OPINION OF JUDGES. The federal judi ciary can be called upon only to decide con troversies brought before them in legal form.
The constitution of Massachusetts au thorizes each branch of the legislature and the governor and council to call on the su preme court justices for opinions "upon im portant questions, and upon solemn occa sions," and substantially the same provision occurs in the constitutions of Colorado, Flor ida, Maine, New Hampshire, Rhode Island, South Dakota and Hawaii. Such opinions have been given with reluctance; 63 Mass. 604; and they are generally held to be pure ly advisory and not binding as precedents, although they have been held such ; In re Constitutionality of Senate Bill No. 65, 12 Colo. 466, 21 Pac. 478. A Minnesota stat ute authorizing advisory opinions was held unconstitutional as devolving upon the judges duties not strictly judicial ; In re Senate of State, 10 Minn. 78 (Gil. 56).
There have been refusals by the courts to give opinions even where required by the constitution of the state; In re Construc tion of Constitution, 3 S. D. 548, 54 N. W. 650, 19 L. R. A. 575; In re Constitutionality of Senate Bill No. 65, 12 Colo. 466, 21 Pac. 478; Answer of Justices, 122 Mass. 600; id., 148 Mass. 623, 21 N. E. 439 ; id., 150 Mass. 598, 24 N. E. 1086. The general basis of these refusals has been that it is for the judges to determine whether the occasion is within the constitutional provision.
The Delaware constitution formerly had a provision authorizing the governor to en quire of the judges touching questions of constitutional law; the legislature, by reso lution, asked their opinion as to its powers to change the basis of representation for the legislature. The judges gave separate opin ions (Laws• 1883), but one or more of them stated that they did so only out of respect.
Where a coroner came into court and ask ed the opinion of the court as to his official duties, Thayer, P. J., said: "I have no hesitation in expressing my opinion in re gard to the question which the coroner has propounded to the court." Com. v. Taylor, 11 Phila. (Pa.) 387. This was followed in Coroners Duties, 20 D. R. (Pa.) 685, by Sulz berger, P. J.
In Idaho, the constitution requires the su preme court judges to report annually to the governor as to defects and omissions in ex isting laws.
It has been held that the courts are the judges of whether the questions presented to them for their opinion fall within the scope of the law, and, generally, whether the exigency requires them to act. The court usually require that the questions shall be matters of public law and not those involv ing merely private rights; see Thayer, Leg. Essays 45; Story, Const. ; 6 A. & E. Encyc. 1065.
See LEGISLATIVE POWER.
They have no judicial force and cannot bind the body receiving them; Green v. Com., 12 Allen (Mass.) 163; Taylor v. Place, 4 R. I. 362. A contrary view was taken in 70 Me. 583 ; but see, contra, State v. Cleveland, 58 Me. 573 ; Opinion of the Justices, 72 Me. 562; and see In re Senate Bill No. 65, 12 Colo. 466, 21 Pac. 478; 24 Am. L. Rev. 369, a full article by Hugo A. Dubuque.
The Judicial Committee of the Privy Council may be asked questions by authority of the Crown. The House of Lords, when exercising judicial functions, may summon the judges and ask them questions ; though its right to do so in its legislative capacity probably has ceased to exist. Any practice by which the Crown could question the judges, even if it ever existed, is now almost, or altogether, obsolete. The last instance was in 1760, when Lord Mansfield furnished answers to questions with reluctance. 106 L. T. 916 (Privy Council).
It is said that it is not easy to see how the opinion of the judges could govern the opinion of the House of Lords; MacQueen, APP. Jurisd. of H. of L. 49.
A Canadian statute authorizing the Gov ernor in Council to call upon the Supreme Court to answer questions of law or fact is not ultra vices. 106 L. T. 916 (Privy Coun cil).
In an interesting article in 13 Harv. L. Rev. 358, by Mr. Veeder, he states that from 1827 to 1899 there were 125 cases in which the judges assisted the House of Lords and that of this number there are hardly more than a score of cases which are In any sense landmarks. Though the judges are called upon to advise, yet the decision rests with the House alone ; 10 Cl. & F. 413, citing an instance where the 12 judges had given their opinion, and the Lord Chancellor satisfied the House that they were all wrong.