Commonwealth v. Harriman

134 Mass. 314 | Mass. | 1883

Morton, C. J.

This is an information in the nature of a quo warranta, filed by the Attorney General, in behalf of the Commonwealth, at the relation of Joseph M. Day, to try the title of the defendant to the office of Judge of Probate and Insolvency for the county of Barnstable. The relator formerly held that office, having been appointed and qualified in 1858; and, in 1882, he was removed therefrom by the Governor, with consent of the Council, upon the address of both houses of the Legislature ; and the defendant was appointed in his place.

The relator contends that his removal was unconstitutional and void; that he is now de jure the Judge of Probate and Insolvency for the county of Barnstable; and therefore that the defendant has no title to the office. The principal ground upon which he founds his claim is that the charges upon which he was removed were charges of misconduct and maladministration in office, for which he was liable to impeachment, and that the constitutional power of removal by address does not include the power to remove for offences which are impeachable. The question is an important one.

No student of the Constitution and its history can fail to see that it was the purpose of those who framed it, and of the people who adopted it, to establish a carefully prepared system of government, consisting of three coordinate departments, the executive, legislative and judicial, each, as far as practicable, independent of the others, each balancing yet protecting, checking yet preserving, the others.

In this division of the functions of government, it was undoubtedly deemed to be of the first importance to the protection of the liberties and rights of the citizens, that the judiciary should be put upon such a basis, and protected by such constitutional guaranties, that it should be fearless and independent, and free from undue control and encroachments by the other departments.

These purposes could not be more forcibly stated than in the impressive language of the Declaration of Rights: “ It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the Supreme Judicial Court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws.” “ In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise, the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them : to the end it may be a government of laws and not of men.” Declaration of Eights, arts. 29, 30.

The Declaration of Eights is entitled “ A Declaration of the Eights of the Inhabitants of the Commonwealth of Massachusetts.” It was intended as a general declaration of the great, fixed and fundamental principles of reason and right which underlie our system of government and are the safeguards of liberty. It declares general principles which are to guide all departments of the government in their respective duties of making, executing and interpreting laws; but it does not purport to lay down specific rules of action, or to exactly define the extent and limitations of the powers of each department. For these we must look to the other part of the Constitution, “the Frame of Government.” And when we find that the general statements of the Declaration of Eights are qualified and limited by more specific provisions upon the same subject in the Frame of Government, the latter must control and govern.

The chapter upon the “ Judiciary Power ” provides that “ The tenure, that all commission officers shall by law have in their offices, shall be expressed in their respective commissions. All judicial officers, duly appointed, commissioned and sworn, shall hold their offices during good behavior, excepting such concerning whom there is different provision made in this Constitution: provided nevertheless, the Governor, with consent of the Council, may remove them upon the address of both houses of the Legislature.” Const. Mass. c. 3, art. 1. The decision of this case depends upon the true construction of this article.

The relator contends that the only effect of the proviso is to give the power of removal by address for causes other than misconduct and maladministration in office, and that for such misconduct an exclusive remedy is provided by impeachment under c. 1, § 2, art. 8, of the Constitution. We are not able to see any just rule of construction by which we can thus limit and qualify the plain language of the proviso. The language is broad and general; in its terms it includes a removal for any cause which is deemed by the legislative and executive departments sufficient. If it had been intended to exclude from this provision the power to remove for misconduct in office, leaving that to be dealt with by impeachment exclusively, it would have been so stated. Neither this article nor the article on impeachment contains any indication that the power of impeachment was to exclude the power of removal by address. We must give to the proviso the broad meaning which its language imports.

The article reaffirms the great principle asserted in the Declaration of Rights, that judicial officers shall hold their offices during good behavior; but it was deemed wise, as a check upon the absolute power and independence of the judicial department, to confide in the other two coordinate branches of the government the exceptional power of removing judicial officers by address when an exigency requires it, of which, from the nature of the case, they must be the sole judges. The obvious and natural meaning of the language used seems to us to require this construction, and our view is confirmed by the history of this provision.

It was undoubtedly taken from the English act of Parliament by which the Crown was settled upon the house of Hanover, which provided that, “ after the said limitation shall take effect as aforesaid, judges’ commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both houses of Parliament it may be lawful to remove them; ” and from the later statute of 1 Geo. III. c. 23, § 1, containing the» same provision as to removal by address.^* The language of the provisions of these statutes is clearly broad enough to authorize a removal by address for any cause which might seem sufficient to both houses of Parliament, including misconduct in office.

The draft of a constitution prepared by the Council and Representatives acting as a convention, in 1778, contained no provision for removal by address. It was rejected by the people, and is of no importance in this discussion.

In September 1779, was assembled the Convention of Delegates, elected for the special purpose of framing a Constitution, which continued in existence until June 1780, and the result of whose labors was the Constitution of 1780, as ratified and adopted by the people. It is to be regretted that we have so meagre a report of the doings of this important Convention. Among its first acts was the appointment of a committee to frame a declaration of rights and the form of a constitution, to be laid before the Convention. This committee afterwards reported in favor of a declaration of rights and frame of government, which was mostly the work of John Adams, and which served as the groundwork of the future deliberations of the Convention. See 4 Adams’s Works, 215, 216.

It is clear from the imperfect record which has come down to us, that the subject of the tenure of office of the judiciary was considered as a matter of the first importance. The clauses which we are considering were, as the journal tersely says, “largely debated,” and were finally adopted by the Convention in the same form substantially as that in which they were drafted and presented by Mr. Adams. In this form they were accepted by the people, and have stood unaltered as the fundamental law to this day, notwithstanding the several attempts which have been made to modify them.

The power of removal by address thus established has been infrequently exercised, but it is an instructive fact that in 1803 two justices of the Court of Common Pleas were removed by address for extortion in office, misconduct for which they were clearly liable to impeachment. Added significance is given to this action of the legislative and executive departments by the fact that Governor Strong, who removed them, was a member of the Convention and of the committee which prepared the draft of the Constitution.

In the Convention of 1820, elected by the people to revise the Constitution, many of its most prominent members, who are recognized as among the most eminent jurists and statesmen of the country, made a strenuous effort to change the provision for removal by address established by the Constitution of 1780. Their arguments were, that the provision, as it stood, gave an absolute and unlimited power to the legislative and executive departments, at their will and pleasure, to remove a judge, without a judicial -hearing and without assigning any cause; and that this endangered the freedom and independence of the judiciary, and was inconsistent with the great principles of the Declaration of Rights. They proposed to amend the third chapter of the Constitution, on the judiciary power, so that it should read that “ the Governor, with the consent of the Council, may remove any judicial officer upon the address of two thirds of the members present of each house of the Legislature.” This proposition was rejected by the Convention by a large majority. The same members were more successful in inducing the Convention to adopt an amendment, providing that “No address for the removal of any judicial officer shall pass either house of the Legislature until the causes of such removal are first stated and entered on the journal of the house in which it shall originate, and a copy thereof served on the person in office, so that he may be admitted to a hearing in his defence before each of said houses.” This amendment was submitted to the people and rejected by them, they thus decreeing that the power of removal by address should stand as it did in the Constitution of 1780. No change was made in this provision in the Constitution which was submitted to the people by the Convention of 1853, and rejected by them.

We think the uniform practice since 1780 has been to regard this provision as conferring an unrestricted power of removal upon the legislative and executive departments. When we consider the origin and history of the provision, the obvious and natural meaning of its language, and the uniform practical construction which has been given to it, we are forced to the conclusion that the intention of the people was to entrust the power of removal of a judicial officer to the two coordinate branches of the government without limitation or restriction.

The relator strongly contends that, upon this construction of the Constitution, the tenure of judicial office is not during good behavior, but at the will of the other departments of the government. It seems to us that this is arguing against the existence of a power clearly conferred, from the fact that it may be abused and perverted. There is no more danger of the abuse of the power of removal, if it includes the right to remove for impeachable offences, than there would be if it were confined, as the relator contends it should be, to cases of physical, mental or moral disability of a judicial officer, of which necessarily the removing, power must be the sole judge. Any power may be abused. The judiciary might corruptly declare any law or body of laws to be unconstitutional and invalid, and thus encroach upon the powers of the Legislature; yet no one doubts the right and duty of the judiciary to declare invalid any law which in its judgment violates the Constitution.

In confiding to the two coordinate branches of the government this important and exceptional power of removing the judiciary, the people found a sufficient protection to the substantial independence of the judicial department in the constitutional guaranties thrown around it, in the fact that the removal can only be made by the concurrent action of both houses of the Legislature and of the Governor and Council, all of whom are directly answerable to the people at frequently recurring periods, and in the trust and confidence they may rightfully repose in their servants and agents that in the exercise of any power committed to them they will act in obedience to their oaths of office, and in the spirit of the fundamental principles of the Constitution.

The view we have taken of the principal question involved disposes of the other questions raised by the relator at the hearing. They relate to the offer of evidence by him to prove the causes for which he was removed, and the evidence upon which the Legislature voted the address. The Constitution authorizes the removal without any reason being assigned for it; and therefore it is wholly immaterial what evidence or causes induced the Legislature to vote the address, or led the Governor and Council to act upon it. The evidence therefore was rightly excluded. Information dismissed.

* Prior to the St. of 1 Geo. III. c. 23, § 1, which was passed in 1760, the commissions of judges terminated on the demise of the Crown.- The language of the act is: “ The commissions of judges for the time being shall be, continue and remain in full force, during their good behavior, notwithstanding the demise of his Majesty (whom God long preserve) or of any of his heirs and successors; any law, usage or practice to the contrary thereof in any wise notwithstanding. Provided always, .... that it may be lawful for his Majesty, his heirs and successors, to remove any judge or judges upon the address of both houses of Parliament.”