in re Municipal Suffrage To Women

• Court: Supreme Judicial Court of Massachusetts
• Citation: in re Municipal Suffrage To Women, 160 Mass. 586, 36 N.E. 488 (Mass. 1894)
• Decision Date: 28 February 1894
• Parties: In re MUNICIPAL SUFFRAGE TO WOMEN.

160 Mass. 586

36 N.E. 488

In re MUNICIPAL SUFFRAGE TO WOMEN.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1894

OPINION

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

In reply to your order of the 2d inst., a copy of which is annexed, we, the undersigned, four of the justices of the supreme judicial court, respectfully submit the following opinion:

The questions all impliedly assume that the legislature can constitutionally pass an act granting to women the right to vote in town and city elections, and we proceed to answer the questions on this assumption.

The constitution of Massachusetts was framed after much public discussion, and after 9 of the original 13 states had established constitutions. The opinions of some of the men engaged in framing these constitutions are well known. John Adams took a principal part in framing the constitution of Massachusetts, and his opinions upon government, both before and after its adoption, are found in his published works. The characteristic feature of all these constitutions is that they establish a government by representatives of the people and not a government directly by the people. This was the kind of government to which the people were accustomed. All hereditary offices having been abolished, so far as they ever existed in any of the colonies, and appointments to office by the British crown having ceased at the time of the Revolution, the chief executive officers and the members of both branches of the legislature, where there were two branches, were to be elected by the people. But the model adopted was in other respects the English form of government. While a purely democratic form of government existed in the towns of New England, few if any persons seem to have been in favor of such a form of government for the state.

By the constitution of Massachusetts, as originally adopted, not only were the powers of the representatives of the people limited, but the powers of the people themselves were limited. The people limited their right to vote by requiring for the electors of state officers certain qualifications, among which was a low property qualification. They required, in the persons to be voted for, higher qualifications. They provided that the judges should be appointed by the governor and council, and should hold their offices during good behavior subject to removal only by impeachment or by address. They provided that "the department of legislation shall be formed by two branches, a senate and house of representatives; each of which shall have a negative on the other." Part 2, c. 1, § 1, art. 1. They gave to the governor a qualified veto over the acts of the legislature. They provided for annual elections, and they declared that "the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent," (part 1 art. 10;) that "the people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer," (Id. art. 19;) and that "the legislature ought frequently to assemble for the redress of grievances," etc., ( Id. art. 22.) But there is nothing in any part of the constitution which tends to show that the people desired that any law should ever be submitted to them for approval or rejection. The only expression of this kind relates to the manner of collecting the sentiments of the people in the year 1795, "on the necessity or expediency of revising the constitution, in order to amendments," found in part 2, c. 6, art. 10. They indeed declared that "all power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them;" (part 1, art. 5;) but they provided for no appeal to themselves from any legislative, executive, or judicial act. They apparently relied upon frequent elections, when the officers were elective; upon the right of meeting and consulting upon the common good; upon the right to petition and of instructing their representatives; upon impeachment; and upon the right of reforming, altering, and totally changing the form of government, when the protection, safety, prosperity, and happiness of the people required it. Part 1, art. 7. Apparently, it was thought that the persons selected for the executive, legislative, and judicial offices, in the manner prescribed in the constitution, would be men of good character and intelligence, of some experience in affairs, and of some independence of judgment, and would have a better opportunity of obtaining information, taking part in discussion, and carefully considering conflicting opinions, than the people themselves; and the people therefore put the responsibility of carrying on the government upon their representatives. In the legislative department they were particularly careful. They declared for the "freedom of deliberation, speech and debate, in either house of the legislature," (part 1, art. 21,) and they secured deliberation in legislation by establishing two branches of the legislature, and by requiring a submission of every legislative act to the governor; but they reserved to themselves no direct power of supervision.

The constitutions of the different states resemble each other in many of their principal provisions, and it generally has been held, whenever the subject has come before the courts, that legislative power cannot be delegated by the legislature to any other body or authority, and that the people themselves have not retained this power, except where they have expressly provided for it. It is true that a general law can be passed by the legislature, to take effect upon the happening of a subsequent event. Whether this subsequent event can be the adoption of the law by a vote of the people has occasioned some differences of opinion, but the weight of authority is that a general law cannot be made to take effect in this manner. Whether such legislation is submitted to the people as a proposal for a law, to be voted upon by them, and to become a law if they approve it, or, as a law, to take effect if they vote to approve it, the substance of the transaction is that the legislative department declines to take the responsibility of passing the law; but the law has force, if at all, in consequence of the votes of the people. They, ultimately, are the legislators. It seems to us that by the constitution the senate and the house of representatives have been made the legislative department of the government, and that there has not been reserved to the people any direct part in legislation. The various amendments made to the constitution since its adoption have not changed its character in this respect. By article 2 and article 9 of the amendments, an act constituting a town or towns a city government can be passed only with the consent of the inhabitants of such town or towns; and specific amendments to the constitution, proposed by the general court, must be submitted to the qualified voters of the commonwealth. A city charter resembles a state constitution in this: that the government of the town is made by the charter a representative government; and it was originally declared that the people alone have a right to institute government, and to change it. Part 1, art. 7. These amendments, as well as the other amendments, to the constitution, indicate no intention of having laws submitted to the people for adoption or rejection.

For these reasons, we are of opinion that the first question should be answered in the negative.

The second question requires additional consideration. There have been laws, from the earliest times, which delegated legislative powers to the inhabitants of towns, or permitted legislative powers to be exercised by such inhabitants over subjects which were declared proper for municipal control. Laws conferring additional powers on towns or cities have been passed, and made to take effect in any town or city upon acceptance by the qualified voters of the town or city, or of the city council. Some examples are found in Pub.St. c. 27 §§ 13, 27, 65, 74. Special laws have been passed, conferring special powers on particular towns or cities, and general laws have been passed which relate to towns and cities having a certain population; and the consent of the inhabitants of a city or town, sometimes, has been required, before certain special powers can be used. See Pub.St. c. 44, §§ 2, 7; Id. c. 54, § 13; St.1887, c. 411, § 92; St.1891, c. 370. These statutes, in general, relate to local affairs, or to what has been called "police regulations." In Stone v. City of Charlestown, 114 Mass. 214, it was decided that a statute was constitutional which united two municipalities, and provided that the act should not take effect unless accepted by the voters of the respective municipalities. It was said: "Amid all the diversity of opinion upon the much-vexed question how far statutes may be made contingent upon being accepted by popular vote, without violating the principle that legislative power cannot be delegated, there is a complete harmony of adjudication in favor of the authority of the legislature, unless controlled by a special constitutional provision upon the subject, to submit statutes dividing or uniting counties or towns, or establishing or enlarging a city, to a vote of the inhabitants of the territory...