In re Opinion of the Justices

• Decision Date: 27 February 1939
• Citation: 302 Mass. 605,19 N.E.2d 807
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 605

19 N.E.2d 807

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

Feb. 27, 1939.

In the matter of the opinion of the Justices of the Supreme Judicial Court in answer to questions submitted by the Senate of the Commonwealth as to the constitutionality of a proposed act making certain amendments and additions to the statute laws of the Commonwealth.

Questions answered.

Senate, February 1, 1939.

Whereas, There is pending before the General Court a bill entitled ‘An Act making certain amendments and additions to the laws of the Commonwealth relative to the State budget which have become necessary or advisable by reason of the initiative amendment to the Constitution providing for biennial sessions of the General Court and for a biennial budget’ printed as current House document numbered seventeen hundred and twenty-three, as amended by the Senate, a copy whereof is hereto annexed; and

Whereas, Various amendments to said bill have been proposed, which proposed amendments appear in the Journal of the Senate for February first, nineteen hundred and thirty-nine, copies of such amendment and proposed amendments being herewith submitted; and

Whereas, Grave doubt exists as to the constitutionality of said bill and proposed amendments, if enacted into law; therefore be it

Ordered, That the opinions of the Honorable the Justices of the Supreme Judicial Court be required by the Senate on the following important questions of law:--

1. Is it constitutionally competent for the General Court, under that clause of Article 4 of Section 1 of Chapter 1 of Part the Second of the Constitution of the Commonwealth which empowers it ‘* * * to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions * * *’, to appropriate for the second fiscal year of each two year period a stated amount for transfer to items of appropriation for the purpose of providing for unforeseen conditions of an emergency nature where such action cannot be postponed until the next regular session of the General Court, and to provide that such transfers shall be made on the order of the Governor, after written consent by a special recess commission constituted as set forth in subsection nine C of section six of said bill?

2. Does that provision of subsection nine C of section six of said bill which provides for the granting of written consent, by a body established by the General Court, to an order of the Governor for a transfer of funds to items of appropriation, before such transfer can be made, provide for the exercise by such body of executive powers within the meaning of the Constitution of the Commonwealth; and, if so, is it constitutionally competent for the General Court, in view of Article 30 of Part the First of said Constitution, to establish such a body and to grant to it substantially the powers provided by said subsection nine C?

3. If such provision does provide for the exercise of executive powers and if said subsection nine C were amended so as to provide for the appointment, to the body thereby created, by the President of the Senate and the Speaker of the House of Representatives of three and five persons, respectively, instead of three members of the Senate and five members of the House of Representatives, as provided in said subsection, is it constitutionally competent for the General Court, in view of Article 30 of Part the First of said Constitution, to establish such a body and to grant to it certain powers, all as provided by said subsection as so proposed to be amended?

4. If the provision referred to in Question 2 does provide for the exercise of executive powers and if said subsection nine C were amended so as to provide that all the appointive members of the body thereby created should be appointed thereto by the Governor, is it constitutionally competent for the General Court, in view of Article 30 of Part the First of said Constitution, to establish such a body and to grant to it certain powers, all as provided by said subsection as so proposed to be amended?

5. Does that provision of subsection nine C of section six of said bill which provides for the granting of written consent, by a body established by the General Court, to an order of the Governor for a transfer of funds to items of appropriation, before such transfer can be made, provide for the exercise of legislative powers by such body, within the meaning of the Constitution of the Commonwealth; and, if so, is it constitutionally competent for the General Court to delegate, to the extent provided by said subsection, the exercise of such powers?

6. If such provision does provide for the exercise of legislative powers, is it constitutionally competent for the General Court to delegate the exercise of such powers to the extent provided in said subsection nine C, if said subsection were amended so as to give such powers to a recess committee of the General Court instead of a recess commission constituted as provided in said subsection of said bill as printed?

7. Is the existence of unforeseen conditions of an emergency nature where such action cannot be postponed until the next regular session of the General Court essential to the constitutionality of the grant of power to the Governor and to the recess commission contained in said subsection nine C; and, if so, is such emergency negatived by the requirement therein that no such transfer may be made until at least seven days subsequent to the submission to the Governor of the request for such a transfer?

8. Does the provision of said subsection nine C, authorizing the appointment as members of the commission thereby established of members of the General Court, provide for the appointment of such members to offices created during the term for which they were elected, in violation of any provision of Article 65 of the Amendments to the Constitution of the Commonwealth?

9. If said section six, containing said subsection nine C, were amended by striking out, in lines 27 and 28, the words ‘providing for unforeseen conditions of an emergency nature where such action cannot be postponed’ and inserting in place thereof the words:-‘providing for unforeseen conditions where such action should not be postponed’, would said subsection C contain an unconstitutional delegation of legislative power?

10. If said section six, containing said subsection nine C, were amended by striking out, in lines 27 and 28, the words ‘providing for unforeseen conditions of an emergency nature where such action cannot be postponed’ and inserting in place thereof the words:-‘providing for unforeseen conditions where such action should not be postponed’, would it be constitutionally competent for the General Court to provide for such a recess commission and to grant to it such powers, or any of them, in view of the provisions of Article 30 of Part the First of the Constitution of the Commonwealth?

To The Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the Senate on February 1, 1939, a copy of which is hereto annexed.

The questions relate to a bill now pending before the General Court (House No. 1723), which is entitled ‘An Act making certain amendments and additions to the laws of the Commonwealth relative to the State budget which have become necessary or advisable by reason of the initiative amendment to the Constitution providing for biennial sessions of the General Court and for a biennial budget.’ This bill has been amended by the Senate, and further amendments have been proposed and are pending in the Senate. Copies of the bill, the amendment thereto and the proposed amendments thereto are annexed to the order. The questions submitted relate specifically to a new section (§ 9C) to be added by the bill to G.L.(Ter.Ed.) c. 29, and to proposed amendments to this new section.

The new section (§ 9C) to be added by the bill to said c. 29, provides that ‘In the general appropriation bill for each biennium there shall be appropriated from the General Fund for the second fiscal year thereof a stated amount for transfers to items of appropriation, other than for personal services, for the purpose of providing for unforeseen conditions of an emergency nature where such action cannot [italics ours] be postponed until the next regular session of the general court, such transfers to be made on order of the governor after written consent has been granted by a special recess commission,’ and prescribes the manner in which such commission shall be chosen and the procedure to be followed in effecting a transfer. (One of the proposed amendments to the bill would substitute in this section for the italicized words ‘of an emergency nature where such action cannot’ the words ‘where such action should not.’)

The ‘special recess commission’ according to the bill is to consist of ‘the chairman of the commission on administration and finance, ex officio, three members of the senate appointed by the president of the senate and five members of the house of representatives appointed by the speaker of the house of representatives, the appointees of said president to be chosen from members of the two leading political parties, as defined in section one of chapter fifty, and the appointees of said speaker to be chosen from members of such parties, but not more than three to be chosen by said speaker from the same party.’ By one of the proposed amendments to the bill the special recess board would be described as a ‘special recess committee,’ and ‘the chairman of the commission on administration and finance’ would not be a member thereof. By another of the proposed amendments to the bill the ‘special recess commission’ would consist of the chairman above referred to ‘ex officio’ ‘and eight persons appointed by the...