In re Opinion of the Justices

• Decision Date: 22 November 1921
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 606

133 N.E. 453

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

Nov. 22, 1921.

Answers to questions propounded to the Justices of the Supreme Judicial Court by an order of the Senate.

To the Honorable the Senate of the Commonwealth of massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions propounded in the order of May 25, 1921, copy whereof is hereto annexed.

[1] 1. The purpose of House Bill No. 1612, to which the questions refer, is set forth in its title in these words:

‘An act to carry into effect, so far as the commonwealth of Massachusetts is concerned, the Eighteenth Amendment to the Constitution of the United States.’

One distinguishing characteristic of that bill is that, in several sections, it incorporates by reference laws made and to be made by the Congress of the United States and regulations made and to be made thereunder for the purpose of establishing offenses to be punished by fine or imprisonment or both, by prosecutions to be instituted in the courts of this commonwealth. See sections 1 (b), 3, 6, 34, 37, of the proposed chapter 138. It is attempted by these sections, and possibly by other sections, to make the substantive law of the commonwealth in these particulars change automatically so as to conform to new enactments from time to time made by Congress and new regulations issued pursuant to their authority by subsidiary executive or administrative officers of the United States. It purports to create offenses and impose punishments therefor, not by definition and declaration, but by reference to what may hereafter be done in these particulars by the Congress of the United States and those by it authorized to establish regulations.

[2] We are of opinion that legislation of that nature would be contrary to the Constitution of this commonwealth. Legislative power is vested exclusively in the General Court except so far as modified by the Initiative and Referendum Amendment. It is a power which cannot be surrendered or delegated or performed by any other agency. The enactment of laws is one of the high prerogatives of a sovereign power. It would be destructive of fundamental conceptions of government through republican institutions for the representatives of the people to abdicate their exclusive privilege and obligation to enact laws. Boston v. Chelsea, 212 Mass. 127, 98 N. E. 620; Opinion of the Justices, 160 Mass. 586, 36 N. E. 488,23 L. R. A. 113;Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145.

This firm general principle is not affected by the fact that by the Eighteenth Amendment to the federal Constitution ‘concurrent power’ to enforce national prohibition ‘by appropriate legislation’ is vested in the Congress and in the several states. The words ‘concurrent power’ do not imply a surrender by either to the other of the power to legislate. The amendment establishes and recognizes the existence of the function of making laws for its enforcement both in the Congress and in the several states. It is a making of laws in the ordinary sense, which thus is established and recognized. It does not create any hitherto unknown kind of legislative faculty to be exercised either by the Congress or by the several states. That amendment bounded a common field within which concurrently each lawmaking power might be put forth toward the common end of enforcing national prohibition. It goes no further. Its words are that the states as well as the Congress may ‘enforce this article by appropriate legislation.’ These words have the signification derived from the constitutional history of the country and are well understood. Legislation means the enactment of laws in that thoroughly settled sense.

The proposed act, with relation to its subject-matter, comprehends a description of acts declared to constitute crimes, a statement of the penalties to be imposed for the commission of such crimes, means for enforcing the act not included within other general provisions of law, rules of evidence to be observed in the trial of cases arising under the act, and other ancillary and subsidiary provisions. The words ‘appropriate legislation,’ as used in the amendment, do not override settled principles of constitutional law concerning the enactment of statutes. They afford no foundation for any kind of legislative action by the states, except such as heretofore has been understood and practiced. Commonwealth v. Nickerson, 236 Mass. 281, 128 N. E. 273, 10 A. L. R. 1568.

There are no exceptions to the principle that the General Court cannot delegate, surrender or transfer to any other power the function of enacting statutes general in their scope and operation. There are numerous instances where power to establish local ordinances, Commonwealth v. Slocum, 230 Mass. 180, 190, 119 N. E. 687, or administrative regulations, Brown v. Boston & Maine Railroad, 233 Mass. 502, 510, 124 N. E. 322, may be vested by statute in a subsidiary governmental division or in a board or commission. Local option reciprocal legislation and statutes found upon local conditions, within proper limits, are permissible. Graham v. Roberts, 200 Mass. 152, 85 N. E. 1009;Bliss v. Bliss, 221 Mass. 201, 109 N. E. 148, L. R. A. 1916A, 889;Clark Distilling Co. v. Western Maryland Railway, 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845. But these and other similar examples of legislation differ in kind from that here proposed. No discussion is required to demonstrate that the...