In re Constitutionality of House Bill No. 222
| Decision Date | 04 February 1936 |
| Citation | 262 Ky. 437 |
| Parties | In re Constitutionality of House Bill No. 222. |
| Court | United States State Supreme Court — District of Kentucky |
1. Constitutional Law. — Act authorizing rendition of advisory opinions by justices of the Court of Appeals upon request of Governor or either House of the General Assembly held unconstitutional, since Court of Appeals has "appellate jurisdiction" only (Acts 1936, House Bill No. 8; Constitution, secs. 27, 28, 110).
Word "appellate" as used in Constitution, sec. 110, giving Court of Appeals "appellate" jurisdiction only is used in contradistinction to the word "original" jurisdiction, which is jurisdiction conferred upon or inherent in a court in first instance.
2. Constitutional Law. — A power or duty forbidden by the Constitution cannot be conferred upon the court by Legislature, and cannot be exercised by court or its members.
Denying advisory opinion.
House Bill No. 8, which was passed by the General Assembly and approved by the Governor on January 22, 1936, provides that the Governor by a request in writing, or either House of the General Assembly by resolution of such House, may obtain the written opinion of the justices of the Court of Appeals of Kentucky, or a majority thereof, on important constitutional questions, and all such opinions shall be published in volumes entitled, "Advisory Opinions of C. of A."
Section 1 of House Bill No. 222 provides that no state tax shall be levied, assessed, or collected on real estate. Section 2 imposes a tax of 50 cents upon each $100 of the value of all property which is directed by law to be assessed for taxation, except real estate. Subsection (a) of section 2 imposes a tax of one-tenth of 1 per cent. upon the deposits in any bank, trust company, or combined bank and trust company organized under the laws of the state. Subsection (b) deals with the taxation of building and loan associations.
On January 30, 1936, the House of Representatives, after referring to House Bill No. 8, and the doubt in the minds of the members of the House as to the constitutionality of section 1 of House Bill No. 222, passed a resolution requesting the justices of the Court of Appeals to deliver to the House on or before Tuesday morning, February 4, 1936, a written opinion as to the constitutionality of House Bill No. 222.
We have had the resolution under advisement, and have given it that consideration which a communication from a branch of a co-ordinate department of the government is entitled to receive.
If the act authorizing the rendition of advisory opinions is in conflict with our Constitution, it imposes no duty, and any opinion expressed in pursuance of action under it is extrajudicial, and no official responsibility attaches to the judges or court voluntarily giving it. In re Application of Senate, 10 Minn. 78 (Gil. 56). It is true that the highest courts of Colorado, Florida, Maine, Massachusetts, New Hampshire, Rhode Island, and South Dakota may render advisory opinions, but it is because the Constitutions of those states expressly impose upon them the duty to render such opinions. In states having no such provisions in their Constitutions, it is generally held that constitutional provisions similar to sections 27 and 28 of our Constitution, dividing the powers of government into three distinct departments, legislative, executive, and judicial, and providing that no person or collection of persons being of one of those departments shall exercise any power properly belonging to either of the others, not only prevent an assumption by either department of powers not properly belonging to it, but forbid the imposition by one of any duty upon either of the others not within the scope of its jurisdiction, and therefore forbid an assignment to the judiciary of any duties not properly judicial and to be performed in a judicial manner. Following this rule the courts take the view that the rendition of advisory opinions is not a judicial act, and may not be required of the courts. Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436; In re Application of Senate, 10 Minn. 78 (Gil. 56); State v. Baughman, 38 Ohio St. 455.
However, we do not have to go that far, Section 110 of the Constitution is as follows:
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