Commonwealth v. Leach

• Decision Date: 18 October 1923
• Citation: 141 N.E. 301,246 Mass. 464
• Parties: COMMONWEALTH v. LEACH. SAME v. BERKMAN. SAME v. TARTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 464

141 N.E. 301

COMMONWEALTH

v.LEACH.

SAME

v.BERKMAN.

SAME

v.TARTER.

Supreme Judicial Court of Massachusetts, Middlesex and Suffolk.

Oct. 18, 1923.

In Leach and Berkman Cases:

Exceptions and Appeal from Superior Court, Suffolk County; Arthur P. Stone, Judge.

In Tarter Case:

Exceptions and Appeal from Superior Court, Middlesex County; Walter P. Hall, Judge.

Isadore Leach, Fred Tarter, and Morris Berkman were convicted of violations of the prohibition law and bring exceptions and appeal. Exceptions overruled.

In the case of Berkman, a police sergeant testified that at different times he had seen men under the influence of liquor come out of the premises occupied by such defendant, and that he saw one man go into the store without liquor in his pockets, and saw defendant pass an object to him, and that he went in, and witness gave him a bottle of liquor.

Henry P. Fielding, Asst. Dist. Atty., of Dorchester, and W. L. Bishop, Asst. Dist. Atty., of Boston, for the Commonwealth.

H. Bergson, of Boston, for defendant Leach.

James J. Gaffney, of Boston, for defendant Berkman.

C. W. Rowley, of Boston, for defendant Tarter.

RUGG, C. J.

The chief question presented in these cases is whether St. 1923, c. 469, is constitutional. That statute omitting a single section immaterial to the present inquiry is printed below.¹ It provides that any judge of a district court, except of the municipal court of the city of Boston, on written request by the chief justice of the superior court, shall sit in the superior court for the trial and disposition of designated violations of criminal law. Prosecutions for all these violations of law are within the final jurisdiction of district courts. The formalities prescribed by the statute have been observed by the chief justice of the superior court and each of the defendants has by verdict of a jury been convicted of a crime within one of the designated classes before a judge of a district court sitting in the superior court.

The statute is assailed as contrary to the mandates of the Constitution that ‘all judicial officers * * * shall be nominated and appointed by the Governor, by and with the advice and consent of the council,’ part 2, c. 2, § 1, art. 9; that the tenure of all judicial officers shall be expressed in their respective commissions and they shall hold their offices during good behavior, part 2, c. 3, art. 1; and that the legislative and judicial departments of government or either of them shall never exercise executive powers, article 30 of the Bill of Rights.

It becomes necessary to examine the powers conferred by the Constitution upon the General Court in order to determine whether the statute in question goes beyond the limits of those powers and whether it can be harmonized with the provisions upon which the defendnants rely.

[1] The general principle is that every statute is presumed to be within the constitutional power of the Legislature and its enforcement is not to be refused unless clearly and manifestly outside and beyond that power. Perkins v. Westwood, 226 Mass. 268, 115 N. E. 411, and cases there collected.

[2] It is provided by part 2, c. 1, § 1, art. 3, of the Constitution that ‘the general Court shall forever have full power and authority to erect and constitute judicatories and courts of record, or other courts' for the adjudication of all matters over which the commonwealth validly can legislate. The only court established by the Constitution is the Supreme Judicial Court. Walton Lunch Co. v. Kearney, 236 Mass. 310, 317, 128 N. E. 429, and cases there collected. The superior court and all the district courts have been established from time to time by the legislative department of government pursuant to the power conferred by the Constitution. The jurisdiction of these courts may be ‘modified, enlarged, diminished or transferred, in the same manner as the jurisdiction of all other courts subordinate to the Supreme Judicial Court.’ Russell v. Howe, 12 Gray, 147, 153.

[3] The General Court further is given full power and authority by part 2, c. 1, § 1, art. 4, of the Constitution to make ‘all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, * * * and to name and settle annually, or provide by fixed laws for the naming and settling, all civil officers within the said commonwealth; the election and Constitution of whom are not hereafter in this form of government otherwise provided for; and to set forth the several duties, powers, and limits, of the several civil and military officers of this commonwealth. * * *’

As a part of this comprehensive grant of power the legislative department of government may according to its conceptions of the needs of the public welfare fix and limit and change and transfer from one to another the civil or criminal jurisdiction of all such courts. It may abolish existing courts with the exception of the Supreme Judicial Court and erect others in their stead and distribute among them jurisdiction of all justiciable matters in its own wisdom: The history of the courts of the commonwealth is replete with illustrations of the exercise of this power by the Legislature. Brien v. Commonwealth, 5 Metc. 508;Dearborn v. Ames, 8 Gray, 1;Wales v. Belcher, 3 Pick. 508;Commonwealth v. Phillips, 11 Pick. 28;Commonwealth v. Phelps, 210 Mass. 78, 96 N. E. 349,37 L. R. A. (N. S.) 567, Ann. Cas. 1912C, 1119; Power of Legislature to Create and Abolish Courts, by Horace Gray (later Chief Justice of this commonwealth and a justice of the United States Supreme Court), 21 Law Reporter, 65, 73 to 83.

[4] The amplitude of these grants to the Legislature of power over courts is bounded by the other provisions of the Constitution. Manifestly it would be beyond the scope of legislative authority to attempt to create courts whose judges should not be appointed by the Governor by and with the advice and consent of the council, part 2, chapter 2, § 1, art. 9; or whose tenure of office should be other than during good behavior, unless sooner removed in the manner provided by the Constitution to be expressed in their commissions under the great seal of the commonwealth, part 2, c. 3, art. 1; or who should hold offices forbidden to judges by article 8 of the amendments; or who should exercise either executive or legislative prerogatives, article 30 of the Bill of Rights.

There are numerous statutes now in force whereby the General Court has changed and enlarged the powers and jurisdiction of judges. Sometimes this has been accompanied by enlargement of the jurisdiction of the courts and sometimes without otherwise affecting or modifying the jurisdiction of the courts.

It is provided by G. L. c. 218, § 40, that judges and special justices of the several district courts, except of the municipal court of the city of Boston, may perform each others duties when necessary or convenient. Similar provision exists with reference to judges of probate of the several counties. G. L. c. 217, § 8. The probate courts in the several counties are separate tribunals, to each of which judges have been appointed by the executive department of the government. G. L. c. 215, § 1; c. 217, §§ 1, 2. The same is true of the several district courts. All have in general limited territorial jurisdiction. When action is taken under these provisions of the statutes as to interchange of duties, the request or designation is to be made by a judge or some officer other than the Governor. Such request or designation is not a commission or appointment. The effect of these provisions is to enlarge by the Legislature the territorial jurisdiction of the several judges and to provide for its exercise in some appropriate way. This constitutes no invasion of the constitutional powers of the executive department of the government. It is a redistribution of some of the existing judicial powers.

Provision was made by U. S. St. Oct. 3, 1913, c. 18, 38 U. S. Stat. 213, amending chapter 1, § 18, of the Judicial Code (U. S. Comp. St. § 985), for designation by the Chief Justice of the United States on request of the senior Circuit Judge of the Second circuit, of District Judges from other districts ? order to relieve congestion within the Second circuit. It was said in Lamar v. United States, 241 U. S. 103, 118, 36 Sup. Ct. 535, 540 (60 L. Ed. 912), that ‘merely to state’ the contention that ‘to assign a judge of one district and one circuit to perform duty in another district of another circuit was in substance to usurp the power of appointment and confirmation vested by the Constitution in the President and Senate * * * suffices to demonstrate its absolute unsoundness.’

The constitutionality of G. L. c. 217, § 8, and chapter 218, § 40, can hardly be doubted. This goes far toward upholding the validity of the statute now attacked.

See in this connection G. L. c. 211, § 19. Zeitz v. Nickel, 243 Mass. 516, 138 N. E. 4.

Provision was made by St. 1912, c. 649; G. L. c. 231, §§ 108, 109, for an appellate division of the municipal court of the city of Boston. No new judges were to be appointed, but the judges to hold the appellate division were to be designated from time to time by the chief justice of the municipal court of the city of Boston from among the judges of that court. Although numerous cases have come directly from that division to this court, the constitutionality of the statute authorizing the appellate division has never been doubted.

There were established three appellate divisions of the district courts of the commonwealth outside of the municipal court of the city of Boston by St. 1922, c. 532, §§ 8, 9, 10. The designation of the judges to sit on those appellate divisions was devolved upon the Chief Justice of the Supreme Judicial Court. Such designations have been made. All those appellate divisions have performed the judicial duties reposed in them by said chapter 532.

The constitutionality of these two statutes...