
    Opinion of the Justices to the Governor and Council.
    An officer of the militia, elected and commissioned after the passage of the St. of 1876, c. 204, and before the passage of the St. of 1878, c. 265, does not continue to hold office after the expiration of five years.
    On December 21, 1881, tbe following order was adopted by the Governor and Council, and transmitted by the Governor on December 28 to the Justices of the Supreme Judicial Court.
    Ordered, That the opinion of the Justices of the Supreme Judicial Court be asked on the following important question of law:
    Does an officer of the militia, elected and commissioned after the passage of chapter 204 of the acts of the year 1876, and before the passage of chapter 265 of the acts of the year 1878, continue to hold office after the expiration of five years ? .
   On January 3, 1882, the Justices of the Supreme Judicial Court returned the following opinion:

To His Excellency the Governor and the Honorable Council of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court have the honor to acknowledge the receipt of a communication from his Excellency the Governor, requiring, in behalf of himself and of the Honorable Council, the opinion of the Justices upon the following question of law:

Does an officer of the militia, elected and commissioned after the passage of chapter 204 of the acts of the year 1876, and before the passage of chapter 265 of the acts of the year 1878, continue to hold office after the expiration of five years ?

The Justices of the Supreme Judicial Court, having taken the question into consideration, respectfully submit the following opinion thereon:

By chapter 820 of the acts of 1874 provision was made for the election of officers of the line of the militia, and for the issue of commissions to them by- the Governor, but no limit was placed upon their tenure of office or upon the term of their commissions.

By chapter 204 of the acts of 1876, which was passed and took effect on the twenty-eighth day of April 1876, it was enacted in section 5 as follows: “The commissions of all line officers now in force shall continue not longer than five years from the date of the passage of this act, and hereafter all officers of the militia shall be commissioned for the term of five years only, but every officer shall be eligible to a reelection, and if so reelected shall take rank according to the date of his first commission of the same grade.”

By that statute both the tenure of office and the duration of the commission of all officers elected and commissioned under it were limited to five years. The statute expressly required that they should be commissioned for the term of five years only. Whether the commissions actually issued did or did not conform to this requirement, no action of the Executive could dispense with or defeat the limitation clearly imposed by the Legislature upon the office and upon the commission.

By chapter 265 of the acts of 1878, which was passed and took effect on the sixteenth day of May 1878, it is enacted that the officers of the line of the militia shall be elected and commissioned as therein provided, and no limit is set to the tenure of their offices or to the terms of their commissions; and by section 165 of this act, several acts therein enumerated, including chapter 320 of the acts of 1874 and chapter 204 of the acts of 1876, are repealed, and it is declared that “ this section shall not be construed as reviving or in any manner restoring any former acts, or parts of acts, that were repealed by either of the chapters hereinbefore named.”

If it is in the power of the Legislature, with the consent of the officers, to extend the term of offices held under prior acts and existing commissions, yet the act of 1878 contains no evidence of an intention to extend the term of office of officers whose tenure of office and the terms and effect of whose commissions had been clearly limited and restricted to five years by the act of 1876, under which their elections had been had and their commissions issued.

It necessarily follows that an officer of the militia, elected and commissioned after the passage of chapter 204 of the acts of the year 1876, and before the passage of chapter 265 of the acts of the year 1878, does not continue to hold office after the expiration of five years.

Horace Gray.

Marcus Morton. .

William C. Endicott.

Otis P. Lord.

Walbridge A. Field.

Charles Devens.

William Allen.

Boston, January 3, 1882.  