Bowe v. Secretary of the Com.

• Decision Date: 20 September 1946
• Citation: 320 Mass. 230,69 N.E.2d 115
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: THOMAS W. BOWE & others v. SECRETARY OF THE COMMONWEALTH(and five companion cases [1]).

320 Mass. 230

69 N.E.2d 115

THOMAS W. BOWE & others v. SECRETARY OF THE COMMONWEALTH(and five companion cases ^[1]).

Supreme Judicial Court of Massachusetts, Suffolk.

September 20, 1946

September 12, 1946.

Present: FIELD, C.

J., LUMMUS, QUA RONAN, & WILKINS, JJ.

Constitutional Law Initiative, Separation of powers of government, Assertion of constitutional rights, Freedom of elections, Freedom of the press, Freedom of speech, Peaceable assembly. Labor and Labor Union. Statute, Amendment. Elections. Laches. Attorney General. Jurisdiction, Justiciable question. Words "Description," "The press."

An amendment by the initiators of a law proposed by the Initiative, merely striking out an erroneous statutory reference in the proposed law and duly certified by the Attorney General, all in accordance with art. 48 of the Amendments to the Constitution, The Initiative, V, Section 2, was

"perfecting in its nature" and did not materially change the substance of the proposed law; and thereafter the proposed law must be dealt with as changed by the amendment.

A law proposed by the Initiative as an amendment of a certain section of the General Laws by striking out the first sentence thereof and substituting therefor a new first sentence whose language ignored a previous amendment of that section by the General Court whereby a certain provision had been transferred from the second sentence to the first sentence, if enacted, would not include the provision so transferred.

There is no statutory provision for a review of the checking by registrars under G. L. (Ter. Ed.) c. 53, Section 7, as amended by St. 1943, c. 334,

Section 3; Section 22A, as amended by St. 1943, c. 51, of the names of voters signing a petition in initiative proceedings seeking enactment of a proposed law, except the limited review for forgery or fraud provided by said Section 22A; the Attorney General and the Secretary of the

Commonwealth must accept the certification of the registrars when it is presented to them.

Laches barred a certiorari proceeding commenced on August 7, 1946, to quash a certification by registrars of voters, that a signature "Jos. Anthony

Mavilio" was that of a voter qualified to sign an initiative petition, on the ground that the signer was registered as Joseph A. Mavilio and that he therefore did not sign "with his name as registered" as required by G. L. (Ter. Ed.) c. 53, Section 7, as amended by St. 1943, c. 334,

Section 3; Section 22A, as amended by St. 1943, c. 51, where it appeared that, although the petitioners for certiorari may have had no actual knowledge of such variance between signature and registration, there was complete failure on their part to embrace an ample opportunity to ascertain the fact of such variance in the period after the filing of the initiative petition in September of 1945 and while further initiative proceedings were going forward through the procuring of additional signatures and in the Legislature.

The mere fact that the Attorney General was active as a proponent and advocate of certain laws proposed under the Initiative did not disqualify him from performing his constitutional duties under art. 74 of the Amendments to the Constitution of the Commonwealth. There is no provision by statute or otherwise that a law proposed by the

Initiative shall include a title, descriptive of it to any particular degree or wholly accurate so far as the title is descriptive. The provision of art. 74 of the Amendments to the Constitution of the

Commonwealth for "a fair, concise summary" of a proposed law by the Attorney General was intended as a relaxation of the requirements implicit in the provision for a "description" of the proposed law in art. 48 of the Amendments.

A description by the Attorney General of a law proposed by the Initiative complied with the requirement of art. 74 of the Amendments to the

Constitution of the Commonwealth that it be a "fair, concise summary" although in some small matters it lacked completeness. The question, whether a law proposed under art. 48 of the Amendments to the

Constitution of the Commonwealth, The Initiative, if enacted, would violate the Federal Constitution, or some part of the Constitution of the Commonwealth other than art. 48 or art. 74 of its Amendments, was not open in a proceeding to prevent the law being placed upon the ballot.

Restatement by LUMMUS, J., of the rationale of the power of courts, as an exercise of a purely judicial function, to enforce the provisions of the

Massachusetts Constitution as against a conflicting Massachusetts statute, and the provisions of the Federal Constitution, or of a Federal statute made pursuant thereto, as against a conflicting State

Constitution or statute.

Only when the impact of a statute upon particular individuals, who have both the opportunity and the incentive to defend their rights by argument, and upon a set of definite facts established after genuine controversy, has been shown, can a court decide the constitutionality of the statute. Per LUMMUS, J. The question, raised by a petition for a writ of mandamus forbidding the

Secretary of the Commonwealth to submit to the people a certain law proposed by the Initiative, whether the proposed law relates to

"Excluded Matters," is justiciable.

Neither a law proposed by the Initiative to amend G. L. (Ter. Ed.) c. 55,

Section 7, by adding, to the individuals and corporations thereby prohibited from making certain political contributions, labor unions and

"any person acting in behalf thereof," nor a law so proposed to require labor unions to file with a public official certain organizational and financial statements and reports, would be inconsistent with freedom of elections and for that reason would be an "excluded" matter which under art. 48 of the Amendments to the Constitution, The Initiative, II,

Section 2, could not be the subject of an initiative petition. A law proposed by the Initiative to amend G. L. (Ter. Ed.) c. 55, Section

7, by adding, to the individuals and corporations thereby prohibited from making certain political contributions, labor unions and "any person acting in behalf thereof" was inconsistent with the right "of the individual," as "declared in the declaration of rights," to "freedom of the press" and "of peaceable assembly," and therefore was an "excluded" matter which under art. 48 of the Amendments to the Constitution, The

Initiative, II, Section 2, could not be the subject of an initiative petition.

A certain law, proposed by the Initiative, which, if enacted, would require labor unions to file with a public official certain organizational and financial statements and reports, was not inconsistent with the right

"of the individual," as "declared in the declaration of rights," to "freedom of the press" or "of speech" or of "peaceable assembly" and therefore was not an "excluded" matter which under art. 48 of the

Amendments to the Constitution, The Initiative, II, Section 2, could not be the subject of an initiative petition.

SIX PETITIONS, three for writs of mandamus and three for writs of certiorari, all filed in the Superior Court on August 7, 1946, and described in the opinion.

The cases were reported by Hanify, J. In this court the cases were submitted on briefs.

J. H. Morris, for the petitioners. R. Clapp, Assistant Attorney General, for the Secretary of the Commonwealth and another; M. T. Silverstein, City Solicitor, for the registrars of voters of Everett.

LUMMUS, J. Under the Forty-eighth Amendment to the Constitution of the Commonwealth, which provides for enactment by vote of the people of a proposed law initiated by ten qualified voters of the Commonwealth, two proposed laws were initiated by ten such voters, and are about to be placed on the ballot and submitted to popular vote at the coming State election.

One of those proposed laws is entitled "An Act relative to contributions by labor unions or persons acting in behalf thereof for political purposes or to campaign funds," and purports to amend G.L.c. 55, Section 7, "as amended by" St. 1938, c. 75, by "striking out the first sentence and inserting in place thereof" the following: "No corporation carrying on the business of a bank, trust, surety, indemnity, safe deposit, insurance, railroad, street railway, telegraph, telephone, gas, electric light, heat, power, canal, aqueduct, or water company, or any company having the right to take land by eminent domain or to exercise franchises in public ways, granted by the commonwealth or by any county, city or town, no trustee or trustees owning or holding the majority of the stock of such a corporation, no business corporation incorporated under the laws of or doing business in the commonwealth, no officer or agent acting in behalf of any corporation mentioned in this section, and no labor union or any person acting in behalf thereof shall directly or indirectly give, pay, expend or contribute, any money or other valuable thing in order to aid, promote or prevent the nomination or election of any person to public office, or to aid, promote or antagonize the interests of any political party, or to influence or affect the vote on any question submitted to the voters."

The effect of the proposed law is to include a "labor union or any person acting in behalf thereof" within the prohibition of political contributions, equally with the corporations and persons previously specified in the statute. The reference to the amendment made by St. 1938, c. 75, was a mistake, for the amendment thereby made changed only the second sentence of that section and left the first sentence unchanged. This erroneous reference was struck out by the ten persons who initiated the proposed law, with a proper...