In re Opinion of the Justices

• Citation: 301 Mass. 615,17 N.E.2d 906
• Parties: In re OPINION OF THE JUSTICES.
• Decision Date: 14 December 1938
• Court: United States State Supreme Judicial Court of Massachusetts

301 Mass. 615

17 N.E.2d 906

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

Dec. 14, 1938.

Opinion of the justices of the Supreme Judicial Court as to the power of the Governor and Executive Counsel to pardon Edmund L. Dolan and J. Walter Quinn, whom the Superior Court had found guilty of contempt of court, and who had applied for pardons. A copy of the order of December 8, 1938, referred to in the opinion, follows:

The Commonwealth of Massachusetts Council Chamber

Boston, December 9, 1938

To Honorable the Justices of the Supreme Judicial Court for the Commonwealth of Massachusetts:

On December 8, 1938, His Excellency, the Governor, and the Executive Council, adopted the following order:

Whereas, the accompanying communications from Edmund L. Dolan and J. Walter Quinn, both under date of December 6, 1938, addressed to His Excellency, the Governor, and the Executive Council, have been received by His Excellency, Governor Charles F. Hurley and the Executive Council. In substance these communications are applications for pardon for criminal contempt of court; and

Whereas, Article VIII of Section 1 of Chapter II of [Part 2] the Constitution of the Commonwealth provides in part: ‘The power of pardoning offences, except such as persons may be convicted of before the Senate by an impeachment of the house, shall be in the governor, by and with the advice of council * * *’; and

Whereas, the Governor and Council are advised that there are now pending before the Supreme Judicial Court petitions for writs of error to reverse the judgments of the Superior Court adjudging said Edmund L. Dolan and J. Walter Quinn guilty of criminal contempt, which petitions have been argued before the Full Bench of the Court and are now under advisement of the Court; and

Whereas, said communications present important questions of law within the meaning of Article II, Chapter III of Part The Second of the Constitution of the Commonwealth, as to the jurisdiction of the Governor and Council to act thereupon;

Therefore, before proceeding to any consideration of the contents thereof, it is

Ordered, That the opinion of the Justices of the Supreme Judicial Court be required by the Governor and Council upon the following important questions of law:

First. Has the Governor by and with the advice of the Executive Council power to pardon for criminal contempt of court?

Second. If the opinion of the Justices is in the affirmative upon the foregoing question, have the Governor and the Executive Council power to consider and act upon said matter in view of the pendency before the Supreme Judicial Court of the petitions for writs of error aforesaid?

In Council, Thursday, December 8, 1938.

By His Excellency, the Governor, and Council

[Sgd] William L. Reed

William L. Reed, Executive Secretary.

December 6, 1938.

His Excellency, Governor Charles F. Hurley, and the Honorable Executive Council:

I hereby respectfully make application to your Honorable Body for a pardon for the offense for which I am at present being committed.

I hope that you will give my request due consideration as I feel that I have been punished sufficiently for the contempt charge on which I was found guilty. I may state that if your Honorable Body looks favorably on my application, I can assure you that there will never arise any other occasion which will cause you to regret your action.

Thanking you for any consideration you may give to my request, believe me,

Respectfully yours,

[Signed] Edmund L. Dolan.

December 7, 1938

To Governor Charles F. Hurley and the Members of the Executive Council:

It is perhaps needless for me to call your attention to the circumstances under which I was sentenced for criminal contempt of court on the charge of attempting to influence jurors. I fully realize the seriousness of this offence and I feel that my family and I have been sufficiently punished.

Therefore I respectfully request that I may be given consideration for a pardon as I know that if I am granted a pardon that my actions in the future will justify your favor.

Respectfully submitted,

[Signed] J. Walter Quinn

To His Excellency the Governor and The Honorable Council of the Commonwealth of Massachusetts:

Dec. 16, 1938

The justices of the Supreme Judicial Court, in reply to your order of December 8, 1938, a copy of which is hereto annexed, respectfully express their opinion as follows:

The questions of law upon which the opinion of the Justices is required relate, as appears from the order, to the power of the Governor, ‘by and with the advice of council,’ to pardon Edmund L. Dolan and J. Walter Quinn, who have been adjudged by the Superior Court guilty of contempt of court and have applied for pardons. We assume, though the order leaves the matter somewhat in doubt, that the Governor has under consideration the exercise of the power of pardon in favor of said Dolan and said Quinn, and the submission of his action in this respect to the Council for advice which might make such action effective (see Opinion of the Justices, 190 Mass. 616, 78 N.E. 311;Opinion of the Justices, 210 Mass. 609, 611, 98 N.E. 101;Juggins v. Executive Council, 257 Mass. 386, 154 N.E. 72), and that an opinion on the questions of law submitted is desired ‘respecting pending matters, in order that assistance may be gained in the performance of present duties.’ See Opinion of the Justices, 216 Mass. 605, 104 N.E. 847. See, also, Answer of the Justices, 290 Mass. 601, 603, 195 N.E. 357. The order is not to be construed as submitting to the Justices for their opinion questions of fact or of the wisdom or expediency of granting the pardons applied for, or purely abstract questions of law, none of which questions could properly be answered. Constitution, Part II, c. 3, art. 2. Opinion of the Justices, 120 Mass. 600;Opinion of the Justices, 126 Mass. 557, 566;Answer of Justices, 148 Mass. 623, 626, 21 N.E. 439;Opinion of the Justices, 190 Mass. 611, 613, 77 N.E. 820; Answer of the Justices, 217 Mass. 607, 611, 612, 105 N.E. 440;Dinan v. Swig, 223 Mass. 516, 519, 112 N.E. 91; We answer the questions of law submitted so far as they relate to the power to pardon said Dolan and said Quinn, and in the light of the facts disclosed by the order and by the proceedings in the full court on the writs of error referred to in such order.

The power to pardon is conferred by the Constitution of the Commonwealth, Part II, c. 2, § 1, art. 8, which reads as follows: ‘The power of pardoning offences, except such as persons may be convicted of before the senate by an impeachment of the house, shall be in the governor, by and with the advice of council: but no charter of pardon, granted by the governor, with advice of the council before conviction, shall avail the party pleading the same, notwithstanding any general or particular expressions contained therein, descriptive of the offence or offences intended to be pardoned.’

The power to pardon so conferred extends only to ‘offences.’ Consequently it is important to determine whether the contempts of which said Dolan and said Quinn were adjudged guilty constitute ‘offences' within the meaning of the constitutional provision. We think that they do.

Contempts have been classified broadly as civil and criminal (Hurley v. Commonwealth, 188 Mass. 443, 445, 74 N.E. 677,3 Ann.Cas. 757;New York Central Railroad Co. v. Ayer, 253 Mass. 122, 128, 129, 148 N.E. 567;Root v. MacDonald, 260 Mass. 344, 355-357, 157 N.E. 684, 54 A.L.R. 1422;Blankenburg v. Commonwealth, 260 Mass. 369, 372, 373, 157 N.E. 693), though it has been said of proceedings for contempt that ‘it is plain that they are * * * not strictly either civil or criminal, as those terms commonly are used,’ New York Central Railroad Co. v. Ayer, 253 Mass. 122, 129, 148 N.E. 567, 569; that ‘It may not be always easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both,’ Bessette v. W. B. Conkey Co., 194 U.S. 324, 329, 24 S.Ct. 665, 667, 48 L.Ed. 997, quoted in Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A.,N.S., 874, and in Root v. MacDonald, 260 Mass. 344, 359, 157 N.E. 684, 54 A.L.R. 1422; see, also, Hurley v. Commonwealth, 188 Mass. 443, 445, 74 N.E. 677,3 Ann.Cas. 757, and Root v. MacDonald, 260 Mass. 344, 358, 363, 157 N.E. 684, 54 A.L.R. 1422; and that ‘The use of the word ‘criminal’ in connection with contempts * * * is not strictly accurate, because numerous incidents of criminal trials are inapplicable to trials for contempt. * * * Nevertheless it has come into common use.' Root v. MacDonald, 260 Mass. 344, 357, 157 N.E. 684, 688, 54 A.L.R. 1422, see, also, page 365, 157 N.E. page 691.

The contempts of which said Dolan and said Quinn were adjudged guilty, and for which they were sentenced to confinement in the common jail, consisted, in substance, of obstructing and interfering with the course of justice by corrupting and unlawfully influencing persons serving as jurors in the Superior Court at a time when it was possible that some or all of them would be drawn to sit in the trial of indictments in which said Dolan and said Quinn were charged with having committed crimes, so that a fair trial of the indictments at the time set therefor was made impossible.

Such contempts clearly are in the category of criminal contempts. Of somewhat similar contempts it was said in Hurley v. Commonwealth, 188 Mass. 443, 447, 74 N.E. 677, 679,3 Ann.Cas. 757: ‘Contempts of this kind are most dangerous assaults upon the integrity of our courts in the trial of cases. It is inconceivable that any court would treat such an offense as anything less than a criminal contempt of the gravest character.’ And it was also said in that case that ‘it is universally recognized that an offense, committed directly against the authority and dignity of the court, as distinguished from mere disobedience of an order made for the...