Opinion
No Number in Original
August 17, 1951, Decided
LETTER PROPOUNDING QUESTIONS
State of Maine
OFFICE OF THE GOVERNOR
Augusta
To the Honorable Justices of the Supreme Judicial Court:
Under and by virtue of the authority conferred upon the Governor by the Constitution of Maine, Article VI, section 3, and being advised and believing that the questions of law are important, and that it is upon a solemn occasion,
I, Frederick G. Payne, Governor of Maine, respectfully submit the following statement of facts and questions and ask the opinion of the Justices of the Supreme Judicial Court thereon:
STATEMENT
WHEREAS, by Article III, section 1, Constitution of the State of Maine, the powers of this government shall be divided into three distinct departments, the legislative, executive, and judicial, and
WHEREAS, by Article III, section 2, Constitution of the State of Maine, no person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, (except in the cases herein expressly directed or permitted), and
WHEREAS, by Article IV, Part Third, section 1, the Legislature shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State, not repugnant to this Constitution, nor to that of the United States, and
WHEREAS, by Article I, section 13, of the Constitution of the State of Maine, the laws shall not be suspended but by the legislature or its authority, and
WHEREAS, by Article V, Part First, section 12, the Governor of the State of Maine shall take care that the laws be faithfully executed, and
WHEREAS, the Legislature of the State of Maine, by virtue of authority vested in it by Article IV, Part Third, section 1, of the Constitution of Maine, has enacted, pursuant to its police powers, chronologically, certain Acts which are herewith listed in substance:
(1) Chapter 77 of the Revised Statutes of Maine, 1944, created a State Racing Commission, and has reference to harness horse racing.
(2) Chapter 289, Public Laws of Maine, 1949, amending Chapter 77 of the Revised Statutes of Maine, 1944, by adding Chapter 77-A, created a Running Horse Racing Commission, and has reference to running horse meets.
(3) Neither of these chapters, 77 or 77-A, confined race meets to either nighttime or the daytime.
(4) Chapter 77 of the Revised Statutes, 1944, permits pari-mutuel betting subject to certain provisions not here pertinent.
(5) Chapter 388 of the Public Laws of Maine, 1949, permits night harness races or meets on prescribed conditions.
(6) Chapter 404 of the Public Laws of Maine, 1951, amended section 9 of Chapter 77-A of the Revised Statutes, 1944, which chapter and section pertain to flat racing, to read as follows:
"Racing shall be permitted in the daytime only from May 15th to November 30th of each year."
and
WHEREAS, the effective date of the last Act above mentioned is August 20, 1951, and
WHEREAS, before the effective date of the Act (August 20, 1951), a Bill in Equity was filed, a copy of which is hereto attached as Exhibit A (exhibit omitted herefrom) seeking an injunction against the enforcement of said Act, directed against the Attorney General of the State of Maine, a Constitutional and executive officer of the State of Maine, the County Attorney of Cumberland County, a statutory officer of the State of Maine, and the Maine Running Horse Race Commission, an administrative tribunal created by the Legislature, and
WHEREAS, by Article IV, Part Third, section 17, there exists a veto power in the people of the State of Maine, by which veto power the people may, if an Act is objectionable to them, erase such Act from the "Books" through referendum proceedings, and
WHEREAS, the Plaintiffs in the above mentioned Bill in Equity, failing to avail themselves of the veto power above mentioned, and before the effective date of said Act, presented to the Superior Court, in vacation, a Bill in Equity requesting that a temporary injunction issue restraining the enforcement of said statute, enacted by the Legislature pursuant to its police powers, and
WHEREAS, the above mentioned temporary injunction, a copy of which is hereto attached as Exhibit "B", (exhibit omitted herefrom) was granted, July 23, 1951, without notice to the defendants and without a hearing, ex parte, and
WHEREAS, the Supreme Judicial Court is of Constitutional creation by virtue of Article VI, section I, Constitution of the State of Maine, and
WHEREAS, Superior Courts are courts of legislative creation, and
WHEREAS, the issuing of such injunction by a single justice presiding in a statutory court after ex parte proceedings and without notice, restraining the Attorney General, a Constitutional officer of the Executive branch of the government, from proceeding to enforce an Act enacted by the Legislature, pursuant to its police powers, before the effective date of that Act, appears to be an intervention by the court in the legislative power to legislate, amounting to a substitution of the judgment of the court for that of the Legislature, and appears to be a violation of Article I, section 13; Article III, sections 1 and 2; Article IV, Part Third, section 1; and Article V, Part First, section 12, of the Constitution of the State of Maine,
NOW, THEREFORE, I, Frederick G. Payne, Governor of Maine, respectfully request an answer to the following questions:
(1) May a statutory court, before an Act duly passed by the Legislature has become effective, issue an injunction, restraining the enforcement of that law?
(2) Is the act of issuing an injunction before an Act of the Legislature, enacted pursuant to its police powers, becomes effective, such an intervention of a legislative function and a substitution of the judgment of the Judiciary for that of the Legislature, as to be a violation of Article III, sections 1 and 2, and Article IV, Part Third, section 1, of the Constitution of the State of Maine?
(3) May the Attorney General, a Constitutional officer of the Executive branch of the government, vested with Constitutional, statutory, and common law powers, be divested of his authority to initiate legal proceedings relative to an Act of the Legislature, enacted by the Legislature pursuant to its police powers, by a temporary injunction restraining him from so proceeding, when that injunction is issued by a single justice presiding in a statutory court after ex parte proceedings and without notice, when the issue involved is that of the constitutionality of a legislative enactment?
(4) Is the power to determine that a statute is unconstitutional vested in a single justice, or should a single justice assume a statute is constitutional unless the contrary has been established by the Law Court?
(5) Does a statutory court, superior or otherwise, have authority to adjudicate Constitutional questions?
(6) Is the power to determine a statute unconstitutional vested only in that Constitutional Court, the Supreme Judicial Court?
Respectfully submitted,
FREDERICK G. PAYNE
Governor of Maine
ANSWER OF THE JUSTICES
To the Honorable Frederick G. Payne, Governor of Maine:
Answering the questions submitted to the Justices of the Supreme Judicial Court in your letter of August 17, 1951, the undersigned respectfully reply:
Question No. 1
A statutory court upon which the legislature has conferred full equity powers has equal authority with a constitutional court possessing the same powers. In this state the Supreme Judicial and Superior Court have concurrent original jurisdiction in equity, and the powers of the justices of each court are the same.
As we interpret the first question it is directed only to the time element and not to the further question as to whether a court may under any circumstances issue an injunction restraining enforcement of a law. Ordinarily an injunction against the enforcement of a law should not issue and would not be issued prior to the effective date of the law. We are not prepared to state however that under no circumstances can such an injunction issue before the law becomes finally effective. It may be well to say that a temporary injunction restraining the enforcement of a law is not necessarily an immunity bath for violators of the law during the existence of the injunction if the validity of the law is ultimately sustained.
Question No. 2
If the situation be such that an injunction may properly be issued prior to the effective date of the act, its issuance would not violate Article III, Sections 1 and 2, or Article IV, Part Third, Section 1, of the Constitution of the State of Maine.
Question No. 3
The authority of a single justice in equity to issue preliminary injunctions is granted by R. S., 1944, Chapter 95, Sec. 34. The fact that the issue involved is the constitutionality of a statute does not limit the power of the court, but the gravity of the situation as well as due and proper respect for the Legislative branch of the Government would dictate that instead of issuing a preliminary injunction ex parte on bond, it should only be issued after hearing unless there be imminent danger of immediate and irreparable damage, before a hearing may be had. Even in such case a temporary restraining order pending hearing on the application for temporary injunction would better comport with equity practice in this jurisdiction. See Deering v. York and Cumberland Railroad Co., 31 Me. 172.
Questions Nos. 4, 5 and 6
It is the duty of every Court to protect and uphold the State and Federal Constitutions. A single justice of the Supreme Judicial Court, or of the Superior or any other statutory court, has the power to pass upon the constitutionality of a Statute if the question be in issue. It has been the long established custom in this state, however, that a court at nisi prius, or a judge of any court having jurisdiction of the subject matter in litigation, will accept the presumption that any law passed by the Legislature is Constitutional unless it has been finally determined otherwise by the Supreme Judicial Court sitting as a Law Court.
Departure from this custom is justified only in extraordinary circumstances.
Dated at Augusta, Maine this 23rd day of August, 1951.
Respectfully submitted:
HAROLD H. MURCHIE
SIDNEY ST. F. THAXTER
RAYMOND FELLOWS
EDWARD F. MERRILL
WILLIAM B. NULTY
ROBERT B. WILLIAMSON