In re Constitutionality of House Bill No. 222

Decision Date04 February 1936
Citation90 S.W.2d 692,262 Ky. 437
CourtKentucky Court of Appeals

Proceeding in the matter of the request of the House of Representatives for an advisory opinion as to the constitutionality of House Bill No. 222.

Advisory opinion denied.

CLAY Chief Justice.

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 governments 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: "The court of appeals shall have appellate...

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29 cases
  • Morgan v. Getter
    • United States
    • Supreme Court of Kentucky
    • September 18, 2014
    ...of merely advisory opinions. Commonwealth, Dep't of Corr. v. Engle, 302 S.W.3d 60 (Ky.2010) (citing In re Constitutionality of House Bill No. 222, 262 Ky. 437, 90 S.W.2d 692 (1936) ). See also, Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo–Federalist Approach, 81 Cor......
  • State ex rel. Morrison v. Sebelius
    • United States
    • Kansas Supreme Court
    • March 11, 2008
    ...Note, Advisory Opinions on the Constitutionality of Statutes, 69 Harv. L.Rev. 1302 (1956); see, e.g., In re Constitutionality of House Bill No. 222, 262 Ky. 437, 90 S.W.2d 692 (1936); In Re: Constitutionality of House Bill 88, 115 Vt. 524, 64 A.2d 169 As the Minnesota Supreme Court stated i......
  • Powers v. City of Richmond
    • United States
    • California Supreme Court
    • May 8, 1995
    ...irrespective of the manner in which they are brought up, whether by appeal or writ of error' "]; In re Constitutionality of House Bill No. 222 (Ct.App.1936) 262 Ky. 437, 90 S.W.2d 692, 693 [quoting the Marbury definition of "appellate jurisdiction"]; Rudnick v. City of Jamestown (N.D.1990) ......
  • State ex rel. Morgan v. State Bd. of Examiners
    • United States
    • Montana Supreme Court
    • April 3, 1957
    ... ... state capitol building including roll call voting machines in the house [131 Mont. 190] of representative chambers; that from the above-mentioned ...         Bill to Amend Enabling Act. In the meantime, Montana's [131 Mont. 203] ... concerning which the Kentucky Court of Appeals in Re Constitutionality of ... Page 352 ... House Bill No. 222, 262 Ky. 437, 90 S.W.2d 692, ... ...
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