In re Opinion of the Justices

• Decision Date: 29 April 1926
• Citation: 151 N.E. 680,254 Mass. 617
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 617

151 N.E. 680

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 29, 1926.

Opinion of the Justices of the Supreme Judicial Court as to whether or not the bill to establish congressional, councillor, and senatorial districts and to apportion Representatives (Senate No. 328) would be subject to a referendum petition.

Statutes k35 1/2-Bill to establish congressional, councillor, and senatorial districts, and to apportion representatives, held not such as if enacted would be subject to referendum (Const. Mass. Amend. art. 48, s 3, subd. 1, and articles 16, 21, 22; Act Cong. Aug. 8, 1911, s 4 [U. S. Comp. St. s 18]).

Bill to establish congressional, councillor, and senatiorial districts, and to apportion representatives, held not such as if enacted would be subject to referendum under Const. Mass. Amend. art, 48, s 3, subd. 1, in view of articles 16, 21, 22, and Act Cong. Aug. 8, 1911, s 4 (U. S. Comp. St. s 18).

2. Constitutional law k12-Statutes k217.

In construing statute or constitutional provisions, courts look to history of times when made and into proceedings of things forming organic law.

3. Constitutional law k12-Statutes k228-A proviso following general provisions of statute or Constitution is strictly construed as taking no case not within its terms out of general provisions.

Where general provision is followed by proviso, the proviso is strictly construed as taking no case out of the provisions that do not fall fairly within the terms of the proviso, which rule applies to both construction of statute and Constitution.

The undersigned, Justices of the Supreme Judicial Court, have received a communication from the Honorable the House of Representatives as follows:

‘House of Representatives, April 21, 1926.

‘Whereas, there is pending before the General Court a bill (Senate, No. 328) to establish congressional, councillor and senatorial districts and to apportion Representatives; and

‘Whereas, doubt exists as to whether or not the provisions of article 48 of the Amendments to the Constitution of the commonwealth relative of the referendum, would apply to such a measure, if enacted; therefore be it ‘Ordered, that the opinion of the Justices of the Supreme Judicial Court be required by the House of Representatives on the following important qjuestion of law: Would the above-mentioned bill, if enacted, be subject to a referendum petition under said provisions?’

The Constitution of the commonwealth as amended (article 16) provides that councillor districts shall be eight in number of contiguous territory and each shall consist of five contiguous senatorial districts, each to contain as nearly as may be an equal number of legal voters, with the further requirement that wards and towns shall not be divided.

The House of Representatives, by article 21, consists of two hundred and forty members to be apportioned by the Legislature in the several counties of the commonwealth equally, as nearly as may be, according to the relative number of legal voters as ascertained by the next preceding special enumeration. Then follow provisions for dividing counties into representative districts by the mayor and aldermen of the city of Boston, the county commissioners of other counties, or, in lieu thereof, by such special commissioners in each county as may be provided by law.

The Constitution of the commonwealth as amended (article 22), requires the General Court at its first session after each decennial census to divide the commonwealth into forty senatorial districts of adjacent territory, each district to contain as nearly as may be an equal number of legal voters according to the enumeration in the census, with prohibitions against dividing towns or wards, and against uniting counties or parts of two or more counties in one district.

By U. S. Sts. at L. vol. 37, c. 5, § 4, approved August 8, 1911 (U. S. Comp. St. § 18), it is provided:

‘That in case of an increase in the number of Representatives in any state under this apportionment such addtional Representative or Representatives shall be elected by the state at large and the other Representatives by the districts now prescribed by law until such state shall be redistricted in the manner provided by the laws thereof and in accordance with the rules enumerated in section three of this act; and if there be no change in the number of Representatives from a state, the Representatives thereof shall be elected from the districts now prescribed by law until such state shall be redistricted as herein prescribed.’

Section 3 (section 17) provides:

‘That in each state entitled under this apportionment to more than one Representative, the Representatives to the Sixty-Third and each subsequent Congress shall be elected by districts composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants. The said districts shall be equal to the number of Representatives to which such state may be entitled in Congress, no district electing more than one Representative.’

[2] The mode and time of apportionment are prescribed by the Constitution of the commonwealth and it must be held that the people designed that it should be exercised at that time and by that mode only. In construing statute or constitutional provisions, the court looks to the history of the times when the Constitution or law was made, and into the proceedings of those forming the organic law. Rhode Island v. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233. Nothing seems to have been left to implication. Cooley, Const. Lim. (7th Ed.) pp. 114, 115; Opinion of Justices, 10 Gray, 613, 624;Opinion of Justices, 7 N. E. 35, 142 Mass. 601.

The various districts are political divisions for the election of the various officers described in the amendments, as well as for the election of Representatives to Congress under the federal law. The voters of one district may deem themselves aggrieved by the apportionment, while...