In re Opinion of the Justices

• Decision Date: 20 May 1941
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 571

34 N.E.2d 527

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

May 20, 1941.

In the matter of the Opinion of the Justices of the Supreme Judicial Court on questions set forth in an order adopted by the House of Representatives and by the Senate and transmitted to the Justices.

Questions answered.

COX, J., dissenting in part.On March 6, 1941, the House of Representatives, and on March 12, the Senate in concurrence, adopted an order which was transmitted to the Justices on March 17, respecting a measure purporting to be proposed by initiative and described in the opinion, as follows:

Ordered, That the opinions of the Honorable the Justices of the Supreme Judicial Court be required by the General Court on the following important questions of law:

1. Does said ‘description’ (as it appears in said document, House, No. 2034, and in said blank) as a whole, and in all respects, meet the requirements of said Article XLVIII, in view of the following considerations, among others:

(a) That it states erroneously in its first paragraph that under said proposed law the state insurance fund would not be empowered to insure an employer against liability on account of personal injury, occupational disease or death of domestic servants or farm laborers employed by him,

(b) That it does not state whether or not the establishment by said proposed law of the ‘state’ insurance fund would or might impose on the Commonwealth liabilities to an amount in excess of said fund as constituted under said law,

(c) That it does not state that said proposed law would require additional services from existing state officers whose compensation is paid otherwise than from said fund and that it would require said state officers to employ additional employees whose compensation would be so paid, and

(d) That it does not state the conditions that would be brought about by said proposed law by reason of its taking effect under the constitution thirty days after the state election in 1942, if approved by the people at said election, coupled with the deferring of the appointment of the trustees of the state insurance fund until February 1, 1943, and the deferring of the establishment of said fund until January 1, 1944.

2. Is said proposed law ‘in proper form for submission to the people’ under said Article XLVIII; and if not, are the defects in form or substance such that it is not legally ‘introduced and pending’ before the General Court?

3. Does said proposed law make ‘a specific appropriation of money from the treasuryof the commonwealth’ within the meaning of said Article XLVIII, so that it is a measure which cannot be proposed by an initiative petition?

4. In view of the provisions of said proposed law relative to the establishment and operation of the state insurance fund and especially

(1) Those provisions requiring additional services in the departments of the state treasurer, of the attorney general and of labor and industries and in the division of insurance, without providing for payment of compensation for such services out of said fund,

(2) The provisions of sections 8A and 8B of chapter 24 of the General Laws, as appearing in section 4 of said proposed law, providing for salaries of the director of said fund, other trustees and deputies or assistants, without providing that such salaries shall be paid out of said fund,

(3) The provisions of sections 8A and 8C of said chapter 24, as appearing in said section 4, requiring that said officers referred to in paragraph (2) shall not be, and that the other officers and employees necessary for the administration of said fund shall be, subject to chapter 31 of the General Laws and the rules and regulations made thereunder,

(4) The provisions in section 8B and 8C of said chapter 24, as appearing in said section 4, providing that any expenditures made by the director and the appointment of such other officers and employees shall be subject to appropriation, and

(5) The provision in section 53 of said chapter 152, as appearing in section 5 of the proposed law, that the state treasurer shall be the treasurer and custodian of said fund,--

would said fund under said proposed law be an undertaking of the Commonwealth, a private or quasi-public undertaking, or an undertaking partly of the Commonwealth and partly private or quasi-public; and would the establishment and operation of said fund as provided in said proposed law, whichever type of undertaking it is, be constitutional, especially in view of the limitations upon the police power and upon the expenditure of money raised by taxation, under the Constitution of the Commonwealth, the provisions of Article XI of Section I of Chapter II of Part the Second of said Constitution, Section I of Article LXII of the Amendments to said Constitution, Article LXIII of said Amendments?

5. If said state insurance fund would be in whole or in part an undertaking of the Commonwealth, could the Commonwealth constitutionally engage in the business of insuring the payment of the compensation provided for by said chapter 152, as provided in said proposed law, especially in view of the limitations upon the police power and upon the expenditure of money raised by taxation, under the Constitution of the Commonwealth?

6. If under said proposed law said state insurance fund would be in whole or in part a private or quasi-public undertaking, would said proposed law require the expenditure of money raised by taxation in support of such undertaking and would the Constitution of the Commonwealth thereby be violated?

7. Under the provisions of said chapter 152, as amended by said proposed law, more particularly the provisions of section 66, as amended by the addition of clause 4, would an employer, who had not provided by insurance for the payment of the compensation provided for by said chapter 152, be liable in an action to recover damages for a personal injury suffered by one of his employees in the course of his employment, upon proof thereof, without proof that such injury was the direct result of negligence on the part of the employer; and, if so, would said provisions be constitutional in imposing such liability, especially in view of the limitations on the police power under the Constitution of the Commonwealth, the provisions of Articles I, X and XII of Part the First of said Constitution and Section 1 of Article XIV of the Amendments to the Constitution of the United States?

8. Would the provisions of said chapter 152, as amended by said proposed law, more particularly the provisions contained in that part of section 1 defining the word ‘insurer’ and in sections 62, 66 and 67, constitute ‘legal compulsion’, as that expression is used in the Opinion of the Justices, 209 Mass. 607 at page 611,96 N.E. 308, upon an employer to provide by insurance in the state insurance fund for the payment of the compensation provided for by said chapter; and if so, would said provisions be constitutional, especially in view of the limitations upon the police power under the Constitution of the Commonwealth, the provisions of Articles I, X, XII and XV of Part the First of said Constitution and Section 1 of Article XIV of the Amendments to the Constitution of the United States?

9. Would it be constitutional, especially in view of the limitations upon the police power under the Constitution of the Commonwealth, the provisions of Articles I, X and XII of Part the First of said Constitution and Section 1 of Article XIV of the Amendments to the Constitution of the United States, to require that insurance of the payment of the compensation provided for by said chapter 152, if desired, be obtained only from the state insurance fund, to the exclusion of any insurance company, substantially as is provided by said proposed law, more particularly the provisions amending the definition of ‘insurer’ in section 1 of said chapter, repealing section 52 thereof and inserting section 62 thereof?

10. Would the provisions of said proposed law, excluding existing insurance companies now authorized to insure the payment of the compensation provided for by said chapter 152 from the business of making such insurance, be unconstitutional as depriving them of property without due process of law?

11. Would the provisions of said proposed law requiring employers, who desire to obtain insurance of the payment of the compensation provided for by said chapter 152, to secure such insurance from said state insurance fund only, and to contribute thereto in the form of premiums, assessments or otherwise, be unconstitutional as depriving them of property without due process of law?

12. Would the provisions of said proposed law depriving employers of their present freedom of choice among insurers of the compensation provided for by said chapter 152 be constitutional?

13. If any provisions of said proposed law are unconstitutional, are such provisions separable so that the other provisions thereof are not affected by such unconstitutionality?

On May 20, 1941, the Justices returned the following answers, which were read in the respective bodies on May 20, 1941:

To The Honorable the Senate and the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the House of Representatives on March 6, 1941, and by the Senate on March 12, 1941, and transmitted to the Justices on March 17, 1941. A copy of the order is hereto annexed.

The questions submitted relate-in the language of the order-to a ‘document (printed as House, No. 2034), purporting to be an initiative petition for a proposed law under Article XLVIII of the Amendments to the Constitution of the Commonwealth and containing the text of the proposed law under the title ‘An Act providing for a State Fund for Workmen's Compensation’ and a ‘Description’ determined by the Attorney General...