A provision in the charter of a railroad company authorizing the guardian of a minor to agree upon the amount of damages for taking the land of a minor is not an in vasion of the judicial power but is an exer cise of legislative power only ; Louisville, N. 0. & T. R. Co. v. Blythe, 69 Miss. 939, 11 South. 111, 16 L. R. A. 251, 30 Am. St. Rep. 599.
The legislature has no power to reimburse a public officer for money lost in his official capacity, particularly where the money be longed to the state school fund, and was not raised by taxation ; and the officer repaid the money lost out of his private funds; Clelland v. State, 138 Ind. 321, 37 N. B. 1089.
A question which has given rise to much discussion is the authority of the legislature to require what are known as advisory opin ions from courts or judges, upon general questions submitted as distinguished from the questions naturally arising in a litigated case. As to the effect of such opinions as precedents, see PRECEDENT. It was early settled as to the federal judges that their judicial duties did not require or empower them to answer such questions; see 4 Am. Jur. 293 ; 2 Dail. 410, n.; 13 How. 52, n. In some states there are constitutional pro visions authorizing the request for such opin ions, and in other states there are statutes merely, at least one of which has been held unconstitutional; In re Senate of State, 10 Minn. 78 (Gil. 56); s. c. 1 Thayer, Cas. Const. L. 181; and it has been said, "one would expect the same decision with regard to the others if they were contested;" 31 Am. L. Reg. N. S. 456.
In Massachusetts, where there is a con stitutional authority for such questions (with reference to a statute making educa tion compulsory), the justices declined to give an opinion when "required" to do so by the legislature, assigning the reason that the legislature had power to ask for such opinions only "upon important questions of law and upon solemn occasions ;" Answer of Justices, 148 Mass. 623, 21 N. E. 439. This dedision is criticised in an elaborate article, which discusses the power historically and reviews the opinions given by judges in all the states having constitutional provisions on the subject ; 24 Am. L. Rev. 369. See also Opinion of Justices, 126 Mass. 557; Thayer, Legal Effect of Opinions of Judges.
See OPINIONS OF JUDGES.
Not only is it beyond the power of the legislature to confer non-judicial functions upon courts and judges, but also, to vest judicial power in any one else. Hence a statute authorizing the election, by agree ment of parties, of a member of the bar to try a case in which a judge is interested, was held void ; Van Slyke v. Ins. Co., 39 Wis. 390, 20 Am. Rep. 50.
Congress• can neither withdraw from judi cial cognizance any matter which from its nature is the subject of a suit at common law, or in equity, or admiralty, nor bring under the judicial power a matter which, from its nature, is not a subject for judicial determination ; Den v. Land & Improvement
Co., 18 How. (U. S.) 272, 15 L. Ed. 372.
As to the legislative power to provide for taking private property for public use, and the legislative function of determining what is a public use, see EMINENT DOMAIN.
As to the authority of the courts to de clare statutes unconstitutional and invalid, see CONSTITUTIONAL; JUDICIAL POWER. In the former is also discussed the theory some times advanced, but having no substantial basis of authority, that upon some higher ground than that of constitutionality the acts of the legislature may be reviewed by courts. In a line with the authorities there cited on this subject, and speaking upon the point that the legislative power operating upon proper subject-matter is uncontrolled otherwise than by constitutional restriction, it was said by Storrs, J., speaking for the supreme court of Connecticut : "The defend ant insists that we should pronounce the law now in question to be void, on the ground that it is opposed to natural right, and the fundamental principles of civil liberty. We are by no means prepared to accede to the doctrine involved in this claim, that, under a written constitution like ours, in which the three great departments of government, the executive, legislative, and judicial, are confided to distinct bodies of magistracy, the pavers of each of which are expressly con fined to its own proper department, and in which the powers of each are unlimited in its appropriate sphere, except so far as they are abridged by the constitution itself, it is competent for the judicial department to deprive the legislature of powers which they are not restricted from exercising by that instrument. It would seem to be sufficient to prevent us from thus interposing, that the power exercised by the legislature is properly legislative in its character, which is unquestionably the case with respect to the law we have been considering, and that the constitution contains no restriction up on its exercise in regard to the subject of it." State v. Wheeler, 25 Conn. 290. "I am op posed to the judiciary attempting to set bounds to legislative authority, or declaring a statute invalid upon any fanciful theory of higher law or first principles of natural right outside the constitution. If the courts may imply limitation, there is no bound to im plication except judicial discretion, which must place the courts above the legislature and also the constitution itself. This is hostile to the theory of the government. The constitution is the only standard for the courts to determine the question of stat utory validity." Wynehamer v. People, 13 N. Y. 378, 430; Calder v. Bull, 3 Dell. (U. S.) 386, 1 L. Ed. 648.