150 Mass. 598 | Mass. | 1890
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court have considered the question proposed by the Honorable House by its order of May 27, 1890, which was received on May 29, 1890, and respectfully submit the following answer. .
On May 27, 1890, we submitted to the House our opinion upon the constitutional right of the Legislature to authorize cities and towns to manufacture gas or electric light for use in the public streets and buildings and for sale to the inhabitants. In our opinion, the Legislature has the right to alter, amend, repeal, or declare the meaning of the existing statutes concerning £he powers of cities and towns, and to enact new statutes which shall clearly confer upon cities and towns the power mentioned in the question now proposed. This question concerns only the construction of the existing statutes. We are not officially informed whether any city or town in the Commonwealth has assumed the exercise of the power referred to, or intends to assume it. If this has been done, it is probable that expenditures have been made, debts incurred, and taxes assessed, the legality of which it may be necessary hereafter judicially to determine. The provisions by which the matter may be investigated when a city or town votes, or is deemed by its citizens to have voted, to raise by taxation or pledge of its credit, or to pay from its treasury, any money for purposes other than those for which it has the legal right and power, are ample, and such as are readily initiated, and on proper suit or petition such right and power may be promptly determined.
While any opinion which might be rendered by us in response
In the opinion of the Justices given to the House on May 4, 1889,
We are unable to distinguish the question now presented to us, so far as our duty to answer it is concerned, from those then considered. It would be superfluous to repeat or restate the reasons so recently given for the result at which we then arrived. The order now transmitted to us does not state why the opinion of the Justices is required, but we cannot perceive that any reason therefor exists, except that arising from different views of members of the House as to the construction of existing statutes, which it is in the power of the Legislature to alter, amend, or repeal at its pleasure. An opinion rendered on the construction of such statutes might seriously, even if indirectly, affect private rights, and the occasion does not appear to us to be one of those contemplated by the Constitution. While it is our duty to render opinions in all those cases in which either branch of the Legislature or the Governor and Council may properly require them, it is not the less our duty, in view of the careful separation of the executive, legislative, and judicial departments of the government, to abstain from doing so in any case which does not fall within the constitutional clause relating thereto.
It is with sincere regret that we find ourselves unable to concur in the view which the House, in requiring an answer to the question proposed by this order, apparently entertains of our duty on this subject. That all questions of law, such as those arising in the ordinary administration of justice, or those actually affecting a pending suit or trial, are not embraced within the constitutional clause would be, we presume, conceded by all.
As we think a case is not presented which is contemplated by the Constitution, — since the question proposed affects only the construction of existing statutes, which the Legislature can amend or repeal as it sees fit, — since, if the power referred to has been assumed in the past, the rights of towns or of individuals may have become involved, and may be 'hereafter the subjects of judicial determination, — and since no exigency is suggested beyond that which may arise at any time with reference to any statutory provisions, — we must request to be excused from further answering the question proposed by the House.
Marcus Morton.
Walbridge A. Field.
Charles Devens.
William Allen.
Charles Allen.
Oliver Wendell Holmes, Jr.
Marcus P. Knowlton.
Boston, June 4, 1890.
Pub. Sts. c. 27, § 129.
Const. Mass., Part II. Chap. III. Sect. IV. Art. II.
Answer of the Justices, 148 Mass. 623.
Answer of the Justices, 148 Mass. 627.