OPINION OF THE JUSTICES TO THE COUNCIL.

On January 25, 1978, the Justices submitted the following answers to questions propounded to them by the Council.

To the Honorable Council of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their response to the questions set forth in an order adopted by the Council on September 14, 1977, and submitted to us on September 15, 1977.

We summarize the order of the Council addressed to this court. It recited that on August 4, 1977, Governor Michael S. Dukakis had nominated Andrea W. Gargiulo for appointment as chairman of the Boston licensing board to fill

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the unexpired term of Charles Byrne and that, without obtaining the advice and consent of the Council as provided by St. 1906, c. 291, Section 1, the Governor, on September 12, 1977, administered to her the oath prescribed for public officers by Part II, c. 6, art. 1, of the Constitution, as amended by art. 6 of the Articles of Amendment thereto.

The order further recites that St. 1964, c. 740, repealed certain statutory powers of the Council regarding the giving of advice and consent; that the Boston licensing board is a city body operating locally only in the city of Boston; and that, as such, the board is an instrumentality or agency of the city of Boston and apparently not within those certain statutory powers of the Council to advise and consent to appointments to the executive department of State or county government which were repealed.

The order posits that the Governor's appointment and swearing in of Andrea W. Gargiulo without submitting her nomination to the Council for advice and consent appear to constitute a usurpation of the Council's power by the Governor in violation of St. 1906, c. 291, Section 1. The order states that the Council presently entertains grave doubts as to its power and authority in said appointment and the procedures to be employed to prevent the apparent usurpation of its statutory power by the Governor. Moreover, the order states, the apparent usurpation has created a serious and unusual exigency requiring the Council either to resort to the provisions of the Constitution granting it the authority to require opinions of the Justices upon important questions of law and upon solemn occasions or else to "acquiesce supinely in the abandonment and erosion of its statutory power."

With the above preface, the Council addressed to us these two questions:

"1) Does the appointment of Andrea W. Gargiulo as Chairman of the Licensing Board of the City of Boston by His Excellency, Michael S. Dukakis, Governor of the Commonwealth, require the advice and consent of

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the Executive Council, as set forth in Chapter 291, Section 1 of the Acts of 1906, notwithstanding the subsequent enactment of Chapter 740 of the Acts of 1964 repealing certain statutory powers of the Executive Council to advise and consent on certain appointments?

"2) If the answer to the above question is in the affirmative, what procedures, if any, should be legally and constitutionally undertaken

by the Executive Council to exercise its statutory authority to advise and consent to said appointment and to prevent the usurpation of its statutory power by the Governor?"

1. This matter has been before the Justices previously. See Answer of the Justices, 373 Mass. 867 (1977). At that time we asked to be excused from rendering an opinion on the merits because it did not appear from the Council's order that a "solemn occasion" existed, as required by the Constitution. Part II, c. 3, art. 2, of the Massachusetts Constitution, as amended by art. 85 of the Articles of Amendment thereto. The present request discloses a concrete dispute between the Council and the Governor which did not exist previously, see id. at 869, because the Council here raises doubts about the validity of a recent appointment, an appointment which was made after the Answer of the Justices, supra. The Council has no duty to act on a pending matter at the present time, and, for this reason, serious doubt still remains as to whether an advisory opinion might be required of the Justices. See Opinion of the Justices, 261 Mass. 556, 613 (1927). See generally Answer of the Justices, 373 Mass. 867 (1977). Nevertheless, in the situation before us, the statutory power of the Council, if it exists, clearly has been usurped by the Governor, who has made the appointment to which the Council objects. We therefore conclude that we shall not examine further the issue as to whether a solemn occasion exists, and we proceed to submit answers to the questions posed. See Opinion of the Justices, 369 Mass.

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990, 994-995 (1976); Opinion of the Justices, 330 Mass. 713, 727 (1953). Our willingness to give our opinions in this matter arises from the particular circumstances and our action is not to be regarded as establishing a practice. See Opinion of the Justices, 363 Mass. 889, 898 (1973). We do this without intending to depart from the construction heretofore given to the Constitution. See Opinion of the Justices, 330 Mass. 713, 727 (1953).

2. The Council's order raises the question whether that body has any remaining confirmation power over gubernatorial appointments to the Boston licensing board. That power, if it exists, must derive from St. 1906, c. 291, Section 1, which provides in part that "[t]he governor, with the advice and consent of the council, shall appoint from the two principal political parties three citizens of Boston . . . who shall constitute a licensing board for said city . . . ." The Council's order makes reference to St. 1964, c. 740, an act resulting from an initiative petition approved by referendum on November 3, 1964, pursuant to art. 48 of the Amendments to the Constitution, as amended by art. 74 of said Amendments. That act repeals statutory powers of the Council "which interfere with the efficient operation of the executive department of the Commonwealth." The act defines the "executive department" to include "without limitation, all departments, divisions, boards, bureaus, commissions, institutions, councils and offices of state government and of county government, and any instrumentality or agency within or under any of the foregoing, whether or not serving under the governor or under the governor and council, and any independent authority, district, commission, instrumentality or agency, but expressly excluding therefrom the legislative and judicial departments and any instrumentality or agency of a city or town" (emphasis added). St. 1964, c. 740, Section 1.

The first question posed in the Council's order turns on whether the Boston licensing board is an "instrumentality or agency of a city or town" within the meaning of St. 1964, c. 740. We conclude that it is not. Rather, we conclude, the

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board is part of the "executive department" of the Commonwealth, as that term is so broadly defined by the 1964 statute.

Members of the Boston licensing board are appointed by the Governor, not by the municipal government of Boston. St. 1906, c. 291, Section 1. Like other executive departments, the board is required by statute to present its annual report to the Governor. Id. at Section 5. The Supreme Judicial Court has held on more than one occasion that members of the Boston licensing board, and their counterparts in other Massachusetts municipalities, serve as State, not as municipal officers. Dixie's Bar, Inc. v. Boston Licensing Bd., 357 Mass. 699, 701 (1970). See McDonald v. Superior Court, 299 Mass. 321, 324 (1938). Moreover, an examination of both the legislative history of the 1964 act and of the Council's acquiescence in gubernatorial appointments to the board since 1964 mandate the conclusion that the 1964 act repealed so much of the 1906 statute as had granted the confirmation power now asserted by the Council.

With certain specific exceptions not applicable to this opinion, the purpose of the initiative petition adopted by the voters was "to restore the Governor's Council to its function as set forth in the Massachusetts Constitution." Statement of the League of Women Voters to the Joint Legislative Committee on State Administration, March 16, 1964. This purpose, together with the language of St. 1964, c. 740, Section 1 -- that the definition of the term "executive department" shall be "without limitation" -- persuades us that the 1964 statute abolished the requirement that the Governor fill vacancies on the Boston licensing board with the advice and consent of the Council.

This court has often looked to the continued interpretation by a branch of government of a constitutional provision as one of the most helpful guides in construing the State Constitution. See Opinion of the Justices, 368 Mass. 889, 896 (1975); Molesworth v. Secretary of the Commonwealth, 347 Mass. 47, 54 (1964); Fitzgerald v. Selectmen of Braintree, 296 Mass. 362, 367 (1937). Such an aid to construction

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is equally applicable to statutory interpretation in the instant case. We are advised that since the adoption of St. 1964, c. 740, no appointee to the Boston licensing board has received the Council's advice and consent. Yet, during that time, the term of a member of the Boston licensing board has expired, pursuant to St. 1906, c. 291, Section 1, on the first Monday of June in each of the following years: 1966, 1968, 1970, 1972, 1974 and 1976. It seems clear, from its inaction since the adoption of St. 1964, c. 740, that Governors and the Council have treated the Boston licensing board as part of the "executive department," not as an "instrumentality or agency of a city or town."

For the foregoing reasons, we conclude that the appointment of Andrea W. Gargiulo as chairman of the Licensing Board of the city of Boston did not require the advice and consent of the Council. Since we have answered the Council's first question in the negative, we do not reach the second question upon which our opinion was requested.

The foregoing answer is submitted by the Chief Justice and the Associate Justices subscribing hereto on the 25th day of January, 1978.

EDWARD F. HENNESSEY

FRANCIS J. QUIRICO

ROBERT BRAUCHER

BENJAMIN KAPLAN

HERBERT P. WILKINS

PAUL J. LIACOS

RUTH I. ABRAMS