In re Senate Resolution Relating to Senate Bill No. 65

• Decision Date: 05 April 1889
• Docket Number: 2,478.
• Parties: In re SENATE RESOLUTION RELATING TO SENATE BILL NO. 65.
• Court: Colorado Supreme Court

21 P. 478

12 Colo. 466

In re SENATE RESOLUTION RELATING TO SENATE BILL NO. 65.

No. 2,478.

Supreme Court of Colorado

April 5, 1889

The resolution and question submitted to the court read as follows: 'Whereas, senate bill No. 65 proposes to materially increase the fees and emoluments of the several district attorneys in the state: Therefore be it resolved that the supreme court be requested to answer the following question: Will the provisions of senate bill No. 65 apply to the district attorneys now in office?' The constitutional amendment adopted in the fall of 1886, and construed in the opinion of the court, reads: 'The supreme court shall give its opinion upon important questions upon solemn occasions, when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connection with the reported decisions of the court.' Amendment to section 3, art. 6, Const.

HELM, C.J.

The framers of our constitution specified the jurisdiction to be exercised by this court. They declared that, with certain designated exceptions, this jurisdiction should be purely appellate and supervisory. A few writs and proceedings were named, in connection with which the court was clothed with original jurisdiction. Section 3, art. 6. The section mentioned has been construed by this court as applying only to cases where questions publici juris are raised thus excluding from this branch of its jurisdiction all controversies wherein private rights alone are involved. Wheeler v. Irrigation Co., 9 Colo. 248, 11 P. 103. The reasons for this construction are obvious and potent. They are considered in the opinion referred to, and will not here be restated. The provision authorizing legislative and executive questions was not originally a part of the constitution. It has been in effect less than three years. It is an enlargement of the original jurisdiction of the court conferred by said section 3 of the judiciary article. It adds to the list of writs there specified an unique and important proceeding,--unique, because, as we shall presently see, it is devoid of nearly all the usual indicia of judicial proceedings; important, because of its consequences. All of the reasons relied upon for confining the writs specified in section 3 of article 6 to questions publici juris apply with even greater force to the novel proceeding authorized by the provision before us for, while this proceeding is original, and in that respect similar to the other original proceedings referred to, yet it possesses characteristics peculiar to itself. Not only should its operation be confined to questions publici juris, but, as we shall endeavor to show, even questions of this character should rarely be thus presented or considered. It will be observed that the authority conferred is accompanied by an express limitation. 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. It is impossible to state any absolute rule by which the sufficiency of this importance and the degree of this solemnity can be determined. These are matters that rest largely in the discretion of both the legislature and court for, while the legislature is first to judge of the relative importance and solemnity justifying a given question, it has been held that the justices have also a voice in deciding whether jurisdiction should be entertained. Opinion of the Justices, 49 Mo. 216. The court will seldom question the action of the legislature in this respect, but the right so to do should not be denied. It is submitted, however, that, for reasons hereinafter stated, the greatest caution should be employed, both by the legislature and court, in exercising the discretion just mentioned. As already suggested, there are peculiar reasons for excluding from the purview of the provision before us legislative and executive questions affecting private or corporate rights,--reasons not applicable in the exercise of the original jurisdiction of the court in connection with the other original writs or proceedings provided for.

Only five states of the entire Union have ventured to adopt and retain constitutional provisions in any way analogous to this constitutional amendment. At one time there existed in Missouri a provision somewhat similar, but the framers of the Missouri constitution of 1875, profiting, we suppose, by experience, excluded the same therefrom, and we are not aware that any effort has since been made looking to its restoration. But Colorado has gone further than the states referred to, in this doubtful and perilous experiment by adding two peculiar features, one of which at least seriously increases the danger. By the express words of the corresponding provisions in each of the other states the questions are limited to questions of law, and the justices, not the court, are to respond. These officers appear to be merely legal advisors, occupying much the same relation in this regard to their respective general assemblies as does the attorney general of Colorado to the state legislature. Their written responses, when questioned, are not always published in the reports. They are not pronounced by the court, and hence are not technically judicial decisions, nor do they necessarily constitute judicial precedents. In this state, on the other hand, the interrogatories are not expressly limited to questions of law, and it is the court, not the justices, that...