Lamson v. Secretary of Com.

• Decision Date: 29 June 1960
• Citation: 168 N.E.2d 480,341 Mass. 264
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Fred I. LAMSON et al. v. SECRETARY OF the COMMONWEALTH. Donald L. GIBBS et al. v. SECRETARY OF the COMMONWEALTH.

Page 480

168 N.E.2d 480

341 Mass. 264

Fred I. LAMSON et al. v. SECRETARY OF the COMMONWEALTH.

Donald L. GIBBS et al. v. SECRETARY OF the COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued June 21, 1960.

Decided June 29, 1960.

Francis L. Lappin, Lowell (Matthew S. Heaphy, Harris A. Reynolds, Sidney A. Aisner, and Jason A. Aisner, Boston, with him), for Lamson and others.

Matt B. Jones, Jr., City Sol., Boston, for Gibbs and others.

Leo Sontag and James J. Kelleher, Asst. Attys. Gen. (Charles H. McGlue, Sp. Asst. Atty. Gen., with them), for respondent.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

The petitioners in each case seek a writ of mandamus to order that the Secretary of the Commonwealth do not prepare ballots under the recent enactment (St.1960, c. 432) which reapportions the senatorial and councillor districts of the Commonwealth. The cases were reserved and reported by a single justice on the amended petitions, the answers, and amended statements of agreed facts.

Each of the several petitioners in the Lamson case is a citizen of the Commonwealth and a legal voter in the city or town in which he dwells. The group includes several State senators, a representative, the chairman of the Republican State Committee, and a member of that committee.

The petitioners in the Gibbs case are the city of Newton, its mayor, city clerk, two of its registers of voters, and six other residents of and legal voters in Newton.

Reapportionment ('division') of the senatorial and councillor districts is required by art. 22 of the Amendments to the Constitution as amended by art. 71, adopted November 4, 1930. Article 22 is to be read with art. 21, also as amended by art. 71. These articles provide in part: (art. 21) 'In the year nineteen hundred and thirty-five and every tenth year thereafter a census of the inhabitants of each city and town shall be taken and a special enumeration shall be made of the legal voters therein. * * * [This] shall also specify the number of legal voters residing in each precinct of each town containing twelve thousand or more inhabitants * * * * and in each ward of each city. Each special enumeration shall be the basis for determining the representative districts for the ten year period beginning with the first Wednesday in the fourth January following said special enumeration * * *.' (art. 22) 'Each special enumeration of legal voters * * * shall likewise be the basis for determining the senatorial districts and also the councillor districts for the ten year period beginning with the first Wednesday in the fourth January following such enumeration; provided, that such districts as established in the year nineteen hundred and twenty-six shall continue in effect until the first Wednesday in January in the year nineteen hundred and thirty-nine. The senate shall consist of forty members. The general court shall, at its first regular session after the return of each special enumeration, divide the commonwealth into forty districts of contiguous territory, each district to contain, as nearly as may be, an equal number of legal voters * * * provided, however, that no town or ward of a city shall be divided therefor; and such districts shall be formed, as nearly as may be, without uniting two counties, or parts of two or more counties, into one district. The general court may be law limit the time within which judicial proceedings may be instituted calling in question such division. * * * '

1. Mandamus is an appropriate remedy. Attorney Gen. v. Suffolk County Apportionment Com'rs, 224 Mass. 598, 609-610, 113 N.E. 581; Attorney Gen. v. Secretary of the Commonwealth, 306 Mass. 25, 29, 27 N.E.2d 265.

Proper parties have instituted each petition. In the Gibbs case several petitioners are residents of and legal voters in areas which are especially affected by St.1960, c. 432, in its use of a realignment of wards in Newton which establishes boundaries different from those of the wards underlying the existing apportionment of representative districts. McGlue v. County Com'rs of Essex, 225 Mass. 59, 61, 113 N.E. 742; Graham v. Special Com'rs of Suffolk County, 306 Mass. 237, 241, 27 N.E.2d 995. The issue in the Lamson case is such that no petitioner need show a special position. The contention is that the Legislature was without power to make any new division. If the statute was unconstitutionally enacted, its enforcement will impair the right of each citizen. See McGlue case, supra, 225 Mass. at page 60, 113 N.E. at page 743. Furthermore we think that the petition is for the enforcement of a public duty so that the people are at interest, and the principle stated in Brewster v. Sherman, 195 Mass. 222, 80 N.E. 821, and Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 93, 153 N.E. 322, is applicable. Attorney Gen. v. Secretary of the Commonwealth, 306 Mass. 25 29, 27 N.E.2d 265; Morrissey v. State Ballot Law Comm., 312 Mass. 121, 132, 43 N.E.2d 385; Kaplan v. Bowker, 333 Mass. 455, 460-461, 131 N.E.2d 372; Robinson v. Selectmen of Watertown, 336 Mass. 537, 539, 146 N.E.2d 900; Colegrove v. Green, 328 U.S. 549, 552, 66 S.Ct. 1198, 90 L.Ed. 1432.

It is contended that the petitioners in the Gibbs case who are city officials have a standing becuase of their duties in respect of the conduct of elections. See Police Com'r of City of Boston v. City of Boston, 279 Mass. 577, 584, 181 N.E. 790. We need not pause to determine this, nor the right of the city itself. See Wilmington v. Department of Public Utilities, Mass., 165 N.E.2d 99. ¹

2. The chief issue before us is the power of the General Court to act in 1960. It is of first impression here, and there is little direct aid in our decisions or in legislative history. The redistricting enactments of the General Court following the special enumerations in 1935 and 1945 were, respectively, in 1939, and in 1947 and 1948. St.1939, c. 467; c. 507, St.1947, c. 182. St.1948, c. 250. Although the Justices gave an opinion as to the validity of the 1939 action and the court passed on it, the issue of power to act at a session other than the 'first regular session after the return' was not raised or discussed. Opinion of the Justices, 303 Mass. 615, 21 N.E.2d 551; Attorney Gen. v. Secretary of the Commonwealth, 306 Mass. 25, 27 N.E.2d 265, 267; Graham v. Special Com'rs of Suffolk County, 306 Mass. 237, 27 N.E.2d 995. We disagree with the respondent's contention that the silence of the court and the Justices and the two relatively recent instances of legislative action are significant. For examples of 'long continued interpretation of a constitutional provision by the legislative department * * * [which] may be deemed to be the true construction of the Constitution,' see Fitzgerald v. Selectmen of Braintree, 296 Mass. 362, 367, 5 N.E.2d 838, 841; Holmes v. Hunt, 122 Mass. 505, 516; Opinion of the Justices, 126 Mass. 557, 600; Answer of the Justices, 214 Mass. 602, 606, 102 N.E. 644. See also Opinion of the Justices, 142 Mass. 601, 606, 7 N.E. 35.

We discover, however, that there are many decisions elsewhere under somewhat similar constitutional provisions which sustain the view that the power continues beyond the session specified. Although not precedents, these decisions, discussed in later paragraphs, exemplify the principles at issue.

There are, we think, two mandates in arts. 21 and 22. They are, respectively, to reapportion and to do so at the 'first regular session after the return.' We do not accept the respondent's contention that the second mandate is only a directory provision. It states plainly a high and solemn obligation. Opinion of the Justices, 157 Mass. 595, 598, 35 N.E. 111, 113 ('There articles * * * require the apportionment to be made by the legislature at its first session after the return'). Opinion of the Justices, 271 Mass. 582, 589, 171 N.E. 294, 69 A.L.R. 388; Town of Mt. Washington v. Cook, 288 Mass. 67, 70, 192 N.E. 464. We must determine the implied intendment in respect of the first mandate in the event, uncontemplated by the framers, that the General Court does not act at the constitutionally specified time. We hold that the first mandate is basic; it is designed to assure the constitutional right of the people to equal apportionment, and the implication is that the duty and the power to act under it continue, pending a succeeding enumeration, until the power is exercised and discharged. Botti v. McGovern, 97 N.J.L. 353, 356, 118 A. 107; Matter of Reynolds, 202 N.Y. 430, 443-444, 96 N.E. 87, 416. Accord, Opinion of the Justices, 254 Ala. 185, 47 So.2d 714; In re Legislative Apportionment, 12 Colo. 186, 21 P. 480; People ex rel. Heffenman, 21 P. 480; People v. Carlock, 198 Ill. 150, 154-155, 65 N.E. 109; Fergus v. Kinney, 333 Ill. 437, 442, 164 N.E. 665; Denney v. State ex rel. Basler, 144 Ind. 503, 516, 42 N.E. 929, 31 L.R.A. 726; Opinion of the Justices, 148 Me. 404, 407-408, 94 A.2d 816; W. R. Reynolds & Co. v. Secretary of State, 238 Mich. 552, 554, 213 N.W. 707; State ex rel. Meighen v. Weatherill, 125 Minn. 336, 338, 147 N.W. 105 ('* * * at their first session after each enumeration * * * shall have the power * * *'); State ex rel. Gordon v. Becker, 329 Mo. 1053, 1061, 49 S.W.2d 146; Rumsey v. People, 19 N.Y. 41, 55; Jones v. Freeman, 193 Okl. 554, 563-564, 146 P.2d 564; Opinion of the Judges, 61 S.D. 107, 110-112, 246 N.W. 295; State v. Cunningham, 81 Wis. 440, 517, 51 N.W. 724, 15 L.R.A. 561. See Brewer v. Gray, Florida, Fla., 86 So.2d 799, 802 (Constitution expressly provides for action by following sessions). Compare Noecker v. Woods, 259 Pa. 160, 164, 165, 102 A. 507, 508 ('The words, '* * * at the next succeeding session * * * and not oftener * * *' indicate a clear intention * * * that * * * acts are to be passed at definitely designated sessions * * *'). In Cahill v. Leopold, 141 Conn. 1, 3-4 (note), 24, 103 A.2d 818, 821, in the...