In re Justices Relative to the Eighteenth Amendment of the Constitution of the United States
| Decision Date | 15 March 1928 |
| Parties | OPINION OF THE JUSTICES RELATIVE TO THE EIGHTEENTH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The House of Representatives of Massachusetts propounded a question regarding an initiative petition relating to amending the Eighteenth Amendment of the Constitution of the United States. Question answered.
Word ‘measure’ in Const. Amend. art. 48, pt. 2, s 1, providing that ‘initiative petition shall set forth the full text of the constitutional amendment or law, hereinafter designated as the ‘measure,” means either a ‘constitutional amendment’ or a ‘law’ as defined by constitutional amendment itself and has no wider signification.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Measure.]
Phrase ‘constitutional amendment’ in Const. Amend. art. 48, relating to initiative and referendum, refers to an amendment to Constitution of the commonwealth, and not to amendments to United States Constitution.
A word in an amendment to Constitution is not to be given a constricted meaning, but must be given meaning most obvious to common understanding.
Const. U. S. art. 5, vests power over amending Constitution exclusively in Legislatures of the several states and excludes voters of the states from participating in process of amendment.
Certificate of Attorney General on initiative petition concerns merely matters of form, and whatever fails to posses elements indispensable for enactment or for submission to people cannot be made into law by such certificate.
6. Statutes k35 1/2-Proposed law introduced by initiative petition, to ascertain will of people of state regarding repeal of Eighteenth Amendment to Federal Constitution held neither ‘law’ nor ‘measure’ within constitutional amendment relating to ‘The Initiative’ Const. Amend. art. 48).
Proposed law, introduced by initiative petition, to ascertain will of people of commonwealth with reference to repeal of Eighteenth Amendment to Federal Constitution by placing on official ballot at next state election question whether Senators and Representatives should be requested to support constitutional amendment repealing Eighteenth Amendment to Federal Constitution, and providing that vote taken should not be regarded as an instruction but as opinion of people, held to be neither a ‘measure’ nor a ‘law,’ within meaning of provisions as to ‘The Initiative’ in Const. Amend. art. 48; ‘law’ being a statement of circumstances in which public force will be brought to bear upon men through courts or a rule of conduct, with appropriate means for enforcement declared by some authority possessing sovereign power over subject.
[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Law.]
The order of the House of Representatives follows:
On February 28, 1928, the House of Representatives adopted the following order:
Whereas, there purports to be pending before the General Court, under the provisions of article XLVIII of the Amendments to the Constitution relative to the Initiative, a certain matter, referred to its committee on legal affairs, purporting to be a proposed law introduced into the General Court by an initiative petition, which appears in House Document No. 214 of the current year, and is entitled ‘An act to ascertain the will of the people of the commonwealth with reference to the repeal of the Eighteenth Amendment to the Constitution of the United States,’ a copy of which document is herewith submitted; and
Whereas, there exists grave doubt as to whether or not said committee in its consideration of and report upon said matter, and said General Court in its action thereon, are required to follow the procedure prescribed in the aforesaid provisions of said article XLVIII; therefore be it
Ordered that the opinions of the Honorable the Justices of the Supreme Judicial Court be required by the House of Representatives on the following important question of law:
Is the above-entitled matter a ‘law’ or a ‘measure’ within the meaning of the aforesaid provisions of said article XLVIII?
The order was transmitted to the Justices on March 1, 1928, and on March 15, 1928, they returned the following answer:
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectively submit this answer to the question propounded by the order adopted on the twenty-eighth day of February, 1928. Copy of the order is hereto annexed.
The substance of the question is whether a pending matter purporting to be a ‘proposed law’ introduced by an initiative petition is within the terms of article 48 of the Amendments to the Constitution. The title of the ‘proposed law’ is ‘An act to ascertain the will of the people of the commonwealth with reference to the repeal of the Eighteenth Amendment to the Constitution of the United States.’ The text of the ‘proposed law’ provides in section 1 that at the next state election there shall be placed upon the official ballot in each congressional district the question ‘shall the Senators from this common wealth and the Representative in Congress from this district be requested to support a constitutional amendment to repeal the Eighteenth Amendment to the Constitution of the United States known as the Prohibition Amendment?’ By section 2 it is stated that the vote thus to be taken shall not be regarded as an instruction to the Senators and Representatives but as the opinion and will of the people.
[1][2][3] The ‘popular initiative,’ which by part 1 of article 48 of the Amendments to the Constitution ‘the people reserve to themselves,’ is there defined to be ‘the power of a specific number of voters to submit constitutional amendments and laws to the people for approval or rejection.’ By ‘The Initiative,’ part 2, § 1, of said article 48, it is provided that:
An ‘initiative petition shall set forth the full text of the constitutional amendment or law, hereinafter designated as the ‘measure.’ * * *'
Plainly the word ‘measure’ as here used as defined by the amendment itself to be either a ‘constitutional amendment’ or a ‘law.’ It has not wider signification.The ‘matter’ to which the order of February 28, 1928, refers is not a ‘constitutional amendment.’ That is confined to an amendment to the Constitution of this commonwealth. The precise question is whether it is a ‘law’ as used in the initiative amendment. A word in an amendment to the Constitution is not to be given a constricted meaning but the sense most obvious to the common understanding. Attorney General v. Methuen, 236 Mass. 564, 573,129 N. E. 662. That part of article 48 of the Amendments here material is more narrow than the power conferred upon the General Court by part 2, c. 1, § 1, art. 4, of the Constitution, whereby full power and authority are...
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