In re Opinion of the Justices

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

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.

[14 N.E.2d 465]

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

[14 N.E.2d 466]

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...