Opinion of Justices to the Senate & House of Representatives

| Mass. | Jul 1, 1939

To The Honorable the Senate and the House of Representatives of the Commonwealth of Massachusetts:

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 sessions” when the regular session has been adjourned or prorogued.

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 exceptional cases for which' provision is made, is to be “to any time the two houses shall desire.” There are also provisions in the Constitution authorizing each of the houses “to adjourn themselves, provided such adjournments do not exceed two days at a time.” Part II, c. 1, § 2, art. 6; § 3, art. 8. And art. 52 of the Amendments authorizes the General Court to “take a recess or recesses amounting to not more than thirty days; but no such recess shall extend beyond the sixtieth day from the date of their first assembling.” Prior to the ratification of art. 10 of the Amendments it was the practice of the General Court to assemble in two or more sessions during the political year, ordinarily, if not invariably, assembling in a later session at a time to which the previous session had been adjourned or prorogued by the Governor with the advice of the Council in accordance with the desire of the General Court.

In Opinion of the Justices, 294 Mass. 623" court="Mass." date_filed="1936-07-01" href="https://app.midpage.ai/document/opinion-of-the-justices-to-the-house-of-representatives-6442146?utm_source=webapp" opinion_id="6442146">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 “Can the General Court, under the aforesaid provisions of the Constitution, so assemble if the date and place of so assembling are fixed by the General Court when in session and thereafter transact any business as a General Court?”

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" court="Mass." date_filed="1936-07-01" href="https://app.midpage.ai/document/opinion-of-the-justices-to-the-house-of-representatives-6442146?utm_source=webapp" opinion_id="6442146">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" court="Mass." date_filed="1897-02-25" href="https://app.midpage.ai/document/opinion-of-the-justices-to-the-house-of-representatives-6425878?utm_source=webapp" opinion_id="6425878">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 by every one of its members of preference as to the date” of assembling in a special session also lead to the conclusion that in like manner it may prescribe means for the expression by every one of its members of their several opinions as to the necessity of a joint session. The basic reasons leading to the conclusion stated in the earlier opinion were that the provision in the Constitution authorizing the General Court to assemble “at such other times as they shall judge necessary” was “a declaration of the independence of the General Court from domination by the executive department of government,” and that “.when a constitution gives a general power, or en pins a duty, it also gives, by implication, every particular power necessary for the exercise of the one or the performance of the other.” Opinion of the Justices, 294 Mass. 623" court="Mass." date_filed="1936-07-01" href="https://app.midpage.ai/document/opinion-of-the-justices-to-the-house-of-representatives-6442146?utm_source=webapp" opinion_id="6442146">294 Mass. 623, 626. Full effect would not be given to these reasons if a determination during a regular session of the General Court of the necessity of assembling later in a special session constituted a necessary condition precedent to assembling in such a special session. This is particularly true in a situation where circumstances have arisen which could not have been foreseen before adjournment or prorogation of a regular session and which may be thought to render a special session necessary, even if in such a situation the Governor with the advice of the Council has power under Part II, c. 2, § 1, art. 5, 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 power of the Governor is not to be interpreted as excluding the General Court from exercising a like power to assemble “at such other times as they shall judge necessary.” We conclude, therefore, that the absence of an “adjudication in advance during a regular session that it is necessary for it to assemble again during the” interval between regular biennial sessions, or so to assemble “in case of an emergency,” does not prevent the General Court from assembling in a special session if in other respects the constitutional requirements for so assembling are complied with.

A further matter for consideration is whether the proposed rules — alike in all substantial particulars — provide a method conforming to constitutional requirements by which the General Court may assemble in a special session when provision for such a special session at a specified date has not been made in advance at a regular session. Since the Constitution does not provide expressly for such a method, a method must be supplied by implication, or the power of the General Court to assemble “at such other times as they shall judge necessary” must fail as applied to situations where provision has not and perhaps could not have been made in advance at a regular session for such a special session. No method, however, can be supplied by implication that is not reasonably necessary to' make effective this power of the General Court in its broader aspect. It is naturally to be implied that the adoption of a rule by the General Court at a regular session is at least an appropriate way of providing a method of assembling in a special session in aid of the power conferred by the Constitution. Compare Opinion of the Justices, 294 Mass. 623, 626-627. An essential feature" of the method, however fixed, is that every member of each branch of the General Court shall have a reasonable opportunity to express in an orderly manner his opinion as to the necessity for a special session on a specified date. This opportunity seems to us to be afforded by the provision in the rules for notice to every such member of the date when the members of both branches shall assemble at the State House and for determination by vote by the members assembling whether it is necessary for the General Court to assemble in a special session. Apart from the provision for such a vote, however, no opportunity is afforded by either of the rules for the expression of the opinion of all the members as to the necessity of a special session. Whether or not an opportunity could be afforded by a rule in some other form need not be considered. Furthermore, the provision that the notice shall be sent by the clerks of the respective branches in accordance with directions given by members constituting majorities in both branches seems to us a reasonable and adequate provision to be made by a rule adopted at a regular session of the General Court for notice to all the members of the General Court that the members of the General Court are to assemble on a specified date for the purpose of determining the necessity of a special session. We conclude that the method provided by the rules for determining whether a special session is necessary is, by reasonable implication from the constitutional grant of power to the General Court to assemble "at such other times as they shall judge necessary,” a proper and constitutional method, and that a special session assembling in conformity therewith may constitutionally organize and transact 'business as a General Court.

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.