OPINION OF THE JUSTICES TO THE ACTING GOVERNOR.

On December 18, 1969, the Justices submitted the following answers to questions propounded to them by the Acting Governor.

To His Honor, the Acting Governor of the Commonwealth:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in a request dated December 11, 1969, and submitted to us on December 12.

Our opinion is sought as to the effect, if any, of St. 1967, c. 844, entitled, "An Act making the terms of certain department heads and others coterminous with that of the governor," on the terms of the present incumbents in certain offices covered by that act.

In view of your statutory duty to reappoint or replace these incumbents as their terms expire, you are in doubt as to the respective dates of expiration, and wish to avoid the chaos which might result from purporting to replace an officer before his term expires.

Each of the first twenty-two sections of St. 1967, c. 844, amended the provision of the General Laws prescribing the term for which a particular officer or group of officers was to be appointed. In virtually every instance these provisions had theretofore specified a term of years running independently of the term of the Governor. Each of the amendments contained in c. 844, Sections 1-22, took the form of

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striking out the existing provision and substituting a provision whereby each such officer would be appointed by the Governor "for a term coterminous with" that of the Governor. Section 23 of c. 844 inserted a new clause (Sixth A) in G. L. c. 4, Section 7, defining the word "coterminous."

Chapter 844 was approved on January 2, 1968, by the Governor whose unexpired term of office you are now filling, and became effective, with a minor exception, ninety days after approval. See art. 48 of the Amendments to the Constitution of the Commonwealth, The Referendum I. No specific reference is contained in c. 844 to the status of incumbents serving unexpired terms of office pursuant to the respective provisions of the General Laws amdended by it. Many incumbents who were serving in such offices on the effective date of c. 844 are still in office. You are uncertain whether the terms expired immediately on the effective date of c. 844, or remain unaffected until their expiration in accordance with the laws in effect at the time of their respective appointments or are extended until the expiration of the term of the Governor in office when c. 844 took effect.

The statutes under which these incumbents hold office are of three types, one example only of each of which is given in each category.

I. The first category is typified by G. L. c. 28, Section 1, which prescribes the terms of the Commissioner and Associate Commissioners of the Metropolitan District Commission. That section, as amended by St. 1967, c. 844, Section 22, reads: "Upon the expiration of the term of office of a commissioner or associate commissioner, his successor shall be appointed by the governor for a term coterminous with that of the governor." Prior to the 1967 amendment, G. L. c. 28, Section 1, contained substantially the same language, except that it then provided for the appointment of each of these officers "for five years." The present commissioner was appointed in 1965 to serve a term ending January 31, 1970, and is still holding that office. The doubt expressed as to him is whether (a) he is a holdover because of St. 1967, c. 844, Section 22, or (b) he is still serving the term for which he was

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originally appointed, or (c) is serving a term coterminous with that of the Governor.

II. The second category of statutes differs from the first in that they omit any reference to "the expiration of the term" of a predecessor in office. An example is G. L. c. 6, Section 56, establishing the terms of members of the Massachusetts Commission Against Discrimination. That section as amended by St. 1967, c. 844, Section 2, provides that "Each member shall be appointed for a term coterminous with that of the governor." Section 56 had theretofore provided, "The term of office of each member of the commission shall be four years." One of the present members was appointed in 1965 for a term ending August 21, 1969. The expressed doubt is whether his term ended (a) on the effective date in 1968 of St. 1967, c. 844, Section 2, or (b) on August 21, 1969, or (c) will not end until the completion of your term as Governor.

III. The third category is where the term of an incumbent officeholder has been the subject of special legislation enacted prior to St. 1967, c. 844, and has not been specifically amended or repealed by c. 844. The Registrar of Motor Vehicles falls in this category. By G. L. c. 16, Section 9, as amended by St. 1967, c. 844, Section 10, the Registrar "shall serve for a term coterminous with that of the governor." Under Section 9, previous to amendment, he was appointed "for a term of five years." The present incumbent was appointed on December 17, 1964, to fill an unexpired five year term. By St. 1966, c. 426, his term was extended to December 17, 1969. It provided, "Notwithstanding the provisions of any general or special law to the contrary, the present registrar of motor vehicles shall serve a full term of five years from the date on which he was appointed." The expressed doubt is whether the incumbent's term which was extended by St. 1966, c. 426, to December 17, 1969, expired (a) on the effective date of St. 1967, c. 844, Section 10, or (b) on December 17, 1969, or will expire (c) at the end of the term of the Governor in office on the effective date of St. 1967, c. 844, Section 10.

The questions are:

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"1. Did (or will) the term of office of the incumbent Commissioner of the Metropolitan District Commission, who was appointed in 1965 for a term ending January 31, 1970, expire (a) on the effective date of St. 1967, c. 844, Section 22, or, if not, (b) on January 31, 1970, or, if not, (c) at the end of the term of the Governor in office on the effective date of St. 1967, c. 844, Section 22?

"2. Did (or will) the term of office of an incumbent member of the Massachusetts Commission Against Discrimination who was appointed in 1965 for a term ending August 21, 1969, expire (a) on the effective date of St. 1967, c. 844, Section 2, or, if not, (b) on August 21, 1969, or, if not, (c) at the end of the term of the Governor in office on the effective date of St. 1967, c. 844, Section 2?

"3. Did (or will) the term of office of the incumbent Registrar of Motor Vehicles, whose term of office was extended, by St. 1966, c. 426, to December 17, 1969, expire (a) on the effective date of St. 1967, c. 844, Section 10, or, if not, (b) on December 17, 1969, or, if not, (c) at the end of the term of the Governor in office on the effective date of St. 1967, c. 844, Section 10?"

In the first category, the Commissioner when appointed in 1965 was to serve a term of five years which was to expire on January 31, 1970. G. L. c. 28, Section 1. Statute 1967, c. 844, Section 22, effective April 1, 1968, provides that his successor shall be appointed for a term coterminous with that of the Governor. His successor has not been appointed. His term is not affected by Section 22 of St. 1967, c. 844, which, in our opinion, was not designed to apply to incumbents. His term will expire, as originally provided, on January 31, 1970. He is not a holdover.

In the second category is the member of the commission who was originally appointed in 1965 for a term ending August 21, 1969. G. L. c. 6, Section 56. Statute 1967, c. 844, Section 2, does not affect the term of an incumbent. It provides that each member shall be appointed for a term coterminous with that of the Governor. No new member was appointed.

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The Commissioner's term ended August 21, 1969, and he is a holdover.

In the third category the incumbent Registrar was appointed on December 17, 1964, to fill the remaining portion of an unexpired five year term, of the last date of which we are not informed. We do not consider any question that the extension by St. 1966, c. 426, for a term of five years from December 17, 1964, was unconstitutional as being an appointment by the Legislature. In St. 1966, c. 426, the incumbent was referred to as "the present registrar." By St. 1967, c. 844, Section 10, the Governor is to "appoint . . . the registrar" for a term coterminous with that of the Governor. That does not affect the term of an incumbent.

We answer the questions as follows:

1. The term of the Commissioner of the Metropolitan District Commission will expire on January 31, 1970.

2. The term of the member of the Massachusetts Commission Against Discrimination expired on August 21, 1969.

3. The term of the Registrar of Motor Vehicles expired on December 17, 1969.

RAYMOND S. WILKINS.

JOHN V. SPALDING.

R. AMMI CUTTER.

PAUL G. KIRK.

JACOB J. SPIEGEL.

PAUL C. REARDON.

FRANCIS J. QUIRICO.