concurring in part and dissenting in part: I concur in the majority’s opinion that the legislature is a legal entity which can be served with process; that service of process upon the presiding officers of the two houses is sufficient to satisfy due process; and that the legislature should be dismissed from this suit based upon its legislative immunity. I dissent, however, to the remainder of the majority’s opinion.
This is an important case in constitutional law. In ruling the legislature, which is not before us, is usurping executive powers in violation of the separation of powers, this court is violating the constitutional prohibition against giving advisory opinions, an executive function, and thus is itself in violation of the separation of powers.
While the majority opinion makes much of the dangers of a violation of the separation of powers doctrine between the executive and legislative branches, the danger of the judiciary usurping executive or legislative powers is more destructive. Montesquieu cited the evils of a violation of the separation of powers by the judiciary in I Montesquieu, The Spirit of Laws, Book XI, ch. VI, p. 174 (1873):
“[Tjhere is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be'then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”
On this subject it has also been stated:
“American courts are constantly wary not to trench upon the prerogatives of other departments of government or to arrogate to themselves any undue powers, lest they disturb the balance of power; and this principle has contributed greatly to the success of the American system of government and to the strength of the judiciary itself.” See 16 Am. Jur. 2d, Constitutional Law § 309, pp. 829-30.
In recent years this court has held fast to the idea that “the *67doctrine of separation of powers is an inherent and integral element of the republican form of government . . . Van Sickle v. Shanahan, 212 Kan. 426, 447, 511 P.2d 223 (1973). The key to separation of powers for the judiciary is the concept of judicial restraint. Judicial restraint requires the judiciary to refrain from entering disputes not properly before it and to respect the concept of jurisdiction. The majority opinion violates these principles. In this country’s quest for “a government of laws and not of men” (the rule of law), we have come to realize if the judiciary does not abide by the law, there is no law. The majority opinion is a violation of both the Constitution and the statutes and establishes a precedent which will take years to overcome.
Initially, the remedies of mandamus and quo warranto are not proper where there is an adequate remedy at law. The reason is “the object of mandamus is not to supersede legal remedies, but rather to supply the want of them.” Note, Mandamus — An Expanded Concept, 8 Washburn L.J. 71 (1968). Thus, there exist two prerequisites to mandamus which we have recognized. These are: “(1) the plaintiff must have a clear legal right to the performance of the act or duty sought, and (2) there must be no other adequate remedy to secure the relief desired.” 8 Washburn L.J. at 71. There is no debate that the attorney general has the authority to bring this action, thus, the first requirement has been met. The second, however, has not. Declaratory judgment filed pursuant to K.S.A. 60-1701 provides a plain and adequate legal remedy to challenge the constitutionality of the legislation questioned in the instant case. A declaratory judgment is an action
“which declares the rights and duties, or the status, of the parties. Thus, an action for a declaratory judgment is the appropriate remedy for the determination of a justiciable controversy where the plaintiff is in doubt as to his legal rights . . . .” 22 Am. Jur. 2d, Declaratory Judgments § 1, p. 836.
A declaratory judgment action against an agency head by a party threatened with enforcement of a regulation modified by the legislature, would provide an allowable review of the legislature’s action by the judiciary. The majority argues it need not impose the adequate remedy rule since the action by the court in this case would avoid numerous lawsuits, provide guidance to agencies, resolve an important question, and deal with the matter which would arise on appeal eventually. This is the “expe*68diency” test based on “the end justifies the means” and is the greatest threat to the rule of law. Under this rationale all constitutional principles, even due process, can be abolished if it will avoid lawsuits, provide guidance, resolve important questions and resolve a matter which will arise on appeal eventually.
There are many actions filed each year upon which governmental agencies, as well as vast numbers of individuals, Wait for decisions of this court in order to know how to act. Avoidance of lawsuits is not a sufficient reason for this unusual action by this court. If that were so, this court should examine each state statute one by one, in order to express its opinion on the subject and avoid future litigation. The fact this is an important public question demanding resolution does not present a case for avoidance of judicial procedure. Most cases presented to this court speak on issues of strong public importance; there are in fact many more important than that presented here. Finally, the majority’s argument that the issue should be decided now since it will eventually arise on appeal is thoroughly without merit. Considering the number of appeals taken each year, this court could never use that argument to support ruling in an improper manner.
Mandamus, on the other hand, is a much harsher remedy than declaratory judgment. Mandamus is viewed as a “drastic writ, of an extraordinary character.” It is sometimes referred to “as the highest judicial writ known to the law . . . .” It is an “extraordinary remedy which is available only in cases in which the usual forms of procedure are powerless to afford relief.” In granting the writ “[cjourts proceed with great caution” and it is only granted in “rare cases, as a last resort, for causes that are really extraordinary.” See 52 Am. Jur. 2d, Mandamus §§ 4-5, pp. 333-34. The purpose of a mandamus action is “to enforce rights already established, rather than to establish or declare the rights of the parties. It proceeds in every case upon the assumption that the applicant has an immediate and complete legal right to the thing demanded . . . . “ 52 Am. Jur. 2d, Mandamus § 4, p. 333.
Quo warranto is also of an extraordinary nature. It has been described as “a demand made by the state upon some individual or corporation to show by what right they exercise some franchise or privilege appertaining to the state which, according to *69the constitution and laws of the land, they cannot legally exercise except by virtue of grant or authority from the state.” 65 Am. Jur. 2d, Quo Warranto § 1, p. 230. It is “administered cautiously and in accordance with certain well-defined principles.” 65 Am. Jur. 2d, Quo Warranto § 5, p. 233.
Thus, the carefulness with which a mandamus or quo warranto action must be posed and preserved for only those actions in which the rights are without dispute, has been abrogated by the majority in this case. There has not been a careful weighing and determination of rights, which results from a declaratory judgment action brought and heard in the lower courts and then appealed.
The majority’s next error is that there is no case or controversy in this case. Absent a case or controversy we have no jurisdiction. Courts do not deal with the constitutionality of a statute as a hypothetical question, nor can constitutional questions be dealt with as abstractions or as academic discussions. See United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524, 80 S.Ct. 519 (1960); Government Employees v. Windsor, 353 U.S. 364, 1 L.Ed.2d 894, 77 S.Ct. 838 (1957); Hicklin v. Coney, 290 U.S. 169, 78 L.Ed.2d 247, 54 S.Ct. 142 (1933). The state has not suffered a recognizable or identifiable injury by the legislature’s alleged improper method of revocation and modification of agency rules and regulations. The majority states no injury is required when the action is brought “to obtain both ‘an authoritative interpretation of the law for the guidance of public officials and their administration of the public business’, and to question the constitutionality of the legislature’s actions.” This again is the use of the “end justifying the means,” the doctrine upon which tyranny is always premised. Since this statement is without citation I assume it is supported by a similar overbroad statement included in the court’s decision in Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 26, 643 P.2d 87 (1982). In Hurley, however, there was an actual controversy. Without the court’s intervention, Manhattan Buildings, the builder in Hurley, had no mechanism to force the Kansas Secretary of Administration to perform his obligation under the State’s lease with Manhattan Buildings. Thus, Hurley does not stand for the proposition that there need not be a case or controversy. There is, in fact, no injured plaintiff, no situation in which one of the regulations modified by the *70legislature causes hardship, and no controversy in this case. The lack of controversy is further exemplified by the executive branch, the remaining respondent in this action, agreeing in its brief that the law was unconstitutional and that mandamus was proper. There is no controversy when the parties in a case are in complete agreement. The court’s eagerness to rule, therefore, steps into the impermissible area of deciding a hypothetical and academic question. This is an advisory opinion.
The impermissible constitutional infringements in the rule adopted by the majority are quite troublesome. For instance, any time another branch of government questions the constitutionality of a statute it may request an opinion from this court by asserting the expediency rule. Such advisory opinions are strictly prohibited by the constitution and this court in its prior decisions. See Cady v. Cady, 224 Kan. 339, 345, 581 P.2d 358 (1978). The rules stated by the majority impose on this court the duty to act in the position of the attorney general in his capacity to give advisory opinions. This court will be deluged with such requests from governmental officials — all of great public importance demanding immediate consideration. Such a practice is particularly bad because it involves the courts in the political process. We will be requested to rule on the constitutionality of a bill prior to enactment because of the enormity of its importance and because of the guidance it will give other agencies — the expediency rule.
The danger in allowing such infringements by the judiciary in a case such as this where all parties agree is not overstated. As Justice Fatzer pointed out in his discussion of the separation of powers in his dissent to State, ex rel., v. Fadely, 180 Kan. 652, 669, 308 P.2d 537 (1957):
“There is a time when the powers of government must be kept separate and apart in order that our form of government may be preserved. The doubtful cases make the trouble — the small beginnings and usurpations create the danger. Everyone becomes alarmed at outright usurpation and we need have no fear of such occurrence; rather, what we should be alive to and ever guard against is the imperceptible but gradual increase into the assumption of governmental power by one department, properly belonging to another.”
The grant of the writ of mandamus is improper for another reason. The legislature, the body which passed the allegedly unconstitutional law, has been dismissed from this case. The writ, therefore, is directed to the chief executive officer of the *71state, the governor. The mandamus statutes, K.S.A. 60-801 et seq. state mandamus is:
“a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” K.S.A. 60-801.
The governor in this case has been directed to refrain “from acting under the authority of the above invalid resolutions, and ... to enforce administrative rules and regulations as adopted by executive agencies and as filed with the Revisor of Statutes and not as modified, rejected or revoked by concurrent resolutions of the legislature.” That quote describes an injunction, not mandamus. This is not an order to compel the governor to perform a specified duty as required by statute. Rather, “[t]he writ of mandamus seeks to enforce the personal obligation of the individual to whom it is addressed; it rests upon the averred and assumed fact that the defendant or respondent has neglected or refused to perform a personal duty . . . .” 52 Am. Jur. 2d, Mandamus § 8, p. 336. The chief executive has not refused to perform a duty. In fact the governor wants to perform according to the petitioner’s request and this court’s order. It is the legislature which has acted improperly; thus, only the legislature may be compelled to act under the writ of mandamus. Since the legislature has been removed as a party, there is no one left to command and the writ by this court is therefore improper.
Finally, it is necessary to point out the error in the reasoning of this court in the majority opinion as to the violation by the legislature of the doctrine of the separation of powers.
The legislative branch of government is granted the authority to make laws as the representative of the people of the state. This is the nature of the Kansas Constitution. The legislature is the representative of the people and it has all power to pass legislation not prohibited by the constitution. See Leek v. Theis, 217 Kan. 784, 795, 539 P.2d 304 (1975). The limits on the legislature, however, extend to its delegation of legislative authority. The legislature may not delegate its law-making power to another branch of government. We have held:
“The legislature may not delegate its power to make laws but may enact a law in general terms which confers upon an officer or board administrative duties to enforce and apply the law, and, to accomplish that end, to ascertain the existence *72or nonexistence or some future fact, event or condition which the officer or board is required to ascertain; but, the statute must prescribe reasonably clear standards by which those vested with the duty to make the statute operate will do so in the manner intended.” State, ex rel., o. Fadely; 180 Kan. 652, Syl. ¶ 7.
See also Giddings v. City of Pittsburg, 197 Kan. 777, 75, 421 P.2d 181 (1966); 16 C.J.S., Constitutional Law § 141.
In K.S.A. 77-415 et seq. the legislature granted the executive agencies of the state the power to make their own rules and regulations to implement and interpret legislation. Those rules and regulations were also given the effect of law. See K.S.A. 1983 Supp. 77-415(4). There are no specific guidelines provided by the legislature upon which the executive agencies can rely in their rule making. The authority granted is not merely enforcement and factfinding authority, as allowed by our court, but actual legislative authority. This is an impermissible grant of exclusive legislative power to the executive branch, which is of course a violation of the doctrine of separation of powers. Thus, the rule-making statute is itself unconstitutional. As such, any rules made by executive agencies pursuant to this statute are invalid. Thus, the statute granting the legislature the power to modify agency rules and regulations was not an impermissible encroachment by the legislature into the executive branch, since the rules and regulations it modified were invalid and void ab initio. The majority’s opinion not only fails to consider the full implications of the separation of powers argument, but also overlooks the unconstitutionality of the rule-making statute, K.S.A. 77-415 et seq. Since we are now giving advisory opinions it seems appropriate that we advise the other branches of government of this problem.
I, therefore, dissent from the majority. The rule oflaw set out by the majority violates established constitutional principles and as such invites continued violation of the advisory opinion prohibition.