Attorney Gen. v. Sec'y of the Commonwealth

• Decision Date: 11 May 1940
• Citation: 306 Mass. 25,27 N.E.2d 265
• Parties: ATTORNEY GENERAL v. SECRETARY OF THE COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 25

27 N.E.2d 265

ATTORNEY GENERAL

v.SECRETARY OF THE COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 11, 1940.

Case Reserved from Supreme Judicial Court, Suffolk County.

Information by the Attorney General in behalf of the Commonwealth in the nature of a petition for a writ of mandamus to restrain the Secretary of the Commonwealth from preparing ballots in conformity with the provisions of St.1939, c. 507. A single justice of the Supreme Judicial Court heard the case on an amended petition, the respondent's demurrer, motion to strike, and answer, the petitioner's traverse, and an agreed statement of facts, and at the request of the parties he reserved and reported the case without decision on the pleadings, the agreed statement of facts, and his findings for the consideration of the full court.

Motion to strike allowed and information dismissed.P. A. Dever, Atty. Gen., and E. O. Proctor, Asst. Atty. Gen., and E. McPartlin, Asst. Atty. Gen., for petitioner.

C. B. Rugg, Sp. Asst. Atty. Gen., and W. F. Farr, both of Boston, for respondent.

FIELD, Chief Justice.

This is an information, in the nature of a petition for a writ of mandamus, by the Attorney General in behalf of the Commonwealth. It was filed February 28, 1940. The respondent is the Secretary of the Commonwealth, who is charged with the duty of preparing ballots to use in the election of State officers. G. L. (Ter.Ed.) c. 54, § 40. The Attorney General seeks a writ of mandamus to restrain the Secretary from preparing ballots in conformity with the provisions of St.1939, c. 507, approved August 12, 1939, entitled ‘An Act to establish councillor and senatorial districts,’ on the ground that this statute is unconstitutional becauseof violation of art. 21 and art. 22 of the Amendments to the Constitution of the Commonwealth, as substituted by art. 71 of said Amendments for the former articles so numbered.

The case was heard by a single justice of this court on the amended petition; the respondent's demurrer, motion to strike and answer; the petitioner's traverse and an agreed statement of facts. He found the facts to be as stated in the agreed statement of facts and, at the request of the parties, reserved and reported the case, without decision, upon the pleadings, the agreed statement of facts and his findings for the consideration of the full court. On a report in this form no exercise of discretion is involved. The question for determination by the full court is whether the writ ought to issue as matter of law. Lowry v. Commissioner of Agriculture, Mass., 18 N.E.2d 548.

St.1939, c. 507, in its first section, purports to substitute for G.L. (Ter.Ed.) c. 57, § 2, a new section whereby the commonwealth is divided for the purpose of choosing councillors into eight councillor districts, each of which consists of several senatorial districts. No question is raised as to the propriety of this division into councillor districts except as it may be affected by the validity of the division of the Commonwealth into senatorial districts by the same statute. St.1939, c. 507, in its second section, purports to substitute for G.L. (Ter.Ed.) c. 57, § 3, a new section whereby the Commonwealth is divided for the purpose of choosing senators into forty senatorial districts, which are described therein. The Attorney General contends that this division into senatorial districts does not conform to the constitutional requirements.

Article 21 of the Amendments to the Constitution of the Commonwealth in its present form (see art. 71) provides, in part, that ‘In the year nineteen hundred and thirty-five and every tenth year thereafter a census of the inhabitants of each city and town shall be taken and a special enumeration shall be made of the legal voters therein. Said special enumeration shall also specify the number of legal voters residing in each precinct of each town containing twelve thousand or more inhabitants according to said census and in each ward of each city.’ This article provides also for the division of counties into representative districts and the apportionment of representatives among such districts. Article 22 of said Amendments in its present form (see art. 71) is as follows: ‘Each special enumeration of legal voters required in the preceding article of amendment shall likewise be the basis for determining the senatorial districts and also the councillor districts for the ten year period beginning with the first Wednesday in the fourth January following such enumeration; provided, that such districts as established in the year nineteen hundred and twenty-six shall continue in effect until the first Wednesday in January in the year nineteen hundred and thirty-nine. The senate shall consist of forty members. The general court shall, at its first regular session after the return of each special enumeration, divide the commonwealth into forty districts of contiguous territory, each district to contain, as nearly as may be, an equal number of legal voters, according to said special enumeration; provided, however, that no town or ward of a city shall be divided therefor; and such districts shall be formed, as nearly as may be, without uniting two counties, or parts of two or more counties, into one district. The general court may be law limit the time within which judicial proceedings may be instituted calling in question such division. Each district shall elect one senator, who shall have been an inhabitant of this commonwealth five years at least immediately preceding his election, and at the time of his election shall be an inhabitant of the district for which he is chosen; and he shall cease to represent such senatorial district when he shall cease to be an inhabitant of the commonwealth.’

First. The question whether the division of the Commonwealth into senatorial districts by St.1939, c. 507, conforms to the constitutional requirements-like questions of constitutionality of other statutes-is a matter for judicial determination when the question is properly raised between litigants. See Horton v. Attorney General, 269 Mass. 503, 507, 169 N.E. 552;Prescott v. Secretary of the Commonwealth, 299 Mass. 191, 196, 12 N.E.2d 462. Indeed, this is recognized as true by the provision of art. 22 that the ‘general court may by law limit the time within which judicial proceedings may be instituted calling in question such division.’(No such limitation, however, has been imposed by the General Court.) There is nothing in the nature of the statute that precludes such judicial review, though the scope of such review presents a further question. See Parker v. State, 133 Ind. 178, 32 N.E. 836,33 N.E. 119,18 L.R.A. 567;Giddings v. Blacker, 93 Mich. 1, 52 N.W. 944,16 L.R.A. 402;Sherrill v. O'Brien, 188 N.Y. 185, 81 N.E. 124,117 Am.St.Rep. 841;State v. Cunningham, 81 Wis. 440, 51 N.W. 724,15 L.R.A. 561;State v. Cunningham, 83 Wis. 90, 53 N.W. 35,17 L.R.A. 145, 35 Am.St.Rep. 27. Compare Attorney General v. Suffolk County Apportionment Commissioners, 224 Mass. 598, 601-603, 113 N.E. 581.

Second. It is apparent that the duties of the Secretary of the Commonwealth with relation to the preparation of ballots for use in the election of State officers are affected by St.1939, c. 507, if it is valid. The respondent rightly makes no contention that mandamus is not a proper proceeding whereby to raise the question of the constitutionality of the statute to the end that if the statute is determined to be unconstitutional the respondent may be restrained from acting thereunder. Since the purpose of the proceeding is to control the conduct of a public officer in the performance of his official duties and no special statutory remedy is afforded, it is not fatal to the maintenance of the proceeding that the relief sought is an order commanding the respondent to refrain from acting under the statute, and not an order commanding affirmative action by him. See Larcom v. Olin, 160 Mass. 102, 110-111, 35 N.E. 113;Graham v. Roberts, 200 Mass. 152, 85 N.E. 1009;Cunningham v. Mayor of Cambridge, 222 Mass. 574, 580, 111 N.E. 409, Ann.Cas.1917C, 1100;Bancroft v. Building Commissioner of Boston, 257 Mass. 82, 153 N.E. 319;Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 153 N.E. 322;Horton v. Attorney General, 269 Mass. 503, 169 N.E. 552. Compare Department of Public Utilities v. Trustees of the Properties of the New York, New Haven & Hartford Railroad, Mass., 24 N.E.2d 647. And the respondent rightly makes no contention that the Attorney General is not a proper party to institute the proceeding. Compliance with the constitutional requirements governing the division of the Commonwealth into senatorial districts obviously is a matter of public concern. ‘Where the public interests are involved, the Attorney General may institute a petition for mandamus to vindicate the public right.’ Attorney General v. Suffolk County Apportionment Commissioners, 224 Mass. 598, 610, 113 N.E. 581, 587.

Third. In considering the validity of St.1939, c. 507, this court cannot ‘consider the expediency of its enactments or the wisdom of its provisions.’ Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 275, 283, 5 N.E.2d 720, 726. The court can consider only the question whether the statute violates constitutional provisions. In considering this question the court is bound by the fundamental principles, frequently stated, expressed in Perkins v. Westwood, 226 Mass. 268, 271, 115 N.E. 411, in the following terms: ‘All rational presumptions are made in favor of the validity of every act of the legislative department of government, and the court will not refuse to enforce it unless its conflict with the Constitution is established beyond reasonable doubt. It will not be declared void unless it is impossible by any reasonable construction to interpret its provisions in harmony with the Constitution. These were early declared by this court to be...