In re Opinion of the Justices

• Decision Date: 16 April 1917
• Citation: 226 Mass. 607,115 N.E. 921
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 607

115 N.E. 921

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 16, 1917.

Application by the Legislature to the Supreme Judicial Court to determine the constitutionality of proposed legislation to permit women to vote on questions to be submitted by constitutional convention.

To the Honorable the Senate of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, have considered the questions upon which our opinion is required by the order of March 26th, 1917, a copy of which is hereto annexed and respectfully submit this opinion:

The first four questions, some cast in general and others in specific forms of expression, are construed as intended to ask in substance whether the General Court has the power to amend General Acts 1916, c. 98, as proposed by the accompanying House Bill No. 797. General Acts 1916, c. 98, provides for the holding of a convention to revise, alter or amend the Constitution of the Commonwealth if a majority of those voting on the question vote in favor. It is common knowledge that proclamation has been made to the effect that a majority of the votes cast were in favor of holding the convention. It is enacted in section six of that act that:

‘Any such revision, alterations or amendments, when made and adopted by the said convention, shall be submitted to the people for their ratificationand adoption, in such manner as the convention shall direct; and if ratified and adopted by the people in the manner directed by the convention, the constitution shall be deemed and taken to be revised, altered or amended accordingly.’

House Bill No. 797 purports to enact that ‘all women entitled to register to vote for school committee shall be regarded as people within the meaning of the word’ ‘people’ as used in section 6 of the act.

[1][2] The validity and the powers of this convention are not necessarily involved in these questions. Without discussing that subject, we are of opinion that, assuming the validity of General Acts 1916, c. 98, it is plain that the passage of the proposed bill is wholly beyond the power of the Legislature. If the convention to revise and alter the Constitution is held under the Constitution, it is because the people of the commonwealth have under the Constitution the right to alter their frame of government according to orderly methods as provided by law, and through the medium of an act of the Legislature.

The word ‘people’ may have somewhat varying significations dependent upon the connection in which it is used. In some connections in the Constitution it is confined to citizens and means the same as citizens. It excludes aliens. It includes men, women and children. It comprehends not only the sane, competent, law-abiding and educated, but also those who are wholly or in part dependents and charges upon society by reason of immaturity, mental or moral deficiency or lack of the common essentials of education. All these persons are secured by the fundamental guarantees of the Constitution in life, liberty and property and the pursuit of happiness, except as these may be limited for the protection of society. It is declared in the Preamble to our Constitution that:

‘The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.’

In this sense ‘people’ comprises many who, by reason of want of years, of capacity or of the educational requirements of article 20 of the Amendments of the Constitution, can have no voice in government and who yet are entitled to all the immunities and protection established by the Constitution. ‘People’ in this aspect is coextensive with the body politic. But it is obviousthat ‘people’ cannot be used with this broad meaning in a political signification. The ‘people’ in this connection means that part of the entire body of inhabitants who under the Constitution are intrusted with exercise of the sovereign power and the conduct of the government. The ‘people’ in the Constitution in a practical sense means those who under the existing Constitution possess the right to exercise the elective franchise and who, while that instrument remains in force unchanged, will be the sole organs through which the will of the body politic can be expressed. ‘People for political purposes must be considered synonymous with qualified voters.’ Blair v. Ridgely, 41 Mo. 63, 176, 177,97 Am. Dec. 248;Boyd v. Thayer, 143 U. S. 135, 158-161, 12 Sup. Ct. 375, 36 L. Ed. 103; Cooley's Constitutional Limitations, 7th Ed. 57, 58. See volume II, Works of James Wilson (Andrews Ed.) 6.

[3] The Constitution of Massachusetts in its original form defined the qualifications of the electorate. Chapter 1, § 2, art. 2; chapter 1, § 3, art. 4. These qualifications have been modified by articles 3, 17, 20, 28, 31, and 32 of the Amendments. The words of the Constitution (article 111) as it now stands are:

‘Every male citizen of twenty-one years of age and upwards, excepting paupers and persons under guardianship, who shall have resided within the commonwealth one...