373 Mass. 867 | Mass. | 1977
To the Honorable Council of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit this response to the question set forth in an order adopted by the Council on June 29, 1977, and submitted to us on July 1,1977, in the following form:
“TO THE HONORABLE THE JUSTICES OF THE SUPREME JUDICIAL COURT FOR THE COMMONWEALTH OF MASSACHUSETTS “WHEREAS, each of the three present members of the Licensing Board for the City of Boston is currently performing the important duties of his office by virtue of appointment made by the Governor of the Common
“WHEREAS, in accordance with Article LXXXV of the Amendments to the Constitution of the Commonwealth, the. Governor’s Council has the authority to require the opinions of the Justices of the Supreme Judicial Court upon important questions of law and upon solemn occasions, and
“WHEREAS, under Chapter 291, Section 1 of the Acts of 1906, an appointment as member of the Licensing Board for the City of Boston requires the advice and consent of the Governor’s Council, and
“WHEREAS, Chapter 740 of the Acts of 1964 repealed certain statutory powers of the Governor’s Council, and
“WHEREAS, it appears that the Licensing Board for the City of Boston is a ‘city body’ (see Dixie’s Bar, Inc. v. Boston Licensing Board, 357 Mass. 699, 702) and is, in any event, an instrumentality or agency of a city and, therefore, not within the executive department of state or county government as defined in Chapter 740, Section 1 of the Acts of 1964, therefore be it “ORDERED: That the opinion of the Justices of the Supreme Judicial Court be requested by the Governor’s Council upon the following important question of law:
“Whether the appointment of an individual as a member of the Licensing Board for the City of Boston by the Governor of the Commonwealth requires the advice and consent of the Governor’s Council, as set forth in Chapter 291, Section 1 of the Acts of 1906, since the subsequent enactment of Chapter 740 of the Acts of 1964 repealing certain statutory powers of the Governor’s Council.”
The Council’s order makes reference to St. 1906, c. 291, § 1, which provides in part that “[t]he governor, with the advice and consent of the council, shall appoint from the two principal political parties three citizens of Boston...
The order of the Council does not state whether the Governor appointed a member of the board in each of those six years, but only that “each of the three present members of the... [board] is currently performing the important duties of his office by virtue of appointment made by the Governor... without the advice and consent of the Governor’s Council.” Neither does the order state that there is any pending or impending vacancy on the board, nor does it state that the Council has pending before it any matter or “question concerning which doubts existed as to its power and authority.” Answer of the Justices, 217 Mass. 607, 612 (1914), quoting from Answer of the Justices, 148 Mass. 623, 626 (1889).
On an earlier occasion when the Council requested an opinion from the Justices of this court on the question whether “[w]hen the law calls for action ‘by the Governor and Council,’ is the Governor to concur with a majority of the Council in order to make its decisions effective, or is he to be considered a member of the deciding body, with one vote” we answered in part as follows: “The requirement of the Constitution is that the Justices of the Supreme Judicial Court give opinions to the Governor and Council ‘upon important questions of law, and upon solemn occasions.’ This provision has been construed to mean that such opinions may be required only respect
The duty of the Justices of this court with respect to rendering opinions to the legislative or executive department is both defined and limited by the following language of Part II, c. 3, art. 2, of the Constitution, as amended by art. 85 of the Articles of Amendment thereto:
Similarly, in Answer of the Justices, 217 Mass. 607, 611 (1914), we said: “A strong desire to respond to questions of the legislative and executive departments of government seeking a definition of their several powers ought not to lead us to be incautious in exceeding the limitations imposed on our own powers. It is always with a feeling of delicacy that this question is considered, but it is our manifest duty to consider it when the occasion demands it. Numerous instances have arisen where the Justices have not felt justified in giving opinions because beyond the power conferred by the Constitution. As was said in an Opinion of the Justices, 150 Mass. 598, at page 601 [1890] : ‘It is not the less our duty, in view of the careful
For the foregoing reasons we conclude that the circumstances in which the question was submitted to us by the Council do not constitute one of the “solemn occasions” contemplated by the Massachusetts Constitution, Part II, c. 3, art. 2, as amended by art. 85 of the Articles of Amendment thereto. We therefore respectfully ask to be excused from answering the question.
The foregoing answer is submitted by the Chief Justice and the Associate Justices subscribing hereto on the twenty-fourth day of August, 1977.
Edward F. Hennessey
Francis J. Quirico
Robert Braucher
Benjamin Kaplan
Herbert P. Wilkins
Paul J. Liacos
Ruth I. Abrams
The Amendment, approved by the people on November 3, 1964, substituted the words “governor or the council” for the words “governor and council” formerly appearing therein.