Self-Insurers' Ass'n v. State Indus. Comm'n (In re Workmen's Comp. Fund)

• Decision Date: 28 May 1918
• Citation: 119 N.E. 1027,224 N.Y. 13
• Parties: In re WORKMEN'S COMPENSATION FUND. SELF-INSURERS' ASS'N et al. v. STATE INDUSTRIAL COMMISSION.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 13

119 N.E. 1027

In re WORKMEN'S COMPENSATION FUND.

SELF-INSURERS' ASS'N et al.

v.STATE INDUSTRIAL COMMISSION.

Court of Appeals of New York.

May 28, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

The State Industrial Commission certified a question in Re Workmen's Compensation Fund to the Appellate Division, and the Self-Insurers' Association and the New York Central Railroad Company were permitted to appear and file briefs. From the order of the Appellate Division (168 N. Y. Supp. 1130), answering the question affirmatively, the association and the railroad appeal. Appeal dismissed.

R. A. Mansfield Hobbs, of New York City, Robert E. Whalen, of Albany, and George A. Blauvelt, of New York City, for appellants.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent.

CARDOZO, J.

On July 2, 1917, one of the members of the state industrial commission proposed to that body a resolution that every mutual compensation insurance company and every self-insurer should pay into the state fund, under section 27 of the Workmen's Compensation Law, as amended by chapter 705 of the Laws of 1917, the present value of death benefits under every award against such insurance carriers for deaths occurring between July 1, 1914, and July 1, 1917, inclusive. The resolution was neither adopted nor rejected. All that the commission did was to recite that there was doubt about its power, and to certify to the Appellate Division a question of law to be answered by that court. The following is the question certified:

‘Has the state industrial commission power and authority under the provisions of section 27 of the Workmen's Compensation Law, as amended by chapter 705 of the Laws of 1917, to require the payment into the state fund, in accordance with the provisions of said section, of the present value of unpaid death benefits in cases in which awards were made prior to July 1, 1917?’

[1] At the Appellate Division the Self-Insurers' Association, an unincorporated body of insurers, was allowed to appear and file a brief. Like permission was granted to the New York Central Railroad Company. Till then the Attorney General stood before the court alone. Even afterwards there were no adverse parties. There were merely friends of the court striving to enlighten its judgment. The Appellate Division did not order anything to be done or foreborne. It could not. It merely answered a question. Its order was that the question propounded be answered in the affirmative. It thereupon granted leave to the interveners to appeal to this court. The same question that was certified to the Appellate Division has been certified to us.

[2] The determination of such an appeal is not within our jurisdiction. The practice is said to be justified under section 23 of the act. That section authorizes an appeal to the Appellate Division from an award or decision of the commission. It also provides that:

‘The commission may also, in its discretion, * * * certify to such Appellate Division of the Supreme Court, questions of law involved in its decision.’

Appeals may be taken to this court subject to the same limitations as in civil actions. Matter of Harnett v. Steen Co., 216 N. Y. 101, 110 N. E. 170.

Nothing in these provisions sustains the practice followed. The commission made no decision. There was no case or controversy before it. No summons to attend a hearing had been given to the insurance carriers. No carrier had appeared. The members of the commission, debating their powers among themselves, asked and obtained the advisory opinion of a court. Without notice to the carriers to be affected by their action, they fortified themselves in advance by judicial instruction. In such circumstances the answer of the Appellate Division bound no one and settled nothing. We do not know that the commission will ever adopt the proposed resolution. If it does, and so notifies the carriers, the legality of its action will remain open for contest in the courts. No advice that may now be given in response to a request for light and guidance can prejudge the issue or control the outcome.

[3] In that situation our duty is not doubtful. The function of the courts is to determine controversies between litigants. Interstate Commerce Commission v. Brimson, 154 U. S. 447, 475, 14 Sup. Ct. 1125, 38 L. Ed. 1047;Osborn v. Bank of U. S., 9 Wheat. 738, 819, 6 L. Ed. 204;Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293;Marye v. Parsons, 114 U. S. 325, 330,5 Sup. Ct. 962,29 L. Ed. 205;Am. Book Co. v. Kansas, 193 U. S. 49, 24 Sup. Ct. 394, 48 L. Ed. 613. They do not give advisory opinions. The giving of such opinions is not the exercise of the judicial function. Thayer, Cases on Constitutional Law, vol. 1, p. 175; American Doctrine of Const. Law, 7 Harvard Law Review, 153. It is true that in England the custom of the Constitution makes the judges of the high court the assistants of the Lords, and requires them, upon the demand of the Lords, to give ‘consultative’ opinions. Thayer, supra; Opinion of the Justices, 126 Mass. 557, 562. But that custom is a survival of the days when the judges were members of the great council of the realm. Thayer, supra; T. E. May, Parliamentary Practice (12th Ed.) pp. 55, 56, 182; Anson, Law and Custom of the Constitution, pp. 45, 52, 449. In the United States no such duty attaches to the judicial office in the absence of express provision of the Constitution. Dinan v. Swig, 223 Mass. 516, 519, 112 N. E. 91;Opinion of Court, 62 N. H. 704, 706;Rice v. Austin, 19 Minn. 103 (Gil. 74)18 Am. Rep. 330. Even in those states, e. g., Massachusetts, Maine, and New Hampshire, where such provisions are found, the opinions thus given have not the quality of judicial authority....