Com. v. Yee

• Decision Date: 05 April 1972
• Citation: 281 N.E.2d 248,361 Mass. 533
• Parties: COMMONWEALTH v. Chuck M. YEE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 248

281 N.E.2d 248

361 Mass. 533

COMMONWEALTH v. Chuck M. YEE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 7, 1972.

Decided April 5, 1972.

Robert Snider, Asst. Dist. Atty., for the Commonwealth.

John A. Pino, Boston, for defendant.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON and HENNESSEY, JJ.

SPIEGEL, Justice.

The case is before us on an interlocutory report under the provision of G.L. c. 278, § 30A, inserted by St.1954, c. 528. There was a hearing below on February 3, 1972, on the defendant's motion to dismiss. The trial judge presented the following questions: '(1) What is the effective date of . . . (St.1971, c. 1071, § 2)? (2) Assuming the effective date of . . . (St.1971, c. 1071, § 2) is thirty (30) days after approval, what is the effect of . . . (St.1972, c. 2)? (3) May the defendant, who was indicted prior to the effective date of the repeal of c. 94, sections 212 and 212A, be tried and punished by this court?'

The judge stated that he was of opinion that the questions raised by the motion to dismiss 'are being and may be raised in almost every case involving a violation of G.L. c. 94 throughout the Commonwealth . . . and . . . that a . . . resolution of such questions . . . is required before trial.'

On November 19, 1971, the defendant was arrested by officers of the Boston drug control unit. On November 30, 1971, a Suffolk County grand jury returned two indictments charging the defendant with possession of heroin (G.L. c. 94, § 212), and possession of heroin with intent to sell (G.L. c. 94, § 212A). On January 18, 1972, the defendant filed a motion to dismiss the indictments for lack of jurisdiction. On February 3, 1972, after a hearing, the motion was denied.

Statute 1971, c. 1071, was approved on November 11, 1971. The Commonwealth's brief aptly describes c. 1071 as a 'law respecting the repeal and establishment of laws governing the administration and control of narcotics in the hands of doctors, dentists, druggists, and the like and of the criminal law relating to the illegal possession and traffic of narcotics.' Section 1 of c. 1071 amends the General Laws by inserting c. 94C. ¹ Section 2 repeals several sections of G.L. c. 94, incuding §§ 212 and 212A. Section 9 provides, in pertinent part: 'Chapter ninety-four C of the General Laws, inserted by section one of this act, shall take effect on July first, nineteen hundred and seventy-two.' This section did not contain any provision relative to the effective date of the repeals referred to in § 2 of c. 1071.

In the absence of further action by the Legislature, the statutes under which the defendant was indicted would have been repealed in either thirty days from November 11, 1971, if the act was not subject to The Referendum, or in ninety days from November 11, 1971, if the act was subject to The Referendum. See Commonwealth v. French, 357 Mass. 356, 376, fn. 21, 259 N.E.2d 195. In either case, there would have been an intervening period within which possession of heroin, and possession of heroin with intent to sell, would not have been unlawful. To remedy this problem, the Legislature passed St.1972, c. 2 (approved January 27, 1972). ² Declared to be an emergency law, it was to be effective immediately. The apparent intent of this act was to eliminate the hiatus between the repeal of the old statutes regulating drugs and the effective date of the new statutes. Whether this result was achieved is the question to which we address ourselves.

1. The Commonwealth's position is that St.1971, c. 1071, § 2, would not have become effective until February 9, 1972, ninety days after its approval. This being so, St.1972, c. 2, was timely corrective legislation which eliminated the gap between the repeal of the old drug laws and the effective date of the new ones. The defendant, on the other hand, argues that § 2 became effective on December 11, 1971, thirty days after its approval. If the defendant is correct, it would follow that, as the Commonwealth concedes, St.1972, c. 2, is meaningless. If the pertinent statutes had already been repealed, St.1972, c. 2, could not have revived them. This being so, the defendant further contends, the Superior Court has no power to try, convict, and sentence him.

The following statutory and constitutional provisions are relevant in determining the effective date of § 2 of c. 1971. General Laws (Ter.Ed.) c. 4, § 1, provides: 'A statute enacted by the general court which may be made the subject of a referendum petition and which is declared therein to be an emergency law, unless otherwise expressly provided therein, shall take effect as soon as it has the force of a law conformably to the constitution. A statute so enacted which may not be made the subject of such a petition and for which a different time of taking effect is not therein expressly provided shall take effect as soon as it has the force of a law as aforesaid if it is declared therein to be an emergency law, otherwise on the thirtieth day next after the earliest day on which it has the force of a law as aforesaid; provided, that a statute so enacted which may not be made the subject of such a petition and which is to take effect upon its acceptance by a municipal or other corporation or by any board or officer thereof, unless otherwise expressly provided therein, shall, for the purpose of such acceptance only, take effect as soon as it has the force of a law as aforesaid.'

Article 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, provides, in part:

'I. When Statutes shall take Effect.

'No law passed by the general court shall take effect earlier than ninety days after it has become a law, excepting laws declared to be emergency laws and laws which may not be made the subject of a referendum petition, as herein provided. . .

'III. Referendum Petitions.

'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. Excluded Matters.--No law that relates to religion, religious practices or religious institutions; or to the appointment, qualification, tenure, removal or compensation of judges; or to the powers, creation or abolition of courts; or the operation of which is restricted to a particular town, city or other political division or to particular districts or localities of the commonwealth; or that appropriates money for the current or ordinary expenses of the commonwealth or for any of its departments, boards, commissions or institutions shall be the subject of a referendum petition.'

Thus, if St.1971, c. 1071, is a law 'which may be made the subject of a referendum petition' (G.L. c. 4, § 1), the effective date of § 2 would have been February 9, 1972. Art. 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, I. If not subject to referendum, the effective date of § 2 would have been December 11, 1971. G.L. (Ter.Ed.) c. 4, § 1. Whether St.1971, c. 1071, is a law subject to referendum depends upon whether it is a law relating to the 'powers, creation or abolition of courts.' Art. 48 of the Amendments to the Constituion of the Commonwealth, The Referendum, III, § 2.

The chief thrust of c. 1071 is not directed at the judiciary. It is true, of course, that by virtue of the Superior Court's general criminal jurisdiction (G.L. c. 212, § 6, as amended), the legislation does, at least, indirectly relate to the 'powers . . . of courts.' ³ In another context, this court has stated: 'A general law covering a subject disconnected with courts in its main feature does not come within the prohibition of . . . article 48 . . . because, in an incidental and subsidiary way, the work of the courts may be increased or diminished or changed.' Horton v. Attorney Gen., 269 Mass. 503, 511, 169 N.E. 552, 555--556. Accord, Cohen v. Attorney Gen., 354 Mass. 384, 387, 237 N.E.2d 657.

Article 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, III, gives to the people a general power to review by referendum any law enacted by the Legislature which is not expressly excluded. Any law relating to the 'powers . . . of courts' would be an exception to this general power of referendum. Exceptions to a general law, whether statutory or constitutional, should be strictly construed. Opinion of the Justices, 254 Mass. 617, 620, 151 N.E. 680. State ex rel. Keller v. Forney, 108 Ohio St. 463, 467, 141 N.E. 16. We think that a reasonable construction of 'powers . . . of court's would encompass a statute which expressly confers or restricts a court's jurisdiction. For instance, G.L. c. 212, § 6, as amended, which states that the Superior Court 'shall have original jurisdiction of all crimes' could be characterized as a law relating to the 'powers . . . of courts' and hence not subject to referendum. On the other hand, a statute making certain specified acts or omissions criminal (or repealing such a statute) would not be included within the phrase 'powers . . . of courts' because it does not relate to jurisdiction.

The cases of Commonwealth v. Sacco, 255 Mass. 369, 411, 151 N.E. 839, and deLeo v. Childs, 304 F.Supp. 593, 596 (D.Mass.), further illustrate the line we are attempting to draw. In the Sacco case, the court stated in effect that St.1922, c. 508, which empowered the Superior Court to grant motions for new trials 'at any time before sentence,' was a law relating to the powers of courts. In the deLeo case, the Massachusetts 'long arm' statute, G.L. c. 223A, inserted by St.1968, c. 760, was also held to relate...