The opinion
BENNETT, J.,
Specially Concurring. — In this case it appears from the pleading that the petitioner, who was secretary of state at the time of' the death of Governor "Withycombe, and who has assumed the office *506 of governor, drew Ms warrant on the state treasurer for $336, being the salary as governor from the death of Governor Withycombe to the 1st of April. This warrant was drawn “In payment of the salary due said Ben W. Olcott, as Governor.”
The defendant, the state treasurer, refused to honor this warrant upon the ground that it should have been drawn to “Ben W. Olcott, Secretary of State, Acting Governor.”
It seems the legal controversy between the parties is over a mere matter of words — -the one claiming the warrant, should be drawn for his salary “as Governor,” and the other that the warrant should have been drawn in his favor as “Acting Governor.”
I do not think there is any question but what the warrant was sufficient and, therefore, in any view, should have been honored, and that the plaintiff is entitled to the relief prayed for. I therefore concur in the result of the opinion of Mr. Justice Johns.
The real purpose of the proceeding was, no doubt, to test questions wMch, as I view them, go far beyond the real question involved in the case. However important the public questions involved may be, I do not think we have any authority to go beyond the case presented to us. If we did and should decide questions not presented, our decision would be mere dictum, and not binding upon our successors, or even upon us individually, if we should change our individual opinion at some future date.
No doubt the power should be vested in the courts to pass upon moot questions of great public interest like this, in an authoritative way, but so far the legislature does not seem to have conferred that power. I, therefore, reserve my opinion as to the question of whether or not the petitioner will continue to hold the *507 office of governor personally after lie ceases to be secretary of state, and as to the kindred questions urged.
In view of the opinions written by the Chief Justice, and some of the other justices, I deem it necessary to add something to the above brief expression of my views.
I do not view the authorities cited by Mr. Chief Justice McBride, in relation to our authority or lack of authority, to pass upon questions in no way involved in the case before us, as at all in point, or as giving us the slightest authority to go beyond the issues presented in this case. •
In all of these cases the questions decided by the court were squarely within the issues made by the pleadings, and the decision was entirely pertinent and responsive to the actual case in litigation. In some of them the decision of the court could still be made partly or wholly effective. In others, by reason of the lapse of time or the happening of some event, between the decision of the lower court and that of the appellate tribunal, the decree in the particular case, could no longer be enforced, but the issues between the parties, which were living issues at the time of the commencement of the action, still remained. In such a case it is well settled that the appellate court may retain and decide the case, or it may, at its option, refuse to proceed further and dismiss the appeal.
The leading case cited — Giles v. Harris, 189 U. S. 475 ( 47 L. Ed. 909 , 23 Sup. Ct. Rep. 639), belongs to the former class of cases, and the questions decided were not only clearly within the issues made by the pleadings, but were still practical living issues in the case at the time of the ultimate decision.
That case was a suit.brought by a colored man in the State of Alabama, on behalf of himself and five *508 thousand other colored voters, against the board of registrars of Montgomery County, to secure the right of permanent registration, and also the registration for the coming election in November. Before the hearing was reached in the United States Supreme Court, that election had passed, but there still remained in the case the question of permanent registration. It was in such a case that the language, quoted with so much apparent assurance that it is an authority in this case, was used. The court said:
“To be enabled to cast a vote in that election is not * # the whole object of the-bill. It is not even the principal object of the relief sought by the plaintiff. The principal object * * is to obtain the permanent advantages of registration.”
The court denied the relief upon two grounds. Having considered the case and found against the plaintiff upon one ground, it also proceeded to consider the second ground and decide against him as to that also, and it was in this connection that the court used the language, which is referred to in the second quotation:
“We are unwilling to stop short of the final considerations, which seem to us to dispose of the case.”
Here, then, was simply the common occurrence of there being two grounds upon which a case could be decided — both of them squarely within the issues of the case and the court deciding them both. In such a case, I think it is well settled that the court may dispose of the case upon one ground alone, or may properly pass upon both questions involved.
I cannot see how such a case furnishes an iota of authority, for us to go entirely outside, of every issue in this case, and decide questions that are not in the case at all.
*509 It is a significant fact in the Giles case supra, that one of the questions urged was, that the new Constitution of Alabama was in, conflict with the Federal Constitution, and, therefore, void. No question, it would seem, could exceed such a question in public importance, yet the court refused to pass upon it, saying:
“We express no opinion as to the alleged fact of their unconstitutionality.”
Another significant thing is, that the court cites with approval the previous case of Mills v. Green, 159 U. S. 651 ( 40 L. Ed. 293 , 16 Sup. Ct. Eep. 32), in which the same court had used the following language:
“The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect and not to give opinions upon moot questions or abstract propositions, or to disclose principles or rules of law, which cannot affect the matter in issue, in the case before it.”
The case of Memphis v. Rapid Transit Co., cited from 133 Tenn. 99 ( 179 S. W. 635 , Ann. Cas. 1917C, 1045, L. R. A. 1916B, 1143), was a suit by a street-car company against a jitney company, for operating jitneys in competition, the plaintiff relying upon an act of the legislature. The defendant demurred to the complaint, retying upon two grounds, one of which was that the act was unconstitutional. At the hearing it was claimed the case could be decided upon other grounds than the constitutional question, and that, therefore (under the practice in that state), the cause should have been appealed to a different court. The court held the constitutional question squarely in the case, and therefore proceeded to decide the same. It was under these conditions and in regard to such a ease, that the court used the language quoted.
*510 The ease of Boise City Land, Co. v. Clark, cited from 131 Fed. 415 ( 65 C. C. A. 399 ), was a case brought by a water company in Idaho against the county commissioners to annul an order fixing the rate it could charge in the year 1901 for water from its canals. The case was tried in the United States Circuit Court and appealed to the Court of Appeals.. Before it could be reached for hearing in the latter court, the period for which the rates were fixed for that season had expired. Nevertheless the court proceeded to decide the case, which involved no question of general public importance, but the questions decided were all squarely within the issues and necessary to a decision.
It is one thing to decide the issues actually presented in a case, even although something has happened pending the appeal, making the judgment ineffective, and an entirely different matter to go clear outside of the issues, as we are asked to do.
In many cases, as in the fixing of rates for a particular year, or the right to vote at a particular election, it is impossible to reach a decision in the appellate courts before the party’s right in the particular instance has expired; and he could never have the question, or his rights decided, if his cause should be dismissed upon that ground. In such cases the courts have always, and I think properly, exercised their discretion to dismiss the cause, or to hear and decide it, as seemed just under the particular circumstances.
The other cases of State v. Stutsman, 24 N. D. 68 ( 139 N. W. 83 , Ann. Cas. 1914D, 776); State v. Tel. Co., 65 Fla. 67 ( 61 South. 119 ); Commonwealth v. Klaus, 145 App. Div. 798 ( 130 N. Y. Supp. 713 ); In re Fairchild, 151 N. Y. 361 ( 45 N. E. 943 ); People v. General Committee, 25 App. Div. 339 ( 49 N. Y. Supp. 723 ), and In re Morgan, 114 App. Div. 45 ( 99 N. Y. Supp. 775 ), *511 cited in Chief Justice McBride’s opinion, are all exactly similar in principle and in questions involved, to the case of Boise City v. Clark, 131 Fed. 415 ( 65 C. C. A. 399 ), and are no more in point. It wili be noticed that in every one of them there was a real lawsuit between real adversary parties. In no one of them did the court go outside of the issues made by the pleadings.
There is no case cited, and I do not think any one can be found, in which the court has deliberately and intentionally gone clear outside of the issues (as we are asked to do) and decided questions which were not and never had been in the case.
If we do this we are not following any beaten path— we have no precedents — we are cutting the fences that have marked the boundaries of proper judicial authority, ever since we have had English speaking courts. The common law never gave us any such authority. Neither did the state Constitution, nor has the legislature. Our only pretense of authority will be the invitation of public officers, who have no more statutory right to invite us to make the decision, than we have to accept the invitation.
I do not wish to quibble or to shirk my share of responsibility in deciding any question that is properly before the court. Neither am I willing to be stampeded into a decision I have no right to make, nor to rush headlong to the exercise of powers I do not possess, in order that I may have the satisfaction or the notoriety, of helping to decide some important question.
This is not a case where the questions presented have become merely academic, after the case was commenced, by reason of the lapse of time. Here the question as to who will be governor, if the secretary of state resigns, or if another governor should be *512 elected at the election in 1920, never was in the case, and conld not be, for no such state of facts yet exists. The question may never arise. Mr. Olcott may never resign as secretary of state. He may run for governor himself at the next election.
To accept and amplify Mr. Chief Justice McBride’s homely illustration, this is not a case where anyone has suggested to “cut the dog’s tail off by inches.” It is a ease where, because one dog has a broken tail, which needs amputation, we are asked to drag in the other dogs in the community and mutilate them, because their tails might, possibly, be broken at some time in the future.
If another secretary of state, elected at the next election, shall claim the office of governor, he will have a right to be heard. There will then be an actual controversy, and I think he ought not to be foreclosed, by any premature decision we may now make, in' a “mock trial” on a “moot” question in an arranged and fictitious lawsuit.
As a citizen, I have a more or less well-defined opinion as to all the questions suggested here, ’f ormed partly from my own impressions and partly from the briefs of the attorney general, and those of public spirited citizens, who — at the invitation of the court— have taken enough time from their private business, to file more or less careful briefs in the case. If I should don my official robe and attempt to give my half-baked street opinions judicial utterance, I would agree with Mr. Chief Justice McBride as to the result, but not as to the reasoning or analogies by which he has reached that result. On the other hand, I should agree with Mr. Justice Harris as to his reasoning, up to a certain point, but not as to the result reached by him. But if I should attempt to do so, some other *513 judge succeeding me, might properly refuse to give my opinion any binding force. He might well conduele, that it takes more than a judge and a gown, to make a judicial decision.
I shall content myself, therefore, with the expression of an opinion on the questions really in issue, and upon which, as I understand, we are all agreed.