Lincoln v. Secretary of Com.

• Citation: 93 N.E.2d 744,326 Mass. 313
• Parties: LINCOLN et al. v. SECRETARY OF COMMONWEALTH.
• Decision Date: 04 August 1950
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 313

93 N.E.2d 744

LINCOLN et al. v. SECRETARY OF COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

August 4, 1950

Argued July 21 1950.

James J. Kelleher, Boston, for Commonwealth.

Charles B. Rugg Boston, F. W. Grinnell and W. F. Farr, Boston, for petitioners.

V. A. Canavan Boston, Harold W. Canavan, Boston, for intervener.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS, SPALDING, WILLIAMS and COUNIHAN, JJ.

WILKINS, Justice.

The petitioners registered voters, seek a writ of mandamus commanding the respondent Secretary of the Commonwealth to refrain from certain acts having to do with the submission to the people at the next State election of a proposal law, the subject of an initiative petition, on the ground that there has not been compliance with art. 48 of the Amendments to the Constitution. The proposed law, entitled 'An Act providing that classifications of risks and premium charges under the compulsory motor vehicle liability insurance law shall be uniform throughout the commonwealth,' has been the occasion of an advisory opinion, dated May 24, 1950, in which a majority of the Justices of this court took the view that there had been compliance with art. 48. Opinion of the Justices, 326 Mass. ----, 93 N.E.2d 220, 221. In accordance with our duty, we examine the question anew, unaffected by the advisory opinion. Commonwealth v. Welosky, 276 Mass. 398, 400, 177 N.E. 656; Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 245, 69 N.E.2d 115, 167 A.L.R. 1447, note.

After the case was heard upon the pleadings and a statement of agreed facts, a single justice found the facts to be as agreed, and at the request of the parties reserved and reported the case without decision for the determination of this court. G.L.(Ter.Ed.) c. 211, § 6; c. 231, § 111. No exercise of discretion is involved. The question for decision is whether upon the pleadings and the facts found the writ of mandamus ought to issue as matter of law. Cochran v. Roemer, 287 Mass. 500, 502, 192 N.E. 58. Attorney General v. Secretary of the Commonwealth, 306 Mass. 25, 27, 27 N.E.2d 265. Crudden v. Superintendent of Schools of Boston, 319 Mass. 686, 687, 67 N.E.2d 474.

The method of originating an initiative petition now appears in art. 74, § 1, which amends art. 48, The Initiative, II, § 3. The petition must first be signed by ten qualified voters and submitte to the Attorney General for certification. See Howe v. Attorney General, 325 Mass. 268, 90 N.Y.S.2d 316. The Secretary of the Commonwealth shall provide blanks for the use of subsequent signers. 'All initiative petitions, with the first ten signatures attached, shall be filed with the secretary of the commonwealth not earlier than the first Wednesday of the September before the assembling of the general court into which they are to be introduced, and the remainder of the required signatures ^[1] shall be filed not later than the first Wednesday of the following December.' Art. 74, § 1. 'If an initiative petition, signed by the required number of qualified voters, has been filed as aforesaid, the secretary of the commonwealth shall, upon the assembling of the general court, transmit it to the clerk of the house of representatives, and the proposed measure shall then be deemed to be introduced and pending.' Art. 48, The Initiative, II, § 4. 'If an initiative petition for a law is introduced into the general court, signed by not less than twenty thousand qualified voters, a vote shall be taken by yeas and nays in both houses before the first Wednesday of June upon the enactment of such law in the form in which it stands in such petition. If the general court fails to enact such law before the first Wednesday of June, and if such petition is completed by filing with the secretary of the commonwealth, not earlier than the first Wednesday of the following July nor later than the first Wednesday of the following August, not less than five thousand signatures of qualified voters, in addition to those signing such initiative petition, which signatures must have been obtained after the first Wednesday of June aforesaid, then the secretary of the commonwealth shall submit such proposed law to the people at the next state election.' Art. 48, The Initiative, V, § 1. See Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 96-97, 153 N.E. 322.

On September 8, 1949, there was filed in the respondent's office the present initiative petition signed by ten qualified voters of the Commonwealth and accompanied by the requisite certificate of the Attorney General. On December 7, 1949, there were filed in the respondent's office thirty-four thousand thirty-four certified subsequent signatures of qualified voters from various counties as follows: Worcester, seventy-two; Plymouth, eight hundred twenty-seven; Norfolk, seven thousand three hundred ninety-seven; Essex, seven thousand eight hundred forty-six; Middlesex, eight thousand nine hundred sixty-four; and Suffolk, eight thousand nine hundred twenty-eight. More than one fourth of the total signatures filed were those of voters of Suffolk County, and more than one fourth were those of voters of Middlesex County. On January 4, 1950, the respondent transmitted the initiative petition to the clerk of the House of Representatives. The General Court failed to enact the proposed law before the first Wednesday of June, there being adverse votes in the House of Representatives on April 12, 1950, and in the Senate on June 5, 1950.

The respondent's answer sets up special matters in lieu of demurrer, which, as the result will not be affected, we need not discuss. We are thus enabled to rest this decision of a majority of the court upon the merits of the question heretofore considered in the advisory opinion.

The sole ground for the contention that there has not been compliance with art. 48 of the Amendments is contained in General Provisions, II, reading, 'Not more than one-fourth of the certified signatures on any petition shall be those of registered voters of any one county.' Referring to this provision, this court said, in Commonwealth v. Littleton, 260 Mass. 423, 425, 157 N.E. 537, 538, 'Its purpose is to make certain that the petition has substantial support throughout the Commonwealth before submitting the question to popular vote.'

Adopting and affirming what we said in Opinion of the Justices, 326 Mass. ----, 93 N.E.2d 220, 225. 'The issue now is whether this provision has a further purpose to make certain that the petition does not have relatively too much support in any one county in the sense that the petition must fail if by actual count of all the signatures certified locally and filed with the Secretary of the Commonwealth it should eventuate that more than one fourth are from a single county. We think that this provision does not have such an effect, but merely indicates a purpose to limit the number of certified signatures which can be counted in order to attain the required total--in this case twenty thousand--to not more than one fourth of that total in any one county. * * * In our opinion the provision limits the number of certified signatures to be counted to five thousand from a single county with the result that there are available to be counted the following: Worcester, seventy-two, Plymouth, eight hundred twenty-seven, the other four counties five thousand each, or a total of twenty thousand eight hundred ninety-nine.'

General Provisions, II, is not to be viewed as an isolated sentence, but the amendment of which it is a part should be read as a whole. If possible, the amendment must be construed so as to accomplish a reasonable result and to achieve its dominating purpose. Its words should be interpreted in the sense most obvious to the common intelligence, because a matter proposed for public adoption must be understood by all entitled to vote. Tax Commissioner v. Putnam, 227 Mass. 522, 524, 116 N.E. 904, L.R.A. 1917F, 806; Attorney General v. City of Methuen, 236 Mass. 564, 573, 129 N.E. 662; Raymer v. Tax Commissioner, 239 Mass. 410, 412, 132 N.E. 190; Yont v. Secretary of the Commonwealth, 275 Mass. 365, 366-367, 176 N.E. 1; Town of Mount Washington v. Cook, 288 Mass. 67, 70, 192 N.E. 464; General Outdoor Advertising Co. Inc., v. Department of Public Works, 289 Mass. 149, 158, 193 N.E. 799.

Reading the amendment as a whole, we think that General Provisions, II, does not stand out so insulated from, and so unrelated to, the rest of arts. 48 and 74 that the imposition of the burdensome restriction contended for by the petitioners is unescapable.

The beginning of art. 45 is: 'I. Definition. * * * Legislative power shall continue to be vested in the general court; but the people reserve to themselves the popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection; and the popular referendum, which is the power of a specified number of voters to sumit laws, enacted by the general court, to the people for their ratification or rejection.'

The meaning of the 'specified number' of voters referred to in I Definition, of the 'required signatures' in art. 74, § 1, and of the 'required number' in art. 48, The Initiative, II, § 4, appears from a reading of the entire art. 48. These numbers are: (1) Constitutional amendment introduced by initiative petition, 'not less than twenty-five thousand.' The Initiative, IV, § 2. (2) Initiative petition for a statute, 'not less than twenty thousand' in order to require a vote of the Legislature; and after a failure to enact, 'not less than five thousand' additional to place upon the ballot. The Initiative, V, § 1. An amendment by the first ten signers following a failure to...