Page images
PDF
EPUB

possible that the provision of section 2, that the rule of damages shall be the assessed valuation, would be unconstitutional. In exercising the power of eminent domain the Legislature has no authority to designate an arbitrary amount which must be accepted by the person whose land is taken as damages for the taking, or to prescribe rules or principles upon which damages shall be computed. See Monongahela Navigation Co. v. United States, 148 U. S. 312; In re Opinion of the Justices, 66 N. H. 629; Newburyport Water Co. v. Newburyport, 85 Fed. Rep. 723. If the provision of section 2 that "said board of health

. . may take . . . any tract or tracts of wet lands. . . by eminent domain, at the assessed valuation of said lands," is to be regarded as an assessment of the damages occasioned by said taking, it might well be found objectionable upon constitutional grounds. The designation of a fixed sum to be paid as damages for the taking of land by eminent domain, even where an alternative is provided by an appeal to a jury, is, so far as I am aware, without precedent; but if the amount so fixed may be regarded as an offer of settlement which may or may not be accepted by the person whose land is taken, and whose constitutional rights to a just compensation for his property are protected by a further provision that "any person aggrieved by a taking as aforesaid may have his damages assessed in the manner provided by law in respect to the taking of land for public parks," the constitutional requirement in the premises might be satisfied, since it is at least doubtful if any offer or award is required where provision is made for an ultimate determination of damages by a jury. See Hamlin v. New Bedford, 143 Mass. 192; Bent v. Emery, 173 Mass. 495; St. 1898, c. 278, § 4. And see Attorney-General v. Old Colony Railroad, 160 Mass. 62, 90.

Again, replying in the precise phraseology of the fourth inquiry of the Honorable Senate, it is, in my opinion, possible that section 6, and especially lines 5 and 6, would be unconstitutional. If the exploitation and operation of marl, peat or other deposits of commercial value would properly constitute an entrance by the Commonwealth "as a competitor into the field

To the House of Representatives.

1912 May 20.

of industrial enterprise, with a view either to the profit that could be made through the income to be derived from the business, or to the indirect gain that might result to purchasers if prices were reduced by governmental competition," it would clearly be unconstitutional. Opinion of the Justices, 182 Mass. 605, 607. If, on the other hand, such exploitation and operation were merely temporary, undertaken in connection with the development of other adjacent or similar lands acquired for a public purpose, and were intended only for the purpose of reducing the cost of reclaiming the remainder of such land, such work might well be held to be a proper and incidental element of economy in the general work of reclamation.

CONSTITUTIONAL LAW-VOLUNTEER MILITIA - ADJUTANT
GENERAL TERM OF OFFICE.

The provision of chapter II., section I., Article X. of the Constitution of the Commonwealth, that "the governor shall appoint the adjutant general," does not impose a limitation upon the authority of the General Court to fix and determine the tenure of office of the adjutant general, and a provision in a proposed act having for its purpose the revision of the organization of the volunteer militia, that "the term of office of the adjutant general shall be five years from the passage of this act," would not be unconstitutional.

By an order adopted by the Honorable House of Representatives on May 1, 1912, I am requested to inform the House of Representatives whether in my opinion that provision of House Bill No. 2221 entitled "An Act to revise the organization of the Massachusetts Volunteer Militia," which provides that "the term of office of the adjutant general shall be five years from the passage of this act," is constitutional and legal.

The proposed act, which amends St. 1908, c. 604, § 12, by striking out the whole of said section and substituting a new section therefor, among other things provides that—

The military and administrative staff of the commander-in-chief shall consist of:

The adjutant general, with the rank of brigadier general, who shall, ex officio, be chief of staff, such officers of the United States army or navy

as may be detailed as assistant chiefs of staff, together with the chiefs of the inspector general's department, judge advocate general's department, quartermaster's department, subsistence department, pay department, medical department and ordnance department.

The terms of office of the chiefs of the above named departments shall be five years, as provided in chapter four hundred and forty-nine of the acts of the year nineteen hundred and eleven (and the term of office of the adjutant general shall be five years from the passage of this act and he shall be eligible for reappointment).

The existing provision upon the subject is to be found in St. 1908, c. 604, § 12:

[ocr errors]
[merged small][ocr errors]

1 adjutant general, with the rank of brigadier general, who shall, ex-officio, be chief of staff;

1 assistant adjutant general, with the rank of colonel;

4 aides-de-camp, each with the rank of major;

6 aides-de-camp, to be selected from the commissioned officers of the Massachusetts volunteer militia, but not to be relieved from duty with their organizations while serving in this capacity.

In time of war the commander-in-chief may appoint such additional staff officers as the service may require, with such rank, not higher than that of colonel, as he may designate. The above staff officers, excepting the detailed aides-de-camp, shall be commissioned and hold office until their successors are appointed and qualified, but they may be removed at any time by the commander-in-chief.

The precise inquiry of the Honorable House of Representatives is, therefore, in substance, whether or not the General Court may provide a fixed and definite term of office for the adjutant general of the volunteer militia.

The pertinent provisions of the Constitution are contained in chapter II., section 1, dealing with the powers and prerogatives of the Governor. Article VII. constitutes the Governor the commander-in-chief of the army and navy, and of all military forces of the State, by sea and land, and vests in him full power, by himself, or by any commander, or other officer or officers,

from time to time, to train, instruct, exercise and govern the militia and navy. Article X. provides

[ocr errors]

The captains and subalterns of the militia shall be elected by the written votes of the train-band and alarm list of their respective companies, the field officers of regiments shall be elected by the written votes of the captains and subalterns of their respective regiments; the brigadiers shall be elected, in like manner, by the field officers of their respective brigades; and such officers, so elected, shall be commissioned by the governor, who shall determine their rank.

The legislature shall, by standing laws, direct the time and manner of convening the electors, and of collecting votes, and of certifying to the governor, the officers elected.

The major-generals shall be appointed by the senate and house of representatives, each having a negative upon the other; and be commissioned by the governor.

And if the electors of brigadiers, field officers, captains or subalterns, shall neglect or refuse to make such elections, after being duly notified, according to the laws for the time being, then the governor, with the advice of council, shall appoint suitable persons to fill such offices.

The commanding officers of regiments shall appoint their adjutants and quartermasters; the brigadiers their brigade-majors; and the majorgenerals their aids; and the governor shall appoint the adjutantgeneral.

The governor, with advice of council, shall appoint all officers of the continental army, whom by the confederation of the United States it is provided that this commonwealth shall appoint, as also all officers of forts and garrisons.

The divisions of the militia into brigades, regiments, and companies, made in pursuance of the militia laws now in force, shall be considered as the proper divisions of the militia of this commonwealth, until the same shall be altered in pursuance of some future law.

I am advised that doubt has arisen as to the power of the Legislature to create a fixed term of office for the adjutant general, in view of the arrangement and language of the provisions of the Constitution above cited and of the distinction which seems to be made between officers of the militia who are commissioned to command and officers who are appointed adjutants, quartermasters, brigade-majors and aids to major-generals, with whom the adjutant general is included in Article

X., and it is suggested that from the relation between an adjutant and his commanding officer, a brigade-major and his brigadier, an aid and his commanding general, and the adjutant general and the commander-in-chief, a constitutional right is to be inferred which is vested in the Governor, as commanderin-chief, and in a major-general, brigadier or regimental commander to appoint as adjutant general, aid, brigade-major, adjutant or quartermaster, such eligible person as he may desire, and that it would be in contravention of such constitutional right to provide a fixed term of office for any of these officers. The relations between a commanding officer and his personal staff are doubtless so intimate and of such a character as to render it desirable that such commanding officer should exercise his personal judgment in the selection of the members of his staff, and military custom appears to have recognized the propriety of such action by the commanding officer in requiring as matter of etiquette, upon a change of commanders, a voluntary tender of the resignations of members of the staff of his predecessor. This custom has been at times recognized in the statutes relating to the organization of the militia. (See R. S., c. 12, § 73.) It does not follow, however, that the existence of such a custom, or even a recognition of it in the Constitution in the apparent distinction between officers of the militia elected to command and officers appointed to positions upon the staff of a commanding officer, if such distinction amounts to recognition, must be given the force of a constitutional restriction upon the power of the General Court to deal with the term or tenure of staff appointments, or regarded as creating a modification, in the case of such appointments, of the well-recognized principle that where an office is established by the Constitution without provision as to the term or duty thereof the latter may be altered, enlarged or modified in such manner as the Legislature may deem to be for the public interest. Opinion of the Justices, 117 Mass. 603; Wales v. Belcher, 3 Pick. 508; see Taft v. Adams, 3 Gray, 126; Const. of Mass., c. 1, § 1, Art. IV.

A careful consideration of the provisions of the Constitution which are material to this question discloses no intention upon

« PreviousContinue »