In re Opinion of the Justices

• Decision Date: 18 April 1938
• Citation: 300 Mass. 596,14 N.E.2d 465
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 596

14 N.E.2d 465

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 18, 1938.

Opinion of the Justices of the Supreme Judicial Court in answer to questions propounded by order of the Senate of the Commonwealth as to the constitutionality of an act relative to the removal by a majority of the Justices of the Supreme Judicial Court of certain officers of cities and towns of the Commonwealth.

The following is the order of the Senate adopted April 4, 1938:

Whereas, There is pending before the Senate a bill entitled ‘An Act relative to the removal by a majority of the Justices of the Supreme Judicial Court of certain officers of cities and towns of the Commonwealth,’ printed as House, No. 1657, as amended, a copy whereof is hereto annexed; and

Whereas, Grave doubt exists as to whether said bill, if enacted into law, would be violative of the provisions of the constitution of the Commonwealth or of the United States; 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 competent for the General Court to enact legislation, as set forth in said bill, providing for the removal of a mayor of a city by a majority of the Justices of the Supreme Judicial Court, upon a petition brought by the Attorney General, if in their judgment the public good so requires, notwithstanding that there is no specific requirement in said legislation that sufficient cause be shown for such removal, or would said bill, if enacted into law, be violative of article XXX of part the first of the Constitution of the Commonwealth?

2. To what extent, if any, is the power of removal of a mayor, as conferred or imposed upon the Justices of the Supreme Judicial Court by said bill, a function other than judicial, and therefore violative of article XXX of part the first of the Constitution of the Commonwealth?

An Act relative to the removal by a majority of the Justices of the Supreme Judicial Court of certain officers of cities and towns of the Commonwealth.

Whereas, The deferred operation of this act would tend to defeat its purpose, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Chapter two hundred and eleven of the General Laws is hereby amended by striking out section 4, as appearing in the Tercentenary Edition, and inserting in place thereof the following:--

Section 4. A majority of the justices may, if in their judgment the public good so requires, remove from office a clerk of the courts or of their own court; and if sufficient cause is shown therefor and it appears that the public good so requires, may, upon a bill, petition, or other process, upon a summary hearing or otherwise, remove a clerk of the superior court in Suffolk county, or of a district court, a county commissioner, sheriff, register of probate and insolvency or district attorney; and may, upon a petition brought by the Attorney General, if in their judgment the public good so requires, remove a mayor of any city or a chief of police of any city or town.

To The Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions proposed in an order adopted on the 4th day of April, 1938, a copy whereof is hereto annexed.

These questions call for an interpretation of article 30 of the Declaration of Rights of the Massachusetts Constitution as applied to the judicial department of government. That article, in peculiarly forceful and clear language, declares that in ‘the government of this commonwealth’ the legislative, executive, and judicial departments shall forever be kept separate, that no one of them shall ever exercise the powers of either of the others, and that the judicial department ‘shall never exercise the legislative and executive powers, or either of them.’

The proposed statute is in substance an addition at the end of G.L.(Ter.Ed.) c. 211, § 4, without other change in its words. It must be construed as a part of that section and with reference to its other parts. That section, as it now stands, comprises two parts. The first part provides that a majority of the Justices of the Supreme Judicial Court may, ‘if in their judgment the public good so requires, remove from office a clerk of the courts or of their own court.’ Those words confer an absolute power of removal; they relate to public officers as to whom the Justices may be presumed to have personal knowledge from frequent contact. These officers were formerly appointed by the Justices. Although appointment to and removal from public office are commonly executive or administrative in nature, these officers were for many years appointed by the Justices, apparently without any thought of conflict with said article 30. Compare St.1830, c. 129, Case of Supervisors of Election, 114 Mass. 247, 19 Am.Rep. 341, and Boston v. Chelsea, 212 Mass. 127, 98 N.E. 620. This power of removal is judicial in the sense that it is incidental to the performance of the judicial functions of the court. It falls within the considerable number of subsidiary duties which may be exercised by the Justices without going outside those which pertain to the judicial faculty. As to these officers, removal may be made as an administrative act without judicial process or without explicit requirement for hearing. The validity of such removal rests upon the intimate relation between the duties of these officers and the performance of service essential to the courts.

The second part of said section 4 relates to clerks of other courts, registers of probate, and other county officers, including district attorneys. As to the competency and conduct of these officers, it may be supposed that the Justices of this court have knowledge. This part of the section requires petition, hearing, the showing of ‘sufficient cause,’ and proof that the removal is required by the ‘public good.’ Thus, this part of the statute enjoins two findings as a prerequisite to removal. These officers are not political in the ordinary meaning, but their duties are in the main concerned with administering justice, which is in a sense under the general supervision of the Supreme Judicial Court. That part of the section is doubtless constitutional. Its validity has been expressly upheld so far as it relates to the removal of a district attorney. Attorney General v. Tufts, 239 Mass. 458, 480, 131 N.E. 573,132 N.E. 322,17 A.L.R. 274;Attorney General v. Pelletier, 240 Mass. 264, 296, 134 N.E. 407. See, also, as to register...