240 Mass. 611 | Mass. | 1922
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit , these answers to the questions in the order of April 20, 1922.
In substance the single inquiry presented is whether under the Constitution it is within the power of the General Court to provide by statute that the several district attorneys shall be members of the bar of the Commonwealth.
There is mention of county attorney in art. 8 of the Amendments to the Constitution, where it is said that he and other officers there named shall not continue to hold such office after being elected a member of the Congress of the United States and accepting that trust. By art. 19 of the Amendments the Legislature is given power to prescribe by general law for the election of district attorneys by the people of the several districts and to determine their terms of office. These are the only references to county or district attorneys in the Constitution or any of its amendments. In all other respects the Constitution is silent concerning
The General Court has full power to make all manner of wholesome and reasonable laws not repugnant to the Constitution, to provide for the naming and settling of all civil officers not provided for in the Constitution, and to set forth the duties, powers and limits of the several officers of the Commonwealth not in any manner contrary to the Constitution, c. 1, § 1, art. 4. “In the exercise of this power the Legislature has the right to prescribe the qualifications of all officers and servants of the public not provided for in the Constitution.” Opinion of the Justices, 138 Mass. 601, 603. Graham v. Roberts, 200 Mass. 152. Opinion of the Justices, 216 Mass. 605.
The General Court, therefore, has the power to fix reasonable qualifications for those who shall hold the office of district attorney. A statute establishing as an essential prerequisite that he shall be a member of the bar of this Commonwealth could not be pronounced unreasonable in a constitutional sense. It is difficult to conceive of one capable of performing the duties of a district attorney unless he were a member of the bar. This was recognized in Commonwealth v. Connecticut River Railroad, 15 Gray, 447, where it was said at page 449, “it was within the authority of the court, in the exercise of its discretionary power, to allow a dis
There is a considerable body of authority which holds that the use of the word “ attorney” in the title of the office carries with it the meaning that the incumbent must be a member of the bar. It has been said that “To be a district attorney, he must be a lawyer. He is not an attorney in fact. He must be an attorney at law. The. name of the officer implies it. He is the attorney of the state in a certain district, to distinguish him from an attorney general.” State v. Russell, 83 Wis. 330, 332, 333. People v. May, 3 Mich. 598. Enge v. Cass, 28 No. Dak. 219. Danforth v. Egan 23 So. Dak. 43. The power of the Legislature to establish such a qualification seems to be recognized in other jurisdictions. Hanson v. Grattan, 84 Kans. 843, 845, 847. State v. Sanderson, 280 Mo. 258, 261.
It is provided by art. 9 of the Declaration of Rights that “all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.” There is nothing in the true scope and effect of this article which forbids the enactment of the proposed legislation. Where qualifications of voters or officers are fixed by the Constitution the Legislature cannot add to or subtract from them. Kinneen v. Wells, 144 Mass. 497. The right of all persons equally to be selected for public employment in instances where the Constitution does not establish the qualifications is subject to reasonable regulation by the Legislature as to qualifications. Before the adoption of the Nineteenth Amendment to the United States Constitution conferring upon all citizens the right to vote regardless of sex, it was held permissible to require or to permit the appointment or election of women to many public offices. Opinions of the Justices, 115 Mass. 602; 138 Mass. 601, 603. The Legislature, in establishing offices not required by the Constitution, has frequently prescribed that the persons eligible for such offices or some of them shall possess specified qualifications bearing such relation to the duties imposed as to tend to secure the knowledge, experience and character requisite for the satisfactory performance of the duties, provided it is open to any person to secure the required qualifications. Brown v. Russell, 166 Mass. 14, 17.
It is open to any citizen, possessed of sufficient acquirements and qualifications and of good moral character, who conforms to standing laws, to become and to remain a member of the bar of this Commonwealth. G. L. c. 221, §§ 37, 38, 40, 41. All this is in conformity to the Constitution and creates no favored class. Hewitt v. Charier, 16 Pick. 353. Commonwealth v. Houtenbrink, 235 Mass. 320. Commonwealth v. Beaulieu, 213 Mass. 138. Lawrence v. Board of Registration in Medicine, 239 Mass. 424.
Since the power to prescribe the qualification specified in the proposed bill is vested in the General Court, such a qualification, if prescribed by law, would stand on the same footing as other provisions of the law regulating elections. The voters would not be at liberty under the law to disregard it. Officers charged with the preparation of ballots and the conduct and the declaration of results of elections would be obliged to conform to it. Miner v. Olin, 159 Mass. 487. Cole v. Tucker, 164 Mass. 486. The same result would follow if the word “district-attorneys” as used in the Constitution imports membership in the bar of the Commonwealth.
Each question is answered in the affirmative.
Mr. Justice Pierce has not participated in the deliberations of the Justices upon these questions and does not join in this opinion and asks to be excused.
Arthur P. Rugg.
Henry IC. Braley.
Charles A. DeCourcy.
John C. Crosby.
James B. Carroll.
Charles F. Jenney.