307 Mass. 613 | Mass. | 1940
The Justices of the Supreme Judicial Court, in reply to your order of October 15, 1940, a copy of which is hereto annexed, respectfully express their opinion as follows:
The questions of law upon which their opinion is required relate, as appears from the order, to the legal effect of
The nature of the positions of members of local boards and appeal boards appears from the following provisions of § 10 (a) of the Act. The President of the United States is authorized thereby “to create and establish a Selective Service System, and shall provide for the classification of registrants and of persons who volunteer for induction under this Act on the basis of availability for training and service, and shall establish within the Selective Service System civilian local boards and such other civilian agencies, including appeal boards and agencies of appeal, as may be necessary to carry out the provisions of this Act. There shall be created one or more local boards in each county or political subdivision corresponding thereto of each State, Territory, and the District of Columbia. Each local board shall consist of three or more members to be appointed by the President, from recommendations made by the respective Governors or comparable executive officials. No member of any such local board shall be a member of the land or naval forces of the United States, but each member of any such local board shall be a civilian who is a citizen of the United States residing in the county or political subdivision corresponding thereto in which such local board has jurisdiction under rules and regulations prescribed by the President. Such local boards, under rules and regulations prescribed by the President, shall have power within their respective jurisdictions to hear and determine, subject to the right of appeal to the appeal boards herein authorized, all questions or claims with respect to inclusion for, or exemption or deferment from, training and service under this Act of all individuals within the jurisdiction of such local boards. The decisions of such local boards shall be final except where an appeal is authorized in accordance with such rules and regulations as the President may prescribe. Appeal boards and agencies of appeal within the
The order discloses that the Governor, in accordance with the provisions of the Act, has recommended for appointment by the President to local boards two judges of the Superior Court, and has also recommended for appointment to appeal boards eight judges of said court, including the chief justice thereof. The order discloses also that these judges are “undoubtedly willing to serve as members of said boards in the present national emergency” if membership in such boards is not legally incompatible with holding their judicial offices. It is apparent that if the appointments are not accepted by the judges the Governor will be called upon to make other recommendations for membership in such boards.
There are no express prohibitions in the Constitution of the Commonwealth of acceptance by Superior Court judges of appointments to membership in these boards. Part II, c. 6, art. 2, of the Constitution of the Commonwealth provides in part that “No . . . judge of the supreme judicial court, shall hold any other office or place, under the authority of this commonwealth, except such as by this constitution they are admitted to hold saving that the judges of the said court may hold the offices of justices of the peace through the state; nor shall they hold any other place or office, or receive any pension or salary from any other state or government or power whatever.” This provision does not apply to judges of the Superior Court. There are other more specific prohibitions in this article relating expressly to judges of the Supreme Judicial Court and to judges of probate, but none of the prohibitions expressly or by reasonable implication refers to judges of the Superior Court. The provision in the article that “never more than any two offices which are to be held by appointment of the governor, or the governor and council, or the senate, or the house of representatives, or by the election of the people of the state at large, or of the people of any county, military offices and the offices of justices of the peace excepted, shall be held by one person,” however, obviously is broad enough
Article 8 of the Amendments to the Constitution of the Commonwealth provides that “No judge of any court of [in] this commonwealth (except the court of sessions)” shall hold certain specified offices. While a judge of the Superior Court is within this prohibition the specified offices do not include positions as members of local boards or of appeal boards. This article provides further that “judges of the courts of common pleas shall hold no other office under the government of this commonwealth, the office of justice of the peace and militia offices excepted.” It is unnecessary to consider whether the words “judges of the courts of common pleas,” as here used, include judges of the Superior Court, or whether the position of member of a local board or of an appeal board is an “office” within the meaning of this Amendment since it is clear that neither of these positions is an “office under the government of this commonwealth.” The positions are created by an Act of Congress of the United States, and appointments to such positions are made by the President of the United States. The fact that appointments are made upon the recommendation of the Governor of this Commonwealth does not render the positions offices “under the government of this commonwealth.” The statement of the court in Commonwealth v. Hawkes, 123 Mass. 525, 528, that “we cannot doubt that the intention of the Constitution, as amended, was to exclude the judges of all organized courts, established to administer the judicial power of the Commonwealth, from sharing in the exercise of the supreme legislative or executive power,” is not inconsistent with this conclusion. The court was there considering the-questian whether a special justice of a police court was within the provision of this Amendment that “No judge of any
The thirtieth article of the Declaration of Rights of the Commonwealth provides for a separation of governmental powers among three departments of government — the legislative, the executive and the judicial — and provides, with like provisions relating to other departments, that “the judicial [department] shall never exercise the legislative and executive powers, or either of them.” By express words these provisions relate to the exercise of powers “in the government of this commonwealth.” The powers that would be conferred on an individual holding the office of judge of the Superior Court by his appointment as a member of a local board or of an appeal board would not be either legislative or executive powers in such government. They would be powers in the government of the United States. Moreover, though a judge of the Superior Court is a part of the judicial department of the government of this Commonwealth, the powers that would be conferred upon him by his appointment as a member of a local board or of an appeal board would be conferred upon him as an individual, and not as a part of the judicial department of the Commonwealth. Compare 1 Op. Atty. Gen. 233. See also Shaw v. Paine, 12 Allen, 293, 296; National Webster Bank v. Eldridge, 115 Mass. 424, 428; In re Bishop’s Estate, 250 Fed. 145. For these reasons, if not for others, this article of the Declaration of Rights does not preclude acceptance by judges of the Superior Court of appointments as members of local boards or of appeal boards. No other express constitutional provision requires consideration.
Such limitations as there may be upon the power of the United States to confer jurisdiction upon courts of this
G. L. (Ter. Ed.) c. 220, § 11, providing that “No person who holds a judicial office under the laws of the United States shall hold any judicial office of this commonwealth, except that of trial justice or justice of 1¿he peace" — whatever may be its effect in the case of a person within its terms — has no application to membership in a local board or an appeal board. In our opinion membership in such a board does not constitute holding “a judicial office under the laws of the United States." No other statute of the Commonwealth purports in general or specific terms to prohibit a judge of the Superior Court from being a member of such board.
No provision of the Constitution of the United States renders incompatible the office of judge of the Superior Court and a position on a local board or on an appeal board. Nor does the Act of Congress now in question by which the President is authorized to create such boards, with certain limitations as to membership therein and certain powers somewhat broadly defined, purport, either specifically or in general terms, to render incompatible the office of judge of the Superior Court of this Commonwealth and the position of member of either of those boards. These offices and positions are not rendered incompatible by reason of any provision of that Act, unless on the ground that the duties imposed by that Act and any “rules and regulations prescribed by the President” under authority thereof upon members of such boards — a matter considered later — have that effect. And we know of no other Federal statute that would have that effect.
There remains for consideration the question whether, apart from constitutional and statutory provisions dealing
It follows from what has been said that in our opinion each of the questions submitted must be answered “No.”
Fred T. Field.
Charles H. Donahue.
Henry T. Lummus.
Stanley E. Qua.
Arthur W. Dolan.
Louis S. Cox.
James J. Ronan.