Page:Harvard Law Review Volume 4.djvu/53

37 NOTES. 37 a monopoly of the manufacture and sale of playing-cards, granted to an individual by Queen Elizabeth, was held void at common law. There would seem to be no reason for drawing a distinction on this point between a monopoly granted by the State and one acquired by an indi- vidual or group of individuals. Moreover, the maxim " Competition is the life of trade " (a maxim which seems to measure with some degree of accuracy the extent to which the law takes notice of political economy), undoubtedly covers the manufacture and sale both of necessaries and non-necessaries. Upon the whole, it is much to be doubted whether the decision in the New York case would have been different if the *' trust " had been for the manufacture of playing-cards instead of the refining of sugar. The particular case before the court was the monopoly of an article of neces- sity, and we must conclude that only the cautious habit of not deciding more than needful for the disposition of the case in hand led the court apparently to lay down what would seem to be an unnecessary limitation. Governor Hill's recent message to the New York Legislature, sug- gesting that the opinion of the Court of Appeals be taken on the constitu- tionality of the Saxton Ballot Reform bill is interesting. Washington made a similar attempt to get the opinion of the Supreme Court of the United States in 1793, but the judges refused, regarding the task of answering such questions as not within the scope of their judicial duties.^ It is not improbable that this example would have been followed by the Court of Appeals, if the Legislature had acceded to Governor Hill's request. Such an interpretation of the court's duties would seem at least to be the correct one, in the absence of constitutional provisions, such as exist in Massachusetts and some other States, requiring opinions from the judges. In this connection the action of the Supreme Court of Minnesota in 1865 ^ is worth noticing. Questions were put to that court by the senate, under a statute making it the duty of the judges to answer in such a case at the request of either house. The court, however, declined to give an opinion, on the ground that the statute was unconstitutional as impos- ing duties not properly judicial or to be performed in a judicial manner, and that it would be improper to answer voluntarily. Similar statutes calling for advisory opinions from the judges may be found in Vermont ^ and— in a limited class of cases — in New York.* Governor Hill men- tions as precedents for the action which he recommends, the former Council of Revision in New York, and an opinion given by the Court of Appeal in 1872. The circumstances of the latter case do not appear ; but the Council of Revision was established by the Constitution,^ and is therefore no precedent for a voluntary answer. An instance of such an answer by the Supreme Court of New York in 1846 may, however, be found in the Debates in the Massachusetts Convention of i853.« Opinions given by Judges," by Professor Thayer. ^ In the matter of the Application of the Senate^ 10 Minn. 78. See supplementary note to Professor Thayer's pamphlet. 3 Revised Laws of Vermont, 1880, s. 795. ^ Revised Statutes, part iv. tit. i, s. 14; see People v. Green, i Den. 614. For an opinion based on a similar statute in Pennsylvania, see Report of the Judges, 3 Binney, 598 {1808). 5 Const, of 1777, iii. 6 I. 138 ; also in Jameson's Constitutional Conventions, App., 663.
 * Marshall's Life of Washington (Am. ed.), v. 441. See a "Memorandum on the Legal Effect of