Opinion of the Justices

• Court: Supreme Judicial Court of Massachusetts
• Citation: Opinion of the Justices, 308 Mass. 619, 33 N.E.2d 275 (Mass. 1941)
• Decision Date: 25 March 1941
• Parties: OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.(Opinions of the Justices.)

308 Mass. 619

33 N.E.2d 275

OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.(Opinions of the Justices.)

Supreme Judicial Court of Massachusetts.

March 25, 1941

Constitutional Law Impeachment, Opinion of the Justices. Executive Council.

The Justices of the Supreme Judicial Court considered and answered questions submitted to them in an order by the House of Representatives relating to its powers as the grand inquest under Part II, c 1, Section

2, art. 8, and Section 3, art. 6, of the Constitution, where the order was accompanied by documents showing that the House had under consideration the exercise of such powers, although not by anything comparable to a pending legislative bill, such as proposed articles of impeachment.

A member of the Executive Council is an officer of the Commonwealth subject to impeachment within the meaning of Part II, c. 1, Section 2, art. 8, of the Constitution. The words in Part II, c. 1 Section 2, art. 8, of the Constitution,

"misconduct and mal-administration in their offices," as applied to a member of the Executive Council, include such acts or omissions of the councillor while holding that office as can be said reasonably to render him unfit to continue to hold the office.

It is not necessary that there be both misconduct and maladministration in order to constitute a ground of impeachment of a member of the Executive

Council under Part II, c. 1, Section 2, art. 8, of the Constitution.

Acts or omissions of a member of the Executive Council, otherwise constituting grounds for impeachment, constitute grounds therefor although such acts or omissions occurred during a term of office prior to the term which he is serving when the impeachment is made by the

House of Representatives.

On March 25, 1941 the House of Representatives adopted, and on March 28 transmitted to the Justices of the Supreme Judicial Court the following order:

WHEREAS, There are pending before a special committee of the House of Representatives, appointed pursuant to an order of said House adopted

January 9, 1941, the Intermediate Report (House, No. 2) and the Final Report (House, No. 1000) of the Special Commission established under chapter 12 of the Resolves of 1939, commonly known as the Pardon and

Parole Commission, copies of said order and of said reports being submitted herewith; and

WHEREAS, Said reports contain numerous findings and statements relative to acts of a present member of the Council provided for in

Article I of Section III of Chapter II of Part the Second of the Constitution of the Commonwealth, who has held the office of

Councillor continuously since January, nineteen hundred and thirty-three, by re-election for consecutive terms, together with the suggestion of said Special Commission, on page 37 of its said Final

Report and the recommendation of one of its members, on page 230 thereof, that impeachment proceedings be instituted against said

Councillor for misconduct and mal-administration in his said office alleged to have occurred during terms prior to his present term; and

WHEREAS, Grave doubt exists whether or not Article VIII of Section II of Chapter I of Part the Second of the Constitution of the

Commonwealth and Article VI of Section III of said chapter apply to a Councillor, what acts and omissions are included by the words

"misconduct and mal-administration in their offices" in said Article VIII, whether or not both "misconduct" and "mal-administration" are necessary to impeach a Councillor and whether or not said Articles

VIII and VI apply to the acts and omissions of a Councillor during any term of office prior to his present term; and

WHEREAS, By reason of the foregoing circumstances, a solemn occasion exists, involving important questions of law, as to which it is necessary that the House of Representatives be advised by the

Justices of the Supreme Judicial Court before proceeding further as the grand inquest of the Commonwealth; therefore be it

ORDERED, That the Opinions of the Honorable the Justices of the Supreme Judicial Court be required by the House of Representatives upon the following important questions of law:

1. Are members of the Council officers of the Commonwealth, within the meaning of said Article VIII?

2. Do the words "misconduct and mal-administration in their offices", as used in said Article VIII, include acts or omissions:--

(a) Occurring in the administration of the office of Councillor?

(b) Occurring otherwise than in the administration of said office, but affecting the administration thereof?

(c) Not relating to the administration of said office? (d) Inconsistent with holding said office or constituting violation of the oath of office?

3. Does the word "misconduct", as used in said Article VIII, include acts of misconduct which are in no way related to the office held or the duties of said office?

4. Is misconduct, or misconduct in office, or mal-administration in office, a ground for impeachment of a Councillor under said Articles

VIII and VI, or must both misconduct and mal-administration occur to constitute a ground for such impeachment?

5. Do acts or omissions of a Councillor otherwise constituting grounds for impeachment constitute grounds therefor, if such acts or omissions occurred during a term of office prior to the term which he is serving when the impeachment is made by the House of

Representatives? On April 4, 1941, the Justices returned the following answers, which were read in the House on April 7:

To The Honorable the House of Representatives 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 House of Representatives on March 25, 1941, and transmitted to the Justices on March 28, 1941, a copy of which is hereto annexed. The questions relate to the constitutional powers of the House as the grand inquest of the Commonwealth with respect to making an impeachment of a present member of the Council, "who has held the office of Councillor continuously since January, nineteen hundred and thirty-three, by re-election for consecutive terms."

The matter is pending before the House upon two reports of a special commission established under chapter 12 of the Resolves of 1939, which contain numerous findings and statements relative to the acts of said councillor, and one of which suggests -- and on the part of one member of the commission recommends -- impeachment proceedings against said councillor. By an order of the House adopted January 9, 1941, provision was made for the appointment of a special committee for the purpose of considering, among other things, so much of said report as relates to such impeachment proceedings, and this matter is now before the special committee appointed pursuant to such order. We are not advised that this special committee has made any report upon the matter so referred to it, or that the House has taken any further action with respect thereto apart from the adoption of the present order wherein it is recited that "a solemn occasion exists, involving important questions of law, as to which it is necessary that the House of Representatives be advised by the Justices of the Supreme Judicial Court before proceeding further as the grand inquest of the Commonwealth."

The power of the House of Representatives as the grand inquest of the Commonwealth differs materially from its power as one branch of the General Court acting in matters of legislation. And the questions submitted relate to the power of the House in proceeding further as such grand inquest. Consequently, notwithstanding the absence of anything -- such as proposed articles of impeachment -- in any degree comparable to a bill pending before the House when acting in a matter of legislation to which the questions submitted are directed, we treat the order on the basis that the House has under consideration the exercise of its power to make an impeachment of the councillor referred to, and that an opinion is desired, on the questions of law submitted, "respecting pending matters, in order that assistance may be gained in the performance of present duties." Opinion of the Justices, 216 Mass. 605; 301 Mass. 615 , 616-617. Compare Answer of the Justices, 148 Mass. 623 , 626; 217 Mass. 607 . See Opinion of the Justices, 167 Mass. 599; 204 Mass. 616 , 617-618; 208 Mass. 610; 239 Mass. 603; 243 Mass. 605 .

The constitutional provisions relating to impeachment are these: Constitution, Part II, c. 1, Section 2, art. 8: "The senate shall be a court with full authority to hear and determine all impeachments made by the house of representatives, against any officer or officers of the commonwealth, for misconduct and mal-administration in their offices. But previous to the trial of every impeachment the members of the senate shall respectively be sworn, truly and impartially to try and determine the charge in question, according to evidence. Their judgment, however shall not extend further than to removal from office and disqualification to hold or enjoy any place of honor, trust, or profit, under this commonwealth: but the party so convicted, shall be, nevertheless, liable to indictment, trial, judgment, and punishment, according to the laws of the land"; Section 3, art. 6: "The house of representatives shall be the grand inquest of this commonwealth; and all impeachments made by them, shall be heard and tried by the senate."

The questions submitted call for an interpretation of said c. 1, Section 2 art. 8, as to whether a councillor is an "officer . . . of the commonwealth" within the meaning of this article so as to be subject to impeachment upon adequate grounds, and, if he is subject to...