Opinion
November 30, 1965
Constitutional Law, Opinions of the Justices. Supreme Judicial Court, Opinions of the Justices.
The Justices asked to be excused from answering a question propounded to them by the Council with respect only to a matter on which it already had acted and as to which it had no present duty.
On November 30, 1965, the Justices submitted the following answer to a question propounded to them by the Council.
To the Honorable Council of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit this answer to the question contained in an order of the Honorable Council adopted on November 17, 1965, and transmitted to us on November 24, 1965. See Part II, c. 3, art. 2, of the Constitution amended by art. 85 of the Articles of Amendment as ratified by referendum on November 3, 1964. A copy of the order is all that was transmitted.
The order recites in part:
"WHEREAS, the General Laws of the Commonwealth provide in part at Section 18 of Chapter 29 'except as otherwise provided, no money shall be paid by the commonwealth without a warrant from the governor drawn in accordance with an appropriation then in effect, and after the demand or account to be paid has been certified by the comptroller . . .,' and
"WHEREAS, the Comptroller did not approve a certain payment by the Treasurer and Receiver-General of the Commonwealth pursuant to a warrant under the hand of the Governor to which the Executive Council had given its advice and consent, and
"WHEREAS, the refusal of the Comptroller to approve said payment has given rise to the question whether the Treasurer and Receiver-General may legally make payments from the Treasury of the Commonwealth without the approval of the Comptroller . . ."
The question is:
"Whether the Treasurer and Receiver-General can legally, in view of the provisions of Chapter 29, Section 18 of the General Laws, make payments from the Treasury of the Commonwealth without the approval of the Comptroller?"
It will be noted that there is no duty presently confronting the Council as to the performance of which it is in doubt. Whatever the payment may be which has not been made, and as to which we have not been informed, it has already been approved by the Council, which has given its advice and consent. In other words, we are asked for our views with respect to an action which has already been taken.
Part II, c. 3, art. 2, however, restricts the authority to require opinions of the Justices to "important questions of law, and upon solemn occasions." This is a limitation of jurisdiction which has always been strictly construed. In Answer of the Justices, 214 Mass. 602, 603, it was said, "[T]he 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." This view has been frequently expressed. See Answer of the Justices, 150 Mass. 598, 601; Answer of the Justices, 290 Mass. 601, 603; Opinion of the Justices, 314 Mass. 767, 770; Answer of the Justices, 319 Mass. 731, 733-734; Answer of the Justices, 346 Mass. 787, 790.
We respectfully ask to be excused from answering this question.
RAYMOND S. WILKINS JOHN V. SPALDING ARTHUR E. WHITTEMORE R. AMMI CUTTER PAUL G. KIRK JACOB J. SPIEGEL PAUL C. REARDON