In re Opinion of the Justices

• Decision Date: 06 June 1934
• Citation: 191 N.E. 33,286 Mass. 611
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 611

191 N.E. 33

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

June 6, 1934.

In the matter of the Opinion of the Justices in answer to questions submitted by the Senate of the Commonwealth of Massachusetts relative to a pending bill regulating the use of traps and other devices for the capture of fur-bearing animals, and providing for local option thereon.

Questions answered.

The questions submitted were as follows:

[286 Mass. 612]1. May the legality of the use of steel traps as described in section one of said bill be properly subjected to local option?

2. Do the words ‘unless in the meantime it shall have been repealed,’ contained in the third sentence of section three of said article forty-eight, under the heading, ‘III. Referendum Petitions,’ apply to all statutes as to which a referendum petition has been filed, or is its application limited to statutes enacted less than thirty days prior to the next ensuing state election?

3. Does the word ‘repealed’ in said third sentence import finality of action by the General Court, or is the repealing act subject to referendum?

4. Does the fact that such a repeal is embodied in a substitute measure affect the application and scope of the said word ‘repealed’?

5. If the said bill is enacted with an emergency preamble would it be the duty of the Secretary of the Commonwealth to place the question involved in said pending referendum on the ballot to be used at the biennial State election in the current year?

6. If the said bill is enacted without an emergency preamble would the said Secretary be under such a duty?

7. If the question referred to in question five is required to be placed on said ballot, may the General Court, in anticipation of the filing of a referendum petition as to the said pending bill and a vote thereon at said election, provide, under authority of the paragraph headed ‘VII. Amendment declared to be Self-executing,’ or by any other authority, for the grouping of the questions submitted, accompanied by appropriate directions to the voters, in order to avoid confusion in the minds of the voters?

The Commonwealth of Massachusetts

To The Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order adopted on the twenty-second of May, 1934, copy whereof is hereto annexed.

The questions relate to the so called steel trap law adopted by the initiative at the election in 1930. St. 1930, c. 428, embodied in G. L. (Ter. Ed.) c. 131, § 105A. That law in substance prohibited under penalty the use of any trap or other device for the capture of fur-bearing animals likely to cause continued suffering to an animal caught therein, except that it did not apply ‘to traps or other devices for protection against vermin if set or maintained not more than fifty yards from any building or cultivated plot of land to the use of which the presence of vermin may be detrimental.’ By St. 1933, c. 203, approved May 16, 1933, there was enacted a substitute for section 105A whereby its provisions were made inapplicable ‘to traps or other devices for protection of property if set or maintained on land by the owner or tenant thereof, or, if authorized by such owner or tenant, by any member of his family or person employed by him.’ Thus the sweep of said section 105A was materially restricted. A referendum petition was filed on June 6, 1933, and completed on August 14, 1933, respecting said chapter 203, and its operation was suspended. In ordinary course that law will be submitted to the people for approval at the State election to be held November 6, 1934. See Acts and Resolves 1933, p. 728.

Several changes in the existing law are made by the proposed bill. By its section 2, St. 1933, c. 203, suspended by the referendum, is itself repealed so that, if the proposed bill becomes law, there will no longer be any section 105A. By its section 1, in the part described as section 105B, the provisions of G. L. (Ter. Ed.) c. 131, § 105A, as originally enacted, are in substance restored and reënacted; and, in the part described as section 105C, provision is made whereby the several cities and towns are authorized within their respective boundaries, from time to time, by popular vote, to suspend the operation of section 105B and again to make it operative.

The first question is whether the prohibition under penalty of the use of steel traps found in that part of the proposed bill set forth in its section 105B may properly be made subject to the kind of local option prescribed in that part of section 1 set forth in its section 105C.

A fundamental principle of our system of government is that power to make laws for the general welfare is vested in the General Court, except as affected by article 48 of the Amendments to the Constitution. That power cannot be surrendered or delegated. In harmony with that principle, it has long been established that certain police regulations and other matters peculiarly affecting local interests, not embraced within the ordinary power to make by-laws and ordinances, may be intrusted by express legislation to municipal authority. These are numerous illustrations of statutes of this nature. The legality of sales of intoxicating liquor, Commonwealth v. Bennett, 108 Mass. 27, rules as to the use of vehicles, Brodbine v. Revere, 182 Mass. 598, 66 N. E. 607,Commonwealth v. Slocum, 230 Mass. 180, 190, 119 N. E. 687, limitations of the height of buildings, Welch v. Swasey, 193 Mass. 364, 79 N. E. 745,23 L. R. A. (N. S.) 1160, 118 Am. St. Rep. 523, and divers other matters, have been held subject to local regulation under the sanction of legislative enactment.

The purpose of the steel trap law as originally adopted was to suppress that kind of cruelty engendered by capturing the designated animals in traps of such construction as to cause them pain and suffering for an appreciable length of time. It created an offence against the public morals, which the commission of acts of cruelty to animals tends to corrupt. It was within the competency of the law making power under the Constitution to declare that purpose superior to the rights of owners of poultry and vegetables to protect such property against the depredations of predatory fur-bearing animals. Commonwealth v. Higgins, 277 Mass. 191, 178 N. E. 536, 79 A. L. R. 1304. The need of drastic measures against the vermin mentioned in the proposed bill may differ in different places. The burden of damage done by such vermin depends upon their number and upon the pursuits of the inhabitants in a particular locality. These vary widely in the several cities and towns of the Commonwealth. That burden rests mainly upon those who cultivate the land or raise poultry. It is within the power of the General Court, in balancing the conflicting claims of those who bear this uncompensated loss, on the one side, and the danger to the public morals likely to follow from acts inflicting pain upon such vermin, on the other side, to determine that the operation of the statute should be placed under local control. Commonwealth v. Plaisted, 148 Mass. 375, 382, 383, 19 N. E. 224,2 L. R. A. 142, 12 Am. St. Rep. 566;Commonwealth v. Kingsbury, 199 Mass. 542, 546, 85 N. E. 848, L. R. A. 1915E, 264,127 Am. St. Rep. 513;Commonwealth v. Maletsky, 203 Mass. 241, 245, 89 N. E. 245,24 L. R. A. (N. S.) 1168;Bradley v. Board of Zoning Adjustment, 255 Mass. 160, 171, 150 N. E. 892; Commonwealth v. Boston & Maine Transportation Co., 282 Mass. 345, 185 N. E. 40.

This principle is controlling although the form of submission to local option in the proposed bill relates to the suspensionin the municipality so voting of a law otherwise general in its operation. That was the substance and effect of the law relating to sales of intoxicating liquors as contained in R. L. c. 100. The general purpose of that law was the prohibition of such sales. That general prohibition was suspended in such cities and towns as voted each year in favor of granting licenses. Thus in the several municipalities there might be the prohibition of such sales in one year and the licensing of such sales in another year, depending upon the popular vote in each city and town. Commonwealth v. Nickerson, 236 Mass. 281, 304, 305,128 N. E. 273, 10 A. L. R. 1568. A provision of that nature in the circumstances here disclosed does not violate article 20 of the Declaration of Rights of the Constitution against the suspension of laws except by special provision of the Legislature. Such a provision is not contrary to the ample constitutional guaranties for equal protection of equal laws without discrimination based upon unreasonable distinctions. Const. Declaration of Rights, arts. 1, 6, 7, 10; Const. U. S. Amend. 14. Brest v. Commissioner of Insurance, 270 Mass. 7, 14, 169 N. E. 657.

The first question is answered in the affirmative.

The second question is: ‘Do the words ‘unless in the meantime it shall have been repealed’, contained in the third sentence of section three of said article forty-eight, under the heading, ‘III. Referendum Petitions,’ apply to all statutes as to which a referendum petition has been filed, or is its application limited to statutes enacted less than thirty days prior to the next ensuing State election?'

The entire sentence from which are taken the words quoted in the question is very long. Its several parts are set off one from another by semicolons. That sentence, omitting parts not material to the question, is in these words: ‘If such petition is completed by filing with the secretary of the commonwealth not later than ninety days after the law which is the subject of the petition has become law the signatures of not less than fifteen thousand qualified voters of the commonwealth, then the operation of such law shall be suspended, and the secretary of the commonwealth shall submit such law to the people at...