Anderson v. Sec'y of Commonwealth

• Decision Date: 09 April 1926
• Parties: ANDERSON et al. v. SECRETARY OF COMMONWEALTH. SAME v. ATTORNEY GENERAL OF COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 366

151 N.E. 378

ANDERSON et al.

v.SECRETARY OF COMMONWEALTH.

SAME

v.ATTORNEY GENERAL OF COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

April 9, 1926.

Case Reserved from Supreme Judicial Court, Suffolk County.

Petition for writ of certiorari by William F. Anderson and others against Jay R. Benton, as Attorney General, to quash certificate of respondent stating that proposed initiative measure contained subjects not excluded from popular initiative, and petition for mandamus by William F. Anderson and others against Frederick W. Cook, Secretary of the Commonwealth, commanding respondent to refrain from submitting initiative measure to popular vote. Both cases reserved to the full court. Petitions dismissed.

1. Constitutional law k1/2-The Constitution, as amended, constitutes an absolute rule of action and decision, and controls as it is written until changed by authority by which it was established.

The Constitution, as amended, is the direct and fundamental expression of sovereign will, and constitutes an absolute rule of action and decision as to all matters governed thereby, and controls as it is written until changed by authority by which it was established.

2. Statutes k35 1/2.

No measure relating to religion or religious practices can be made subject of an initiative petition (Const. Amend. art. 48, subd. 2, s 3; G. L. c. 136, s 10, amended by St. 1922, c. 119).

3. Statutes k35 1/2-Decision of Attorney General as to whether initiative petition is in proper form, in absence of bad faith, is final, and cannot be set aside.

As the Attorney General is to pass on question whether initiative petition is in proper form before making his certification of approval or disapproval, question whether preliminary requirements have been complied with is for him to determine, and his decision, in absence of bad faith, is final, and cannot be set aside by the courts.

4. Constitutional law k65-Provision that initiative measure is made dependent on efficacy of local acceptance is a valid police regulation (G. L. c. 136, s 7).

In view of G. L. c. 136, s 7, provision that initiative measure, permitting outdoor sports on Sunday for which fee may be charged, is made dependent on efficacy of local acceptance, is a valid police regulation.

H. S. Davis, of Boston (S. W. Mendum, of Boston, on the brief), for plaintiffs.

M. F. Weston, Asst. Atty. Gen., for respondent.

BRALEY, J.

The salient facts involved in these cases appear in Acts and Resolves of 1925, p. 473, under article 48 of the Amendments to the Constitution:

“ The Initiative. II. Initiative Petitions. Sec. 3.' * * * An initiative petition was filed in this office [of the Secretary of the commonwealth,] September 18, 1924, signed by ten qualified voters together with the certification of the Attorney General that the measure was in proper form for submission to the people, and the remainder of more than the required number of qualified voters * * * was filed December 1, 1924, representing that there was need for legislation, either by the General Court or by the people, to permit certain athletic outdoor sports and games on the Lord's Day between two and six p. m. to which admission fees may be charged and the taking of collections of money [and other provisions, which was] accompanied by a bill entitled, ‘An act to permit certain sports and games on the Lord's day.”

The petition, January 7, 1925, was transmitted by the Secretary to the clerk of the House of Representatives and was thereby deemed to be introduced and pending in the General Court. The General Court at its session of 1925, after due consideration of the petition and its accompanying bill, failed to enact the law in the form in which it appeared with the petition, or a law in any form before the first Wednesday of June, 1925. The committee on legal affairs of the General Court filed a majority and a minority report which was duly printed as House Document No. 1181 for the year 1925. The petitioners were supplied with forms to obtain the number of additional signatures required by the Constitution. The petition was completed by filing in the office of the Secretary on August 3, 1925, a sufficient number of additional signatures of qualified voters of the commonwealth and said law will be submitted for approval or disapproval by the people at the state election November 2, 1926.

The proposed act, a copy of which appears in the record in each case, is intended to modify the restrictions relating to the observance of the Lord's Day found in G. L. c. 136, § 10, as amended by St. 1922, c. 119. It is contended, in substance, by the petitioners for a writ of mandamus and for a writ of certiorari that the proposed act ‘relates to religion, religious...