Attorney General v. Pelletier.

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 240 Mass. 264
• Parties: ATTORNEY GENERAL v. JOSEPH C. PELLETIER.
• Decision Date: 21 February 1922

240 Mass. 264

ATTORNEY GENERAL
v.
JOSEPH C. PELLETIER.

Supreme Judicial Court of Massachusetts.

February 21, 1922

December 19, 20, 1921. -- January 3, 1922. Present: RUGG, C. J., BRALEY, DE COURCY, CARROLL, & JENNEY, JJ. December 27, 1921 -- January 24, 1922.

Present: RUGG, C.J., BRALEY, DE COURCY, CARROLL, & JENNEY, JJ

District Attorney. Public Officer. Supreme Judicial Court. Constitutional Law, Removal of district attorney. Elections. Jurisdiction. Jury and Jurors. Practice, Civil, Waiver by failure to argue contention, Information under G.L.c. 211, Section 4, for removal of district attorney, Election, Exceptions, Deposition. Pleading, Civil, Alternative allegations. Witness, Deposition. Privilege, Impeachment, Absence of witness. Detective. Evidence, Competency, Of conviction, Admissions and confessions, Failure to testify, Failure to call witness. Words, "Officer . . . of the Commonwealth," "Property," "Estate," "Immunity," "Liberty," "Conviction."

Since a district attorney, while he is an officer performing strictly public functions, is not an officer elected by the people at large and his office is not one created or provided for in the Constitution, he does not come within the classification of officers removable only by impeachment under the provisions of Section 3, art. 6 and Section 2,

art. 8 of c.

1 of the Constitution.

The provisions of G.L.c. 211, Section 4, in no way violate the provisions of art. 9 of the Declaration of Rights. Neither art. 9 of the Declaration of Rights nor any other provision of the

Constitution assures to any officer the right to remain in office after his continuing so to do has been determined by a court, acting in conformity to the provisions of a general statute, to be contrary to the public welfare. The provisions of G.L.c. 211, Section 4, in no way violate art. 10 of the

Declaration of Rights, that statute being one of the "standing laws" and affecting neither the life, liberty nor property of any officer therein named. The office of district attorney is neither "property" nor "estate" nor

"immunity" nor "liberty" within the meaning of those words as used in art. 12 of the Declaration of Rights.

The provisions of G.L.c. 211, Section 4, expressly or by necessary implication afford to an officer against whom the proceeding therein described is brought [240 Mass. 265] the protection of judicial process, adequate notice, a statement of charges, a fair hearing, even though the hearing may be summary in appropriate circumstances, and assurance that final judgment of ouster shall not be rendered except for a sufficient cause founded upon considerations springing solely from the requirements of the public good ascertained and determined in accordance with procedure of established courts.

Even if the office of district attorney be regarded as a "privilege" as that word is used in art. 12 of the Declaration of Rights, a removal from that office under G.L.c. 211, Section 4, is not violative of the provisions of that article, it being a removal according to "the law of the land."

The provisions of G.L.c. 211, Section 4, confer the power and impose the duty of hearing and adjudicating as to the matters therein described upon the Justices of the Supreme Judicial Court sitting as a court.

The subject matter of G.L.c. 211, Section 4, is proper for judicial inquiry. Neither art. 30 of the Declaration of Rights nor c. 6, art. 2 of the

Constitution of the Commonwealth is violated by G.L.c. 211, Section 4.

The relation established between one who has been elected to and has accepted the office of district attorney and the district which elected him is not contractual. The method of removal of a district attorney established by G.L.c. 211,

Section 4, entered into the texture of that office, constituted a part of its tenure and its limitation, and was one of its characteristics under the laws of the Commonwealth; and one who has accepted the office so constituted cannot complain of its limitations so established. In the dual system of government existing under the Constitution of the

United States, it is a fundamental attribute of a State that it may establish its own officers and provide for their election, selection, appointment and removal according to its own conceptions of what its public policy demands.

No argument, oral or in writing, was addressed to the court in support of a suggestion in a "motion to dismiss and plea to the jurisdiction," filed by the respondent in a proceeding under G.L.c. 211, Section 4, for the removal of a district attorney, that the respondent was denied the equal protection of the laws by the statute. The respondent stated that he waived nothing. Held, that, under the settled practice of this court, the suggestion was waived.

The classification by the General Court of the officers who should be within the purview of G.L.c. 211, Section 4, is reasonable.

A district attorney is not by G.L.c. 211, Section 4, denied the equal protection of the laws.

In a proceeding under G.L.c. 211, Section 4, for the removal of a district attorney, no question of jurisdiction under the Federal Constitution is involved.

A statute will not be declared void unless it is impossible by any reasonable construction to interpret its provisions in harmony with the

Constitution.

Before proceeding to judgment in a proceeding under G.L.c. 211, Section 4, it was the duty of this court of its own motion to satisfy itself as to its own jurisdiction.

The constitutionality of G.L.c. 211, Section 4, and the jurisdiction of this court to act under it are firmly established. Following Attorney

General v. Tuft, 239 Mass. 458 .

In a proceeding under G.L.c. 211, Section 4, seeking the removal of a district attorney who had been five times elected to successive terms in that office, the scope of the inquiry is not limited to acts committed since his last election. [240 Mass. 266]

An information, filed by the Attorney General under G.L.c. 211, Section 4, and stating grounds which are alleged to require the removal of a district attorney, is not a criminal proceeding.

The removal of a district attorney from office under G.L.c. 211, Section 4, is not a penalty inflicted upon the officer but is designed to protect the public from a corrupt, a dishonest, a dishonorable, an inefficient or an incapacitated public officer. A proceeding under G.L.c. 211, Section 4, is not an impeachment.

No trial by jury is required in a proceeding for the removal of a district attorney under G.L.c. 211, Section 4.

In a proceeding under G.L.c. 211, Section 4, for the removal of a district attorney, depositions may be taken within and without the Commonwealth in conformity to the statutes and the rules of court and may be offered in evidence by the informant.

A group of five paragraphs in an information filed by the Attorney General under G.L.c. 211, Section 4, seeking the removal of a district attorney, charged the respondent with being a party to a conspiracy to extort money from divers persons by abuse of his power as district attorney and concluded with a paragraph charging that the respondent, with respect to the alleged conspiracy "was guilty of malfeasance, misfeasance, and nonfeasance in his said office in that he did either permit and promote the making of groundless threats of criminal prosecution against divers persons . . . or else, having at hand or available by reasonable effort sufficient evidence for the proper prosecution of criminal charges against such persons, did from improper motives fail to prosecute said charges, whereby he did either wilfully abuse the authority of his said office or did wilfully fail to discharge the duties thereof." During the taking of evidence at the hearing, the respondent moved that either the concluding paragraph of the group be stricken from the information on the ground that it contained alternative, hypothetical or disjunctive averments, or that the informant be ordered to elect upon which of the allegations therein contained he would rely. Held, that

(1) The proceeding being civil and not criminal, the rules of civil pleading were applicable;

(2) The charge in the information in its essence was single and was that the public good required the removal of the respondent, for which malfeasance, misfeasance and nonfeasance in office were the sufficient causes; the alternative averments were ancillary to that main charge and related to matters difficult of ascertainment in advance of a final decision on the merits;

(3) The meaning and intent of the group of charges was plain and the respondent could not have been misled or in doubt concerning the charges there set out or the defences thereto justly open to him;

(4) The pleading followed the analogy in G.L.c. 231, Section 7, cl. 4; Section 37, relating to alternative allegations in actions at law;

(5) The paragraph should not be stricken from the information; (6) The informant should not be required to elect as between the alternative averments;

(7) The motion, whether treated as made during the hearing or at the close of the evidence, must be denied.

In a proceeding under G.L.c. 211, Section 4, no exception can be entertained.

The provisions of G.L.c. 147, Section 28, afford no privilege to an employee of a person licensed as a private detective when he is summoned as a witness in a judicial proceeding. [240 Mass. 267]

It is not violative of the secrecy of grand jury proceedings or of that part of the grand jurors' oath as embodied in G.L.c. 277, Section 5, which requires him "the Commonwealth's counsel, your fellows and your own" to "keep secret," for a member of a grand jury, at the hearing of a proceeding under G.L.c. 211, Section 4, for the removal of a district attorney, to testify in substance that an assistant district attorney while the jury were deliberating and before they voted,...