PER CURIAM.

The proponents of a measure to amend the property tax limitations of the Oregon Constitution by referendum, have filed a petition with the Secretary of State. The 1967 Legislative Assembly amended the prior statutes relating to the ballot title for a referendum measure by Chapter 364 of Oregon Laws 1967. The several prior statutes, as amended, have now been compiled in that chapter.

We have received the copies of the petition and ballot title prepared by the Attorney General as specified by Section 1 of the statute. Section 4 states that it is now our duty to "review" the title prepared by the Attorney General and either approve it or write a substitute title and file it with the Secretary of State. It is proposed that we do this without any form of judicial process; without parties being summoned or otherwise appearing who would be governed by the action taken, and without rendering an enforceable judgment. It is clear that the statute attempts to require the court to render a nonjudicial, advisory opinion. It would be nonjudicial because our "review" would not conclude or vindicate any right or remedy nor bind anyone at all. In Re Opinions of the Justices, 1923, 209 Ala. 593, 96 So. 487 at 489. It would be advisory because our preparation of a ballot title in this or any other referendum measure would not preclude later judicial action by one whose rights may have been affected by adoption of the proposed measure. Opinion of the Justices, 1961, 157 Maine 152, 170 A.2d 652.

The first doctrine to evolve in this nation's constitutional jurisprudence was that courts are limited to the exercise of the judicial function and should not and cannot render advisory opinions. When first required by Congress to act in a nonjudicial capacity, Chief Justice John Jay responded:

"* * * under the Constitution, the Government was divided into three `distinct and independent branches, and that it is the duty of each to abstain from and to oppose encroachment on either, that neither the Legislative nor the Executive branch can constitutionally assign to the Judicial any duties but such as are properly judicial, and to be performed in a judicial manner'; * * *." 1 Warren, The Supreme Court in United States History, p 70, referring in part to Hayburn's Case, 2 U.S. 408 (1792).

A like request by President Washington received the same answer. Haines, The Role of the Supreme Court in American Government and Politics, 1789-1835, 1944, pp 143-148. The doctrine became equally well-imbedded in the jurisprudence of the state courts. This has best been expressed by Judge Cardozo when a member of the New York Court of Appeals in the case of In Re Workmen's Compensation Fund, 1918, 224 N.Y. 13, 119 N.E. 1027 at 1028, where he wrote:

"* * * 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. The judges then act, `not as a court, but as the constitutional advisers of the other departments.' Opinion of Justices, 126 Mass. 557, 566; Laughlin v. Portland, 111 Me. 486, 497, 90 A. 318, 51 L.R.A. (N.S.) 1143, Ann. Cas. 1916C, 734."

"* * * We are asked by an omnibus answer to an omnibus question to adjudge the rights of all. That is not the way in which a system of case law develops. We deal with the particular instance; and we wait till it arises."

This court, too, has refused to issue advisory opinions. We have said that:

"* * * We have no constitutional provision in Oregon granting authority to the courts to render advisory opinions. In the absence of such constitutional authority courts cannot render valid advisory opinions: Oregon Creamery Manufacturers Association et al. v. White et al., [1938], 159 Or. 99, 78 P.2d 572." Hickey v. City of Portland, 1941, 165 Or. 594 at 598, 109 P.2d 594, 596.

The Oregon Constitution is, in fact, prohibitive, not permissive, Art III, § 1 provides:

"The powers of the Government shall be divided into three seperate (sic) departments, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided."

That section has been said to mean:

"* * * This [restriction] not only prevents an assumption by either department of power not properly belonging to it, but also prohibits the imposition, by one, of any duty upon either of the others not within the scope of its jurisdiction; and `it is the duty of each to abstain from and to oppose encroachments on either.'" In the Matter of the Application of the Senate, 10 Minn R (Gilfillan) 56 at p 57 (1865).

Unlike the former statute, the present statute seeks to have the court perform a nonjudicial function, contrary to the prohibition of Art III, § 1.

In 1935, an effort to enact a statute requiring justices of this court to give advisory opinions appears to have been abandoned following a strong opinion of the Attorney General that such an act would violate Art III, § 1, of the Oregon Constitution. See Opinions of the Attorney General, 1934-36, p 530. If we were to undertake to review an uncontested ballot title under Section 4, ch 364, we would establish a precedent under which by similar legislative act, we would be required to review every opinion of the Attorney General, a result so inconsistent with the judicial function of this court as to require no comment.

We have seen that a particular vice of a nonjudicial opinion is that it is binding upon no one. The illusory validity of a court approved ballot title should not deceive those interested in a referendum measure. It is no guarantee that the title could be sustained in later actual litigation by affected parties if it were then established that the title approved by the court was deceptive.

We adhere to the long established doctrine that restrains the courts from performing nonjudicial functions and respectfully decline to review the ballot title pursuant to Section 4 of the statute.