294 Mass. 623 | Mass. | 1936
To The Honorable the House of Representatives of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit these answers to questions in an order adopted June 3, 1936, and received on June 5, 1936, copy whereof is hereto annexed. These questions' relate to a pending order to the effect that the “General Court judges it to be necessary that it assemble again during the current year . . . and that the time for so assembling be fixed by the President of the Senate and the Speaker of the House of Representatives, and that said President and Speaker are hereby authorized and directed to call the General Court to assemble ... at such time in the autumn of the current year as they shall deem suitable and convenient."
.It was provided by the Constitution, c. 1, § 1, art. 1:
Thus three methods are prescribed for convening the General Court: (1) a constitutional mandate to assemble on a specified date in each year, (2) authority in the Governor with advice of the Council to call it into session at other times, and (3) power in itself to assemble at other times upon judging that course to be necessary.
This power of self determination of the necessity of assembling has never been exercised by the General Court so far as we can ascertain. We find nothing similar to this provision in the history of Massachusetts under the Colonial and Provincial charters.
The words of the Constitution are clear. They must be given effect. They cannot be lost by non-user. However much occasion for resort to the power thus conferred may be affected by other provisions of the Constitution, as to recesses by the General Court, art. 52 of Amendments, or adjournments or prorogations, c. 2, § 1, arts. 5 and 6, the power itself is not cut down. There was discussion of this clause in the Constitutional Convention of 1853. Suggestions were then put forward to account for its insertion in the organic law. But no question was raised as to its force or meaning. Yol. 3 of Debates of Constitutional Convention (1853) 666 et seq. It is a declaration of the in
The Constitution contains no description of method by which the power of the General Court to convene itself may be exercised. There is force in the idea that the power was intended to be used in cases of emergency and upon occasions which could not be foreseen during the regular sessions in time to prepare for them. No opinion is intimated on that point. It is plain from the Constitution as a whole that practically continuous sessions of the General Court were not contemplated. There is in the language creating this power no limitation of the subjects which may be considered at a session convened by the General Court itself. It may deal with all matters properly before it.
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. Ordinarily, persons scattered through the Commonwealth, although elected as members of the Senate and House of Representatives, do not constitute the General Court; they must be convened according to law in order to exercise any functions as a General Court. There always have been constitutional provisions establishing the number of members of each branch of the General Court necessary to make a quorum for the transaction of business. C. 1, § 2, art. 9; c. 1, § 3, art. 9; arts. 21 and 33 of the Amendments.
We approve the statement that “when a constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one or the performance of the other.” 1 Cooley on Constitutional Limitations (8th ed.) 138, 139. Under this principle we think that the General Court, being already organized and in session, may also judge necessary
To judge that a necessity exists imports personal responsibility on the part of the members of the General Court which cannot be transferred to its presiding officers. It is the judgment of the General Court alone which is effective to "judge necessary” its assembling.
We answer "Yes” to questions 1 and 4. We answer “No” to question 2. As to question 3, in view of the foregoing discussion we give a qualified affirmative answer, provided appropriate action to that end be taken by the General Court while in session.
Arthur P. Rugg.
John C. Crosby.
Edward P. Pierce.
Charles H. Donahue.
Henry T. Lummus.
Stanley E. Qua.
I agree with the answers to questions 1, 2 and 4 in the opinion signed by the Chief Justice. But I think that question 3 should be answered “No.” In my opinion under the provisions of the Constitution for the assembling of the General Court “at such other times as they shall judge necessary” (Constitution, c. 1, § 1, art. 1; art; 10.of the Amendments) both the necessity of assembling and the time thereof must be determined by the General Court when in session.
Fred T. Field.