Attorney Gen. v. Tufts

• Decision Date: 21 June 1921
• Citation: 239 Mass. 458,131 N.E. 573
• Parties: ATTORNEY GENERAL v. TUFTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 458

131 N.E. 573

ATTORNEY GENERAL

v.TUFTS.

Supreme Judicial Court of Massachusetts, Middlesex.

June 21, 1921.

Proceeding by the Attorney General against Nathan A. Tufts to remove the defendant from the office of district attorney. On motion to dismiss for want of jurisdiction, and on motion to limit the hearing. Both motions denied.

Defendant see, also, 132 N. E. 322, was first elected in 1916, and re-elected in 1919, and it was sought to limit the inquiry to acts committed since his last election, and to acts committed in his capacity as district attorney.

J. Weston Allen, Atty. Gen., Henry F. Hurlburt, Sp. Asst. Atty. Gen., and Edwin H. Abbot, Jr., Asst. Atty. Gen., for the Attorney General.

Melvin M. Johnson, of Boston, Frank Goldman, of Lowell, and David Greer, of Boston, for respondent.

RUGG, C. J.

This is an information, bill or petition by the Attorney General brought under G. L. c. 211, § 4, for the removal of Nathan A. Tufts from his office as district attorney for the Northern district. It was heard first upon two motions filed by the respondent, one being a motion to dismiss in the nature of a plea to the jurisdiction, and the other a motion to establish limitations upon the hearing.

1. The pertinent words of G. L. c. 211, § 4, 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.’

It is assumed for the purposes of this decision that, where the Constitution in terms provides for removal from office by impeachment and does not confer upon the Legislature power to provide for removal in other ways, the specification of impeachment in the Constitution by implication prohibits action by the general court for removal from office by other means. Cooley's Constitutional Limitations; Lowe v. Commonwealth, 3 Metc. (Ky.) 237;Speer v. Wood, 128 Ark. 183, 187, 193 S. W. 785;State ex rel. Dawson v. Martin, 87 Kan. 817, 819, 126 Pac. 1080;Dinan v. Swig, 223 Mass. 516, 517, 112 N. E. 91. See 2 Archbold, Impeachment, 1661.

It is provided in the Constitution by chapter 1, § 3, art. 6, ‘The House of Representatives shall be the grand inquest of this commonwealth; and all impeachments made by them shall be heard and tried by the Senate,’ and by chapter 1, § 2, art. 8, ‘The Senate shall be a court with full authority to hear and determine all impeachments made by the House of Representatives, against any officer or officers of the commonwealth for misconduct and maladministration in their offices. * * *’ The point to be decided is whether district attorneys come within the description ‘officer or officers of the commonwealth’ in article 8.

With reference to that article it was said in Opinion of Justices, 167 Mass. 599, 600, 46 N. E. 118, 119, rendered to the House of Representatives concerning the liability to impeachment of a county commissioner:

‘There are several classes of civil officers within the commonwealth; for example, town or city officers, county officers, officers of districts, and state officers. In a certain sense, all of these officers may be deemed to be officers of the commonwealth, and it is possible accordingly to take the view that all are subject to impeachment. But in our opinion this provision of the Constitution was not intended to include all civil officers of every grade within the commonwealth.

‘On the one hand, it seems to us that the various officers of cities or towns do not fall within the class of officers of the commonwealth, in the sense in which these words are used in this provision of the Constitution. On the other hand, 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. The intention of the framers of the Constitution in respect to such officers as county commissioners is not free from doubt. The office of county commissioner is created by statute, and the Legislature can by statute determine in what manner an incumbent may be removed from office. They have some duties or functions which concern the people of the state at large. * * * It seems to us that the better construction of the constitutional provision is that the county commissioners are not subject to impeachment as officers of the commonwealth.’

In a certain sense a district attorney is a public officer in which the general public has a deep and vital interest. Commonwealth v. Kozlowsky, 238 Mass. 379, 131 N. E. 207. Many other officers, also, are in a sense public. Bolster v. Lawrence, 225 Mass. 387, 389, 114 N. E. 722, L. R. A. 1917B, 1285. The district attorney is not an officer ‘elected by the people at large,’ but by the voters of the several districts for which they are chosen. G. L. c. 12, § 13. District attorneys have been referred to in judicial opinions as ‘local prosecuting officers,’ and their power as confined ‘within their respective districts.’ Parker v. May, 5 Cush. 336, 339, 340. Their duties are by G. L. c. 12, §§ 27, 28, in general to be performed ‘within their respective districts,’ although they may interchange official duties.

The district attorney is not an officer created or ‘provided for in the Constitution.’ The only places where that office, is mentioned are in articles 8 and 19 of the Amendments. In article 8 it is provided that no ‘county attorney,’ among other officers, shall continue to hold office after accepting an election to Congress; and in article 19, that ‘The Legislature shall prescribe, by general law, * * * that district attorneys shall be chosen by the people of the several districts, for such term of office as the Legislature shall prescribe.’ These provisions merely recognize an existing office. They do not secure its tenure nor confer any right in the office superior to the control of the Legislature. The Constitution ordains how the officer shall be elected and a single act of one so elected which shall vacate the office. It does nothing more.

‘It is within the constitutional power of the Legislature, by general law, to change the term of office, or to abolish the office itself, and transfer the powers and duties to another.’ Opinion of Justices, 117 Mass. 603. See Commonwealth v. Boston & Maine Railroad, 3 Cush. 25, 50.

It was said by Chief Justice Knowlton in Graham v. Roberts, 200 Mass. 152, 157, 85 N. E. 1009, quoting the words of Chief Justice Shaw in Taft v. Adams, 3 Gray, 127, 130:

‘Where an office is created by law, and one not contemplated, nor its tenure declared by the constitution, but created by law solely for the public benefit, it may be regulated, limited, enlarged or terminated by law, as the public exigncy or policy may require.’

It was provided by article 19 of the Amendments to the Constitution that commissioners of insolvency should be elected by the people of the several counties, as well as district attorneys by the people of the several districts, for terms to be prescribed by the General Court. It was held in Dearborn v. Ames, 8 Gray, 1, that a statute transferring substantially all the powers formerly exercised by commissioners of insolvency to courts of insolvency thereby established was constitutional. Even where the Constitution creates an office but makes no provision for its term or the method of removal of its incumbent, the General Court may act in these particulars in the public interests. It may establish any rational means of removal from such office for any just cause. Opinion of Justices, 216 Mass. 605, 606, 104 N. E. 847.

At the next session of the General Court after the ratification of the Nineteenth Amendment to the Constitution and pursuant to its mandate, St. 1856, c. 173, was enacted, which by sections 1 and 5 provided for the election of the district attorneys and the other officers therein designated, and by section 7 for the removal of the same officers including district attorneys by the procedure now set forth in G. L. c. 211, §...