In re Opinion of the Justices

• Decision Date: 11 July 1922
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 616

136 N.E. 157

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

July 11, 1922.

Answers to questions propounded to the Justices of the Supreme Judicial Court by the following order of the Governor and Council:

Whereas, the General Court, at its late session, passed a resolve which was approved under date of April 14th and became chapter 25 of the Resolves of 1922, and which reads as follows:

‘Resolved, that there be allowed and paid from the treasury of the commonwealth to Rose M. Coolidge, widow of the late Henry D. Coolidge, clerk of the Senate, the remainder of the salary to which he would have been entitled had he lived and continued to serve until the end of the current year:’

And whereas, by reason of an opinion of the Attorney General submitted to the President of the Senate under date of April 17, 1922, a copy of which is herewith submitted, doubt exists as to the constitutional right of the General Court to pass said resolve, and as to the right of the Governor and Council to issue a warrant, as required by law, authorizing payment from the treasury of the commonwealth, in accordance with the provisions of said resolve, therefore be it--

Ordered, that the opinions of the Honorable the Justices of the Supreme Judicial Court be required on the following important questions of law:

1. Is said chapter 25 of the Resolves of the current year constitutional?

2. Have the Governor and Council lawful authority to issue a warrant authorizing the payment of money from the treasury of the commonwealth in accordance with the terms of said resolve?

Adopted in Council June 28, 1922.

C. A. Southworth, Executive Secretary.

On July 11, 1922, the Justices returned the following answers: To His Excellency the Governor and the Honorable Council of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully answer as follows the questions in the order adopted on June 28, 1922, copy whereof is hereto annexed:

[1][2] The questions relate to the constitutionality of chapter 25 of the Resolves of 1922 and to the right of the Governor and Council to issue a warrant for the payment of the amount therein specified. That chapter is in these words:

‘Resolved, that there be allowed and paid from the treasury of the commonwealth to Rose M. Coolidge, widow of the late Henry D. Coolidge, clerk of the Senate, the remainder of the salary to which he would have been entitled had he lived and continued to serve until the end of the current year.’

It is manifest that the payment authorized by the resolve is a pure gratuity. The validity of legislation of this nature was fully considered in Opinion of the Justices, 175 Mass. 599, 57 N. E. 675,49 L. R. A. 564. It there was said, in accordance with principles too well settled to require discussion, that in general the power to pay gratuities to individuals is denied to the General Court by the Constitution. Public money cannot legally be paid for private gain or individual emolument, no matter how specious the pretext. Money raised by taxation can be expended only for strictly public uses. Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39;Mead v. Acton, 139 Mass. 341, 1 N. E. 413;Freeland v. Hastings, 10 Allen, 570;Kingman v. Brockton, 153 Mass. 255, 259, 26 N. E. 998,11 L. R. A. 123;Opinion of Justices, 204 Mass. 607, 91 N. E. 405,27 L. R. A. (N. S.) 483, and cases there collected; Loan Association v. Topeka, 20 Wall. 655, 22 L. Ed. 455;Cole v. La Grange, 113 U. S. 1, 5 Sup. Ct. 416, 28 L. Ed. 896, and cases there cited; Whittaker v. Salem, 216 Mass. 483, 104 N. E. 359, Ann. Cas. 1915B, 794;Duffy v. Treasurer and Receiver General, 234 Mass. 42, 50, 125 N. E. 135;Boston v. Treasurer and Receiver General, 237 Mass. 403, 130 N. E. 390. It also was there stated that, although public money can be expended for public purposes alone, such purpose does not become unlawful merely because money may be paid to private persons without previous claim to it of any kind. It further was pointed out that the power to give gratuities in the form of pensions as rewards to those who in the past had rendered military or naval service had been exercised since the early days of our government and was not open to doubt. The opinion then proceeds (175 Mass. 602, 603,57 N. E. 677,49 L. R. A. 564) in these words:

‘The power to give rewards after the event for conspicuous public service, if it exists at all, cannot be limited to military service. If a man has deserved...