In Re Interrogatories ( 1935 )

THIS opinion is written in response to the governor's interrogatories in re the constitutionality of the chapter 89, page 298, Session Laws 1935, hereinafter referred to as chapter 89.

Section 3, Article VI, of our Constitution provides that "The supreme court shall give its opinion upon important questions upon solemn occasions when required by the governor, * * *." What are such questions and occasions rests ultimately with the court. In ReInterrogatories, 62 Colo. 188, 162 P. 1144; In Re SenateResolution No. 2, 94 Colo. 101, 31 P.2d 325. When questions submitted by the governor express no doubt as to constitutionality no opinion will be given by the court. In Re Certificates of Indebtedness, 18 Colo. 566,33 P. 556; In Re Interrogatories by the Governor,71 Colo. 331, 206 P. 383.

Chapter 89 was approved April 4, 1935, and members of the board therein provided for were appointed by the Governor. We are advised by the submission herein that the decision (May 27, 1935) in Schechter v. U.S.,55 Sup. Ct. 837, 79 L. Ed. 888, "raised serious doubts as to the constitutionality" of chapter 89; that on August 30, 1935, the Attorney General, in a formal opinion, "pronounced said statute unconstitutional"; that "the doubt and uncertainty now existing as to the constitutionality of said act are so highly detrimental to the business, industrial and economic interests and activities of this State as to render the question of the validity of said act of deep and immediate concern to all the people of this State"; and that the chief executive believes the question important and the occasion solemn, as that language is used in the Constitution. We are not, however, directly advised as to how this is now true when presumably it was not when the General Assembly passed the act, when it was approved, or when appointments were made under it. Neither are we directly advised that the Governor himself has any doubt of the correctness of the opinion of the Attorney General declaring the act unconstitutional. The majority of the justices, however, concluded that a fair inference to be drawn from the submission was that the Governor himself entertained such a doubt and that the origin thereof was the Schechter decision, hence concluded that the interrogatories of some of them, should be answered. Nevertheless, it seems well to point out that since it does not appear that the Governor has any further duty to perform under the act it is not clear that he is in position to propound interrogatories under said section 3 of article VI; that neither the Attorney General nor the board is authorized so to do, and if they otherwise were they do not here appear to doubt that the act is unconstitutional. Since these questions are neither raised nor argued in the proceeding before us we leave them undecided, commenting as above only that like errors, if they be errors, may in future be avoided.

[1, 2] The act here in question contains nineteen sections and covers fourteen printed pages. It is a so-called "Industrial Recovery Act" modeled on the federal legislation dealt with in the Schechter case and is tied into that legislation by numerous references and provisions. We are specifically asked if it violates any one of four sections of article II, or any one of three sections of article V, or section one of article X, or any part of article III of the state Constitution, or the due process and equal protection clause of section one of the Fourteenth Amendment of the Federal Constitution, and generally if it violates "any other provision of the state Constitution or of the Federal Constitution." As pointed out by this court almost half a century ago, when asked only for a construction of four sections of article XVI of the state Constitution, such responses are impossible, not within the intention of said section 3 of article VI, and would otherwise be fraught with immeasurable dangers. If chapter 89 is unconstitutional for any reason our duty ends when we have so declared. Beyond that we would become legal advisers to future sessions of the General Assembly, a field forbidden us by the Constitution.

This cause has been extensively briefed and ably argued, both by the attorney general's office and amici curiae and we are greatly indebted to them therefor.

[3] That chapter 89 is a plain violation of article III of our state Constitution, which divides all governmental powers into three departments and prohibits the interference of one with another, and of section 1 of article V vesting all legislative power in the General Assembly (save for an exception not here involved) seems to us beyond doubt. Burcher v. People, 41 Colo. 495, 501,93 P. 14; People v. Lange, 48 Colo. 428, 429, 110 P. 68;Sapero v. State Board, 90 Colo. 568, 573; 11 P.2d 555. If not, it is settled for all time by the decision of the United States Supreme Court in the Schechter case, supra. No further analysis seems to us necessary. We find no substantial difference on this point in the two acts. There the learned Chief Justice, speaking for a unanimous court, examines every important question here involved, reconciles or differentiates many of the leading cases here cited and relied upon, and rests the court's conclusions upon principles and reasoning which appear to us impregnable and as applicable here as there. We are content to so leave it.

MR. JUSTICE HILLIARD and MR. JUSTICE BOUCK (who will file a dissenting opinion) dissent.

The following dissenting opinion was filed November 21, 1935.