Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1880-11-19
An Imr:rlan. Constitutional Amendment.


, other States "rhrproposcd amendment isa,
follows The opinions of the justices of the
Supreme Court on important questions OF
law may be required by the Governor, tho
Senate or the House of Representatives,
when such questions of law are necessary
to be determined by the authority or body
making the inquiry, in the exercise Of ex-
ecutive or legislative functions "Therc is a
similar provision in the constitution of every
other New England State except Connect
cut. That in the constitution of Massachu-
sets is as follows Each branch of the
Legislature, as well as the governor and
council, shall have authority TO require the
opinions of the justices Of the supreme judi
cial court upon important questions of law
and upon solemn occasions" This was
adopted in 1850, and was undoubtedly sug-
gesied by the English usage which permitted
the King or the House of Lords to require
the opinions of the judges.
The provision of the Massachusetts consti-
tuition was few years later, almost without
change of phraseology, incorporated into the
fundamental law of New Hampshire.
The Rhode Island constitution article 10,
section 3, provides that the judges "shall
give their written opinion upon any question
OF law, whenever requested by the Governor
or by either House of the General Assembly"
The provision of the Maine constitution,
which was made familiar by the events of
last winter, is as follows They tho judges
shall be obliged 10 give their opinion upon
important questions of law and upon solemn
occasions, when required by the Governor,
Council. Senate or House of Representa-
tives"
| The trainers Of constitutions outside of
New England have not to any extent follow
ed the lead Of Massachusetts, New IIamp-
shire, Rhode Island and Maine, in the matter
under consideration though the Missouri
constitution of 1860 contained similar pro-
vision, and the constitution of Florida now
in force empowers the governor 10 require
the opinions of the justices. The constitu-
tion Of Pennsylvania contains the following
''No duties shall be imposed by law upon
the Supreme court or any Of the judges
thereof except such As are judicial" This
amounts TO a denial of authority to require
the opinions of the judges, since in giving
such opinions they do not act in a judicial
capacity. They act rather as the advisers Of
the other departments of government and
the function which they tilschargc is extra
judicial
The opinions Of the justices have some
times been requested and given in States
where no constitutional warrant for 50 doing
exists. This was twice at least done in Con-
necticIt, but in 1867 all the members of the
Supreme court of that State united in de
clining TO give an opinion in response to n
request of the general assembly. They say:
| at is believed that in the States where the
practice prevails there IS some constitutional
provision for it :" and they refer to an in
stance in which the judges of IL State without
such a provision pronounced nconstitutiona
statute authorizing either branch of the
legislature to submit to them questions re-
specting contemplated legislation.
In 1868 the Legislature of Vermont passed
ian act providing for soldiers voting" one
section of which provided tha, it should not
take effect until the Governor should obtain
the written answer of the judges of the SG-
preme Court to the question, Are the pro-
visions of this act constitutional y The act
TO take effect or not according to the answer
received. In January, 1864, Governor Smith
submitted the question, and the members of
the Supreme Court, Judges Poland, Adds.
Pierpoint, Barrett, kellog. and Peck, re-
spcnded in an elaborate opinion drawn up
by Judge Poland. In the Fall of the same
year, 1864, the Legislature enacted the fol-
lowing: 'The Governor whenever in his
opinion the interests Of the State demand It,
may require the opinion of the judges of the
Supreme Court or Il ma joriiy ol them upon
any question Of Law connected with the dis
charge Of his duties as executive of the
\ State"
Now, II such Il course as was pursued in
the case of the ''.joldiers Voting Act and
the practice contemplated by the above
statute are in accordance with sound policy.
the authority therefor ought Ia be put be
| yond cavil by being embodied in the funda-
mental law Of the State, and the Senate and
House OF Representatives, Us well as the
Governor. should be permitted and author
ized To profound inquiries
Against the general policy OF such cons,i-
tutional provisions ms that proposed by Scna-
tor Paul, there undoubtedly exists some
prejudice consequent upon the abusive
practice Of the Stuart kings in taking the
opinions Of the judges upon questions about
to be brought before them in their
judicial cal ac.ty. The practical work
ings OF such provisions in New
England have been good. The whole
matter is one with regard TO which the peo-
pie and the Legislature might well be ndif-
ferent had it not been for the critical and
perlous experience of the State of Maine
during the past year. 1t is not too much to
say that but for the good fortune Of Maine in
than thirty OF her sister States are without
the solution of her grave difficulties would
have been all ended with anarchy, would
have been greatly postponed, and would have
been finally accomplished only through the
interference of the General Government. The
condition of affairs in that State at one time
aroused in the minds of thoughtful and CON
scrvative observers more serious apprchcn-
sions respecting our institutions than have
been awakened by anything since the close
of our civil war except the disputed Presi-
DENTAL election in 1876 The submission Of
questions to the Judges under the sanction al
the Constitution, secured To the State of
Maine peaceful ami honorable issue from
troubles which foreboded great evil not only
TO that commonwealth but 10 the country
at large. In preventing the necessity for
federal interference il accomplished a result
especially gratifying to those who desire
above many things to see the reserved sovcr-
eighty of the States preserved unimpaircd.
Had the course actually pursued lacked The
sanction of the fundamental law, it would
have been dubious cXpcdlcnt and would
unqucslionably have resulted in failure. The
history of Maine in January last lifts into
favorable prominence IA constitutional provi-
sion previously REGARDED with comparative
indifference, and iusIitics the hope that
the Senate will hy the requisite vote,
submit the proposed amendment of Senator
Paul to future consideration II adopted
the authority conferred should hc sparingly
used, hut in an emergency it might prove Of
the highest utility.