Attorney Gen. v. Pelletier

• Decision Date: 21 February 1922
• Citation: 134 N.E. 407,240 Mass. 264
• Parties: ATTORNEY GENERAL v. PELLETIER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 264

134 N.E. 407

ATTORNEY GENERAL

v.PELLETIER.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 3, 1922.

On the Merits, Feb. 21, 1922.

On Motion to Dismiss and Plea to Jurisdiction.

Proceeding by the Attorney General against Joseph C. Pelletier to remove him from the office of district attorney for the Suffolk district. Respondent removed.

The information alleged that defendant was elected district attorney in November, 1909, and had continued to such office and was again elected in November 4, 1919; that the public good required his removal from such office; that his acts and doings since the 13th day of November, 1909, and continuously down to the filing of the information, showed him to be unfit to hold such office; that he had been guilty of malfeasance, misfeasance, and nonfeasance, and had conducted himself in an unlawful and reprehensible manner, and was an unfit person to hold the office. It contained 35 charges of wrongdoing as specifications of his unfitness, malfeasance, etc., and in response to a motion for a bill of particulars numerous specifications of some of the charges were filed. An additional information contained two additional charges of wrongdoing. The answer to the additional information was a general denial, and the answer to the main information challenged the jurisdiction of the court, attacked the validity of the statute under which the information was filed, denied all charges of wrongdoing, and alleged with respect to a great many of such charges that all of the acts alleged occurred and took place prior to his election on November 9, 1919, by virtue of which he held the office at the time the proceeding was instituted.

J. Weston Allen, Atty. Gen., for the Attorney General.

J. A. Reed, of Kansas City, Mo., and Daniel M. Lyons, Asst. Dist. Atty., of Boston, for Joseph C. Pelletier.

On the Merits.

J. Weston Allen, Atty. Gen., Edwin H. Abbot, Jr., Albert Hurwitz, and Lewis Goldberg, Asst. Attys. Gen., and Robert B. Dodge, Andrew Marshall, J. J. McCarthy, and Wm. Flaherty, Sp. Asst. Attys. Gen., for petitioner.

J. A. Reed, of Kansas City, Mo., Louis C. Boyle, of Washington, D. C., and Daniel M. Lyons, of Boston, for respondent.

On Motion to Dismiss and Plea to Jurisdiction.

RUGG, C. J.

This is an information brought by the Attorney General for the removal of the respondent from the office of district attorney for the Suffolk district. It conforms to the terms of G. L. c. 211, § 4. The statutory words, so far as here material, are:

‘A majority of the justices [of the Supreme Judicial Court] * * * if sufficient cause is shown therefor and it appears that the public good so requires, may, upon a bill, petition or other process, upon a summary hearing or otherwise, remove * * * a county commissioner, sheriff, register of probate and insolvency or district attorney.’

The respondent assails the constitutionality of the statute.

A district attorney does not come within the classification of officers removable only by impeachment. It is provided by chapter 1 of the Constitution in section 3, art. 6, and section 2 of art. 8, that ‘any officer or officers of the commonwealth’ may be removed by impeachment. This provision of the Constitution was not intended to include all civil officers of every grade. There are several classes of such officers, elected by or appointed for municipalities, counties, districts and the state. Among these are many officials performing strictly public functions, such as police officers, assessors, school officials, county commissioners, officers of the various metropolitan districts and others, many of which are enumerated in Bolster v. Lawrence, 225 Mass. 387, 114 N. E. 722, L. R. A. 1917B, 1285. It cannot be seriously contended that all of these are removable by impeachment. Plainly the district attorney in this sense is a public officer performing important duties in behalf of the commonwealth. That, however, is not the test of impeachability.

‘Officers elected by the people at large, or provided for in the Constitution for the administration of matters of general or state concern, are subject to impeachment.’ Opinion of Justices, 167 Mass. 599, 600, 46 N. E. 118, 119.

The district attorney does not fall within this description. He is elected by the voters of the several districts into which the state is divided, not by ‘the people at large.’ The office of district attorney is not created or provided for in the Constitution. It is mentioned only in articles 8 and 19 of the amendments. Those articles recognize that office as existing, but do not secure its tenure nor establish any right in the office superior to the control of the Legislature. The office may be regulated, limited, enlarged or abolished by the Legislature, according to its view of the public interests. The only factor concerning the office secured by the Constitution is that the incumbent shall be elected by the people of the district as established by the General Court. In every other respect it is subject to the legislative power. Opinion of Justices, 117 Mass. 603;Dearborn v. Ames, 8 Gray, 1;Opinion of Justices, 216 Mass. 605, 104 N. E. 847.

There is nothing in the statute which violates in any degree the provisions of article 9 of the Bill of Rights as to freedom of elections and the right to be elected for public employment. Neither that article nor any other provision of the Constitution assures to an officer, whose continuance in office has been judicially determined in accordance with a general statute to be contrary to the public welfare, the right still to remain in office.

The statute here under consideration violates no provision of article 10 of the Bill of Rights. It there is guaranteed that-- ‘Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws.’

The statute is itself a ‘standing law.’ The statute affects neither the life, liberty nor property of the respondent. No right of his is impaired when the General Court provides for his removal by a general law.

[6] It is provided by article 12 of the Bill of Rights that--

‘No subject shall be * * * deprived of his property, immunities, or privileges * * * or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.’

The office of district attorney is not ‘property’ nor ‘estate’ within the meaning of those words in this article. It is purely a public trust to be administered solely for the interest of all the people. Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 73, 116 N. E. 961, 8 A. L. R. 1463. Plainly it is not an ‘immunity’ or a ‘liberty’ of the holder of the office. If it be regarded as his ‘privilege,’ which need not be decided, ample provision is made by G. L. c. 211, § 4, according to ‘the law of the land’ for removing a district attorney from office. This court has never attempted to give a definition of these words of the Constitution. Beyond all doubt there is compliance with ‘the law of the land’ when there is judicial process, adequate notice, a statement of the charges, a fair hearing even though it may be summary under appropriate circumstances, and final judgment for a sufficient cause founded upon considerations springing solely from the requirements of the public good, all as ascertained and determined in accordance with procedure of established courts. All this implies the restraints imposed by the recognized principles of private rights and distributive justice and absence of arbitrary action. Twining v. New Jersey, 211 U. S. 78, 100, 101, 29 Sup. Ct. 14, 53 L. Ed. 97. The statute here attacked by express terms or necessary implication affords all these elements of protection to the officer against whom the proceeding is brought.

The statute here assailed is not violative of article 30 of the Bill of Rights, which sharply separates the executive, legislative and judicial departments of government and prohibits each from undertaking the performance of other than its own appropriate functions. The Legislature has no right to impose upon the justices of the Supreme Judicial Court any other than strictly judicial duties. The justices have no right to assume the discharge of any other than judicial duties. They have no authority and cannot be clothed by the General Court with power to act as a committee of inquiry, as a special or limited tribunal or commission, or to perform any executive or legislative business, or to be anything except a court. As incidental to the judicial power and the jurisdiction conferred upon the justices of this court by the Constitution and laws, a considerable number of subsidiary duties may be exercised by them under the authority of statutes. But they cannot go outside those which pertain to the judicial faculty. Case of Supervisors of Elections, 114 Mass. 247, 19 Am. Rep. 341;Boston v. Chelsea, 212 Mass. 127, 98 N. E. 620;Driscoll v. Mayor of Somerville, 213 Mass. 493, 100 N. E. 640;Swan v. Justices of the Superior Court, 222 Mass. 542, 111 N. E. 386;Dinan v. Swig, 223 Mass. 516, 112 N. E. 91. The statute here attacked confers the power and imposes the duty of hearing this information upon the justices of the Supreme Judicial Court sitting as a court. The subject-matter is proper for judicial inquiry. It conforms to article 30 of the Bill of Rights.

It follows from what has been said that in G. L. c. 211, § 4, there is no violation of that part of chapter 6, art. 2 of the Constitution which prohibits ‘any judge of the Supreme Judicial Court’ from holding ‘any other office or place,’ with an exception not here material. The statute imposes the duty upon the Justices as a court. It does not purport to create a special or limited tribunal to be composed of the justices.

The election of the respondent as district attorney and his acceptance of the office constituted no contract between the respondent and the...