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08/24/77 ANSWER JUSTICES TO COUNCIL

August 24, 1977

ANSWER OF THE JUSTICES TO THE COUNCIL


Edward F. Hennessey, Francis J. Quirico, Robert Braucher, Benjamin Kaplan, Herbert P. Wilkins, Paul J. Liacos, Ruth I. Abrams.

SYLLABUS BY THE COURT

Constitutional Law, Opinions of the Justices. Supreme Judicial Court, Opinions of the Justices.

The Justices declined to give their opinions to the Council on a question whether the appointment of an individual as a member of the licensing board for the city of Boston by the Governor requires the advice and consent of the Council, as set forth in c. 291, § 1 of the Acts of 1906, after the enactment of c. 740 of the Acts of 1964 repealing certain statutory powers of the Council, where the order setting forth the question stated only that "each of the three present members of the . . . is currently performing the important duties of his office by virtue of appointment made by the Governor . . . without the advice and consent of the Governor's Council"; the circumstances in which the question was submitted did not constitute a "solemn occasion" under Part II, c. 3, art. 2, as amended by art. 85 of the Amendments to the Massachusetts Constitution. [868-872]

On August 24, 1977, 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 response to the question set forth in an order adopted by the Council on June 29, 1977, and submitted to us on July 1, 1977, in the following form:

"TO THE HONORABLE THE JUSTICES OF THE SUPREME JUDICIAL COURT FOR THE COMMONWEALTH OF MASSACHUSETTS

"WHEREAS, each of the three present members of the Licensing Board for the City of Boston is currently performing the important duties of his office by virtue of appointment made by the Governor of the Commonwealth without the advice and consent of the Governor's Council, and

"WHEREAS, in accordance with Article LXXXV of the Amendments to the Constitution of the Commonwealth, the Governor's Council has the authority to require the opinions of the Justices of the Supreme Judicial Court upon important questions of law and upon solemn occasions, and

"WHEREAS, under Chapter 291, Section 1 of the Acts of 1906, an appointment as member of the Licensing Board for the City of Boston requires the advice and consent of the Governor's Council, and

"WHEREAS, Chapter 740 of the Acts of 1964 repealed certain statutory powers of the Governor's Council, and

" WHEREAS, it appears that the Licensing Board for the City of Boston is a 'city body' (see Dixie's Bar, Inc. v. Boston Licensing Board, 357 Mass. 699, 702) and is, in any event, an instrumentality or agency of a city and, therefore, not within the executive department of state or county government as defined in Chapter 740, Section 1 of the Acts of 1964, therefore be it

"ORDERED: That the opinion of the Justices of the Supreme Judicial Court be requested by the Governor's Council upon the following important question of law:

"Whether the appointment of an individual as a member of the Licensing Board for the City of Boston by the Governor of the Commonwealth requires the advice and consent of the Governor's Council, as set forth in Chapter 291, Section 1 of the Acts of 1906, since the subsequent enactment of Chapter 740 of ...


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