Summary
finding that a "solemn occasion" does not exist unless the body making the inquiry has occasion to consider and act upon the question submitted in its exercise of powers
Summary of this case from In re Request of GutierrezOpinion
No Number in Original
April 3, 1952, 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 the questions and ask the opinion of the Justices of the Supreme Judicial Court thereon:
STATEMENT
WHEREAS, the powers of the government in this State are divided into three distinct departments, the legislative, executive and judicial; and
WHEREAS, by the Maine School Building Authority Act, Chapter 405 of the Public Laws of 1951, the Maine School Building Authority was created in the executive department to aid in providing urgently needed public school buildings in the towns in the State, which buildings many of said towns are unable to or cannot conveniently provide for themselves; and
WHEREAS, the supreme executive power of this State is vested in the Governor and the Governor is charged by the Constitution of Maine with the duty to see that the laws are faithfully executed; and
WHEREAS, the Authority has advised the Governor that it is unable to execute the legislative mandate pursuant to said Act until certain questions of law are resolved by the Justices of the Supreme Judicial Court; and
WHEREAS, the Governor respectfully submits said questions of law and asks the opinion of the Justices of the Supreme Judicial Court thereon pursuant to Section 3 of Article VI of the Constitution of Maine; and
WHEREAS, there is no other judicial procedure available to the Governor or the Authority to resolve said questions of law prior to the issuance of the Authority's revenue bonds pursuant to the provisions of said Act; and
WHEREAS, the Authority is unable to issue its revenue bonds unless prior thereto said questions of law have been resolved; and
WHEREAS, the Authority is authorized by said Act to construct or acquire, extend, enlarge, repair or improve school projects, as defined in said Act, to finance their construction, to charge and collect rentals for their use and to lease them to the respective towns; and
WHEREAS, the Authority is authorized by Section 219 of said Act to issue, at one time or from time to time, its revenue bonds for the purpose of paying the cost of any school project or projects; and
WHEREAS, the Authority proposes to combine several projects for financing purposes, that is, issue a single series of bonds for paying the cost of several projects; and
WHEREAS, by Sections 218 and 223 of said Act, the Authority must convey the project to the town upon payment of all costs of said project; and
WHEREAS, the Authority plans to keep a separate construction account for each town covering the proceeds of that portion of the bonds in each series which are issued in connection with the project for the town, to have a separate account in the sinking fund for each town covering the rentals received from each project and to convey the project to the town when that portion of the bonds in such series which were issued in connection with the project shall have been paid; and
WHEREAS, the Authority proposes to adopt a standard form of lease agreement to be entered into between the Authority and the several towns, pursuant to the provisions of Section 218 of said Act; and
WHEREAS, neither a delay in the actual completion of the project beyond the estimated completion date nor damage to or destruction of the whole or any portion of the project operates to relieve the town of its obligation to make its rental payments under the lease agreement; and
WHEREAS, the last paragraph of Section 218 of said Act provides that no lease agreement shall be entered into or shall be valid unless approved by the inhabitants of the town; and
WHEREAS, the creation of school districts coterminous with towns, subject to a referendum in each such town, has been authorized by many special acts at recent sessions of the legislature, which acts empower such districts to construct school buildings; and
WHEREAS, by Section 226 said Act "shall be deemed to provide an additional and alternative method for the doing of the things authorized thereby, and shall be regarded as supplemental and additional to powers conferred by other laws";
NOW, THEREFORE, I, Frederick G. Payne, Governor of Maine, respectfully request an answer to the following questions:
(1) Does the Maine School Building Authority Act permit the Authority to combine into a single issue, for financing purposes, the bonds in connection with the projects of several towns?
(2) May a lease agreement entered into between a town and the Authority pursuant to the Maine School Building Authority Act include a provision obligating the town to pay rent for the use of the project during a period of any delay in completing the construction of the project beyond the estimated date for completion or in the event of damage to or destruction of the whole or any portion of the project?
(3) Will the favorable vote of a majority of those voting on a lease agreement constitute approval by the inhabitants of the town under the Maine School Building Authority Act?
(4) Does a town have power to contract with the Authority for the financing and construction of school buildings under the Maine School Building Authority Act, notwithstanding the creation under a special act of a school district coterminous with the town having power to construct similar school buildings?
Respectfully submitted,
FREDERICK G. PAYNE,
Governor of Maine
ANSWER OF THE JUSTICES
To the Honorable Frederick G. Payne, Governor of Maine.
The undersigned Justices of the Supreme Judicial Court individually acknowledge receipt of your communication of April 3, 1952, requesting our advice concerning certain provisions of the Maine School Building Authority Act, Chapter 405 of the Public Laws 1951, by giving our opinion on the specific questions submitted to us therein.
We feel constrained to say, in reply thereto, that the occasion of the inquiry of your Excellency is not a solemn one within the meaning of Section 3 of Article VI of the Constitution which reads as follows:
"Section 3. 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."
The duty imposed on the justices by this provision is not without limitations. The questions of law on which advisory opinions of the justices may be required must be important ones, as specifically stated therein, and such questions must be answered only on "solemn occasions." Many years ago when the question of the exact scope of the constitutional provision was considered by the justices, the majority of those then in office said, 95 Me. 564, 567:
"The Justices are required to give their opinion in answer to important questions of law upon a certain condition: it would be improper * * * for them to give an opinion except upon that condition; it necessarily follows, * * * that the Justices must determine, each undoubtedly for himself, whether or not that condition existed although in cases of doubt it may be the duty of the Justices to resolve that doubt in favor of the prerogative,"
of the officer or body propounding the question. The "condition" referred to therein is that the occasion must be a solemn one. Earlier in the same opinion the justices had said:
"It is sufficient to say, that such an occasion does not exist unless the body (or officer) making the inquiry has occasion to consider and act upon the questions submitted in the exercise of the legislative or executive powers intrusted to it by the Constitution and laws of the state."
This is the construction placed upon similar provisions of the Massachusetts and New Hampshire constitutions by the justices of their respective courts. 148 Mass. 623, 67 N. H. 600.
In this instance the opinions sought are not designed to aid the governor in the determination of any question touching the exercise of his power or the performance of his duty, but solely for the guidance of those administering the Maine School Building Authority Act. The members of the Authority are not vested with power to seek advisory opinions from the justices. We must say, as did the justices of the New Hampshire court:
"the case is not one in which the law allows the opinions of the Justices to be given."
The situation is not changed by the fact that the governor is vested with "supreme executive power" or charged with the duty to "take care that the laws be faithfully executed." These constitutional provisions do not make questions for the decision and action thereon by subordinate executive officers, agencies, boards and instrumentalities of the state questions to be decided or acted upon by the governor, nor do they authorize the governor to require opinions of the justices thereon. To hold otherwise would in effect make the justices the legal advisors of every subordinate executive officer, agency, board or instrumentality of the state on whose behalf the governor might choose to propound questions to the justices, not for his own guidance, as contemplated by the constitution, but solely for the guidance of such subordinate officer or agency.
Respectfully submitted:
HAROLD H. MURCHIE
SIDNEY ST. F. THAXTER
RAYMOND FELLOWS
EDWARD F. MERRILL
WILLIAM B. NULTY
ROBERT B. WILLIAMSON
Dated at Portland, Maine, this ninth day of April, 1952.