300 Mass. 596 | Mass. | 1938
To The Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit these answers to the questions proposed in an order adopted on the fourth day of April, 1938, a copy whereof is hereto annexed.
These questions call for an interpretation of art. 30 of the Declaration of Rights of the Massachusetts Constitution as applied to the judicial department of government. That article in peculiarly forceful and clear language, declares that in “the government of this commonwealth” the legislative, executive and judicial departments shall forever be kept separate, that no one of them shall ever exercise the powers of either of the others, and that the judicial department “shall never exercise the legislative and executive powers, or either of them.”
The second part of said § 4 relates to clerks of other courts, registers of probate and other county officers, including district attorneys. As to the competency and conduct of these officers, it may be supposed that the Justices of this court have knowledge. This part of the section requires petition, hearing, the showing of “sufficient cause,” and proof that the removal is required by the “public good.” Thus, this part of the statute enjoins two findings as a prerequisite to removal. These officers are not political in the ordinary meaning, but their duties are in the main concerned with administering justice, which is
The proposed addition to the existing § 4 provides that the Justices “may, upon a petition brought by the attorney general, if in their judgment the public good so requires, remove a mayor of any city or a chief of police of any city or town.” These officers are largely municipal or local in their field of operation. In the main, they perform executive duties. They have no intimate connection with the courts or the administration of justice. The removal of such officers cannot rightly be said to be incidental to the judicial function. The reasons which upheld the statute as to the removal of district attorneys and other county officers are entirely wanting in the proposed bill as to the removal of mayors. The proposed addition prescribes no standards for removal except that it must be required by the “public good.” Removal on this ground is an executive function. In this particular the proposed addition to the statute is in marked contrast to the statute as to corrupt practices, which was under consideration in Ashley v. Three Justices of the Superior Court, 228 Mass. 63, and Ross v. Crane, 291 Mass. 28, where the phrase “corrupt practices” was defined with sufficient explicitness in the governing statute.
The power to remove officers is executive in its nature. Murphy v. Webster, 131 Mass. 482, 488. Stiles v. Municipal Council of Lowell, 233 Mass. 174, 181. Courts have no inherent power to remove elected or executive officers. A judicial review may be had of the propriety or good faith
The duties of a mayor in modern conditions are manifold and are in numerous aspects subject to examination.
The conclusion is that, in our opinion, it would be violative of the constitutional prohibition against the exercise of executive powers by the judicial department of government for the courts to undertake the removal of mayors as provided in the proposed bill.
We answer, to the first question, that it is not competent for the General Court to enact legislation as set forth in the bill providing for the removal of a mayor of a city by a majority of the Justices of the Supreme Judicial Court, and that said bill, if enacted into law, would be violative of art. 30 of Part the First of the Constitution of the Commonwealth.
It follows without further discussion, from what has been said, that it is impracticable to answer the second question as to what extent, if any, the power of removal of a mayor as embodied in the proposed bill imposes upon the Justices of the Supreme Judicial Court a function other than judicial, further than to say that such power, in our opinion, lies outside the limits of the judicial department as prescribed by the words of said art. 30 and the practice which has grown up under it.
Arthur P. Rugg.
Fred T. Field.
Charles H. Donahue.
Henry T. Lummus.
Stanley E. Qua.
Arthur W. Dolan.
Louis S. Cox.