In re Opinion of Justices

• Decision Date: 04 May 1922
• Citation: 240 Mass. 611,135 N.E. 305
• Parties: In re OPINION OF JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 611

135 N.E. 305

In re OPINION OF JUSTICES.

Supreme Judicial Court of Massachusetts.

May 4, 1922.

Answers by the Justices of the Supreme Judicial Court to questions propounded by an order of the House of Representatives.

To the Honorable House of Representatives of the Commonwealth of Massachusetts:

The justices of the Supreme Judicial Court respectfully submit these answers to the questions in the order of April 20, 1922.

In substance the single inquiry presented is whether under the Constitution it is within the power of the General Court to provide by statute that the several district attorneys shall be members of the bar of the Commonwealth.

There is mention of county attorney in article 8 of the Amendments to the Constitution, where it is said that he and other officers there named shall not continue to hold such office after being elected a member of the Congress of the United States and accepting that trust. By article 19 of the Amendments the Legislature is given power to prescribe by general law for the election of district attorneys by the people of the several districts and to determine their terms of office. These are the only references to county or district attorneys in the Constitution or any of its amendments. In all other respects the Constitution is silent concerning the office, and the general power of the Legislature is left without restriction. They two provisions only recognize an office. They do not secure its tenure or define its term. No right in the office is established beyond the control of the Legislature. The office itself may be abolished and the powers transferred to others. It is provided in part 2, c. 2, § 1, art. 9, of the Constitution that the governor shall appoint a solicitor general. That office was not filled for the first twenty years after the adoption of the Constitution, and there has been no incumbent of it during the last ninety years. The office of attorney general was abolished by act of the Legislature from 1843 to 1849 (abolished St. 1843, c. 99, established St. 1849, c. 186). The office of the district attorney, although recognized by the Constitution, may be regulated, limited, enlarged or terminated according to the demands of public policy subject only to the single constitutional requirement of election by the people of the districts. It follows that the district attorney is not an officer created or provided for in the Constitution. Opinion of the Justices, 117 Mass. 603;Attorney General v. Tufts, 239 Mass. 458, 478 to 481, 131 N. E. 573,132 N. E. 322.

The General Court has full power to make all manner of wholesome and reasonable laws not repugnant to the Constitution, to provide for the naming and settling of all civil officers not provided for in the Constitution, and to set forth the duties, powers and limits of the several officers of the Commonwealth not in any manner contrary to the Constitution, pt. 2, c. 1, § 1, art. 4. ‘In the exercise of this power the Legislature has the right to prescribe the qualifications of all officers and servants of the public not provided for in the Constitution.’ Opinion of the Justices, 138 Mass. 601, 603;Graham v. Roberts, 200 Mass. 152, 85 N. E. 1009;Opinion of the Justices, 216 Mass. 605, 104 N. E. 847.

The General Court, therefore, has the power to fix reasonable qualifications for those who shall hold the office of district attorney. A statute establishing as an essential prerequisite that he shall be a member of the bar of this Commonwealth could not be pronounced unreasonable in a constitutional sense. It is difficult to conceive of one capable of performing the duties of a district attorney unless he were a member of the bar. This was recognized in Commonwealth v. Connecticut River Railroad, 15 Gray, 447, where it was said at page 449:

‘It was within the authority of the court, in the exercise of its discretionary power, to allow a disinterestedcounsellor at law to take the place of the district attorney.’

There is a considerable body of authority which holds that the use of the word ‘attorney’ in the title of the office carries with it the meaning that the incumbent must be a member of the bar. It has been said that--

‘To be a district attorney, he must be a lawyer. He is not an attorney in fact. He must be an attorney at law. The name of the officer implies it. He is the attorney of the state in a certain district, to distinguish him from an attorney general.’ State v. Russell, 83 Wis. 330, 332, 333, 53 N. W. 441, 442;People v. May, 3 Mich. 598;Enge v. Cass, 28 N. D. 219, 148 N. W. 607;Danforth v. Egan, 23 S. D. 43, 119 N. W. 1021,20 Ann. Cas. 418,139 Am. St. Rep. 1030.

The power of the Legislature to establish such a qualification seems to be recognized in other jurisdictions. Hanson v. Grattan, 84 Kan. 843, 845-847, 115 Pac. 646,34 L. R. A. (N. S.) 240;State v. Sanderson, 280 Mo. 258, 261, 217 S. W. 60.

It is provided by article 9 of the Bill of Rights that--

‘All the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.’

There is nothing in the true scope and effect of this article which forbids the enactment of the proposed legislation. Where qualifications of voters or officers are fixed by the Constitution the Legislature cannot add to or subtract from them. Kinneen v. Wells, 144 Mass. 497, 11 N. E. 916,59 Am. Rep. 105. The right of all persons equally to be selected for public employment in instances where the Constitution does not establish the...