In re Senate Resolution No. 10

Per Curiam. The first proposition to consider is] whether or not we should answer the questions propounded. The constitution provides that: “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.” — Sec. 3, Art. VI. It will be observed that the only limitation imposed upon the authority of the executive and legislative departments as to when either may require the opinion of this court is “upon solemn occasions.” Under this provision many questions have been submitted for our consideration, some of which have been answéred, and others not. Necessarily, it was not intended that the legislative and executive departments of government could call upon this court for an opinion on every question which might arise [312] in the discharge of their functions, but was limited to questions which so vitally affected public interest as to render it necessary for the public welfare to have a declaration from the highest judicial tribunal in the state. The department propounding the question in the first instance determines whether an occasion exists which justifies its submission, but it remains for the court to finally determine that proposition. Most of the questions submitted in the past have been from the legislative department on the subject of pending legislation. One prerequisite required in such matters is that it must appear that the bill which is the subject of inquiry will likely pass the branch of the general assembly submitting the question, and the particular section of the constitution to be considered in connection therewith must be pointed out. It has also been held that the title to an office, or the construction of an existing statute, or private rights would not be determined in an ex parte proceeding in answer to a legislative question. It is obvious that neither of these rules is applicable in the present instance. In the passage of bills the preliminary steps indicate whether or not any particular bill is likely to pass, but in contest proceedings there is no provision 'by which the action of members can be recorded except when voting on the merits. On pending legislation the question of the validity of a bill depends upon whether its provisions violate the constitution, and therefore in submitting a question to this court on' that subject, the sections of the constitution supposed to be involved should be pointed out, but that is not this case. 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, but this is not an ex parte proceeding. [313] There are actual litigants, the contestor and the contestee. They are before .the general assembly, and have submitted their respective claims to the determination of that body. The general assembly has submitted to the court certain questions arising out of that contest, and for the purpose of considering these questions, the parties litigant are before this court. The fact that it is asserted that the rights of the lieutenant-governor are involved does not preclude the court from considering the questions under any decision heretofore announced. It does not appear that he is making any claim to the office of governor. The questions are the. outgrowth of pending litigation, and tribunals to which matters in controversy may be properly submitted cannot refuse to proceed with the litigation and determine the rights between the parties litigant, unless it appears that the presence of other parties is necessary for a complete determination of the controversy. None of the rules we have heretofore announced in determining whether or not questions submitted by the general assembly should be answered, are applicable in the present circumstances, and the remaining question on this subject is, whether or not conditions are presented which require this court to answer and give an opinion on the interrogatories submitted? The contest relates to the office of governor. It is common knowledge that considerable time has been consumed by the general assembly in hearing this contest, .and that the welfare of the public demands that the controversy be speedily settled. It appears that members of the general assembly desire to be advised as to the power and authority of the joint convention to consider the Alexander report; and that until this question is in some way satisfactorily settled, much time, at least, will be consumed in discussing the various phases of the contest proceedings [314] as presented by the respective reports. In short, the general assembly wishes to be advised with respect to its authority in disposing of this contest so that intelligent action may be taken, or action which might be illegal, prevented. Certainly, under these conditions, grave questions are presented which vitally affect the public interests, and which this court, by virtue of the constitutional provision referred to, should aid as far as possible in having speedily and correctly settled. The. majority of the court is of the opinion that questions are presented upon which an opinion should be given. We come, then, to a brief consideration of the questions propounded. The constitution' provides that contested elections for the office of governor shall be determined by the two houses on joint ballot, in such manner as may be prescribed by law. — Sec. 3, Art. TV. The provisions of the law which have been passed in pursuance of the constitutional provision are brief and clear. They prescribe the manner of initiating the contest, the various steps which shall be taken, and the rules to be observed in conducting the contest. They will be found in sections 1657 to 1660, 1 Mills’ Ann. Stats., both inclusive. Neither the constitution nor statutory provisions on the subject contemplate giving any power or authority to the general assembly to decide anything more than the issues between the contestor and the contestee, and render judgment accordingly. We must, therefore, answer the- first and second interrogatories in the negative. This conclusion renders it unnecessary to answer, 'or enter upon a discussion of,'the legal questions involved in interrogatory 3, because the conditions cannot arise in the present contest proceedings which render that inquiry pertinent to their determination. Although a majority only of the court is of the [315] opinion that the questions propounded should be answered, it having been determined that they should he, in the decision answering them we are in full accord.