In re Interrogatories of the Senate

Mr. Justice White delivered the opinion of the court: In considering interrogatories propounded under section 3 of article VI of the constitution, this court, soon after the adoption of the constitutional provision, established certain rules governing the practice to be observed in the exercise of the jurisdiction conferred. As the authority conferred and duty imposed upon'the court to give its opinion is “upon important questions, upon solemn occasions,” and not whensoever required by the governor, the senate or the house of representatives, it was held that the duty rested finally upon the court to determine for itself as to the solemnity of the occasion and the importance of the questions propounded. Moreover, that the question' must relate to* purely public rights, be propounded upon a solemn occasion, and possess a peculiar or inherent importance not belonging to all questions of the kind; that executive questions must be exclusively publici juris, and legislative ones be connected with pending legislation, and relate either to the constitutionality thereof or to matters connected therewith of purely public right. — In the Matter of the Constitutionality of Senate Bill No. 65, 12 Colo. 466, 471; In the Matter of Senate Resolution on the Subject of Irrigation, 9 Colo. 620; In Re Appropriations, 13 Colo. 316, 321; In Re Speakership, 15 Colo. 520; In Re Fire and Excise Com., 19 Colo. 482; In Re House Bill No. 99, 26 Colo. 140; In Re Senate Resolution No. 10, 33 Colo. 307. At an early date, speaking through chief justice Helm, this court, in In the Matter of the Constitutionality of Senate Bill No. 65, 12 Colo. 466, 471, 472, said: “We feel con — 171 — strained to repeat and emphasize the thought heretofore expressed, that the utmost vigilance and caution be exercised by both the general assembly and the court in acting under this novel constitutional authority. There cannot well be too much moderation in the premises. We note that, in those states which permit consultation with the justices, the privilege seems to be less often invoked than it has been here. The attorney general is the natural as well as the statutory legal adviser of the executive and legislative departments. ■ His counsel should be solicited; and only as a dernier ressort, upon the most important questions and the most solemn occasions, should the court be requested to act.” He further therein said that, “While the question must be one relating to purely public rights, it can only be propounded upon solemn occasions, and it must possess a peculiar or inherent importance not belonging to all questions of the kind. * * 1 * Upon mature investigation and reflection we are of the opinion that executive questions must be exclusively juris publici, and that legislative questions must be connected with pending legislation, and relate either to the constitutionality thereof, or to matters connected therewith, of purely public right. We believe that the accuracy as well as the wisdom of this interpretation will commend themselves alike to the legislative judgment and the legal mind.” And in referring to that decision Mr. Justice Elliott, speaking for the court in In Re Appropriations, supra, said: “The latter opinion was announced after much consideration, and is authority for saying that this court must decide for itself, as to ^any given question, whether or not it should exercise the jurisdiction of answering the same; and that only questions of law publici juris, and not questions affecting private or corporate rights, should be thus answered. That decision was based upon the fundamental doctrine that for this court to answer questions of the latter class, ex parte, would inevitably result in disposing of the rights or claims of litigants without due process of law, without counsel, and with — 172 — out allowing them their day in court.” And in In Re Fire and Excise Commissioners, supra, it is said: “While we concede to the governor full liberty to submit such questions as he may deem consistent with his executive powers, this court reserves for itself the right to express its opinion freely, in whole or in part, or not at all, as it shall deem consistent with its judicial powers and constitutional obligation.” It is further therein said: “Were it not for the threatened dangers by force, military and otherwise, the question propounded would not be important nor the occasion solemn.” And in the same opinion, on page 499, upon the question of an incumbent of an office attempting to hold over in opposition to an executive order of removal, it is said: “* * * if the executive order of removal is questioned by the incumbent, the courts have the power, and it is exclusively within their province, to pass upon such objections and determine as between the respective claimants the right tO' the office in question, and the law provides a plain and adequate procedure for that purpose; and a speedy determination of such question is assured by express statute. Mills’ An. Stats., p. 830. All law-abiding citizens will, and all others should be required to, submit such controversies to these tribunals for settlement.” And in In Re Senate Resolution No. 10, supra, “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.” These rules have been applied, and such has been the practice in this state for a fourth of a century. Occasionally, it may be, as pointed out in In Re House Bill No. 99, supra, “There was a departure from it, but an examination of those cases shows that it was for reasons held conducive to the public welfare, and because the cases were of extreme emergency. * * * When we thus made answer we deviated somewhat ' from the established practice to which, at the first opportunity, — 173 — we now return. In doing so, we are satisfied that we are purr suing the only safe course, and one-that commends itself to the judgment of the thoughtful and earnest legislator, as well as to the members of the bar and publicists who have given to the subject careful attention.” > Those cases, nevertheless, it- should be observed, carefully avoided determining any private rights. There was involved in In Re Speakership, the legality of the organization' of the house of representatives, each of two1 rival organizations claiming to constitute that body. Incidentally, the court was asked, among other things, to say who was then the- speaker of the house of representatives. We did not give a direct: answer to the question. On the contrary, we held' substantially, that as the constitution invests the house of representatives with the power to judge of the election and qualification of its members, and likewise invests it with the power to elect its own speaker, and such power is continuing and no other department of the government has any voice in the matter, such branch of the general assembly “must assume and bear the responsibility for the exercise of their powers,” and that it-could remove and elect another speaker at its pleasure. In Re Fire and Fxcise Commissioners, supra, involved the right of the executive to remove certain fire and excise commissioners from office in the city of Denver, appoint others in their stead, and induct the latter into office by force. As the court had previously held that the power of removal and appointment in that respect was vested in the executive, it therein reaffirmed the holding and declared that the constitutional oath of the executive to “take care that the laws be faithfully executed” imposed no obligation upon him to enforce his order of removal, and that a proper regard for the reputation and peace of the community would dictate that the appointees institute proper proceedings in court to' determine their rights to the office. In other‘words, the Speakership case declared that the house of representatives was the tribunal to ascertain 'and determine ’who was its Speaker. While — 174 — the Fire Commissioners’ case declared that the governor was the person invested by law to hear charges against and remove for cause the fire and excise commissioners of the city of Denver and to appoint their successors. This was in effect saying only that whatsoever person, body or tribunal, invested by law with the power to appoint or remove from public office, has the exclusive right to exercise the power, and it is the duty of good citizens to accept and abide by that which is so done in the premises. The matters involved in In Re Senate Resolution No. 10, supra, concerned a contest for the governorship, pending before the general assembly. It was therein pointed out that the contestar and the contestee were actual litigants before the general assembly, having submitted their respective claims to the determination of that body, and as the questions submitted to the court for answer arose out of that contest, the parties litigant were necessarily before the court as to the matters involved, and it was not an ex parte proceeding. Testing the questions propounded by the rules established, it is evident that we should not assume jurisdiction in the premises. The occasion is not of sufficient solemnity, and private rights are involved. It is conceded that when the nineteenth general assembly convened it was the duty of Stephen R. Fitzgarrald to appear in, and preside over the deliberations of the senate during the term for which he was elected. Sec. 14, art. IV, constitution. It is likewise conceded that it was the duty of the senate, at the beginning of its session, to elect one of its members president pro tempore. Sec. 10, art. V, constitution. We are advised by the resolution that such duties were duly performed, and the only circumstance in addition thereto is, that on the 3rd day of January, during the time Fitzgerrald was unquestionably the lieutenant governor, he stated to' the senate, in answer to some inquiry made, that he had concluded it was his duty, under sections 1 'and 10 of article XII of the constitution, to hold the office of lieutenant governor after the 14th of January until a successor ap — 175 — peared, elected and qualified as such officer, or until such time as it was legally determined otherwise. This is the extent of the controversy as disclosed by the resolution and questions propounded. If Montgomery had lived, qualified for the office and assumed the duties thereof, the senate would, nevertheless, have elected a president pro tempore. So it does not appear that the orderly procedure of the senate has been affected by that which has occurred, or that Fitzgarrald’s’ claimed right to perform the duties of lieutenant governor been legally questioned. Whether Fitzgarrald is rightfully entitled to hold over, his acts as such officer are necessarily valid. If he be not the de jure lieutenant governor, he is unquestionably such officer de facto. This is elementary. 29 Cyc., p. 1392. He was legally in the office. He is still therein, actually performing the duties thereof. Under these circumstances, surely the •occasion is not one of solemnity, and we are not authorized under the constitutional provision to answer questions propounded to the end that solemn occasions may not arise. It is only-upon solemn occasions that we are authorized to act. Moreover, it is not to be presumed that either public officials or private citizens will disregard the orderly procedure of the law, but, on the contrary, when claimed rights are questioned, or sought to be questioned, resort will be had to the proper tribunals established for the purpos of determining such matters. Furthermore, to answer the questions propounded would, as hereinbefore stated, involve a determination of private rights in an ex parte proceeding. It would necessarily determine the title to the office of lieutenant governor and to whom the salary pertaining to such office properly belongs. If Stephen R. Fitzgarrald is the lieutenant governor, entitled to perform the duties of that office, he is likewise entitled to receive the emoluments thereof, but if he is not the lieutenant governor, and some other person is entitled to perform the duties of such office, the latter person is entitled to receive the — 176 — emoluments of the office. — People ex rel. v. Cornforth, 34 Colo. 107. Such private rights can not be determined in an ex parte proceeding to which such possible claimants of the office, and the salary pertaining thereto, are in no wise parties. If any public official or tax-paying elector desires to question the right of Mr. Fitzgarrald to hold the office of lieutenant governor, the law has provided a tribunal and adequate procedure for that purpose, wherein both private and public rights may be properly considered and protected. Such was the case and procedure in People ex rel. v. Cornforth, supra, wherein this court assumed original jurisdiction. We shall continue, as heretofore; to observe the requirements of , all constitutional provisions, including the one now , under consideration, and take pleasure in rendering such assistance to every department of government as shall be consistent with our duty and in harmony with a sound exposition of the constitution.. T’o adhere to the rules established by this court we deem wiser and more seemly than to- place a- different interpretation upon a constitutional provision that would necessarily bring confusion and uncertainty. We are persuaded that this course will commend itself to both the legislative and the legal mind. In view- of the foregoing consideration we respectfully ask the honorable senate to recall the questions propounded. Decision en banc. Mr. Justice Hill and Mr. Justice Scott dissent.