The Portland daily press., 1881-03-16
The Judiciary Committee.
What 1t Has to Say about the Governor
and the Courts.

Courts, and the constitutional provision for re.
quiring the opinion of the Court on certain
occasions, have had the same under considera-
tion and ask leave to report as follows:
The Governor in his address makes two dec
larations, that have seemed to the COMMITTEES
to require consideration and report. The
Committee understand the Governor to declare
IN effect, that the constitutional provision in
| question, in his opinion is wrong in principle
| ana dangerous in practice; and TO further de-
| clare that the opinions thus obtained from the
| Court have no force as decisions, but are only
to be taken for what they are worth as opin-
ions, and to be followed or disregarded at will
| by the Executive or Legislature.
The Committee are unable to assent TO either
| OF these propositions.
The provision in question is section g. article
H. OF the constitution. as follows:
Section 8. They shall be obliged to give their
| opinion upon important questions of law and upon
solemn occasions, when required by the Governor
Council, Senate, or House OF Representatives"
They (the Justices of the Supreme Judicial
Court shall be obliged to give their opinion
| upon important questions of law, and upon SOL
emn occasions when required by the Governor,
Council, Senate, House of Representatives.
Long before the adoption of the constitution
the word "opinon" when used in reference to
law or courts had acquired in England and
America, a distinct technical meaning. The
word must here be used in that sense, in the
above section of the constitution. This, rule
OF Interpretation is universal, applicable to
constitutions as well as statutes and contracts
Ihis anciently settled meaning of the word
'opinion" through centuries of legal literature.
makes it nearly if not quite synonymousl with
the word decision" 1t is the exposition of
the decision. WebSter's Dictionary gives the
following legal definition of the word "opin-
ION" "in law, the formal decision of Judge,
umpire, councillor or other party, officially
called upon to consider and decide upon dis
pute or difficulty"
1t seems improbable that the people in insert
ing that provision in the fundamental law in
the very organic law Of the States existence,
intended the opinion thus formally asked
upon important questions and solemn occasions
should have no more force than the opinion of
neighbor, or the advice of a friend, to be
adopted II agreeable, or rejected il Disagree
able. There would seem to be no occasion for
constitutional provision to enable either de-
partment to obtain such opinions or advice
from such person as each might have conf
dence in or from the Attorney General; if the
formal opinion OF the judges, when formally
opinion Of any lawyer, there could be no good
reason why they should be constitutionally
commanded to give it. There are able and
honest lawyers at the Bar as well as on the
Bench
1t is not the opinion of the persons who
chance to be on the bench at the time, that is
contemplated; it is the opinion of the Justices,
as Justices. IL is not neighborly advice nor in
dividual opinion that is called for by the con-
stltution: They shall be obliged to give their
opinion, is the language. 1t is Opinion,
not opinions. 1t is the sum of their judg-
ments, the result of not personal, but official
deliberation and action. 1t is not the voices of
several respectable gentlemen and good law
yers. 1t is the voice of the Judiciary, \ CO
equal branch of the government, and CHARGED
with the duty of Interpreting the laws and
speaking authoritatively by virtue and com
mand OF that same constitution by virtue and
command of which the Executive and Legisla-
ture speak.
This is no violation of the principle
of the equality of the three depart
ments. All official acts of the Ex-
ecutive, or of the Legislature, done by virtue
and command of the constitution. are 20 be- re-
spected and obeyed The official acts of the
Judiciary, done by virtue and command Of the
constitution are entitled to equal respect if the
equal dignity and authority of the three de-
partments are to be preserved.
IL was not the purpose, nor has it been the
effect of this provision to permit any inter
terence by the Court in the matter of admins
tration or legislation, but rather to enable a
learned and honored Court to point out the
path OF constitutional duty and power, to the
department. asking its aid. 1t was to secure
harmony of Interpretation as to constitutional
law and rights, and prevent unseemly conflicts
between the Executive and Legislature, the
Senate and House, or tho Governor and Coun-
GU. It was to prevent wrongs, instead of leav-
by means OF this lamp set by the founders of
our commonwealth, the Executive and the
Legislative can see the bounds of their power
and duty as fixed by the people, and avoid en-
croachments ON the rights of each other or the
rights of the people.
IL mas served its purpose well. 1t cane to us
from the Mother State, in whose ccnstitntion
1t has stood for a century. All .hrough that
century, IN both States, are instances where
some department was in doabt. NOT as to ANA
diency, but as to Constitutional right and
asked tor hghtlfrom me constitutional interpre-
ters oI ShS law When that light has been
,, reoetyea, uov ernors, Legislatures, Courts and
peopie Pc nave moved peacefully and prosperous
~ on ~ me roads thus made plain.
CohI I-dcts of authority and consequent sh ocks
" W .ie commonwealth, have under this consti-
tdtion been happily avoided in both States,
until that sad instance in our own history,
when an Executive arrogated to itself the ju-
dicial power of declaring to be unconstitution-
al laws passed solely to give effect to the will
OF the people, and then undertook to disobey
those laws and defy that will. The instant
failure OF that attempt, and the peaceful issue
OF that conflict illustrate the wisdom of our
fathers in providing for a speedy solution of all
such questions of authority.
While amendments have been made or sug-
gested to many other parts of the constitutions
of the two States of Maine and Massachusetts,,
this section has stood unassailed, without sug-
gestion of amendment, until that made in the
address OF the present Governor. This long sta
billty amidst change-this long acquiescence-
this not infrequent exercise, through four gen.
erations OF freemen, attest its value, and the
high regard in which it is held by the people
The people have never asked its repeal, nor
have they ever refused to give it full effect.
The people expect that each officer is anxioss
to perform his constitutional and legal duty
They realize that conflicts of opinion NAV
arise among officers as to the limits and extent
of that duty. They have provided an authori-
tative interpreter of that duty. Thev bava
provided for speedy Interpretation before an,,
wrong is done. They surely expect All tba;yr
officers Executive, Legislative md Jrd;c;ei
to heed that Interpretation, ST., the and that,
this may be government o. laws and NOT Of
men," "' anu Ao' VI
''P'-' ies'''"'ion
L. L A, emery (On the part Of
N. MoRTLAND, :
GEo. D. BIsBEE, the Senate.
A. A. STRoUT,
o. G. HALL, On the part Of
EPHRAIM FLINT, the House.
l.. r. KING,
l concur with the Committee in their con-
clusion of law, and believe legislation in the
premises inexpedient
j. B. HUTCHINSON.
Memorandum.-JohnC c. Talbot and NJ n.
McKusick of the House Committee were alb
sent at the time of the consideration of this re-
port.