54 Colo. 166 | Colo. | 1913
Lead Opinion
delivered the opinion of the court:
In considering interrogatories propounded under section 3 of article VI of the constitution, this court, soon after the adoption of the constitutional provision, established certain rules governing the practice to be observed in the exercise of the jurisdiction conferred. As the authority conferred and duty imposed upon'the court to give its opinion is “upon important questions, upon solemn occasions,” and not whensoever required by the governor, the senate or the house of representatives, it was held that the duty rested finally upon the court to determine for itself as to the solemnity of the occasion and the importance of the questions propounded. Moreover, that the question' must relate to* purely public rights, be propounded upon a solemn occasion, and possess a peculiar or inherent importance not belonging to all questions of the kind; that executive questions must be exclusively publici juris, and legislative ones be connected with pending legislation, and relate either to the constitutionality thereof or to matters connected therewith of purely public right. — In the Matter of the Constitutionality of Senate Bill No. 65, 12 Colo. 466, 471; In the Matter of Senate Resolution on the Subject of Irrigation, 9 Colo. 620; In Re Appropriations, 13 Colo. 316, 321; In Re Speakership, 15 Colo. 520; In Re Fire and Excise Com., 19 Colo. 482; In Re House Bill No. 99, 26 Colo. 140; In Re Senate Resolution No. 10, 33 Colo. 307.
At an early date, speaking through chief justice Helm, this court, in In the Matter of the Constitutionality of Senate Bill No. 65, 12 Colo. 466, 471, 472, said: “We feel con
He further therein said that, “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 inherent importance not belonging to all questions of the kind. * * 1 * Upon mature investigation and reflection we are of the opinion that executive questions must be exclusively juris publici, and that legislative questions must be connected with pending legislation, and relate either to the constitutionality thereof, or to matters connected therewith, of purely public right. We believe that the accuracy as well as the wisdom of this interpretation will commend themselves alike to the legislative judgment and the legal mind.”
And in referring to that decision Mr. Justice Elliott, speaking for the court in In Re Appropriations, supra, said: “The latter opinion was announced after much consideration, and is authority for saying that this court must decide for itself, as to ^any given question, whether or not it should exercise the jurisdiction of answering the same; and that only questions of law publici juris, and not questions affecting private or corporate rights, should be thus answered. That decision was based upon the fundamental doctrine that for this court to answer questions of the latter class, ex parte, would inevitably result in disposing of the rights or claims of litigants without due process of law, without counsel, and with
And in In Re Fire and Excise Commissioners, supra, it is said: “While we concede to the governor full liberty to submit such questions as he may deem consistent with his executive powers, this court reserves for itself the right to express its opinion freely, in whole or in part, or not at all, as it shall deem consistent with its judicial powers and constitutional obligation.” It is further therein said: “Were it not for the threatened dangers by force, military and otherwise, the question propounded would not be important nor the occasion solemn.” And in the same opinion, on page 499, upon the question of an incumbent of an office attempting to hold over in opposition to an executive order of removal, it is said: “* * * if the executive order of removal is questioned by the incumbent, the courts have the power, and it is exclusively within their province, to pass upon such objections and determine as between the respective claimants the right tO' the office in question, and the law provides a plain and adequate procedure for that purpose; and a speedy determination of such question is assured by express statute. Mills’ An. Stats., p. 830. All law-abiding citizens will, and all others should be required to, submit such controversies to these tribunals for settlement.”
And in In Re Senate Resolution No. 10, supra, “Private 'rights, the title to an office, or the construction of an existing statute will not be determined in an ex parte proceeding in answer to a question from either the legislative or executive departments.”
These rules have been applied, and such has been the practice in this state for a fourth of a century. Occasionally, it may be, as pointed out in In Re House Bill No. 99, supra, “There was a departure from it, but an examination of those cases shows that it was for reasons held conducive to the public welfare, and because the cases were of extreme emergency. * * * When we thus made answer we deviated somewhat ' from the established practice to which, at the first opportunity,
Those cases, nevertheless, it- should be observed, carefully avoided determining any private rights. There was involved in In Re Speakership, the legality of the organization' of the house of representatives, each of two1 rival organizations claiming to constitute that body. Incidentally, the court was asked, among other things, to say who was then the- speaker of the house of representatives. We did not give a direct: answer to the question. On the contrary, we held' substantially, that as the constitution invests the house of representatives with the power to judge of the election and qualification of its members, and likewise invests it with the power to elect its own speaker, and such power is continuing and no other department of the government has any voice in the matter, such branch of the general assembly “must assume and bear the responsibility for the exercise of their powers,” and that it-could remove and elect another speaker at its pleasure.
In Re Fire and Fxcise Commissioners, supra, involved the right of the executive to remove certain fire and excise commissioners from office in the city of Denver, appoint others in their stead, and induct the latter into office by force. As the court had previously held that the power of removal and appointment in that respect was vested in the executive, it therein reaffirmed the holding and declared that the constitutional oath of the executive to “take care that the laws be faithfully executed” imposed no obligation upon him to enforce his order of removal, and that a proper regard for the reputation and peace of the community would dictate that the appointees institute proper proceedings in court to' determine their rights to the office. In other‘words, the Speakership case declared that the house of representatives was the tribunal to ascertain 'and determine ’who was its Speaker. While
The matters involved in In Re Senate Resolution No. 10, supra, concerned a contest for the governorship, pending before the general assembly. It was therein pointed out that the contestar and the contestee were actual litigants before the general assembly, having submitted their respective claims to the determination of that body, and as the questions submitted to the court for answer arose out of that contest, the parties litigant were necessarily before the court as to the matters involved, and it was not an ex parte proceeding.
Testing the questions propounded by the rules established, it is evident that we should not assume jurisdiction in the premises. The occasion is not of sufficient solemnity, and private rights are involved. It is conceded that when the nineteenth general assembly convened it was the duty of Stephen R. Fitzgarrald to appear in, and preside over the deliberations of the senate during the term for which he was elected. Sec. 14, art. IV, constitution. It is likewise conceded that it was the duty of the senate, at the beginning of its session, to elect one of its members president pro tempore. Sec. 10, art. V, constitution. We are advised by the resolution that such duties were duly performed, and the only circumstance in addition thereto is, that on the 3rd day of January, during the time Fitzgerrald was unquestionably the lieutenant governor, he stated to' the senate, in answer to some inquiry made, that he had concluded it was his duty, under sections 1 'and 10 of article XII of the constitution, to hold the office of lieutenant governor after the 14th of January until a successor ap
Furthermore, to answer the questions propounded would, as hereinbefore stated, involve a determination of private rights in an ex parte proceeding. It would necessarily determine the title to the office of lieutenant governor and to whom the salary pertaining to such office properly belongs. If Stephen R. Fitzgarrald is the lieutenant governor, entitled to perform the duties of that office, he is likewise entitled to receive the emoluments thereof, but if he is not the lieutenant governor, and some other person is entitled to perform the duties of such office, the latter person is entitled to receive the
Such private rights can not be determined in an ex parte proceeding to which such possible claimants of the office, and the salary pertaining thereto, are in no wise parties. If any public official or tax-paying elector desires to question the right of Mr. Fitzgarrald to hold the office of lieutenant governor, the law has provided a tribunal and adequate procedure for that purpose, wherein both private and public rights may be properly considered and protected. Such was the case and procedure in People ex rel. v. Cornforth, supra, wherein this court assumed original jurisdiction.
We shall continue, as heretofore; to observe the requirements of , all constitutional provisions, including the one now , under consideration, and take pleasure in rendering such assistance to every department of government as shall be consistent with our duty and in harmony with a sound exposition of the constitution.. T’o adhere to the rules established by this court we deem wiser and more seemly than to- place a- different interpretation upon a constitutional provision that would necessarily bring confusion and uncertainty. We are persuaded that this course will commend itself to both the legislative and the legal mind.
In view- of the foregoing consideration we respectfully ask the honorable senate to recall the questions propounded.
Decision en banc.
Dissenting Opinion
dissenting:
I cannot concur in the conclusion reached- by the majority. As I read the resolution from the senate it discloses, that the- candidate who received the highest number of votes .for the-office of lieutenant governor at the. election held in November, 1912, departed, this life -after the election; that he never qualified as such officer; that the present senate, pur
The senate, in order to be advised as to the proper interpretation to be given the different sections of the constitution upon this subject, so that- they may act advisedly and thus avoid any attack upon, or criticism pertaining to, their proceedings, have submitted the interrogatories. As I view the questions, they are, in part, publici juris and in my opinion should be answered to the extent of placing an interpretation upon these different sections of the constitution sufficient to cover the question concerning the presiding officer of the senate. In my judgment, this position is supported by the follow1 ing opinions of this court. — In Re Senate Resolution No. 10, Concerning Governorship Contest, 33 Colo. 307; In Re Fire and Excise Commissioners, 19 Colo. 482; In Re Speakership of the House of Representatives, 15 Colo. 520.
Dissenting Opinion
dissenting:
I cannot concur in the conclusion of the court, to refuse in this instance to give its opinion upon the questions propounded by the senate. The provision of section 3, article VI, of the constitution of Colorado, is as follows:
“The supreme court 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 connection with the reported decisions of said court.”
I am not unmindful of the fact that this court has assumed to itself in such cases, the absolute right to determine whether or not a question is important, or the occasion solemn. I cannot agree that this was the intendment of this constitutional provision. Such power of the court is in my judgment unwarranted, either by the language or purpose of this provision. The language is distinctly mandatory upon the supreme court, and there is' not even a suggestion of discretion upon its part. The word “require” as used in this connection can have no meaning other than the right to demand as by right and authority. This right to demand is specifically conferred upon two of the co-ordinate branches of the government, and the duty of the other branch of the government to obey is to my mind clear.
It is true that this court has said; 33 Colo. 321, “The de- . partment propounding the question .in the first instance determines whether an occasion exists which justifies its submission.” But qualifies this declaration by asserting, “But it remains for the court to finally determine that proposition.” I regard this qualification as a clear assumption of power, in no way to be reconciled with the language of the section of the constitution, or the essence of the proposition stated by the court. The right to propound the question rests, necessarily, upon the right to determine that the occasion exists, and only after such determination. That question having been deter
But the power to determine that an occasion is important or solemn, is not such an únusual or extensive power as to justify the assumption of doubt as to its meaning. Greater and entirely exclusive powers have been conferred upon both the executive and the legislature charged with the responsibilities of government. It would therefore seem that executives and legislators have at least equal opportunities and equal judgment with courts, as to the importance or solemnity of problems presented to- them.
It is not necessary to recite the many grave questions which the legislature alone may determine. The same may be said as to the executive. This court has said that he may even declare a state of insurrection and suspend the writ of habeas corpus without consulting any other department of the state government. Surely then, he may be trusted to determine when such an important or solemn occasion is presented to him as to require the lago-1 advice of the court. Likewise either branch of the general assembly.
Courts should not impute to executives or legislatures, the doing of foolish ór useless acts. These should be regarded as expressing their solemn conviction within their respective spheres. To refuse to answer the questions in this instance is to refuse to obey that which I regard as an imperative consti
In the case of Opinions of Justices (Maine) 51 Atl. 224, cited by counsel, while the majority of the court held tq the view now expressed by the majority here, yet the argument of the dissenting justices is so convincing, and so replete with judicial authority as to appear .unanswerable. This case was decided as late as 1902, and it is there said:
“Against this long and unbroken array of precedents for more than a century (40 years under the Massachusetts constitution and 80 years under our own similar constitution), and against the opinions of the eminent jurists cited, we have in this state but the one late solitary instance where the justices refused to answer a question duly propounded, that in 1891, when the justices refused to answer the inquiry of the governor as to his power to remove a county attorney. 85 Me. 545, 127 Atl. 454.”
And again:
“The early practice under any constitutional provision is admittedly of very great, and even controlling, force when such practice does not conflict with the express words of such provision. It is well known as matter of history that members of the convention drafting the constitution afterward became governors, legislators, and judges under it. They best knew the scope and purpose of its provisions. The people who themselves voted upon the adoption of the constitution would more quickly notice any departure from its letter or spirit. If, therefore, we find' a comparatively uniform practice under a constitutional provision by the earlier incumbents of office, acquiesced in by the persons or officers unfavorably affected by it, and not opposed to clear, express language of the. constitution, such practice is a better, safer guide to the real meaning and scope of the provision than any verbal, grammatical, or even philosophical interpretation by subsequent generations in after years. Broom, Leg. Max. 658, 884; Cohen v. Virginia, 6 Wheat, 418, 5 L. Ed. 257; Rhode Island v. Massachusetts,*181 12 Pet. 657, 9 L. Ed. 1233.; Rogers v. Goodwin, 2 Mass. 475; Gray, C. J., in Opinion of Justices, 126. Mass. 594.
In obedience to the constitution as thus authoritatively interpretated by the unvarying practice of more than a century, —40 years in Massachusetts to the time of the separation, and then in Maine for 70 years more until 1891, — we give our opinion upon the questions submitted briefly as follows
But if the view of the majority of the court be admitted, still under the decisions of this court, the questions here should be answered. While the form of the questions submitted may be unfortunate, yet these in fact simply ask the court for an interpretation of certain constitutional provisions, seemingly necessary for guidance of the senate.
It is urged that these should not be answered because the questions involves a private right, that is to say the title to an office, that of lieutenant governor, and that under the rule of the court such title can only be determined in another and different proceeding. It must be admitted that to an extent, a private right is involved, but it likewise involves a question of grave public concern, compared with which the private right sinks into insignificance.
In the Speakership Case, 15 Colo. 520, the question propounded by the house of representatives, was as to the power of that body to declare the office of speaker vacant, and the court answered that it had such power. Plainly this involved a constitutional private . right, to-wit: title to the office of speaker, which like the office of lieutenant governor, carries with it the right of succession to the governorship.
In the case, In Re Senate Resoluttion No. 10, 33 Colo. 307, the question as to whether or not the joint assembly had the power to declare the office of governor vacant, was answered by this court. This was a contest for the office of governor, was purely a political matter over which this court could have no control, and it would be difficult to understand how the office of lieutenant governor can involve a clearer case of private right.
This case clearly illustrates the unsoundness of the rule adopted by the majority in the matter before us, and makes clear the reasoning in Opinion of Justices, supra, having refererence to the dissenting opinion as follows :
“Whether the questions submitted are important, or whether there be sufficient occasion for their solution, is not itself a question of law, or a judicial question. These are rather political questions in the broad sense of that term. When-the requirement is made by the house of representatives, they are pre-eminently questions for the house itself to consider and determine. The house is a political agent of the people. It has the sole power of impeachment. It is the grand inquest. -With the senate and the governor, it is the judge of what is for the people’s welfare, is charged with the duty of seeking out abuses, disorders, and irregularities in the public service and is also charged with the duty of their reform' or removal. The justices are by the constitution (article 3, sec. 2), excluded from that sphere of duty and action, and limited to judicial questions.' Even in cases where all the facts and conditions are public, and known to all the justices, it is certainly doubtful if they are to override the judgment of the representatives of the people, that those acts and conditions render the questions of law important and the occasion solemn. But the justices can never be sure they know all the facts and conditions. There'may be — perhaps in this case — many facts and conditions known to the house and not known to the justices, clearly showing the given question to1 be important, and the occasion sufficiently solemn. It has never been the practice, nor is the house obliged by anything in the constitution,*183 to state facts affirmatively showing the question to be import- . ant and the occasion solemn. We do not think the justices should treat the house as a suitor, nor its order like a petition demurrable for want of sufficient allegation of facts.”
But if we are to assume the exclusive right to determine whether or not the question is important and the occasion grave, we cannot escape the conclusion that such is the case before us.
The questions by the senate presuppose a desire upon its part to obey the constitution, and we cannot doubt that the several constitutional provisions, under the state of facts presented, admit of serious question.
The lieutenant governor is not a member of the senate. That body under the constitution, consists of thirty-five members, elected from districts, created by law, and of which membership the lieutenant governor cannot be one. He presides over the senate simply by virtue of his office as lieutenant governor, and which duty is simply incidental to his office. If he is not lieutenant governor, can he preside, or exercise any of ■ the powers and duties of the presiding officer? The actual official duties of this officer as such are limited, Micawber like, to simply waiting for something to turn up, and' when this something does turn up he no longer performs the duties of lieutenant governor, but rather the duties of governor.
It is suggested that even though he may not be the lieutenant governor, in fact, yet his acts are valid as a de facto official.
From what I have said of the duties, of the lieutenant governor as such, it would seem that as a de facta official, he would have as much substance and power as the proverbial hole in a doughnut. Can he preside and give validity to his acts as the president of the senate, unless he is the actual lieutenant governor ? He cannot preside as president pro tern, for the senate may elect only one of its members to such position.
It is urged that in permitting him to preside, the senate thus recognizes the validity of his acts. Does the mere recog
The constitution confers upon the president of the senate the power to cast the deciding vote when the senate is equálly divided. Thus while he is not a member of the senate, yet in this particular he is given certain powers of a legislator. Will this court say that there can be such a thing as a de facto legislator, casting votes and making laws? To my mind this is inconceivable.
Again, it is the constitutional requirement that the presiding officer of the senate shall in the presence of the seriate, sign all bills and joint resolutions passed by the assembly. This seems to be clearly mandatory. Are we ready to say that' one who is not the lieutenant governor, and who is not eligible to election by the senate, as president pro tern,; may sign them ? Are we ready to say that if such bills are not signed by the proper officer that they are not for such reason invalidated ?
The questions are purely legal and the members of the senate are not presumed to’ be learned in the law, yet all these legal questions which may vitally effect the whole people of the state are before them. Are these matters not important and can this court say that the occasion is not sufficiently grave as to require its advice when requested?
I am clearly corivinced that the matter is of such importance as to make the refusal of the court to answer a serious error. Beside, I do not understand that the answer requested is anything but advisory, and may be reviewed or changed upon a more formal and complete investigation. I regard the constitutional mandate binding' on the court, and against which we may not interpose a rulé of procedure, a precedent, or the convenience of the court. The senate is entitled to know and the whole people are entitled to know the view o'f the court upon so serious a legal question.