Page:Harvard Law Review Volume 10.djvu/77

Rh would seem that the court has no alternative but to give the requested opinion. The recent refusal, therefore, by the Supreme Court of South Dakota (66 N. WV. Rep. 310) to give an opinion as required by the Constitution is at first rather startling, though not entirely unprecedented. Once before the South Dakota court has declined to give an extra-judicial opinion (54 N. W. Rep. 650), and there is a record of a similar refusal by the Colorado court (12 Col. 466). The first refusal by the Massachusetts court seems to have been in 1787. A memorial to the General Court by the French Consul at Boston, dated June 1, 1787, says, "the Legislature referred the Consideration thereof to the Supreme Court for their Opinion, who for Substantial Reasons declined giving an Extra-judicial Opinion." The Massachusetts Reports contain the records of three more refusals. (See Answers of the Justices, 122 Mass. 600; 148 Mass. 623; 150 Mass. 598.) In most of these instances the courts have declined to construe an existing statute, and such refusals have been rested on the ground that the question was likely to come before them for actual adjudication. It is submitted that the same reasons would ap)ply for refusing to render an opinion on the constitutionality of pending legislation, but such opinions have invariably been given. The courts find justification for their refusals in the general language of the Constitutions, and while admitting the right of the other departments to call for opinions, assert the province of the judiciary to decide whether the occasion is one intended to be covered by the Constitution. (See 150 Mass. 598.)

It is submitted that an additional provision to the effect that advisory opinion be considered as personal rather than official, and thus kept from going on the records, would relieve the system of most of its objectionable features, and retain substantially all of its benefits.

. — In the case of Bogert v. City of Indianapolis, 13 Ind. 134, there is a curious dictum to the effect that the bodies of the dead belong, as property, to the surviving relatives in the order of inheritance, and that they have the right to dispose of them as such. Nowhere else has the law relating to dead bodies assumed quite so commercial a character. To regard a corpse as a piece of property shocks the sensibilities of the average man. The common law did not regard it as such, nor is it generally so regarded to-day. Yet that the surviving relatives, before burial of the body, have a right of some sort which the law will protect, is undeniable.

The novel question of a wife's right to recover damages for the unlawful dissection of her husband's body before burial arose, for the first time, in Larson v. Chase, 47 Minn. 307, commented on in 5, 285. The same question recently came before the Supreme Court of New York in Foley v. Phelps, 37 N. Y. Supp. 471. In both cases it was very justly held that the wife could recover. The only difficulty arises in determining the nature of the right that has been infringed. In Pierce v. Proprietors of Swan Point Cemetery, IO R. I. 227, it was denominated a quasi-property right. This, of course, does not solve the difficulty. In Foley v. Phelps, supra, a more exact definition was attempted. The court, following substantially the doctrine of Larson v. Chase, supra, declared that a surviving wife is entitled to the possession of the body of her deceased husband, in the same condition as when