Dorsky v. Goss

• Decision Date: 13 July 1948
• Citation: 60 A.2d 908
• Parties: FARRIS, Atty. Gen., ex rel. DORSKY et al. v. GOSS, Secretary of State.
• Court: Maine Supreme Court

60 A.2d 908

FARRIS, Atty. Gen., ex rel. DORSKY et al.

v.GOSS, Secretary of State.

Supreme Judicial Court of Maine.

July 13, 1948.

Exceptions from Superior Court, Cumberland County.

Mandamus proceeding by Ralph Farris, in his capacity as Attorney General of the State of Maine, on the relation of Benjamin L. Dorsky and others, against Harold I. Goss, in his capacity of Secretary of State of the State of Maine, to compel the respondent to place on ballots to be submitted to the people at the September election a certain bill which had been enacted by the legislature, in such manner that the people of the state could choose between that bill and an initiated measure as competing measures or reject both of them. The justice before whom the petition for writ of mandate was brought, ordered peremptory writ to issue as prayed for. Respondents took exceptions to such ruling.

Exceptions overruled.

MURCHIE, J., dissenting.

Berman, Berman & Wernick, of Portland, for petitioner.

Goodspeed & Goodspeed, of Augusta, for respondent.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, FELLOWS, and MERRILL, JJ.

THAXTER, Justice.

The issue before the court in this case is a narrow one. The requisite number of electors of the state in accordance with the provisions of Article XXXI of the constitution have taken the necessary steps to initiate a certain measure entitled ‘An Act to Protect the Right to Work and to Prohibit Secondary Boycotts, Sympathetic Strikes, and Jurisdictional Strikes'. This proposed law which we shall hereinafter refer to as the ‘Barlow Bill’, or the ‘initiated measure’, was on March 25th and 27th, 1947, in accordance with Article XXXI, supra, proposed for enactment to the legislature then in session. The Senate referred it to the Committee on Judiciary for the purpose of determining the sufficiency of the initiating petitions. The order of reference was concurred in by the House. The committee reported favorably and recommended that the ‘initiated measure’ be submitted to the voters. The legislature accepted this report and on April 15th at its direction the committee report, the ‘initiated measure’, and the petitions accompanying it were transmitted to the Secretary of State. Article XXXI, Sec. 18, of the constitution provides in part as follows:

‘Any measure thus proposed by not less than twelve thousand electors, unless enacted without change by the legislature at the session at which it is presented, shall be submitted to the electors together with any amended form, substitute, or recommendation of the legislature, and in such manner that the people can choose between the competing measures or reject both.’

The legislature did not enact the ‘initiated measure’ without change and it is now to be submitted to the electors at the general election to be held in September. A number of bills dealing with labor relations were filed with the same legislature. Only one of these, which is now found in Pub. Laws 1947, Ch. 395, was enacted. We shall hereinafter refer to this as the ‘Tabb Bill’.

The attorney general, on relation of the petitioners who are representatives and officers of the Maine State Federation of Labor, has brought a petition for a writ of mandamus to compel the Secretary of State to place on the ballots to be submitted to the people at the September election the ‘Tabb Bill’ ‘in such manner that the people of the State of Maine can choose between the two measures as competing measures or reject both of them.’ The justice before whom the petition for the writ of mandamus was brought ordered the peremptory writ to issue as prayed for. Two exceptions were taken to this ruling: the first based on the finding that ‘in substance and effect, the ‘Tabb Bill’ was the Legislature's substitute for the ‘Barlow Bill’, within the meaning of Section 18 aforesaid'; the second based on the finding that ‘in substance and effect the enactment of the ‘Tabb Bill’ was a ‘recommendation’ of the Legislature, within the meaning of Section 18 aforesaid'.

If the ‘Tabb Bill’ is a substitute for the ‘Barlow Bill’, the writ of mandamus was properly issued. In the view which we take of the problem before us, we need consider only the first exception which covers this point.

We have here the problem of construing Article XXXI of the constitution, perhaps not so much of construing it, for its language is not ambiguous, but of applying it to the problem before us; also we must determine whether the ‘Tabb Bill’ is, within the meaning of Article XXXI, a substitute for the ‘Barlow Bill’.

In construing a statute, and the same principle holds true with respect to the constitution, we look primarily to the language used which may be illumined in cases of doubt by the surrounding circumstances. Dominion Fertilizer Co. v. White, 115 Me. 1, 4, 96 A. 1069; In re McLay, 133 Me. 175, 175 A. 348; Guilford v. Monson, 134 Me. 261, 185 A. 517; Old South Association v. Boston, 212 Mass. 299, 99 N.E. 235; Plunkett v. Old Colony Trust Co. 233 Mass. 471, 124 N.E. 265, 7 A.L.R. 696; Bayon v. Beckley, 89 Conn. 154, 93 A. 139; United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007; Note 70 A.L.R. 10.

Justice Holmes, before he became a member of the Supreme Court, made a statement which is peculiarly applicable here: ‘We do not inquire what the legislature meant, we ask only what the statute means.’

This court is not concerned with the consequences of statutory or constitutional provisions. Our duty is to interpret, not to make the law.

Article XXXI of the constitution of this state became effective as an amendment on January 1, 1909, almost forty years ago. It made a fundamental change in the existing form of government in so far as legislative power was involved. Formerly that power was vested in the House of Representatives and the Senate. By the amendment the people reserved to themselves power to propose laws and to enact or reject the same at the polls independent of the legislature, and also reserved power at their own option to approve or reject at the polls any act, bill, resolve or resolution passed by the joint action of both branches of the legislature. The amendment provides that after its adoption the style of acts and laws instead of being ‘Be it enacted by the Senate and House of Representatives in Legislature Assembled’, Art. 4, pt. 1, § 1, shall ‘Be it enacted by the people of the state of Maine’. Art. 31. In short, the sovereign which is the people has taken back, subject to the terms and limitations of the amendment, a power which the people vested in the legislature when Maine became a state. The significance of this change must not be overlooked, particularly by this court whose duty it is to so construe legislative action that the power of the people to enact their laws shall be given the scope which their action in adopting this amendment intended them to have.

The right of the people, as provided by Article XXXI of the constitution, to enact legislation and approve or disapprove legislation enacted by the legislature is an absolute one and cannot be abridged directly or indirectly by any action of the legislature. Section 18 of this article, it is to be noted, does not in any manner encroach on the prior power of the legislature to enact legislation.

It does, however, provide and make it mandatory that, if an initiated measure is not enacted by the legislature without change, it, ‘together with any amended form, substitute, or recommendation of the legislature * * *’ shall be submitted to the electors ‘* * * in such manner that the people can choose between the competing measures or reject both’. Neither by action nor by inaction can the legislature interfere with the submission of measures as so provided by the constitution. And if the constitutional provisions should not be so complied with in the submission of a substitute for the initiated measure, the people would be denied their right to choose between the two.

There is a clear distinction between a provision abridging the power of the legislature to enact certain classes of legislation pending an initiated measure, and a provision requiring that if such class of legislation be enacted, the same be submitted to the people, together with the initiated measure. As we have said, Section 18 places no curb on the enactment of legislation; but a bill enacted which is a substitute for the initiated measure must go to the electors with the initiated measure, and does not become a law until they approve it under the provisions of Section 18.

Section 22 of Article XXXI reads as follows:

‘Until the legislature shall enact further regulations not inconsistent with the constitution for applying the people's veto and direct initiative, the election officers and other officials shall be governed by the provisions of this constitution and of the general law, supplemented by such reasonable action as may be necessary to render the preceding sections self executing.’

This section, when read in connection with Sections 18 and 20, establishes that Section 18 is self executing. The machinery for submission of the initiated bill and the substitute is the same; and in each case the same obligation is on the Secretary of State.

Is the ‘Tabb Bill’ a substitute for the ‘Barlow Bill’? In answering this question we are not concerned, as we have tried to point out above, with how the legislature may have regarded it. We must decide only what it is in fact.

A bill which deals broadly with the same general subject matter, particularly if it deals with it in a manner inconsistent with the initiated measure so that the two cannot stand together, is such a substitute as was referred to in Article XXXI. This is the test laid down in Starbird v. Brown, 84 Me. 238, 24 A. 824, to determine whether one statute may either have amended or repealed an existing law. The court there said, 84 Me. at page 240, 24 A. at page 824: ‘Can the new law and...