In re Opinion of the Justices
| Decision Date | 26 January 1944 |
| Citation | 52 N.E.2d 974,315 Mass. 761 |
| Parties | OPINION OF THE JUSTICES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
In the matter of the Opinion of the Justices of the Supreme Judicial Court in answer to a question submitted by the Governor of the Commonwealth as to whether the Governor has authority to advance the date of the state primaries to be held in the year 1944, and to modify certain provisions of law relative to registration of voters and absent voting so as to prevent Massachusetts men and women in the armed forces of the United States from being deprived of their right to exercise their voting franchise.
Question answered. To His Excellency the Governor and the Honorable Council of the Commonwealth of Massachusetts:
The undersigned Justice of the Supreme Judicial Court, in reply to your order of January 5, 1944, respectfully submits this answer to the question therein contained.
The fundamental question presented by the order is whether the Governor has authority to advance the date of the State primaries to be held in the current year-a date that is now fixed by G.L.(Ter.Ed). c. 53, § 28, as appearing in St.1938, c. 473, § 7, as ‘the seventh Tuesday preceding biennial state elections.’
While the General Court cannot add to or subtract from the qualifications for voting fixed by the Constitution, it has broad power to regulate the method of voting. It has done so by many statutes, including statutes providing for official ballots to be used at elections and for the selection at the State primaries of candidates whose names shall be printed on these official ballots. The precise date at which such State primaries are to be held is an administrative detail of the statutory method of voting. In my opinion, authority to determine this administrative detail may be conferred upon the Governor by the General Court under the grant of power and authority to the General Court by Part II, c. 1, § 1, art. 4, of the Constitution without conflicting with art. 30 of the Declaration of Rights of the Constitution providing for the separation of powers. Such authority, of course, must be exercised subject to constitutional limitations that regulations of the methods of voting shall not be discriminatory or unreasonable or defeat or impair the constitutional right to vote.
Furthermore, I am of opinion that authority to determine the date of the State primaries as an administrative detail of the statutory method of voting is authority that the Governor may legally deem to be ‘expedient’ to meet the ‘supreme emergency of such a state of war’ within the meaning of St.1942, Sp.Sess., c. 13, § 2. This statute, in my opinion, discloses an intention on the part of the General Court to authorize the Governor to act for the protection of the government of the Commonwealth and the rights, privileges and interests of its citizens-not merely for the protection of their physical bodies and material property. One of the important interests of such citizens is the right to vote guaranteed by the Constitution. And I am of opinion that this authority extends to protecting this constitutional right against risk of the loss thereof by reason of the unusual conditions resulting from the existence of a state of war. It may well be that, according to the statutory provisions regulating the method of voting, a large number of qualified voters will be deprived of their constitutional right to vote because the period between the date fixed by statute for the State primaries and election day is too short for the official ballots to be prepared and sent to qualified voters of the Commonwealth in the armed services of the United States in time to vote on or before election day. The risk of loss of this constitutional right to vote, is, in my opinion, a danger incident to the existence of a state of war for protection against which the Governor is authorized to act.
Authority in the Governor to act to fix the date of the State primaries is not to be denied because the general grant of authority to him may be so broad as to include authority that cannot constitutionally be conferred upon him. The statute by its terms indicates that it is to be regarded as severable, in accordance with the principle that ‘a statute which would be unconstitutional as applied to a certain class of cases, and is constitutional as applied to another class, may be held to have been intended to apply only to the latter class, if this seems in harmony with the general purpose of the Legislature.’ Attorney General v. Electric Storage Battery Co., 188 Mass. 239, 241, 74 N.E. 467, 468,3 Ann.Cas. 631. In my opinion, an interpretation of the statute as authorizing the Governor to advance the date of the State primaries to be held in the current year is ‘in harmony with the general purpose of the Legislature’ and the statute should be interpreted as authorizing such action by him.
The fact that the exercise of authority by the Governor to change the date of the State primaries to be held in the current year will render inoperative the present statutory provision fixing that date does not preclude the existence of such authority in view of St.1942, Sp.Sess., c. 13, § 11, which provides expressly for such a situation. Said section 11 as applied to the date of the State primaries is not in my opinion obnoxious to the provision of art. 20 of the Declaration of Rights that the ‘power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.’ The action of the Governor would be by authority ‘derived from’ the General Court and in the particular case of a ‘supreme emergency of such a state of war.’
I answer the fundamental question submitted that the Governor has authority under St.1942, Sp.Sess., c. 13, § 2, to advance the date of the State primaries to be held in the current year.
Since it is not within the scope of the duty or power of the Justices to examine a complicated system of statutory provisions and express an opinion as to the authority of the Governor to act with respect to matters therein dealt with which are not made the subject of a specific inquity (Opinion of the Justices, 239 Mass. 606, 612, 133 N.E. 453;Id., 247 Mass. 589, 598, 143 N.E. 808), I respectfully request to be excused from answering the subsidiary questions.
FRED T. FIELD.
To His Excellency the Governor and the Honorable Council of the Commonwealth of Massachusetts:
The undersigned Justices of the Supreme Judicial Court agree with the opinion signed by Mr. Justice QUA.
HENRY T. LUMMUS
ARTHUR W. DOLAN
To His Excellency the Governor and The Honorable Council of the Commonwealth of Massachusetts:
The undersigned Justice of the Supreme Judicial Court in reply to your order of January 5, 1944, which is herein set forth, respectfully submits this answer to the question therein contained.
The order is as follows:
‘Whereas, uncertainty exists as to whether or not men and women from Massachusetts who are in the armed forces of the United States will, by reason of the shortness of the period of time between state primaries and state elections or by reason of the existence of certain provisions of law relative to registration of voters and absent voting (being the provisions of general law relative thereto, as affected by chapter 390 of the Acts of 1943), be deprived of their right to exercise their voting franchise by means of absent voting, so called, at the state election to be held in the current year, which loss of franchise would tend to undermine their morale and be detrimental to the war effort; and
‘Whereas, it is urgent that the date of the state primaries to be held in the current year and other dates dependent thereon or connected therewith be advanced, and said provisions of law be modified, so as to remove such uncertainty, so far as possible; therefore, be it
‘Ordered, that the Justices of the Supreme Judicial Court be required to give their opinions to the Governor and Council upon the following important question of law:
‘Can the Governor, by executive order, in the exercise of authority which, under chapter 13 of the acts of 1942, Sp.Sess., was conferred by the General Court upon him as the supreme executive magistrate of the Commonwealth and commander-in-chief of the military and naval forces thereof, in the exercise of authority vested in him under section 7 of chapter 719 of the acts of 1941 and section 1 of said chapter 13, or in the exercise of other authority vested in him by law, advance the date of the state primaries to be held in the current year and the other dates aforesaid, and modify said provisions of law relative to registration of voters and absent voting, so as to prevent Massachusetts men and women in the armed forces of the United States from being deprived as aforesaid of their right to exercise their voting franchise by means of absent voting, so called?’
The Constitution confers upon the Legislature full power and authority from time to time to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, ‘so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth.’ Constitution, Part II, c. 1, § 1, art. 4. The Legislature is therefore authorized to enact appropriate laws regulating the holding of primaries and elections, including the fixing of the time for the State primaries.Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 116 N.E. 961, 8 A.L.R. 1463;Thacher v. Secretary of Commonwealth, 250 Mass. 188, 145 N.E. 256;O'Brien v. Board of Election Com'rs of City of Boston, 257 Mass. 332, 338, 153 N.E. 553;Wood v. Board of Election Com're of City of Cambridge, 269...
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