In re Opinion of the Justices

• Decision Date: 10 June 1913
• Citation: 214 Mass. 602,102 N.E. 644
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 602

102 N.E. 644

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

June 10, 1913.

Question submitted to the Justices of the Supreme Judicial Court by the Governor. Question not answered.

In answer to a letter from the Governor received on June 7, 1913, the Justices of the Supreme Judicial Court on June 10, 1913, returned the answer which is subjoined.

To His Excellency, Eugene N. Foss, Governor of the Commonwealth:

The Justices of the Supreme Judicial Court have received your letter of June 7, 1913, in which you ask their opinion as to the constitutionality of a bill which you say has been passed for engrossment by the Legislature, and is about to be laid before you for your revisal in accordance with the Constitution. We understand that the bill is now actually before you and we proceed to state the broad reasons which require us to decline to answer your question.

[1] This question relates to the duty resting upon the Governor of the commonwealth under Const. c. 1, § 1, art. 2, to approve or veto bills or resolves of the Legislature. The trust thus reposed is personal. It is vested in the Governor alone. It cannot be delegated. He is not required to confer with the Council. While he may seek information or advice from the Council or from any other source, the final responsibility for approval or disapproval is wholly his.

[2][3] The constitutional duty of the Justices of the Supreme Judicial Court is set forth in chapter 3, art. 2, in these words: ‘Each branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices * * * upon important questions of law, and upon solemn occasions.’

The question presents itself whether these words require the Justices to give their opinion when asked by the Governor alone, without the concurrence of the Council. This is an important question which we feel obliged to determine, because the Justices are forbidden to go beyond the requirement of the Constitution. The Constitution not only limits their duty but bounds their right to express opinions. By traveling outside these bounds injustice might to done to private litigants and to public interests in an attempt by the Justices to give opinions without the benefit of argument as to the law and an opportunity to vindicate their views to those whose rights might be affected. See Opinion of the Justices, 122 Mass. 600. Opinions given under this provision of the Constitution are advisory in their character. They are not conclusive upon the rights of parties and are open to argument in any judicial proceeding regularly brought before the courts. But they presuppose such examination and consideration by the Justices as the limitations of time and other contemporaneous duties permit, and the formation of a deliberate conclusion, and hence are accorded weight by the public and the profession, as indicating what the law is. Green v. Commonwealth, 12 Allen, 155, 164. The Constitution expressly prohibits each of the three departments of government from intermeddling with either of the others. Declaration of Rights, art. 30. This applies as strongly to the judicial department as to either of the others. It acts as an inhibition upon the Justices giving opinions as to the duties of either the executive or legislative department except under the Constitution.

[4] Although either branch of the legislative department of government is given plainly the right to ask an opinion of the Justices, a like form of words is not used in conferring the power upon the executive department of government. ‘The Governor and Council’ is the phrase employed, and not the Governor or Council, or other language indicating a power to be exercised disjunctively. The expression aptly shows a power to be exercised conjointly. The construction of the sentence bears the same indication. ‘Each branch of the Legislature’ (which relates to the legislative department of government and confers a separate right both upon the Senate and upon the House of Representatives acting alone), by the words ‘as well as,’ is set over against ‘the Governor and Council,’ which relate to the executive department of government, and where the language joins instead of separates the ‘supreme executive magistrate’ and his constitutional advisers. This is confirmed by other articles of the Constitution, where the executive department is described, and the words ‘Governor and Council’ are used. See for example chapter 1, § 3, art. 11; Articles of Amendment 12, 13. The words ‘Governor or Council’ do not occur in the Constitution. Nowhere in the Constitution are any duties conferred upon the Council, except such as they are to perform in conjunction with the Governor, either approving or disapproving his acts or joining with him as an executive board.

The circumstances under which the Constitution was framed confirm the view that it was not the intent of its makers to require the Justices to advise the Governor as to his duty of approving or disapproving bills and resolves of the Legislature. The territory of the state of Maine was then included in this commonwealth. Three of the five Justices then constituting the court either lived in what is now Maine or recently had moved therefrom to places now in this commonwealth. In any event, the residences of the Justices were and were liable to continue to be widely separated. The performance of their official duties took them to distant parts of the state. In 1780 no means of communication or of transportation more rapid than the horse and...