Whether the advice asked for in this case by the Superior Court ought to be given, depends upon the true meaning of General Statutes, § 751, by which the General Assembly has exercised the authority committed to it by the Constitution (Art. V, § 1) to define by law the powers and jurisdiction of all courts, subject only to what may be implied from the names of the two courts which the Constitution itself recognizes and establishes.
In the summary of our judicial establishment prefixed to the first volume of the Connecticut Reports, after describing the practice which had grown up of reserving motions for a new trial for the advice of the nine judges of the Superior Court, of whom this court was then constituted, it is stated (p. xxv) that "Questions of law arising in any form, and appearing from the files, or from written documents, in causes before the Superior Court in the circuits, may also be referred, at the discretion of the court, or by consent of the parties, to the nine judges for their advice. These cases are then argued, by counsel, at one of the stated terms of the Supreme Court of Errors; and the opinion of the judges, though given in the form of advice, will govern the Superior Court at the following sessions in the circuits from which the cases were brought, and will be regarded, generally, as the highest evidence of the law of the land."
That the court at this period felt free to entertain questions of law "arising in any form" is indicated by the causes reported. In the first volume of the Connecticut Reports, for instance, there was a reservation upon a demurrer to a bill in chancery, and we advised that the bill was insufficient. Judah v. Judd, 1 Conn. 309, 312. A few years later, on a similar reservation, our advice was that the demurrer be overruled. Stebbins v. Cowles,10 Conn. 399, 409. This, under the settled rules of chancery *Page 78 practice, left the defendant free to answer over, and therefore did not necessarily make a final disposition of the cause. So in the volume last cited, a reservation was entertained on a demurrer to a plea in abatement. Hoyt v.Brooks, 10 Conn. 188, 192.
That the advice asked for would not be refused because it might not determine the event of the cause, is strikingly shown by our opinion in Johnson v. Sanford, 13 Conn. 461,466, 469. This was a bill in chancery which on demurrer had been adjudged sufficient. A committee had then been appointed, and the question reserved was as to the proper action to be taken on their report. We advised that it be rejected. The defendant's counsel claimed that the bill was insufficient, but was not allowed to be heard on that point, the court observing that this would be to anticipate the decision of a question that might thereafter be presented on a writ of error from the final judgment.
The ancient practice upon reservations which has been thus outlined received the sanction of the legislature in 1855, when the court was put upon a new and separate foundation. It was then enacted that "the superior court may reserve questions of law arising in cases tried before said court for the advice of the supreme court of errors, in the same manner as such questions are now reserved; and the superior court shall conform to the advice of the supreme court of errors in the judgment, decree, or decision, made or rendered in such cases." Public Acts of 1855, Chap. 28, p. 38, § 6. It will be observed that these provisions contemplated the giving of advice not only as to judgments and decrees, but as to the "decision" of a question of law arising in cases tried. This word "decision" has been retained in all our revisions of this statute, nor does that now in force (General Statutes, § 751) differ in any respect from the Act of 1855, except in embodying the successive statutory extensions of the power to reserve such questions, in favor of judges of the Superior Court sitting at chambers, and any inferior courts over which we may have direct appellate jurisdiction. *Page 79
The practice as to the nature of the questions that could be reserved continued, after 1855, to be precisely what it had been before. Thus, in the reservations heard in 1857, there was one as to the disposition of a plea in abatement, upon which our advice was that it should be overruled, that is, that the cause should be heard on its merits. Canfield v. Wooster, 26 Conn. 384, 389. Another arose on a demurrer to a plea in bar, and our advice was that it was insufficient; Bacon Academy v. De Wolf, 26 Conn. 602, 606; another on a demurrer to a criminal information; State v.Gager, 26 Conn. 607, 608.
An examination of our reports, from the fifty-fourth to the sixty-third volume, inclusive of each, shows thirty reservations upon which we gave advice, of interlocutory questions, a decision of which would not necessarily determine the final judgment in the cause. Of these questions, two arose on motions to erase from the docket; two on motions to quash; one on demurrer to a plea in abatement; two on demurrer or answer to an application for a writ of mandamus; eight on demurrer to a complaint; one on a motion to compel an amplification of the complaint; one on demurrer to a quo warranto information; four on demurrer to an answer; one on demurrer to a reply; three on objection to the acceptance of the report of a committee.
Of these causes, one (State ex rel. Morris v. Bulkeley,61 Conn. 287, 23 A. 186) was the most important ever decided by this court. In our opinion we said (p. 376) that, while the information as it stood was insufficient, if the relator should thereafter amend it in a particular way, it would be sufficient. Another of them seems almost the precise analogue of that now before us. A railroad company had applied to the railroad commissioners to approve the location of a station upon a highway. The commissioners were of opinion that they had no jurisdiction to approve the taking of a highway for such a purpose. To an application to compel them to act, and so either to approve or disapprove, they answered denying their power to act. The question of their power was thereupon reserved. We *Page 80 decided that they had the power; and the location was subsequently approved. State ex rel. New Haven D. R. Co. v. Railroad Commissioners, 56 Conn. 308, 315, 15 A. 756.
Against these precedents, which might be multiplied indefinitely, may be cited several of recent date, which may seem to look in a different direction. The only one appearing in our reports is State v. Feingold, 77 Conn. 326, 327,59 A. 211, in which we were asked to advise as to the proper ruling on a demurrer to a complaint for the violation of a statute, the contention of the defendant being that the statute was unconstitutional. Advice that the complaint was insufficient would have left the defendant free to answer over (General Statutes, § 1513) and deny the facts charged. A court does not pass upon a defense founded on the unconstitutionality of a statute, except in a case of necessity. It was the opinion of a majority of the court that to present such a case, counsel should file a stipulation that a ruling on the demurrer would end the controversy, and this was accordingly done.
In two or three other cases, not reported, coming before us in recent years, a hearing has been refused on reservations of questions of law presented by demurrer to the complaint. This action has been taken by vote of a majority of the court in view of the special circumstances apparent upon the record presented. I was not one of the majority; but as no reasons were announced for those decisions, there was no occasion for stating my dissent. Of other reservations for advice, presenting circumstances of quite a similar character, and coming before us at about the same time, we assumed jurisdiction. See Boothe v. Armstrong, 76 Conn. 530,534, 57 A. 173; Downer v. Clarke, 77 Conn. 186,187, 200, 58 A. 735; New York, N. H. H.R. Co. v.Offield, 77 Conn. 417, 422, 59 A. 510, 78 Conn. 1,60 A. 740; McGovern v. Mitchell, 78 Conn. 536, 537, 540,63 A. 433.
The opinion of the court in the case at bar is that the advice asked should be refused, because it does not present such questions as are contemplated by General Statutes, *Page 81 § 751. It asserts that reservations ought not to be made or entertained in cases not ready for final judgment, unless exceptional situations are presented where the advantages resulting from such a proceeding are manifest and distinct, and the question upon which advice is asked is one which will quite certainly enter into the determination of the cause. I do not find any such limitation of jurisdiction in the statute, and the long-continued practice of the court down to 1904 seems to me quite inconsistent with the construction so put upon its terms.
For more than half a century before the Act of 1855, re-enacted in General Statutes, § 751, the statutes of the United States had provided that questions occurring in any case before a Circuit Court of the United States, when held by two judges, upon which their opinions were opposed, might be certified to the Supreme Court of the United States for its final decision, without, however, preventing proceeding in the cause in the Circuit Court, if this could be done without prejudice to the merits. In 1872, on account of the press of business in the Supreme Court, this mode of proceeding was confined to criminal cases; continuing as to them until the establishment of the Circuit Court of Appeals in 1891. See 2 U.S. Stat. at Large, 159; Rev. Stat., §§ 650-652. Jurisdiction to decide points so certified was never declined by the Supreme Court of the United States because they might not be decisive of the cause. "Certificates of division" were passed upon, for instance, when the question was as to whether some out of a greater number of grounds of demurrer (the others not having been passed upon by the Circuit Court) were well taken (United States v. Waddell, 112 U.S. 76,5 Sup. Ct. Rep. 35); and when it was one occurring on a motion for a temporary injunction, but going to the merits of the case. United States v. Chicago, 7 How. (U.S.) 185, 191. If a cause, in the course of proceedings in which a question had been certified up and decided, at a later stage passed into judgment and exceptions were taken to the judgment for causes unconnected with the question certified, *Page 82 a writ of error lay upon them. Daniels v. RailroadCo., 3 Wall. (U.S.) 250, 255.
The practice under this legislation of the United States was familiar to the bar of Connecticut, by one of whom the Act of 1855 must have been drafted, when that Act was passed. Our own practice since this court assumed a strictly judicial character in 1807 was still more familiar, and that has now been maintained for a full century, with no other interruption than that furnished by our action in the case of New York, H. N. R. Co. v. Boston, H. E.R. Co., 36 Conn. 196, and the few recent rulings to which reference has been made, none of which were accompanied or followed by any statement of the reasons for making them.
In my judgment, when a point of law is sent up by a reservation for our advice at the request of all the parties to the cause, and with the approval of the trial court, it is as much our duty to decide it as if it were presented on an appeal. The remedy is a cheap and speedy one. It avoids the rendition of many judgments, which would be liable to reversal. It is no doubt possible that questions so reserved may be trivial, or such as ultimately prove to be immaterial to the final disposition of the case; but if it be desirable to change our practice so as to avoid the necessity of answering them, such a change, in my opinion, should come only from the General Assembly.