Anway v. Grand Rapids Railway Co.

179 N.W. 350, 211 Mich. 592, 12 A.L.R. 26, 1920 Mich. LEXIS 724

• Court: Michigan Supreme Court
• Decided: September 30, 1920
• Docket: Docket No. 93
• Status: Published

Opinions

Fellows, J.

This is a proceeding instituted in the circuit court for the county of Kent in chancery, under Act No. 150 of the Public Acts of 1919, entitled: “An act to authorize courts of record to make binding declaration of rights.” The act will be found in the margin. Briefly stated, the bill alleges that .plaintiff is employed by defendant street railway company as a conductor; that he desires to work more than six days in consecutive seven days; he does not claim to have any such contract with defendant; he claims no breach of any contract; he does not allege that defendant has committed, ' or threatened to commit, any wrong upon him, or that he has any claim, present or prospective, for any damages, from defendant. He seeks, to have this court advise him whether the defendant will violate the provisions of Act No. 361, Pub. Acts 1919, if it should in the future permit him to work inore than six days in consecutive seven days. Stated in the language of plaintiff’s brief:

“AN act to authorize courts of record to make binding declaration of rights. “The People of the State of Michigan enact: “Section 1. No action or proceeding in any court of record shall be open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby, and the court may make binding declarations of rights whether any consequential relief is or could be claimed, or not, including the determination, at the instance of any one claiming to be interested under a deed, will or other written instrument, of any question of construction arising under the instrument and a declaration of the rights of the parties interested.

“The sole question in the case is as to the meaning of Act No. 361 of the Public Acts of 1919. The precise question is, Does that act make it unlawful for a street railway company to allow its motormen or conductors or both to work more than six days in any consecutive seven days of twenty-four hours each if the conductors or motormen so desire?”

The defendant railway company answers, admitting the allegations of the bill. Division 836, Amalgamated Association of Street and Electric Railway Employees of America, intervenes. It is not claimed that the rights of any of these parties have been invaded, nor is there threat of invasion of the rights of any one. No damages are claimed, nor is there threat of any damage. The proceeding must rest, and rest alone, upon Act No. 150. The learned author of this act says of it (54. American Law Review, p. 161):

“Sec. 2. Declarations of rights and determinations of questions of construction, as herein provided for, may he obtained by means of ordinary proceedings at law or in equity, or by means of a petition on either' the law or equity side of the court as the nature'of the case may require, and where a declaration of rights is the only relief asked, the case may be noticed for . early hearing as in the case of a motion. “Sec. 3. Where further relief based upon a declaration of rights shall become necessary or proper after such declaration has been made, application may be made by petition to any court having jurisdiction to grant such relief, for an order directed to any party or parties whose rights have been deter-

“Now for the first time American legislation has definitely committed itself to the principle that an adequate system of remedial law requires courts to offer remedies in advance of the. happening or even of the threat of any wrongful act and to authoritatively advise parties as to what their legal rights may be in the circumstances in which they find themselves.”

And calling attention to the character of matters to which the act is applicable, he considers eight subdivisions, the first one of which we quote (page 177) :

“A declaration of rights may be had where there is a present possibility of immediately creating a cause of action, as by a demand or refusal, but the parties have not done so, perhaps through reluctance to precipitate a conflict. This is the typical case for a friendly application to the court.”

And the author of this measure in his brief considers the present case a typical one for the application of the act.

Considering the act itself as well as the very able paper by its author in volume 54 American Law Review, p. 161, under the title “The Courts as Authorized Legal Advisers of the People,” it at once becomes apparent that by the act the courts of this State are made the legal advisers of all seeking such advice, not through their existing opinions in matters, which have involved wrongs committed and redressed by such tribunals, but in advance of any infringement of their rights, any breaches of their contracts; and that in'advance of any existing controversy that they be advised by a declaration of rights as to what the law is, or will be, in the event of future breaches, future contingencies which may or may not happen. Indeed, this is the essence of the measure. Before this court, with its membership of eight, takes up the work of advising three million people and before the legislature is called upon to increase the membership of this court so as to efficiently conduct this work, it is well that this court pause long enough to consider, and consider fully, whether the act calls upon us to perform any duties prescribed by the Constitution or to exercise any power therein conferred. At the argument counsel engaged in the case were- asked to file briefs upon the constitutionality of the act, the attorney general was requested to file a brief amicus curiae, and the author of the bill was invited to do likewise. All have complied and others interested in the . measure have favored us with briefs upon the question. All authorities that have been called to our attention in the briefs have been read, together with a large number of others which our independent research has brought to light. It is manifest that all cases examined cannot be discussed within the compass of this opinion, but the. eminence of the author of the act, the fact that it was advocated by the legislative committee of the State Bar Association, the zeal of its advocates, prompts us at the expense of prolixity to quote from and cite many of the cases, which have been considered.

mined by such declaration, to show cause why such further relief should not be granted forthwith, upon such reasonable notice as shall be prescribed by the court in the said order. “Sec. 4. When a declaration of rights, or the granting of further relief based thereon, shall involve the determination of issues of fact triable by a jury, such issues may be submitted to a jury in the form of interrogatories, with such instructions by the court as may be proper, whether a- general verdict be rendered or required or not, and such interrogatories and answers shall constitute a part of the record of the case. “Sec. 5. Unless the parties shall agree by stipulation as to the allowance thereof; costs in proceedings authorized by this act shall he allowed in accordance with such special rules as the Supreme Court may make, and in the absence of such rules the practice followed in ordinary cases at law or in equity shall be followed wherever applicable, and when not applicable, the costs or such part thereof as to- the court may seem just, in view of the particular circumstances of the case, may be awarded to either party. “Sec. 6. This act is declared to be remedial, and is to be liberally construed and liberally administered with a view of making the courts more serviceable to the people. “Approved May 2, 1919.”

We do not consider the question of whether the act. deprives parties of their constitutional right of trial by jury, nor the question Whether the act offends, the “due process” clause of the Federal Constitution. We do not regard a determination of these questions necessary to the decision of the validity of the act. Authorities upon these questions have been examined to ascertain whether they throw light on the question under consideration. We have examined the decisions of many State courts of last resort, but as would be expected have found more aid in reaching our conclusion from the decisions of the Federal court of last resort than from any one other source. And in view of the fact that one of the briefs cites and quotes from a paper prepared by one of the professors of one of the country’s great universities no less than fourteen times we regard, it as proper to remark that we are compelled to accept the final decisions of the United States Supreme Court and the decisions of this or other State •courts of last resort as to what the law is rather than the views of able writers of papers as to what it ought to be. We note that the learned professor, who is so frequently quoted, entertains the view that it is the duty of the State through its courts to furnish advice to its citizens rather than to leave them to “unauthoritative advice of counsel.” This adopts the view that “the State* is everything, the individual nothing.” Under our government the State does not till our farms, manufacture our automobiles, conduct our great department stores or do our law business for us. The unfortunate people of one country are at present trying such experiment in government. We are still a. government of laws, operating under a written Constitution, and to it rather than to the question of desirability we must look for our power. If such power as we are hereeasked to exercise under this act is wanting in the Constitution then this court lacks such power and the legislature lacks authority to grant it.

Many cases will be found where courts have solved the problems submitted to them without question as to their power; indeed, that is what we are asked to do in this case, and one of the counsel most strenuously insists that in view of the fact that none of the parties of record raises the question of the constitutionality of the act this court ought not to. But it must be borne in mind that the question of the jurisdiction of this court is here involVed, and every requirement of public policy impels an early determination of the validity of the act. But if we had acceded to counsel’s request and, .without regard to the validity of the act, had prepared an opinion determining and'answering the questions- propounded, could it have been successfully contended when the question of power was raised that our determination of this controversy was authority on the question of power? We think not. And so when the question of power is involved we must look for light to those cases which have discussed it rather than to those cases which have decided the questions submitted without regard to the question of power.

This State in common with the other States of the Union patterned after the Federal Constitution in providing for the division of powers. It is provided in. our Constitution:

“ARTICLE IV.

“Section 1. The powers of government are divided into three departments: The legislative, executive and judicial.

“Sec. 2. No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this Constitution.”

“ARTICLE VII.

“Section 1. The judicial power shall be vested in one Supreme Court, circuit courts, probate courts, justices of the peace and such, other courts of civil and criminal jurisdiction, inferior to the Supreme Court, as the legislature may establish by general law, by a two-thirds vote of the members elected to each house.”

“Sec. 4. The Supreme Court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.”

By the Constitution the judicial power was vested in the courts and it was vested in no other department of the government. To the courts was committed the judicial power and no other. Much has been said of the division of powers, but it was so well put by the court of appeals of Virginia in Ratcliffe v. Anderson, 31 Grat. 105, that we quote it. It was there said:

“It is now too well settled to admit of serious dispute that the legislative department can no more exercise judicial power than that, the judicial department can exercise legislative power. Each is supreme in the exercise of its own proper functions within the limits of its authority. The boundary line of these powers is plainly defined in every well-ordered government; and in this country it is now a well-established principle of public law that the three great powers of government — the legislative, the executive, and the judicial — should be preserved as distinct from and independent of each other as the nature of society and the imperfections of human institutions will permit. That system which best preserves the independence of each department approaches nearest to the perfection of civil government and, the security of civil liberty.”

Our inquiry here is as to whether we are called upon by the act to exercise judicial power, to perform judicial functions. If so, and if it is. within the power of the legislature to enact it, we should comply with the mandate of the legislature without question as to its wisdom or its practicability. On the other hand, if we are clearly of the opinion that under the Constitution we are not and cannot be called, upon to exercise such power and perform such functions, we should say so, and without hesitation. We should, and do, approach the question having in mind the well recognized rule that it should clearly appear that the act is invalid before we declare it to be in conflict with the Constitution. But if we are clearly satisfied that the Constitution has been infringed by the legislature, a co-ordinate branch of the government, we have but one duty: that of sustaining the Constitution and declaring the act invalid.

This character of proceeding owes, its origin to the English practice, although it is said that it is found in the Roman law; but as England has no written constitution and the English courts but follow the mandates of parliament the decisions of the English courts are of no avail upon the question now under consideration. The act before us, together with a modified form of it in Wisconsin (Laws of Wisconsin, 1919, chap. 242) and Florida (Laws of Florida, 1919, No. 75), is the first attempt in this country, so far as we have been able to ascertain, to make the courts the legal advisers of everybody. But the attempt to make the judicial department the adviser of other departments is practically as old as the government itself. In 1793, when this country was still in its swaddling clothes, President Washington, through Mr. Jefferson, his secretary of state, requested the Justices of the Supreme Court to answer a series of questions comprehending the differences between the executive and the minister of France relative to the exposition of the treaties between the two countries. But the Justices replied that

“Considering themselves merely as constituting a legal tribunal for the decision of controversies brought before them in legal form, those gentlemen deemed it improper to enter the field of politics, by declaring their opinions on questions not growing out of the case before them.” 5 Marshall’s Life of Washington, pp. 433, 441; 2 Story on the Constitution (5th Ed.), § 1571.

By the act of March 23,1792 (1 U. S. Stat. at Large, p. 243), congress provided for certain pensions and required the circuit courts to examine the proofs and determine to whom and in what amount pensions should be allowed and certify the same to the secretary of war. Chief Justice Jay, Mr. Justice Cushing, and District Judge Duane unanimously agreed

“That neither the legislative nor the executive branches can constitutionally assign to the judicial any duties but such as are properly judicial, and to be performed in a judicial manner,”

and held that the duties assigned were not of that description. Hayburn’s Case, 2 Dall. (U. S.) 409, and note 410.

By the treaty of 1819 between the United States and Spain this country agreed to cause satisfaction to be made for injuries to Spanish, officers and inhabitants by reason of the operations of the American army in Florida. Congress by two acts (Act of March 3, 1823, 3 U. S. Stat. at Large, p. 768, and Act of June 26, 1834, 6 U. S. Stat. at Large, p. 569) made provisions to carry out these obligations by directing the judges of the territorial court of Florida to receive, examine and adjudge all claims and report their decisions to the secretary of the treasury who, on being satisfied that they were just and equitable, should pay the same. In United States v. Ferreira, 13 How. (U. S.) 40, the question arose as to whether an appeal could be had to the Supreme Court. This involved the question of whether the territorial court of Florida was exercising judicial powers. The appeal was dismissed; in the course of the opinion it was said:

“It is too evident for argument on the subject, that such a tribunal is not a judicial one, and that the act of congress did not intend to make it one. The authority conferred on the respective judges was nothing more than that of a commissioner to adjust certain claims against the United States; and the office of judges, and their respective jurisdictions, are referred to in the law, merely as a designation of the persons to whom the authority is confided, and the territorial limits to which it extends. The decision is not the judgment of a court of justice. It is the award of a commissioner.”

See, also, the note to this case inserted by. order of the court.

In Gordon v. United States, 117 U. S. 697, appendix, Chief Justice Taney, in what is said to have been the last opinion prepared by him, considers quite fully the question of judicial power. The case before the court was one in which congress had authorized an appeal from the court of claims. We quote at length from this opinion:

“But whether this court can be required or authorized to hear an appeal from such a tribunal, and give an opinion upon it without the power of pronouncing a judgment, and issuing the appropriate judicial process to carry it into effect, is a very different question, and rests on principles altogether different. The Supreme Court does not owe its existence or its power to the legislative department of the government. It is created by the Constitution, and represents one of the three great divisions of power in the government of the United States, to each of which the Constitution has assigned its appropriate duties and powers, and made each independent of the other in performing its appropriate functions. The power conferred on this court is exclusively judicial, and it cannot be réquired or authorized to exercise any other. * * *

“The existence of this court is, therefore, as essential to the organization of the government established by the Constitution as the election of a president or members of congress. It is the tribunal which is ultimately to decide all judicial questions confided to the government of the United States. No appeal is given from its decisions, nor any power given to' the legislative or executive departments to interfere with its judgments or.process of execution. Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. * * *

“The position and rank, therefore, assigned to this court in the government of the United States, differ from that of the highest judicial power in England, which is subordinate to the legislative power, and bound to obey any law that parliament may pass, although it may, in the opinion of the court, be in conflict with the principles of Magna Charta or the Petition of Rights. * * *

“The appellate power and jurisdiction are subject, to such exceptions and regulations as the congress shall make. But the appeal is given only from such inferior courts as congress may ordain and establish to carry into effect the judicial power specifically granted to the United States. * * * Nor can congress authorize or require this court to express an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect.

“The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of congress.”

It will be noted that in each of the three cases last considered there was no power in the court' to enter a final judgment and enforce such judgment by process, an essential element of the judicial power. We shall later have occasion to refer to the holdings of the Supreme Court of the United States where the question of judicial power was involved.

We are mindful of the fact that in seven of the States of the Union (Colorado, Florida, Maine, Massachusetts, New Hampshire, Rhode Island and South Dakota) by the constitutions of those States the legislative or executive departments may request opinions of the Supreme Court on important questions; but we are likewise mindful that such opinions are regarded as expressing the views of the justices and not a judicial determination of the question by the court; and such opinions are not regarded as binding upon the legislature, the executive, or the court itself; indeed, the court does not act as a court in rendering such opinions but as the constitutional advisers of the other departments of the government. Opinion of the Justices, 126 Mass. 566; State v. Cleveland, 58 Me. 572; Green v. Commonwealth, 12 Allen (Mass.), 155, 164. But our Constitution contains no such, provisions, no such requirement, and grants no such power.

Undoubtedly the advocates of this, measure gather more comfort and find more support for their position in the holdings of some of the western States involving their irrigation laws than from any one source other than papers prepared by its ádvocates. Without detailing all the provisions of these irrigation laws, it will suffice to say that they are similar in character, providing for the formation of irrigation districts, the levying of taxes, perfection of an organization to carry on the project, and provide for a submission to the courts of their proceedings, a hearing of which notice is given and a determination by the court as to the regularity and validity of the proceedings. Their validity has been frequently assailed and quite uniformly upheld by the' courts of last resort of the several States. The usual ground of attack has been that they do not provide for due process of law, but in several instances they have been assailéd on the ground that the power conferred upon the court was not judicial power. These holdings, however, lose much of their value as. authority upon the question of judicial power from the fact that one of them (involving the California act) found its way to the United States Supreme Court in Tregea v. Irrigation District, 164 U. S. 179 (17 Sup. Ct. Rep. 52). It was there said by the court, speaking through Mr. Justice Brewer and considering the determination of the district court as to the validity of the proceedings:

“But going beyond this matter, we are confronted with the question whether, in advance of the issue of bonds and before any obligation has been assumed by the district, there is a case or controversy with opposing parties; such as can be submitted to and can compel judicial consideration and judgment. This is no mere technical question. For, notwithstanding the adjudication by the courts of the State in favor of the validity of the order made for the issue of four hundred thousand dollars of bonds, and, notwithstanding any inquiry and determination which this court might make in respect to the matters involved, there would still be no contract executed; no obligation resting on the district. All that would be accomplished by our affirmance of the decision of the State court would be an adjudication of the right to make a contract, and, unless the board should see fit to proceed in the exercise of the power thus held to exist, all the time and labor of the court would be spent in determining a mere barren right — a purely moot question.

“We are not concerned with any question as to what a State may require of its judges and courts, nor with what measures it may adopt for securing evidence of the regularity of the proceedings of its municipal corporations. It may authorize an auditor or other officer of State to examine the proceedings and make his certificate of regularity conclusive evidence thereof, or it may permit the district to appeal to a court for a like determination, but in either event it is a mere proceeding to secure evidence. * * *

“It may well be doubted whether the adjudication really binds anybody.”

While the advocates of this measure insist that the proceedings authorized by the act do not constitute a moot case, and while the proceedings may not square in all particulars with the technical definition of a moot case, they are such in every essential. The act contemplates determinations of abstract propositions of law before any cause of action has accrued or before any wrong has been committed, or before any damages have been occasioned or threatened; it does not contemplate final process to put the determination of the court into force unless there be a further proceeding on application by petition (section 3). It contemplates construction of deeds and other written instruments when no one, is questioning their construetion, and the determination of rights under contracts which have not been breached and never will be. In short, it requires that the time of the court shall be taken, not in the determination of actual controversies where rights have been invaded and wrongs have been done, but in the giving of advice to all who may seek it. If the proceedings do not square with the technical definition of a “moot case” they possess all of its objectionable characteristics, and in every essential it attempts to legalize what before was considered by many courts and text writers a contempt of court — the presentation of a moot case. Mr. Bouvier says (2 Bouvier’s Law Diet., p. 2245):

“Any attempt by a mere colorable dispute, to obtain the opinion of a court upon a question of law, when there is no real, controversy,- is an abuse which courts have always reprehended and treated as a punishable contempt of court.” v

But to resume the consideration of the cases thought to be applicable by the proponents of this act. They challenge our attention to two California cases: Title, etc., Restoration Co. v. Kerrigan, 150 Cal. 289 (88 Pac. 356, 8 L. R. A. [N. S.] 682), and Robinson v. Kerrigan, 151 Cal. 40 (90 Pac. 129). The first of these cases involved the “McEnerney act,” an act passed after the records of title had been destroyed by the San Francisco earthquake. It was an act “for the establishment and quieting of title to real estate in case of the loss or destruction of records”; the second involved the act adopting the Torrens system. The proceeding contemplated by both acts was a proceeding to quiet title, a well-recognized field for the exercise of equitable jurisdiction and the cases are not persuasive of the validity of the act here under consideration.

Attention at this point should be given to two Ohio cases (Miami County v. City of Dayton, 92 Ohio St. 215 [110 N. E. 726], and Thompson v. Redington, 92 Ohio [110 N. E. 652; Ann. Cas. 1918A, 1161]). In the first of these cases legislation to prevent floods and to authorize the organization of drainage and conservation districts was involved. While the opinion does not exhaustively deal with the question of judicial power, in so far as it does deal with that question what we have said of the irrigation laws is quite applicable, as the organization of the drainage district and the functions of the courts are somewhat analogous to the provisions found in the irrigation laws. The second of these cases involved the power of the legislature to authorize the conduct of a contest over an election in the courts. It is significant to note that the court expressly held that under the clause of the constitution of that State similar to ours conferring the judicial power on the. court, that it was beyond the power of the legislature to require the courts to hear such contests, but that under another clause of the constitution which has no counterpart in our Constitution such power existed and that both sections should be construed and givfen effect. Neither of these cases militate against what was said by that court in State v. Baughman, 38 Ohio St. 455, from which we shall later quote.

Counsel also say that in proceedings to determine heirship the courts have exercised powers analogous to those here involved. They say such determination of the courts are binding and cite us to Fitzpatrick v. Simonson Bros. Manfg. Co., 86 Minn. 140 (90 N. W. 378), which does so hold. One difficulty in following this case, however, and it is a sufficient one, lies in the fact that this court has held exactly to the contrary in Lorimer v. Wayne Circuit Judge, 116 Mich. 682, where our act was under consideration and where we said of such proceedings:

“The act under which the proceedings were instituted does not purport to make the proceedings ,of the probate court conclusive upon anybody. They are not binding even upon the relator. The petitioner, or other person interested, if not satisfied with the findings, might, in any judicial proceeding, resort to original evidence, and wholly ignore the action” of the probate court. The proceeding simply makes evidence, and any common-law jury could overturn it in any other proceeding.”

But the supreme court of Minnesota has quite definitely gone on record on the question of what is judicial power. The legislature of that State passed an act requiring the supreme court to give advisory opinions to the legislature on request by either house. In Re Application of the Senate, 10 Minn. 78, the court had before it a request for such an opinion. It was held that the act was unconstitutional in that it required of the court the exercise of other than judicial power, and it was said:

“The duty sought to be imposed by the section of the act referred to, is clearly, neither a judicial act nor is it to be performed in a judicial manner. It constitutes the supreme court the advisers of the legislature, nothing more. This does not come within the provisions of the constitution, and, as. the constitution now stands, would be, in our opinion, not only inconsistent with judicial duties, but a dangerous precedent. The ^ impropriety of an unauthorized expression of opinion by a judge or court, especially one of last resort, upon a matter which may subsequently come before the court for adjudication, will,immediately suggest itself. If the statute under consideration is in conflict with the constitution it imposes no duty, and any opinion expressed in pursuance of action under it, is extra-judicial, and no official responsibility attaches to the judge or court,- voluntarily giving it. The evils which might result to the people from such a source will suggest themselves on a moment’s reflection.”

Nor are we persuaded that the New Jersey cases sustain counsel’s contention. While it is true that the New Jersey court of equity had prior to the enactment of chapter 116, Laws of 1915, declined, to construe wills and thereafter assumed such jurisdiction in cases where under the wording of the act persons “claiming a right cognizable in a court of equity,” invoked such jurisdiction, we do not understand that the later cases which have been decided since the act was passed have treated the constitutional question or determined that the act was valid. But be that as it may, this court has for many years construed wills in equity cases and in proper cases have recognized the jurisdiction of the chancery court to construe wills, and such jurisdiction has been exercised without question.

Our attention has also been challenged to cases from other jurisdictions where the courts have entertained direct proceedings to review the action of the executive. But these cases are not in accord with our holding in Germaine v. Governor, 176 Mich. 585 (46 L. R. A. [N. S.] 857, Ann. Cas. 1915B, 418).

We feel constrained to state that we have not found any cases in the briefs of any of the counsel who seek to sustain the act which are at all convincing to our minds that the act in question calls upon the courts to exercise judicial powers or to hear other than matters which are to all intents and purposes “moot” cases.

We shall now, without going into the details as to how the question arose, quote from some of the cases which have dealt with the power of the court to consider cases in which no wrongs have been sought to be redressed and where no rights have been invaded and where no actual controversy existed.

“But there is another and stronger reason why the bill in this case should not be entertained. A court of equity will not take jurisdiction, unless it can afford immediate relief, and certainly will not undertake, where there is no matter in dispute, to declare future rights. Heald v. Heald, 56 Md. 300. It will never undertake to decide upon and determine a contingency. that may never arise, unless such determination is necessary for the decision of some immediate relief to be granted, and which the court can enforce by a decree.” Woods v. Fuller, 61 Md. 457.

“Where a complainant has sustained no injury and the object of the action is merely to obtain a declaration as to the constitutionality of a legislative act, the question presented to the court is merely an abstract one and the action will be dismissed. * * *

“Abstract questions cannot be made the subject of an action. They will not be answered, although it may appear that at some time in the future they will probably be the subject of a real controversy. A, question which the courts will entertain must be in an action or proceeding where the necessary parties are before it, in which there is a subject-matter, and where the determination of the court can be placed in a judgment or final order forever controlling upon the parties and their privies, and in which final process can be issued to carry the judgment or order into effect.” Hanrahan v. Terminal Station Commission, 206 N. Y. 494 (100 N. E. 414).

“Where it is apparent that the object of a case is not the vindication of a right, but a desire to obtain an interpretation of a statute by a test case, this court will not assume jurisdiction of the cause.” Sennette v. Police Jury, 129 La. 728 (56 South. 653).

“It is universally understood by the bench and bar, on the contrary, that a moot case is one which seeks to get a judgment on a pretended controversy, when in reality there is none, or' a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy. . The only way a disputed right can ever be made the subject of judicial investigation is, first, to exercise it, and then, having acted, to present a justiciable controversy in such shape that the disputed right can be passed upon in a judicial tribunal, which can pronounce the right and has the power to enforce it.” Ex parte Steele, 162 Fed. 694.

“It is well settled that a court will never entertain a suit to give a construction or declare'the rights of parties upon a state of facts which has not yet arisen, nor upon a matter which is future, contingent and uncertain.” Wahl v. Brewer, 80 Md. 237 (30 Atl. 654).

“Whether the complainant will ever acquire any title to the lot depends upon his payment of the purchase price within the time agreed upon, and the only possible effect of a decision of the question discussed by counsel would be to have this court certify what title Harry Goodman now has and what title the complainant will acquire if he ehooses to avail himself of the option. The bill states all the facts upon which the question of title depends and the plea merely reiterates the same facts with immaterial additions, so that there appears to be no real controversy between the parties, and a court cannot properly be used, for mere business reasons, to decide whether the complainant will get an absolute estate in fee on complying with the, terms of the option, or a limited estate.” Lonergan v. Goodman, 241 Ill. 200 (89 N. E. 349).

“What the plaintiff (by the additional prayer set forth above) • in effect asks the court to do is to enter a declaratory decree stating that the release of the Whipple mortgage operated as an assignment of that mortgage and that that mortgage now has come to the plaintiff. But on this bill no relief can be granted to the plaintiff on that declaration of his rights, if he is entitled to it. Where all that is sought by a plaintiff is a declaratory decree not the subject of relief to be based upon it, there is no jurisdiction in equity and the bill must be dismissed.” Hanson v. Griswold, 221 Mass. 228 (108 N. E. 1035).

“It is not the office of courts to give opinions on abstract propositions of law, or to decide questions upon which no rights depend, and when no relief can be afforded. _ Only real controversies and existing rights are entitled to invoke the exercise of their powers.” Hamer v. Commonwealth, 107 Va. 636 (59 S. E. 400).

“We are to decide questions arising and undetermined in a case pending, and we may ‘not tender advice upon matters not in litigation.’ ” Snell v. Welch, 28 Mont. 482 (72 Pac. 988).

“The question of the exemption of the work-bench from attachment and execution, does not arise in the case. It is true, the parties have attempted to present it, and have expressly agreed that judgment shall be rendered according to our opinion upon this question. But neither parties nor their counsel have any right to make their cases turn upon any thing but their own intrinsic merits; or to call upon the court by fictitious actions or assumed facts, to decide mere speculative questions. The former would partake of the nature of gambling and the latter would convert the highest tribunal in the State into a moot court to decide questions which might never arise, or to lay down rules for the government of cases in which the real parties would have no opportunity to be heard.” Smith v. Cudworth, 24 Pick. (Mass.) 196.

“It is not sufficient that the parties be real and not fictitious, but the controversy must be real and not pro forma, nor is it sufficient that the facts exist as they are set out in the action; nor that the complainant has a cause of action, but beyond these, the question arises, Is the suit prosecuted to redress the grievance of the plaintiff, or to affect third persons, who may be interested in the same question already pending in another suit, and which is the primary and real object of the proceeding? If the latter, the suit should be dismissed. Courts cannot be used for the purpose of deciding even real questions in pro forma suits, especially when the object and purpose is to affect important litigation between other parties. If so, the most complicated and difficult questions of law, and the constitutionality of statutes might be settled by the court upon such pro forma proceedings, when no real controversy or adverse interests exist, and no proper examination of the important questions is made by counsel or the court.” Ward v. Alsup, 100 Tenn. 619, 740 (46 S. W. 573).

"“Courts of judicature are organized only to decide real controversies between actual litigants. When, therefore, it appears, no matter how nor at what stage, that a pretended action is not a genuine litigation over a contested right between opposing parties, but is merely the proffer of a simulated issue by a person dominating both sides of the record, the court, from a sense of its own dignity, as well as from regard to the public interests, will decline a determination _ of the fabricated case so fraudulently imposed upon it.” Judson v. Flushing Jockey Club, 36 N. Y. Supp. 126.

“A decision on any of the questions suggested, not necessary to a determination of the right of defendants to exercise these functions, would not be a judicial settlement of such questions, but would be without authority conferred by the - constitution to make it. To be a judicial settlement the question decided must arise in a judicial proceeding, properly before a court of competent jurisdiction. The division of the powers of the State into legislative, executive and judicial, and the confiding of these powers to distinct departments, is fundamental.

“It is essential to the harmonious working of this system that neither of these departments should encroach on the powers of the other. If the judiciary were to assume to decide hypothetical questions of law not involved in a judicial proceeding in a cause before it, even though the decisions ‘would be of great value to the general assembly’ in the discharge of its duties, it would, nevertheless, be an unwarranted interference with the functions of the legislative department that would be unauthorized, and dangerous in its tendency. * * *

“In some of the States, Massachusetts included, the constitution authorizes the legislature and the governor to require of their highest judicial tribunal its opinion on important questions of law, the decision of which become necessary to the discharge of their public duties. Even under such a provision the judiciary must confine itself to an opinion on such questions as are involved in or necessary to the discharge of a public duty by the inquiring body. This power does not include the right to require an opinion on abstract or hypothetical questions however valuable as a future guide, nor to such questions as affect private rights merely.” State v. Baughman, 38 Ohio St. 455.

“The power involves not only the power to hear and determine a cause, but also the power and jurisdiction to adjudicate and determine the rights of the parties to the controversy and to render a judgment or decree which will be effectual and binding upon them in respect to their personal or property rights in controversy in such proceedings. O’Brien v. People, 216 Ill. 354 (75 N. E. 108). The power to hear without the power also to adjudicate and determine the rights of the parties to such proceedings cannot be said to be the exercise of the judicial power as that term is used in the constitution of this State.” Devine v. Brunswick-Balke-Collender Co., 270 Ill. 504 (110 N. E. 780, Ann. Cas. 1917B, 887).

“The plaintiffs take whatever they may be entitled to under the will, not in their character as executors, or in trust, but in their own right. They present no question touching the proper disposition of trust funds, but request the court to inform them what their legal rights and those of the defendants are in the property devised. The court might with equal propriety be called upon by the parties interested to advise them regarding the title to land, the construction of a contract, or any other question of law. Such questions are not ordinarily adjudicated until it becomes necessary to decide them in proceedings instituted for the redress of wrongs.” Greeley v. City of Nashua, 62 N. H. 166.

“The distinction between a judicial and a legislative act is well defined. The one determines what the law is, and what the rights of parties are, with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it.” Sinking-Fund Cases, 99 U. S. 700, 761.

“The duty of this court is limited to actual- pending controversies. It should not pronounce judgment on-abstract questions, even if its opinion might influence future action under like circumstances.” Richardson v. McChesney, 218 U. S. 487 (31 Sup. Ct. Rep. 43).

“When the judgment appealed from cannot be affected by the decision of the appellate court the case becomes a moot one and the appeal should be dismissed; hearing and deciding such an appeal for the purpose of establishing a rule of observance in cases subsequently arising is not an exercise of judicial power.” United States v. Evans, 213 U. S. 297 (29 Sup. Ct. Rep. 507).

“The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. When, in determining such rights, it becomes necessary to give an opinion upon a question of law, that opinion may have weight as a precedent for future decisions. But the court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation! of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard.” California v. Railroad Co., 149 U. S. 308 (13 Sup. Ct. Rep. 876).

“The question presented to the court is, therefore, merely an abstract one; such a one as no court can be called upon to decide, and the bill shows no equity in the complainant.” Williams v. Hagood, 98 U. S. 72.

One other case disposed of by the Supreme Court of the United States should be considered somewhat at length. By the act of March 1, 1907, 34 U.' S. Stat. at Large, pp. 1015, 1028, chap. 2285, David Muskrat and others on behalf of themselves and other Cherokee citizens were authorized to institute, proceedings in the court of claims with a right of appeal to the Supreme Court,

“* * * to determine the validity of any acts of congress passed since the said act of July first, nineteen hundred and two, in so far as said acts, or any of them, attempts to increase or extend the restrictions upon alienation, encumbrance, or the right to lease the allotments of lands of Cherokee citizens, or to increase the number of persons entitled to share in the final distribution of lands and funds of the Cherokees beyond those enrolled for allotment as of September first, nineteen hundred and two, and provided for in the said act of July first, nineteen hundred and two.”

The proceedings authorized by this act were instituted and brought to the Supreme .Court on appeal. That court in a very able and exhaustive opinion by Mr. Justice Day (Muskrat v. United States, 219 U. S. 346 [31 Sup. Ct. Rep. 250]), fully reviews the authorities and reaches the conclusion that the act of March 1, 1907, by which the Supreme Court was authorized to determine the validity of various acts having reference to the Indian tribes, was in excess of legislative authority, and that the congress had no power to confer power other than judicial upon the court, or to require of it other than judicial action; that the proceedings there under consideration did not require the exercise of judicial power and ordered a dismissal of the proceedings. After reviewing the authorities the court said:

“It is therefore evident that there is neither more nor less in this procedure than an attempt to provide for a judicial determination, final in this court, of the constitutional validity of an act of congress. Is such a determination within the judicial power conferred by the Constitution, as the same has been interpreted and defined in the authoritative decisions to which we have referred? We think it is not. The judicial power, as we have seen, is-the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. The right to declare a law unconstitutional arises because an act of congress relied upon by one or the other of such parties in determining their rights is in conflict with the fundamental law. The exercise of this, the most important and delicate duty of this court, is not given to it as a body with revisory power over the action of congress, but because the rights of the litigants in justiciable controversies require the court to choose between the fundamental law and a law purporting to be enacted within constitutional authority, but in fact beyond the power delegated to the legislative branch of the government. This attempt to obtain a judicial declaration of the validity of the act of congress is not presented in a "case’ or ‘controversy/ to which, , under the Constitution of the United States, the judicial power alone extends. It is true the United States is made a defendant to this action, but it has no interest adverse to the claimants. The object is not to assert a property right as against the government, or to demand compensation for alleged wrongs because of action upon its part. The whole purpose of the law is to determine the constitutional validity of this class of legislation, in a suit not arising between parties concerning a property right necessarily involved in the decision in question, but in a proceeding against the government in its sovereign capacity, and concerning which the only judgment required is to settle the doubtful character of the legislation in question. Such judgment will not conclude private parties, when actual litigation brings to the court the question of the constitutionality of such legislation. In a legal sense the judgment could not be executed, and amounts in fact to no more than an expression of opinion upon the validity of the acts in question. Confining the jurisdiction of this court within the limitations conferred by the Constitution, which the court has hitherto been careful to observe, and whose boundaries it has refused to transcend, we think the congress, in the act of March 1, 1907, exceeded the limitations of legislative authority, so far as it required of this court action not judicial in its nature within the meaning of the Constitution.”

This case should forever put at rest this question. It is absolutely decisive of the question before us.

To those who desire to further pursue the subject, we commend the following: Miller on Constitution of U. S., p. 313; 24 American Law Review, p. 369; Black’s Constitutional Law (2d Ed.), p. 87; New Orleans, etc., R. Co. v. Ferry Co., 104 La. 53 (28 South. 840); Reply of Judges, 33 Conn. 586; McDaniel v. Hurt, 88 Miss. 769 (41 South. 381); Shephard v. Wheeling, 30 W. Va. 479 (4 S. E. 635); Blake v. Askew, 76 N. C. 325; Muskogee Gas & Electric Co. v. Haskell, 38 Okla. 358 (132 Pac. 1098, Ann. Cas. 1915A, 190); Horrabin v. Iowa City, 160 Iowa, 650 (130 N. W. 150, 142 N. W. 212); Taylor & Co. v. Place, 4 R. I. 324; Bank of Pt. Gibson v. Dickson, 4 Smedes & Mar. (Miss.) 689; Jones v. Montague, 194 U. S. 147 (24 Sup. Ct. Rep. 611); Baird v. City of Atlanta, 131 Ga. 451 (62 S. E. 525); Barrs v. Peacock, 65 Fla. 12 (61 South. 118); Coryell v. Fawcett, 54 Colo. 353 (130 Pac. 838); State, ex rel. Jameson, v. Denny, 118 Ind. 382 (21 N. E. 252, 4 L. R. A. 79); Smith v. Railway Co., 29 Ind. 546; Ludlow v. Murphy (Ky.), 105 S. W. 887; Hazen v. Railroad, 63 N. H. 390; Dunston v. Insurance Co., 136 N. Y. Supp. 674; Deines v. Schwind, 89 Neb. 122 (130 N. W. 1051); United States v. Hamburg-American Co., 239 U. S. 466 (36 Sup. Ct. Rep. 212); Schinz v. Schinz, 90 Wis. 236 (63 N. W. 162); Collins v. Collins, 19 Ohio St. 468; Little v. Thorne, 93 N. C. 69.

We have thus far considered the holdings from other jurisdictions. This has largely been due to the fact that the advocates of the measure in the main studiously avoided any consideration of our own cases and have evidently thought those from other jurisdictions persuasive of their claims. We have, we think, demonstrated that the holdings of the courts of other jurisdictions are substantially unanimous in agreeing, that power like that conferred in the act now before us is not judicial power and is beyond the authority of the legislature to confer. We shall now consider some of our own cases. In Hipp v. Charlevoix County Supervisors, 62 Mich. 456, this court, speaking through Chief Justice Campbell, said:

“The controversy, which is not in any proper sense a judicial one, is closed. The Constitution has not empowered this court to settle controversies not judicial.” * * *

In Post v. Campau, 42 Mich. 90, it was said:

“The elements of a cause of action are, first, a breach of duty owing by one person' to another; and second, a damage resulting to the other from the breach. Damage, where no duty is violated, is damnum absque injuria; a neglect of duty, where no loss occurs, is equally incapable of giving a right of action.”

In the case of People v. Dickerson, 164 Mich. 148 (33 L. R. A. [N. S.] 917, Ann. Cas. 1912B, 688), this court had under consideration the validity of section 3, Act No. 175, Pub. Acts 1905. This section in substance directed the trial court in homicide cases to appoint experts who should investigate and give testimony on the trial. Considering the validity of this provision it was held that the court in selecting and appointing such experts performed no judicial act and that the section was in conflict with the Constitution. Speaking through Mr. Justice 'Brooke, it was there said:

“We think it clear that the preparation for and conduct of the trial on behalf of the people are acts executive and administrative in character. Under our Constitution, which jealously separates the powers of government into legislative, executive, and judicial departments, the powers and duties properly belonging to one department cannot by statutory enactment be granted to or imposed upon another department. Houseman v. Kent Circuit Judge, 58 Mich. 364; Locke v. Speed, 62 Mich. 408; City of Manistee v. Harley, 79 Mich. 238; Allen v. Board of State Auditors, 122 Mich. 324 (47 L. R. A. 117, 80 Am. St. Rep. 573).

“The power of selecting and appointing witnesses who shall, after appointment, acquaint themselves with the matter in controversy, and testify concerning the same, is in no sense a judicial act, and, if exercised by the court in accordance with the mandate of section 3, would entirely change the character of criminal procedure, ‘and would seriously endanger, if not absolutely destroy, those safeguards* which our Constitution has so carefully enacted for the protection of the accused.”.

In Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (5 L. R. A. 226), this court had before it the validity of an act providing for trials by jury in equity cases and making the verdict of the jury final. It was held to be beyond the power of the legislature to take from the equity court its power to determine questions of fact as well as of law and it was said, Justice Campbell speaking for the court:

“The right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury. Whatever may be the machinery for gathering testimony or enforcing decrees, the facts and the law must be decided together; and when a chancellor desires to have the aid of a jury to find out how facts appear to such unprofessional men, it can only be done by submitting single issues of pure fact, and they cannot foreclose him in his conclusions unless they convince his judgment. * * *

“The system of chancery jurisprudence has been developed as carefully and' as judiciously as any part of the legal system, and the judicial power includes it, and always must include it. Any change which transfers the power that belongs to a judge, to a jury, or to any other person, or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere. The cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and under our Constitution must remain vested where it always has been vested heretofore."

In the recent case of Heck v. Bailey, 204 Mich. 54, it was said:

“Courts do not speak through their opinions but through their judgments and decrees.”

But if we should lay aside everything else that has been said by this court, we think it must be held that the present question cannot be distinguished from the one before the court in Lloyd v. Wayne Circuit Judge, 56 Mich. 236. The legislature by Act No. 25, Pub. Acts 1883, had provided for a proceeding in court to establish the will of a living person. The question there involved was the same as here, Does the act confer judicial power on the court? This question was answered in the negative in two opinions to the same effect, one by Chief Justice Cooley, and the other by Justice Campbell. Both opinions were concurred in by Justices Sherwood and Champlin. In the opinion of the Chief Justice, it was said:

“In all we have said on the subject we have assumed that the proceedings to probate the will of a living person under the statute was to be considered a judicial proceeding, and the order made thereupon, a judgment.' This is evidently the view taken by the proponent,'Who seems to assume that the adjudication will be final, though, in fact, it will at all times be subject to his own discretion or caprice. But if he is in error in treating the proceeding as judicial, we do not see that the circuit court had anything to do with the case. The probate court had acted and decided against the proponent, and we know of no authority for requiring the circuit court to take cognizance of appeals in cases not properly judicial, and to give its time and attention to the making of orders which are not judgments, and which the party seeking and obtaining them is under no obligation to leave in force for a day or an hour.”

And Justice Campbell said:

^ “I am disposed to think, with the circuit judge, that this is not in any sense a judicial proceeding which he was bound to consider or entertain.”

He then discusses the question at some length and concludes:

“I am of opinion that the statute is inoperative, as not within any recognized judicial power, and that the courts cannot be called upon to administer it, and that the mandamus should vacate the whole proceedings.”

Among the numerous cases in which this court has declined to consider abstract questions of law and which we have declined to decide where our conclusions could not-be made effective by final judgment, decree, and process, see Schouwink v. Ferguson, 191 Mich. 284; Carlson v. Wyman, 189 Mich. 402; Howe v. Doyle, 187 Mich. 655; East Saginaw Ry. v. Wildman, 58 Mich. 286; Hicks v. J. B. Pearce Co., 158 Mich. 502; Brown, ex rel. Van Buren, v. Lawrence, 197 Mich. 178; Ideal Furnace Co. v. International Molders’ Union, 204 Mich. 311; Blickle v. Board of Education, 210 Mich. 196; Tierney v. Union School District, 210 Mich. 424.

This court and the court from which this case .came by appeal draw their power from «the Constitution. The power given to both under the Constitution was judicial power. It is beyond the power of the legislature to take from either that judicial power and it is equally beyond the authority of the legislature to confer upon either power not judicial, or to require the performance of functions not judicial in character. This act confers power not judicial and requires performance of acts non-judicial in character. For these reasons it is void in its entirety.

These proceedings must be dismissed, but without costs.

Moore, C. J., and Steere, Brooke, and Stone, JJ., concurred with Fellows, J. Bird, J., concurred in the result.