dissenting:
I cannot concur in the conclusion of the court, to refuse in this instance to give its opinion upon the questions propounded by the senate. The provision of section 3, article VI, of the constitution of Colorado, is as follows:
“The supreme court shall give its opinion upon important questions, upon solemn occasions, when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connection with the reported decisions of said court.”
I am not unmindful of the fact that this court has assumed to itself in such cases, the absolute right to determine whether or not a question is important, or the occasion solemn. I cannot agree that this was the intendment of this constitutional provision. Such power of the court is in my judgment unwarranted, either by the language or purpose of this provision. The language is distinctly mandatory upon the supreme court, and there is' not even a suggestion of discretion upon its part. The word “require” as used in this connection can have no meaning other than the right to demand as by right and authority. This right to demand is specifically conferred upon two of the co-ordinate branches of the government, and the duty of the other branch of the government to obey is to my mind clear.
It is true that this court has said; 33 Colo. 321, “The de- . partment propounding the question .in the first instance determines whether an occasion exists which justifies its submission.” But qualifies this declaration by asserting, “But it remains for the court to finally determine that proposition.” I regard this qualification as a clear assumption of power, in no way to be reconciled with the language of the section of the constitution, or the essence of the proposition stated by the court. The right to propound the question rests, necessarily, upon the right to determine that the occasion exists, and only after such determination. That question having been deter*179mined by the department having the declared right, it is illogical and incongruous to say that such determination may be reviewed and set aside by another department to which the question is addressed, having no express authority to do so. This would reduce .the constitutional enactment to an absurdity. The people through their constitution, have the same power to command courts, as legislatures and executives are commanded, and it is not for the former to complain or attempt to decree otherwise. Certainly where the right to thus determine a given state of facts, is conferred upon one department of the state government, it is not within the province of another department to assume to be the sole arbiter as to its importance.
But the power to determine that an occasion is important or solemn, is not such an únusual or extensive power as to justify the assumption of doubt as to its meaning. Greater and entirely exclusive powers have been conferred upon both the executive and the legislature charged with the responsibilities of government. It would therefore seem that executives and legislators have at least equal opportunities and equal judgment with courts, as to the importance or solemnity of problems presented to- them.
It is not necessary to recite the many grave questions which the legislature alone may determine. The same may be said as to the executive. This court has said that he may even declare a state of insurrection and suspend the writ of habeas corpus without consulting any other department of the state government. Surely then, he may be trusted to determine when such an important or solemn occasion is presented to him as to require the lago-1 advice of the court. Likewise either branch of the general assembly.
Courts should not impute to executives or legislatures, the doing of foolish ór useless acts. These should be regarded as expressing their solemn conviction within their respective spheres. To refuse to answer the questions in this instance is to refuse to obey that which I regard as an imperative consti*180tutional mandate, or on the other hand, to assume a power neither expressed nor reasonably implied.
In the case of Opinions of Justices (Maine) 51 Atl. 224, cited by counsel, while the majority of the court held tq the view now expressed by the majority here, yet the argument of the dissenting justices is so convincing, and so replete with judicial authority as to appear .unanswerable. This case was decided as late as 1902, and it is there said:
“Against this long and unbroken array of precedents for more than a century (40 years under the Massachusetts constitution and 80 years under our own similar constitution), and against the opinions of the eminent jurists cited, we have in this state but the one late solitary instance where the justices refused to answer a question duly propounded, that in 1891, when the justices refused to answer the inquiry of the governor as to his power to remove a county attorney. 85 Me. 545, 127 Atl. 454.”
And again:
“The early practice under any constitutional provision is admittedly of very great, and even controlling, force when such practice does not conflict with the express words of such provision. It is well known as matter of history that members of the convention drafting the constitution afterward became governors, legislators, and judges under it. They best knew the scope and purpose of its provisions. The people who themselves voted upon the adoption of the constitution would more quickly notice any departure from its letter or spirit. If, therefore, we find' a comparatively uniform practice under a constitutional provision by the earlier incumbents of office, acquiesced in by the persons or officers unfavorably affected by it, and not opposed to clear, express language of the. constitution, such practice is a better, safer guide to the real meaning and scope of the provision than any verbal, grammatical, or even philosophical interpretation by subsequent generations in after years. Broom, Leg. Max. 658, 884; Cohen v. Virginia, 6 Wheat, 418, 5 L. Ed. 257; Rhode Island v. Massachusetts, *18112 Pet. 657, 9 L. Ed. 1233.; Rogers v. Goodwin, 2 Mass. 475; Gray, C. J., in Opinion of Justices, 126. Mass. 594.
In obedience to the constitution as thus authoritatively interpretated by the unvarying practice of more than a century, —40 years in Massachusetts to the time of the separation, and then in Maine for 70 years more until 1891, — we give our opinion upon the questions submitted briefly as follows
But if the view of the majority of the court be admitted, still under the decisions of this court, the questions here should be answered. While the form of the questions submitted may be unfortunate, yet these in fact simply ask the court for an interpretation of certain constitutional provisions, seemingly necessary for guidance of the senate.
It is urged that these should not be answered because the questions involves a private right, that is to say the title to an office, that of lieutenant governor, and that under the rule of the court such title can only be determined in another and different proceeding. It must be admitted that to an extent, a private right is involved, but it likewise involves a question of grave public concern, compared with which the private right sinks into insignificance.
In the Speakership Case, 15 Colo. 520, the question propounded by the house of representatives, was as to the power of that body to declare the office of speaker vacant, and the court answered that it had such power. Plainly this involved a constitutional private . right, to-wit: title to the office of speaker, which like the office of lieutenant governor, carries with it the right of succession to the governorship.
In the case, In Re Senate Resoluttion No. 10, 33 Colo. 307, the question as to whether or not the joint assembly had the power to declare the office of governor vacant, was answered by this court. This was a contest for the office of governor, was purely a political matter over which this court could have no control, and it would be difficult to understand how the office of lieutenant governor can involve a clearer case of private right.
*182In Re Fire etc. Commissioners, 19 Colo. 482, involved the power of the governor under the law as it then stood, to remove the fire and police commission of the city of Denver. These were offices carrying salaries and the court in that case admits the existence of private right, but declares that the gravity of the situation demands an answer to the question propounded.
This case clearly illustrates the unsoundness of the rule adopted by the majority in the matter before us, and makes clear the reasoning in Opinion of Justices, supra, having refererence to the dissenting opinion as follows :
“Whether the questions submitted are important, or whether there be sufficient occasion for their solution, is not itself a question of law, or a judicial question. These are rather political questions in the broad sense of that term. When-the requirement is made by the house of representatives, they are pre-eminently questions for the house itself to consider and determine. The house is a political agent of the people. It has the sole power of impeachment. It is the grand inquest. -With the senate and the governor, it is the judge of what is for the people’s welfare, is charged with the duty of seeking out abuses, disorders, and irregularities in the public service and is also charged with the duty of their reform' or removal. The justices are by the constitution (article 3, sec. 2), excluded from that sphere of duty and action, and limited to judicial questions.' Even in cases where all the facts and conditions are public, and known to all the justices, it is certainly doubtful if they are to override the judgment of the representatives of the people, that those acts and conditions render the questions of law important and the occasion solemn. But the justices can never be sure they know all the facts and conditions. There'may be — perhaps in this case — many facts and conditions known to the house and not known to the justices, clearly showing the given question to1 be important, and the occasion sufficiently solemn. It has never been the practice, nor is the house obliged by anything in the constitution, *183to state facts affirmatively showing the question to be import- . ant and the occasion solemn. We do not think the justices should treat the house as a suitor, nor its order like a petition demurrable for want of sufficient allegation of facts.”
But if we are to assume the exclusive right to determine whether or not the question is important and the occasion grave, we cannot escape the conclusion that such is the case before us.
The questions by the senate presuppose a desire upon its part to obey the constitution, and we cannot doubt that the several constitutional provisions, under the state of facts presented, admit of serious question.
The lieutenant governor is not a member of the senate. That body under the constitution, consists of thirty-five members, elected from districts, created by law, and of which membership the lieutenant governor cannot be one. He presides over the senate simply by virtue of his office as lieutenant governor, and which duty is simply incidental to his office. If he is not lieutenant governor, can he preside, or exercise any of ■ the powers and duties of the presiding officer? The actual official duties of this officer as such are limited, Micawber like, to simply waiting for something to turn up, and' when this something does turn up he no longer performs the duties of lieutenant governor, but rather the duties of governor.
It is suggested that even though he may not be the lieutenant governor, in fact, yet his acts are valid as a de facto official.
From what I have said of the duties, of the lieutenant governor as such, it would seem that as a de facta official, he would have as much substance and power as the proverbial hole in a doughnut. Can he preside and give validity to his acts as the president of the senate, unless he is the actual lieutenant governor ? He cannot preside as president pro tern, for the senate may elect only one of its members to such position.
It is urged that in permitting him to preside, the senate thus recognizes the validity of his acts. Does the mere recog*184nition by the senate, validate an invalid vote? Can the senate be said to be charged and bound by mere recognition, when in the exercise of1 all its power it cannot elect or place in authority, the official so said to be recognized?
The constitution confers upon the president of the senate the power to cast the deciding vote when the senate is equálly divided. Thus while he is not a member of the senate, yet in this particular he is given certain powers of a legislator. Will this court say that there can be such a thing as a de facto legislator, casting votes and making laws? To my mind this is inconceivable.
Again, it is the constitutional requirement that the presiding officer of the senate shall in the presence of the seriate, sign all bills and joint resolutions passed by the assembly. This seems to be clearly mandatory. Are we ready to say that' one who is not the lieutenant governor, and who is not eligible to election by the senate, as president pro tern,; may sign them ? Are we ready to say that if such bills are not signed by the proper officer that they are not for such reason invalidated ?
The questions are purely legal and the members of the senate are not presumed to’ be learned in the law, yet all these legal questions which may vitally effect the whole people of the state are before them. Are these matters not important and can this court say that the occasion is not sufficiently grave as to require its advice when requested?
I am clearly corivinced that the matter is of such importance as to make the refusal of the court to answer a serious error. Beside, I do not understand that the answer requested is anything but advisory, and may be reviewed or changed upon a more formal and complete investigation. I regard the constitutional mandate binding' on the court, and against which we may not interpose a rulé of procedure, a precedent, or the convenience of the court. The senate is entitled to know and the whole people are entitled to know the view o'f the court upon so serious a legal question.