Horton v. Attorney Gen.

Citation269 Mass. 503,169 N.E. 552
PartiesHORTON et al. v. ATTORNEY GENERAL. SAME v. SECRETARY OF THE COMMONWEALTH.
Decision Date09 January 1930
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Case Reserved from Supreme Judicial Court, Suffolk County.

Petition by Franklin P. Horton and others for writ of certiorari against the Attorney General of the Commonwealth, and for a writ of mandamus against the Secretary of the Commonwealth. Petitions dismissed.G. Gleason, of Boston, for petitioners.

R. Clapp, Asst. Atty. Gen., for respondents.

RUGG, C. J.

These two petitions, one for a writ of certiorari against the Attorney General, and the other for a writ of mandamus against the Secretary of the Commonwealth, having the same ultimate object, have been consolidated for the purpose of being heard together and reserved upon the pleadings for our determination.

The pertinent facts disclosed by the record are that under article 48 of the Amendments to the Constitution an initiative petition setting forth the text of a law proposed, duly signed by ten qualified voters, was submitted to the Attorney General. The title of the proposed law is ‘An act to create a motor vehicle insurance fund for the purpose of providing compensation for injuries and deaths due to motor vehicle accidents.’ The main provisions of the proposed law, summarily stated, are that the present statutes (St. 1925, c. 346, and all its amendments) requiring owners of motor vehicles to furnish security for their civil liability for personalinjuries caused by their motor vehicles are repealed. A body corporate, known as the State Motor Vehicle Insurance Fund (hereafter called the ‘Fund’), is created, to be under the control and management of a board of three, a commissioner and two associate commissioners, appointed by the Governor. No motor vehicle (with certain exceptions) shall be registered unless the application is accompanied by a contribution to the ‘Fund’ according to specified classifications, which may be altered from time to time by the board of commissioners, in order to secure or maintain fair and reasonable classifications and adequate, just, or reasonable charges. Such contributions shall be deposited with the Treasurer and Receiver General, who is made custodian of the ‘Fund,’ and shall be used to carry out the provisions of law relative to the ‘Fund’ after first paying the expenses of administration under the proposed law. A person thus paying a contribution makes a contract of insurance with the ‘Fund’ whereby he is to be indemnified during the term of the contract against loss within specified limits resulting from liability to pay damages for bodily injuries or death arising out of ownership, operation, maintenance, control or use of such motor vehicle upon the ways of this commonwealth. The contract terminates upon the expiration, revocation, or suspension of the registration of the motor vehicle. The board shall defend, or may settle in the name and on behalf of the assured, any actions and claims, and shall pay all expenses in connection therewith, and shall be subrogated, to the extent of such payments to claimants, to the rights of the assured against others. The board is enjoined to file annually with the insurance commissioner a report of the finances of the ‘Fund’ similar to that required of insurance companies.

The registrar of motor vehicles must investigate every accident in which a motor vehicle is involved, where personal injury did or may result, and file a report with the board. Such proportion of the expenses thereof, including salaries, as may be agreed upon by the registrar, the commissioner of the ‘Fund,’ and the chairman of the department of administration and finance, shall be charged to the ‘Fund.’ The one-year statute of limitations applicable to actions under the present automobile security law is repealed. No appropriation shall be made by the commonwealth for current or ordinary expenses of the ‘Fund,’ and the board of commissioners is authorized to provide by temporary loan for carrying out provisions of law relative to the ‘Fund.’ Sections 1 and 2 of the proposed law, which repeal the one-year statute of limitations and the present compulsory automobile security law, St. 1925, c. 346, and its amendments, take effect on December 31, 1930, and the remainder ‘upon the passage of this act.’ The Attorney General made on the initiative petition a certificate in the words of ‘The Initiative,’ part 2, § 3, of article 48 of the Amendments, and then the petition was filed with the Secretary of the Commonwealth. Parties have stipulated, for the purpose of consideration of these cases, that, since the institution of the present proceedings and not later than the first Wednesday of December, 1929, the required number of signatures remaining to be secured has been filed with the Secretary of the Commonwealth and that he intends to transmit the initiative petition as thus completed to the clerk of the House of Representatives upon the assembling of the General Court.

[1][2] A preliminary question as to the power of the court to consider the issues raised by the petitions has been argued and must be decided. There are not to be found in article 48 of the Amendments to the Constitution any words indicative of a purpose that, respecting proceedings pursuant to its provisions, the courts are shorn of their ordinary powers. It is elementary in constitutional law under the Constitution of this commonwealth that a duty is cast upon the judicial department of government, when the question is properly raised between litigants, to determine whether a public officer is overstepping constitutional bounds and whether statutes duly enacted conform to the fundamental law as expressed in the Constitution. It is a delicate duty, always approached with caution and undertaken with reluctance, but an imperative duty which cannot be escaped. The words defining the authority and obligation resting on the Attorney General under ‘The Initiative,’ part 2, § 3, of article 48 of the Amendments to the Constitution, import no more of unreviewable finality than do those of part 2, chapter, 1, § 1, arts. 3 and 4, of the Constitution, and of article 2 of its Amendments, creating the legislative powers of the General Court, or those of article 21 of the Amendments, conferring upon commissioners power to divide the territory of the several counties into representative districts. Genuine controversy as to the conformity of acts of these bodies to the requirements of the Constitution is a justiciable subject and cognizable by the courts when properly presented. See, for example, Portland Bank v. Apthorp, 12 Mass. 252, 253;In re Wellington, petitioners, 16 Pick. 87, 95,26 Am. Dec. 631;Larcom v. Olin, 160 Mass. 102, 35 N. E. 113;Perkins v. Westwood, 226 Mass. 268, 271, 115 N. E. 411;Vigeant v. Postal Telegraph Cable Co., 260 Mass. 335, 157 N. E. 651, 53 A. L. R. 867;Attorney General v. Methuen, 236 Mass. 564,129 N. E. 662;Attorney General v. Apportionment Commissioners, 224 Mass. 598, 113 N. E. 581;Duffy v. Treasurer and Receiver General, 234 Mass. 42, 125 N. E. 135;Juggins v. Executive Council, 257 Mass. 386, 154 N. E. 72. It follows irresistibly from these indisputable premises that the certificate of the Attorney General under said section 3, part 2, ‘The Initiative,’ is open to inquiry as to its conformity to the Constitution in appropriate proceedings. That was decided in substance in Brooks v. Secretary of Commonwealth, 257 Mass. 91, 153 N. E. 322. It was stated in Opinion of the Justices, 262 Mass. 603, 606, 160 N. E. 439. Nothing contrary to these principles was decided in Anderson v. Secretary of Commonwealth, 255 Mass. 366, 151 N. E. 378, or in Thompson v. Secretary of the Commonwealth, 265 Mass. 16, 163 N. E. 192. Without analyzing those decisions, it is enough to say that, if anything there said is thought to be of broader sweep, it must be narrowed to the particular facts of each case and be taken to be limited by the underlying principles upon which the present decision rests.

[3] I. The petitioners contend that the proposed law is not within the general scope of the provisions of article 48 of the Amendments to the Constitution and offends against its provisions on several grounds, and that the certificate of the Attorney General was improvidently issued. Questions of that nature are put in issue by the pleadings. The petitionersare proper parties to enforce a public duty on the part of the respondents such as is disclosed on this record. Brooks v. Secretary of Commonwealth, 257 Mass. 91, 153 N. E. 322.

The main design of the proposed law, in the light of its title and of recent statutes to which it refers, in general appears to be the adoption of some rational means calculated to diminish the frightful toll of life and suffering exacted from the public by motor vehicles on public ways, and to afford some protection to the injured against the loss arising from that cause.

[4] 1. The first contention of the petitioners is that the proposed law makes no provision for a judicial review of the contributions required to be made to the ‘Fund’ by owners of motor vehicles and that therefore it falls within ‘The Initiative,’ part 2, § 2, ‘Excluded Matters,’ as being ‘inconsistent with * * * the right of access to and protection in courts of justice.’ Reliance is placed in this connection on that part of the Opinion of the Justices, 251 Mass. 569, found at pages 610, 611, 147 N. E. 681. It there was said in substance that, where rates to be charged for public utility service by private persons or corporations were regulated by public authority, provision must be made for judicial review of the rates so established, to the end that they may be reasonable, yield a fair return upon the value of the property employed, after paying costs and carrying charges, and that final determination of such rates could not be vested in a public officer, as was expressly...

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81 cases
  • Opinion of the Justices to the Senate
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 27 Abril 1978
    ...not excluded from the initiative process. Cohen v. Attorney Gen., 354 Mass. 384, 387, 237 N.E.2d 657 (1968). Horton v. Attorney Gen., 269 Mass. 503, 509-511, 169 N.E. 552 (1929). See Commonwealth v. Yee, 361 Mass. 533, 537, 281 N.E.2d 248 We answer question 3(b) in the negative. 4. Question......
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