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Strout v. Harper, 72 Me. 270,
v. Martin, 94 U. S. 400,
v. Realty Co., 163 U. S. 427,
Taft v. Adams, 3 Gray, 126, .
tion Co., 192 Mass. 440, Third National Bank of Louisville v. Stone, 174 U. S. 432, United Hebrew Association Benshimol, 130 Mass. 325, . 28, 32 United States v. Allen, 36 Fed. 174, 554 v. American Tobacco Co., 164 Fed. 700, . 234, 237 v. E. C. Knight Co., 156 U. S. 1, 234 v. Joint Traffic Association,
171 U. S. 505,
234, 235 62
v. Trans Missouri Freight Assn., 166 U. S. 290, . 234 Vegelahn v. Gunter, 167 Mass. 92, 528 Vose v. Deane, 7 Mass. 280, . 167 Wabash, St. Louis & Pacific R.R.
Co. v. Illinois, 118 U. S. 557,
Wales v. Belcher, 3 Pick. 508,
13, 248 Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530,
Weston v. City Council of Charlestown, 2 Peters, 449, .
West Roxbury v. Stoddard, 7 Allen,
White v. Creamer, 175 Mass. 567,
301 Williams v. Johnson, 208 Mass. 544, 505 v. Lawrence, 113 Mass. 506, . 176 v. Parker, 188 U. S. 491, . 381 v. Whiting, 11 Mass. 424, . 500 Wilson v. State, 17 Tex. App. 393, . 535 Wisconsin & Michigan R.R. Co. v. 246
Powers, 191 U. S. 379,
. 239 Wood v. Allen, 111 Ia. 97, 127 Worcester v. Boston, 179 Mass. 41, 25 v. Garno, 182 Mass. 243, . 535 v. Marchant, 14 Pick. 510, 290 Wright v. Dresser, 140 Mass. 147, 149, 250 Wurts v. Hoagland, 114 U. S. 606, 540 Wyeth v. Cambridge Board of Health, 200 Mass. 474,
425 Yick Wo v. Hopkins, 118 U. S. 356, 278
. 549 555, 529
The resignation of a public officer, appointed, with the advice and consent of the Council, by the Governor, ecomes effective upon acceptance by the Governor without further action thereon by the Executive Council.
I have the honor to acknowledge the receipt of your letter of the 18th, in which you inform me that at a meeting of the Executive Council, held January 17,
It was voted that the opinion of the Attorney-General be asked as to whether action by the Executive Council is necessary upon the matter of the acceptance of the resignation of an official appointed by His Excellency the Governor and confirmed by the Executive Council.
That such officer has the absolute right of resignation, sub- To the ject to the acceptance thereof by the proper authority, appears 190 24. to be the prevailing doctrine in the United States, and the right of resignation is recognized in the statutes and also in practice. In my opinion it is the law in this Commonwealth that an appointive officer may resign his office, and that such resignation becomes effective upon its acceptance by the appointing power. That being the law, it remains to be determined whether or not the Executive himself is the appointing power, or whether the power of appointment created by statute in any particular case is shared by the Executive Council.
The Constitution of the Commonwealth defines the scope and the duty of the Council as follows (chapter II., section III., article I.):
There shall be a council for advising the governor in the executive part of the government, . . . and the governor, with the said councillors, or five of them at least, shall and may, from time to time, hold and keep a council, for the ordering and directing the affairs of the commonwealth, according to the laws of the land.
The power of the Governor to appoint is mentioned in the Constitution only in connection with judicial officers, as enumerated in chapter II., section I., article IX., which says that such officers "shall be nominated and appointed by the governor, by and with the advice and consent of the council." The appointive power, has however, been repeatedly vested in the Governor by the Legislature.
In the case of removals from office, it seems that an officer appointed by the Governor, with the advice and consent of the Council, cannot be removed by the Executive alone, and that the consent of the Council is equally necessary for such action upon the part of the Executive. The removal of a public officer, however, is clearly to be distinguished from his voluntary resignation; and if he possesses an absolute right to resign, subject to acceptance by the appointing power, the resignation becomes effective upon such acceptance, without action on the part of any official body whose approval may be required either for appointment or removal.
It is clear that the Governor is the appointing power, and a resignation tendered to and to be accepted by him becomes effective upon such acceptance, without any action upon the part of the Council; and that the Constitution does not contemplate, and probably does not authorize, any action by the Council beyond its approval of an appointment or concurrence in a removal made by the Executive.
I am therefore of opinion that no action by the Executive Council is necessary upon the matter of the acceptance of the resignation of an official appointed by His Excellency the Governor and confirmed by the Executive Council.
DISTRICT, POLICE AND MUNICIPAL COURTS - JUSTICES
St. 1904, c. 453, which established the salaries of the justices, clerks and assistant clerks of certain district, police and municipal courts upon a basis of population, expressly excepted from such classification the justices and clerks of the district courts of Franklin County, and such exception was not affected by St. 1905, c. 339, providing for a readjustment of such salaries by the county treasurers of the several counties, after the taking of the decennial census of the year 1905.
It follows, therefore, that the treasurer of the county of Franklin is not authorized to readjust the salaries of the officers of the district courts of such county upon any basis of population.
Accounts. 1906 January 30.
I beg to acknowledge the receipt of your favor of the 19th, To the enclosing a letter from the treasurer of Franklin County, in of County which he states that he has readjusted the salaries of the officers of the district courts of that county, and submits the question. whether his action as stated will meet with your approval. You ask my opinion as to his duties under St. 1905, c. 339, § 1, taken in connection with St. 1904, c. 453.
St. 1904, c. 453, was an act to establish the salaries of the justices, clerks and assistant clerks of certain police, district and municipal courts. By section 1 the district, police and municipal courts, other than the municipal court of the city of Boston, were divided into ten classes, according to population, for the purpose of determining the salaries of the officers thereof, and in each case the districts affected were included under the appropriate class, as, for instance, Class G, which is as follows:
Courts whose judicial districts have a population of from twenty thousand to thirty thousand, to wit, the first district court of southern Worcester, the district court of central Berkshire, the district court of northern Berkshire, the first district court of northern Worcester, the fourth district court of Bristol, the second district court of eastern Worcester, the district court of western Worcester, the district court of western Norfolk and the first district court of southern Middlesex; salaries: Justice, fifteen hundred dollars; clerk, nine hundred dollars.
Section 2 of this act is as follows:
The justices and clerks of the district courts in the county of Franklin shall receive from said county annual salaries as follows: -The justice of the district court of Franklin, fifteen hundred dollars; the clerk, nine hundred dollars; the justice of the district court of eastern Franklin, eight hundred dollars; the clerk, four hundred and eighty dollars.
The justice and clerk of the district court of eastern Hampshire shall receive from the county of Hampshire annual salaries as follows: The justice, one thousand dollars; the clerk, six hundred dollars.
It appears, therefore, that the justices and clerks of the district courts in the county of Franklin, as well as the justice and clerk of the district court of eastern Hampshire, were excepted from the classification established by section 1, and were not affected by its provisions with regard to population.
St. 1905, c. 339, § 1, provides for a readjustment of salaries after the taking of the decennial census of the year 1905, "so as to correspond with the schedule of salaries provided for by chapter four hundred and fifty-three of the acts of the year nineteen hundred and four." This readjustment is to be made in each case by the county treasurer of the county concerned, in accordance with the provisions of the chapter above referred to.
Acting under this statute, the county treasurer of the county of Franklin has made a readjustment of the salaries of the officers of the district courts of that county, and now desires to be informed by you whether or not such readjustment is to be approved by you.
I am of opinion that St. 1905, c. 339, cannot be construed to amend St. 1904, c. 453, except in so far as the classification of specified districts in the classes established by section 1 may be changed by the new basis of computation. The obvious purpose of the act is to provide that instead of the previously existing tables of population the later tables established by the census of 1905 are to be used in determining what special districts are to be included under any of the ten classes. The Legislature has, however, seen fit to exclude the county of Franklin and one district in the county of Hampshire from the provisions of section 1, and to establish fixed salaries for the