In re Opinion of the Justices

Citation94 N.E. 848,208 Mass. 607
PartiesIn re OPINION OF THE JUSTICES.
Decision Date17 April 1911
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
OPINION TEXT STARTS HERE

Opinion of the Supreme Judicial Court in response to a question presented by the House of Representatives. Question answered.

CONSTITUTIONAL LAW (ss 87, 295*)-DUE PROCESS OF LAW-GIFT ENTERPRISES.

A statute, prohibiting gift enterprises and thereby forbidding transactions not different in principle from contracts of sale, within the constitutional rights of persons to possess and acquire property, to transact legitimate business, and to buy and sell and get gain, is violative of Declaration of Rights, art. 1, and the fourteenth amendment to the federal Constitution.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. ss 156-171, 841; Dec. Dig. ss 87, 295.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

The following is the question presented:

‘Ordered, that the opinion of the Justices of the Supreme Judicial Court be required upon the following important question of law, namely:

‘Would the provisions of the bill now pending in the General Court, which prohibits gift enterprises, being House Bill No. 1,097, a copy of which is transmitted herewith, be constitutional if enacted?’

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

We, the Justices of the Supreme Judicial Court, having considered the question upon which our opinion is required under the order of April 4, 1911, a copy of which is hereto annexed, are constrained to answer it in the negative. The principles applicable to statutes of this kind were considered and discussed in Commonwealth v. Emerson, 165 Mass. 146, 42 N. E. 559,Commonwealth v. Sisson, 178 Mass. 578, 60 N. E. 385, and O'Keeffe v. Somerville, 190 Mass. 110, 76 N. E. 457,112 Am. St. Rep. 316. In the last of these cases a statute was held unconstitutional in part upon grounds which are equally applicable to the House Bill referred to in the order, and which require us to hold that the provisions of this bill are unconstitutional.

The bill is drawn in broad terms, and it purports to forbid transactions that are not different in principle from contracts of sale which always have been held to be within the constitutional right of persons in every state to possess and acquire property, to transact legitimate business and to buy and sell and get gain. Const. U. S. Amend. art. 14; Declaration of Rights, art. 1. We cannot doubt that the bill is intended only to include cases such as this court held not to be included in St. 1884, c. 277, as amended by St. 1898, c. 576, now R. L. c. 214, § 29. See Commonwealth v. Sisson, 178 Mass. 578, 60 N. E. 385. The reasons for the decision in the case just cited would not apply to a decision as to the meaning of this bill.

There is nothing in the conduct proposed to be prohibited that necessarily appeals to the gambling instinct or involves any element of chance. Such statutes and ordinances have been held unconstitutional by the highest courts in a large number of states. State v. Shugart, 138 Ala. 86, 35 South. 28,100 Am. St. Rep. 17;City Council of Montgomery v. Kelly, 142 Ala. 552, 38 South. 67,70 L. R. A. 209, 110 Am. St. Rep. 43; Ex parte McKenna, 126 Cal. 429, 58 Pac. 916; Ex parte Drexel, Ex parte Holland, 147 Cal. 763, 82 Pac. 429,2 L. R. A. (N. S.) 588;Denver v. Frueauff, 39 Colo. 20, 88 Pac. 389;Hewin v. Atlanta, 121 Ga. 723, 731, 49 S. E. 765,67 L. R. A. 795;Long v. Maryland, 74 Md. 565, 22 Atl. 4,12 L. R. A. 425, 28 Am. St. Rep. 268;State v. Sperry & Hutchinson Co., 110 Minn. 378, 126 N. W. 120;State v. Ramseyer, 73 N. H. 31, 58 Atl. 958;People v. Gillson, 109 N. Y. 389, 17 N. E. 343,4 Am. St. Rep. 465;People v. Dycker, 72 App. Div. 308,76 N. Y. Supp. 111;People v. Zimmerman, 102 App. Div. 103,92 N. Y. Supp. 497;Winston v. Beeson, 135 N. C. 271, 47 S. E. 457,65 L. R. A. 167;State v. Dalton, 22 R. I. 77, 46 Atl. 234,48 L. R. A. 775, 84 Am. St. Rep. 818;State v. Dodge, 76 Vt. 197, 56 Atl. 983;Young v. Commonwealth, 101 Va. 853, 45 S. E. 327. There are numerous similar decisions in the federal courts.

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