64 A.2d 169 (Vt. 1949), In re Constitutionality of House Bill 88

Citation:64 A.2d 169, 115 Vt. 524
Party Name:IN RE CONSTITUTIONALITY OF HOUSE BILL 88
Case Date:February 08, 1949
Court:Supreme Court of Vermont
 
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64 A.2d 169 (Vt. 1949)

115 Vt. 524

IN RE CONSTITUTIONALITY OF HOUSE BILL 88

Supreme Court of Vermont

February 8, 1949

          OPINION

          "February 8, 1949

         The Honorable Sherman R. Moulton

         Chief Justice of the Vermont Supreme Court

         178 South Prospect Street

         Burlington, Vermont

         Dear Mr. Chief Justice:

         The Legislature of the State of Vermont has passed, and I have signed, House Bill No. 88 entitled "AN ACT TO PROVIDE FOR OPINIONS BY THE SUPREME COURT ON THE CONSTITUTIONALITY OF PENDING OR PROPOSED BILLS OR RESOLUTIONS AND ON THE CONSTRUCTION OF CONSTITUTIONAL PROVISIONS." The following requests are made by virtue of this law.

         I have grave doubts as to the constitutionality of House Bill No. 88, and I particularly refer to Section 5 of Chapter 2 of the Constitution of Vermont which reads "Section 5. The legislative. [115 Vt. 525] executive and judicial departments, shall be separate and distinct, so that neither exercises the powers properly belonging to the others."

         As Governor of the State of Vermont, I respectfully request your Court for an opinion as to the construction of this Section of our State Constitution and as to

Page 170

whether or not H. 88 is or is not constitutional.

         If you find that H88 is, in the Court's opinion, constitutional, then I call the Court's attention to another Bill, House Bill No. 40, entitled "AN ACT TO ENABLE A TOWN TO AUTHORIZE ITS SCHOOL DIRECTORS TO CONTRACT WITH OTHER TOWNS TO PROVIDE MEANS AND FACILITIES FOR EDUCATION." H40 is pending legislation. It has been passed by both Houses of the Legislature and will be delivered to me within the next day or two.

         The particular question in my mind arises in connection with Section 64 of the Vermont Constitution, which, among other things, provides... "A competent number of schools ought to be maintained in each town for the convenient instruction of youth..." It seems to me that a determination of the word "ought" is necessary so that the constitutionality of H40 may be determined. In this connection I respectfully propound the following questions:

         1. Is House Bill No. 40 constitutional?

         2. Is a town required to maintain a school within its town limits?

         3. May two or more towns consolidate for the purpose of maintaining schools for the benefit of the youth in the respective towns? Respectfully, Ernest W. Gibson Governor" February 11, 1949

         To His Excellency

         The Honorable Ernest W. Gibson,

         Governor of the State of Vermont:

         In reply to your communication of February 8, 1949, addressed to the Chief Justice of the Supreme Court of this State, in which [115 Vt. 526] you ask for an advisory opinion by the Supreme Court as to the constitutionality of House Bill No. 88, which has been signed by you, and if that Act be held to be constitutional, a further advisory opinion as to certain specified portions of House Bill No. 40, we have to say that, after consideration of the powers and function of the Vermont Supreme Court and its position with respect to the other coordinate departments of the government as prescribed by the Constitution of this State, we are obliged most respectfully to decline to comply with your request, for reasons which will be hereinafter stated.

         House Bill 88 is as follows:

         "AN ACT TO PROVIDE FOR OPINIONS BY THE SUPREME COURT ON THE CONSTITUTIONALITY OF PENDING OR PROPOSED BILLS OR RESOLUTIONS AND ON THE CONSTRUCTION OF CONSTITUTIONAL PROVISIONS.

         It is hereby enacted by the General Assembly of the State of Vermont:

         Section 1. The governor, or the senate and house of representatives by joint resolution, may request of the Supreme Court, whether or not in session, an opinion as to the constitutionality of a pending or proposed bill or resolution, or an opinion as to the construction of a section, paragraph, clause or word of the Vermont constitution.

         Sec. 2. The request of the governor, or a copy of such resolution, when adopted by the senate and house of representatives and approved by the governor, certified by the secretary of state, shall be by the governor or said secretary, as the case may be, transmitted to the chief justice of such court.

         Sec. 3. Upon receipt of such request or copy said court, if in session shall forthwith proceed to the consideration of the subject matter thereof, and if not in session shall be forthwith called in session by the chief justice for such purpose.

         Sec. 4. When said court reaches a decision on the subject matter so submitted to it, it shall cause copies of its written opinion thereon to be forthwith transmitted by the clerk of said court to the governor, and, if the legislature is in session, to the president of the senate and the speaker of the house of representatives, [115 Vt. 527] respectively; and such opinion shall be published in the...

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