Christian v. Sec'y of the Commonwealth

• Decision Date: 24 May 1933
• Citation: 283 Mass. 98,186 N.E. 38
• Parties: CHRISTIAN et al. v. SECRETARY OF THE COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 98

186 N.E. 38

CHRISTIAN et al.

v.SECRETARY OF THE COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1933.

Case Reserved from Supreme Judicial Court, Suffolk County.

Petition by Henry A. Christian and others for writ of mandamus to be directed to the Secretary of the Commonwealth. On reservation on the petition for the determination of the full court.

Petition dismissed.

F. D. Putnam, of Boston, for petitioners.

E. T. Simoneau, Asst. Atty. Gen., and G. B. Lourie, Asst. Atty. Gen., for respondent.

PIERCE, Justice.

This proceeding is a petition by twenty-two qualified voters of the commonwealth for a writ of mandamus directed to the secretary of the commonwealth, asking that he be required to issue to the petitioners certain blanks to be used by them in obtaining signatures to a referendum petition on St. 1933, c. 76, entitled ‘An Act abolishing the division of smoke inspection in the department of public utilities and relative to the abatement of smoke in the city of Boston and vicinity.'

The respondent admitted the allegations contained in paragraphs numbered one, two and three of the petition; denied the allegation in paragraph four that it is his duty ‘under the terms of section 3 of Part 3 of article 48 of the Amendments to the Constitution of Massachusetts (the Referendum) (G. L. Ter. Ed. vol. 1, p. 64) to provide blanks for the use of subsequent signers of said petition’; and admitted the allegation contained in paragraph five that the petitioners ‘have demanded of the respondent that he furnish them with such blanks but the respondent has neglected and refused, and still neglects and refuses to do so.’ The respondent further answering says in substance that St. 1933, c. 76, is not subject to petition for a referendum under article 48 of the Amendments to the Constitution of Massachusetts.

On the aforesaid petition the case came before a single justice of the Supreme Judicial Court and was reserved upon the petition and answer for the determination of the full court. The question of law for decision here is, Does chapter 76 of St. 1933 fall within the matters excluded from the operation of the referendum because it is a law the operation of which is restricted to particular districts or localities of the commonwealth? Article 48 of the Amendments to the Constitution, The Referendum, Part 3, provides in section 1: ‘ Contents.-A referendum petition may ask for a referendum to the people upon any law enacted by the general court which is not herein expressly excluded.’ Section 2 so far as pertinent to the issue here presented provides: ‘ Excluded Matters.-No law * * * the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth * * * shall be the subject of a referendum petition.’ Section 1 of this act repeals G. L. (Ter. Ed.) c. 25, §§ 12C-12F, inclusive. G. L. (Ter. Ed.) c. 25, § 12C, creates in the department of public utilities a division of smoke inspection and provides for an advisory council with powers defined in section 12F. Section 12D defines the functions of division inspectors and assistants. Section 12E provides that the salaries and expenses of the director and employees of the division shall be apportioned among certain cities and towns named in St. 1910, c. 651, and shall be added to their proportion of the state tax. Section 12F provides that the advisory council (referred to in 12C) shall consist of five unpaid members appointed by the Governor, and that it shall meet regularly ‘for the consideration of problems and matters relating to the abatement of smoke.’ The said division of smoke inspection in the department of public utilities was established by St. 1930, c. 380 (G. L. [Ter. Ed.] c. 25, §§ 12C-12F, inclusive). St. 1910, c. 651, is entitled ‘An Act to provide for the abatement of smoke in the city of Boston and vicinity.’ By section 1, St. 1910, c. 651, it is provided: ‘In this act unless the context otherwise requires: ‘Board’ means the board of gas and electric light commissioners. ‘District’ means the district to which the provisions of this act shall apply, to wit:-That part of Boston harbor lying westerly of a line drawn from the southeastern point of Deer island to the northeastern point of Long island and the territory comprised within the cities of Boston, Cambridge, Somerville, Everett and Chelsea and the town of Brookline.' St. 1910, c. 651, was amended by St. 1928, c. 301, § 1, by striking out the third paragraph of section 1 and inserting in place thereof the following: “District' means the district to which the provisions of this act shall apply, to wit:-That part of Boston harbor lying westerly of a line drawn from the southeastern point of Deer Island to the northeastern point of Long Island and the territory comprised within the cities and towns of Arlington, Belmont, Boston, Braintree, Brookline, Cambridge, Canton, Chelsea, Dedham, Everett, Lynn, Malden, Medford, Melrose, Milton, Needham, Newton, Quincy, Revere, Saugus, Somerville, Stoneham, Wakefield, Waltham, Watertown, Weymouth, Winchester, Winthrop and Woburn.' St. 1910, c. 651, § 3, provides that the board shall appoint a smoke inspector who shall not engage in any other business, and such deputy inspectors as it may think proper, who shall be sworn to the faithful performance of their duties and shall hold office during the pleasure of the board. The remaining sections of St. 1910, c. 651, require that the board, i. e., the board of gas and electric light commissioners, shall enforce the provisions of the act and investigate all complaints made with reference to any violations thereof, make annual reports to the General Court, make rules and regulations with the approval of the Governor and council ‘for its own government, for the government of its employees and assistants, for the observation of smoke by the inspector or his duly authorized agents at reasonable intervals, and for keeping proper records of all observations.'

The petitioners invoke the cardinal rule of interpretation ‘that: ‘Where a provision, general in its language [and objects], is followed by a proviso, the rule applicable to such cases occurring in statutes has been applied to Constitutions, viz.: That the proviso is to be strictly construed, as taking no case out of the provisions that does not fairly fall within the terms of the proviso, the latter being understood as carving out of the provisions only specified exceptions, within the words as well as within the reason of the former.’ Endlich, Interpretation of Statutes, c. 18[742].' In re Opinion of the Justices, 254 Mass. 617, 620, 151 N. E. 681, and, applying the rule, contended that St. 1933, c. 76, does not fall within the ‘Excluded Matter.’ This contention is based upon the argument that St. 1933, c. 76, ‘abolishes a division of the department of public utilities, transfers the powers and duties of that division to the commission itself, and provides that the commission may appoint a smoke inspector, with assistants, with the obvious object of having the commission assign all (or practically all) of the duties relative to smoke inspection to that inspector,’ and that the act puts the business of smoke inspection and the enforcement of the smoke abatement back where it was before the division of smoke inspection was created in 1930. They further contend that St. 1933, c. 76, which...