In re Penitentiary Commissioners

Mr. Justice Elliott delivered the opinion of the court. 1. Under section 3 of article 6 of the Constitution as amended the governor may submit to this court for its opinion any question he may deem proper, and when submitted, such question is entitled to respectful consideration. But the court must of necessity determine for itself the importance of such question as well as the solemnity of the occasion under which such opinion is sought to be obtained. The nature [413] of the answer proper to be returned under the particular circumstances of each case is a matter for judicial determination; this has been held in several cases. Opinion of the Justices, 49 Mo. 216; In re District Attorneys, 12 Colo. 468. In some instances we have given opinions in response to executive inquiries in respect to the management of public affairs where 'no objections were interposed; In re Capitol Commissioners, 18 Colo. 220; and sometimes in cases of great emergency where objections were interposed; In re Speakership, 15 Colo. 524. So, also, we sometimes answer legislative questions concerning the constitutionality of pending bills, with the view to prevent the enactment of unconstitutional legislation, and the evils that might result therefrom. The question now submitted, however, does not relate to a pending bill, but to a statute already enacted — a statute which has been acted upon for several years, and under which it appears private rights or claims have arisen, which lights or claims might be seriously affected by an ex parte opinion of this court. In re House Resolution No. 25, 15 Colo. 602. 2. The question now propounded does not seek to obtain an opinion of the court as to the constitutionality of a statute. Upon oral argument the governor expressly disclaimed any intention to question the constitutionality of the act relating to the state reformatory; but he does question the constitutionality of the construction placed upon a single section of that act by Attorney General Maupin and acts thereunder by the board of penitentiary commissioners. An ex parte judicial opinion upon such a subject can scarcely be said to be contemplated by the constitution. The jurisdiction conferred by the constitution upon this court to answer executive and legislative questions, is extraordinary; the construction of statutes is within the ordinary jurisdiction of the courts. One of the most common subjects of judicial consideration is the construction of legislative acts as they arise in due course of litigation. If we were to extend the extraordinary ex parte jurisdiction of this court to executive questions involving the construction of legislative acts, it would be a most serious [414] innovation, and the tendency would be to transfer in a great measure the management of our state institutions from the executive to the judicial department of the government. Again, it is apparent from the executive communication accompanying the question submitted, that the object of the inquiry in this case is not merely to obtain information by which the conduct of the penitentiary commissioners shall be guided in the future; it is not intimated that the commissioners desire an opinion of the court upon the subject; on the contrary, some of them were present by their attorneys upon the argument, and in the presence of the court and the governor protested against the promulgation of an opinion in this ex parte proceeding. We cannot ignore the fact that serious differences have existed for some time between the executive and some of the officers of the state penitentiary in respect to the management of that institution, and that executive orders adverse to some of said officers have been made in reference thereto. It is possible that actual litigation in the courts may arise in consequence of such differences, as in the case of Trimble v. The People ex rel. Phelps, ante, 187. It is of the utmost importance, therefore, that this court should not, in any manner, indicate in advance its opinion as to the rights or claims of the parties which ma}^ be involved in such controversy. While we cannot avoid the exercise of jurisdiction in respect to such controversies when they actually arise and are brought to this court in the ordinary course of litigation, we may, and manifestly ought to, abstain from the expression of any opinion in advance which could possibly prejudice the rights of the parties or embarrass the court in case its jurisdiction should hereafter be invoked in the regular course of judicial proceedings. We must, therefore, under the circumstances, respectfully decline to say more in response to the communication and inquiry submitted.