303 Mass. 615 | Mass. | 1939
The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the Senate on May 3, 1939, and transmitted to them on May 5, 1939, a copy of which is hereto annexed. The questions relate to a bill (Senate, No. 500), entitled “An Act establishing boards of special commissioners to divide into representative districts the several counties of the Commonwealth which are entitled to more than one representative,” now pending before the General Court upon a report of the special committee on redistricting (Senate, No. 498). Copies of the bill and report are annexed to the order.
The bill provides, in substance, that each county other than Suffolk, Dukes and Nantucket shall be divided into representative districts by a board composed of the county commissioners and four other persons to be chosen by joint ballot of the senators and representatives in one room, that Suffolk County shall be so divided by a board of seven persons chosen by such joint ballot, that any of the members of any of said boards may be members of the General Court and,all of them shall be residents of the respective counties for which they are chosen, and that the Governor shall make appointments of persons qualified as aforesaid to fill any vacancies that may occur in any of said boards. The bill contains no emergency preamble, but provides that it shall take effect upon its passage.
Four questions, one of them containing three subdivisions, are submitted. Three of these questions present for consideration matters relating to the constitutionality of the bill, if enacted into law. The fourth question is whether the bill, if so enacted, will be subject to a referendum petition under art. 48 of the Amendments to the Constitution.
Article 71 of the Amendments to the Constitution, which was adopted in place of art. 21 thereof, thereby annulled,
Article 71 of the Amendments, by imposing the duty of dividing counties into representative districts upon the “county commissioners or other body acting as such or, in lieu thereof, such board of special commissioners in each county as may for that purpose be provided by law,” imports that such a board of special commissioners may be established or “provided by law,” that is, in the manner fixed by the Constitution for the enactment of statutes generally. Constitution, Part II, c. 1, § 1, arts. 1, 2; art. 56 of the Amendments. By the bill submitted for our consideration, if enacted and valid, such a “board of special commissioners” will be “provided by law” for each of the counties other than Dukes and Nantucket. The bill provides in its first section for a board of special commissioners for each of the counties other than Suffolk, Dukes and Nantucket, and provides in its second section for a board of special commissioners for the county of Suffolk constituted in a manner different from that in which the boards of special commissioners for other counties are constituted. The matter for consideration is whether either or both of the methods by which, according to the terms of the bill establishing such boards of special commissioners, these 'boards are to be constituted are open to any constitutional
The board of special commissioners for each of the counties other than Suffolk, Dukes and Nantucket under § 1 of the bill is to consist “of the persons holding the office of county commissioner and four other persons, residents of the county, to be chosen by joint ballot of the senators and representatives in one room.” Though county commissioners are not officers of the Commonwealth within the meaning of Part II, c. 1, § 2, art. 8, of the Constitution, undoubtedly they are civil officers. Opinion of the Justices, 167 Mass. 599, 600. They are county officers. Goodale v. County Commissioners of Worcester, 277 Mass. 144, 148. But for the establishment of boards of special commissioners they would have the duty of dividing the counties into representative districts. Obviously there is nothing incompatible in the duties of county commissioners and of the boards of special commissioners established by the bill, if enacted into law, and art. 71 imports that county commissioners are proper persons to act in the matter of dividing the counties into representative districts. We perceive no reason why it may not be “provided by law” that county commissioners shall be members of boards of special commissioners. See Opinion of the Justices, 302 Mass. 605, 620. Moreover, it is clear that there is no constitutional objection to requiring that the “four other persons” who are chosen to be members of such a board shall be “residents of the county.” The functions to be performed by a board of special commissioners are distinctly matters of such local interest that this requirement is reasonable. See Bradley v. Zoning Adjustment Board of Boston, 255 Mass. 160, 167.
The question arises, however, whether the method “provided by law,” if the bill is enacted, for choosing the “four other persons” is objectionable on constitutional grounds. Clearly art. 71 of the Amendments, in authorizing provision “by law” for boards of special commissioners, not only authorizes creation “by law” of such boards but also
The Constitution, Part II, c. 1, § 1, art. 4, empowers “the said general court,” described in the first article of said section, “to name and settle annually, or provide by fixed laws, for the naming and settling all civil officers within the said commonwealth; the election and constitution of whom are not hereafter in this form of government otherwise provided for.” The members of the boards of special commissioners are “civil officers within the said commonwealth.” See Opinion of the Justices, 167 Mass. 599, 600; 302 Mass. 605, 620. See also Attorney General v. Drohan, 169 Mass. 534, 535; Bradley v. Zoning Adjustment Board of Boston, 255 Mass. 160, 165-166. It was said in Donovan v. Suffolk County Apportionment Commissioners, 225 Mass. 55, 58, of similar commissioners elected according to St. 1913, c. 835, § 390, enacted under the authority of art. 21 of the Amendments, now superseded by art. 71, that “The commissioners act as independent officers in the performance of a duty imposed by the Constitution.”
The Constitution contains no provision for “the election and constitution” of these civil officers — the members of boards of special commissioners — apart from the authority implied by said art. 71 and from the provisions of said art. 4 hereinbefore quoted. And the bill under consideration would not be an exercise of the power conferred by said art. 4 upon the General Court “to name and settle annually ... all civil officers within the said commonwealth.” It does not purport to “name” the “four other persons” who are to be members of each of these boards of special commissioners. On the contrary it purports to
It remains to consider whether, under the power conferred upon the General Court by said art. 4 to “provide by fixed laws, for the naming and settling all civil officers within the said commonwealth,” the General Court may provide by a fixed law for the choice of members of boards of special commissioners by senators and representatives acting in a manner other than that prescribed by the Constitution for action by the General Court. The power which, by this language of art. 4, is conferred upon the General Court is very broad (see Brown v. Russell, 166 Mass. 14, 25), but its scope must be determined in the light of other constitutional provisions, including the provision of art. 30 of the Declaration of Rights that “the legislative department shall never exercise the executive . . . powers.” The general subject was discussed rather fully in Opinion of the
The first section of the bill — applicable to counties other than Suffolk, Dukes and Nantucket — contains the provision that “Members of the general court who are residents of a county may be chosen as members of such board for such county.” This provision so far as it applies to a “person elected to the general court” that enacts the bill “during the term for which he was elected” — and we assume that the inquiry relates to such persons — is in violation of art. 65 of the Amendments providing that “No person elected to the general court shall during the term for which he was elected be appointed to any office created . . . during such term.” 'For reasons already stated, the members of the boards of special commissioners would be civil officers. And the position on such a board to which a person is appointed would be an “office” within the meaning of said art. 65. Opinion of the Justices, 302 Mass. 605, 623. Moreover, in our opinion, such “office,” if — apart from other constitutional objections — the bill should be enacted, would be “created” thereby, within the meaning of art. 65, and not by art. 71 of the Amendments, which
The first .section of the bill contains the further provision that “Any vacancy occurring among the members chosen as aforesaid [that is, “by joint ballot of the senators and representatives in one room”] shall be filled by appointment by the governor.” Since members of boards of special commissioners cannot constitutionally be “chosen as aforesaid,” it seems unnecessary to consider whether vacancies occurring among members so chosen can be filled by appointment by the Governor.
The board of special commissioners for the county of Suffolk under § 2 of the bill is to consist of “seven residents of said county, to be chosen by joint ballot of the senators and representatives in one room.” This section contains provisions relating to the choice of members of the General Court as members of said board and to the filling of vacancies on said board by appointment by the Governor which are substantially the same as those contained in the first section of the bill. The principles already stated and the conclusions reached with respect to the boards of special commissioners for other counties are applicable to this board of special commissioners. For reasons already stated, all the boards provided by the bill would be constituted in an unconstitutional manner. The fact that the board provided for the county of Suffolk is to be constituted in a different manner from those provided for other counties is not in our- opinion an additional ground of invalidity. A form of government has been provided by the General Court for the county of Suffolk different from the forms of government provided for the other counties, and the right of the General Court to provide different forms of government for different counties has been recognized. Goodale v. County Commissioners of Worcester, 277 Mass. 144, 149. We think that, in view of the difference
We are further of the opinion that the bill, even if it were constitutional, could not be made the subject of a referendum petition under art. 48 of the Amendments to the Constitution but that it would be excluded from the referendum as a “law . . . the operation of which is restricted to a particular town, city or other political division or to particular districts or localities'of the commonwealth.” Art. 48, The Referendum, III, § 2. This conclusion, we think, follows from the reasoning in Opinion of the Justices, 254 Mass. 617, 619-620, though the point therein considered was somewhat different. See also Christian v. Secretary of the Commonwealth, 283 Mass. 98. Compare Mount Washington v. Cook, 288 Mass. 67, 74. The proposed law would not be general in its operation throughout the Commonwealth. Its operation would not extend to the counties of Dukes and Nantucket, and, according to its terms, it would operate differently in Suffolk County than in the remaining counties.
In view of the principles stated we answer the questions submitted as follows:
The answer to the first question, subdivision (b), is “No.”
The answer to the first question, subdivision (c), is “No,” but not for the reason that the boards composed as provided in § 1 are constituted in a different manner-from the board composed as provided in §' 2.
In view of the answers to the preceding question no answer to the second question appears to be required.
The answer to the third• question is “No” so far as it relates to members of the General Court by which the bill would be enacted.
The answer to the fourth question is “No.”
Feed T. Field.
Chaeles H. Donahue.
Henby T. Lummus.
Stanley E. Qua.
Aethue W. Dolan.
James J. Ronan.
To The Honorable the Senate of the. Commonwealth of Massachusetts:
Article 71 of the Amendments to the Constitution contains the provisions by which the “county commissioners or other body acting as such or, in lieu thereof, such board of special commissioners in each county as may for that purpose be provided by law, shall” divide the counties into representative districts. If such boards of special commissioners are provided for by law, this must be done in the manner fixed by the Constitution for the enactment of statutes generally. The power of providing by law for such special commissioners under art. 71 of the Amendments is manifestly a legislative power. Under Part II, c. 1, § 1, art. 4, of the Constitution the General Court has power “to name and settle annually, or provide by fixed laws, for the naming and settling all civil officers within the said commonwealth; the election and constitution of whom are not hereafter in this form of government otherwise provided for.” It seems clear that such special com
It is true that under the provisions of Part II, c. 1, § 1, art. 1, “The department of legislation shall be formed by two branches, a Senate and House of Representatives: each of which shall have a negative on the other . . . and shall be styled, The General Court op Massachusetts.” And it is also true that the proposed bill could not be adopted in any joint convention or by any joint ballot of the senators and representatives. In other words, no doubt exists as to the authority of the General Court to fix by law, agreeably to the Constitution, the method by which special commissioners shall be chosen. The General Court acting as such may do one of two things: it may name the commissioners directly, or it may provide by legislation' for their naming. If this power to provide by law for the naming of special commissioners can be exercised so as to provide for their election by the voters of any one county or by appointment by some appointive power, it would seem that provision also may be made for their choice “by joint ballot of the senators and representatives in one room,” as is provided for by the bill, without contravening the provisions of art. 1. 1 Op. Atty. Gen. 233. This is not accomplishing by indirection-what may not be done directly but is rather adopting an alternative method under the provisions of art. 71. There is here no usurpation of executive power.
It does not seem that the provision of art. 30 of the Declaration of Rights, to the effect that “the legislative department shall never exercise the executive . . . powers,” is contravened by the proposed legislation. The only provision for such boards of special commissioners is found in art. 71 of the Amendments to the Constitution. No other governmental agency except the General Court has any power whatever to name or provide by law for the naming of such boards of special commissioners. In no sense can this power be construed as in the nature of executive power. The adoption of the proposed bill concerns the executive power, if at all, only in so far as the Governor has the power of veto. If it is assumed that the General Court could provide by law for the “appointment” of boards of special commissioners, if such was the purport of this bill,
Once having concluded that members of boards of special commissioners would be civil officers and that the position on such a board to which a person is appointed would be an “office” within the meaning of art. 65 of the Amendments to the Constitution, it does not follow necessarily that such a conclusion renders it unnecessary to consider whether on any other ground members of the General Court enacting the bill would be precluded from membership on a board of special commissioners. Article 65 of the Amendments provides that “No person elected to the general court shall during the term for which he was elected be appointed to any office created . . . during such term.” This is far from providing that such a person cannot be elected to such an office. If the General Court should in its judgment and within its power confer upon the voters of any one county the duty and power of electing special commissioners, could it be said that senators or representatives who were members of the General Court so providing would not be eligible to election to such offices? Or, if the General Court should provide for the election of a board of county commissioners for the county of Suffolk where no such board now exists, could it be said that members of the General Court so providing would be ineligible to election as such county commissioners? It does not seem that this can be so. In this connection art. 65 of the Amendments relates only to the question of the appointment, and not to the election, of members of the General Court. To what extent, if any, the provisions of Part II, c. 6, art. 2, of the Constitution and art. 8 of the Amendments would apply to such a case is not before us.
It would seem that there is no objection to a provision that any vacancies occurring among members of boards chosen under the proposed act shall be filled by appointment by the Governor.
The opinion of the majority of the Justices is adopted
In the opinion of the undersigned the answers to the questions submitted are as follows:
The several answers to subdivisions (a), (b) and (c) of question 1 are “Yes.”
The answer to question 2 is “Yes.”
The answer to question 3 is “Yes.”
The answer to question 4 is “No.”
Louis S. Cox.