Com. v. John G. Grant & Sons Co., Inc.

• Decision Date: 03 August 1988
• Citation: 403 Mass. 151,526 N.E.2d 768
• Parties: , 18 Envtl. L. Rep. 21,474 COMMONWEALTH v. JOHN G. GRANT & SONS CO., INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 768

526 N.E.2d 768

403 Mass. 151, 18 Envtl. L. Rep. 21,474

COMMONWEALTH v. JOHN G. GRANT & SONS CO., INC.

Supreme Judicial Court of Massachusetts Norfolk.

Argued May 5, 1988.

Decided Aug. 3, 1988.

James M. Burke, Brockton, for defendant.

James A. Paisley, Sp. Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

The defendant corporation was found guilty by a jury on a complaint charging it with filling or altering a fresh water wetland subject to flooding in violation of G.L. c. 131, § 40, and of a by-law of the town of Braintree. The judge imposed a fine of $87,500 for the violation of § 40 and placed the conviction for the violation of the by-law on file. ¹

The defendant appealed. The Appeals Court concluded that the provisions concerning the penalty to be imposed for a violation of § 40 were unconstitutionally vague, and that the verdict must be set aside and the complaint dismissed as to the alleged violation of § 40. Commonwealth v. John G. Grant & Sons Co., 24 Mass.App.Ct. 690, 693, 512 N.E.2d 522 (1987). We granted the Commonwealth's application for further appellate review to consider the question whether due process principles compelled the result reached by the Appeals Court. ² We conclude that the two provisions prescribing penalties for violations of § 40 can be construed to allow the imposition of a fine on the defendant without violating its right to due process of law. We then proceed to consider issues that, in light of its conclusion on the due process challenge to § 40, the Appeals Court did not need to discuss. We conclude that there must be a new trial.

The defendant operates a business on premises at 60 Garden Park in Braintree. Its principal activities are the demolition of buildings and the rental of heavy equipment. From time to time, there are large piles of scrap metal and rubbish on the site. As we shall explain later, the evidence would have warranted a finding that the portion of the premises allegedly filled by the defendant was a fresh water wetland subject to flooding. The principal factual contest at trial was whether the defendant had filled the area. The defendant contended at trial that any filling had been done by predecessors in title. The Commonwealth presented evidence of the filling of a portion of the wetland on the site on various occasions while the defendant owned the property.

1. The defendant argues that, because G.L. c. 131 has two distinct and dissimilar provisions prescribing penalties for the violation of § 40, the statutory pattern is unconstitutionally vague in violation of its right to due process of law and the complaint must be dismissed. The concept that a criminal statute may be void for vagueness is based in part on the principle that a person should be able to know what conduct is criminal and what will be the consequences to him of a violation of that statute. See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811-812, 98 L.Ed. 989 (1954); Commonwealth v. Jasmin, 396 Mass. 653, 655, 487 N.E.2d 1383 (1986). The concept is also founded in part on the principle that the statute should provide sufficient standards to control prosecutorial and judicial discretion. See Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972); Commonwealth v. Williams, 395 Mass. 302, 304-305, 479 N.E.2d 687 (1985). Economic regulatory legislation, as here, is subject to a less strict vagueness test than legislation, for example, inhibiting the exercise of constitutionally protected rights of free speech or of association. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-499, 102 S.Ct. 1186, 1193-1194, 71 L.Ed.2d 362 (1982); Commonwealth v. Sefranka, 382 Mass. 108, 110-111, 414 N.E.2d 602 (1980). In the circumstances, the defendant may assert only its rights and not those of others who might be affected differently. Commonwealth v. Jasmin, supra 396 Mass. at 655, 487 N.E.2d 1383. The defendant makes no claim that it has greater rights under the State Constitution than under the Constitution of the United States.

In this case there is no claim that § 40 does not state with sufficient clarity that the filling or altering of certain areas, such as wetlands, is unlawful unless the procedural and substantive requirements of § 40 are complied with. In other words, the defendant does not assert that § 40 is unclear or vague, in a constitutional sense, with respect to the conduct made unlawful. The problem arises because § 40 itself sets forth penalties for its violation, ³ and G.L. c. 131, § 90, does so as well, but in different terms. ⁴

Because the defendant is a corporation and corporations cannot be imprisoned, we need focus only on the range of fines set forth in the two sections. Section 40 prescribes a fine of not more than $1,000 for its violation and provides that each day of continuing violation shall constitute a separate offense. Section 90 provides a fine of not less than $100 nor more than $5,000 for a violation of § 40. There is no doubt that the Legislature intended that a fine could be imposed on a corporation for its violation of § 40. If we construe the two statutes so that each imposes restraints on the permissible fine, so that the total fine for all acts of the same character in violation of § 40 at the same site cannot exceed $5,000 (§ 90) and the fine for each act in violation of § 40 cannot exceed $1,000 (§ 40), the defendant can hardly complain that it was not on notice of that potential penalty. In so doing, we construe the statutory enactments in the defendant's favor and impose on the defendant a penalty falling within the limitations of each statute. This construction fulfils, as far as possible, the twice expressed legislative purpose that a corporation should be fined for violations of § 40. As will be seen, this approach meets the requirements of due process under the decided cases. If we apply this construction of the penalty provisions of G.L. c. 131, §§ 40 and 90, the defendant could not have been misled and the prosecutor and any sentencing judge would have no impermissible range of discretion.

The principle that no one may be required at his peril to speculate as to the meaning of a criminal statute applies to sentencing as well as to substantive provisions. See Commonwealth v. Gagnon, 387 Mass. 567, 569, 441 N.E.2d 753 (1982), citing United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), and United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948). In the Evans case, the statute simply failed to provide a penalty for certain conduct which it made criminal. The Court held that the problem could not properly be resolved by judicial interpretation and thus was beyond the competence of the Court. Id. at 495, 68 S.Ct. at 641. That case, consequently, was not a void for vagueness case. It involved an absence of a stated penalty rather than, as here, an excess of penalty provisions. The Batchelder case is more instructive for our purposes. There, two statutes made the same conduct criminal and prescribed different maximum penalties. The defendant was found guilty under the statute having the higher maximum penalty, and the Supreme Court upheld a sentence based on that provision. The Court said: "Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied." Id. 442 U.S. at 123, 99 S.Ct. at 2204.

The Appeals Court concluded that the penalty provisions of G.L. c. 131, concerning a violation of § 40 were impermissibly vague substantially on the basis of this court's holding in Commonwealth v. Gagnon, supra. We think this case presents a far less serious level of uncertainty than the Gagnon case did and does not require dismissal of the charges. In the Gagnon case, the conflict between the legislative directions was substantial and irreconcilable. One provision allowed punishment by imprisonment or a fine, or both. Another provision mandated a minimum one-year term of imprisonment. There was no basis on which the inconsistency could be resolved. There was, for example, no instructive legislative history. Contrast United States v. Restrepo, 676 F.Supp. 368, 375 (D.Mass.1987), in which the judge, confronted with a problem similar to that presented in the Gagnon case, concluded that the legislative history resolved the dilemma.

In the case before us we have no fundamental inconsistency between the two penalty provisions. In the Gagnon case, there was, in contrast, a provision for a mandatory prison sentence which conflicted with a provision authorizing simply the imposition of a fine. Here the penalty of a fine is an option, indeed as to a corporation the only option, under each statutory provision. The only possible uncertainty is the amount of the fine.

Although we agree with the Appeals Court that neither penalty provision is more specific than the other and thus controlling ( Commonwealth v. John G. Grant & Sons Co., 24 Mass.App.Ct. 690, 691-692, 512 N.E.2d 522 [1987] ), we see no such wide disparity of potential sentences under the two provisions as did the Appeals Court. See 24 Mass.App.Ct. at 692, 512 N.E.2d 522. The Appeals Court concluded, by implication, that each day unauthorized fill remained on the premises warranted a separate fine. On that theory a fine of $1,000 a day under the penalty provisions of § 40, over a period of more than two years, presented a substantial potential variation from the maximum fine of $5,000 under § 90. Id.

The defendant properly has argued in the trial court and on appeal that...