In re Opinion of the Justices

• Decision Date: 06 March 1941
• Citation: 34 N.E.2d 527,309 Mass. 571
• Parties: OPINION OF THE JUSTICES TO THE SENATE AND THE HOUSE OF REPRESENTATIVES. (Opinions of the Justices.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 571

34 N.E.2d 527

OPINION OF THE JUSTICES TO THE SENATE AND THE HOUSE OF REPRESENTATIVES. (Opinions of the Justices.)

Supreme Judicial Court of Massachusetts.

March 6, 1941

Constitutional Law Workmen's compensation, Initiative, Police power, Due process of law, Trial by jury, Opinions of the Justices. Words, "Defence."

Provisions of a certain law, proposed by initiative petition under art. 48 of the Amendments to the Constitution and providing for a State fund for the payment of workmen's compensation to be administered by certain public officers, were interpreted by the justices as not creating a corporation either of a private or quasi public character, but as creating an instrumentality of the Commonwealth; and, in the opinion of all the justices excepting COX, J., not to make a "specific appropriation of money from the treasury of the Commonwealth," a matter excluded from being submitted under the Initiative. Certain variations from exact accuracy in a nine page description by the

Attorney General of a law proposed by initiative petition under art. 48 of the Amendments to the Constitution did not, in the opinion of the justices, require the conclusion that the description fell so far short of stating the main characteristics of the law as to invalidate the petition.

Interpreting a certain law, proposed by initiative petition, as establishing, to be operated by public officers as a governmental instrumentality, a State fund for the payment of workmen's compensation, the justices were of opinion that the law would be constitutional as an exercise of the police power, and would not involve the expenditure of public money for other than a public purpose.

A provision of a certain law, proposed by initiative petition and creating a State fund for the payment of workmen's compensation depriving a noninsuring employer, in an action against him at common law, of the

"defence," beyond those already taken from him under Section 66 of the present law, that "the employee's injury was not a direct result of any negligence on the part of the employer," would create a cause of action in an employee sustaining an injury "in the course of his employment" that would be a "direct result" of such employment though not a "direct result of any negligence on the part of the employer" and would be constitutional under the police power.

A certain law proposed by initiative petition as an amendment to the present workmen's compensation act by the establishment of a State fund for the payment of workmen's compensation, would not be unconstitutional as depriving the employer of a right to trial by jury. Provisions of a certain law, proposed by initiative petition and creating a

State fund for the payment of workmen's compensation, that prohibited self insurance or insurance with any insurer other than the State fund, with immaterial exceptions, since the fund was to be administered as an instrumentality of the government, were not unconstitutional as an unwarranted exercise of the police power, or as depriving insurance companies or employers of property without due process of law, or as depriving employers of their present freedom of choice among insurers.

The justices declined to answer a question whether, if any provisions of a proposed law were unconstitutional, such provisions were "separable so that the other provisions thereof are not affected by such unconstitutionality."

On March 6, 1941 the House of Representatives, and on March 12, the Senate in concurrence, adopted the following order which was transmitted to the Justices on March 17, respecting a measure purporting to be proposed by initiative and described in the answers of the Justices:

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 treasury of 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 sections 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...