Barnes v. Secretary of Com.

• Decision Date: 05 March 1965
• Parties: Clarence A. BARNES et al. v. SECRETARY OF the COMMONWEALTH. Thomas C. HEALEY et al. v. TREASURER AND RECEIVER GENERAL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 894

204 N.E.2d 894

348 Mass. 671

Clarence A. BARNES et al. v. SECRETARY OF the COMMONWEALTH.

Thomas C. HEALEY et al. v. TREASURER AND RECEIVER GENERAL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1965.

Decided March 5, 1965.

Roger F. Turner, Milton, for petitioners.

William I. Cowin, Asst. Atty. Gen., for respondents.

Lewis H. Weinstein, Boston, for interveners, Erwin N. Griswold and others.

Before WILKINS, C. J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

These two petitions for writs of mandamus, each brought by a different group of citizens of the Commonwealth who are taxpayers and registered voters, attack the initiative procedure leading to the enactment of St.1964, c. 740, entitled 'An Act repealing statutory powers of the governor's council which interfere with the efficient operation of the executive department of the commonwealth.'

The first case, filed September 3, 1964, was brought against the Secretary of the Commonwealth and the State Ballot Law Commission. As a practical matter, the commission has been let out of the case by the petitioners' waiver of the allegations of the petition and the prayer for relief relating to it, but no formal dismissal was made. The remaining relief sought was an order commanding the Secretary to refrain from submitting the measure to the voters. Certain citizens who are qualified voters and taxpayers were allowed to intervene as parties respondent. The case was heard on a statement of agreed facts. In the Superior Court there was an order dismissing the petition. The petitioners appealed.

The second case is brought against the Treasurer and Receiver General and the Secretary of the Commonwealth, seeking an order commanding them to refrain from taking any action or paying any funds under c. 740, which was approved by the people at the state election held on November 3, 1964. The same individuals who were permitted to intervene in the first case were again allowed to intervene as parties respondent. There was filed a statement of agreed facts. A judge of the Superior Court reported the case without decision to this court, to be consolidated for hearing with the first case, which was already here on appeal.

The important issue is whether the Attorney General's summary of the proposed legislation was in compliance with art. 48, the Initiative, II, § 3, as amended by art. 74, § 1, of the Amendments to the Constitution, which reads in part, 'The secretary of the commonwealth * * * shall print at the top of each blank a fair, concise summary, as determined by the attorney-general, of the proposed measure as such summary will appear on the ballot * * *.' See also art. 48, General Provisions, III, IV, amended by art. 74, § 4.

Article 74 inserted 'fair, concise summary' in place of 'description.' In Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 69 N.E.2d 115, 167 A.L.R. 1447, the legislative history was outlined, and at page 243, 69 N.E.2d page 125 it was said, 'Evidently, in view of the legislative history already stated, the intention was to relax the requirements which had been found implicit in the word description. Conciseness is emphasized in Amendment 74, and conciseness and completeness are often incompatible.' The purpose of the change is given in Sears v. Treasurer & Recr. Gen., 327 Mass. 310, 324, 98 N.E.2d 621, 631, 'The word 'description' had been interpreted as implying a very substantial degree of detail and had resulted in very long and cumbersome statements of details of proposed laws. See particularly Opinion of the Justices, 309 Mass. 631, 641-644, 35 N.E.2d 676. The change from 'description' to 'fair, concise, summary' was designed to remedy this difficulty and must be given effect to that end. Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 241-243, 69 N.E.2d 115, 167 A.L.R. 1447.'

In Evans v. Secretary of the Commonwealth, 306 Mass. 296, 298-299, 28 N.E.2d 241, 243, it was said, 'The constitutional provision requiring a description to be determined by the Attorney General was intended to insure, first, that the signers of...