Pursuant to 4 M.R.S.A. Sec. 57 questions have been certified to the Law Court by the United States District Court for the District of Maine. The matters in controversy stem from petitions for wage earner plans now pending in the Federal Court. The debtors and the trustee have seasonably filed a motion in this court to dismiss the certification proceeding on the ground that 4 M.R.S.A. Sec. 57 is violative of the Constitution of the State of Maine. By agreement the merits with respect to the questions certified were briefed and argued together with the motion to dismiss but decision on the motion must be reached before consideration may be given to the merits.
Art. VI, Sec. 1 of the Constitution of Maine provides: “The judicial power of this State shall be vested in a Supreme Judicial Court, and such other courts as the Legislature shall from time to time establish.” Sec. 3 provides: “The justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives.”
4 M.R.S.A. Sec. 57, dealing with the jurisdiction of the Supreme Judicial Court sitting as a Law Court, provides in perti-ent part:
“The following cases only come before the court as a court of law: * * * and questions of state law certified by the federal courts.
Jfc íjí ‡ í}j í{í sjc
When it shall appear to the Supreme Court of the United States, or to any court of appeals or district court of the United States, that there are involved in any proceeding before it one or more questions of law of this State, which may be determinative of the cause, and there are no clear controlling precedents in the decisions of the Supreme Judicial Court, such federal court may certify any such questions of law of this State to the Supreme Judicial Court for instructions concerning such questions of state law, which certificate the Supreme Judicial Court sitting as a law court may, by written opinion, answer.”
*829
Although the constitution makes no effort to define “judicial power”, it has been assumed that
the Law Court
could not render purely advisory opinions. This view may well have stemmed from and been strengthened by the inference to be drawn from the fact that a carefully restricted right to render advisory opinions was conferred
upon the individual justices
by Art. VI, Sec. 3. In any event, we felt no need to rationalize or elaborate when in LaFleur ex rel. Anderson, Atty. Gen. v. Frost et al. (1951),
In State v. LeClair (1894),
In this connection we note with interest the later development of the Michigan law in the field of declaratory judgments where the same challenges with respect to “judicial power” were proffered. The first enactment of “An Act to authorize courts of record to make binding declaration of rights” in Michigan came in 1919. A divided Michigan court declared it to be unconstitutional in Anway v. Grand Rapids Ry. Co. (1920),
Its resurrection however was not long delayed. The new act was passed in 1929 and in it was inserted a provision that made it applicable only to “cases of actual controversies.” In Washington-Detroit Theatre Co. v. Moore (1930),
We are satisfied that our own concept of the relationship between declaratory judgments and “judicial power” fully accords with that of the Michigan court. Although the constitutionality of our declaratory judgment statute has not been challenged, we had no hesitation in School Administrative Dist. #3 v. Maine School Dist. Comm. et al. (1962),
We have dealt with the relationship between declaratory judgments and judicial power at length, partly because the problems posed by the certification of questions by federal courts to state courts are very similar to those which have arisen in connection with declaratory judgment statutes. In fact the certification device is but a short step removed from and is a natural outgrowth of the practice of federal abstention to permit the bringing of a proceeding in a state court to ascertain definitively the applicable state law. The state proceeding has frequently been in the nature of a petition for declaratory judgment.
In United Services Life Ins. Co. v. Delaney (1965), 396 S.W.2d (Tex.) 855, the
*831
court had before it a suit for declaratory judgment brought after the Fifth Circuit Court of Appeals had invoked the so-called abstention doctrine. The Texas court declined to take jurisdiction on the ground that the giving of an advisory opinion is not a judicial function. In the opinion of the majority the inability of the Texas court to render final judgment (the Federal Court having retained jurisdiction) would render its opinion no more than advisory. The court said: “If the state court is to entertain a suit for declaratory relief, it must have the power and jurisdiction to settle the controversy
by entry of a final judgment.
* * * The Circuit Court’s reservation of jurisdiction to render final judgment renders these proceedings advisory in nature. * * * Actually what we are called upon to do is to answer a question and not render a judgment.” (Emphasis ours.) We note with interest that the court gratuitously suggested that “a certified question practice, which in the light of the Texas experience, might be expected to present some attendant and vexatious problems, seems more advisable” * * * even though constitutional amendment may be involved.” In United Services three judges dissenting were of the view that a judgment declaring the rights of the parties “in situations where consequential relief cannot be given” was within the “express contemplation” of the Texas Declaratory Judgments Act and was a proper exercise of “judicial power”. The dissenting justices contended that the court should act where no federal or fact questions remain unresolved so that under the doctrine of Erie R. R. Co. v. Tompkins (1938),
A very different approach was taken in the case of Leiter Minerals, Inc. v. California Co. (1961),
*832 We turn now to the only case which has been called to our attention in which the certification procedure itself has been examined as an exercise of “judicial power”. In Sun Insurance Office, Ltd. v. Clay (1961), 133 So.2d (Fla.) 735, the court sua sponte raised the constitutional question of its jurisdiction to answer questions certified to it by federal appellate courts pursuant to the Florida certification statute enacted in 1945. The court saw no necessity to discuss its powers in terms of “advisory opinions”, “final judgments” or “consequential relief”. In holding that it had constitutional sanction to participate in the certification procedure, it rested its position squarely upon the concept of the reservoir of power of the people of a state which may be exercised by its legislature. The court said: “Thus, there is no question but that state constitutions are in no manner grants of power, as is the federal constitution, but are limitations upon the power of the state legislature. All power not limited by a state constitution inheres in the people of that state. * * * ‘It is a fundamental principle of constitutional law that each department of government, whether federal or state, “has without any express grant, the inherent right to accomplish all objects naturally within the orbit of that department, not expressly limited by the fact of the existence of a similar power elsewhere or the express limitations in the constitution.” 1 Andrews’ American Law (2d Ed.) Sec. 182, p. 221.’ ”
We conclude as did the Florida court that our participation in the certification procedure will constitute a valid exercise of “judicial power”. See Sawyer v. Gilmore (1912),
In reaching this decision we are heartened by the knowledge that the certification process has been repeatedly hailed as a step forward in resolving some of the problems attendant upon federal abstention. The late Mr. Justice Frankfurter, himself both a student and an architect of constitutional law, had occasion to remark in Clay v. Sun Ins. Office, Ltd. (1960),
We turn now to the specific matter before us and to the questions and the record transmitted to us by the United States District Court. The debtors and trustee vigorously urge that the record is not yet in proper posture for our consideration. They point out that the facts have been neither agreed upon nor found by the court. Although the certification contains a “statement of facts” showing “the nature of the case and the circumstances out of which such questions of law of the State of Maine arise”, this “statement” is not and does not purport to be the definitive finding by the court as to what the facts are. That the problem is real as it reaches this court is evidenced by the fact that the parties are far apart in their professed views of what the facts are as to which Maine law must be applied. Moreover, the parties express difficulty in comprehending exactly what is intended by one of the questions propounded, a difficulty which we are inclined to believe stems directly from the unresolved state of the underlying facts.
We have had but one previous occasion to respond to questions propounded by a federal court under 4 M.R.S.A. Sec. 57. In that case, Norton v. Benjamin (1966), 220 A.2d (Me.) 248, the facts were agreed upon and since there was apparent no controlling federal question and the constitutionality of the certification process was not challenged, we deemed that our response to questions would be determinative of the controversy and had no hesitation in answering. Our concern in the instant case stems not only from those con-stitutional considerations which we have discussed above but from the wording of the jurisdictional statute itself. As we construe the statute, it contemplates that our response will be “determinative of the cause” — and in fact if this were not so the statute would not satisfy constitutional requirements as we have already indicated. We cannot see that this can ever be so if the facts remain unresolved and in a hypothetical state. The Florida certification statute obviates this difficulty by permitting certification only by federal courts at the appellate level. At that level the facts will have been found and established. If we are to participate and yet not render purely advisory opinions, we think it will be incumbent upon us to respond to questions only when it is apparent from the certification itself that all material facts have been either agreed upon or found by the court and that the case is in such posture in all respects that our decision as to the applicable Maine law will in truth and in fact be “determinative of the cause” as the statute conferring jurisdiction upon us requires. Such is not the case here.
It is with understandable reluctance, therefore, that we respectfully decline to answer the questions propounded to us. In the interest of saving time, expense and unnecessary duplication, upon any re-certification of questions after determination of material facts, this court would permit the use of any records or briefs already on file here, the same merely to be supplemented as the federal court and the parties may then deem necessary.
The clerk will transmit this opinion to the District Court of the United States, District of Maine. All concur.
So ordered.