In re Opinion of the Judges

• Decision Date: 10 June 1914
• Parties: In re OPINION OF THE JUDGES.
• Court: South Dakota Supreme Court

34 S.D. 650

147 N.W. 729

In re OPINION OF THE JUDGES.

Supreme Court of South Dakota.

June 10, 1914.

In the matter of a requested opinion of the Judges of the Supreme Court. Request denied.

To His Excellency, Frank M. Byrne, Governor of the State of South Dakota-Sir:

On May 12, 1914, you presented to the judges of the Supreme Court the following communication:

“To the Honorable the Supreme Court of the State of South Dakota, and to the Judges thereof: I desire to call your attention to the fact that chapter 64 of the Session Laws of 1907 of the state of South Dakota, being an act providing for the assessment of the propertyof railway, telegraph, telephone, express, and sleeping car companies, has been declared invalid, as being repugnant to the Constitution of the state of South Dakota, and particularly to section 17 of article 6 thereof, and section 2 of article 11, by a decision of the United States Circuit Court of Appeals of the Eighth Circuit, opinion by Judge Sanborn, entered at St. Louis, on May 4, 1914, in certain litigation between the state of South Dakota and the American and Wells Fargo Express Companies.

“Section 13 of article 5 of the Constitution authorizes the Governor to require the opinion of the judges of the Supreme Court of this state, upon important questions of law involved in the exercise of his executive powers, and upon solemn occasions, and after reading the different opinions of your honorable court, construing the section of the Constitution above referred to, and a letter of Royal C. Johnson, Attorney General of South Dakota, transmitted to me on May 11, 1914, a copy of which is annexed hereto and made a part hereof, I am convinced that it is my duty, as Governor of this state, to request of your honorable court its opinion as to whether or not the statute referred to is in violation and repugnant to the Constitution of the state of South Dakota, and I hereby make application to you to render a decision deciding such question.”

“It appears to the legal department of the state, and myself, that the Supreme Court of this state is the final arbiter of this important question, and that this is the only method whereby the matter can be presented to you. If this statute is invalid, it may be necessary to call a special session of the Legislature of this state, and, in any event, the very life of the state is involved, as it cannot exist without the revenue derived from taxation.

“The specific question upon which your opinion is required is: Were sections 16 to 23 inclusive, of chapter 64, Laws of 1907, valid when enacted, and not repugnant to the provisions of the Constitution cited by the Attorney General? If not, are they valid now by virtue of the 1912 amendment to section 2 of article 11 of the state Constitution, and chapter 347, Laws of 1913?

“The Attorney General assures me of his desire, if, in your opinion, it is desirable or necessary, to file copies of the briefs both of the state, and of the express companies, which were before the Court of Appeals in these cases, and also to appear together with the counsel for those companies, if they should desire to be heard, and submit arguments and additional briefs as the court may direct.

“Copy of the communication addressed to me by the Attorney General is annexed hereto and made a part hereof.

“Respectfully submitted,

“Frank M. Byrne,

“Governor of the State of South Dakota.”

On May 22, 1914, the judges made the following reply:

“To his Excellency, Frank M. Byrne, Governor of the State of South Dakota-Sir: We have given careful consideration to your request of May 12, 1914, for an opinion on these two questions, viz.:

“‘Were sections 16 to 23, inclusive, of chapter 64, Laws of 1907, valid when enacted, and not repugnant to the provisions of the Constitution?

“‘If not, are they valid now by virtue of the 1912 amendment to section 2 of article 12 of the state Constitution, and chapter 347, Laws of 1913?’

“We are firmly convinced of two things: First, that, under the former opinions of the judges of this court given in response to similar requests made upon the authority of section 13 of article 5 of the Constitution, and under the opinions of the judges of other courts under like circumstances, we must respectfully decline to answer the questions propounded. Second, that if such questions were answered by us the answer would not amount to a decision of this court, but would merely be an advisory opinion of the judges, not conclusive upon the rights of parties and binding on no one. Hence it would not accomplish the avowed purpose of the questions as disclosed by your valued communication.

“We will as soon as possible prepare and submit to your excellency a formal opinion embodying the reasons that compel us to decline to comply with your request.

“Respectfully yours.”

Pursuant thereto, we now give our reasons for declining to answer the questions.

[1] ‘Section 13, art. 5 of the Constitution reads as follows:

“Sec. 13. The Governor shall have authority to require the opinions of the Judges of the Supreme Court upon important questions of law involved in the exercise of his executive powers and upon solemn occasions.”

There are therefore two classes of cases when the request for an opinion is authorized: First, when an important question of law is involved in the exercise of the executive powers; second, upon solemn occasions. It is manifest from your communication and from the letter of the Attorney General, which is by reference made a part thereof, that the questions asked are not involved in the exercise of the executive powers. Is this then a “solemn occasion”?

Since the adoption of our Constitution there have been 11 requests made by the Governor for the opinions of the judges. Eight of these requests were answered; the opinions appearing in 2 S. D. 58, 48 N. W. 813;2 S. D. 71, 48 N. W. 812;3 S. D. 456, 54 N. W. 417;4 S. D. 532, 57 N. W. 495;6 S. D. 518, 62 N. W. 101, 55 Am. St. Rep. 852;6 S. D. 540, 62 N. W. 129;7 S. D. 42, 63 N. W. 223, and 13 S. D. 191, 83 N. W. 96. Three of the requests were not complied with, as appears in 3 S. D. 548, 54 N. W. 650, 19 L. R. A. 575;8 S. D. 274, 66 N. W. 310, and 10 S. D. 249, 72 N. W. 892.

In the opinion reported in 3 S. D. 548, 54 N. W. 650, 19 L. R. A. 575, the judges of this court declined to answer a parliamentary question involving the interpretation of a constitutional provision; the question being submitted by the Legislature through the Governor. In that opinion it was stated:

“It is a principle declared by our Constitution (section 2, art. 6), and of universal recognition, that no person shall be deprived of life, liberty, or property without due process of law. There can be no due process of law unless the party to be affected has his day in court. Yet a hasty construction and application of this provision might lead to the ex parte adjudication of private rights by means of an executive question, without giving the party interested a day or voice in court. *** The question propounded by the joint resolution under consideration calls for the construction of an important section of the Constitution, relating purely to legislative duty and requirement. Any answer to the question would necessarily affect vast property interests and profound questions of public policy. There may be now, in this and other courts of the state, actions through which some of these matters are in process of adjudication. To...