinion of the justices in Massachusetts "is invariably accepted." That this has been true from the beginning is indicated by Opin. of the Justices, 126 Massachusetts, 547 (1781) and Opin. of the Justices, 115 Massachusetts, 602 (1874). Indeed, not long ago the court probably was responsible for the initiation of a piece of legislation. In In re Opin. of Justices, 209 Massachusetts, 607, an opinion was given as to the constitutionahty of a work- men's compensation act, and it was intimated (at page 612) that the decisions of a board created by the act would have to be enforced by judicial proceedings. The following year an amendment was passed^®^ providing for a decree by the superior court based on the decision of the board in each case."*^^ There «2See pp. 115-116 supra. *83 People V. Martin, and People v. Orr, 19 Colo. 565. Cf. the quo warranto against the lieutenant-governor in In the matter of the Executive Communication, etc., 12 Fla. 653. *^ See pp. 38-39 supra. *^ St. 1912, c. 571, s. 14. *« Per Rugg, C. J., in McNichol's Case, 215 Mass. 497, at 502. THE ADVISORY OPINION IN PRACTICE 159 is a single case in Maine where the legislature adopted the dissenting opinion of one justice,^^ and it appears that the governor did not follow the rules laid down in Questions Sub- mitted, etc., 70 Maine, 560, but it is quite likely they had not yet reached him when he took action.*^® A word might be said about the effect of refusals. As a rule, when the justices have declined to express any opinion upon questions submitted, there has been no official remon- strance from the other departments. If the cause of the objection can be removed by a rephrasing of the question, sometimes this is done,*®® but more often the whole matter is dropped. There is one notable exception. In 1889 the Massachusetts house of representatives asked the justices to construe certain educational statutes "with a view to further legislation on the subject matter" thereof. The justices declined to do so and explained that the reference did not disclose a "solemn occa- sion." The reply was referred to the judiciary committee, which made a report of considerable length, contending that it was for the house to determine the solemnity of the occasion and that in any case the question was within the precedents. Accordingly the house, by a vote of one hundred sixty-eight to eight, passed a resolution " that the house of representatives does not acquiesce iu the conclusion of the justices as to the limitation of the authority of the house to require the opinions of the justices; and affirms the authority of the house under the constitution to require their opinions upon said questions. "*^° The merits of both sides will be considered at another place.*^^ ♦«' Opin. of the Justices, 6 Me. 486. *** Statement and Questions Submitted, etc., 70 Me. 600. *•' In re OpLn. of the Justices, 211 Mass. 630, and In re Opin. of the Jus- tices, 211 Mass. 632; In the matter of the Constitutionahty of HB. No. 18, 9 Colo. 623; In re HB. No. 165, 15 Colo. 593, 595; and In re a Bill Providing that Eight Hours Shall Constitute a Day's Labor, 21 Colo. 29. *'° HJ. May 16, 1889. The refusal of the judges is recorded in Func- tions of Judiciary, 148 Mass. 623. *"See pp. 161-77 infra. 160 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Similarly the Colorado justices in 1913 refused to answer ques- tions regarding the lieutenant-governorship, for lack of a ** solemn occasion. "^^^ A motion was made in the senate that that body declare the occasion is solemn within the constitution and again request an answer, but this did not come to a vote.*''^ *" In re Interrogatories of the Senate, 54 Colo. 166. *"SJ. 1913, 308. I CHAPTER III THE INTERPRETATION OF ADVISORY OPINION CLAUSES Having reviewed the history of the advisory opinion and the scope and manner of its application in the United States, we are now in a position to consider more in detail the construc- tion that has been given to constitutional clauses providing for such opinions, and to attempt the formulation of certain general rules which have guided the justices in their advisory practice. The material for such an examination will be foimd, for the most part, in those cases where an opinion on the ques- tions referred has been refused, for, as a rule, the justices have analyzed the clause critically only when a doubt arose as to their obUgation to comply with the request made. So it will be in order, preliminarily, to ascertain whether they may ever, of right, decline to give opinions requested. On principle, it would seem that answers should be given, unless the question is indisputably outside the scope of the constitution- al requirements,^ except possibly when the interrogatory calls for the determination of a case then pending in the courts. The purpose of the provision is to make the justices constitu- tional advisers to one or both of the other departments of the government, in cases of an especially difficult or serious nature. An adviser who can withhold advice at his discretion must be very unsatisfactory. But, it is objected, since the justices are bound to answer only if the question conforms to a certain description, it follows that they are entitled to refuse an opinion if, in their judgment, the question fails to meet the constitu- tional requirements. This argument proceeds on the assump- ' E.g. a question, in Florida, dealing with a statutory executive power. 162 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT tion that this is a proper case for the exercise of judicial discre- tion, that the famous argument of Marshall, C. J., in Marbury V. Madison is applicable — just as the courts are bound to deter- mine for themselves whether an act of congress which has the appearance of law is really a law, having been made in pursuance of the constitution, so the justices, if not bound, are at least entitled, to determine for themselves whether a question sub- mitted for their opinion is within the words of the constitution governing such references. But, even if we unreservedly accept the reasoning in Marbury v. Madison, the two cases are really not at all comparable. In the one, the courts, in the exercise of the judicial functions imposed upon them, must necessarily determine what they are going to apply as the command of the sovereign; they may set up their own standards or take the fiat of the legislature. In the other, the justices, acting extra- judicially as the constitutional advisers of other ofiicials, are called upon to give opinions which, as they themselves usually admit and claim, can have no effect judicially, but which those other officials deem necessary and valuable advice to assist them in determining their course of action. If the question is properly a judicial one, i.e., a question the determination of which would involve the adjudication of a pending case, the doctrine of the separation of powers is, perhaps, a sufficient objection to the giving of an opinion. But if it is a question the answer to which is essentially of interest only to the interro- gator, in the exercise of executive and legislative, i.e., poHtical, powers, why should the giving of that answer be in the discre- tion of the advisers? The courts will not pass upon questions of a poUtical nature^ or attempt to control the other departments in the exercise of their political power. It is not quite clear that the reference of questions to the justices is the exercise of a political power, but it would seem more reasonable so to con- sider it in most cases, for it is commonly a step taken by the 2Willoughby, Const., II, pp. 999 sqq. INTERPRETATION OF ADVISORY OPINION CLAUSES 163 interrogator as incidental to the exercise of such power. In any case, is it not for the interrogator to decide whether the occasion and question are such as to warrant his asking counsel from his legal advisers? It is not unusual for the executive or legislative departments or officials thereof, to be given the last word in matters of constitutional construction.^ It is no reply- to point out that if this principle be admitted, there is no method of enforcing constitutional restrictions upon those departments. It should be acknowledged that the sanction for such restrictions is moral and poUtical, not legal. A^any examples of such leges imperfectae might be adduced. Legislatures are commonly made the final judges of the elections, returns and qualifications of their members; yet special requirements for such members are imposed by the constitution. Undoubtedly no court would venture to review the construction placed upon those requirements by a legislature. If we are to give careful attention to the wording of the con- stitutional provision requiring advisory opinions, possibly a distinction should be made between those States where certain ^"It follows, therefore, that every department of the govemment and every official of every department may at any time, when a duty is to be performed, be required to pass upon a question of constitutional con- struction. Sometimes the case will be such that the decision when made must from the nature of things, be conclusive and subject to no appeal or review, however erroneous it may be in the opinion of other departments or other officers; but in other cases the same question may be required to be passed upon again before the duty is completely performed. The first of these classes is where, by the constitution, a particular question is plainly addressed to the discretion or judgment of some one department or officer, so that the interference of any other department or officer, with a view to the substitution of its own discretion or judgment in the place of that to which the constitution has confided the decision, would be impertinent and intrusive. Under every constitution, cases of this description are to be met with; and, though it will sometimes be found difficult to classify them, there can be no doubt, when the case is properly determined to be one of this character, that the rule must prevail which makes the decision final.'* Cooley, Constitutional Limitations, pp. 54-5. 164 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT governmental organs or officials are empowered to require opinions in certain classes of cases,^ and those States where the justices are charged with the duty of giving opinions in certain classes of cases ;^ for it may be argued that the grant of a power, not purely ministerial, implies a discretion as to the occasion for the exercise of that power, and the imposition of a Umited duty similarly carries with it the right to refuse performance of the duty, if, in the judgment of the person obhged, the hmits have not been observed. However, this does not get us very far, first because the power and duty are here interdependent and logically it would result that a discretion rests upon both the questioner and the questioned, which practically means that the latter can answer or refuse at will; and secondly, because this change in wording (beginning with Maine) is apparently accidental and neither the legislative department nor the executive department nor the courts have rested any weight upon it. Whether a question will be asked or not of course rests in the discretion of the inquirer. Whether or not a governmental official is bound to answer depends upon his obUgations under the constitution. Now if the constitution is ambiguous, as in this case, the purpose of its framers should determine the extent of the obUgation. From an examination of the historical antecedents as well as the debates of constitutional conventions, we are justified in concluding that the purpose of the advisory opinion scheme was to secure to officials whose connection with the government is merely temporary, whose qualifications for deaUng with the difficult problems of political science are often meagre and whose ordinary sources of information are some- times prejudiced or inadequate, the expert advice of other officials upon questions with which they are especially compe- tent to deal thoroughly and without prejudice. It would seem * Massachusetts, New Hampshire, Florida, and South Dakota. 6 Maine, Rhode Island, Missouri, and Colorado. INTERPRETATION OF ADVISORY OPINION CLAUSES 165 to follow that the only admissible reasons for declining a re- quest for such advice are that the request did not come from an authorized source, or that the question is plainly, and not as a matter of judicial construction as opposed to executive or legislative construction, not within the intent of the words of the constitution,® or that an answer would be inconsistent with the chief duties of the adviser.' This conclusion is fortified by the history of extra-judicial advice in England. It has already been pointed out* that in the eighteenth century the king as well as the House of Lords had an unquestionable right to the counsel of the judges, not only in the exercise of judicial functions, but in the exercise of executive and legislative functions, unless the giving of such counsel entailed passing upon a particular case then pending.^ The desuetude of this practice in the nineteenth century, at least as far as the executive is concerned, is probably due to * See note 1, p. 161 supra. '' "Quando aliquid mandatur, mandatur est omne per quod parveni- tur ad illud. A special authority is granted. A prerogative would be null unless it carried with it the proper discretion to exercise it. The power to demand necessarily implies the right to a reply. For whenever there is authority on the one hand, there must be a corresponding duty upon the other. There is a well defined distinction between a judge acting juridically, and a judge acting in the capacity of an ad\dser. The former adjudicates, settles and decides; the latter gives an opinion upon questions propounded; he throws upon them the light of his learning. . . . The true construction of the provision requiring the judges to answer, according to the weight of reason and authorities, would seem to be that the judges are always obliged to answer except when the same matter is actually pending before them juridically. To require them to answer when they are actually called on as judges, acting juridically, would interfere with the independ- ence of the judiciary." H. A. Dubuque, in Am. L. Rev., XXIV, p. 369, at pp. 396-7. «See pp. 6, 16, 22 and 27, stipra. *See especially the opinions of the majority of the judges and the opinions of the Lords in McNaghten's Case — 10 CI. and Fin. 200 — and the opinion of the Judicial Committee in Attorney-General for Ontario v. Attorney-General for Canada— (1912) A. C. 571. 166 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the creation of the Judicial Committee of the Privy Council, which is bound to advise the king on any question whatsoever, upon request.^'' The comprehensiveness of this statutory obli- gation is itself not negligible evidence of the extent of the obli- gation resting upon the king's councillors (including the judges) under the unwritten constitution. On the other hand, it must be admitted that in the United States there is considerable authority for the right of the justices to refuse their opinions at their discretion, on various grounds. The early New England practice is not essentially discrepant with the principles developed above. Thus in Massachusetts, when questions were put which were intimately connected with private interests, though the judges were reluctant to express an opinion, yet apparently they felt bound to do so under the constitution.^^ In one case,^^ they seriously considered "whether it might not be expedient first to submit to the consideration of the Honorable House, whether it would be expedient to request an ex parte opinion in such a case;" but concluded that since the opinion would not bind anyone and so could not affect the rights of the parties, "should they hereafter be brought before the court in a regular course of judicial proceeding," an answer might be given. Justice Story, in speaking to the constitutional convention of 1820, said that "as the constitution now stands, the judges are bound to give their opinions if insisted upon, even in a case where private rights are involved."^ Ex- Justice Morton took the same position in the convention of 1853.^* So, too, in New Hampshire, the justices felt obUged to attempt an answer to a question to which great difficulty *" 3-4 Wm. IV, c. 41, s. 4, and cf. Macqueen, House of Lords, p. 689 n., and In re Schlumberger — 9 Mo. P. C. 1. ^^Opin. of the Justices, 7 Pick. 125, 130 n.; Opin. of the Justices, 5 Mete. 596; and Opin. of the Justices, 9 Cush. 604. "Opin. of the Justices, 5 Mete. 596. ^3 Deb. Mass. Conv. 1820, p. 489. i*Deb. Mass. Conv. 1853, II, p. 694. I INTERPRETATION OF ADVISORY OPINION CLAUSES 167 attached because of its very general nature.^^ Again, in Maine, as late as 1870, opinions were given in a particular case of an altogether private nature, which was all but pending before the court, since the individual concerned was free to appeal from the conviction and sentence of the lower court.^® Only one justice (Kent, J.) enters a serious objection to answering, and though he points out clearly the necessary and reasonable Umitation upon the advisory opinion power under the constitu- tion,^^ he is consoled for the "unfortunate precedent" by the fact that his opinion favors the prisoner and " cannot have any authoritative force in any possible future proceedings in the case." It was only seven years later that the Massachusetts jus- tices were responsible for an opinion^^ which may, perhaps, be called the fountain-head of nearly a score of refusals on the part of justices in Massachusetts, New Hampshire and Maine, to act as advisers of the other departments.^^ Two questions were referred to them by the house of representatives: (1) Is a special justice of a mimicipal, district or poUce court ineli- gible to the house of representatives under Amendment VIII of the constitution? (2) If so, does acceptance of the legislative vacate the judicial ofl&ce? The justices pointed out that their opinions could only be required upon "important questions of law and upon solemn occasions," and declared in effect that an occasion could not be solemn unless the body making the inquiry ^sQpin. of the Justices, etc., 25 N. H. 537. "State V. Cleveland, 58 Me., 564. ""WTien a compliance would violate distinctly and palpably some other constitutional provision, made for the protection of individual rights or involve a pre-judgment of a pending case, by opinions on the points in issue, a conscientious judge may well hesitate or even decline answering. " ^^Opin. of the Justices, 122 Mass. 600. ^' The Missouri refusals, based on a large discretionary power in the justices, had preceded this, but there is no evidence that the Massachusetts justices had seen them and there is not a single reference to them in the New England opinions cited below. 168 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT had occasion to consider the question "in the exercise of the legislative or executive powers, " as the case might be. In this particular case the question asked could not be affected by legislative action, and might come before the court in a regular judicial proceeding at any time; so an opinion should be refused. We are not concerned here with the vaUdity of these reasons for refusaP^ so much as with the fact that the justices here assumed the right to pass finally upon the solemnity of the occasion. For this assumption there is practically no attempt at justification. The only argument is based on a hypothetical intention ascribed to the framers of the constitution, supposedly necessitated by the principle of separation of powers.^^ It is true that the members of the constitutional convention of 1780 were firm adherents to this principle, but it is equally true that the separation of powers, as that phrase is understood in the poHtical theory of the United States, is not affected in the slightest by the advisory opinion. As this argument has been relied upon in a good many opinions, it will be worth while to examine its cogency at this point. That fundamental principle of our constitutional organi- zation known as the separation of powers requires that legisla- tive, executive and judicial functions shall, for the most part, be exercised by separate and independent organs of the state. "The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes, the law."^^ "It is the province of judicial power . . . '20 See pp. 181-205, 208-214 in^ra. 2^ "In view of the separation, established by the Constitution, between the legislative, executive and judicial departments of the government, we can hardly suppose it to have been the intention that either the legislature or the executive should demand of the judiciary its opinion, in advance, upon a question which may arise in the course of judicial administration, and which cannot be affected by legislative or executive action." Opin. of the Justices, 122 Mass. 600. 22 per Marshall, C. J., in Wayman v. Southard, 10 Wheat. 46. INTERPRETATION OF ADVISORY OPINION CLAUSES 169 to decide private disputes between or concerning persons."^ The purpose of this separation should be kept in mind, viz., that the judiciary, secure in tenure and compensation from possible encroachments by the other departments, might apply the law according to their best judgment, free from the pressure of political and expediential arguments.^ Now it is well known that in our system there is considerable over-lapping of powers. "The correct statement is that a department may constitution- ally exercise any power, whatever its essential nature, which has, by the Constitution, been delegated to it, but that it may not exercise powers not so constitutionally granted, which, from their essential nature, do not fall within its division of governmental functions, imless such powers are properly inci- dental to the performance by it of its own appropriate func- tions. "^^ There are several answers, then, which might be made to the argument of the Massachusetts justices. First of all, the giving of advisory opinions is not a judicial function; such opinions are extra-judicial in character, and, as they bind no one, it is difficult to see how they can interfere with the exercise of judicial power as defined above, unless given in a pending case. Secondly, even if advisory opinions be considered as an interference with the legislative or executive departments, . i.e., as an exercise of legislative or executive power, there is no serious violation of the principle of separation of powers, which was put forward to protect the judiciary, not the executive or legislature. But, as a matter of fact, such interference is insigni- ficant, since the justices proffer their advice only when it is 23 MerriU v. Sherburne, 1 N. H. 199, at 203. Cf. "To hear and decide adversary suits at law and in equity, with the power of rendering judgments and entering up decrees according to the decision, to be executed by the process and power of the tribunal deciding, or of another tribunal acting under its orders and according to its direction, is the exercise of judicial power, m the constitutional sense." Taylor v. Place, 4 R. I. 324. 2* The FederaUst, No. LXXVIH. »Willoughby, Constitution, II, p. 1263. 170 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT requested, and the other two departments may give as much or as Httle attention to it, even then, as they please. Lastly, even if the rendering of advisory opinions could be considered as a judicial function, it is obvious that its effect on the inde- pendence of judicial tenure must be remote. It seems reasonable to conclude that there is no real irreconcilability between the separation of powers and the advisory opinion. Notwithstanding the weakness of the reasoning in Opinion of the Justices, 122 Massachusetts, 600, a bad precedent had been established, and one which unfortunately found no little favor. The argument was plausible superficially, and furnished a means of escape from a duty often burdensome and sometimes disagreeable. The principle was again enunciated, obiter, by the same justices in 1878,^^ and was adopted and applied by an almost entirely different group in 1889.^7 This time the house of representatives placed upon its journal a formal protest,^^ denying the right of the justices to place such limitations upon questions referred for advisory opinions. The case attracted considerable attention at the time and the action of the house was generally endorsed.^^ But the justices had crossed the Rubicon, and at the first opportunity, they stated their position quite explicitly. "In determining whether questions are in- cluded in it (the clause), the rights and duties of the house and of the justices are co-ordinate and reciprocal. The house is undoubtedly authorized to require an opinion on all such questions as it deems to be embraced in the constitutional provision, but it must be for the justices to determine whether the requirement thus made is in conformity therewith, and one which they are bound to obey. . . We must for ourselves finally decide whether the occasion contemplated by the constitution 2« Opin. of the Justices, 126 Mass. 557. " Functioni of Judiciary, 148 Mass. 623. 2* See p. 159 supra and cf. the attitude of the House of Lords in a case cited by Macqueen — see page 27 supra. 29 Cf. Albany L. Jour. XL, p. 158; Cent. L. Jour. XXVIII, p. 493; Am. L. Rev. XXIV, p. 369, at pp. 385 sqq.; Harv. L. Rev. Ill, pp 228-9. INTERPRETATION OF ADVISORY OPINION CLAUSES 171 in which our opinion may properly be required has arisen."^** This precedent has been followed in cases of more recent date^^ and seems firmly rooted in the Massachusetts practice. The justices of other States were not slow to take it over and attempt to facilitate its development. As early as 1881 we find two Maine justices indicating their approval of Opinion of the Justices, 122 Massachusetts, 600, and testing the solem- nity of an occasion by an arbitrary standard of their own.'^ They soon won over the rest to their way of thinking,^ and in 1901 the majority declared in unequivocal terms their right to decline an answer if they deem the solemnity of the occasion insufficient.^ Three justices (Emery, Whitehouse and Peabody, JJ.) 'submitted a forceful dissenting opinion in which they held that the advisory opinion clause was mandatory and left nothing to the discretion of the judges. (They also questioned the criteria applied, even if the right to refuse an opinion be admitted). Six years later (one of the dissenters having be- come chief justice meanwhile) they carried the court with them in giving an opinion^^ on a question referred under the very circumstances which were responsible for the refusal of Opin.s of the Justices, 95 Maine, 564. Of the other two judges who had participated in this latter refusal, Strout, J., had apparently 3" In re Power of Legislature to Require Opinion, 150 Mass. 598, ^^ In re Opin. of the Justices, 190 Mass., 611; and In re Opin. of the Justices, 217 Mass., 607. 32 Question Submitted, etc., 72 Mame, 542. 33 Question Submitted, etc., 85 Me. 545. 3* "It is . . . essential, in order that the justices be required to give their opinion, that the questions be submitted upon a solemn occasion; and, however important may be the questions of law submitted, if it clearly appears to the justices that such an occasion does not exist, it is their duty to decline to give their opinion in answer to such questions. . . The justices must determine, each undoubtedly for himself, whether or not that con- dition existed, although in cases of doubt, it may be the duty of the justices to resolve that doubt in favor of the prerogative of the body propounding the question." Opin.s of the Justices, 95 Me. 564. 35 In re Opin. of the Justice<^, 103 Me. 506. 172 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT changed his mind, and Savage, J., registered the solitary pro- test. Savage has since become chief justice, but no questions have been submitted by the legislature of late, and it is difficult to say whether the justices as a whole would follow the most recent precedent^^ or not. In New Hampshire, too, there is evidence, that, at least from 1879, the judges entertained the opinion that they had considerable discretion in refusing advice to the other depart- ments. The unsatisfactory refusal of Opinion of the Court, 58 New Hampshire, 623, has already been criticised." The importance of the question asked is weighed in Opinion of the Court, 60 New Hampshire, 585, though the doubt is resolved in favor of the legislature. But in Opinion of the Justices, 67 New Hampshire, 601, (1892), there is a clear application of one of the tests announced in Opinion of the Justices, 122 Massachusetts, 600,^^ resulting in a refusal. This test is quoted with approval in several later cases^^ and has evoked no dissent. However, there has been, in New Hampshire, no claim of a right to refuse opinions as comprehensive as in In re Power of Legislature to Require Opinion, 150 Massachusetts, 598, or Opinions of the Justices, 95 Maine, 564. The Rhode Island justices have never given any indication of a disposition to withhold desired advice, except in connection with a pending case,^^ but it must be remembered that the con- stitution in that State says "any question of law," and so leaves ^In re Opin- of the Justices, 103 Me. 506. " See p. 113 supra. ^^ "The constitution introduces an exception to the rule in some cases, in which the official power or ofl&cial duty of the senate, the house of repre- sentatives or the governor and council is doubtful, and in which the opinions of the justices are desired by one of those bodies upon an important question of law necessary to be determined by the body requiring the opinions." Opin. of the Justices, 67 N. H. 601. 39 In re Opin. of the Justices, 73 N. H. 621; In re Opin. of the Justices, 75 N. H. 613; and In re Opin. of the Justices, 76 N. H. 597. ^''Opin. of the Supreme Court, 3 R. I. 299. INTERPRETATION OF ADVISORY OPINION CLAUSES 173 very little opportunity for a difference of opinion as between questioners and questioned. It is possible that the ultimate cause of the judicial recal- citrancy in New England is to be found in the Missouri practice, which was in its final form before Opinion of the Justices, 122 Massachusetts, bOO."*^ In Advisory Constitutional Opinion of the Judges, etc., 37 Missouri, 135, the judges laid down general rules for interrogatories under the new advisory opinion clause and declared, inter alia, that " the judges must determine what are 'questions of Constitutional law,' and what are *solenm occasions' within the meaning of this section," and that "it must have been understood by the framers of (the constitution), and would seem to be the clear intent of the section as it reads, that such questions should be important in reference to the public interest, and the necessary and immediate action of the Legislative or Executive branch of the Government, upon some matter of unusual magnitude and solemn concern for the public good, and on a pure question of law which could only be finally determined by the Supreme Court as a judicial question. " The first of these principles is an unsupported usurpation of discretion, the second rests only upon the unsubstantial fabric of a guess. Yet they are without doubt authoritative as to the Missouri practice, and were in fact the death-blow of the advisory opinion in that State. They were expressly reaffirmed in In the matter of the Northern Missouri Railroad, 51 Missouri, 586, and Opinion of the Court, etc., 55 Missouri, 497. The original wording of the advisory opinion clause in Florida left no doubt as to its mandatory character, and the only construction possible was frankly set forth in the second case under the provision. "It is evident from the language used that there is a discretion vested in the Governor as to requiring opinions, and it is equally plain that there is no discretion in the court, if the opinion required involves, upon a given state of facts, an interpretation of any portion of the Constitution "But cf. note 19 on p. 167 supra. 174 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT or the expression of an opinion upon any point of law."^ In the next case, too, they yielded with great reluctance to the imperative requirement of the constitution.^ In fact, until the amendment of 1875, there is no suggestion of a right to refuse answers, unless the questions come from an unauthorized source."*^ But after the clause was changed, the judges were only too glad to avail themselves of the undoubted right to decHne advice when the inquiries did not bear upon executive powers and duties, under the constitution', and beginning with In re Executive Communication, etc., 23 Florida 297, there are nine refusals out of a total of twenty-four references. These refusals, it should be pointed out, are not at all comparable to those we have been discussing, in Massachusetts, Maine and Missouri. What is an executive power or duty, and whether that power or duty is constitutional or statutory are, as a rule, questions of fact, more or less susceptible of absolute deter- mination; the importance of a question and the solemnity of an occasion are relative matters, to be estimated in particular cases according to the attendant circumstances, and largely depending upon individual judgment. In Colorado, the first refusal was due to the fact that the matters referred were then before the courts in Utigated cases, as well as to the physical impossibiUty of answering questions of such generality as those submitted in the time available.*^ *2 per Westcott, J., in In the matter of the Executive Communication, etc., 12 Florida, 653. ^ "Protesting that the questions involved in the inquiry are not matters of judicial cognizance, and that the 'opinion' of this court is binding upon no person, the matter being purely of legislative interpretation and adjudica- cation, yet because the Constitution requires the court to give opinions 'upon any point of law,' when required by the Governor, we are constrained to comply with the requirement of the Constitution." In the matter of the Executive Communication, etc., 12 Fla. 686. ^ In the matter of the Executive Communication, etc., 12 Fla. 653; and In the matter of the Executive Communication, etc., 14 Fla. 289. *^ In the matter of Senate Resolution on the Subject of Irrigation, 9 Colo. 620. INTERPRETATION OF AD\r[SORY OPINION CLAUSES 175 It is also suggested that replies might be refused when the subject matter of the inquiries is not covered by any pending bill; and this is cited with approval in a case of 1889,^ where the court assumes *'that were such not the fact, the resolution would not be presented." This smacks of the Missouri doc- trine, and in the District Attorneys case reported in 12 Colorado, 466,*^ the theory of judicial discretion in its most positive form is Unhesitatingly proclaimed, on the authority of Opinion of the Court in Response to Governor, 49 Missouri, 216. Fur- thermore, the court is not content with this, but proceeds, in the exercise of that discretion, \o work out a very elaborate exegesis of the advisory opinion clause, valuable and instructive in many respects, but going considerably beyond the needs of the principal case. This opinion has been unquaUfiedly af>- proved in many more recent cases^^ and must be accepted as indicating the prevaihng practice in Colorado. It is probably responsible for the growth of a larger number of eUmination tests than can be found in any other State, as will be seen in examining the special rules listed below. Only once has a judicial voice been raised against the doctrine, in Colorado; in 1913, Scott, J., argued with great assurance, that to permit the court to pass finally upon the importance of a question or the solemnity of an occasion defeated the intention of the constitution.'^^ The restricted form of the advisory opinion in South Dakota has given less opportunity for the development of the doctrine we are discussing. Yet "important question" and "solemn occasion" figure therein; and the doctrine at last appears ^ ** In re Senate Resolution Relating to Internal Improvement Fund , etc., 12 Colo. 285. *' In the matter of the Constitutionality of SB. No. 65, 12 Colo. 466. *'In re Appropriations by General Assembly, 13 Colo. 316; In re Speakership of the House of Representatives, 15 Colo. 520; In re HR. No. 25, 15 Colo. 602; In re University Fund, 18 Colo. 398; In re Penitentiary Commissioners, 19 Colo. 409; et al. ♦■ In re Interrogatories of the Senate, 54 Colo. 166. 176 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT ushered in on the authority of In the matter of the Constitu- tionaUty of SB. No. 65, 12 Colorado, 466. ^^ Later cases lend their support^^ — and there has been only one reference since 1900. We must admit, then, that this unhistorical and irrational principle has estabUshed itself firmly in most of the States where the advisory opinion exists. It will be clear from the foregoing paragraphs that there have been two foci of infection, so to speak, the opinion in 122 Massachusetts, 600, for Massa- chusetts, Maine and New Hampshire, that of 37 Missouri, 135, for Colorado and South Dakota. For reasons set forth above, it is submitted that the arguments in both cases are fallacious and lack the merit that should characterize precedents which take rank as leading cases. There is evidence that this has been recognized both in Maine and in Colorado (if only by a sohtary justice), and it is to be hoped that judges will remember that the rule of stare decisis is less conclusive in constitutional mat- ters, when it is manifest that a previous construction is incor- rect,^2 a^j^(j ^jH yg^ return to a better usage. Otherwise the process of constitutional amendment alone can maintain the usefulness of the advisory opinion. In the absence of constitutional requirement, there is no reason to suppose that judges cannot refuse to advise the other departments of our State governments, if they so desire. There are many examples where such advice has been given, it is true, but never with any acknowledgment of obligation; and there are also numerous instances of flat refusals, sometimes accom- panied by a wholesale denial of an obhgation to reply under any circumstances. It is obvious, too, that in a system where the composition and powers of the judiciary are not within the control of the legislature, a statutory provision for advisory 60 In re Ch. 6, Sess. L. 1890, 8 S. D. 274. " In re House Resolution No. 30, 10 S. D. 249; and In re Opin. oi the Judges, 34 S. D. 650. ^^Willoughby, Const., I, pp. 51-2, and Baldwin, Amer. Judiciary, pp. 57, 60, and cases cited there. INTERPRETATION OF ADVISORY OPINION CLAUSES 177 opinions can have no more weight than a request supported only by legislative resolution. The more recent cases indicate that while the judges are probably^ free to comply with such requests, even in the absence of constitutional requirement, still there is a strong tendency to decUne.^ Even in Canada, where the supreme court is the creature of the legislature, there has been a pronounced incHnation to refuse opinions occasional- ly,^ on the ground that the questions referred were not within the statute; but here, the refusals have caused little incon- venience, for the legislature has prqmptly amended and expanded the statute to meet difficulties that have arisen. In only one case has it been seriously argued that the imposition of advisory duties was ultra vires of the legislature,^ and the decision of the Privy Council in favor of the statute^^ has probably settled the matter. We are now prepared to attempt a codification, as it were, of the law relating to advisory opinions as it is found in the prac- tice of those States where such opinions are required under the constitution. It will be our endeavor to formulate the " See p. 78 supra. 5* In re Board of Sinking Fund Commissioners, 32 S. W. 414 (Ky,); In re Board of Purchase and Supplies, etc., 37 Nebr. 425; Cataract Power Co. V. Buffalo, 115 N. Y. Supp. 1045; and State v. Baughman, 38 Ohio St. 455. Cf. the words of Thayer (Legal Essays, p. 182, at 185), written in 1895 : "To say that a court is not obUged to answer, and cannot be obliged to answer by the action of the other departments, is not to say that they cannot answer if they see fit. . . . It seems clear that the judges may answer if they choose to. The precedents . . . indicate only that they need not if they do not choose; and, perhaps also, that it is generally inex- pedient to answer when not required by the constitution." « In re Certain Statutes of . . . Manitoba, etc., 22 Can. S. C. R. 577; In the matter of the Jurisdiction of a Province, etc., 35 Can. S. C. R. 581 ; and In re Criminal Code, 43 Can. S. C. R. 434. ^' In re References by the Governor General in Coimcil, 43 Can, S. C. R. 536. " Attorney-General for Ontario v. Attorney-General for Canada, (1912) A. C. 571. 178 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT rules established by that practice generally, as far as possible, indicating in each case the historical development; but special explanations will be necessary in many instances to define the extent of a rule's application in particular States, and illustra- tions from the English practice or extra-constitutional opinions will sometimes throw a clearer light on the point under dis- cussion. 1. The justices are under no obligation to give extra-judicial opinions to an individual or governmental organ not authorized to require them by the constitution. There are two general classes of cases where this rule is applied. The first is where the constitution contains an advisory opinion clause, but the request in question does not come from a source named in that clause. These cases are all interrogatories from the executive department. In the beginning, the justices have sometimes waived the lack of authority, falling back upon the exact words of the constitution only in recent years, as their attitude has become more critical. Thus in Massachusetts, though the constitution authorized questions only from "each branch of the legislature, as well as the governor and council," the justices unquestioningly gave advice on several occasions to the governor alone,^^ and once, semble, to the council.^^ But in 1912 they suggested that there were grave doubts as to whether either the governor or council could require advisory opinions,^^ and the following year the point was carefully con- sidered and the governor was told that no answer could be given unless the council joined with him in making the refer- ence.^^ Without doubt the same principle would now be applied ^*Opin. of the Justices, 3 Mass. 568; Opin. of the Justices, 22 Pick. 571; Opin. of the Justices, 11 Cush. 604; In re Opin. of the Justices, 210 Mass. 609. "Opin. of the Justices, 13 Allen, 593. •°In re Opin. of the Justices, 211 Mass. 620; and In re Opin. of the Justices, 211 Mass. 630. " In re Opin. of the Justices, 214 Mass. 602. INTERPRETATION OF ADVISORY OPINION CLAUSES 179 to the council. It may be observed, parenthetically, that if this rule be taken in connection with the rule of Opinion of the Justices, 126 Massachusetts, 557, that the question referred must be "necessary to be determined by the body making the inquiry," the governor is as effectually deprived of assistance in his exercise of the veto power, as if the court held this was not an executive function at all, as in Florida.®^ Even in 1810, a question from the attorney-general, at the suggestion of the house of representatives, was returned without an opinion.^ The form of the New Hampshire Qlause is the same as that of Massachusetts, but the point we are discussing has not been raised recently in the former State. Two opinions were given to the governor alone in 1866 and 1873.^ In 1877, however, the justices refused to consider a request from the city soHcitor of Manchester,^ and in two later cases they have declined to express approval or disapproval of rules and forms prepared by commissioners and submitted to the court under a statute.®^ If the justices are careful to answer only requests from an authorized source, they may be compelled, in extreme cases, to assume the difficult task of deciding who is governor^^ or acting governor,^^ or even which of two legislatures has a de jure existence.^® The second class of cases is where the constitution does not authorize advisory opinions at all. It has already been pointed out that in many such cases answers have been given. •2 In re Executive Communication, etc., 23 Fla. 297. " Commonwealth v. Smith, 9 Mass. 530. " Opin. of the Justices, 53 N. H. 634; and Opin. of the Justices, 53 N. H. 640. « Opin. of the Justices, 62 N. H. 706. " In re School Law Manual, 63 N. H. 574; and In re Probate Blanks, 71 N. H. 621. The primary reason for these refusals was that the court was not asked to advise merely, but actually to validate the rules and forms submitted for its approval. •^ In the matter of the Executive Commimication, etc., 12 Fla. 653. •* In the matter of the Executive Commimication, etc., 14 Fla. 289. "Statement and Questions Submitted, etc., 70 Me. 570; and State- ment and Questions Submitted, etc., 70 Me. 600. 180 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT The favored questioners include the governor/^ the governor acting through the attorney-general/^ the governor acting at the request of the legislature/^ and various State Boards of which the governor may or may not be a member/^ as well as one or both houses of the legislature/^ or committees thereof.''^ On the other hand there are so many instances where opinions have been refused that there can be little doubt that there is no obUgation to give advice either to the legislature^® or to any executive official/^ in the absence of constitutional requirement. 2. Advisory opinions will not be rendered when the question sub- mitted deals with private rights involved in a case actttally before the courts. Apart from the justification on principle/^ there is abundant authority in precedent for this proposition. It is true that under royal pressure the EngUsh judges on several occasions '°Opin. of the Judges of the Supreme Court, 30 Conn. 591; Opin. of the Judges of the Court of Appeals, 79 Ky, 621; People v. Green, 1 Denio, 614; In the matter of Hughes, 61 N. C. 57; cases under the Oklahoma statute (see pp. 76-78 supra) ; and Respublica v. De Longchamps, 1 Dall. 111. " In re an Act, etc., 83 N. J. L. 303. " Opin. of the Judges, etc., 37 Vt. 665. " In re School Fund, 15 Nebr. 684; In re Board of Public Lands and Buildings, 18 Nebr. 340; and In re Babcock, 21 Nebr. 500. '* Opin. of the Judges, etc., 32 Conn. 565; In re Railroad Commissioners 15 Nebr. 679; In re State Warrants, 25 Nebr. 659; In re Senate File 31, 25 Nebr. 864; In re Quaere, etc., 31 Nebr. 262; In re House Roll 284, 31 Nebr. 505; Deb. Mass. Conv. 1853, I, p. 138 (N. Y. case); Opin. ot the Justices, 31 N. C. App.; and Report of the Judges, etc., 3 Binney, 595. '5 In re Appropriations, etc., 25 Nebr. 662. '« Reply of the Judges, etc., 33 Conn. 586; In the matter of the Appli- cation of the Senate, 10 Minn. 78; Opin.s of the Justices, etc., 64 N. C. 785; and State v. Baughman, 38 Ohio St. 455. '^In re Board of Sinking Fund Commissioners, 32 S. W. 414 (Ky.); Rice V. Austin, 19 Minn. 103; State v. Dike, 20 Minn. 363; and the opinion of Norval, J., in In re Board of Purchase and Supplies, etc., 37 Nebr, 425, which apparently resulted in a cessation of extra-judicial consultation in Nebraska — see p. 76 supra. "See p. 162 supra. INTERPRETATION OF ADVISORY OPINION CLAUSES 181 gave extra-judicial opinions in pending cases, but the later and better practice condemned such a course.'® In the United States the authorities are in support of the rule as stated almost without exception.^^ Perhaps in reason the rule should be extended to cover cases where a decision has been reached in some lower court and it is still possible that an appeal may be taken, at least where the case is of a criminal nature;*^ but opinions were given under just such circumstances in Opinion of the Justices (9 AUen 585)^ and State v. Cleveland.83 3. The possibility that the question submitted may at some tims come before the courts in a litigated case is not a sufficient excuse for refusing to give an advisory opinwn thereon. The writer believes this is the better rule on principle and on authority, although it cannot be denied that there is much in the recent practice that is inconsistent with it. In fact, it is easily demonstrable, that the general adoption of the contrary rule would be so severe an emasculation of the advisory opinion as to make it of insignificant governmental utility. Of the four hundred and ten advisory opinions which have been given in the States where such opinions are authorized by the constitution, two hundred and seven involved deaUng with obvious questions of private rights, including both personal rights and property rights. There are also many other ques- tions which could have been brought before a court in various ways. If possible litigation were a conclusive test, advisory opinions could be obtained from supreme court judges only ^* See p. 16 supra. ®° Commonwealth v. Smith, 9 Mass. 530; Opinion of Kent, J., in State V. Cleveland, 58 Me, 564; In the matter of Senate Resolution, etc., 9 Colo. 620; In re Continuing Appropriations, 18 Colo. 192; In re Priority of Legis- lative Appropriations, 19 Colo. 58; and In re Assessment of Property, etc., 25 Colo. 296. " In re Opin. of the Judges, 8 Okla. Cr. 467. ^ See Green v. Commonwealth, 12 Allen 155. " 58 Me. 564. The opinion of Kent. J., is worthy of attention. 182 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT as to matters of law the final determination of which, under the constitution, rests in the discretion of the executive or legis- lative departments. But this would confine the scope of such opinions almost entirely to exclusively pohtical matters, a field into which, it is said, the judiciary should be forced as little as possible.^ If the advisory opinion is to struggle for existence between these Symplegades, it might as well give up the ghost. The judges of our courts have not always approached the problem we are discussing from the same point of view. Some- times they have been content to announce simply that ex parte opinions upon questions of private right should not be given, sometimes they have said that questions of private right should only be adjudicated in regular proceedings in court. Several courts have laid down the rule that they will not construe existing statutes in advisory opinions, because private rights may already have arisen thereunder. It is possible, too, to state the proposition in positive terms of inclusion rather than negative terms of ehmination, and say that only questions publici juris will be made the object of extra-judicial advice. It will be convenient to examine these various statements in turn, as a series of rules, as the different phraseology has sug- gested different arguments both pro and contra and has been responsible for different developments and appHcations. (a) Ex parte advisory opinions upon questions of private right should not he given. (?) Although there are quite a number of cases in which this principle has been asserted obiter, very few can be discovered where it was the basis for a refusal. The phrase has been persistently misused in both instances. Strictly speaking, an advisory opinion to the executive or legis- lative departments could only be ex parte, if it dealt with con- tentious matter in which the State was interested as a possible •* Cf. the remarks of Story, J., in 1820, and of ex- Justice Morton in 1853, in Mass., referred to on pp. 35-37 supra. INTERPRETATION OF ADVISORY OPINION CLAUSES 183 litigant.^ Cases of that description are rare, and the practice conflicting. In 1825 the Massachusetts justices reluctantly advised the house of representatives that the State was under no obligation to pay certain land rents to the trustees of a par- ticular estate.^ So, too, in 1844, they rendered an opinion as to the sinking fund contribution imposed upon the Western Railroad corporation by statu te.^^ On the other hand as early as 1816, the New Hampshire justices refused to express any opinion upon the power of the legislature to amend private corporation charters; they advanced two reasons — (1) that the constitution "did not contemplate that the opinion of the justices of the superior court should be required upon a mere question of right between the legislature and individuals, but upon important questions of a nature altogether pubUc;" (2) the importance "that to the decision of every question of a new impression, involving private rights, we should not only in fact come, but . . . that those who are interested should have a reasonable confidence that we come, with minds entirely unshackled by preconceived opinions."^* If the first reason is a vaUd excuse, it would seem to be appUcable to the two Massachusetts cases just referred to, but it is evident that either the New Hampshire opinion had not come to the atten- tion of the Massachusetts justices, or that it did not conmiend itself to them. In so far as the second reason may be taken as referring to cases where the State is not a possible party, it is surely ohiter. Yet this very extension of the argument to all cases involving private rights has found much favor in recent years and is responsible for a deplorable confusion of the real ^ "Of legal proceedings ex parte ordinarily implies a hearing or examina- tion in the presence of, or on papers filed by, one party and in the absence of, and often \s4thout notice to, the other." — Webster. "The term ex parte impUes an examination in the presence of one of the parties and the absence of the other. " — Bouvier. ** Opin. of the Justices, 7 Pick. 130 n. *^ Opin. of the Justices, 5 Mete. 596. «8 Opin. of the Court, 62 N. H. 704. 184 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT issue. The Massachusetts practice is fairly sound on this point. In Functions of Judiciary, 148 Massachusetts, 623, the justices thought that when a question involved private rights there was the more reason to be sure it was within the advisory opinion requirement, but their ultimate refusal was based on an alleged lack of a solemn occasion. Again in 1906^^ they declared that opinions which might affect the rights of parties not present "ought not to be given, except when needed in the consideration of an important matter of state that calls for official action. "^° But there is not a single example of a refusal resting clearly and solely upon this "private rights" argument and nowhere is there the confusion which exists in some of the other States, between opinions which may touch upon the rights of unrepresented parties, and ex parte opinions. Missouri, with a case of 1874, and Colorado, with a long line of cases beginning in 1887, are primarily to blame for inferior practice. In the Missouri case^^ the house of representatives asked the justices whether a bill extending the time on a debt due the State from a railroad would imperil the State's first Hen. The justices, apparently, did not object to giving an opin- ion because the State's interests were involved, though such an opinion would be truly ex parte, but withheld their advice because the question concerned others besides the State, and opinions "upon points which may subsequently come before them in contested cases . . . would be ex parte,^' etc. It is conceivable that they had in mind only actions where the State might be a party, though other Missouri cases^^ do not encourage so lenient a construction; but there can be no doubt that in the Colorado cases, the justices were referring only to actions between private persons. The source of the confusion *^In re Opin. of the Justices, 190 Mass. 611. ^° Cf. Attorney-General of Canada v. Attorneys-General for Ortario, Quebec and Nova Scotia, (1898) A. C. 700, for Judicial Committee practice. " Opin. of the Court, etc., 55 Mo. 497. ^ Advisory Constitutional Opin., etc., 37 Mo. 135; In the matter of the N. Mo. R. R., 51 Mo. 586; and In the matter of Inquiries, etc., 58 Mo. 369. INTERPRETATION OF ADVISORY OPINION CLAUSES 185 is an obiter dictum in In the matter of Senate Resolution, etc., 9 Colorado, 620. A list of very general questions on the subject of irrigations^ was returned unanswered, for the very good reason that " there are now in this and other courts in the State actions through which some of these matters are in process of adjudica- tion. " It was also quite properly suggested " that a satisfactory response to the resolution would require vast research and extra- ordinary caution . . . and the period of time provided for a legislative session would hardly be sufficient to return safe and satisfactory answers to more than one such inquiry." But unfortunately the inevitable judicial fondness for enunciating broad principles led them to add that " it could not have been the intention to authoriz"e an ex parte adjudication of individual or corporate rights by means of a legislative or executive ques- tion; parties must still adjudicate their rights in the ordinary and regular course of judicial proceeding. " Possibly even this excuse would have been admissible in this case, if necessary, for the justices objected only to giving such "ex parte'^ opinions "except upon the gravest and most urgent necessity;" and as they pointed out, there was no intimation that the matters involved were covered by any bills before the legislature, while some of the questions certainly appear to be concerned with private rights exclusively. But these quahfications did not attend the doctrine when it made its next appearance (also obiter) in In the matter of the ConstitutionaKty of SB. No. 65, 12 Colorado, 466. The justices here accepted it, shorn of all quahfications, on the authority of the earHer cases, and tried to reinforce it by a "due process argument."^ Henceforth 93 For the questions, see SJ. 1887, p. 650. 9* "It is a principle declared by our constitution (Sec. 25, Art. 2), and of universal recognition, that no person shall be deprived of life, liberty or property without due process of law. But there cannot be due process of law unless the party to be affected has his day in court. Yet a careless construction and application of this constitutional provision might lead to the ex parte adjudication of private rights by means of a legislative or exe- cutive question, without giving the party interested a day ... in court. " 186 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT the rule was unquestioned. It has been quoted obiter many times, ^^ and has served as authority for several refusals to answer, both when an opinion would really have been ex parte, ^^ and when questions of private right alone were involved. ^^ Three times it has served as a basis for refusals to review matters already passed upon in a litigated case, or to "overrule" regular cases in opinions. ^^ It is responsible, also, for two refusals in South Dakota,^^ where it made its first appearance, obiter, in the exact phraseology of 12 Colorado, 466;^°*^ and for a dictum in the dissenting opinion of Norval, J., in Nebraska.^^^ Evidently there are two kinds of cases to be considered here — the one where there is some possibility of action being brought to which the interrogator, or perhaps the State, would be a party, the other where the private rights of persons not before the court, and of no others, are made the subject of requests for advice. In the first, the opinion, if given, would really be ex parte, in the second that phrase is loosely used to mean that parties whose rights might be involved are unrepre- sented before the court. The first answer to be made to the arguments noted above applies alike to both; it is that since the opinions requested are advisory only and are not binding upon the court or justices if the same matters later come before ^5 In re Appropriations, etc., 13 Colo. 316; In re Priority of Legislative Appropriations, 19 Colo. 58, et al. It is not clear whether it is obiter in In re State Board of Equalization, 24 Colo. 446, In re HB. No. 99, 26 Colo. 140, In re SB. No. 27, 28 Colo. 359, and In re Interrogatories of the Senate, 54 Colo. 166, for several reasons were assigned for these refusals. ^In re Penitentiary Commissioners, 19 Colo. 409; and In re Leasing of State Lands, 27 Colo. 99. 8^ In re Appointments by the Governor, etc., 21 Colo. 14; and In re Assessment of Property, etc., 25 Colo. 296. 8* In re House Resolutions, etc., 15 Colo. 598; In re Assessment of Pro- perty, etc., 25 Colo. 296; and In re SB. No. 142, etc., 26 Colo. 167. " In re Chap. 6, Sess. L. 1890, 8 S. D. 274; and In re House Resolution No. 30, 10 S. D. 249. "0 In re Construction of Constitution, 3 S. D. 548. "* In re Board of Purchase and Supplies, etc., 37 Nebr. 425. INTERPRETATION OF AD\r[SORY OPINION CLAUSES 187 them in regular judicial proceedings, the legal rights of indivi- duals cannot suffer from the giving of those opinions. This was recognized in the two Massachusetts cases where actual ex parte opinions were given,^^ as well as in Colorado,^''^ and in an extra-constitutional advisory opinion in Connecticut.^'^ The Canadian justices have even given an opinion in a case that was practically an appeal from a criminal judgment, relying on the fact that they would not be bound thereby.^^^ Perhaps the preva- lence of the " ex parte " argument in Colorado is due largely to the pecuhar theory entertained by t^e Colorado justices for some *°2 In Adams v. Bucklin, 7 Pick. 125, the court states clearly that they do not consider Opin. of the Justices, 7 Pick, 130 n., binding upon them; and in Opin. of the Justices, 5 Mete. 596, they say: "Such an opinion, with- out notice to the parties, would be contrary to the plain dictates of justice, if such an opinion could be considered as having the force of a judgment, binding on the rights of parties. But ... as an opinion upon an abstract question, without any investigation of facts, and without argument, must be taken as an opinion upon the precise question proposed, which cannot affect the rights of parties, should they hereafter be brought before the court in a regular course of judicial proceeding, we have thought it best ... to submit an opinion upon the questions proposed." ^'"In In re Fire and Excise Commissioners, 19 Colo. 482, the court gave a real ex parte opinion because of "the gravity of the situation, and the impending danger to Hfe and property," and in the subsequent cases of People V. Martin and People v. Orr (19 Colo. 565), the court said: "But it could not be assumed that such ex parte statement could not be contro- verted, nor that an opinion based thereon might not require modification when the other side should present their cause in court as they had a right to do. . . . No opinion based upon such statement could have been made to bind the parties contending for official place upon the fire and police board." 10* "Our action being extra-judicial, and really rather our individual than official action, it cannot be of any binding character whatever. No judge of the Supreme or Superior Court, in any case hereafter before him, would be boimd by our opinion. We ourselves should not be bound by it. " — Reply of the Judges, etc., Z^ Conn. 586. 106 In re Criminal Code, 43 Can. S. C. R. 434; but the Okla. justices declined to give any advice in a similar case — ^In re Opin. of the Judges (8 Okla. Cr. 467). 188 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT time, that their advisory opinions had al! the force of a regular decision.^*^ Thus the statement quoted above from In the matter of Senate Resolution, etc., 9 Colorado, 620, refers to an ex parte "adjudication;" and in In the matter of the Constitu- tionality of SB. No. 65, 12 Colorado, 466, the court frankly affirms that advisory opinions in Colorado ''have all the force and effect of judicial precedents." Again, in In re House Resolutions, etc., 15 Colorado, 598, it is declared that regular decisions should not be "overruled" in advisory opinions. ^^^ The decision in People v. Martin and People v. Orr should have cleared away this misunderstanding; but the ex parte test is still applied in later cases,^*^^ and for the same reason,^^^ and the justices continue to object to "review" previous decisions i««See pp. 228-231 injra. ^" Compare the careful statement of the Massachusetts justices in a recent opinion: "It is not open to the justices in answering questions sub- mitted to them under the Constitution to attempt to overrule a decision made by the court in a cause between party and party, or to speculate upon the correctness of such a decision. If such a decision is to be overruled, it can only be after argument in another cause between party and party, where the rights of all can be fully guarded." In re Opin, of the Justices, 115 N. E. 978 (Mass.) The italics are mine. *"* See especially In re Appointments by the Governor, etc., 21 Colo. 14; and In re Assessment of Property, etc., 25 Colo. 296. ^''^The advisory opinion amendment was not "intended to sanction a practice whereby the rights of property or the title to an ofl&ce or the construction of an existing statute should be determined in an ex parte proceeding in answer to either an executive or legislative question." — In re Appointments, etc., 21 Colo. 14. Also: "The various institutions whose rights are involved are not before the court, and they should not be concluded without a hearing." — In re State Board of Equalization, 24 Colo. 446. Also see In re HB. No. 99, etc., 26 Colo. 140, and In re Leasing of State Lands, 27 Colo. 99. "To answer the questions would . . . involve a determination of private rights in an ex parte proceeding. It would neces- sarily determine the title to the ofl&ce of Lieutentant-Governor and to whom the salary pertaining to such oflSce properly belongs. " — In re Interrogatories of the Senate, 54 Colo. 166. "Rights may have arisen or attached which should not be determined in a purely ex parte proceeding." — In re SR. No. 4, 54 Colo. 262. INTERPRETATION OF ADVISORY OPINION CLAUSES 189 in advisory opinions, on the authority of In re House Resolu- tions, etc., 15 Colo. 598, though the same argument is not men- tioned again.^^° The dissenting opinion of Scott, J., in In re Interrogatories of the Senate, 54 Colorado, 166, gives the more approved theory^^^ and we think it can be shown^^ that the doctrine of In the matter of the ConstitutionaUty of SB. No. 65, 12 Colorado, 466, as to the binding effect of advisory opinions has since been thoroughly discredited in Colorado. It is to be hoped, then, that the justices in that State will yet come to recognize, that since the alleged reason for the ex parte test does not exist, the test itself should be abandoned, unless it can be placed on a more substantial basis. In this event, the South Dakota justices might again follow their neighbors' lead, this time in paths laid out on a more reasoned plan. The second answer may also apply to both, though in different degree. If the interrogator has need for the advice requested that he may know what course to pursue when important questions of a pubhc nature (though perhaps in- volving private rights) are presented, questions calUng for exe- cutive or legislative, i.e. poUtical action, that the interests of the commonwealth may be promoted, should not consideration for the general welfare prevail over too scrupulous a regard for private rights? Solus popvXi suprema lex esto. Scott, J., recognized this argument in In re Interrogatories of the Senate, 54 Colorado, 166, though perhaps he only intended to extend it to serious crises, such as existed in In re Fire and Excise Commissioners, 19 Colorado, 482, and In re SR. No. 10, ?>d> Colorado, 307."^ ""^ In re Assessment of Property, etc., 25 Colo. 296; and In re SB. No* 142, etc., 26 Colo. 167. "^ " I do not understand that the answer requested is anything but advisor>', and may be reviewed or changed upon a more formal and complete investigation. " "2 See pp. 228-231 infra. "^Cf. the statement in In re Opin. of the Justices, 190 Mass. 611: "These opinions . . . ought not to be given, except when needed in the consideration of an important matter of state that calls for ofl&cial action. " 190 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Thirdly, it may be replied that where, as in most of the cases cited in connection with this rule, the basis for the embarrass- ment of the justices is that parties whose rights are concerned are unrepresented,^^^ it is, as a rule not difficult to secure the presentation of an argument for all interests concerned, if not from the parties themselves, because unascertained, at any rate from amid curiae. We have already seen how easily this is managed in the Canadian practice."^ Under the statute, the court is empowered to provide for the representation of the Dominion, any province, or any person or class of persons who may be interested in a question referred; notice is given of the date set for argument, and a right of hearing is assured.^^^ Furthermore if any interests affected are not in fact represented, the court can order argument in behalf of those interests by an amicus curiae at the public expense. In 1912^^^ it was forcibly urged upon the Judicial Committee of the Privy Council that this did not assure representation of all interests, and that some might be prejudiced; but the Committee could not be persuaded that advisory opinions given under the Act would be "subver- sive of justice. "^^^ Counsel have appeared and arguments "* That this is an important element in the ex parte objection may be seen from In re SR. No. 10, etc., 33 Colo. 307, where the court declared the proceeding was not ex parte because there were actual litigants (the parties in a governorship contest), though they were not litigants before the supreme court but before the legislature. Also see the remarks of Story, J., in Deb. Mass. Conv. 1820, pp. 489-90, and of ex- Justice Mor- ton in Deb. Mass. Conv. 1853, II, p. 685. "5 See pp. 81 and 80 supra. "6 In In re Provincial Jurisdiction, etc., 24 Can. S. C. R. 170, the court directed that the Distillers' and Brewers' Association be notified of a hearing hi which they would be interested. — Cameron, Supreme Court Practice, p. 268. Extra counsel were heard in In the matter of the Re- presentation, etc., 33 Can. S. C. R. 594. "^ Attorney-General for Ontario v. Attorney-General for Canada, (1912) A. C. 571. "8 Their chief reason for this conclusion probably was that the opinions had no binding force. INTERPRETATION OF ADVISORY OPINION CLAUSES 191 have been heard on every question referred to the Canadian Supreme Court, at least since 1892. But certainly the justices of a supreme court do not need statutory or constitutional au- thority to bring about these same results. As a matter of fact, the representation of private interests which are affected is fairly common in the advisory opinions of the United States. The interested parties themselves have had their position presented by counsel in a good many cases,^^^ usually at the request of the justices.^^^ In New Jersey the statute that we have already mentioned provided .,f or a "full hearing and con- sideration,"^^ and counsel were heard for both sides in the only application under the statute that has come to our atten- tion.^ In one case under the criminal appeal statute of New York^^ argument was heard in behalf of the defendant, and in a North Carolina case^ the judges intimated that if the matter submitted "were deemed by them doubtful, they would have been obliged to defer their answer until the parties or their counsel could submit their views." The New Hampshire "9 Opin. of the Justices, 7 Pick. 130 n.; In re Opin. of the Justices, 193 Mass. 605; In re Opin. of the Justices, 66 N. H. 629; Opin. of the Justices, 72 N. H. 601; In re Opin. of the Justices, 75 N. H. 613; In re Opin. of the Justices, 77 N. H. 606; In re Penitentiary Commissioners, 19 Colo. 409; In re Annexation and Consolidation, etc., 26 Colo. 136; In re HB. No. 99, etc., 26 Colo. 140; In re SB. No. 27, etc., 28 Colo. 359; In re SR. No. 10, etc., 33 Colo. 307; In re HR. No. 10, 50 Colo. 71; Questions Propounded by Governor, etc., 50 Colo. 84; In re Interrogatories of the Senate, 54 Colo. 166; In re Quaere, etc., 31 Nebr. 262; In re House Roll 284, 31 Nebr. 505; In re Board of Sinking Fund Commissioners, 32 S. W. 414 (Ky.); and Res- publica V. De Longchamps, 1 Dall. Ill (Pa.). "° WTien the senate and house of representatives were in doubt as to the financial prerogatives of the senate, the Massachusetts justices heard arguments from both sides before submitting an opinion. Opinion of the Justices, 126 Mass. 557. "^ One of the constitutional amendments proposed in the New York Convention of 1915 (see p. 68 supra) contained a similar phrase. "2 In re an Act, etc., 83 N. J. L. 303. ^^ People V. Green, 1 Denio 614. ^2* Opin. of the Justices, 31 N. C. App. 192 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT justices once delayed an opinion for some time in order to give an opportunity for interested parties to appear, but none came.^^^ In a South Dakota case, both parties offered to appear, but the court decUned to act, on other grounds.^^^ The question did not trouble the Florida justices much, under the first form of the clause, for in one case they gave an opinion, where one interested party offered to appear and the other refused.^^^ In a few instances arguments have been heard from one party only, but it may fairly be presumed that opposing interests would have been admitted to a hearing if they had appeared.^^s Also it is quite possible for amid curiae to render assistance.^^ Arguments from such sources alone would go far to meet this *^ex parte" objection, for it must be remembered that the justices are asked to pass only upon questions of law, and either the appUcation of the general principles to a particular set of facts is left to regular cases inter partes, or, if the principles are based upon certain facts alleged in the inquiry, it is quite clear that there is no objection to a subsequent Htigant proving a different set of facts.^^" A fourth answer that might legitimately be offered is that so-called "ex parte" opinions have in fact often been given in cases where private rights, both personal and property, were involved in the questions referred. It has already been men- tioned that over half of the advisory opinions rendered in obedience to constitutional requirement in the United States may be so classed. An enumeration would require considerable space and seems to be unnecessary. Examples from any of the States where the clause has been tried may readily be found among the classified cases in Chapter II. 125 In re Opin. of the Justices, 73 N. H. 621. 128 In re Opin. of the Judges, 34 S. D. 650. 1" In the matter of the Executive Communication, etc., 12 Fla. 653. 128 In re Opin. of the Justices, 76 N. H. 588; In re HB. No. 165, 15 Colo. 593, 595; In re House Resolutions, etc., 15 Colo. 598; In re HB. No. 10, etc., 15 Colo. 600; and In re Appropriations, etc., 25 Nebr. 662. "» See pp. 206-207 infra. ""People V. Martin, and People v. Orr, 19 Colo. 565. INTERPRETATION OF ADVISORY OPINION CLAUSES 193 (b) Questions of private right should only he adjudicated in regular proceedings in court. Of the truth of this there can be no doubt ;^^^ but emphasis must be placed upon the word "ad- judication." The justices have sometimes made the rule as here stated an excuse for decUning to give advisory opinions.^ In this aspect all the objections apply to it that were raised in the examination of the preceding rule. (c) No advisory opinions should be given in advance of pos- sible cases dealing with the questions referred. (?) {d) Existing statutes should not he construed in advisory opinions. (?) It will be convenient to consider these two rules together for the second is merely the logical consequence of the first, since it is always possible that cases will grow out of existing statutes. As formulated in (c), the earliest appearance of this proposition was in a Massachusetts case of 1877.^ In addition to the criticisms of this case already suggested,^ it may be added here that the refusal of the justices is not con- sistent with earlier cases/^ and was not followed in scores of later cases.^^^ The authority of this opinion has not been re- cognized in a single instance in any other State. It was cited "1 See notes 102, 103, 108 in (a) siipra, ^'2 Advisory Constitutional Opinion, etc., 37 Mo. 135; In the matter of Inquiries Submitted, etc., 58 Mo. 369; In re HR. No. 25, 15 Colo. 602; In re Appointments by the Governor, etc., 21 Colo. 14; and In re Constitu- tionality of SB. No. 196, 23 Colo. 508. »"' Opin. of the Justices, 122 Mass. 600. 13* See pp. 168-170 supra. ^ Opin. of the Justices, 7 Pick. 130 n.; Opin. of the Justices, 3 Cush. 584; Opin. of the Justices, 1 Mete. 572; Opin. of the Justices, 1 Mete. 580; Opin. of the Justices, 5 Mete. 587; Opin. of the Justices, 5 Mete. 591; Opin. of the Justices, 5 Mete. 596; Opin. of the Justices, 9 Cush. 604; Opin. of the Justices, 8 Gray 20; and Opin. of the Justices, 9 Allen 585 (here a later case actually arose — Green v. Commonwealth, 12 Allen 155). i^'Opin. of the Justices, 132 Mass. 600; Opin. of the Justices, 138 Mass. 601; Opin. of the Justices, etc., 145 Mass. 587; In re PubUc Lighting, 150 Mass. 592; Opin. of the Justices, 154 Mass. 603; Opin. of the Justices, etc., 155 Mass. 598; etc. 194 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT in the minority opinion of a Maine justice in 1881,^' but his advice was not withheld. However, opinions have been refused in other States, on similar grounds.^^^ More often the rule we are discussing has been announced obiter,^^^ or is so associated with other reasons for refusal that it is not clear which was the determining test.^^^ From the cases cited in the notes it is evident that it rests upon rather slender authority. In New Hampshire it is supported only by dicta, and in a 1909 case,^^^ the justices actually go out of their way to give an opinion on a point that could "only be properly questioned in a judicial proceeding" in order to assist the governor and council m deciding a question of pubHc policy. In Maine, it only appears obtter, and that, too, in minority dissenting opinions. In both these States it has been correctly stated that extra- judical opinions in advance of possible cases are to be denied except upon questions within the scope of the advisory opinion clause of the constitution,^^^ though the scope is construed rather narrowly in the Maine cases. The Florida justices are credi- ted with a single weak dictum}^^ South Dakota and Nebraska "7 Question Submitted, etc., 72 Me. 542. fl "8 In the matter of the N. Mo. R. R., 51 Mo. 586, and Opin. of the Court, etc., 55 Mo. 497, (advice would have been ex parte in these cases); In the matter of the ConstitutionaHty of SB. No. 65, 12 Colo. 466; In re Appropriations, etc., 13 Colo. 316; and In re Penitentiary Commissioners, 19 Colo. 409. "8 Opin. of Justices, 70 N. H. 638 (here advice would really have been ex parte) ; In re Opin. of the Justices, 76 N. H. 597 ; In re Opin. of the Justices, 76 N. H. 601; Opin. of the Justices, 58 Me. 590; In re Priority of Legislative Appropriations, 19 Colo. 58; and In re Construction of Constitution, 3 S. D. 548. "0 In re Opin. of Supreme Court, 39 Fla. 397. i« In re Opin. of the Justices, 75 N. H. 613. 1*2 Opin. of the Justices, 67 N. H. 601; In re Opin. of the Justices, 76 N. H. 597; and Opin.s of the Justices, 95 Me. 564. ^^ Under the first form of the clause, they declared that it made no difference whether a case might come before the court or not. In the mat- ter of the Executive Communication, etc., 12 Fla. 653. 3 \ INTERPRETATION OF ADVISORY OPINION CLAUSES 195 are responsible for two, on the authority of the leading Colo- rado case.^'^ Apart from the lone Massachusetts opinion, then, there are just five unquestioned precedents in favor of this rule, two in Missouri and three in Colorado.^^ In both the Missouri cases the State's rights were clearly involved, a circumstance which is undoubtedly embarrassing to justices, whether with reason or not. The same is true of the third Colo- rado case, while the other two proceed upon the false hypothesis that advisory opinions are binding adjudications. There is every reason, then, for rejecting the rule as here promulgated. There is no ground for it historically; the Enghsh judges at most attempted to draw the line at giving opinions in pending cases or criminal cases that were practi- cally upon them. In an appeal from a Canadian advisory opinion, the Judicial Committee of the Privy Council gave their opinions on questions which might arise in litigated cases,^"*^ and the Canadian justices follow the same practice. ^^^^ The United States practice furnishes Uttle in favor of the rule and much against it. As in Massachusetts, so in the other States referred to above, it has been disregarded in so many opinions that space will not permit an enumeration. Finally, theoretical considerations are against it. The four arguments adduced under (a) supra are of equal force here, and may be supplemented by others. If it be claimed that the probabiUty of future cases is a reason for refusal, an obvious reply is that an opinion from the justices will reduce such probabihty to a ^** In re Construction of Constitution, 3 S. D, 548; and In re Board of Purchase and Supplies, etc., 37 Nebr. 425. "* In two instances where advice was sought under a statutory re- quirement, the rule was introduced as one reason for declining to comply. Haybum's Case, 2 Dall. 409; and In the matter of the Application of the Senate, 10 Minn. 78. ^«« Attorney-General for Ontario v. Attorney-General for Dominion, et al., (1896) A. C. 348. "' In re References, etc., 43 Can. S. C. R. 536, approved in Attorney- General for Ontario v. Attorney-General for Canada, (1912) A. C. 571. 196 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT minimum, thus saving a great deal of litigation, while to the case that does survive the justices can still come absolutely free to change their minds upon further argument. But it need not be admitted that the probabiUty that cases will arise is a reason for refusing advice. If the constitution plainly imposes a duty upon the justices to give their opinions upon certain kinds of questions coming from named sources, why should the probabiUty of embarrassment to the justices or to private citizens, or of any other contingency, be an excuse for neglecting that duty? Under the American constitutional system, a department of the government is entitled to refuse performance of a task that is on its face within the duties imposed upon it by the constitution, only if its independence is threatened. The possibility of an interference with that independence "is such a remote hypothesis that it cannot form the basis of an argument for the non-performance of a duty. "1*8 If advisory opinions are not to be given when they touch upon private rights that may possibly come before the justices in regular judicial proceedings, it would seem to follow that existing statutes should not be construed or examined as to constitutionality, since future cases may very easily necessitate such a construction or examination. Yet only in one State have the justices taken this logical step.^"*^ Missouri and Florida (after 1875) should not be considered because of the "8 H. A. Dubuque in Am. L. Rev. XXIV, p. 369, at p. 397. ^*' In two Massachusetts cases, the justices suggest that if a question calls for the construction of a statute under which private rights may have arisen, they will be particularly careful to see that the question falls within the advisory opinion clause; in both, opinions were refused because there was no solemn occasion. Functions of Judiciary, 148 Mass. 623; and In re Power of Legislature to Require Opinion, 150 Mass. 598. It is submitted that insofar as the partial refusal of In re Opinion of the Justices, 115 N. E, 921 (Mass.) is rested upon the rule against construction of existing statutes, the authorities referred to by the justices do not bear out their assertion that this rule "has been said in numerous opinions ... to be sufficient to require them to decline to express an opinion." INTERPRETATION OF ADVISORY OPINION CLAUSES 197 word "constitutional" in their advisory opinion provisions. Still it may be mentioned in passing that the interpretation of this in Missouri was very narrow. It was announced obiter in Advisory Constitutional Opinion, etc., 37 Missouri 135: ques- tions of constitutional law meant questions which arise upon the constitution alone, i.e., " some question of the proper con- struction and true meaning of some provision, clause or words contained in the Constitution." Now it is obvious that the determination of the constitutionaUty of a statute will generally depend upon the true meaning df words or phrases in the con- stitution, and in fact twice the Missouri justices passed upon the constitutionaUty of statutes extra- judicially.^^^ But they refused to do so in 1874^^^ and declared it was their province to give an opinion as to the constitutionaHty of an act only when the question of validity was raised in a regular case. In Florida the justices have consistently refused to give opinions upon questions deahng with executive powers or duties under existing statutes, ^^^ with the possible exception of In re Opinion of the Justices, 68 Florida, 560. It was reserved for the Colorado practice to develop the rule that completed legislation should not be construed or its constitutionaUty considered in advisory opinions. It is found first as a dictum in that same all-comprehensive case of 1889.^ "Executive questions must be exclusively juris publici, and . . . legislative questions must be connected with pending legislation, and relate either to the constitutionaUty thereof or to matters connected therewith of purely pubUc right." The first part of the delimitation, relating to the executive, ""Advisory Constitutional Opin., etc., 37 Mo. 139; and Opin. of Su- preme Court Judges, etc., 55 Mo. 295. "1 In the matter of Inquiries Submitted, etc., 58 Mo. 369. "2 In re Opin. of Supreme Court, 39 Fla. 397; Advisory Opin. to the Governor, 50 Fla. 169; In re Opin. of Justices, 54 Fla. 136; In re Opin. of Judges, 62 Fla. 4; In re Advisory Opin. to the Governor, 64 Fla. 1; In re Opin.s of the Justices, 69 Fla. 632; and In re Opin. of the Justices, 69 Fla. 653. i"In the matter of the ConstitutionaUty of SB. No. 65, 12 Colo. 466. 198 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT will be taken up a little later. The argument for the second was that the legislative history of the State before the advisory opinion was introduced made it clear that "the primary and principal purpose of the amendment" was to enable the general assembly to avoid the "injurious consequences arising from unconstitutional legislation;" and that this is corroborated by the fact that the general assembly of 1887 propounded only questions as to the constitutionaUty of pending bills. There are two objections to this. In the first place, it is sub- mitted that such criteria of interpretation should only be employed when the words of the amendment are ambiguous, and then only to decide between two possible meanings, never to supplement or modify express provisions. ^^ The natural and ordinary meaning of words should prevail, if possible.^^ But, secondly, even if this is a case where history and contem- porary circumstances may legitimately be resorted to, the conclusion of the justices cannot be supported. The history of the advisory opinion itself should be consulted. It was not by accident that the framers of the amendment employed the well-established New England phraseology, which had itself been largely derived from the earHer English practice. Is it not reasonable to suppose, when legislators use a "phrase consacree," a particular and unusual assemblage of words which have been for a century attached to a single institution, that they intended to transfer that institution to their own system? Why, then, if history was to guide their interpreta- tion, did not the justices endeavor to search out the character- istics of the advisory opinion as it existed when it was incor- porated into the Colorado constitution? If the general assem- bly of 1885 had wished to limit their privilege of extra-judicial consultation to questions touching pending legislation, they could certainly have found words and phrases more clearly i"Cf. Willoughby, Const., I, p. 33; Story on the Const., s. 407; and Cooley, Constitutional Law, p. 388, i« Marshall, C. J., in Gibbons v. Ogden, 9 Wheat. 1, at p. 188. INTERPRETATION OF ADVISORY OPINION CLAUSES 199 expressing that intention than those appearing in the amend- ment, which, indeed, on the surface suggest no ambiguity at all. The argument from contemporary construction is meaning- less, for the majority of inquiries from legislatures in any State naturally are connected with pending legislation. After this dictum of 1889, the Colorado cases on existing statutes are irreconcilable. Before that time there had been four opinions in which existing legislation was construed ;^^ in every instance it is true that there had been no chance for private rights to arise under the statutes, but this point is not mentioned. However, the same course is followed in four cases of a later date as well.^^^ The seed sown in 1889 first bore fruit in 1891. The house asked whether the State treasur- er could credit county treasurers with moneys paid out by them as scalp bounties under an act of 1889 and whether the present State treasurer was entitled to an increase in salary provided for by an act of 1891.^^^ Here it was clear that private rights had arisen under existing laws, and for that reason an answer was refused, on the authority of In the matter of the Constitu- tionaUty of SB. No. 65, 12 Colorado, 466 (!). This was fol- lowed, under similar circumstances, in four cases,^^ in the first of which an actual Utigation at an early date seemed quite probable, and an opinion would have been ex parte. In another refusal, the court said private rights "may have arisen or attached which should not be determined (!) in a purely ex parte proceeding, " and then added that, " so far as the vaHdity of legislation is involved, in response to legislative questions, it is confined to proposed acts, in order that unconstitutional legis- ts* In re Election of District Judges, 11 Colo. 373; In re SR. Relating to SB. No. 45, 12 Colo. 339; In re HR. Relating to HB. No. 218, 12 Colo. 359; and In re Question Propounded by the Governor, 12 Colo. 399. ^*^ In re General Appropriation Bill, 16 Colo. 539; In re Contracting of State Debt by Loan, 21 Colo. 399; In re Casual Deficiency, 21 Colo. 403; and In re Questions of the Governor, 55 Colo. 17. "8 In re HR. No. 25, 15 Colo. 602. "' In re Penitentiary Commissioners, 19 Colo. 409; In re Appointments 200 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT J lation may be avoided, and cannot call for a construction of acts already passed. "^^° Here the rule is laid down quite badly (though obiter) altogether apart from questions of private rights.^®^ The question of private rights and the construction of existing statutes are plainly associated in the most recent refusal of the Colorado justices/^^ but, curiously enough, none of the above cases is mentioned, and the doctrine is rested upon 33 Colorado, 307 (!). It is impossible to say whether or not this alleged rule was responsible for this refusal, for the justices also objected to the absence of any pending bill, on the insecure authority of 12 Colorado, 466. On the other hand, statutes have been construed even where it is almost certain that private rights must have arisen, once in a special exigency, with a warning that it was not a precedent,^^ five times with no reservations at all.^^ Also in two instances, the justices stated general principles leaving the interrogator to apply them to particular statutes.^^^ Thus it appears that even in Colorado the weight of prece- dent is against the rule, though it might be replied that in the by the Governor, etc., 21 Colo. 14; In re Constitutionality of SB. No. 196, 23 Colo. 508; and In re Leasing of State Lands, 27 Colo. 99. i«o In re SR. No. 4, 54 Colo. 262. 161 So too in In re University Fund, 18 Colo. 398. I'^In re Interrogatories of the House, 162 Pac. 114i. iwBut inasmuch as the rights of the public are involved, and the interests of the State institutions concerned are so vitally afifected, and the results to them would be so disastrous were the answer, which we feel con- strained to give, withheld until after the present session of the legislature, we have concluded to depart from such practice and answer the question submitted. This, however, must not be taken as a precedent for the right in general of the legislature to ask for information as to the constitutionality of an existing act. " — In re Constitutionality of an Act, 21 Colo. 46. 1" In re Board of Capitol Commissioners, 18 Colo. 220; In re Leasing of State Lands, 18 Colo. 359; In re Certificates of Indebtedness, 18 Colo. 566; In re Canal Certificates, 19 Colo. 63; and In re Questions by the Gover- nor, 55 Colo. 105. i«* In re Appropriations by General Assembly, 13 Colo. 316; and In re Continuing Appropriations, 18 Colo. 192 (here a case was pending in the supreme court.) INTERPRETATION OF ADVISORY OPINION CLAUSES 201 cases where opinions were given, the rule was simply waived, not rejected. But in other States, the practice is overwhel- mingly against it. In Massachusetts, New Hampshire, Maine, Rhode Island and South Dakota, there have been ninety-seven opinions where the construction of existing statutes was called for, and not once has this been alleged as a reason for with- holding advice. The same is true of six extra-constitutional opinions.^^ The rule had no place in the English practice,^^' and existing legislation is expHcitly mentioned in the Canadian advisory opinion statutes.^^^ In theory, too, the rule is unsound. If the possibiHty that private rights will accrue under a statute is a good reason for decHning to construe it in an advisory capacity, it is not perceived why pending legislation should not fall under the ban. Why should an opinion of a particular provision, pro- nounced after its enactment, give any more trouble to a judge or result in any greater prejudice to private rights than if it were pronounced before its enactment? As a matter of policy, if the justices can ehminate a great deal of Ktigation in advance, by indicating their expert views on legislative acts, why should they not do so? Why should it be necessary for the people to run the risk of error in matters that often are not settled for years after a statute is passed?^^^ But, we are reminded, extra-judicial opinions would not settle these questions anyway, »««Opm. of the Judges, etc., 30 Conn. 591; In re Babcock, 21 Nebr. 500; In re Appropriations for Deputies, etc., 25 Nebr. 662; In re Quaere, etc., 31 Nebr. 262; In re Board of Purchase and Supplies, etc., 37 Nebr. 425; and Opin. of the Judges, etc., 37 Vt. 665. "' Macqueen, House of Lords, p. 53; cf, opinions of the Lords in Mc- Naghten's Case, 10 CI. and Fin., 200. "* Nearly all the Canadian opinions involve the construction of statutes, *''"It may be thought, and the impression will be confirmed when we consider as well the minuteness of the State Constitutions as the pro- fusion of State legislation and the inconsiderate haste with which it is passed, that as the risk of a conflict between the Constitution and statutes is great, so the inconveniences of a system imder which the citizens can- not tell whether their obedience is or is not due to a statute must be serious. 202 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT since they have no binding force. That is true, but they would measurably diminish the chance of error, for, as a rule, they are remarkably sound; as will be seen,^^° they are commonly cited in regular cases, and have rarely been overruled in later cases dealing with the same subject matter. It might be added that even the regular decisions of our supreme courts do not irrevocably settle questions of law, for they are occa- sionally rejected by a later court. Again, not only is it possi- ble that years may pass before the judicial attitude towards particular statutes is ascertained in the ordinary course of events,^^^ but there are many questions which it is quite difficult to get before the courts in litigated cases at all. Finally, it may be added, that in so far as the rule is defended on the ground of an alleged interference with private rights, the argu- ments already urged against the ex parte objection are in point, (e) Questions referred by the legislature for advisory opinions must be publici juris. (?) This, too, is a rule which is practically limited to the Colorado practice. There are but two vague suggestions of it in other States. In the earliest New Hampshire How is a man to know whether he has really acquired a right under a statute? How is he to learn whether to conform his conduct to it or not? How is an investor to judge if he may safely lend money which a statute has empowered a community to borrow, when the statute may be itself subse- quently overthrown?" — Bryce, Amer, Commonwealth, Pt. II, Ch. 37. 1''° See pp. 234-236 infra. ^'^"To settle at once and forever a disputed point of constitutional law would often be a gain both to private citizens and to the organs of the government. Under the present system there is no certainty when, if ever, such a point will be settled. Nobody may care to incur the trouble and expense of taking it before the court. A suit which raises it may be compromised or dropped. When such a question, after perhaps the lapse of years, comes before the supreme court and is determined, the determina- tion may be different from what the legal profession has expected, may alter that which has been believed to be the law, may shake or overthrow private interests based upon views now declared to be erroneous." — Bryce, Amer. Commonwealth, I, p. 352. INTERPRETATION OF ADVISORY OPINION CLAUSES 203 > case/^-the justices said: "We are inclined to believe that the constitution of this state did not contemplate that the opinion of the justices of the superior court should be required upon a mere question of right between the legislature and individuals, but upon important questions of a nature altogether pubUc." But they were embarrassed here by the ex parte nature of the inquiry, and there are many later New Hampshire opinions upon questions by no means altogether pubHc in their nature. A question almost identical with that m 62 New Hampshire, 704, was referred to the Missouri justices in 1865 ;^^^ an opinion was refused for the reason that the question was too vague and general, but the justices seized the opportunity to announce that "questions should be important in reference to the pubUc interest." As in New Hampshire, the test was not observed in later cases, and was not mentioned again in this form. The cause for its appearance in Colorado is not far to seek. Unfortunately, the advisory opinion was incorporated into the constitution as an amendment to the article which gave the supreme court "power to issue writs of habeas corpus, mafidamus, quo warranto, certiorari, injunction, and other original and remedial writs. " The court had already held that this original jurisdiction of the court should only be used in cases involving questions publici juris, i.e., "where the interest of the state at large is directly involved; where its sovereignty is violated, or the Uberty of its citizens menaced; where the usurpation or the illegal use of its prerogatives or franchises is the principal, and not a collateral, question. "^'^ In the 1889 case to which we have so often referred,^^^ Helm, C. J., began his exposition of the advisory opinion clause by saying it was merely an enlargement of the original jurisdiction granted in Article VI, section 3, in the first place, adding to the Ust of "2 0pm. of the Court, 62 N. H. 704. "'Advisory Constitutional Opinion, etc., 37 Mo. 135. "" WTieeler v. No. Colo. Irr. Co., 9 Colo. 248. "* In the matter of the ConstitutionaUty of SB. No. 65, 12 Colo. 466. 204 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT writs there specified "an unique and important proceeding.'* Referring to Wheeler v. Northern Colorado Irrigation Company, he continued: "All of the reasons relied upon for confining the writs specified in section 3 of Article VI to questions puhlici juris apply with even greater force to the novel proceeding authorized by the provision before us; for, while this proceeding is original, and in that respect similar to the other original pro- ceedings referred to, yet it possesses characteristics peculiar to itself. Not only should its operation be confined to questions puhlici juris, but, as we shall endeavor to show, even questions of this character should rarely be presented or considered. It will be observed that the authority conferred is accompanied by an express limitation. While the question must be one relating to purely public rights, it can only be propounded upon solemn occasions, and it must possess a peculiar or in- herent importance not belonging to all questions of the kind. " Finally he stated the rule: "We are of the opinion that execu- tive questions must be exclusively juris puhlici, and that legis- lative questions must be connected with pending legislation, and relate either to the constitutionaUty thereof or to matters connected therewith of purely public right." The court has in effect interpolated the phrase ^^ puhlici juris'' into a sentence that is perfectly clear and reasonable without it. It is a clear case of judicial legislation. It would be as reasonable to argue that, because the- advisory opinion requirement is, in Rhode Island, included in the same section with a provision for the instruction of juries, therefore the advisory opinion practice should be limited by the doctrines of the law of jury instruc- tion. The advisory opinion clause was placed in Article VI, section 3, of the Colorado constitution for the obvious reason that it provided for the exercise of an original jurisdiction, and that section is the only section dealing with original juris- diction. It is true that it is an enlargement of original juris- diction, but why does it follow that it is an enlargement of the particular original jurisdiction already granted and is sub- INTERPRETATION OF ADVISORY OPINION CLAUSES 205 ject to all the constitutional and judicial restrictions imposed thereon? A cursory examination of the Colorado opinions will show that there has been no consistent conformity to the rule. Many times advice has been given on questions that are far from satisfying the definition of matters puhlici juris given in Wheeler V. Northern Colorado Irrigation Company, 9 Colorado, 248. However, the test has been applied several times,^^^ and has in three instances possibly brought about refusals.^" In these latter cases, other reasons are also assigned for an un- wilUngness to advise, so that it is doubtful whether there is a single precedent since In the matter of the ConstitutionaUty of SB. No. 65, 12 Colo. 466, which unquestionably supports the rule. 4. It is not necessary that questions referred for advisory opinions should he of a judicial nature. The contrary was asserted obiter in a single Missouri case of 1865: "It must be in its own nature, a judicial question, the final determination of which, by the organic frame of our Government, properly belongs to the Judiciary. "^^^ But this cannot be right; all questions of law are not questions which the judiciary can finally decide. The other two departments are entrusted with the determination of many questions of a legal nature, and if the constitution permits them to seek the assistance of the judges in deaHng with these questions, it is not admissible to add the qualification quoted above. There is undoubted authority for the rule in Massachusetts and New Hampshire. In 1878, the Massachusetts justices were asked to advise as to the power of the senate to originate "* In re Funding of County Indebtedness, 15 Colo. 421; In re Speaker- ship, etc., 15 Colo. 520; and In re SR. No. 10, etc., ZZ Colo. 307. 1" In re HB. No. 99, etc., 26 Colo. 140; In re SB. No. 27, etc., 28 Colo. 359; and In re Interrogatories of the Senate, 54 Colo. 166. ^" Advisory Constitutional Opinion, etc., 37 Mo. 135. 206 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT appropriation bills.^^^ This was certainly a question not within the jurisdiction of the justices, but, after a careful review of the precedents in England and Massachusetts, they concluded that "it has never been considered essential that the questions proposed should be such as might come before them in their judicial capacity," and gave the opinion requested. The New Hampshire case involved the power of a legislature to elect a United States senator,^^^ a power plainly beyond judicial control; but an answer was given and the Massachu- setts case cited with approval. There are scores of cases where opinions were rendered unquestioningly on similar matters. 5. The lack of legal assistance is not sufficient excise for declining to give advisory opinions. Often the justices of our supreme courts have deplored the fact that, in exercising the advisory function, they did not enjoy the valuable assistance of professional briefs and argument. They have referred to this deprivation as a reason why advisory opinions should not be binding upon them but should always be open to reconsideration,^®^ as a reason for caution in giving such opinions only when necessary,^®^ and as a reason why the conclusions in advisory opinions are entitled to less respect than those reached in regular cases,^^ or are more subject to error.^^ In no case has a refusal been based upon it; but the 1" Opin. of the Justices, 126 Mass. 557. 18° Opin. of the Court, 60 N. H. 585. 181 Green v. Commonwealth, 12 Allen, 155; Opin. of the Justices, etc., 25 N. H. 537; In re Opin. of the Justices, 76 N. H. 597; Opin. of the Justices, 58 Me. 590; and Taylor v. Place, 4 R. I. 324. 182 In re Bounties to Veterans, 186 Mass. 603; In re Opin. of the Justices, 190 Mass. 611; In the matter of Senate Resolution on the Subject of Irri- gation, 9 Colo. 620; In re Construction of Constitution, 3 S. D. 548; and In re Board of Purchase and Supplies, etc., 37 Nebr. 425. 183 Opin. of the Justices, 16 Me. 479. 18* In the matter of the Constitutionality of SB. No. 65, 12 Colo. 466; In re Appropriations by Genera Assembly, 13 Colo. 316; and In re Railroad Commissioners, 15 Nebr. 679. INTERPRETATION OF ADVISORY OPINION CLAUSES 207 complaint itself is unnecessary. The justices are not prevented from requesting argimaent by the counsel of parties interested. In fact we have seen that they have often heard such argu- ments.^^ Also, they can surely command the assistance of amici curiae in time of need. This has been done in New Hamp- shire^^ and Nebraska/^^ and is a very common practice in Colorado,^^^ where it is an important factor in many opinions.^^^ In one instance an opinion was refused partly because the time permitted was insufficient for full argument and con- sideration.i^° It is scarcely true then, as stated by a Massa- chusetts justice,^^^ that the justices are necessarily without legal aid, or that "It is impossible that there should be an argument. "^^ 6. The importance of a question and the solemnity of an occasion are relative matters depending upon the circumstances of each partictdar interrogatory. The assumption of a discretion to refuse advisory opinions if the reference did not disclose an important question and were not made upon a solemn occasion,^^^ called for the development ^8* See pp. 190-192 supra. i8« Opin. of the Justices, 53 N. H. 640. 1" In re Senate File 31, 25 Nebr. 864; and In re House Roll 284, 31 Neb r. 505. ^^^ Amici curiae have appeared in at least forty-one cases to date. "• Cf. the words of Hayt, C. J., in Parks v. Soldiers' and Sailors' Home, 22 Colo. 86: "As some of the opinions to which reference has been made were delivered in answer to questions propoimded by the executive, it is perhaps well to say, in passing, that it must not be assiuned for this reason that full argument was not heard by the court, or that the opinions were pronounced except upon the most careful consideration. ... No cause which has been determined by this court in recent years has received more serious consideration than did the examination of those interrogatorief? propounded by the executive." 19° In re SB. No. 416, 45 Colo. 394. "1 In re Opin. of the Justices, 190 Mass. 611. »« Story, J., in Deb. Mass. Conv. 1820, p. 489. i^See pp. 168-176 supra. 208 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT of rules for testing importance and solemnity. Only one such rule has found much favor (see next section). The justices soon admitted that it was difficult to generalize, to frame a definition "which will fully cover every case which may arise, "^^ and began to test each case on its merits. So the only tangible harvest from the refusals founded on this discretion is a col- lection of paraphrases^^^ and the rule which follows. This state of affairs in itself is an argument against the right of the judges to pass upon the meaning of the phrases in question; for the failure to estabUsh definite rules leaves the other depart- ments completely at a loss to know when they can obtain extra-judicial counsel and when not — one constitutionally authorized to receive advice may be denied it almost at the whim of the adviser. If it is true that the importance of a question and the solemnity of an occasion are relative matters, surely the facts upon which they depend are within the knowl- edge of the questioner rather than the questioned. 7. The possibility of immediate executive or legislative action on the questions referred is not a necessary prerequisite for advisory opinions. Proceeding upon the hypothesis that they are free to refuse advisory opinions, if in their judgment the question is not im- portant or if the occasion lacks the proper solemnity, the justices of some States have developed the rule that the occasion of a reference cannot be solemn, within the meaning of the con- stitution, unless an answer will be of use in a pending matter. Others have said the importance of a question depended upon ^^ Functions of Judiciary, 148 Ma=s. 623; Opin.s of the Justices, 95 Me. 564; Opin. of the Court, etc., 55 Mo. 497; In the matter of the Consti- tutionaUty of SB. No. 65, 12 Colo. 466; and In re Chapter 6, Sess. L. 1890, 8 S. D. 274. ^^^ E.g. "solemn occasion" means some serious and unusual exigency — Functions of Judiciary, 148 Mass. 623; "important question and solemn occasion" calls for some question of unusual magnitude and solemn con- cern for the public good — Advisory Constitutional Opinion, etc., 37 Mo. 135. INTERPRETATION OF ADVISORY OPINION CLAUSES 209 the same condition. In the application of this general test, three particular rules have been evolved. (a) The question mtist be one "which the body making the inquiry has occasion to consider in the eocercise of the legislative or executive powers entrusted to them respectively."'^^ (?) This was quoted with approval, though obiter, in Opinion of the Jus- tices, 126 Massachusetts, 557. Later it was rephrased and appHed to " questions propounded with a view to further legis- lation on the subject matter of the statutes . . . referred to. "197 \y^e iiave already noted that this refusal evoked an emphatic protest from the house of representatives and was generally disapproved.^^^ Nevertheless, the Massachusetts justices continued to apply the test to questions both from the legislature^^^ and from the governor and council,^^ and in two instances withheld opinions when the questions failed to mea- sure up to the test.2°^ Two refusals have been due to the same test in New Hampshire,^^^ while it was applied with results favorable to the interrogator in a few other cases.^°^ It appeared in that State in a milder form than in Massachusetts, the jus- tices indicating^®* that if a question submitted did not have i9« Opin. of the Justices, 122 Mass. 600. ^^" "By a solemn occasion the constitution means some serious andam- usual exigency. It has been held to be such an exigency when the governor or either branch of the legislature having some action in view has serious doubts as to their power and authority to take such action under the consti- tution, or under existing statutes." — Functions of Judiciary, 148 Mass. 623. 198 See p. 170 supra. 19* In re Opin. of the Justices, 190 Mass. 611; and In re Opin. of the Justices, 211 Mass. 608. 20° In re Opin. of the Justices, 216 Mass. 605. "1 In re Opin. of the Justices, etc., 208 Mass. 614; and In re Opin. of the Justices, 211 Mass. 630. ■^- Opin. of the Justices, 67 N. H. 601; and In re Opin. of the Justices, 76 N. H. 597. 2<»In re Opin. of the Justices, 73 N. H. 625; and In re 0pm. of the Justices, 74 N. H. 606. *<" Opm. of the Court, 60 N. H. 585. 210 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT to be determined in the performance of legislative or executive duties, this was evidence that it was not an important question. Again, in 1906,^°^ they stated that it was sufficient if the in- terrogator may be called upon to act in matters necessarily- involving the question. Also, in applying the test, they have displayed a good deal of laxity, sometimes presuming an inten- tion to take official action when the inquiry disclosed no such intention.^^® The same course has been pursued in Massachu- setts as well.2°' Nowhere else has the test, expressed in such general terms, found a foothold, though there are a few dicta in its favor. In Statement and Questions Submitted, etc., 70 Maine, 600, the justices, referring to an earUer case, say: "To put such questions, in the absence of facts requiring their solution, would be an abuse of the power of an executive to call for the opinion of the court upon questions of law, on solemn occasions." But they were laboring under the impression^^* that the governor was bound to foUow their advice.^^^ There is also a minority approval of Opinion of the Justices, 122 Massa- chusetts, 600, (not resulting in a refusal, however) in Ques- tion Submitted, etc., 72 Maine, 542. Finally the test is enunciated obiter in Advisory Constitutional Opinion, etc., 37 Missouri, 135. (b) Legislative questions must be connected with a pending bill. (?) This constriction of the test is peculiar to Colorado, and the test appears in no other form in that State. The germ of it is probably the statement in In the matter of Senate Resolution on the Subject of Irrigation, 9 Colorado, 620, that the purpose of the advisory opinion amendment could not have 206 In re Opin. of the Justices, 73 N. H. 621. 206Opin. of the Justices, 72 N. H. 601; Opin. of the Justices, 72 N. H. 605; and In re Opin. of the Justices, 75 N. H. 613. 207 In re Opin. of the Justices, 190 Mass. 611; In re Opin. of the Jus- tices, 211 Mass. 608; and In re Opin. of the Justices, 216 Mass. 605. 208 Statement and Questions Submitted, etc., 70 Me. 570. 2o»The same is true in In re HR. No. 30, 10 S. D. 249. INTERPRETATION OF ADVISORY OPINION CLAUSES 211 been "to exact in response to a legislative inquiry a wholesale exposition of all constitutional provisions relating to a given general subject, in anticipation of the possible introduction or passage of measures bearing upon particular branches of such subject." The justices went on to say that the matters mentioned did not appear to be covered by any pending acts and that they were involved in cases then before the courts. This was a perfectly sound reason for the refusal; but that these same justices did not intend to make the existence of a pending bUl an absolute test for legislative inquiries may be seen from their replies in other cases where no bills were pending.^^^ Yet it was quoted as an absolute test in 1888,^^ though the existence of a pending bill was assumed in that case.^^ Stated in this form, it was incorporated in Helm, C. J.,'s sweeping exposition of the advisory clause in In the matter of the Constitutionahty of SB.. No. 65, 12 Colorado, 466, and so into the later practice. This rule, too, was bolstered up by a reference to the assumed intention of the framers of the amendment and to the con- temporary practice. The latter argiunent is far from convin- cing here, for of the seventeen questions referred by the legis- ture of 1887, six were not connected with pending bills, and only one was denied an answer (on other grounds at that). The test is reasserted in seven or eight later cases, but wherever it is attended by a refusal, other reasons are also given.^^ It has been stretched to mean that there must be a strong proba- biUty that the bill will pass as submitted to the supreme court,^" 210 In the matter of Senate Resolutions, etc., 9 Colo, 626; In the matter of House Resolution, etc., 9 Colo. 622; In re Senate Resolution, etc., 9 Colo. 630; and Veto Power, 9 Colo. 642. -11 The only justice left over from the 1887 court was Helm who had now become chief justice. "2 In re SR. Relating to Internal Improvement Fvmd, etc., 12 Colo. 285. 213 In re a Bill, etc., 21 Colo. 29; In re Bill, etc., 23 Colo. 504; In re HB. No. 495, etc., 26 Colo. 182; In re SR. No. 7, 29 Colo. 350; In re SB. No. 416, 45 Colo. 394; and In re SR. No. 4, 54 Colo. 262; In re Interrogatories of the House, 162 Pac. 1144. 2" In re a Bill, etc., 21 Colo. 29. 212 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT and then that it must have at least passed the house in com- mittee of the whole or on a second reading,^^^ and that further amendments are not in contemplation.^^® On the other hand an opinion has been refused after the bill has passed the third reading.^^' If all these limitations were accepted as valid, legislative questions could be put only when bills had reached their final form and were practically certain of passing upon the third reading if the constitutionaHty were approved by the supreme court. This may or may not be desirable, but it is certainly difiicult to start from the advisory opinion clause and reach such a conclusion. Not only is there no clear-cut precedent in Colorado for test (b), but many times the justices have answered legislative inquiries that were not within the test, and without demurring.^^*^ There is a single case in Massachusetts where this same test was suggested, the justices stating that "a definite enactment to a specific end must be under serious consideration before it can be said that a ^solemn occasion' has been presented within the meaning of those words in the Constitution. "^^^ But here the real reason for decHning an answer was that the questions were too general, calHng "in substance for an exposition of the Constitution relating to the powers of taxation." The situation is quite similar to that in In the matter of Senate Resolution on the Subject of Irrigation, 9 Colorado, 620, except that there is no mention of pending cases. 215 In re Bill, etc., 23 Colo. 504; In re HB. No. 495, 26 Colo. 182; and In re SR. No. 7, 29 Colo. 350. 2i« In re Bill, etc., 23 Colo. 504. 217 In re SB. No. 416, 45 Colo. 394; cf. In re Senate Resolution, etc., 9 Colo, 630, and In re Consolidation of School Districts, 23 Colo. 499. 218 In addition to the 1887 cases cited in note 210 supra, cf . In the matter of House Resolution, etc., 12 Colo. 186; In re Senate Resolution, etc., 12 Colo. 187; In re HR. No. 25, 15 Colo. 602; In re Emergency Clause, 18 Colo. 291; In re Consolidation of School Districts, 23 Colo. 499; and In re SR. No. 10, etc., 3Z Colo. 307. 219 In re Opin. of the Justices, 217 Mass. 607. The recent refusal of In re Opin. of the Justices, 115 N. E. 921 (Mass.), was based in part upon the rule we are now considering. INTERPRETATION OF ADVISORY OPINION CLAUSES 213 (c) Opinions will not be given after the adjournment of the interrogating legislature or the end of the term of the interrogating executive. (?) There is practically just one authority for this proposition — an executive reference in New Hampshire.^* It was asserted for the legislature in Opinions of the Justices, 95 Maine, 564;^^ but there was a cogent dissenting opinion in that instance, the justices pointing out that this was a novel doctrine, that it was often necessary and practical for legisla- tures to obtain opinions beforehand so as to avoid errors,^ and that many opinions had been returned after an adjourn- ment.^ The majority doctrine may perhaps be regarded as superseded by In re Opinion of the Justices, 103 Maine, 506. There are, then, only six cases (three in Massachusetts and three in New Hampshire) where it is clear that a refusal was based upon the tests we are considering. i\part from the scores of cases where advice would have been replaced by non- compliance had the tests been appUed, there are also instances where the justices have openly objected to the tests, though it be only in minor opinions. In In re Interrogatories of the Senate, 54 Colorado, 166, Hill, J., and Scott, J., insisted that the reference was well within the constitution, although no pending bill was involved. And in Opinions of the Justices, 95 Maine, 564, the three dissenting justices argued very forcibly against the whole doctrine that an opinion may be refused 220 Opin. of the Justices, 70 N. H. 640. 221 Id In re State Taxation, 97 Me. 595, the same justices distinguished between the recess separating the sessions of a legislature and the interim between two legislatures. 222 Even in regular cases the New York judges have given decisions that could not affect the particular case, "to prevent embarrassment in the future. "—Matter of Madden, 148 N. Y. 136; and Matter of Fairchild, 151 N. H. 359. But they will not do so unless the question is of general interest and importance. — Matter of Norton, 158 N. Y. 130. 223 See Ust given there; also Opin.s of the Justices, etc., 68 Me. 589; Veto Power, 9 Colo. 642; and In the matter oi the Constitutionality of SB. No. 65, 12 Colo. 466. 214 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT unless the interrogator "has occasion to consider and act upon the questions submitted," as well as against the right of the justices to pass finally upon the solemnity of an occasion. As to the first point at any rate, the contrary argument of Savage, J., was rejected in In re Opinion of the Justices, 103 Maine, 506. So that, even if we admit the discretion claimed by some jus- tices, it is decidedly doubtful whether the single rule they have evolved in the exercise of that discretion can be supported. We do not mean for a moment to suggest that questions having no relation whatever to legislative or executive powers and duties are reasonably within the scope of the clause. There is no reason, however, why they should necessarily relate only to powers and duties of which the immediate exercise is con- templated. Legal advice may be indispensable in the formula- tion of a plan that may not call for final action for some time, if unnecessary labors and errors are to be avoided. Information as to the state of the law on a particular point may conceivably be of use to the legislators at any time, for they "may be called on ... to change the law. "^ Nevertheless, it is perfectly true that, in general, questions should be connected with matters where action is at least in the contemplation of the questioner. It would be in violation both of common sense and of good governmental pohcy to make the justices a consulting board on any and all abstract questions of an encyclopedic nature. Still the enforcement of this obvious restriction should be in the hands, not of the justices, but of the people. The execu- tive and legislative departments will not often exceed the bounds of reason, and, as many cases testify, will usually yield gracefully to representations from the judiciary that the refer- ence is not expedient, and withdraw the questions. But if they do prove unreasonable and intractable, the remedy is not to place advisory opinions at the mercy of the advisers, but to change the personnel of the other departments or introduce definite and plain restrictions into the constitutional clause. ^ McNaghten's Case, 10 CI. and Fin., 200. INTERPRETATION OF ADVISORY OPIN^ON CLAUSES 215 8. Opinions may be refused if the reference does not indicate with sufficient definiteness the particidar points upon which infor- mation is desired. The justification for this is not to be found in constitutional interpretation. It is a purely practical matter. The physical abilities of human beings are obviously limited. One man can do so much and no more. It would be impossible for judges to give a proper attention to their regular judicial duties and at the same time indulge in the general discussion of abstract or hypothetical questions from an academic standpoint. Then, too, questions may be logically unanswerable because of vague- ness. If information is desired in connection with a pending bill, it would seem the part of good sense, and is indeed the common practice, to enclose a copy of the bill. The judges have shown a very patient consideration in this matter. There are only six cases where a refusal has been blamed, even in part, on the general or indefinite nature of the questions, and the excuse is quite admissible in every instance.^ Thus in Opinion of the Justices, etc., 145 Massachusetts, 587, the governor and council asked whether a set of rules submitted for their approval by the civil service commissioners would be valid, and the justices repHed: "We have doubts whether, within the fair intent of the constitution, the executive or legislative departments can submit to the justices a law or a series of laws or rules more or less compHcated and ask them to examine and ascertain what questions can be raised as to the validity of every clause, and to express an opinion in advance upon every such question." Again, in 1912,^ the council referred this question: "When the law calls for action *by the Governor and Council,' is the Governor to concur with a majority of the Coimcil in order to make its decisions effective, or is he to be considered a member of the deciding body with ^ Cf . also Attorney-General for Ontario v. Hamilton Street Ry. Co., et al., (1903) A. C. 524. "« In re Opin. of the Justices, 211 Mass. 630. 216 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT one vote?" An opinion was not given because "it is impos- sible to determine from your question whether the pending matter is of such a character that we ought to answer." Two years later the legislature was refused a general "exposition of the Constitution relating to the powers of taxation," because "an academic discussion of constitutional principles upon a subject so fundamental as that of taxation cannot be re- quired. "^^ A fourth refusal may be found in a Missouri case^* in which the legislature submitted "general, vague and unde- fined" questions concerning legislative powers over corpora- tions. The other two refusals were in Colorado and were occasioned by general questions as to whether certain bills were constitutional.^^ It is clear from the precedents that if the justices are in- clined to deal generously with abstract or indefinite inquiries, they may follow one of three plans. They may render an opinion drawn up in general terms, leaving it to the questioner to make the application to the particular case^^^ or they may request that copies of the pending bills involved be sent to them,^^ or that the exact points upon which advice is desired, be indicated in a supplementary communication .^^ Finally they may draw their own conclusions as to the particulars in which the interrogator is interested and submit an opinion 227 In re Opin. of the Justices, 217 Mass. 607. 228 Advisory Constitutional Opin,, etc., 37 Mo. 135. 229 In re HB. No. 107, 21 Colo. 32; and In re SR. No. 7, etc., 29 Colo. 350 (another excuse was also given in this case). 230 Opin. of the Justices, 53 N. H. 634; In re Opin. of the Justices, 73 N. H. 618; In re Opin. of the Justices, 77 N. H. 611; In re SB. Providing for a Board of Public Works, etc., 12 Colo. 188; In re University Fund, 18 Colo. 398; In re Internal Improvements, 18 Colo. 317; and In re Bill, etc., 23 Colo. 504; cf. In re Ontario Medical Act, 13 Ont. L. R. 501. 231 Opin. of the Justices, 126 Mass. 557; and In the matter of the Con- stitutionality of HB. No. 18, etc., 9 Colo. 623. 232 In the matter of the Constitutionality of HB. No. 18, etc., 9 Colo. 623; In re HB. No. 165, 15 Colo. 593, 595; In re Loan of School Fund, 18 Colo. 195; and In re a Bill, etc., 21 Colo. 29. INTERPRETATION OF ADVISORY OPINION CLAUSES 217 thereupon ,233 or limit their counsel to points suggested in an argument by amici curiae j^ 9. Questions of fact will not be investigated in advisory opinions. There is no foundation for the assertion of Story, J.,^ that in advisory opinions " questions of fact and of law may be decided without argument and without a jury. " As a matter of fact, in Massachusetts, as in every other State where the constitution authorized advisory opinions (except Colorado), questions referred are specifically limited to questions of law. The jus- tices have called attention to this more than once,^ and have refused plainly to pass upon questions of fact.^^ Even in Colorado, where the constitution says "important questions," it was stated as early as 1889,^^ that "for obvious reasons we hold that the intent could not have been to authorize questions of fact;" and this has been followed in later cases, at least one partial refusal being based upon it.^^ Not infrequently, "as on a case stated" the justices have rendered opinions upon the questions of law involved in a set of facts as presented in the inquiry ,^° but always it has been perfectly clear that a 233 Opin. of the Justices, 9 Cush. 604; In re Opin. of the Justices, 190 Mass. 611; Opin. of the Justices, etc., 25 N. H. 537; In the matter of the Constitutionality of HB. No. 270 and SBB. No. 69 and No. 106, etc., 9 Colo. 635; In re Kindergarten Schools, 18 Colo. 234; and In re HB. No. 203, 21 Colo. 27. 23* Opin. of the Justices, etc., 45 N. H. 593; In re Constitutionality of SB. No. 69, 15 Colo. 601; and In re Canal Certificates, 19 Colo. 63. 2« Deb. Mass. Conv. 1820, p. 489. ^ See Opin. of the Justices, 126 Mass. 557; and Dinan v. Swig, 223 Mass. 516. 237 Opin. of the Justices, 120 iMass. 600; and Opin.s of the Justices, etc., 18 Me. 458. 238 In the matter of the Constitutionality of SB. No. 65, 12 Colo. 466. 239 In re Appropriations by General Assembly, 13 Colo. 316. 2 Conn. 586; and Opm.s of the Justices, etc., 64 N. C. 785. " Opin. of the Justices, 56 N. H. 574; and In re SR. No. 4, 54 Colo. 262. THE PLACE OF THE ADVISORY OPINION 251 It is common knowledge that the separation of powers in the United States is far from complete. Each department performs many tasks that do not properly fall within its juris- diction, and very often the same set of facts will be dealt with by different departments. Also it is generally recognized that a complete separation of powers would not merely be impractica- ble, but fatal to the state wherein it existed. But where should we draw the Une? It would be difficult to generalize so as to cover all possible cases. Each must be decided with refer- ence to the attendant circumstances. But one fundamental guiding principle should be kept before our eyes at all times — the separation of powers should be an instrument both of demo- cracy and of efficiency. There are daily evidences that the separation has gone too far in the United States, that it is responsible for a great waste of governmental energy. We witness a deplorable lack of co-operation between the different organs of the state, a deficiency of which the expense to the people is enormous. The legislature makes bUnd appropria- tions, sometimes extravagant, sometimes inadequate, for exe- cutive expenses. Laws are brought into existence at much travail and expense only to be declared nuUities as soon as brought before the court of last resort. Professor Baldwin estimates that one out of every three hundred statutes passed by our law-making bodies is declared never to have been law at all." What is still worse, often these unconstitutional "laws" go unimpeached for years, while private rights are based upon their vahdity, only to meet disaster in the crucial test. Meanwhile, in our jurisprudence, there is a conclusive presump- tion that every citizen, including the officials of the executive and legislative departments, knows the law, although in fact it is impossible for anyone to know it.^^ Lack of space forbids detaihng more of the innumerable examples of a failure of our governmental organs to work to- " Amer. Judiciary, p. 107. *« "Since the doubtful point may be the true construction of the fun- damental law of the Union, the President and Congress may be left in un- 252 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT gather; they are within the knowledge of every reader. Embar- rassments, tangles, missteps, inconsistencies, discords are of every^day occurrence in our public affairs, and they all spell waste. The greatest problem before poUtical scientists today is to reconcile democracy and efficiency. The world has made marked progress in solving that difficult problem of the recon- ciliation of government with liberty of which Professor Burgess has written so entertainingly in his recent book.^^ This critical student of political society declares that the American theory of government offers the most satisfactory solution of his problem that has yet appeared, and that the solution rests fundamentally on a separation of powers which entrusts the guardianship of individual rights to a fearless and independent judiciary. With this we agree; but the solution has been productive of another problem, for the economic principle of a division of labor is only a success when all the groups are complementary, working in harmony towards a common end. It is as if there were three cragsmen roped together for the ascent of a cliff. The success of the expedition depends upon the mutual help- fulness of all the individuals. If each one, instead of anticipa- ting the difficulties ahead of his companions and suggesting methods for circumventing them, contents himself with com- menting on reverses only when they are suffered and criticizing past errors, what a wealth of effort goes to waste. And surely no independence is sacrificed by such helpfulness — each is still a "check" upon the others in time of necessity. Our present political problem is to build up a cordial sympathy and mutual co-operation between the three departments with- out affecting the solution of Professor Burgess' problem, i.e., certainty as to how they shall shape their course. With the best wish in the world to act conformably to the Constitution, these authorities have no means of ascertaining before they act what, in the view of its authorized interpreters, the true meaning of the Constitution is." — Bryce, Amer. Commonwealth, I, pp. 352-3, " Reconciliation of Government with Liberty (1915). THE PLACE OF THE ADVISORY OPINION 253 without interfering with the domain of individual Uberty under the constitution or the independence of the judiciary. Will the advisory opinion be a desirable step in that direc- tion? Before we attempt to answer this question categorically, let us review summarily the arguments for and against the device as they have been brought out by the practice in our country. As generally understood, the advisory opinion is an opinion rendered by the highest judicial ofi&cers in the state, acting as individuals and not in a judicial capacity, in response to a request for information as to the state of the law or counsel as to the constitutionality of proposed action, coming from the legislative or executive branches of the government. The form in which its usefulness appears varies with the question asked. In connection with pending legislation, it is designed to improve the form of bills, to make for perspicuity, consistency and satisfactory technic, to reduce the possibihty of enacting statutes that will have to be declared null and void. In con- nection with completed legislation, it is valuable as indicating to the legislative department the need for further legislation, as furnishing to the executive department a construction that will insure a consistent and, in all probabiUty, correct adminis- tration of the statute, as informing the people whether what appears to be law is actually binding upon them, in whole or in part. Why should it be necessary for these groups to be unenlightened by the wisdom of the chosen judicial servants of the state, until some individual is wiUing to devote enough time and money to bring the matter up in connection with a particular set of facts? We know too that there are many public questions that can with difficulty be brought before a court in a regular case. Not only would an opinion often prevent errors on the part of the pubUc, doing away with a great deal of uncertainty and confusion, but it would in many instances save the taxpayers considerable expense. The cost of enacting an unconstitutional statute and then going through the process of getting it declared unconstitutional is a dead 254 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT loss to the state's treasury. Again, suppose the governor contemplates calling an extra session of the legislature, if he is not satisfied that certain things are prohibited or secured in the existing statutes, as in In re Opinion of the Justices, 73 New Hampshire, 625. Is it not worth while economically to assure him upon this point? We have dealt in detail with the principal objections which have been raised against advisory opinions in the preceding pages. The complaint that legal assistance should be at hand is met by the employment of amici curiae. Indeed, if it is known that certain parties are interested in the question, they may be invited to send counsel to a public hearing on the ques- tions of law involved. But, we are told, questions of law should be settled with reference to particular facts, never in the ab- stract. We may set off against this the view of a North CaroUna chief justice that "the question is more easy of solution now, when it can be treated as a dry matter of con- stitutional law, than it might be hereafter, when compHcated with collateral considerations. "^"^ An even more convincing answer is that the questions are not "settled" once and for all. They are settled provisionally as it were. The probabihty is that the opinion will prevail in later cases, for the reason that in all probabihty it is correct. However, sub- sequent Utigants are in no wise hindered from demanding a reconsideration in the light of their particular case. That is the beauty of the scheme. Though it binds no one — judges, interrogator or pubUc — still it will carry the weight of high judicial prestige and will usually be followed by everyone concerned. Still this has been the crucial objection of some critics. They complain that opinions given extra- judicially will inevitably influence judicial action in later cases; subordi- nate judges would not venture to disregard the opinions of their brethren in the supreme court, and these latter justices, if not insensibly biassed by their earlier conclusions, will be 20 Opin.s of the Justices, etc., 64 N. C. 785. THE PLACE OF THE ADVISORY OPINION 255 slow to overcome the pride of first convictions and admit that they have changed their minds. It is supposed that the rights of later Utigants will at least be prejudiced, if not prejudged. There are two points of weakness in this attack. The first has just been mentioned — there is no obUgation upon any member of the judiciary to adopt the principles stated in an advisory opinion. Therefore higher and lower judges alike should treat advisory opinions merely as evidence of truth. There can be no harm in this. A careful and impartial judge will naturally welcome any expositions or considerations that will assist him in reaching a correct conclusion. Why should the studied reasoning and thoughtful pronouncements of his learned predecessors not play an important part in his investi- gations? Why should his own opinions when the question was first presented to him not serve as a starting point for renewed examination, if, as an experienced judge, he is ever mindful that human reasoning is potentially erroneous? The decisions in one State are not binding upon the judges of another State; yet they conunand respectful attention and in many cases are followed without qualification. It is by no means unknown for dicta to grow into rules by judicial adoption and appHcation in a proper case. The explanation of the hearing given to dicta and extra-territorial decisions is a justification for the deference to advisory opinions as well. All three merit the regard of judges in proportion as they embody learning and logic that appeal to the convictions. This brings us to the second weakness in the indictment. The statement that private rights will suffer injury from advisory opinions assumes a superficiahty and incorrectness in such opinions. Injury could scarcely result from a correct statement of the law. Now as a matter of fact advisory opinions have been remarkably sound. We do not hesitate to say the proportion of " over- ruled" opinions is as low as that of over-ruled cases of the same difficulty. Why should this not be so as a rule? It must not be assumed that the brevity of an opinion connotes sUght 256 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT investigation.^^ Many of them bear evidences of much thought and research. It is quite common for the opinion to be rested entirely upon regular cases cited therein. The amount of possible injury to private rights inherent in such opinions is surely minimal, and insignificant as compared with the great benefit to the commonwealth as a whole. The judges themselves have not always looked upon the scheme with favor. Now and then they have expressed their appreciation of the honor done them by inquiries from the coordinate branches of the government,^ and have comphed with the requests quite "cheerfully."^ Even though not required to answer by the constitution, the North CaroHna justices in one case acknowledged that to reply would be merely a duty of courtesy and respect.^ The Massachusetts justices on the whole have been very liberal in the advisory opinion practice,^ and the clause seems to have operated very success- fully in that State.^^ But the tendency of the judges in most jurisdictions is to discourage the practice.^^ They have in some States dealt harshly with constitutional advisory opinion clauses, and in one instance where the judges refused to comply with a statute authorizing these opinions, they went out of their way to say that a constitutional clause on the same subject 21 E.g., see the reporter's note in Opin. of the Justices, 52 N. H. 622; and the remarks of Hayt, C. J., in Parks v. Soldiers' and Sailors' Home, 22 Colo. 86. 22 Opin. of the Justices, 126 Mass. 547; and Opin. of the Justices, 126 Mass. 557. 23 Opin. of the Justices, 5 Mete. 591; and In re Railroad Commis- sioners, 15 Nebr. 679. 2* Opin. of the Justices, 31 N. C. App. 25 "The Justices have manifested no disposition to analyze nicely or construe narrowly their duty under the Constitution to give opinions to the other departments of government. They always have interpreted broadly the duty imposed, as is necessary in the consideration of a great charter of government." — In re Opin. of the Justices, 214 Mass. 602. 2« See p. 38 supra. 27 See Albany L. J. LIX, p. 21. THE PLACE OF THE ADVISORY OPINION 257 "does not address itself to our minds with any favor. "^^ The reasons given for this opposition do not seem very substantial, as we have tried to show. We confess it is not particularly surprising that the judges take this position. No profession is more circumscribed by traditional limitations. The concept of precedent is the corner-stone of judicial habits of thought. This has its advantages. It has made the judiciary the greatest conservative element in our poUtical societies. But it can be carried too far. We have seen recently in the United States that too stubborn an unresponsiveness to changed conditions may bring about a popular censorship of particular judges or decisions that is dangerous in the extreme to sound constitu- tional theory. Also, apart from theoretical antagonism, the judges cannot fail to be reluctant to undertake a task that will often be onerous, embarrassing and unpleasant. But this re- luctance should be overcome if the task is a duty, the perform- ance of which will contribute to the making of a more efficient governmental system. The advisers will be sufficiently pro- tected in ordinary cases, if they will insist with one voice that their opinions are advice and nothing more. In embarrassing situations, a representation to the questioner that it is unde- sirable to reply would usually produce an acquiescent with- drawal. Finally it cannot be supposed that the people would permit a gross abuse of the consultative function to go un- checked. We conclude that there is a presumption in favor of the advisory opinion as a useful instrument of government. It seems justified in theory; it has proved its value in practice. In solving the big governmental problem of the day, it is a step in the right direction. It is one of the few surviving agen- cies that made for efficiency in the monarchical form of govern- ment. Is it not possible that it may yet serve the same purpose equally well in our democracies? 2* In the matter of the Application of the Senate, 10 Minn. 78. APPENDIX I The Advisory Opinion Clauses of the State Constitutions in Chronological Order Massachusetts "Each branch of the legislature, as well as the goveraor and council, shall have authority to require the opinions of the justices of the Supreme Judicial Court upon important questions of law, and upon solemn occa- sions."— Part 2, Chapt. Ill, Art. 2, of the Constitution of 1780. Poore, 968. New Hampshire "Each branch of the legislature, as well as the president and council, shaU have authority to require the opinions of the justices of the Superior Court upon important questions of law, and upon solemn occasions." — From the Article on the Judiciary, in the Constitution of 1784. Poore, 1290. This was repeated as Section 74 of the Constitution of 1792, with "governor" substituted for "president." In this form it was repeated as Article 73 of Part 2 in the Constitution of 1902. Poore, 1305, and Thorpe, IV, 2509. Maine "They shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the governor, council, senate, or house of representatives." — Article VI, Section 3, of the Con- stitution of 1820. Poore, 796. Rhode Island "They shall also give their written opinion upon any question of law, whenever requested by the governor, or by either house of the general assembly." — Article X, Section 3, of the Constitution of 1842. Poore, 1611. This was reaffirmed in a judicial amendment (Amendment XII, Sec- tion 2) adopted November 3, 1903. Thorpe, VI, 3240. Missouri "The judges of the Supreme Court shall give their opinion upon im- portant questions of constitutional law, and upon solemn occasions, when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connection with the reported decisions of said court." Article VI, Section 11, of the Constitution of 1865. Poore, 1149. APPENDIX I 259 Florida "The governor may at any time require the opinion of the justices of the Supreme Court as to the interpretation of any portion of this con- stitution, or upon any point of law, and the Supreme Court shall render such opinion in writing." Article VI, Section 16, of the Constitution of 1868. Poore, 352. "The governor may at any time require the opinion of the justices of the Supreme Court as to the interpretation of any portion of this constitu- tion upon any question affecting his executive powers and duties, and the justices shall render such opinion in writing." Article VI, Section 16, as changed by Amendment XI, of 1875. Poore, 368. In this form it was repeated as Article IV, Section 13, of the Constitution of 1885. Thorpe, n, 740. Colorado "The Supreme Coiut shall give its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connec- tion with the reported decisions of said court. " This was an Amendment to Article VI, Section 3, adopted on November 2, 1886. Vide L. 1887, p. 483. Mills Ann. St. 1912, I, c. 132. (This is carelessly omitted from Thorpe's Constitutions.) South Dakota "The governor shall have authority to require the opinions of the judges of the Supreme Court upon important questions of law involved in the exercise of his executive powers and upon solenm occasions." Article V, Section 13, of the Constitution of 1889. Thorpe VI, 3366. APPENDIX II The Advisory Opinion Statutes of the Dominion of Canada and the Canadian Provinces Dominion of Canada "The Governor in Council may refer to the Supreme Court for hearing or consideration, any matter which he thinks fit to refer; and the court shall thereupon hear and consider the same and certify their opinion thereon to the Governor in Coimcil; provided that any judge or judges of the court who differ from the opinion of the majority may, in like manner, certify his or their opinion or opinions to the Governor in Council." This is the provision of the Supreme Court Act (38 Vic. c. 11) as incorporated in the Revised Statutes of 1886 (R. S. C. 1886, c. 135, Section 37). "Important questions of law or fact touching provincial legislation, or the appellate jurisdiction as to educational matters vested in the Governor in Council by the 'British North America Act, 1867,' or by any other act or law, or touching the constitutionality of any legislation of the Parliament of Canada, or touching any other matter with reference to which he sees fit to exercise this power, may be referred, by the Governor in Council, to the Supreme Court for hearing and consideration; and the court shall thereupon hear and consider the same. 2. The court shall certify to the Governor in Council, for his informa- tion, its opinion on questions so referred, with the reasons therefor, which shall be given in like manner as in the case of a judgment upon an appeal to the said court, and any judge who differs from the opinion of the majority shall, in like manner, certify his opinion and his reasons. 3. In case any such question relates to the constitutional vahdity of any Act which has heretofore been or shall hereafter be passed by the legis- lature of any province, or any provision in any such Act, or in case, for any reason, the government of any province has any special interest in any such question, the Attorney General of such province . . . shall be notified of the hearing, in order that he may be heard if he thinks fit. 4. The court shall have power to direct that any person interested, or where there is a class of persons interested, any one or more persons as representatives of such class, shall be notified of the hearing upon any reference under this section, and such persons shall be entitled to be heard thereon. APPENDIX n 261 5. The court may, in its discretion, request any counsel to argue the as to any interest which is affected and as to which counsel does not appear, and the reasonable expenses thereby occasioned may be paid by the Minister of Finance . . . out of any moneys appropriated by Parlia- ment for expenses of litigation. 6. The opinion of the court upon any such reference, although ad- visory only, shall, for all purposes of appeal to Her Majesty in Council, be treated as a final judgment of the said court between parties." 54-5 Vic, c. 25, s. 4. "Important questions of law or fact touching (a) the interpretation of the 'British North America Acts' 1867 to 1886; or, (b) the constitutionality or interpretation of any Dominion or provincial legislation; or, (c) the appellate jurisdiction as to educational matters, by the 'British North America Act, 1867,' or by any other Act or law vested in the Governor in Council; or, (d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or the respective governments thereof, whether or not the parti- cular power in question has been or is proposed to be executed; or, (e) any other matter, whether or not in the opinion of the court ejusdem generis with the foregoing envmierations, with reference to which the Governor in Council sees fit to submit any such question; may be referred by the Gover- nor in Council to the Supreme Court for hearing and consideration; and any question touching any of the matters aforesaid, so referred by the Governor in Council, shall be conclusively deemed to be an important question. 2. WTien any such reference is made to the court, it shaU be the duty of the court to hear and consider it, and to answer such question so referred; and the court shall certify to the Governor in Coimcil, for his information, its opinion upon each such question, with the reasons for each such answer; and such opinion shall be pronounced in like manner as in the case of a judgment upon an appeal to the court; and any judge who differs from the opinion of the majority shall in like manner certify his opinion and his reasons." 6 Edw. VII, c. 50, mcorporated as Sec. 60 of R. S. C. 1906, c. 139. The other sections are essentially identical with ss. 3-6 above. "The court, or any two of the judges thereof, shall examine and report upon any private bill or petition for a private bill presented to the Senate or House of Commons, and referred to the court imder any rules or orders made by the Senate or House of Conunons. " R. S. C. 1906, c. 139, Section 61. Ontario An Act for expediting the decision of Constitutional and other provincial Questions. (R.S.O. 1897, c. 84) 262 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT "1. The Lieutenant-Governor in Council may refer to the Court of Appeal or to the High Court for hearing or consideration any matter which he thinks fit to refer, and the Court shall thereupon hear or consider the same. 53 Vic. c. 13, s. 1. 2. The Court is to certify to the Lietutenant-Governor in Council its opinion on the question referred, with the reasons therefor which are to be given in like manner as in the case of a judgment in an ordinary action; and any Judge who differs from the opinion of the majority may in like man- ner certify his opinion with his reasons therefor to the Lieutenant-Governor in Council. 53 Vic. c. 13, s. 2. 3. In case the matter relates to the constitutional validity of any Act which has heretofore been or shall hereafter be passed by the Legislature of this Province, or of some provision in any such Act, the Attorney- General of Canada shall be notified of the hearing in order that he may be heard if he sees fit. 53 Vic. c. 13, s. 3. 4. The Court shall have power to direct that any person interested, or where there is a class of persons interested, any one or more persons as representatives of such class, shall be notified of the hearing, and such persons shall be entitled to be heard. 53 Vic. c. 13, s. 4. 5. "Where any interest affected is not represented by coimsel, the Court may in its discretion request some coimsel to argue the case in such interest, and the reasonable expenses thereof shall be paid out of the Suitors' Fee Fund or otherwise. 53 Vic. c. 13, s. 5. 6. The opinion of the Court shall be deemed a judgment of the Court, and an appeal shall lie therefrom as in the case of a judgment in an action. 53 Vic. c. 13, s. 6. 7. In case of the matter being appealed from the High Court to the Court of Appeal, sections 2, 3, 4, 5 and 6 shall apply in like manner as if the original reference had been to the Court of Appeal. An appeal to Her Majesty in Her Privy Council from a judgment of any Court on a reference under this Act shall not be subject to the restrictions contained in the Revised Statute of this Province respecting appeals to Her Majesty in Her Privy Council. (Rev. Stat. c. 48) 53 Vic. c. 13, s. 7. " Nova Scotia Of the decision of constitutional and other provincial questions. (R. S. N. S. 1900, c. 166) "1. The Govemor-in-Council may refer to the Supreme Court of Nova Scotia, for hearing or consideration, any matter which he thinks fit to refer, and the court shall thereupon hear and consider the same. 1890, c. 9, s. 1. 2. The court shall certify to the Govemor-in-Council its opinion on the matter referred, with the reasons therefor, which are to be given in like APPENDIX n 263 manner as in the case of a judgment in an ordinary action; and any judge who dififers from the opinion of the majority shall, in like marmer, certify his opinion, with his reasons therefor, to the Go vemor-in -Council. 1890, c. 9, s. 2. 3. If the matter relates to the constitutional vaUdity of any Act which has heretofore been, or hereafter is passed by the legislature of this province, or of any provision in any such Act, the Attorney-General of Canada shall be notified of the hearing, in order that he may be heard if he thinks fit. 1890, c. 9, s. 3. 4. The court shall have power to direct that any person interested, or, where there is a class of persons interested, any one or more persons as representatives of such class, shall be notified of the hearing, and such persons shall be entitled to be heard. 1890, c. 9, s. 4. 5. Where any interest affected is not represented by counsel, the court may, in its discretion, request coimsel to argue the case in such interest, and the reasonable expenses thereby occasioned shall be paid out of the gen- eral revenues of the province. 1890, c. 9, s. 5. 6. The opinion of the court upon any such reference, although advisory only, shall, for all purposes of app>eal to the Supreme Court of Canada, or to Her Majesty-in-Coimcil, be treated as a final judgment of the court between parties. 1890, c. 9, s. 6." Manitoba "1. The Lieutenant Governor in Council may refer to the Court of Queen's Bench, or to a judge, for hearing and consideration, any matter which he thinks fit to refer, and the Court of Queen's Bench or judge shall thereupon hear and consider the same. 1891, c. 28, s. 1. 2. The court or judge is to certify to the Lieutenant Governor in Coun- cil its or his opinion on the question referred, with the reasons therefor, which are to be given in like manner as in the case of a judgment in an ordi- nary action; and any judge who differs from the opinion of the majority may, in like manner, certify his opinion, with his reasons therefor, to the Lieutenant Governor in Council. 1891, c. 28, s. 2. 3. In case the matter relates to the constitutional validity of any Act which has heretofore been, or shall hereafter be, passed by the legislature of this province, or of some provision in any such Act, the Attorney General of Canada shall be notified of the hearing, in order to be heard if he sees fit. 1891, c. 28, s. 3. 4. The court or judge shall have power to direct that any person inter- ested, or where there is a class of persons interested, one or more persons as representative of such class, shall be notified of the hearing, and such persons shall be entitled to be heard. 1891, c 28, s. 4. 264 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 5. Where any interest affected is not represented by counsel, the court or judge may in its or his discretion request some counsel to argue the case in such interest, and the reasonable expenses thereof shall be paid by the Provincial Treasurer. 1891, c. 28, s. 5. 6. The opinion of the court or judge shall be deemed a judgment of the court, and an appeal shall lie therefrom as in the case of a judgment in an action. 1891, c. 28, s. 6." Note: These provisions were originally enacted as 53 Vic. c. 16, ss. 1-6 British Columbia "11. The Lieutenant Governor in Council may refer to the Full Court, or to a judge, for hearing and consideration, any matter which he thinks fit to refer, and the Full Court or judge shall thereupon hear and consider the same. R. S. B. C. 1897, c. 56, s. 98. 12. The court or judge is to certify to the Lieutenant Governor in Coimcil its or his opinion on the question referred, with the reasons therefor, which are to be given in like manner as in the case of a judgment in an ordinary action; and any judge who differs from the opinion of the majority may, in like manner, certify his opinion, with his reasons therefor, to the Lieutenant Governor m Council. R. S. B. C. 1897, c. 56, s. 99. 13. In case the matter relates to the constitutional validity of any Act which has heretofore been, or shall hereafter be, passed by the legislature of this province, or of some provision in any such Act, the Attorney General of Canada shall be notified of the hearing, in order to be heard if he sees fit. R. S. B. C. 1897, c. 56, s. 100. 14. The court or judge shall have power to direct that any person interested, or where there is a class of persons interested, one or more persons as representative of such class, shall be notified of the hearing, and such persons shall be entitled to be heard. R. S. B. C. 1897, c. 56, s. 101. 15. The opinion of the court or judge shall be deemed a judgment of the court, and an appeal shall lie therefrom as in the case of a judgment in an action. R. S. B. C. 1897, c. 56, s. 102. 16. The reasons given by the court or members thereof, or the judge, for any judgment under this Act shall, as soon as practicable thereafter, be published in the Brit. Col. Gazette. R. S. B. C. 1897, c. 56, s. 103." The above provisions were originally enacted as L. 1891, c. 5, ss. 1-6. By L. 1907, c. 12, ss. 4-6, "Court of Appeal" was substituted for "Full Court" or "Court" as the Supreme Court was replaced by the Court of Appeal by L. 1907, c. 10. In that form the entire act was reenacted as R. S. B. C. 1911, c. 45. APPENDIX n 265 Quebec Questions referred to the Court of King's Bench by the Lieutenant-Governor in Council. (R. S. Q. 1909, Title III, c. 3) "579. The Lieutenant-Governor in Council may refer to the Court of King's Bench, Appeal side, for hearing and consideration, any question which he deems expedient, and thereupon the court shall hear and consider the same. 61 V., c. 11, s. 1. 580. The court shall send to the Lieutenant-Governor in Council for his information its opinion duly certified upon the questions so referred, giving its reasons in support thereof, in like manner as in the case of judg- ments rendered upon appeals brought before the said court. Any judge who differs from the majority shall, in like manner, give his opinion duly certified and his reasons in support thereof. 61 V., c. 11, s. 2. 581. The court may order that any person interested, or if there is a class of persons, any one or more persons as representing such class, be notified of the hearing upon any reference to the court imder this chapter; and such persons are entitled to be heard. 61 V., c. 11, s. 3. 582. The opinion of the court upon any question referred to it under this chapter is advisory only and cannot be appealed from. 61 V., c. 11, s. 4. 583. The majority of the judges of the Court of King's Bench may make the rules of practice necessary for carrying out the provisions of this chapter. The chief-justice of the Court of King's Bench, or if he be absent or sick, any other judge of that court, may fix any day or days, in or out of term, for the hearing, consideration and decision of the question referred under the authority of this chapter. 61 V., c. 11, s. 5." Saskatchewan An Act respecting the Decision of Constitutional and other Legal Questions. (R. S. S. 1909, c. 57) "1. The Lieutenant Governor in Council may refer to the supreme court of Saskatchewan for hearing or consideration any matter which he th ink s fit to refer and the court shall thereupon hear or consider the same. 1901, c. 11, s. 1. 2. The court is to certify to the Lieutenant Governor in Coimdl its opinion on the question referred with the reasons therefor which are to be given in like manner as in the case of a judgment in an ordinary action; and any judge who differs from the opinion of the majority may in like manner certify his opinion with his reasons therefor to the Lieutenant Governor in Council. 1901, c. 11, s. 2. 3. In case the matter relates to the constitutional validity of any Act which has heretofore been or shall hereafter be passed by the Legislature 266 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT or of any Ordinance passed by the Legislative Assembly of the North- West Territories or of some provision in any such Act or Ordinance the attorney- general for Canada shall be notified of the hearing in order that he may be heard if he sees fit. 1901, c. 11, s. 3. 4. The court shall have power to direct that any person interested or where there is a class of persons interested any one or more persons as representatives of such class shall be notified of the hearing and such persons shall be entitled to be heard. 1901, c. 11, s. 4. 5. Where any interest affected is not represented by counsel the court may in its discretion request coimsel to argue the case in such interest and reasonable expenses thereof shall be paid out of the general revenue fund. 1901, c. 11, s. 5. 6. The opinion of the court shall be deemed a judgment of the court and an appeal shall he therefrom as in the case of a judgment in an action. 1901, c. 11, s. 6." New Brunswick "21. The Court shall have jurisdiction to entertain an action at the instance of either the Attorney General for the Dominion, or the Attorney General of this Province, for a declaration as to the validity of any statute, or any, provision in any statute of this legislature, though no further relief should be prayed or sought; and the action shall be deemed sufficiently constituted if the two officers aforesaid are parties thereto. A judgment in the action shall be appealable like other judgments of the said Court. " Judicature Act of 1906 (6 Edw. VII, c. 37). This was reenacted as section 16 of the Judicature Act of 1909 (9 Edw. vn, c. 5). APPENDIX III Advisory Opinion Provisions in Central and South American States Colombia "If a bill should be objected to on the ground that it is unconstitutional it shall be excepted from the provisions of Article 88. (Permitting repassage by 34 oi both houses). In this case, if the houses insist, the bill shall pass to the Supreme Court, in order that this body, within six days, may decide upon its constitutionality. If the decision of the court should be favorable to the bill, the president shall give it his approval. If the decision should be imfavorable, the bill shall fail and be removed from the calendar." Article 90, of the Constitution of 1886. Annals of Am. Acad., Jan. 1893, Supplement. See also Rodriguez, American Constitutions, II, 337. Panama "If the executive objects to a bill as xmconstitutional, and the assembly insists on its passage, it shall be referred to the Supreme Court of Justice, which shall within six days decide upon its acceptibility. An afl&rmative answer by the court imposes the obligation upon the executive to sanction and promulgate the law. If it is negative, the project shall be placed in the archives." Article 105, of the Constitution of 1904. Rodriguez, American Constitutions, I, 415. Provisions Dealing with the Exerctse of Other Extra-Judicial Functions by the Justices in Central and South American States Colombia "The judges of the Supreme Court shall be entitled to be heard in the discussion of bills relating to civil matters and judicial procedure. " Article 84, of the Constitution of 1886. Annals of Am. Acad., Jan. 1893, Supple- ment. See also Rodriguez, American Constitutions, II, 336. Salvador "Bills not introduced by the Supreme Court of justice, dealing with matters tending to reform or repeal any provision contained in the codes of the Republic, shall not be discussed without hearing the opinion of the said court, and this opinion shall be given either during the same session of the assembly or in the following year, as the importance, urgency or 268 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT length of the bill may demand. This provision is not applicable to laws of political, economic or executive order. " Article 79, of the Constitution of 1886. Rodriguez, American Constitutions, I, 278. Honduras "Whenever a bill not originally emanating from the Supreme Court has for its object the reform or repeal of any provision in the codes of the Republic or of any law relating to the administration of justice, the opinion of that Court shall be requested, before entering into its discussion. The court shall give its opinion within the time which Congress may fix. " Arti- cle 83, of the Constitution of 1904. Rodriguez, American Constitutions, I, 375. Nicaragim "No bill having for its object the amendment or repeal of any pro- vision contained in the Civil, Penal, Commercial, Mining, or Procedure Codes of the Republic, not originating in the Supreme Court of justice, shall be discussed without first hearing the opinion of said court, said opinion to be given according to the importance, urgency, or magnitude of the re- form, either during the same session of the assembly or in the next. " Article 71, of the Constitution of 1905. Rodriguez, American Constitutions, I, 313. APPENDIX IV Cases Cited in the Text It has seemed better to list the cases in chronological order in each state rather than to attempt an alphabetical arrangement where the names of so many cases are identical or at least very similar. The conventional name Opinion of the Justices is supplied for some cases which bear no name in the reports. England Scire facias Commission Case Northumberland's Case Earl of Arundel's Case Thorp's Case Duke of York's Case Stafford's Case Customs' Case Peacham's Case Owen's Case Somerset's Case Commendams Case Y. B. 12 & 13 Edw. Ill, Intro, ci-cv. Fortescue, 392 Rot. Pari. 5 Hen. IV, Nos. 11 &12 Rot. Pari. 27 Hen. VI, No. 18 13 Co. Rep. 63; Rot. Pari. 31 Hen. VI, Nos. 25, 26, 27 & 28 Rot. Pari. 39 Hen. VI, No. 12; Fortescue, 384 Rot. Pari. 1 Hen. VII, Nos. 25 & 26; For- tescue, 389 Hallam, Const'l Hist. I, p. 340 n Bacon's Works IV, pp. 593, 596, 601; 2 How. St. Tr. 871 Bacon's Works IV, pp. 321, 600 Bacon's Works IV, pp. 616-25 Bacon's Works IV, pp. 631, 636 Page 1340 3 1388 1403 8,223 20, 223 1449 4,20 1453 20 1460 21, 22, 223 1485 9,16 1614 26 1614 10, 16, 223 1614 12 1615 12 1616 9 270 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT England Page Stroud, Long et al. 3 How. St. Tr. 235 1629 13 Beckman v. Maplesden Bridg. 60 1662 14 Paty's Case, or The 14 East 92 n; 1704 4, 22, 149, Aylesbury Case, or 14 How. St. Tr. 223 Ashby and White 695 Whiston's Case Burnet's Own Times, p. 867 1711 14, 223 Prince of Wales' Case Fortescue, 401; 15 How. St. Tr. 1717 8, 149 \ 1195 Schism Act Case Fortescue, 385 1718 26,27 Fenwick's Case Fortescue, 385 8 Warships Case Fortescue, 388 1721 27 Ferrer's Case Foster's Cr. Law, p. 138 1760 22 Sackville's Case 2 Eden 371 1760 15, 16, 32, 149 Head v. Head 1 T. & R. 138 1823 24 In re London & Westmin- 2 CI. & Fin. 1834 28,29 ster Bank 191 McNaghten's Case 10 CI. & Fin. 1843 28, 29, 30, 200 165, 201, 214 Bright V. Hutton 3 H. of L. 341 1851 24 In re Schlumberger 9 Mo. P. C. 1 1853 17, 166 Ex parte Co. Council of (1891) 1 Q. B. 1891 18 Kent & Council of Do- 725 ver Allen V. Flood (1898) A. C. 1 1898 23 Trial of Earl Russell (1901) A. C. 446 1901 23 United States Haybum's Case 2 Dall. 409 1792 60, 61, 195, 250 U. S. V. Yale Todd 13 How. 52n 1794 60, 61, 250 Marbury v. Madison 1 Cr. 137 1803 162 Gibbons v. Ogden 9 Wheat. 1 1824 198 Osbom V. Bank of U. S. 9 Wheat. 319 1824 62 Wayman v. Southard 10 Wheat. 46 168 U. S. V. Ferreira 13 How. 40 1851 60,61 Gordon v. U. S. 2 Wall. 561; 1865 61, 62, 63, 117 U. S. 697 249 U. S. V. Klein 13 Wall. 144 1872 63 U. S. V. Jones 119 U. S. 477 1886 63 Chicago, etc. R. R. Co. v. 143 U. S. 339 1891 62 Wellman In re Sanborn 148 U. S. 222 1892 64 APPENDIX IV 271 Colorado Page Wheeler v. No. Colo. Irr. 9 Colo. 248 203, 204, 205 Co. In the m. of the Consti- 9 Colo. 641 Jan. 10, 1887 108 tutionality of S. Rule No.—. In the m. of the Consti- 9 Colo. 623 Jan. 17, 1887 97, 141, 156 tutionality of SB. No. 76 In the m. of the Consti- 9 Colo. 623 Jan. 29, 1887 97, 111, 155, tutionaUty of HB. No. 18 In the m. of the Consti- 159, 216 9 Colo. 639 Feb. 5, 1887 97, 118, 156, tutionality of S.9 of 157 HB. No. 122 In the m. of Sen. Resolu- 9 Colo. 626 Feb. 10, 1887 123, 211 tions, etc. In the m. of the Con?ti- 9 Colo. 625 Feb. 11, 1887 140, 155 tutionality of HB. No. 158 In the m. of HB. No. 166 9 Colo. 628 Feb. 14, 1887 125, 128, 156 In them, of "A Bill for 9 Colo. 629 Feb. 15, 1887 124, 156 an Act to provide for the amicable adjust- ment of grievances and disputes that may arise between employers and employees, and to au- thorize the creation of a Board of Arbitra- tion." In the m. of House Reso- 9 Colo. 622 Feb. 23, 1887 114, 211 lution- (re)-Taxation of patented mining lands In the m. of HB. No. 231 9 Colo. 624 Feb. 24, 1887 97, 107,1118, 155 IM In the m. of Sen. Resolu- 9 Colo. 620 Mar. 7, 1887 53, 127, 174, tion on the Subject of 181, 185, Irrigation 188, 206, 210, 212, 220 In the m. of HB. No. 38 9 Colo. 631 Mar. 7, 1887 98, 155 H In the m. of the Consti- 9 Colo. 635 Mar. 11, 1887 97, 113,1156, tutionality of HB. No. 217 270 & SBB. Nos. 69 & 106 In re Sen. Resolution Re- 9 Colo. 630 Mar. 18, 1887 107, 108, lating to the Recall of 211, 212 Bills Transmitted to His Excellency the Governor for Approval 272 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Colorado Page In the m. of Sen. Resolu- 9 Colo. 632 Apr. 1, 1887 107, 155 tion of Mar. 31, 1887, re Construction of Const. IV 11 in rel. to SB. No. • 56 In the m. of HB. No. 203 9 Colo. 631 Apr. 2, 1887 128, 144. 155 Veto Power — Special Ses- 9 Colo. 642 (Apr. 4, 1887) 100, 103, sion of Gen'l Ass'y 211,213 In re Election of District 11 Colo. 373 1888 140, 153, Judges 199, 230 In the m. of HR. re Con- 12 Colo. 186 Jan. 18, 1889 101,155,212 stitutionality of Legis- lature Redistricting State for Legislative Purposes In re SR.yrel. to Constitu- 12 Colo. 187 Jan. 28, 1889 101,155,212 tionality of Proposed Reapportionment Bill In re SB. Providing for a 12 Colo. 188 Jan. 29, 1889 118, 131, Board of Public Works 151, 155, in the City of Denver 216, 222 In re SR. Relating to Ap- 12 Colo. 287 Feb. 18, 1889 98, 115 propriation of Moneys Belonging to Internal Improvement Fund In re SR. Relating to In- 12 Colo. 285 Feb. 20, 1889 115, 156, t e r n a 1 Improvement 175, 211 Fund Provided for by Act of Cong, of Sept. 4, 1841 In re HR. Relating to 12 Colo. 289 Mar. 2, 1889 98, 155 HB. No. 116 In re SR. Relating to SB. 12 Colo. 290 Mar. 2, 1889 98, 155 No. 1 In re HB. No. 238 12 Colo. 337 Mar. 5, 1889 97, 155 In re SR. Relating to SB. 12 Colo. 339 Mar. 5, 1889 107, 199 No. 45, as passed and approved Feb. 20, 1889 In re HR. Relating to 12 Colo. 359 Mar. 12, 1889 98, 107, 141, HB. No. 218 Concern- 199 Terms of District Court of El Paso Co. In re SR. Relating to SB. 12 Colo. 340 Mar. 16, 1889 98, 140, 155 No. 31 In re HR. Relating to 12 Colo. 395 Mar. 23, 1889 98, 118, 130, HB. No. 349 156 In re Question Pro- 12 Colo. 399 1889 132, 199 pounded by the Gover- nor APPENDIX IV Z/6 Colorado 1 Page District Attorneys. In 12 Colo. 466 1889 46, 49, 50, the m. of the Constitu- 51, 98, 107, tionality of SB. No. 65 124, 148, 175, 176, 185, 188, 189, 194, 197, 199, 200, 203, 205, 206, 208, 211, 213, 217, 219,221,228 In re Appropriations by 13 Colo. 316 1889 115, 116, Gen'l Ass'y 117, 130, 148, 157, 175, 186, 194, 200, 206, 217 In re Funding of Co. In- 15 Colo. 421 1890 146, 148, 205 debtedness In re Speakership of the 15 Colo. 520 1891 106, 148, House of Representa- 175, 205 tives In re Constitutionality of 15 Colo. 578 1891 141, 155, 156 a Court of Appeals In re Constitutionality of 15 Colo. 601 Mar. 5, 1891 155, 217 SB. No. 69 In re HR. No. 25 15 Colo. 602 Mar. 11, 1891 98, 107, 118, 131, 138, 175, 193, 199, 212 In re HB. No. 165 15 Colo. 593, 595 Mar. 12, 1891 98, 118, 156, 159, 192, 216 In re House Resolutions 15 Colo. 598 Mar. 13, 1891 113, 122, Concerning Street Im- 156, 186, provements 188, 189, 192 In re HB. No. 10, Con- 15 Colo. 600 Mar. 30, 1891 121, 156, 192 cerning the Weighing ol Coal People V. Richmond et al 16 Colo. 274 1891 235 In re Gen'l Appropriation 16 Colo. 539 1891 107, 130, 199 Bill Henderson v. People ex 17 Colo. 587 1892 235 rel. Wingate In re Continuing Appro- 18 Colo. 192 Feb. 6, 1893 117, 148, priations 181, 200 In re Loan of School Fund 18 Colo. 195 Feb. 10, 1893 118, 123, 148,156,216 274 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Colorado Page In re Board of Capitol 18 Colo. 220 1893 128, 200 Commissioners In re Kindergarten Schools In re Compensation of 18 Colo. 234 Feb. 17, 1893 123,155,217 18 Colo. 272 Feb. 21, 1893 141, 156 Co. Judges In re Bounties 18 Colo. 273 Feb. 25, 1893 98, 114, 155 In re Extension of Bound- 18 Colo. 288 Mar. 14 1893 98, 126, 156 aries of the City of Den- ver In re University Fund 18 Colo. 398 Mar. 16 1893 119, 123, 175,200,216 In re Emergency Clause 18 Colo. 291 Mar. 18 1893 107, 212 In re Internal Improve- 18 Colo. 317 Mar. 25 1893 115,155,216 ments In re Leasing of State 18 Colo. 359 1893 137,148,200 Lands In re Certificates of In- 18 Colo. 566 1893 130, 200 debtedness In re Priority of Legisla- 19 Colo. 58 1893 52, 117, 119, lative Appropriations 131, 148, 181, 186, 194, 222, 229 In re Canal Certificates 19 Colo. 63 118, 137, 148, 200, 217 Mayor, etc. v. Shattuck 19 Colo. 104 235 In re Governor's Procla- 19 Colo. 333 Jan. 24, 1894 108, 148, 155 mation In re Amendments of Leg- 19 Colo. 356 Feb. 27, 1894 98, 107, 148, islative Bills 155 In re Penitentiary Com- 19 Colo. 409 1894 136, 148, missioners 175, 186, 191, 194, 199 In re Fire and Excise 19 Colo. 482 1894 52, 133, 148, ■ Commissioners 158, 187, 189,217,229 People V. Martin & Peo- 19 Colo. 565 1894 158, 187, ple V. Orr 188, 192, 218, 229, 235 People V. State Board of 20 Colo. 220 235 Equalization People V. McClees 20 Colo. 403 230 City of Denver v. Coule- 20 Colo. 471 235 han In re Appointments by 21 Colo. 14 129, 186, the Governor of Fire, 188, 193, 200 Police and Excise Com- missioners of the City of Denver APPENDIX IV 275 Colorado In re HB. No. 203 In re HB. No. 107 In re Constitutionality of SB. No. 293 In re a Bill Providing that Eight Hours Shall Con stitute a Day's Labor In re Constitutionality of an Act, etc. In re Relief Bills In re Constitutionality of Substitute for SB. No 83 People ex rel. v. LeFevre In re Contracting of State Debt by Loan In re Casual Deficiency Parks V. Soldiers' and Sailors' Home People ex rel. v. District Attorney of Arapahoe Co. In re Constitutionality of SB. No. 196 In re Inheritance Tax, HB. No. 122 In re Bill — to Abolish the use of Scrip in Payment for Labor— HB. No. 147 In re Consolidation of School Districts — SB. No. 23 In re Internal Improve- ment Fund In re State Board of Equalization In re Assessment of Pro- perty by the State Board of Equalization In re Annexation and ConsoUdation of School Districts, SB. No. 9 In re HB. No. 99, to Se- cure to Laborers Pay- ment of Wages in Law- ful Money of the U. S. 21 Colo. 27 21 Colo. 32 21 Colo. 38 21 Colo. 29 21 Colo. 46 21 Colo. 62 21 Colo. 69 21 Colo. 218 21 Colo. 399 21 Colo. 403 22 Colo. 86 23 Colo. 150 23 Colo. 508 23 Colo. 492 23 Colo. 504 23 Colo. 499 24 Colo. 247 24 Colo. 446 25 Colo. 296 26 Colo. 136 26 Colo. 140 Mar. 1, 1895 Mar. 1, 1895 Mar. 1, 1895 Mar. 8, 1895 Mar. 11, 1895 1895 Mar. 28, 1895 Mar. 11, 1897 Mar. 12, 1897 Mar. 27, 1897 Apr. 2, 1897 1897 1897 Feb. 20, 1899 Feb. 20, 1899 Page 98, 99, 124, 155, 156, 157, 217 98, 127, 216 98, 126, 148, 156, 157, 218 98, 124, 155, 156, 157, 159,211,216 98, 108, 156, 200 114, 219 118, 155 229, 235 130, 199 118, 199, 217,219,220 116, 207, 230,235,256 235 115,193,200 98, 110, 155 124, 211, 212,216,220 98, 156, 157, 212 115 130, 148, 186, 188 113, 119, 131, 181, 186, 188, 189 97, 123, 156, 157, 191] 98, 124, 186, 188, 191, 205, 220 276 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Colorado In re SB. No. 142, to Reg- ulate Jury Trials in Civil Cases In re HB. No. 495, to Amend the Constitu- of the State of Colorado In re HB. No. 250, to Create a State Board of Assessors In re AppUcation of Mor gan for Writ of Habeas Corpus C. F. & I. Co. V. State Board of Land Com- missioners In re Leasing of State Lands Stuart V. Nance In re SB. No. 27, to Regu- late Payment of Wages In re SR. No. 7, to Repeal Constitutional Amend- ments People ex rel. v. Sours Denver v. Londoner In re SR. No. 10, Con- cerning Governorship Contest City of Denver v. Iliff In re SB. No. 416 In re HR. No. 10 Questions Propounded by Governor in re Pro- posed Amendments to the Constitution and Initiated and Referred Measures In re Interrogatories of the Senate 26 Colo. 167 26 Colo. 182 26 Colo. 234 26 Colo. 415 14 Colo. App. 84 27 Colo. 99 28 Colo. 194 28 Colo. 359 29 Colo. 350 31 Colo. 369 33 Colo. 104 33 Colo. 307 38 Colo. 357 45 Colo. 394 50 Colo. 71 50 Colo. 84 54 Colo. 166 Mar. 7, 1899 1899 1899 1899 1899 1901 Feb. 4, 1902 Mar. 13, 1905 Apr. 2, 1909 Mar. 6, 1911 1911 Jan. 24, 1913 Page 98, 141, 186, 189 98, 127, 146, 211,212 107, 217 155, 157, 230, 235 236 138, 186, 188, 200 235 98, 124, 186, 191, 205 127, 146, 211,212,216 235 235 106, 129, 189, 126, 152, 190, 191, 200, 205, 212 235 107, 109, 207, 211, 212,219,220 98, 108, 145, 148, 156, 191, 222 191 106, 148, 151, 152, 160, 175, 186, 188, 189, 191, 205, 213, 222, 231 APPENDIX IV 277 Colorado Page In re SR. No. 4 In re SR. No. 9 In re Questions of the Governor In re Questions by the Governor In re Interrogatories of the House 54 Colo. 262 54 Colo. 429 55 Colo. 17 55 Colo. 105 162 Pac. 1144 Feb. 28, 1913 Mar. 26, 1913 Jan. 24, 1917 98, 108, 155, 188, 200, 211, 250 107, 140, 155 117, 130, 148, 199 138, 200 117,200,211 Connecticut Opin. of the Judges of the Supreme Court Opin. of the Judges of the Supreme Court Reply of the Judges of the Supreme Court to the Gen'l Ass'y 30 Conn. 591 32 Conn. 565 33 Conn. 586 1862 1865 1867 71, 143, 180, 201 71, 180 72, 78, 111, 180, 187, 224, 250 Florida In the m. of the Execu- tive Communication of the 14th Oct. 1868 In the m. of the Execu- tive Communication of the 9th of Nov. 1868 In the matter of the Exe- cutive Communication of the 28th Jan. 1869 In the m. of the Execu- tive Communication of Jan. 29th, 1869 In the m. of the Execu- tive Communication of June 2nd, 1870 In the m. of the Execu- tive Communication of Feb. 6th, 1871 In the m. of the Execu- tive Communication of Feb. 1st, 1872 In the m. of the Execu- tive Communication of Feb. 19th, 1872 In the m. of the Execu- tive Communication of Feb. 29th, 1872 12 Fla. 651 12 Fla. 653 12 Fla. 686 12 Fla. 689 13 Fla. 687 13 Fla. 699 14 Fla. 277 14 Fla. 283 14 Fla. 285 Oct. 19, 1868 Nov. 24, 1868 Jan. 29, 1869 June 6, 1870 Feb. 11-25, 1871 Feb. 5, 1872 Feb. 19, 1872 Mar. 1, 1872 47, 128, 148 47, 105, 128, 139, 150, 158, 174, 179, 192, 194 47, 148, 174, 217, 224 130, 150, 152 146, 151 114, 151 128, 151 108,117,148 108, 148 278 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Florida Page In the m. of the Execu- 14 Fla. 289 Apr. 29, 1872 138, 150, tive Communication of 151, 174, Apr. 17th, 1872 179, 224 In the m. of the Execu- 14 Fla. 318 Sept. 27, 1872 148 tive Communication of Sept. 23rd, 1872 In the m. of the Execu- 14 Fla. 320 Jan. 24, 1873 47, 125, 140, tive Commimication of 148 Jan. 16th, 1873 In the m. of the Execu- 15 Fla. 735 Oct. 28, 1875 140, 149 tive Communication of Oct. 5th, 1875 In the m. of the Execu- 15 Fla. 739 Nov. 9-15, 1875 137, 151 tive Commimication of Nov. 8th, 1875 Advisory Opinion. In 16 Fla. 841 Jan. 19, 1877 140, 149 the m. of the Tenure of OflBice of Judges of the Circuit Courts In re Executive Commim- 23 Fla. 297 May 10, 1887 48, 54, 127, ication Concerning 149, 174, Powers of Legislature 179 Vacancies in Elective Co. 25 Fla. 426 Jan. 16, 1889 132 Officers In re Advisory Opin. to 31 Fla. 1 Jan. 20, 1893 137 the Governor In re Advisory Opin, to 34 Fla. 500 Jan. 5, 1895 145 the Governor In re Opin. of Supreme 39 Fla. 397 Feb. 12, 1897 136, 194, 197 Court In re Advisory Opin. 43 Fla. 305 Oct. 8, 1901 48, 108, 130 In re Advisory Opin. to 45 Fla. 154 May 5, 1903 132, 140 the Governor In re Members of Legis- 49 Fla. 269 July 28, 1905 132 lature Advisory Opin. to Gover- 50 Fla. 169 July 29, 1905 117, 197 nor In re Opin. of Justices 54 Fla. 136 July 17, 1907 130, 148, 197 Advisory Opin. to the 61 Fla. 1 May 20, 1911 138, 148 Governor In re Advisory Opin. to 62 Fla. 7 June 22, 1911 135, 150 Governor In re Opin. of Judges 62 Fla. 4 July 17, 1911 131, 197 In re Opin. of Judges 62 Fla. 1 Jan. 8, 1912 132 In re Advisory Opin. to 64 Fla. 1 Sept. 24, 1912 131, 145, 197 Governor In re Advisory Opin. to 64 Fla. 16 Sept. 26, 1912 132 the Governor In re Advisory Opin. to 64 Fla. 21 Sept. 28, 1912 135 the Governor APPENDIX IV 279 Florida Page In re Advisory Opin. to Governor In re Advisory Opin. to the Governor In re Opin. of Justices Opin. of the Justices In re Opin. of the Jus- tices In re Opin.s of the Jus- tices In re Opin. of the Jus- tices. In re Circuit Judges 64 Fla. 168 65 Fla. 434 67 Fla. 423 67 Fla. 489 68 Fla. 560 69 Fla. 632 • 69 Fla. 653 Dec. 14, 1912 May 14, 1913 Apr. 30, 1914 May 20, 1914 Dec. 17, 1914 May 21, 1915 June 2, 1915 133 131 132, 140, 141 133, 140 137, 140, 197 133, 141, 150, 197, 224 133, 140, 141, 197 Illinois W People ex rel. v. Bissell 19 111. 229 1857 70, 249 Iowa Morrison v. Springer 15 la. 304 72 Kentucky Opin. of the Judges of the Court of Appeals In re Board of Sinking Fund Commissioners 79 Ky. 621 32 S. W. 414 1881 1895 73, 132, 180 73, 139, 177, 180, 191 Maine Opin. of the Justices , Opin. of the Justices Opin. of the Justices Opin. of the Justices Opin. of the Justices Opin. of the Justices Opin. of the Justices Opin. of the Justices Opin. 6f the Justices Opin. of the Justices Opin. of the Justices Opin. of the Justices Opin. of the Justices Opin.s of the Justices" of the S. J. Court ^ 3 Me. 477 3 Me. 481 2 Me. 439 3 Me. 484 3 Me. 487 6 Me. 486 6 Me. 506 6 Me. 514 7 Me. 483 7 Me. 492 7 Me. 497 7 Me. 502 16 Me. 479 18 Me. 458 Mar. 6, 1821 Feb. 15, 1822 Sept. 18, 1822 Feb. 18, 1825 (Feb. 26, 1825) (Jan. 11, 1826) Jan. 30-Feb. 4, 1830 Feb. 4-10, 1830 Feb. 15, 1830 (Jan. 26, 1831) June, 1831 Sept., 1831 (Feb. 11, 1840) (Feb. 4, 1842) 41,100 41, 128 41, 128, 219 140, 150, 151 152 101, 143, 150, 151, 152, 159 129. 150. 151 102. 104. 152 102, 103, 104, 136 142, 143 142, 143 130 126, 154, 206, 219 100, 101, 102, 110, 150, 217 280 DEPARTMENTAL COOPERATION IN STATE GOVERNAIENT Maine Page Opin.s of the Justices of 25 Me. 567 (Nov. 6, 1845) 133, 143 the S. J. Court Opin. of the Justices 33 Me. 587 (May 31, 1851) 100,102,217 Const'l Law 35 Me. 563 Jan., 1854 102, 150 Statement of Facts, and Questions Opin.s of the Justices of 38 Me. 597 (Feb. 15, 1855) 131, 133, 143 44 Me. 505 (Mar. 26, 1857) 143, 150 the S. J. Court Opin. of the Justices of 46 Me. 561 Feb. 1861 126, 137, 150 the S. J. Court on the Constitutionality of the Personal Liberty Laws of the State of Maine Opin. of the Justices 52 Me. 595 July 2, 1863 146 Opin. of the Justices of 50 Me. 607 Dec. 23, 1863 the S. J. Court Opin. of the Justices 53 Me. 587 Feb. 18, 1867 118 TaxRtion of Nat'l Banks 53 Me. 594 Feb. 26— Mar. 28, 1867 113, 150 Opin. of the Justices 54 Me. 602 Dec. 10, 1867 133, 144, 150 State V. Cleveland 58 Me. 564 Dec. 1870 136, 150, 167,181,225 Opin. of the Justices 58 Me. 590 Feb. 10-13, 1871 118, 121, 150, 151, 194, 206, 225 Thompson v. Pittston 59 Me. 545 1871 235 Opin.s of the Justices of 64 Me. 588 Nov. 28— Dec. 41, 133, 144, the S. J. Court 12, 1871 150 Allen V. Jay 60 Me. 124 1872 235 Opin. of the Justices of 61 Me. 601 Aug. 10, 1872 128 the S. J. Court Opin.s of the Justices of 62 Me. 596 July 16, 1874 125, 128, 150 the S. J. Court Opin. of the Justices of 64 Me. 596 Dec. 6, 1875 128, 133, 143 the S. J. Court Opin.s of the Justices of 68 Me. 582 Feb. 9, 1876 110 the S. J. Court Opin.s of the Justices of 68 Me. 587 Dec. 22, 1877 133, 143 the S. J. Court Opin.s of the Justices of 68 Me. 589 Feb. 19— Mar. 143, 213 the S. J. Court 11, 1878 Opin.s of the Justices of 68 Me. 593 June 20, 1878 146, 152 the S. J. Court Opin.s of the Justices of 68 Me. 594 June 20, 1878 140, 141, 152 the S. J. Court Opin.s of the Justices of 69 Me. 585 126 the S. J. Court Opin.s of the Justices of 69 Me. 596 Mar. 10, 1879 146 the S. J. Court APPENDIX IV 281 Maine Page Questions Submitted, etc. 70 Me. 560 Jan. 3, 1880 102, 104, with the Answers of the 133, 143, Justices of the S. J. 159, 225 Court Statement and Questions 70 Me. 570 Jan. 16, 1880 41, 102, 103 Submitted— with the 128, 133, Answers of the Justices 143, 152. of the S. J. Court 179,210,226 Statement and Questions 70 Me. 600 Jan. 17, 1880 102, 103, Submitted with An- . 133, 159, swers of the Justices of 179, 210. the S. J. Court 225, 249 Question Submitted— 72 Me. 542 Sept. 1, 1881 132, 150, with Answers of the 171, 194, Justices of the S. J. 210, 227 Court In re State Bonds 81 Me. 602 Apr. 1, 1889 118 Donnell v. Joy 85 Me. 119 235 Bangor v. Frankfort 85 Me. 128 235 Question Submitted by 85 Me. 545 Sept. 7, 1891 133, 171 the Governor with An- swers of the Justices of the S. J. Court In re Pardoning Power of 85 Me. 547 1893 135 Governor and Council Opin.s of the Justices 95 Me. 564 Dec. 2, 1901 101, 103, 104, 151, 152, 171, 172, 194, 208,213,227 In re Opin, of Justices 97 Me. 590 July 1, 1903 121 In re State Taxation 97 Me. 595 July 1, 1903 111,213 In re Opin. of the Justices 99 Me. 515 Feb. 27, 1905 118, 150 In re R. R. Taxation 102 Me. 527 Mar. 20, 1907 111 In re Opin. of the Justices 103 Me. 506 Mar. 10, 1908 104, 122, 151, 171, 172, 213, 214, 227 In re Opin. of the Justices 108 Me. 545 Oct. 30, 1911 Sawyer v. Gilmore 109 Me. 169 1912 227, 235 Laughlin v. City of Port- land In re Opin. of the Jus- 111 Me. 486 Apr. 4, 1914 227, 235 114 Me. 557 Aug. 12, 1915 134, 144 tices. Initiative and Referendum 282 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Massachusetts Page Opin, of the Justices 126 Mass. 547 Feb. 22, 1781 33, 34, 118, 147, 158, 220, 256 Opin. of the Justices 14 Mass. 470 Nov. 12, 1784 34, 35, 125 Opin, of the Justices 14 Mass. 472 Nov., 1787 34, 35, 125 Opin. of the Justices 3 Mass. 567 May 9, 1791 34, 107 Opin. of the Justices 3 Mass. 568 Jan. 3, 1807 34, 40, 143, 178 179, 181 Commonwealth v. Smith 9 Mass. 530 1810 Opin. of the Justices 7 Mass. 523 Feb. 15, 1811 100 Opin. of the Justices 8 Mass. 548 1812 35, 134 Opin. of the Justices 15 Mass. 536 1815 101, 143 Opin. of the Justices 7 Pick. 130n May 30, 1825 35, 166, 183, 187, 191, 193, 223 Opin. of the Justices 3 Pick. 517 1826 101 Adams v. Buckhn 7 Pick. 125 Apr., 1829 187,223,235 Opin. of the Justices 11 Pick. 537 Feb. 14, 1832 142 Opin. of the Justices 6 Cush. 573 Jan. 24, 1833 35, 145 Opin. of the Justices 18 Pick. 575 Mar. 31, 1836 143 Opin. of the Justices 1 Allen 197n Oct. 10, 1837 35, 134 Opin. of the Justices 22 Pick. 571 Oct. 18, 1838 125, 178 Opin. of the Justices 6 Cush. 575 Mar. 29, 1839 35, 100 Opin. of the Justices 23 Pick. 547 Feb. 17, 1840 101, 143 Opin. of the Justices 3 Cush. 584 Apr. 6, 1840 35, 139, 193 Opin. of the Justices 1 Mete. 572 Mar. 1, 1841 146, 193 Opin. of the Justices 1 Mete. 580 Mar. 10, 1841 110, 123, 142, 193 Opin. of the Justices 5 Mete. 587 Mar. 15, 1843 110,142,193 Opin. of the Justices 5 Mete. 591 Mar. 9, 1844 142, 193, 256 166, 183, Opin. of the Justices 5 Mete. 596 Mar. 13, 1844 187, 193, 217, 224 Opin. of the Justices 3 Cush. 586 Mar. 14, 1849 134 C^in. of the Justices 6 Cush. 578 Mar. 28, 1851 125, 143 C^in, of the Justices 9 Cush. 604 Sept. 20, 1852 166, 193, 217,218 Opin. of the Justices 11 Cush. 604 Nov. 17, 1853 135, 178 Opin. of the Justices 3 Gray 601 July 2, 1855 128, 129, 132, 139, 140 Opin. of the Justices 8 Gray 20 Mar. 26, 1857 193 Opin. of the Justices 10 Gray 613 Mar. 11, 1858 100 C^in. of the Justices 13 Gray 618 Aug. 20, 1859 135 Opin. of the Justices 14 Gray 614 Dec. 23, 1859 125, 136 Opin. of the Justices 9 Allen 585 Nov. 3, 1864 140. 181, 193 Green v. Commonwealth 12 Allen 155 140; 181, 193,206,224 Opin. of the Justices 13 Allen 593 Jan. 29, 1867 130, 178 APPENDIX IV 283 Massachusetts Page Opin. of the Justices 99 Mass. 636 Feb. 25, 1868 107 Opin. of the Justices 107 Mass. 604 June 29, 1871 140 Opin. of the Justices 115 Mass. 602 Feb. 20, 1874 158 Opin. of the Justices 117 Mass. 599 Mar. 5, 1875 134 Opin. of the Justices 117 Mass. 603 Apr. 20, 1875 125 Opin. of the Justices 120 Mass. 600 May 23, 1876 135, 217 Opin. of the Justices 122 Mass. 594 Mar. 7, 1877 101 Opin. of the Justices 122 Mass. 600 May 14, 1877 38, 101, 103, 167, 168, 170, 171, 172, 173, 176, 193, 209,210,224 Opin. of the Justices 124 Mass. 596 Apr. 8, 1878 Opin. of the Justices 126 Mass. 557 Dec. 31, 1878 18, 30, 118, 170, 179, 191, 206, 209, 216, 217, 221, 256 Opin. of the Justices 126 Mass. 603 Mar. 10, 1879 129 Opm. of the Justices 132 Mass. 600 Jan. 3, 1882 134, 193 Opin. of the Justices 135 Mass. 594 June 5, 1883 107 Opin. of the Justices 136 Mass. 578 Nov. 19, 1883 128, 132 Opin. of the Justices 136 Mass. 583 Nov. 27, 1883 134, 144 Opin. of the Justices 138 Mass. 601 Feb. 24, 1885 125, 193 Opin. of the Justices 142 Mass. 601 May 27, 1886 100 Opin. of the Justices to 145 Mass. 587 Sept. 22, 1887 132,193,215 the Governor and Council Functions of Judiciary 148 Mass. 623 May 4, 1889 159, 170, 184, 196, 208, 209, 224, 236 Opin. of the Justices 150 Mass. 586 Mar. 18, 1890 132 In re PubUc Lighting 150 Mass. 592 May 28, 1890 121, 193 In re Power of Legislature 150 Mass. 598 June 4, 1890 171, 172, 196 to Require Opinion Opin. of the Justices 154 Mass. 603 Dec. 31, 1891 128, 131, 193 Opin. of the Justices. In 155 Mass. 598 May 7, 1892 121, 193 re HB. No. 519 Opin. of the Justices 157 Mass. 595 Apr. 28, 1893 100, 125 In re Municipal Suffrage 160 Mass. 586 Feb. 28, 1894 144, 149, 150 to Women Watson V. Needham 161 Mass. 404 1894 236 Citizens' Gas Light Co. v. 161 Mass. 432 1894 236 Wakefield In re HB. No. 1230 163 Mass. 589 May 6, 1895 123 In re Opin. of the Justices 165 Mass. 599 Apr. 25, 1896 125, 128 284 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Massachusetts Page Opin. of the Justices 166 Mass. 589 Sept. 26, 1896 132, 150 In re Opin. of the Justices 167 Mass. 599 Feb. 25, 1897 137 In re Opin. of the Justices 175 Mass. 599 June 5, 1900 114 In re HB. No. 1291 178 Mass. 605 Apr. 25, 1901 143, 150 In re Municipal Fuel 182 Mass. 605 Jan. 28, 1903 121, 150 Plants In re Bounties to Veter- 186 Mass. 603 Sept. 21, 1904 107, 113, ans 114,206 In re Opin. of the Justices 190 Mass. 605 Apr. 30, 1906 117 In re Opin. of the Justices 190 Mass. 611 Apr. 30, 1906 114, 171, 184, 189, 206, 207, 209, 210, 217, 218, 224, 236 In re Opin. of the Justices 190 Mass. 616 May 29, 1906 135 Farwell v. Boston 192 Mass. 15 1906 235 In re Opin. of the Justices 193 Mass. 605 Apr. 30, 1907 120, 152, 191 In re Opin. of the Justices 195 Mass. 607 Mar. 23, 1908 110 Nichols V. Election Com- 196 Mass. 410 1907 235 missioners Opin. of the Justices 196 Mass. 603 May 21, 1908 110,113,152 In re Opin. of the Justices 201 Mass. 609 May 18, 1909 135 to the Governor and Council In re Opin. of the Justices 204 Mass. 607 Mar. 4, 1910 122 In re Opin. of the Justices 204 Mass. 616 Mar. 31, 1910 122 In re Opin. of the Justices 207 Mass. 601 Mar. 10, 1911 120 In re C^in. of the Justices 207 Mass. 606 Apr. 4, 1911 141 In re Opin. of the Justices 208 Mass. 603 Apr. 17, 1911 122 In re Opin. of the Justices 208 Mass. 607 Apr. 17, 1911 120 In re Opin. of the Justices 208 Mass. 610 Apr. 17, 1911 116, 130 In re Opin. of the Justices 208 Mass. 614 Apr. 28, 1911 107, 109, 209 to the House of Repre- sentatives In re Opin. of Justices 208 Mass. 616 May 15, 1911 110 In re Opin. of Justices 208 Mass. 619 May 16, 1911 123 In re C^in. of Justices to Senate In re Opin. of Justices 208 Mass. 625 June 13, 1911 122 209 Mass. 607 July 24, 1911 124,158,219 In re Opin. of the Justices 210 Mass. 609 Jan. 12, 1912 135, 178 In re Opin. of the Justices 211 Mass. 605 May 3, 1912 120 In re Opin. of the Justices 211 Mass. 608 May 6, 1912 114, 150, 209, 210 In re Opin. of the Justices 211 Mass. 624 May 6, 1912 114, 122 In re C^in. of the Justices 211 Mass. 618 May 8, 1912 124 In re Opin. of the Justices 211 Mass. 620 May 27, 1912 40, 120, 178 In re Opin. of the Justices 211 Mass. 630 May 31, 1912 40, 129, 159, 178,209,215 APPENDIX IV 285 Massachusetts Page In re Opin. of the Justices In re Opin. of the Justices In re Opin. of the Justices Attorney-General v. Hav- erhill Gas Light Co. McNichol's Case In re Opin. of the Justices In re Opin. of the Justices Young V. Duncan Woods V. Wobum In re Opin. of the Jus- tices. In re Census In re Opin. of the Jus- tices. In re Taxation In re Opin. of the Justices Dinan v. Swig In re Opin. of the Justices In re Opin. of the Justices 211 Mass. 632 214 Mass. 599 214 Mass. 602 215 Mass. 394 215 Mass. 497 216 Mass. 605 217 Mass. 607 218 Mass. 346 220 Mass. 416 220 Mass. 609 220 Mass. 613 220 Mass. 627 223 Mass. 516 115N. E.921 115 N. E.978 June 21, 1912 June 2, 1913 June 10, 1913 1913 Mar. 20, 1914 May, 1914 1914 1915 Apr., 1915 Apr. 12, 1915 May 3, 1915 1916 Apr. 16, 1917 Apr. 23, 1917 129, 159 114, 224 41, 178, 224, 235, 256 235 158 128,209,210 111, 171, 212, 216 224, 235 224, 235 100, 126 110, 113 124, 150 217,235,250 144,196,212 120, 188 Minnesota In the m. of the Applica- tion of the Senate Rice V. Austin State V. Dike 10 Minn. 78 19 Minn. 103 20 Minn. 363 1865 70, 71, 78, 180, 195, 250, 257 71, 138, 180 71, 138, 180 Missouri Advisory- Constitutional Opinion of the Judges of the Supreme Court Advisory Constitutional Opinion of the Judges of the Supreme Court Advisory Constitutional Opinion of the Judges of the Supreme Court Opin. of Court in Re- sponse to Governor Opin. of the Court in Re- sponse to Governor In the m. of the No. Mo. R. R. 37 Mo. 129 37 Mo. 135 * 37 Mo. 139 43 Mo. 351 49 Mo. 216 51 Mo. 586 1865 1865 1866 1869 Jan. 23, 1872 1873 44,114 44, 45, 121, 173, 176, 184, 193, 197, 203, 205, 208, 210, 216 45, 118, 197 45, 141 45, 130, 150, 175 45, 119, 173, 184, 194, 231 286 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Missouri Page Opin. of Supreme Court Judges on Township Organization Law Opin. of the Judges of the Supreme Court in Re- sponse to a Resolution of the Senate Opin. of the Court in Re- sponse to the Resolu- tion of the General As- sembly In the m. of Inquiries Submitted by His Ex- cellency Governor Silas Woodson 55 Mo. 295 55 Mo. 215 55 Mo. 497 58 Mo. 369 Feb. 3, 1873 1874 Feb. 23, 1874 1874 45, 150, 197 221 45, 140, 148 45, 119, 173, 184, 194, 208 45, 138, 148, 184, 193, 197 Nebraska In re RR. Commissioners In re School Fund In re Board of Public Lands and Buildings In re Babcock In re State Warrants In re Appropriations for Deputies, etc. In re Senate File 31 In re Quaere of the Pro- cedure of the Two Houses In re House Roll 284 Miller v. Wheeler In re Board of Purchase and Supplies for State Institutions State V. Fleming 15 Nebr. 679 15 Nebr. 684 18 Nebr. 340 21 Nebr. 500 25 Nebr. 659 25 Nebr. 662 25 Nebr. 864 31 Nebr. 262 31 Nebr. 505 33 Nebr. 765 37 Nebr. 425 70 Nebr. 523 1883 1883 1885 1887 1889 1889 1889 1891 Mar. 10, 1891 1893 1903 75, 138, 180, 206,224,256 75, 123, 130, 180 75, 131, 180 75, 137, 180, 201 75, 180 75, 115, 137, 180, 192, 201 75, 108, 145, 180, 207 75, 126, 129, 180, 191, 201, 220 75, 118, 180, 191,207,219 76 76, 78, 137, 177, 180, 186, 195, 201, 206 76, 250 New Hampshire Merrill v. Sherburne Opin. of the Court An Opin. Delivered by the Court in Pursuance 1 N. H. 199 62 N. H. 704 4 N. H. 565 Nov. 25, 1816 (June 25, 1827) 169 39, 121, 132, 183, 203 110, 126 APPENDIX IV 287 New Hampshire Page of a Resolve of the House of Representa- tives Opinion 8 N. H. 573 June, 1835 100 An Opin. of the Justices 7 N. H. 599 June, 1835 112, 126 of the Superior Court of Judicature, etc. Opin. of the Justices of 25 N. H. 537 Nov. 1852 112, 121, the Superior Court of 167, 206, Judicature, etc. 217,220,224 Judicial Opinion 35 N. H. 579 Feb. 5, 1858 107, 149 Opin. of the Justices of 41 N. H. 550 June 15, 1860 141 the Supreme Judicial Court Opin. of the Justices of 41 N. H. 553 June, 1861 112,150,220 the Supreme Judicial Court Opin. of Justices 44 N. H. 633 June 26, 1863 71, 112, 143 Opin. of the Justices of 45 N. H. 590 July 22, 1864 132 the Supreme Judicial Court, etc. Opin. of the Justices of 45 N. H. 593 July 29, 1864 217, 219 the Supreme Judicial Court, etc. Opin. of the Justices of 45 N. H. 595 Aug., 1864 112, 143, the Supreme Judicial 152, 220 Court, etc. Opinion 45 N. H. 607 Sept. 23, 1864 107,112,217 Opin. of the Justices 53 N. H. 634 Mar. 19, 1866 39, 110, 179, 216 Opin. of the Justices 53 N. H. 640 May 28, 1873 133, 179, 207 Opin. of the Justices 52 N. H. 622 Aug. 20, 1873 107, 149, 256 C^in. of the Justices 56 N. H. 570 June 8, 1875 101, 103, 134 Opin. of the Justices 56 N. H. 574 June 8, 1875 101, 103, 134,218,250 Opin. of the Court 58 N. H. 621 Apr. 23, 1877 134 0]Din. of the Justices 62 N. H. 706 July 23, 1877 39, 133, 179 Opin. of the Court 58 N. H. 623 July 10, 1879 113,172,220 Opin. of the Court 60 N. H. 585 June 10, 1881 126, 150, 172, 206, 209, 221 Opin. of the Justices 62 N. H. 706 Aug. 20, 1883 128, 133 Opin, of the Court 63 N. H. 625 July 30, 1885 106 In re School Law Manual 63 N. H. 574 Mar. 12, 1886 179 Opin. of the Justices 76 N. H. 612 July 22, 1889 39, 145 C^in. of the Justices. In 65 N. H. 673 Dec, 1889 re Chap. 304, Laws 1887 Bingham v. Jewett 66 N. H. 382 Jan. 6, 1891 235 288 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT New Hampshire Page In re Opin. of the Justices 66 N. H. 629 Mar. 31, 1891 152,191,220 Dow V. R. R. 67 N. H. 1 1886 235 Opin. of the Justices 67 N. H. 601 Sept. 6, 1892 146, 172, 194, 209 Opin. of Justices 70 N. H. 638 Feb. 13, 1899 126, 137, 194,217,224 Amoskeag Mfg. Co. v. 70 N. H. 336 1900 235 Manchester Opin. of the Justices 70 N. H. 640 (Jan. 3, 1901) 138,147,213 Opin. of the Justices 70 N. H. 642 Mar. 6, 1901 118 In re Probate Blanks 71 N. H. 621 Mar. 8, 1902 147, 179 Opin. of the Justices 72 N. H. 601 Feb. 25, 1903 137,191,210 0pm. of the Justices 72 N. H. 605 July 25, 1903 137, 210 In re Opin. of the Justices 73 N. H. 618 Feb. 20, 1905 144.216,219 In re Opin. of the Justices 73 N. H. 621 Jan. 2, 1906 132; 172, 192, 210 In re Opin. of the Justices 73 N. H. 625 Mar. 13, 1906 137, 209, 254 In re Opin. of Justices 74 N. H. 606 July 19, 1907 112, 137, 150,151,209 Wyatt V. State Board of Equalization In re Opin. of the Justices 74 N. H. 552 June 2, 1908 235, 249 75 N. H. 613 Apr. 6, 1909 128, 172, 191,194,210 In re Opin. of the Justices 75 N. H. 622 Feb. 1, 1910 123, 130 In re Opin. of Justices 75 N. H. 624 Feb. 1, 1910 137 Murchie v. Clifford 76 N. H. 99 1911 235 In re Opin. of the Justices 76 N. H. 586 Feb. 28, 1911 144 In re Opin. of the Justices 76 N. H. 588 Mar. 6, 1911 110, 112, 113, 192 In re Opin. of the Justices 76 N. H. 597 Mar. 20, 1911 111, 172, 194, 206, 209, 219, 220, 224 In re Opin. of the Justices 76 N. H. 601 Oct. 4, 1911 107, 130, 194, 217 In re Opin. of the Justices 76 N. H. 609 Jan. 24, 1913 112, 113 French v. Lyme 77 N. H. 63 235 In re Opin. of the Justices 77 N. H. 606 Nov. 4, 1914 137, 191 In re Opin. of the Justices 77 N. H. 611 Mar. 1, 1915 110, 112, 113,150,216 In re Opin. of the Justices 100 Atl. 49 Feb. 15, 1917 114 In re Opin. of the Justices 99 Atl. 999 Feb. 27, 1917 125 New Jersey In re "An Act to Amend 83 N. J. L. 303 Sept. 27, 1912 93, 109, 180, an Act Entitled 'An 191, 225 Act Concerning Public Utilities' " APPENDIX IV 289 Page New York Livingston v. Vanlngen 9 Johns. 507 1812 240 Gibbons v. Ogden 17 Johns. 488 1820 240 People V. Green 1 Denio. 614 1845 66, 136, 180, 191 Opin. of the Justices Deb. Mass. 1846 66, 126, 145, Conv. 1853, I, 180, 219, 220 p. 138 Matter of Madden 148 N. Y. 136 1895 213, 249 Matter of Emmett 150 N. Y. 538 1896 249 Matter of Fairchild 151 N. Y. 359 1897 213, 249 Matter of Norton 158 N. Y. 130 1899 213, 249 Cataract Power Co. v. 115N.Y.Supp. 1909 67, 177 Buffalo 1045 North Carolina Opin. of the Justices 31 N. C. App. 1849 68, 142, 180, 191,256 69, 135, 180, In the m. of Hughes 61 N. C. 57 1866 249 Opins. of the Justices of 64 N. C. 785 1870 68, 78, 100, the Supreme Court, etc. 180, 250, 254 Ohio State V. Baughman 38 Ohio St. 455 1882 74, 78, 127, 177, 180, 249 Oklahoma State V. Johnson 21 Okla. 40 May 6, 1908 77, 136, 224 In re Opin. of the Judges 25 Okla. 76 Nov. 9, 1909 77, 136, 250 Opin. of the Judges 3 Okla. Cr. 315 Dec. 13, 1909 77, 136, 224 In re Opin. of the . udges 4 Oya. Cr. 594 Jan. 5, 1911 77, 136 In re Opin. of the , udges 6 Okla. Cr. 18 May 29, 1911 77, 136, 224 In re Opin. of Judges 6 Okla. Cr. 210 Oct. 10, 1911 77, 136, 224 In re Opin. of the Judges 8 Okla. Cr. 467 Dec. 31, 1912 78, 136, 181, 187 Pennsylvania Respublica v. DeLong- 1 Ball. Ill 1784 64, 135, 180, champs 191 Report of the Judges of 3 Binney 595 1808 65, 146, 147 the Supreme Court, etc. Chase v. Miller 180, 224 Am. L. Reg. 1 > 72 (N. S.) 146 290 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Rhode Island Page Trevett v. Weeden Thayer, Cases I, p. 73 42, 147 Opin. of the Supreme 3 R. I. 299 June 14, 1854 42. 126, 141, Court 172 Taylor v. P lace 4 R. I. 324 169, 206, 224,249,250 Opin. of the Judges of the 4 R. I. 585 Oct. 24, 1857 128 Supreme Court, etc. Opin.s of the Judges of 4 R. I. 587 Nov. 23, 1857 130 the Supreme Court, etc. Opin.s of the Judges of 4 R. I. 588 Jan. 7, 1858 130 the Supreme Court, etc. Opin.s of the Judges of 4 R. I. 583 Feb. 3, 1858 135 the Supreme Court, etc. Opin. of the Judges of the 5 R. I. 598 Oct. 7, 1858 134 Supreme Court, etc. In re the Registry Laws 12 R. I. 580 Nov. 12, 1877 142 In re the Voting Laws 12 R. I. 586 Mar. 30, 1878 142 In re the Polling Lists 13 R. 1. 729 Apr. 13, 1881 142 In re the Liquor Loca- 13 R. I. 733 July 28, 1881 tions In re the Providence Vo- 13 R. I. 737 Apr. 11, 1882 142 ters In re the Realty Voters 14 R. I. 645 Nov. 16, 1882 142 In re the Constitutional 14 R. I. 649 Mar. 30, 1883 126, 145, Convention 219, 220 In re the Newport Char- ter In re the Census Superin- 14 R. I. 655 Apr. 12, 1883 142 15 R. I. 614 Apr. 24, 1885 131 tendent In re the Plurality Elec- 15 R. I. 617 Feb. 9, 1887 144 tions In re the Representation Vacancy In re the Congressional 15 R. I. 621 Feb. 9, 1887 131 15 R. I. 624 Apr. 7, 1887 126, 134 Election In re the Investigating 16 R. I. 751 Oct. 5, 1887 131 Commission In re the Constitutional 16 R. I. 754 Nov. 24, 1888 142 Amendment In re the Narragansett 16 R. I. 761 Jan. 16, 1889 144 Election In re the Ballot Act 16 R. I. 766 Jan. 22, 1890 143 In re Canvassers' Powers 17 R. I. 809 Oct. 4, 1890 142 In re the Vote Marks 17 R. I. 812 Oct. 28, 1890 144 In re the Agricultural 17 R. I. 815 Dec. 2, 1890 Fimds In re Building Inspectors 17 R. I. 819 Jan. 17, 1891 In re the Representative 17 R. I. 820 Feb. 6, 1891 144 Election APPENDIX IV 291 Rhode Island Page In re the Ballot Provision 17 R. I. 825 Mar. 3, 1891 143 Opin. of the Justices 18 R. I. 824 1893 106, 137, 144 In re Qualification of Vo- ters Opin. of the Justices. In 19 R. I. 614 July 23, 1896 142 19 R. I. 729 143. 150 re Voting Machine Opin. of the Justices 22 R. I. 651 Nov. 21, 1900 142 In re Police Commission- 22 R. I. 654 Apr. 30, 1901 137 ers In re Voting Machines 23 R. I. 630 Oct. 23, 1901 143 In re Opin. of Judges 23 R. I. 635 Feb. 6, 1902 140 In re Opin. of the Justices 24 R. I. 625 Mar. 20, 1902 140 Opin. to the Governor 24 R. I. 630 June 14, 1902 142 In re Ten Hour Law for 24 R. I. 603 June 27, 1902 150 Street Ry. Corpora- tions In re Election of School 28 R. I. 629 Mar. 2, 1903 42,144 Committee of City of Woonsocket In re Abolishing School 27 R. I. 598 Apr. 10, 1905 114, 123, 153 Districts In re R. R. Commissioner 28 R. I. 602 Apr. 1, 1907 131 In re Decision of Justices 28 R. I. 607 Apr. 21, 1908 132, 150 (Elections by Senate) In re Opin. of Supreme 29 R. I. 611 Feb. 4, 1909 108, 145 Court In re Pothier, Governor 31 R. I. 565 Dec. 23, 1910 In re Opin. of the Justices 34 R. I. 191 Apr. 17, 1912 118,122. In re Opin. to Governor 35 R. I. 166 Feb. 24, 1913 130 South Dakota In re Construction of 2S. D.58 May 12, 1891 113, 147 Revenue Law In re Construction of 2 S. D. 71 May 20, 1891 123, 147 School Law, Chap. 9, Sec. 7 In re Limitation of Taxa- 3 S. D. 456 Jan. 14, 1893 54, 111 tion In re Construction of 3 S. D. 548 Feb. 23, 1893 46, 107, 186, Constitution 194, 195, 206 In re Supreme Court Va- 4 S. D. 532 Jan. 12, 1894 131, 140 cancy In re State Warrants 6S. D.518 Feb. 8, 1895 54, 117, 130, 219, 220 In re State Census 6 S. D. 540 Feb. 18, 1895 54, 55, 126 In re State Bonds 7 S. D. 42 May 2, 1895 118, 130 292 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT South Dakota Page In re Chap. 6, Sess. L. 1890 In re House Resolution No. 30 In re Opin. of Judges In re Opin. of the Judges 8 S. D. 274 10 S. D. 249 13 S. D. 191 34 S. D. 650 Feb. 25, 1896 Oct. 19, 1897 Apr. 14, 1900 May 22, 1914 54, 129, 176, 186, 208 54, 108, 176, 186,210,232 138 54, 111, 176 192, 232 Vermont Opin. of the Judges of the Supreme Court, etc. 37 Vt. 665 Apr. 1, 1864 73, 143, 180, 201, 219 Wisconsin State ex rel. Chandler v. Main 15 la. 340 72 Dominion of Canada The Bill to Incorporate the Christian Brothers Queen v. Robertson In re New Brunswick Penitentiary In re Canada Temperance Act of 1878 and County of Perth In re Canada Temperance Act of 1878 and County of Kent The Thrasher Case The Manitoba Ry. Crot .- ings Case In re County Courts of British Columbia In re Certain Statutes of — Manitoba Relating to Education Brophy etal. v. Attorney- General of Manitoba Cass. Prac. 59 6 Can. S. C. R. 127 Cameron, p. 267 Cass. Dig. 105 Cass. Dig. 106 Cass. Dig. 480 Cameron, p. 267 21 Can. S. C. R. 446 22 Can. S. C. R. 577 (1895) A. C. 202 1876 1879 1880 1892 Feb. 20, 1894 1895 90 79, 249 80 80 80 80 80 81, 142 82, 139, 177, 224 82 The Privy Council appeals from Canadian Advisory Opinions are Usted under Canada rather than under England. In re Provincial Jurisdic- 24 Can. S. C. R. Jan. 15, 1895 82, 122, 190 tion to Pass Prohibi- 170 tory Liquor Laws Attorney-General for On- (1896) A. C. 348 1896 82, 195, 224 tario v. Attorney-Gen- eral for Dominion et al. APPE^TDIX IV 293 Dominion of Canada Page In the matter of Jurisdic- 26 Can. S. C. R. Oct. 13, 1896 83, 122, 224 tion over Provincial 444 Fisheries Attorney-General of Can- (1898) A. C. 700 May 26, 1898 84, 184 ada V. Attorneys-Gen- eral for Ontario, Que- bec and Nova Scotia In the m. of the Criminal 27 Can. S. C. R. May 1, 1897 128 Code— Relating to Big- 461 amy Union Colliery Co. of 27 Can. S. C. R. Oct. 22, 1897 91, 92, 93, British Columbia v. 637 125, 225 Attorney-General of British Columbia et al. Attorney-General of 33 Can. S. C. R. 1903 93 Canada v. Attomey- 458 eral of Ontario In the m. of the Represen- 33 Can. S. C. R. Apr. 29, 1903 104 tation in the House of 475 Commons, etc. In the m. of the Represen- 33 Can. S. C. R. June 8, 1903 84, 105, 190, tation of Prince Edw. 594 224 Island, etc. Attorney-General for P. (1905) A. C. 37 1905 E. I. V. Attorney-Gen- eral for Dominion. Attorney-General for New Brimswick v. At- torney-General for Dominion In the m. of the Jurisdic- 35 Can. S. C. R. Feb. 27, 1905 80, 84, 122, tion of a Province to 581 125, 177 Legislate Respecting Abstention from Labor on Sunday In re Ry. Act Amend- 36 Can. S. C. R. May 15, 1905 125 ment, 1904 136 Grand Trunk Ry. Co. v. (1907) A. C. 65 1907 Attorney-General of Canada In re International and 36 Can. S. C. R. May 15, 1905 122, 139 Interprovincial Ferries 206 In re Guarantee of Bonds 42 Can. S. C. R. Dec. 24, 1909 of Grand Trunk Pacific 505 Ry. Co. Grand Trunk Pac. Ry. (1912) A. C. 204 1912 V. Rex In re Criminal Code 43 Can. S. C. R. June 15, 1910 86, 142, 177, 434 187, 225 294 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Dominion of Canada Page In re References by the 43 Can. S. C. R. Oct. 11, 1910 17, 86, 122, Governor-General in 536 177, 225 Council Attorney-General for On- (1912) A. C. 571 1912 5, 6, 17, 18, tario V. Attorney-Gen- 25, 30, 87, eral for Canada 165, 177, 190, 195, 225 Ontario Attorney-General of On- (1894) A. C. 189 1894 92 tario V. Attorney-Gen- eral for Dominion of Canada Attorney-General for Do- (1898) A. C. 247 1898 92, 133 minion V. Attorney- General for Ontario Attorney-General for On- (1903) A. C. 524 1903 83, 92, 215 tario V. Hamilton St. Ry. Co. et al. In re Ontario Medical 13 Ont. L. R. 1906 92, 216, 225 Act 501 APPENDIX V Bibliography The cases listed in Appendix IV are, of course, the basi for the fore- going study. These, together with the legislative records of a few States, make up practically all the source material consulted. There is very little secondary material on the advisory opinion — an essay by J. B. Thayer, and a few articles and notes in sundry law magazines. Included with these in the Ust below are several works of a general nature to which reference has been made in the text. Adams, John, The Life and Works of. Edition of 1851. Albany Law Journal, XL, p. 158, and LIX, p. 214. American Law Review, XXIV, p. 369, XXVIII, p. 614, and XXIX, p. 711 American Year Book. Annals of Congress, and the Senate and House Journals of various States. Appleton's Cyclopedia of American Biography. Bacon's Works. Edition of 1740. Baldwin, James F.: The King's Council During the Middle Ages. 1913. Baldwin, Simeon E.: The American Judiciary. 1905. Beard, Chas. A.: The Supreme Court and the Constitution. 1912. Bryce, James: The American Commonwealth. Edition of 1888. Burgess, John W.: The ReconciHation of Government with Liberty. 1915. Burnet: History of his own Time. Edition of 1838. Cameron, E. R.: The Supreme Court Act (Canada) and Rules. 1907. Coke, Sir Edward : The Institutes of the Laws of England. Edition of 1684. Colorado, Encyclopedia of Biography of. Cooley, Thomas M.: Principles of Constitutional Law. Third Edition. 1898. Cooley, Thomas M.: Constitutional Limitations. Sixth edition. 1890. Elliott's Debates. Federalist, The, by Hamilton, Madison and Jay. Fortescue, Sir John: The Governance of England. Plummer's edition. 1885. Foster: Crown Law. 1762. Hale, Matthew: Jurisprudence. Hallam, Henry: The State of Europe During the Middle Ages. Edition of 1853. 296 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT Hallam, Henry: Constitutional History of England. Edition of 1854. Harvard Law Review, HI, p. 288; IV, p. 37; X, p. 50; XIH, p. 358; and XXVI, p. 655. Holcombe, A. N.: State Government in the United States. 1916. Jameson, John A.: Constitutional Conventions. Fourth edition. 1887. Jefferson, Thomas, The Writings of. Edition of 1861. Macqueen, John: The Appellate Jurisdiction of the House of Lords and Privy Council. 1842. Madison, James: Journal of the Federal Convention. Edition of 1894. Maine: Debates, etc., of Convention of 1819 for the State of. Jeremiah Perley. 1820. Maine Law Review. Maitland, F W.: Constitutional History of England. (1888). 1908. Marshall, John: The Life of George Washington. 1807. Massachusetts: Journal Massachusetts Constitutional Convention of 1779- 80. Journal of Debates and Proceedings in the Constitutional Convention of 1820-21. Edition of 1853. Debates and Proceedings in the Convention of 1853. Judicial History of Massachusetts, Emory Washburn. Nation, The: XLIX, p. 476, and L, p. 50. New York: Debates and Proceedings of the New York Convention of 1821. New York State Constitution Annotated. 1915. Proposed Amendments of the Constitutional Convention of the State of New York. 1915. New York. E. H. Roberts. 1887. Pellew, George: The Life of John Jay. 1900. Poore, Ben. P.: Constitutions and Charters of the United States. 1878. Rodriguez, Jos6 I.: American Constitutions. 1905. Rolls of Parliament. Sparks, Jared: The Writings of George Washington, 1836. Statutes and Session Laws of the United States and Various States, England, The Dominion of Canada and the Canadian Provinces. Story on the Constitution. Stubbs, WilUam: Constitutional History of England. 1883. Thayer, James B.: Cases on Constitutional Law. 1895. Legal Essays. Thorpe, Francis N.: Federal and State Constitutions, 1909. Tocqueville, Alexis de: Democracy in America. Walsh, Correa M.: The Pohtical Science of John Adams, 1915. Whitelocke: Memorials. Willoughby, W. W.: The Constitutional Law of the United States. 1910. Year Books, The. INDEX Adams, John, responsible for introduc- tion of advisory opinion in Massa- chusetts, 32-33. Adjournment of legislature, no opinion after, 213. Advisory opinion, history, 1-95; prac- tice, 96-160; interpretation, 161- 237; place in modem state, 248-257. Advisory opinion in England model for advisory opinion in United States, 18, 31-32. Amici curiae, 190, 192, 207. Appointment and removal of execu- tive officers, questions relating to, 131-133. Appropriations, questions relating to, 114-117. Attempts to repeal advisory opinion in Massachusetts, 35-38. Canada, history of advisory opinion in, 79-90; interpretation, 177, 195, 201, 224-225; text of advisory opinion in, 260-261. Canadian Provinces, history of ad- visory opinion in, 90-93; text of advisory opinion in, 261-266. Careless reporting of advisory opin- ions, 34-35, 39, 41, 52. Case, meaning of, in United States courts, 61-62. Colombia, history of advisory opinion in, 94, 245 ; judicial participation in legislation m, 94, 243-244; text of advisory opinion in, 267. Colorado, history of advisory opinion in, 48-53; source of interrogations in 97-99; interpretation, 174-175, 184- 186, 187-189, 197-201, 202-205, 210-213, 216, 217-218, 221-222, 228-231; judicial reconmaendations to legislature, 242; text of advisory opinion in, 259, Composition and organization of exe- cutive department, questions re- lating to, 128-129. Composition of legislature, questions relating to, 100-104. Connecticut, history of advisory opin- ion in, 71-72. Constitutional questions, limitation of advisory opinion to, in Missouri, 43, 196-197; in Florida, 47, 196-197. Council of revision, 238-240. Counsel, lack of assistance of, 29, 76, 81, 190-192, 206-207. Court, not justices, to give advisory opinions in Colorado, 51-52, 148, 221-222. Court of claims, 62-64. Criminal cases, judicial advice in, in New York, 65-66; in Oklahoma, 76- 78. Criminal law, questions relating to execution of, 135-136. Delaware, history of advisory opinion in, 69. Desirability of advisory opinion, 248- 257. Ecuador, judicial initiation ot legisla- tion in, 243. Education, questions relating to, 122- 123. Effect of advisory opinions, in Massa- chusetts, 38-39, 158-159; in Colo- rado, 115-116, 154-158; upon in- terrogators generally, 153-160, 234- 235. Electoral duties of executive, ques- tions relating to, 133-134. Eminent domain, questions relating to, 122. England, history of advisory opinion in, 1-30. Executive questions referred, 128-139. 297 298 INDEX Existing statutes, constniction of, in advisory opinions, 45, 76, 109, 193- 202. Ex parte objection, 106, 182-192. Extra-judicial consultation in the United States, under a constitu- tional clause, 30-55, 178-179; when not authorized by the constitution 55-78, 176-177, 179-180. ^ Fact, questions of, no advisory opin- ion on, 217-218. Financial administration, questions relating to, 129-131. Financial powers and duties of legis- lature, questions relating to, 110- 120. Florida, history of advisory opinion in, 46-48; interpretation, 173-174, 224; text of advisory opinion in, 259. Form of advisory opinions, per curiam in Colorado, 52, 147-148, 222; gen- erally, 146-153. Future action, no opinion unless possi- bility of, 103-104, 208-214. Governor alone can consult judges, in Florida, 46, 174; in South Dakota, 54. Guatemala, judicial initiation of legis- lation in, 243. Hawaii, history of advisory opinion in, 93-94. History of advisory opinion, in Eng- land, 1-30; in the United States, 30-78 ; in Canada, 79-93 ; in Hawaii, 94; in Colomb'a, 95; in Panama, 95. For different States of United States, see under name of each State. Honduras, judicial participation in legislation in, 94-95, 243-244; text, 267. House of Lords in England, right to consult judges in its judicial capa- city, 18-25, 246; in its legislative capacity, 25-30. lUinois, attitude toward advisory opinion in, 69-70; revisory council in, 240. Impeachments, assistance of judges in, 246-247. Important question and solemn occa- sion clause, basis in English prac- tice, 16, 32; not in Rhode Island, 42; narrow form in Missouri, 43-45; in Colorado, 52; in South Dakota, 54; in Canada, 81; interpretation of. Ill, 167-168,207-208. Individual opinions of justices should be given in general, 149-151, 221- 222. Interpretation of advisory opinion clause, in Missouri, 44-45 ; generally, 161-237. Judges in England, duty to advise king in his judicial capacity, 2-6; duty to advise king in his executive capacity, 6-18; duty to advise House of Lords in its judicial capacity, 18- 25; duty to advise House of Lords in its legislative capacity, 25-30. Judicial Committee of Privy Council, advisor}'^ nature of, 5-6, 17. Judicial discretion to refuse opinions, 161-177. Judicial nature of questions referred, 205-206. Judicial notice of facts not stated in reference, 218-219. Judicial participation in legislation, in Colombia, 94; in Salvador, 94- 95; in Honduras, 94-95; in Nicara- gua, 94-95. Judicial recommendations to legisla- tures, in United States, 241-242; in Venezuela, 242; in Panama, 242. Judiciary, questions relating to, re- ferred for advisory opinions, 139- 142. Kentucky, history of advisory opinion in, 73-74. King of England, right to consult judges in his judicial capacity, 2-6; in his executive capacity, 6-18. Labor, questions relating to, 123-125. Legal force of advisory opinions, in early English practice, 14-16, 223; to House of Lords, 23-24, 223; in Oklahoma, 77, 224; in Canada, 81, 83, 91, 224-225; in Maine, 225-227; in Colorado, 228-231; generally, 223-227. INDEX 299 Legislative questions referred, 100- 128. Maine, history of advisory opinion in, 40-41; interpretation, 171-172, 194, 201, 213, 225-227; text of advisory opinion in, 258. Majority opinions, 150-152. Massachusetts, history of advisory opinion in, 30-39; interpretation, 166, 167-171, 178-179, 183-184, 193, 201, 205-206, 209, 215-216, 218, 221, 223-224; text of advisor>' opinion in, 258. Military questions referred, 134. Minnesota, history of advisory opin- ion in, 70-71. Miscellaneous questions referred for advisory opinions, 145-146. Missouri, history of advisory opinion in, 43-46; interpretation, 44-45, 173, 184, 203, 205, 216, 221, 231-232; text of advisory opinion in, 258. Nature of questions, 99-146. Nebraska, history of advisory opinion in, 74-76. Nicaragua, judicial participation in legislation in, 94-95, 243-244; text, 267. North Carolina, history of advisory opinion in, 68-69; practice, 191. New Hampshire, history of advisory opinion in, 39-40; interpretation, 172, 179, 183, 191, 194, 201, 203, 206. 209-210, 213, 218, 221, 224; assistance of judges in impeach- ments, 246; text of advisory opin- ion in, 258. New Jersey, extra-constitutional con- sultation of judges in, 109, 191. New York, history of advisory opin- ion in, 65-68 ; council of revision in, 238-240; assistance of judges in im- peachments, 247. ObUgation of judges to give advisory opinions, 161-177. Ohio, history of advisory opinion in, 74. Oklahoma, history of advisory opin- ion in, 76-78; practice, 224. Organization and procedure of legis- lature, questions relating to, 105- 109. Panama, history of advisory opinion in, 95, 245; judicial recommenda- tions to legislature in, 242; text of advisory opinion in, 267. Pending cases, opinions relating to, in early English practice, 9-14; in the United States, 180-181. Pending legislation, advisory opinions relating to, in Colorado, 49-50, 210-212; in Canada, 84-85; in New Hampshire, 112. Pennsylvania, history of advisory opinion in, 64-65; assistance of judges in impeachments in, 247. Per curiam replies, in Colorado, 52, 147-148, 222; generally, 148-149. Peru, judicial initiation of legislation in, 243. Police power of legislature, questions relating to, 120-122. Possibility of future cases no reason for refusing opinions, 181-205. Precedents, force of advisory opinions as judicial, in Colorado, 51-52, 228- 231; in Canada, 83, 224-225; in Maine, 225-227; generaUy, 223-227. Private rights, advisory opinions should not affect, 106, 180-181, 182- 202. PubUcation of advisory opinions re- quired, in Missouri, 43-44, 146; in Colorado, 52, 146. Pubhci juris questions, 202-205. Quality of advisory opinions, 153-154, 234, 255-256. Questions of too general nature, no obHgation to answer, 29, 215-217. Revisory coundl, in federal conven- tion of 1787, 55-57, 240; in New York, 238-240; in lUinois, 240. Rhode Island, history of advisory opinion in, 41-43; interpretation, 172-173, 201, 224; text of advisory opinion in, 258. Right of judges to refuse opinions, 161-177. Salvador, judicial parricipation in leg- islation in, 94-95, 243-244; text, 267. San Domingo, judicial mitiation of legislation in, 243. 300 INDEX Separation of powers theory in rela- tion to advisory opinion, 33, 37, 162, 168-169, 248, 251. Source of interrogations, 96-99. South Dakota, history of advisory opinion in, 54-55; interpretation, 175-176, 201, 232; text of advisory opinion in, 259. Success of advisory opinion, in Massa- chusetts, 38-39; in New Hampshire, 40; in Rhode Island, 43; in Colora- do, 52-53; in South Dakota, 54-55. Suffrage and elections, questions re- lating to, 142-145. Taxation, questions relating to, 110- 114. Time, lack of, as excuse for no opinion, 112-113, 219-221. United States, history of advisory opinion in, 30-78; extra-judicial consultation of judges in the federal government, 55-64. Venezuela, judicial recommendations to legislature in, 242. Vermont, history of advisory opinion in, 72-73; assistance of judges in impeachments in, 247. Writing, requirement that advisory opinions be in, 42, 146 T^HE following pages contain advertisements of a few of the Macmillan books on kindred subjects. The American Doctrine of Judicial Supremacy By CHARLES GROVE HAINES Professor of Political Science in the University of Texas 368 pp., Cloth, 72°, $2.00 An account of the origin and development of the practice of judicial control over legislation in the United States. Data from many sources relative to the theory and practice of judicial review of legislation are brought within brief compass. The Supreme Court and the Constitution By CHARLES A. 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