In re Inquiries Submitted by Woodson

| Mo. | Oct 15, 1874

Wagner, Judge,

delivered the opinion of the court in response.

The first question propounded is whether the act of March 31st, 1874, attaching Benton county to the 25th judicial circuit, is constitutional; and the second question is, whether the person elected on the 3rd of November, as judge of the Circuit Court of Benton county, is entitled to be commissioned.

In reference to the first interrogatory it is only necessary to say, that the question relates to the constitutionality of an act which has already passed and is upon the statute book. It is the province of the supreme judges to only give an opinion or adjudicate upon such laws, when the question ol their validity is raised in some proceeding pending before them. There would be a manifest impropriety in now undertaking, in this form, to pass upon the constitutionality of the act, as private rights have intervened, and these rights should be determined only when the parties interested are regularly before a tribunal where they can be heard.

Secondly, it is well settled that in issuing a commission the Governor acts in a political or executive capacity, and he alone can judge whether the power should be exercised or not, and the courts can neither control or interfere with him in the exercise of this right.

For these reasons we must respectfully decline giving any answers to the questions..

The other judges concur.