ANSWER OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.

On April 10, 1946, the House of Representatives adopted, and on April 15, 1946, transmitted to the Justices, the following order:

WHEREAS, Under chapter ninety-four of the acts of eighteen hundred and fifty-two, the original charter of the city of Springfield, and chapter two hundred and seventy of the acts of eighteen hundred and fifty-seven, chapter two hundred and ten of the acts of nineteen hundred and twenty-five and other laws applicable to said city, and also under section one of chapter twenty-one of the revised ordinances of said city, effective October first, nineteen hundred and forty-five, its school committee consists of the mayor of said city, ex officio, and nine other persons; and

WHEREAS, For a number of years the chairman of the school committee has been elected by the committee from its own members; and

WHEREAS, Since the first Monday of January of the current year, the mayor of said city has claimed to be the chairman of said committee, ex officio, on the ground that section one of chapter twenty-five of the acts of eighteen hundred and eighty-three provides that the "mayor of the city of Springfield shall be ex officio a member and chairman of the school committee of said

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city" and that the provisions of said section are still fully effective; and

WHEREAS, A substantial number of said committee maintain that the provisions of chapter one hundred and forty-one of the acts of nineteen hundred and thirty-six impliedly repeal that part of said section one which provides that the mayor shall be ex officio chairman of the school committee of said city; and

WHEREAS, By reason of this difference of opinion said school committee has become deadlocked and unable to function properly, all to the great disadvantage of the city of Springfield; and

WHEREAS, There is pending before the House committee on Rules, a petition of LeRoy H. Sturm (accompanied by a bill) which prays for legislation relative to the office of chairman of the school committee of the city of Springfield, a copy of which petition and bill are hereto annexed, now therefore be it

ORDERED, That the opinions of the honorable the justices of the supreme judicial court be required by the house of representatives on the following important questions of law:

1. Since the enactment by the general court of chapter one hundred and forty-one of the acts of nineteen hundred and thirty-six has the mayor of the city of Springfield been ex officio the chairman of the school committee of said city?

2. Does section seven of said chapter one hundred and forty-one repeal so much of section one of chapter twenty-five of the acts of eighteen hundred and eighty-three as provides that the mayor of the city of Springfield shall ex officio be chairman of the school committee of said city?

On April 26, 1946, the Justices sent the following answers:

To The Honorable the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit this reply to an order adopted by the House of

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Representatives on April 10, 1946, and transmitted to the Justices on April 15, 1946. A copy of the order is hereto annexed, together with a copy of a bill pending before the House providing merely that "Chapter twenty-five of the acts of eighteen hundred and eighty-three, entitled `An Act Providing That the Mayor of the City of Springfield shall be Ex Officio a Member and Chairman of the School Committee', is hereby repealed."

The questions submitted are as follows: "1. Since the enactment by the general court of chapter one hundred and forty-one of the acts of nineteen hundred and thirty-six has the mayor of the city of Springfield been ex officio the chairman of the school committee of said city? 2. Does section seven of said chapter one hundred and forty-one repeal so much of section one of chapter twenty-five of the acts of eighteen hundred and eighty-three as provides that the mayor of the city of Springfield shall ex officio be chairman of the school committee of said city?"

In accordance with principles that have been stated frequently, under the Constitution the Justices have no right to answer these questions. Their duty with respect to rendering opinions to the legislative or executive department is defined by the Constitution, Part II, c. 3, art. 2, as follows: "Each branch of the legislature, as well as the governor and council, shall have authority to require the opinions of the justices of the supreme judicial court, upon important questions of law, and upon solemn occasions." In Opinion of the Justices, 314 Mass. 767, 770, it was said, quoting from previous answers of the Justices: "`It has been frequently pointed out that the Justices ought not to give opinions under this provision of the Constitution unless required to do so by its terms.' Answer of the Justices, 290 Mass. 601, 603. The `Justices are forbidden to go beyond the requirement of the Constitution. The Constitution not only limits their duty but bounds their right to express opinions.' Answer of the Justices, 214 Mass. 602, 603. `While it is our duty to render opinions in all those cases in which either branch of the Legislature or the Governor and Council may properly require them, it is not the less our

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duty, in view of the careful separation of the executive, legislative, and judicial departments of the government, to abstain from doing so in any case which does not fall within the constitutional clause relating thereto.' Answer of the Justices, 150 Mass. 598, 601."

The questions now submitted do not fall within the governing constitutional clause, Part II, c. 3, art. 2. These questions relate merely to the existing law bearing upon the subject matter of the pending bill. In Opinion of the Justices, 314 Mass. 767, the Justices had before them an order by which three questions were submitted. The first question related to the authority of the Supreme Judicial Court under existing law to review or to provide for the review of criminal contempt cases. The Justices said, pages 771-772: "The constitutional power and duty of the Justices to render opinions to a branch of the legislative department do not extend to making an exposition of existing law except so far as may be necessary in answering specific questions as to the power and authority of the Legislature to enact a pending bill. Answer of the Justices, 217 Mass. 607, 612-613. See also Answer of the Justices, 148 Mass. 623, 625-626. It may well be that advice as to the authority of the Supreme Judicial Court to review or to provide for the review of criminal contempt cases would aid the Legislature in determining the wisdom or expediency of proposed legislation. But questions bearing only upon the wisdom and expediency of proposed legislation -- and not upon the power and authority of the Legislature to pass such legislation -- cannot properly be answered by the Justices. Opinion of the Justices, 301 Mass. 615, 617. The clause of the Constitution requiring us to give opinions is, therefore, not operative with respect to the first question submitted, and we respectfully ask to be excused from answering it."

The principle laid down in Opinion of the Justices, 314 Mass. 767, 771-772, was somewhat more fully stated in Answer of the Justices, 148 Mass. 623, 627. The Justices had under consideration an order of the House relating to the construction of certain sections of the Public Statutes. The Justices said, page 627: "There is no doubt whatever

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as to the power of the House to pass any bill, within the limits of the Constitution, which it sees fit, in amendment or alteration of these sections. Our opinion, if given, would not in any way affect the power of the House to repeal these sections, or to amend them, or declare the meaning of them, if there is doubt about the meaning. Whatever it might be, the House might still think that it was its duty to make such changes as a majority of its members think are necessary, in order that the intention of the Legislature should be clearly expressed. The only exigency which seems to exist for requiring our opinion is that members of the House differ in their views as to the construction of the statute, and, if our opinion is given, it may affect the views of some members as to the necessity or propriety of amending it. As we have before said, this is not an unusual exigency, and does not create or present a solemn occasion within the fair meaning of the Constitution, so that we can properly give an ex parte opinion upon the construction of the statute in question. For these reasons, imperfectly stated, we respectfully beg to be excused from further answering the questions proposed by the House." In Answer of the Justices, 150 Mass. 598, 601, the Justices returned a like answer quoting from Answer of the Justices, 148 Mass. 623, 627, and adding, "We are unable to distinguish the question now presented to us, so far as our duty to answer it is concerned, from those then considered," and "we cannot perceive that any reason therefor exists, except that arising from different views of members of the House as to the construction of existing statutes, which it is in the power of the Legislature to alter, amend, or repeal at its pleasure. An opinion rendered on the construction of such statutes might seriously, even if indirectly, affect private rights, and the occasion does not appear to us to be one of those contemplated by the Constitution."

The principle previously stated by the Justices, as above set forth, in our opinion is applicable to the questions now submitted and requires the conclusion that the clause of the Constitution requiring us to give opinions is not operative with respect to these questions and that we are not

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authorized to answer them. No exigency seems to exist for requiring our opinion unless it is to be inferred from the order that members of the House are in doubt or differ in their views as to the construction of the existing statutes relating to the school committee of the city of Springfield which it is in the power of the Legislature to alter, amend or repeal at its pleasure. The existence of such doubt or difference in view would not "create or present a solemn occasion within the fair meaning of the Constitution" so that we can properly give an opinion upon the construction of these statutes.

We, therefore, respectfully ask to be excused from answering these questions.

FRED T. FIELD.

HENRY T. LUMMUS.

STANLEY E. QUA.

ARTHUR W. DOLAN.

JAMES J. RONAN.

RAYMOND S. WILKINS.

JOHN V. SPALDING.

APRIL 29, 1946.