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the part of the framers thereof to impose a limitation upon the power of the General Court to fix and determine the tenure of office of the adjutant general. Upon the contrary, the Journal of the Convention for Massachusetts Bay, 1779-80, shows that in discussing the paragraph dealing with staff appointments, which was afterwards adopted, it was suggested that the words "during pleasure" be inserted, and that the suggestion was thereafter withdrawn and the paragraph accepted in its present form. The purpose of the suggestion, and the meaning of the words "during pleasure," may be illustrated by quoting from the constitution, submitted to the people by the General Court of 1777-78 and rejected by popular vote, a provision found in the 26th clause that "the Attorney-General, Sheriffs, Registers of the Courts of Probate, Coroners, Notaries Public, and Naval Officers, shall be appointed and hold their offices during pleasure." The convention, therefore, upon consideration and with intention, omitted from the clause of the Constitution which relates to the appointment of staff officers any express provision for the limitation which it is now argued must by implication be read into said clause.

The early statutes which deal with the organization of the volunteer militia contain no provision from which may be inferred a recognition that the tenure of office of either the adjutant general or any other staff officer was to be during the pleasure of his commanding officer (see St. 1809, c. 108); and it is significant that the earliest provision relative to the discharge or removal of staff officers (St. 1821, c. 92, § 16) was enacted after the adoption in 1821 of Article IV. of the Amendments to the Constitution, which, in part, provided

that

All officers commissioned to command in the militia may be removed from office in such manner as the legislature may, by law, prescribe

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No officer, duly commissioned to command in the militia, shall be removed from his office, but by address of both houses to the governor, or

by fair trial in court-martial, pursuant to the laws of the commonwealth for the time being

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and at the time when the Legislature first assumed and exercised the authority to provide for the discharge of militia officers in a manner other than by fair trial in court-martial, or by address of both houses to the Governor. See St. 1821, c. 32, § 1; St. 1835, c. 144, §§ 2, 3; R. S., c. 12, §§ 67-73.

Moreover, there is nothing in the language of the constitutional provision itself which requires a construction inconsistent with an authority in the Legislature to determine the term of office of the adjutant general or of any other staff officer (see Avery v. Inhabitants of Tyringham, 3 Mass. 160), and in at least one instance such power has been exercised by the Legislature by providing, in Gen. Sts., c. 13, § 62, that “the adjutant general shall hold his office for the term of one year," subject to removal at any time by the commander-in-chief. And see St. 1912, c. 268; St. 1911, c. 449.

For the reasons above stated, therefore, I am of opinion that the provision of House Bill No. 2221, that the term of office of the adjutant general shall be five years from the passage thereof, would not be unconstitutional.

To the Secretary. 1912

June 7.

RE

CONSTITUTIONAL LAW GOVERNOR VETO DUTY TO
TURN BILL WITH OBJECTIONS THERETO IN WRITING TO THE
BRANCH IN WHICH IT ORIGINATED RETURN LIMIT OF
TIME.

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Where certain bills, due under the provisions of Article II. of Section I. of Chapter I. of the Constitution of the Commonwealth to be returned on May 27 by the Governor, with his objections thereto in writing, to the House of Representatives, in which branch such bills originated, were found, on the morning of May 28, on the desk of the clerk of the House of Representatives, and the speaker of the House of Representatives, on a point of order, ruled that the vetoes were not properly returned until received by the clerk at 8 o'clock upon the morning of May 28, and such bills were transmitted by the clerk to the Secretary of the Commonwealth, with a statement of the above facts, it is not the duty of the Secretary to determine whether or not such bills were seasonably returned, and he should receive and record them among the laws of the current year, leaving the question of their validity to be determined by the proper tribunal.

It would seem, however, that the duty devolving upon the Governor under the provisions of Article II. of Section I. of Chapter I. of the Constitution, if he has objection, to return a bill or resolve within the prescribed period of time to the branch of the Legislature in which it originated, should be performed with sufficient formality to insure that the return shall be made to some proper officer of the Senate or House of Representatives, as the case may be, if the branch to which the bill or resolve and the objections are sent is not in session. 1

You desire my opinion as to whether or not it is your duty to receive certain bills transmitted to you by the clerk of the House of Representatives under circumstances which appear from a communication accompanying said bills to be as follows:

These acts and resolve were found on the desk of the clerk of the House of Representatives on the morning of Tuesday, May 28, last. They were due to be returned by His Excellency the Governor to the House of Representatives, in which branch they originated, with his objections thereto in writing, on Monday, May 27.

At the session of the House on Tuesday, May 28, the speaker called the attention of the House to the fact that these bills and resolve had been found on the desk of the clerk of the House that morning.

A point of order was raised that the bills and resolve and veto messages were not properly before the House of Representatives, not having been

1 See Tuttle v. Boston, 215 Mass. 57.

returned by the Governor within the five days allowed under Article II. of Section I. of Chapter I. of the Constitution.

On this point of order the speaker ruled as follows: "the vetoes were without question returned after the clerk's office was closed on the last day during which, under Article II. of Section I. of Chapter I. of the Constitution, three of the vetoes should apparently have been returned. There is no official record whether the vetoes were left in the clerk's office before or after midnight. The chair, therefore rules that simply leaving the papers in the clerk's office after it is closed is not such a return to the House of Representatives of the bills and resolves, with his objections thereto in writing, as is required by the Constitution, as the House can take cognizance of; and that three of the vetoes were not properly returned until received by the clerk at 8 o'clock this morning."

It is the duty of the Secretary of the Commonwealth, under the provisions of R. L., c. 9, § 1

at the close of each session of the general court, [to] collate and cause to be printed in one volume, in style and arrangement as heretofore, the constitution of the commonwealth, the acts and resolves passed, any amendments to the constitution agreed to during such session, the governor's address and messages, a list of the changes of names returned during the preceding year by the probate courts, a list of the officers of the civil government of the commonwealth, a table of changes in the general laws, and an index.

I assume, therefore, that your inquiry, in substance, requires my opinion as to whether or not you shall receive for record, and include in the collated and printed volume of the acts and resolves for the current year, the two bills and the resolve transmitted to you in the manner hereinbefore described.

The ruling of the speaker, already quoted, appears to be based upon the fact that there was before him "no official record whether the vetoes were left in the clerk's office before or after midnight;" but the absence of such. record is not, in my opinion, conclusive, for if the placing of the bills and the resolve upon the desk of the clerk of the House of Representatives during the absence of the clerk and after his office was closed for business is a sufficient compliance with the constitutional provision that the Executive shall return such bills and resolve,

together with his objections thereto in writing, to the branch of the Legislature in which they originated, the hour or moment when they were placed there may be established by competent proof. Gardner v. The Collector, 6 Wall. (U. S.) 499, 511. And see United States v. Allen, 36 Fed. Rep. 174; Lyons v. Woods, 153 U. S. 649, 663.

Since the fact, if it be a fact, may be established by proper evidence, I shall assume for the purposes of your inquiry that the several bills and resolve were placed upon the desk of the clerk of the House of Representatives before midnight on Monday, May 27, and within the period allowed therefor by the Constitution. The present status of the bills and the resolve in question, therefore, must depend upon whether or not they have been duly "returned" to the House of Representatives.

The provision of the Constitution which is material in the premises is Article II. of Section I. of Chapter I. of Part the Second of the Constitution, which I quote:

No bill or resolve of the senate or house of representatives shall become a law, and have force as such until it shall have been laid before the governor for his revisal; and if he, upon such revision, approve thereof, he shall signify his approbation by signing the same. But if he have any objection to the passing of such bill or resolve, he shall return the same, together with his objections thereto, in writing, to the senate or house of representatives, in whichsoever the same shall have originated; who shall enter the objections sent down by the governor, at large, on their records, and proceed to reconsider the said bill or resolve. But if after such reconsideration, two-thirds of the said senate or house of representatives, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by two-thirds of the members present, shall have the force of a law; but in all such cases, the votes of both houses shall be determined by yeas and nays; and the names of the persons voting for, or against, the said bill or resolve, shall be entered upon the public records of the commonwealth.

And in order to prevent unnecessary delays, if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law.

It has been held that a bill can be laid before the Governor only by being presented to him personally. So in Opinion of

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