303 Mass. 664 | Mass. | 1939
The Justices of the Supreme Judicial Court respectfully submit these answers to questions set forth in an order — copy of which is hereto annexed — adopted by the Senate and by the House of Representatives in concurrence and transmitted to the Justices on July 26, 1939, as to the constitutionality of certain joint rules of the Senate and the House of Representatives relating to special sessions of the General Court proposed in orders now pending before the General Court. Copies of these pending orders, including copies of the proposed rules, are annexed to the order requiring our opinion.
The two rules proposed in the pending orders provide in somewhat different terms for the assembling of the General Court, “during a recess” thereof, in a “special session,” even though not called together by the Governor with the advice of the Council under the provisions of Part II, c. 2, § 1, art. 5, of the Constitution. We assume, in view of the language of the orders, that the word “recess” as used in the proposed rules is not intended to be restricted to a recess limited in duration such as is authorized by art. 52 of the Amendments to the Constitution, but that it is intended to include “an interval between regular biennial
The controlling constitutional provision is Part II, c. 1, § 1, art. 1, as affected by later amendments. This article provided that “The legislative body shall assemble every year on the last Wednesday in May, and at such other times as they shall judge necessary.” Article 10 of the Amendments, ratified in 1831, provided, in part, that “The political year shall begin on the first Wednesday of January instead of the last Wednesday of May, and the general court shall assemble every year on the said first Wednesday of January, and shall proceed at that session to make all the elections, and do all the other acts which are by the constitution required to be made and done at the session which has heretofore commenced on the last Wednesday of May . . . But nothing herein contained shall prevent the general court from assembling at such other times as they shall judge necessary, or when called together by the governor.” Article 64 of the Amendments, ratified in 1918, provided, in § 3, that “The general court shall assemble every year on the first Wednesday in January,” but made no reference to its assembling at any other time. Article 72 of the Amendments, ratified in 1938, provided, in § 1, that “The general court shall assemble in regular session on the first Wednesday of January in the year following the approval of this article and biennially on said Wednesday thereafter. Nothing herein contained shall prevent the general court from assembling at such other times as they shall judge necessary or when called together by the governor,” and annulled all provisions of the Constitution and amendments thereto requiring the General Court to meet annually.
Part II, c. 2, § 1, art. 5, authorizes the Governor with the advice of the Council to call the General Court “together sooner than the time to which it may be adjourned or prorogued, if the welfare of the commonwealth shall require the same.” This article and the following article contain provisions authorizing the Governor with the advice of the Council to adjourn or prorogue the General Court. Such adjournment or prorogation, other than in
In Opinion of the Justices, 294 Mass. 623, the view was expressed, to which we adhere, that the power conferred upon the General Court to assemble “at such other times [that is, other than the time specifically fixed by the Constitution] as they shall judge necessary” is not cut down by the other provisions of the Constitution as to recesses, adjournments or prorogations (page 625). And there is nothing in art. 72 of the Amendments, ratified after that opinion was rendered, leading to a different conclusion. In that opinion also the view was expressed, to which we adhere, that “The words of the Constitution conferring the power imply that in any event it may be exercised by the General Court while in session. By appropriate expression of legislative determination the General Court while in session may 'judge necessary’ that it assemble at a specified time during the future and before the terms of its members shall expire” (page 626). In that opinion, in conformity with these statements, all the Justices then constituting the court answered affirmatively the questions, “Can the General Court, under the aforesaid provisions of the Constitution, assemble, without being called together by the governor, at a time other than a regular session and thereafter transact any business as a General Court?” and
In the Opinion of the Justices already referred to, six of the seven Justices then constituting the court concurred in the statements that “the General Court, being already organized and in session, may also judge necessary that it assemble during the period after its prorogation and before the expiration of the term for which its members have been elected,” that “by joint resolution or rule the General Court may prescribe means for the expression by every one of its members of preference as to the date of such assembling by signature to some paper or papers and the accurate counting of such manifestations of preference, and that the General Court shall be convened upon the date preferred by a majority of the members of each branch as shown by such signatures” (pages 626-627). These statements we accept as representing the law of the Commonwealth — the Chief Justice concurring, though not without doubt in view of his opinion previously expressed (see Opinion of the Justices, 294 Mass. 623, 628), but giving weight to the opinion of the other Justices thus formally stated. Compare Opinion of the Justices, 167 Mass. 599, 601. However, we do not interpret these statements as necessarily limiting the General Court to assembling, when not called together by the Governor, only in precise conformity with the procedure therein described, but we interpret them as describing a permissible procedure for so assembling.
One matter for consideration upon the questions now submitted, not considered in the earlier Opinion of the Justices, is whether the General Court may assemble without being called together by the Governor even if it has not, “being already organized and in session,” judged it necessary “that it assemble during the period after its prorogation and before the expiration of the term for which its members have been elected.” In our opinion the reasons leading to the conclusion that “by joint resolution or rule the General Court may prescribe means for the expression
In accordance with the principles stated, the specific questions are answered as follows:
The answer to the first question is "Yes,” provided that every member of each branch of the General Court has a reasonable opportunity in an orderly mariner to express an opinion as to the necessity of the General Court assembling in a special session at a specified date and it is determined that it is necessary for the General Court so to assemble. We need not consider in detail the propriety of any method of procedure other than that described in the proposed rules.
The answer to the second question is "Yes,” provided that the determination of the necessity of assembling is made in a proper and constitutional manner.
The answer to the third question is “Yes,” if the rule adopted provides a proper and constitutional method for so assembling.
The answer to the fourth question is "Yes.”
It has not been practicable for Mr. Justice Qua, by reason of absence from the Commonwealth, to take part in the preparation of this opinion.
Feed T. Field.
Chaeles H. Donahue.
Henby T. Lummus.
Abthue W. Dolan.
Louis S. Cox.
James J. Ronan.