(concurring).
I agree with and join in the opinion of the court, but wish to add that, on the face of its order, the Federal District Court asks us to decide the Federal issues raised in this litigation and, at the same time, it reserves jurisdiction to accept or reject our decision in the matter.
If our decision would he no more than advisory in character, we have no power to make it under the provisions of our Constitution. On the other hand, if our decision would be effective as a final judgment of this court, the reservation of jurisdiction by the Federal District Court is entirely meaningless because that court has no appellate jurisdiction over the decisions of this court.
ADDENDUM
TEIGEN, Judge.In the original petition, petitioners pray “That the court find and declare that the former Sections 26, 29 and 35 of the Constitution of the State of North Dakota, as they existed prior to amendment in 1960, are now part and parcel of the Constitution of the State of North Dakota.” We did not pass on that question in the original decision. The petitioners have now asked us to amplify our decision and determine the question “whether a finding [by the United States courts] that Section 29 was invalid would revive both old Section 29 and also Sections 26 and 35.” They argue that, although our decision may be advisory, this is a State question of which this court is the final arbiter; that the situation in this case is different and, therefore, we should pass on the question, otherwise the case may be shuttled back and forth between courts.
The question is an abstract one and will materialize only in the event that the Federal court decides that Section 29 of our Constitution, as amended, violates the Federal Constitution.
As we view the question, this court is asked to deliver an advisory opinion. This we cannot do. Section 96 of our Constitu- ■ tion provides:
“No duties shall be imposed by law upon the supreme court or any of the judges thereof, except such as are judicial, * * *.”
In Langer v. State, 69 N.D. 129, 284 N.W. 238, we said:
“The powers conferred upon the Supreme Court by the Constitution of North Dakota are exclusively judicial. The giving of advisory opinions is not a judicial function.
“Under the Constitution of North Dakota, the Supreme Court is not permitted to render advisory opinions.” See also State ex rel. Olsness v. McCarthy, 53 N.D. 609, 613, 207 N.W. 436; and State ex rel. Johnson v. Baker, 74 N.D. 244, 248 and 257, 21 N.W.2d 355.
MORRIS, C. J., and TEIGEN, STRUTZ, ERICKSTAD and BURKE, JJ„ concur.