In Re Elliott

¶1(dissenting)—I dissent. The 39th legislature established a procedure enabling all federal courts to certify questions of Washington law to this Supreme Court for answer by written opinión. Laws of 1965, ch. 99, p. '1302. It is called the Federal Court Local Law Certificate Procedure Act. RCW 2.60. Proceeding under the apparent auspices of this enactment, the District Court of the United States for the Western District of Washington, by order of Judge *625William J. Lindberg, presiding in a bankruptcy cause, has certified to this court a question pertaining to the cash surrender of life insurance as affected by community property law.

¶2The question so certified by the district court is:

Whether cash surrender value of life insurance as defined in Section 48.18.410 of the Revised Code of Washington is exempt property as against a Trustee in bankruptcy where the insurance policy is community property of the bankrupt and his wife, designates his wife as beneficiary thereon, and the terms of said policy reserved to the insured the absolute right to change beneficiaries without obtaining the consent of the then designated beneficiary.

¶3RCW 48.18.410, inter alia, has to do with the disposition of life insurance proceeds in insolvency proceedings.

¶4Because of the abiding spirit of mutual respect and comity long existing between the state and federal judiciary here, I would hope that we had power to answer the certified question, but I am convinced that constitutional limitations, running to the very jurisdiction of this court, forbid our doing so.

¶5Is the Certification Statute Mandatory or Directory?

¶6Going directly then to the constitutionality of Laws of 1965, ch. 99, p. 1302, the Federal Court Local Law Certificate Procedure Act, RCW 2.60, we should first ascertain whether the statute is directory or mandatory. RCW 2.60.020, the operative section under which the question has been certified, states:

When in the opinion of any federal court before whom a proceeding is pending, it is necessary to ascertain the local law of this state in order to dispose of such proceeding and the local law has not been clearly determined, such federal court may certify to the supreme court for answer the question of local law involved and the supreme court shall render its opinion in answer thereto. (Italics mine.)

¶7If this statute is, as the majority claim, discretionary or directory and not mandatory, then we have no constitutional problem because the court can answer or not answer *626as it chooses, depending upon the whims of the moment-That is, if it is directory only, this court, under such a construction, is free to answer some, all, or none of the questions certified to it, depending upon its inclinations and the state of its docket. What is now a question of constitutionality could conceivably, under a statute merely directory in nature, be simply regarded as a matter of good neighborliness. We can be good neighbors one time and indifferent ones another, and no one can charge us with a duty in any event. But if the statute is merely directory, it is a nullity anyway because it then purports to allow us to do that which the court has the option of now doing without it—make public pronouncements having no force of law on divers legal subjects.

¶8Does the statute purport to compel this court to answer the certified question, or is compliance left to the court’s discretion? The statute, I note, employs the language of compulsion or command in several places. In the foregoing section (RCW 2.60.020) it declares that this court shall render its opinion in answer to the question put to it. Elsewhere it uses similarly mandatory language alongside of words denoting permission.

¶9RCW 2.60.030 (Laws of 1965, ch. 99, § 3, p. 1304), provides:

Certificate procedure shall be governed by the following provisions:

(1) Certificate procedure may be invoked by a federal court upon its own motion or upon the motion of any interested party in the litigation involved if the federal court grants such motion.

(6) The supreme court shall forward to the federal court utilizing certificate procedure its opinion answering the local law question submitted. (Italics mine.)

¶10as contrasted with the following permissive phraseology:

(7) The supreme court may adopt rules of practice and procedure to implement or otherwise facilitate utilization of certificate procedure. (RCW 2.60.030(7)) (Italics mine.)

¶11*627Thus, I am confident that the legislature has commanded the Supreme Court (1) to answer by written opinion the question submitted to it by any federal court concerning Washington law if (a) the law of this state on the point in issue before the federal court has not, in that court’s opinion, been clearly determined, and (b) a clear answer as to the Washington law is, in the opinion of the federal court, necessary to a determination of the cause on hearing; (2) to take jurisdiction either (a) upon the certification of the federal court sua sponte, or (b) on the motion of any party to the federal proceedings on the federal court’s approval of such application; and (3) to forward its answer to the federal court by written opinion. The statute, as I read it, leaves to the discretion of the Supreme Court of this state only the adoption of rules of practice implementing the certificate procedure.

¶12The majority finds comfort in the idea that, if we regard the words shall and may as synonymous, it will make the statute directory. On other occasions, this court has, I realize, in ascertaining the legislature’s intentions, been required to construe the mandatory word shall as the lexical equivalent of the permissive expression may, but that interpretive expedient is neither available nor advisable here for the certification statute uses both terms and in such context that they cannot possibly be synonymous. To hold that the word shall as used repeatedly in the statute means may, to me savors of pure judicial invention and bodes ill for problems of statutory construction in the future. I would be loathe to see such an interpretative expedient applied to the Decalogue.

¶13It is apparent to me that the legislature intentionally used the word in its ordinary sense.

¶14The dictionary says that shall ordinarily denotes a command, a mandate, a duty, an obligation, or a categorical undertaking or promise:

owe, owes, ought to, must . . . will have to: . . . will be able to: can . . . used to express a command or exhortation . . . used in laws, regulations, or directives to express what is mandatory . . . used to *628express what is inevitable or what seems to be fated or decreed or likely to happen in the future . . . used to express determination .... Webster’s Third New International Dictionary (1964).

¶15Contrastingly, the same dictionary shows that may in its ordinary 'and usual meaning denotes permission, or authority or a right enabling one to do something.

¶16Conveying the idea of choice, option or discretion, the statute thus logically employs the permissive or directory may in authorizing the federal court to invoke the statute and in saying the Supreme Court “may adopt rules of practice or procedure” (Italics mine.), to implement or otherwise facilitate the procedure. But the same statute in denoting mandatory requirements or compulsion contrastingly uses shall. Thus, the employment of both terms in the same statute sensibly requires that they be given their ordinary meaning and unmistakably establishes that shall, as used in RCW 2.60, means “must.” In construing the words as the legislature obviously intended, the meaning of the statute is left clear and the legislative intention manifest, and we need not resort to the rules of construction stated in Faunce v. Carter, 26 Wn.2d 211, 173 P.2d 526 (1946); and Seattle v. Reed, 6 Wn.2d 186, 107 P.2d 239 (1940). Rules of construction ought not be employed to becloud but rather to clarify a statute.

¶17The words shall and may are too valuable to the law to be deprived of their meaning by interchangeable usage. If the law loses them as separate word entities, it will be hard put to find a brief, cogent substitute for either. They should, therefore, be given their ordinary meaning for it is apparent that that is the sense in which the legislature used them.

¶18Accordingly, the words of the statute that the Supreme Court shall render its opinion, and shall forward its opinion to the federal court, and that such opinion shall be a written opinion which shall include a certificate that it is in answer to the certified question, bespeak a mandatory intent, and an explicit purpose in the legislature to direct that this court not only has but must take jurisdiction of *629the controversy and must answer the certified question. Couched as it is in the language of mandate and command, the statute is not permissive or directory, but mandatory, and no amount of legalese can make the words mean differently.

¶19There are, of course, areas in the law where it is mandatory that this court take jurisdiction, such as certiorari, mandamus, or prohibition, and in some instances habeas corpus and review on appeal in which we may constitutionally decide to go no further than the initial examination of the premises and terminate the cause short of a decision on the merits. In such cases, however, the decision-making process of the court has actually operated to decide the question of jurisdiction. The court, in granting or denying an extraordinary writ or remedy without going to the merits in cases claimed to arise under its original—or perhaps inherent—jurisdiction is actually an employment of the judicial power, for deciding the question of whether the extraordinary writ should issue or the remedy is available at all in a given case constitutes an exercise of the court’s jurisdiction.

¶20That the legislature has long recognized this concept is seen in its early enactment of RCW 2.04.020 and 2.28.150 which provide that, once the court has jurisdiction of the parties and subject matter, it shall possess all power necessary to the full exercise of that jurisdiction.

¶21In the matter now before us, however, the statute purports to assume this judicial function by commanding this court to assume jurisdiction and to function judicially whenever a federal trial or appellate court submits a question to it in accordance with the statute. The statute thus purports to foist upon the court a jurisdiction—and a duty —not encompassed by nor included in those powers granted it in the constitution nor encompassed within its inherent or statutory powers. Being mandatory, in my opinion, it purports to compel the court unconstitutionally to perform a nonjudicial function.

¶22*630Does the Certification Statute Breach the Separation of Powers?

¶23The most critical problem in the case, however, is not whether the statute is permissive or mandatory, but whether the legislature has trespassed upon the judicial power by legislatively abridging the Supreme Court’s authority to determine the nature and extent of the judicial power under the constitution. Does the statute seek to enlarge the Supreme Court’s jurisdiction? And, What is meant by “jurisdiction?”

¶24Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397 (1936), states, at 412:

By “jurisdiction” is meant the power to hear and determine, regardless of whether the ruling made in the particular case be correct or incorrect. State ex rel. McGlothern v. Superior Court, 112 Wash. 501, 192 Pac. 937.

¶25That definition, for want of a better one, I still find acceptable. The ultimate power of this court as a tribunal derives from the people as prescribed by them primarily in their constitution, and from the Constitution of the United States, which all courts and judges must uphold. Courts, therefore, cannot arrogate unto themselves nor be charged by the legislative and executive branches of government with powers and duties not conferred by or imposed on them by the constitution.

¶26When the people, by means of the constitution, created this court, they endowed it with all of the authority necessary to fulfill its function as the highest court of the state, but they gave it powers peculiar to the judiciary only. First, the constitution created a judicial system for the exercise of the judicial power, declaring

The judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide. Const, art. 4, § 1.

¶27Then, designating the jurisdiction of the Supreme Court, the constitution stated:

*631The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers, and appellate jurisdiction in all actions and proceedings, excepting that its appellate jurisdiction shall not extend to civil actions at law for the recovery of money or personal property when the original amount in controversy, or the value of the property does not exceed the sum of two hundred dollars ($200) unless the action involves the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari and all other writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction. Each of the judges shall have power to issue writs of habeas corpus to any part of the state upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself, or before the supreme court, or before any superior court of the state or any judge thereof. Const, art. 4, § 4.

¶28Next, the constitution prescribed the nature and extent of the jurisdiction to be vested in the trial courts, endowing superior courts of the state of Washington with virtually unlimited jurisdiction as may be seen in Const, art. 4 § 6, which declares:

The superior court shall have original jurisdiction in all cases in equity and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand or the value of the property in controversy amounts to one thousand dollars, or a lesser sum in excess of the jurisdiction granted to justices of the peace and other inferior courts, and in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for by law; of actions of forcible entry and detainer; of proceedings in insolvency; of actions to prevent or abate a nuisance; of all matters of probate, of divorce, and for annulment of marriage; and for such special cases and proceedings as are not otherwise provided for. The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court; and said court shall have the power of naturalization and to issue pa*632pers therefor. They shall have such appellate jurisdiction in cases arising in justices’ and other inferior courts in their respective counties as may be prescribed by law. They shall always be open, except on nonjudicial days, and their process shall extend to all parts of the state. Said courts and their judges shall have power to issue writs of mandamus, quo warranto, review, certiorari, prohibition, and writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties. Injunctions and writs of prohibition and of habeas corpus may be issued and served on legal holidays and non judicial days.

¶29The state constitution in this fashion prescribes the jurisdiction of the Supreme Court and the superior court. Any language purporting to grant to the legislature a power to curtail or enlarge the jurisdiction of the courts is singularly lacking in the constitution.

¶30The Supreme Court came into being with all powers and capabilities essential to the exercise of an appellate, revi-sory and a specified original jurisdiction—along with certain inherent powers traditionally said to belong to the courts—as an equal, independent, but co-ordinate organ of government ordained by the constitution to execute that portion of the people’s sovereignty known as the judicial power. Endowed by the people with adequate authority to fulfill its functions under the constitutions of the state and of the United States and to carry out the judicial power, the Supreme Court has neither a surplus of power nor a deficiency thereof to trespass or be trespassed upon by the executive or legislative branches of government.

¶31Although, at its outermost edges of power, the executive authority may seemingly merge with the legislative power and the latter coalesce at its periphery with the judicial power, the mainstreams of the three have been kept separate, distinct and viable in this country for nearly two centuries. It is this separation of powers, the division of all authority of government into the executive, legislative and judicial and the allocating to each its appropriate share of the people’s sovereignty which, perhaps even more than the *633Bill of Rights, has been the greatest bastion of individual liberty and national strength yet devised.

¶32Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), holding that it was not within the power of Congress to confer upon the Supreme Court of the United States jurisdiction additional to that vested in it by the constitution, remains a basic statement of the doctrine of the separation of powers. Similarly, as this court said, in Winsor v. Bridges, 24 Wash. 540, 547, 64 Pac. 780 (1901):

The distinction drawn between the federal and state governments in matters of legislation, that the former is one of delegated powers, while the latter is one of limitations, does not affect the reasoning in Marbury v. Madison, supra,[5 U.S. (1 Cranch) 137] as applicable to the case at bar, that this court’s original jurisdiction must be measured by the constitution of the state from which it derives its existence and power.

¶33None of the co-ordinate branches of government, under the separation of powers doctrine, may delimit or denigrate the others by assuming any of the others’ basic functions and powers, nor saddle the others with functions and duties they can neither constitutionally nor organically perform.6

¶34The legislature, therefore, cannot impose upon the judicial branch functions and duties outside of and beyond its constitutionally prescribed powers and duties nor disparage such powers by placing them elsewhere. See North Bend Stage Line, Inc. v. Department of Public Works, 170 Wash. 217, 16 P.2d 206 (1932), holding unconstitutional a statute purporting to authorize direct appeals to this court from orders of the Department of Public Works which grant or deny certificates of convenience and necessity because such procedure bypassed and ousted the superior court. Similarly, a statute which attempted to impose upon a constitutional court the duties of a board or commission was held unconstitutional because it imposed nonjudicial duties and *634powers on the court. Peterson v. Livestock Comm’n, 120 Mont. 140, 181 P.2d 152 (1947). The duty to give legal advice, of course, is vested in the Attorney General and I would think that the legislature is without power to transfer that duty to the Supreme Court.

¶35Since the constitution of the state, in vesting all powers essential to the exercise of the appellate, revisory and original jurisdiction, has neither directly nor indirectly included among such functions a duty to render opinions to the federal judiciary nor any branch of the federal government, the legislature, I think, cannot constitutionally impose such a duty either.

¶36Does the Statute Merely Create a New Remedy? Is it Simply a Procedure Statute?

¶37Although the legislature can neither enlarge upon nor curtail the jurisdiction of this court, it may adopt codes of procedure and enlarge or curtail legal and equitable remedies. It may, under the police power, as in the industrial insurance code, even remove causes of action from the area of private controversy. Or, the legislature may, for example, withdraw, alter or allow legal remedies as when it immunizes the state and its subdivisions from tort liability, or restores that liability in whole or in part. But these enactments granting or removing remedies, allowing them in whole or in part, or setting up procedures for the assertion of or creating new defenses are remedial and do not go to the essence of jurisdiction. They are statutes granting, curtailing, or changing the legal remedies and defenses available to the parties and do not delimit the court’s powers to hear and determine all controversies which might otherwise lawfully come before it. Statutes which grant, disallow or alter the remedies available to the parties thus do not trench upon the ultimate power of the court as granted in the constitution. If the law allows the remedy, the legislature cannot deprive the courts of the power to enforce it; if the law denies the remedy, the courts may not grant it.

¶38*635Thus, the statute before us does not simply provide a procedure to implement the exercise of an existing function of the court, for this court up to now has been under no duty to either accept or pass upon questions presented to it from the federal courts nor has it been under any duty to treat the federal litigants as parties to a pending state action. Nor does the statute merely establish a procedure whereby the Supreme Court exercises its jurisdiction to carry out its constitutional functions, for the court has never had either the jurisdiction or inclination to declare the law except in cases coming before it in its appellate, revisory and original jurisdiction.

¶39Thus, in directing this court to answer questions put to it by the federal judiciary, the legislature has neither afforded the parties to actions in the state courts new legal and equitable remedies or defenses nor simply provided implementing procedural remedies, but, in my judgment, has sought to fundamentally change the function of the Supreme Court. If the legislature may require the Supreme Court to answer questions put to it by the federal judiciary, it may also in similar fashion foist upon the court all manner of duties and functions not in consonance with or in aid of the court’s original, revisory or appellate jurisdiction.7 It could, under the guise of enacting procedural or remedial legislation, even impose upon the court duties and functions which the court would be incapable of discharging.

¶40The certification statute, I would conclude, being neither procedural nor remedial, purports to run directly to and affects the jurisdiction of the court. It puts a duty upon the *636court derived neither from its power to issue writs of mandamus, review, prohibition, habeas corpus or any other writ necessary and proper for the complete exercise of its appellate and revisory jurisdiction (Const, art. 4, § 4), nor from any inherent powers said to repose in a constitutional court. This court never having been accorded revisory and appellate jurisdiction over the federal judiciary, cannot be granted or required to assume such powers by the legislature—even through a procedural statute. In brief, the legislature cannot constitutionally, in the guise of procedural legislation, curtail or enlarge the jurisdiction of the Supreme Court. North Bend Stage Line, Inc. v. Department of Public Works, 170 Wash. 217, 16 P.2d 206 (1932); Darnell v. Noel, 34 Wn.2d 428, 208 P.2d 1194 (1949); State v. Estill, 55 Wn.2d 576, 349 P.2d 210 (1960). The court’s power to hear and determine any cause properly cognizable by it under its revisory, appellate, or original jurisdiction—along with certain inherent powers—derives from the constitution and comprises the whole of its jurisdiction.

¶41Is the Controversy Certified To This Court Justiciable?

¶42Closely related to the question of separation of powers is that of justiciability. The Supreme Court does not hear nonjusticiable controversies; nor should it give purely advisory opinions. Brehm v. Retail Food & Drug Clerks Union, 4 Wn.2d 98, 102 P.2d 685 (1940); Grill v. Meydenbauer Bay Yacht Club, 57 Wn.2d 800, 359 P.2d 1040 (1961); Hutchinson v. Port of Benton, 62 Wn.2d 451, 383 P.2d 500 (1963). Recently this court in State ex rel. O’Connell v. Kramer, 73 Wn.2d 85, 436 P.2d 786 (1968), was asked to rule upon the constitutionality of a proposed initiative measure filed with the Secretary of State to call a state constitutional convention. Holding that, since the proposed measure had not yet been enacted by the people, the controversy thus posed was not justiciable and the decision sought would be an advisory opinion, we said:

Ultimate questions as to the validity of the proposed initiative measure are not before us and should not come *637before us unless and until the people have enacted the measure into law, for the Supreme Court does not render advisory opinions. Even in National Elec. Contractors Ass’n v. Seattle School Dist. No. 1, 66 Wn.2d 14, 400 P.2d 778 (1965), and Deaconess Hosp. v. State Highway Comm’n, 66 Wn.2d 378, 403 P.2d 54 (1965), where this court reviewed the first case after an intervening mootness and in the latter where a long and expensive trial had occurred in a county which some of the judges felt was without jurisdiction, the court asserted again that it does not render advisory opinions or decide purely theoretical controversies. There being before us no statute, or initiative measure enacted by the people, the proposed measure presents no justiciable controversy and we, therefore, do not pass upon its validity.

¶43Because the judicial power is reserved for judicial purposes only, the legislature cannot require of or impose upon the judiciary a duty to perform executive, administrative, legislative or political functions or to decide abstract questions of law. 16 Am. Jur. 2d Constitutional Law § 219. Therefore, if the statute brings nonjusticiable controversies before the court, it is unconstitutional as one imposing upon the court a function not embraced within but being clearly outside the judicial power.

¶44Likewise, a procedure which calls for decisions or pronouncements of academic, or theoretical, or philosophical, or, in some instances, possibly administrative and political questions, engenders nonjusticiable controversies and changes the function of this court from judicial to something else. Decisions falling within these realms belong to the executive and legislative branches of government and are thus outside the competence or jurisdiction of the judiciary.

¶45If the judgment of a court does not effectively operate upon or bind the parties to the action, or has only a theoretical rather than an actual effect upon them, or does not “have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest,” it is not a justiciable controversy. State ex rel. O’Connell v. *638Dubuque, 68 Wn.2d 553, 413 P.2d 972 (1966). Nothing in the federal statutes, constitution or decisions has been, brought to my attention which makes binding upon the federal courts our answer to their certified question. The-district court remains free to apply our answer or to disregard it, or to apply it in part and to reject it in part.

¶46I do not suggest that the federal courts will abuse the certification procedure, or give our answer to the certified, question other than the most careful and painstaking consideration, but this does not obscure the legal reality that the federal court may juridically regard our answer as-neither binding upon it nor upon the parties to the action on trial. Nor do I know of any procedure whereby a litigant, who, believing that a federal court had misapplied, misunderstood or declined to follow the answer to the certified, question, can appeal to this court for a review or determination of those issues. I would not overlook either a probability in some instances that the moving party to a federal, cause, having obtained a judicial opinion from this court, has the option to and will dismiss his case there, thus our opinion would be suspended in thin air, making of it a mere exercise in academics.

¶47It has long been the rule that, unless the Constitution of' the United States or federal statutes otherwise require, “The laws of the several states . . . shall be regarded as the rules of decision in civil actions in the courts of the United States, in cases where they apply.” Rules of Decision Act, 28 U.S.C. § 1652 (1 Stat. 73, 92, Sess. 1, ch. 20, §' 34). Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 18 L. Ed. 2d 886, 87 Sup. Ct. 1776 (1967). Judicial decisions are an integral part of the laws of the several states when announced by the highest state court (Erie R. R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 Sup. Ct. 817, 114 A.L.R. 1487 (1938); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 Sup. Ct. 1221 (1949); King v. Order of United Commercial Travelers of Am., 333 U.S. 153, 92 L. Ed. 608, 68 Sup. Ct. 488 (1948)), for the state’s highest court is the best authority for state *639law. And, if there be no decision on the precise point in issue before the federal court, then, as the Supreme Court said in Commissioner of Internal Revenue v. Bosch, supra,citing Bernhardt v. Polygraphic Co. of Am., 350 U.S. 198, 100 L. Ed. 199, 76 Sup. Ct. 273 (1956), “federal authority-must apply what it finds to be the state law after giving ^proper regard’ to relevant rulings of other courts of the State. In this respect it may be said to be, in effect, sitting as a state court.” These well-established rules, recognizing as they do the supremacy of state decisional law in state questions, do not, however, convert a federal case into a state case, nor would they make our answer determinative of the state question in the federal case.

¶48The Erie doctrine, in holding the decisions of the highest courts of the states to be binding upon the federal courts in civil cases, under the Rules of Decision Act, 28 U.S.C. § 1652, does not thereby confer upon the state courts any fragment of jurisdiction or control over the parties to the federal action. Jurisdiction, under Erie, supra,thus cannot be said to be shared between the state and federal courts. Neither in a case involving diversity of citizenship in the federal courts nor under the present Certificate Procedure Act does this court have the power to intervene or render a final decision as to state law and make it binding upon the parties.

¶49Thus, I think the certificate procedure fails to present a justiciable controversy to this court within our constitutional requirements and would require of us an answer in -the nature of an advisory opinion, for the judgment of this court becomes binding neither upon the federal court nor upon the parties to the action. Where a court entertains a legal question or determines a point of law without the requirements of justiciability, it is no longer, in my opinion, performing a judicial function, and I do not believe the legislature can, under our constitution, compel the courts to •carry out nonjudicial functions.

¶50*640Should the Court Answer the Certified Question as a Matter of Comity?

¶51It is argued that, putting aside questions of constitutionality, this court ought to answer the certified question in promoting an advance in judicial administration and as a. matter of comity. But, despite the traditional good will and high esteem in which our brothers of the federal judiciary are here held and recognizing the high judicial purpose governing the certifying of the question, it is obvious that considerations of comity or judicial administration ought not be allowed to override basic constitutional limitations. The idea of comity is an appealing one but I think requires no further comment. But whether the certification statute, if constitutional, constitutes a step forward in judicial administration is to my mind very doubtful.

¶52Two states have certification procedure statutes which have been held valid under their respective constitutions. In re Richards, 223 A.2d 827 (Me., 1966); Sun Ins. Office v. Clay, 133 So.2d 735 (Fla., 1961). See Addendum. But the delays, expense and uncertainties inherent in that procedure evidenced by the cases in which the statutes were invoked provide neither an impressive basis for recommending the statute as a matter of comity between courts nor as a practical expedient to promote the prompt dispatch of judicial business. Incidentally, I think these cases supply us with little assurance that the statute in issue here is a constitutional exercise of legislative power under the state constitution, either. See Addendum.

¶53The majoirty opinion suggests that the certification statute will usher in a new era of efficiency and speed up the now ponderous and sometimes seemingly immobile processes of the law, but this idea seems hardly borne out by the experiences cited. If there ever was a way in which to delay a case as it moves slowly through the courts, in my opinion, it would be the very procedure whereby at one stage the case comes to a halt in the federal system, moves over into the state system to await docketing, briefing, hearing, writing, filing of the opinion and petition for re*641hearing and then moves back again into the system of origin to take its place on the judicial conveyor for resumption of proceedings in the federal system. I think a reading of all cases cited in the majority opinion and commonsense as well will demonstrate that the certification procedure is a dilatory one and in the long rim compounds the very delays it is claimed to help curtail and magnifies the uncertainties it is claimed to eliminate.

¶54It seems to me also that the majority opinion overlooks another deficiency engendered by the statute. What will happen in those cases where this court has actually changed the law of this state, or feels obliged to do so? Will this court be obliged to adhere to the old rules because it has solemnly promised the federal judiciary that the law is as declared in the answer to the certified question? Examples of marked changes in the law as declared by this court come readily to mind: In Siragusa v. Swedish Hosp., 60 Wn.2d 310, 373 P.2d 767 (1962), we departed from a long-held rule and modified the assumption of risk doctrine in ruling that that doctrine had no application to an employee or servant when the master or employer was negligent in creating a dangerous condition.

¶55Or, in another case, had we certified to a federal court in 1952 that a paying patient in a charitable hospital could not recover from the hospital for the negligence of a hospital nurse, would we, in 1953, have been in a position to strike down the virtual immunity from tort liability theretofore applicable to charitable hospitals as was done in Pierce v. Yakima Valley Memorial Hosp. Ass’n, 43 Wn.2d 162, 260 P.2d 765 (1953)? Or, in Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967), would this court have been free to adopt new standards of due care in the practice of medicine and change the long-held rule from medical standards of the community to standards of practice in essence for the state at large? There are, of course, other examples of changes in the law as declared by this court engendered by experience, reason and changing conditions in our society. When this court is compelled to answer a certified question *642as to the state of the law, is it free to answer what the law is, is in the process of becoming, should be, or in the future will likely become? Consideration of these questions alone should rule out the certification statute if it depends on comity or policy.

¶56Accordingly, I would conclude that Laws of 1965, ch. 99, p. 1302, the Federal Court Local Law Certificate Procedure Act, RCW 2.60, is unconstitutional because (1) it purports to expand the jurisdiction of the Supreme Court beyond the powers granted it in the constitutions of the State of Washington and the United States, (2) it subjects the Supreme Court to regulation by the legislature beyond permissible procedural and purely remedial enactments and amounts to a trespass upon the judicial power by the legislative power, and (3) it imposes a function upon the Supreme Court which is not a true exercise of judicial power, but, on the contrary, calls upon this court to render decisions in the nature of advisory opinions and requires the court to entertain nonjusticiable controversies.

¶57Weaver and McGovern, JJ., concur with Hale, J.

¶58Addendum

¶59Florida enacted a Certificate Procedure Act in 1945. Fla. Stat. Ann. § 25.031. Not until 1959, 14 years after its adoption, when Professor Kurland’s paper, Toward a Cooperative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F.R.D. 481 (1959), referred to it did the enactment get much professional attention. The case of Clay v. Sun Ins. Office, 363 U.S. 207, 4 L. Ed. 2d 1170, 80 Sup. Ct. 1222 (1960), set in motion the first test of the Florida statute when the Supreme Court of the United States remanded to the court of appeals with directions to certify state law questions to the Florida Supreme Court. Heeding these directions, the Court of Appeals, for the 5th Circuit, invoked the Florida certification procedure statute, by certifying to the Supreme Court of Florida two questions on state law concerning the legal effect of willful injury and the statute of limitations on a policy of insurance.

¶60In 1961, the Supreme Court of Florida, responding to the questions from the Court of Appeals, for the 5th Circuit, sustained the constitutionality of the state’s certification procedure act (Fla. Stat. Ann., § 25.031), and answered the certified questions. It raised the constitutional question sua sponte. Sun Ins. Office v. Clay, 133 So.2d 735 (Fla., 1961). The court of appeals, however, notwithstanding its adoption of the certification procedure and the ruling on its constitutionality by the highest state court, held that the Florida statute of limitations could not constitutionally apply to the insurance policy in issue and that the *643Supreme Court of Florida’s opinion was also advisory and not binding upon the parties or the certifying court. The court of appeals, therefore, declined to apply the answers to the case in issue. Sun Ins. Office v. Clay, 319 F.2d 505, 508 (5th Cir., 1963). On certiorari, the Supreme Court of the United States again reversed, this time on the merits. Clay v. Sun Ins. Office, 377 U.S. 179, 12 L. Ed. 2d 229, 84 Sup. Ct. 1197 (1964).

¶61The torturous path a simple case may take under certification of question is illustrated, too, in Aldrich v. Aldrich, 378 U.S. 540, 12 L. Ed. 2d 1020, 84 Sup. Ct. 1687 (1964), in which the Supreme Court of the United States, in reviewing a divorce decree from West Virginia, certified a question to the Florida Supreme Court as to the effect of a Florida divorce decree awarding alimony, and on the basis of that court’s answer reversed the Supreme Court of West Virginia. See Kaplan, Certification of Questions From Federal Appellate Courts to the Florida Supreme Court and its Impact on the Abstention Doctrine, 16 U. of Miami L. Rev. 413 (1962); 48 Iowa L. Rev. 185; 40 Tex. L. Rev. 1041, for discussion of the earlier analysis of certification procedure. Maine recently adopted a certification procedure, 4 M.R.S.A. § 57, and its Supreme Court, in In re Richards, 223 A.2d 827 (Me., 1966), upheld the constitutionality of the statute, declaring its participation in the certification procedure to constitute a valid exercise of judicial power.

¶62The Maine Supreme Court, in sustaining the constitutionality of the state’s new certification act, alluded to, and I felt in large part was persuaded by, Me. Const, art. 6, §§ 1 and 3, which provided:

The judicial power of this State shall be vested in a Supreme Judicial Court, and such other courts as the Legislature shall from time to time establish. Maine Const, art. 6, § 1.

The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate, or House of Representatives. Me. Const, art. 6, § 3.

¶63Washington has no constitutional provision requiring advisory opinions of the courts.

¶64Texas has no certification procedure statute, but its Supreme Court had before it a question of law referred to it in effect by the Fifth Circuit Court of Appeals. In an opinion applying the doctrine of abstention, the court of appeals directed the litigants in the federal court to seek a declaratory judgment in the court of last resort of the state of Texas. The court of appeals retained jurisdiction of the case. Whereupon, the litigant in the federal case brought suit for a declaratory judgment under the Texas Uniform- Declaratory Judgment Act (Vernon’s Ann. Civ. St., art. 2524-1).

¶65Affirming a dismissal for want of jurisdiction, notwithstanding the constitutionality of the declaratory judgment procedure, the Supreme Court of Texas, in United Servs. Life Ins. Co. v. Delaney, 396 S.W. 2d 855 (Tex., 1965), holding the opinion sought to be merely advisory said, at 860:

We have no doubt that, in keeping with the Erie decision; the federal court would render a judgment in keeping with our interpre*644tation of Texas law in this case, but the question is not one of comity, nor of federal policy. It is a question of the power, authority and jurisdiction of the state courts under the Texas Constitution. . . . Here, in effect, the same suit is pending in both the state and federal courts by reason of a directive which contemplates that the final judgment will be rendered by a federal court. The Circuit Court’s reservation of jurisdiction to render final judgment renders these proceedings advisory in nature.

¶66Holding the court to be “confronted with a constitutional lack of power,” the court added:

Actually what we are called upon to do is to answer a question and not render a judgment.