369 Mass. 990 | Mass. | 1976
To His Excellency, the Governor of the Commonwealth:
The Justices of the Supreme Judicial Court respectfully reply to the questions set forth in the Governor’s request dated December 4, 1975, and transmitted to the Justices on December 5, 1975.
In substance, the request states the following: On November 8, 1975, the Legislature enacted St. 1975, c. 684, which “purports in sections 8A and 25C ... to make certain approvals by the House and Senate Committees on Ways
Accordingly, the Governor requests the opinion of the Justices on the following questions:
“1. Does exercise of the approval power granted by section 25C to the House and Senate Committees on Ways and Means constitute exercise of an executive power; and, if so, then is it constitutionally permissible for the General Court to grant to Committees appointed by it and its officers such executive power?
“2. Does exercise of the approval power granted by section 25C to the House and Senate Committees on Ways and Means constitute exercise of a legislative power; and, if so, then is it constitutionally permissible for the General Court to delegate to Committees appointed by it and its officers such legislative power?
“3. Does exercise of the powers to approve certain schedules and salary expenditures granted by section 8A to the House and Senate Committees on Ways and Means constitute exercise of executive powers; and, if so, then is it constitutionally permissible for the General Court to grant to Committees appointed by it and its officers such executive powers?
We invited submission of briefs from interested persons. We received briefs from the Governor and the Attorney General, arguing against the constitutionality of §§ 8A and 25C. The counsel to the Senate and the counsel to the House of Representatives submitted a brief in support of the constitutionality of those sections, as did the American Federation of State, County and Municipal Employees, AFL-CIO. One further brief, submitted by Alexander J. Celia, a member of the Massachusetts Bar and a professor at Suffolk University Law School, argued that we should decline to answer questions no. 3 and no. 4 and declare § 25C to be constitutional.
1. The concept of separation of powers is fundamental to our form of government, and is embodied in art. 30 of the Declaration of Rights.
The power so delegated is not the legislative power of appropriation but the executive power of expenditure of appropriated funds. In Opinion of the Justices, 302 Mass. 605, 614-616 (1939), the Justices thought that the Legislature could appropriate money to meet “unforeseen conditions,” that executive or administrative officers could be permitted to exercise judgment and discretion within a wide field in such cases, and that the power so delegated was not the legislative power of appropriation but the executive power of expenditure. Cf. Opinion of the Justices, 368 Mass. 831, 838-839 (1975).
Under § 25C “critical need” is to be certified by the Commissioner of Administration, an executive officer, and is to be verified by the House and Senate committees on ways and means, composed of legislative officers. What is required is not merely verification that the Commissioner has made the required certification, but “verification of said critical need” by the legislative committees. We read the statute, as do all the briefs, as requiring the exercise of judgment and discretion by legislative officers.
We answer the first part of question 1, “Yes,” and the second part, “No.”
2. What we have said above sufficiently indicates that the approval power granted to the legislative committees by § 25C is not a legislative power. We point out, however, that in Opinion of the Justices, 302 Mass. 605, 619 (1939), the Justices said, “If the power conferred by the bill on this recess body were to be regarded as legislative in nature, it would be a legislative power of appropriation which cannot be delegated.” Cf. Attorney Gen. v. Brissenden, 271 Mass. 172, 180 (1930).
We answer the first part of question 2, “No,” and no answer to the second part is required.
3. As to question 3, it is argued that the request does not show that any matter involving the constitutionality of § 8A
Money received from the Federal government as reimbursements is subject to the legislative power of appropriation. Opinion of the Justices, 334 Mass. 716, 718 (1956). Money held by the Commonwealth in trust is not. Opinion of the Justices, 349 Mass. 804, 807-808, 810 (1965). We are not now asked to give an opinion as to the application of those principles to Federal grants. See 8 Op. Att’y Gen. 191, 194 (1926); MacManus v. Love, 179 Colo. 218 (1972); Navajo Tribe v. Arizona Dep’t of Administration, 111 Ariz. 279 (1975); State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 370 (1974). Cf. State ex rel. Black v. State Bd. of Educ., 33 Idaho 415, 427 (1921).
What we have said above as to § 25C is equally applicable to the requirement in § 8A that expenditures be approved in advance by the House and Senate committees on ways and means.
We answer the first part of question 3, “Yes,” and the second part, “No.” We answer the first part of question 4, “No,” and no answer is required to the second part.
In summary, we answer:
question 1, “Yes” to the first part, “No” to the second;
question 2, “No” to the first part;
question 4, “No” to the first part.
Paul C. Reardon
Francis J. Quirico
Robert Braucher
Edward F. Hennessey
Benjamin Kaplan
Herbert P. Wilkins
“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.”
“SECTION 25C. All positions vacant or which become vacant other than positions essential for the care of patients, on or after June thirtieth, nineteen hundred and seventy-five, shall remain vacant during the fiscal year nineteen hundred and seventy-six; provided, that vacancies for
“SECTION 8A. Notwithstanding any provision of general or special law to the contrary, federal funds received by the commonwealth or any department, agency or subdivision of a department shall not be available for the payment of the salary for any position unless such expenditure has been approved in advance by the house and senate committees on ways and means and is based upon a schedule of positions and salary rates approved by said committees, a copy of which shall be deposited with the bureau of personnel. ...”