Sheridan v. Gardner

Decision Date06 February 1964
Citation347 Mass. 8,196 N.E.2d 303
PartiesEdmund C. SHERIDAN v. Alfred GARDNER et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Morris M. Goldings, Francis X. McLaughlin and Thomas J. O'Toole, Boston, for the plaintiff.

Harold M. Willcox, Boston (Marshall Simonds, Boston, and Donald N. Sweeney with him), for the defendants.

Walter Jay Skinner, Asst. Atty. Gen., for the Attorney General.


WILKINS, Chief Justice.

This bill for declaratory relief has been reported without decision by a judge of the Superior Court upon the pleadings and a statement of agreed facts amounting to a case stated. Further proceedings have been stayed, and the defendants enjoined from taking further steps to procure the attendance of the plaintiff as a witness, as hereinafter discussed. The prayer for declaratory relief is vague. It asks a binding declaration 'of the right, duty, status and other legal relations' of the parties.

Seven defendants are the members of the commission (sometimes called Massachusetts Crime Commission) appointed by the Governor pursuant to Res. 1962, c. 146, and the remaining two are their counsel. The plaintiff is a resident of Boston upon whom on September 13, 1963, service was made of a paper, in form a summons, by a sergeant of the State police. The summons was directed to the plaintiff at the Department of Public Works to appear before the commission on September 16. It required the plaintiff 'to give evidence of what you know relating to the existence and extent of corrupt practices in government at state and local levels in the Commonwealth and in particular to the following: the deposit of funds of the Department of Public Works, the State Treasurer, and the Metropolitan Transit Authority with the * * * [name of bank deleted by order of Superior Court] and you are further required to bring with you all correspondence, memoranda, records, or writings of any sort pertaining to the deposit of funds of the Department of Public Works at the' said bank. On the reverse side of the summons are printed 'The Rules of Procedure Governing the Conduct of Hearings Before the Massachusetts Crime Commission.'

The plaintiff has never appeared before the commission. He raises numerous questions under the State and Federal Constitutions assailing the validity of the commission and of its summons. The Attorney General has been notified in accordance with G.L. c. 231A, § 8.

1. This is a suit against individual members of a board and their counsel, and is neither in form nor in substance, against the Commonwealth. Most obviously, it is not within the holding of Executive Air Service Inc. v. Division of Fisheries & Game, 342 Mass. 356, 173 N.E.2d 614, where declaratory relief was sought as to land of the Commonwealth, which was a necessary party. See Demetropolos v. Commonwealth, 342 Mass. 658, 661, 175 N.E.2d 259. See also Moneyweight Scale Co. v. McBride, 199 Mass. 503, 505-506, 85 N.E. 870, Id. (appeal dismissed) 223 U.S. 749, 32 S.Ct. 534, 56 L.Ed. 641; Commonwealth v. Norman, 249 Mass. 123, 130-131, 144 N.E. 66.

2. It is objected that the resolve violates art. 30 of the Declaration of Rights in that it authorizes the executive department to exercise a legislative power in appointing the members. We do not agree. The first paragraph of the resolve reads: 'That an unpaid special commission to consist of seven members appointed by the governor is hereby established to investigate and study as a basis for legislative action the existence and extent of organized crime within the commonwealth and corrupt practices in government at state and local levels, the existence of conditions which tend or may tend to prevent or interfere with the proper enforcement of the laws relating thereto, the existence of physical, legal and policy limitations on the powers and functions of those charged with the duty of enforcement of said laws and the extent to which the power of the government of the commonwealth in relation to the enforcement of said laws may or should be properly exercised at state and local levels.'

The power to fill vacancies is in the Governor, who shall from time to time designate one of the members as chairman.

The resolve also provides: 'The commission shall report to the general court annually on or before the first Wednesday in December in each year the results of its investigations and study and its recommendations, if any, together with drafts of legislation necessary to carry such recommendations into effect by filing the same with the clerk of the senate and shall file a final report and later than the last Wednesday in June, nineteen hundred and sixty-five. The commission shall also file a copy of each such report with the governor.'

In Attorney Gen. v. Brissenden, 271 Mass. 172, 171 N.E. 82, the entrusting of a legislative investigation to a member of the executive department, namely, the Attorney General, was held not to violate art. 30. At page 181 of 271 Mass. at page 86 of 171 N.E., it was said by Chief Justice Rugg, speaking for the court: 'The ascertainment of pertinent facts as the basis for legislation is within the power of the law-making department of government. When a legislative body has a right to do an act, it must be allowed to select the means within reasonable bounds. It is not precluded from delegating incidental powers which it may exercise itself in aid of its primary functions but which do not partake of the nature of law- making. Authority to obtain information necessary for its determination concerning the exercise of the power to enact laws may be conferred upon nonlegislative bodies * * *. Where facts are necessary as a basis for legislative action, the General Court may ascertain them in any reasonable way. Familiar methods are by appropriating the results of studies already made by itself or by others, by conducting an inquiry through a committee of is members, or by utilizing an existing commission or board to make and report the results of a research.'

The product of the work of the commission would be a reasonable source of information to the Legislature, which still would have the exclusive power to decide what, if any, legislation should be enacted. There is nothing in art. 30 which requires that investigations in aid of possible legislation should be conducted in whole or in part by members of the General Court. Indeed, the right of petition guaranteed by art. 19 of the Declaration of Rights conclusively points to the contrary. See, similarly, the First Amendment of the Constitution of the United States.

It is common knowledge that legislation frequently is proposed by a Governor and by other executive officers of the State. The Acts and Resolves over the years contain hundreds of examples where the Legislature has exercised its powers to conduct investigations, obtain facts, and receive reports through commissions and specified officers and boards. In very many instances the Governor has appointed a majority of the members of a commission. In a large number there have been no legislative members. In others the commissions created, or the boards designated, by the Legislature were empowered to hold hearings and to make report to the Legislature with drafts of recommended legislation. Res. 1947, c. 53. Res. 1949, cc. 28, 34, 46, 48. Res. 1950, cc. 46, 56. Res. 1951, c. 64. Res. 1952, cc. 71, 77. Res. 1961, c. 22. Res. 1962, cc. 86, 120. Res. 1963, c. 144.

Appointment of members of a legislative recess commission by the Governor was approved in Opinion of the Justices, 302 Mass. 605, 620, 19 N.E.2d 807. In Brown v. Russell, 166 Mass. 14, 25, 43 N.E. 1005 it was said that the Legislature, barring a constitutional limitation on its power, could confer the power of appointment to offices created by it upon public officers or boards. This statement was quoted with approval in Bradley v. Board of Zoning Adjustment of Boston, 255 Mass. 160, 165, 150 N.E. 892.

3. The conferring of the power to summon does not affect the validity of the Legislature's delegation of authority to the commission. 1 In Attorney Gen. v. Brissenden, 271 Mass. 172, 183-184, 171 N.E. 82, it was said, 'There are numerous instances in the actions of the General Court, where power has been vested in courts to compel the attendance and the giving of testimony by witnesses before boards, commissions, and other bodies exercising quasi judicial powers or powers of inquiry as to facts. * * * The court is ever solicitous to maintain the sharp division between the three departments of government as declared by article 30 of the Declaration of Rights. * * * But that bound has not been overstepped by the present resolves. We are of opinion that the question whether the defendant may be compelled to testify before the plaintiff as to the matters disclosed on this record is judicial in its nature. The provision of the resolves authorizing this court to compel the defendant to give testimony is a valid exercise of legislative power and confers jurisdiction to act.'

There is no merit in the assertion that art. 30 of the Declaration of Rights is violated because a discretion in the courts to refuse an application enables the judiciary to prohibit the Legislature from examining particular witnesses or posing particular questions.

4. The second paragraph of Res. 1962, c. 146, contains the following: 'No member shall hold any public office except that of justice of the peace or notary public or be a member or employee of any political committee. Not more than four of said members shall at any one time be members of the same political party. No person who has been convicted of a felony, gaming offense or any misdemeanor involving moral turpitude, nor any member of the immediate family of any such person, and no person who has served as a member of * * * [a previous crime...

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  • Opinion of the Justices to the Senate
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 27, 1978
    ...board within the executive branch." Opinion of the Justices, 365 Mass. 639, 643, 309 N.E.2d 476 (1974). See also Sheridan v. Gardner, 347 Mass. 8, 12-13, 196 N.E.2d 303 (1964). We answer question 7 in the 8. Question 8 asks whether, if any part of the proposed measure is excluded from the i......
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 1, 1967
    ...Court performing an appropriate investigatory function. Commonwealth v. Benoit, 347 Mass. 1, 6, 196 N.E.2d 228; Sheridan v. Gardner, 347 Mass. 8, 16--18, 196 N.E.2d 303; Gardner v. Massachusetts Turnpike Authy., 347 Mass. 552, 558--559, 199 N.E.2d 186. We have already ruled that art. 30 was......
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 13, 1966
    ...power to apply the law or to prescribe punishment.' Commonwealth v. Benoit, 347 Mass. 1, 6, 196 N.E.2d 228, 231. Sheridan v. Gardner, 347 Mass. 8, 12-13, 196 N.E.2d 303, app. dism. 379 U.S. 647, 85 S.Ct. 612, 13 L.Ed.2d 552. Gardner v. Massachusetts Turnpike Authy., 347 Mass. 552, 558-559, ......
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