Loring v. Loring

• Decision Date: 09 August 1921
• Parties: LORING v. YOUNG et al. BATES et al. v. LORING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

239 Mass. 349

132 N.E. 65

LORING

v.YOUNG et al.

BATES et al.

v.LORING et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Aug. 9, 1921.

Report from Supreme Judicial Court, Suffolk County.

Petition by Augustus P. Loring for a writ of mandamus against Benjamin Loring Young and others, and petition by John L. Bates and others for a writ of mandamus against Augustus P. Loring and others. Reported by a single justice for consideration and determination by the full court upon the pleadings and agreed facts. Petitions dismissed.

The parties to the first proceeding are the members of a joint special committee appointed by the General Court to provide for the printing and distribution of the General Laws and the printing of the federal and state Constitutions in the first volume thereof. The petitioner sought to compel defendants, constitution a majority of the committee, to print the Rearrangement of the Constitution adopted in 1919 instead of the Constitution of 1780 and its amendments. The second proceeding was brought by citizens and taxpayers against all three members of the committee for the same relief. It was agreed that the acts and proceedings of the Constitutional Convention and committees thereof, the acts and messages of the Governor and the votes of the people on matters submitted to them by the Convention and the actions of the General Court took place as set forth in the journals of the General Court, the journal of the Convention and the debates and the manual of the Convention, and that such volumes or any document mentioned therein or referred to in the agreed facts were made a part of the statement of agreed facts. The proffered testimoney mentioned in the opinion was testimony which it was agreed different members of the Convention would give, if competent, and related to the reason for the use of certain language in the report of the committee to the Convention and in an accompanying memorandum, to the views held or expressed by different members before the Convention of the committee, and to the fact that a certain member of the Convention did not hear the question by Mr. Bryant mentioned in the opinion and the reply of Mr. Parker thereto.

By agreement of parties and counsel an order was made that they be heard together and they were reported to the full court for determination.

De Courcy and Crosby, JJ., dissenting.James M. Morton, Jr., A. E. Pillsbury, Samuel W. McCall, Augustus P. Loring, Francis P. Garland, Leland Powers, and John Noble, all of Boston, for petitioners.

J. Weston Allen, Atty. Gen., and Edwin H. Abbot, Jr., Asst. Atty. Gen., for the Commonwealth.

Frank W. Grinnell, of Boston, for respondent Benjamin Loring Young.

E. S. Abbott, Jr., of Haverhill, pro se.

RUGG, C. J.

The General Court of 1920, by Resolves, c. 86, created a joint special committee to provide amongst other matters for the printing and distribution of the General Laws and ‘the printing of the federal and state Constitutions in the first volume’ thereof.

The parties have treated that committee as performing purely ministerial functions, not partaking in any particular of those of the legislative department. The cases are considered on that assumption.

The single question presented is whether that committee shall print as the Constitution of the commonwealth the Constitution of 1780 with the amendments, or the instrument prepared by the Constitutional Convention convened pursuant to St. 1916, c. 98, called Rearrangement of the Constitution.

[1] The decision, which of these two instruments is the Constitution, affects the performance of the duties of that committee. Those duties are public in their nature. The point is brought in issue in regular form in these proceedings. The cases are rightly before us. Attorney General v. Apportionment Commissioners, 224 Mass. 598, and cases collected at 610, 113 N. E. 581, 587, 588; Sinclair v. Mayor of Fall River, 198 Mass. 248, 256, 84 N. E. 453.

[2][3] A justiciable question thus is presented. The Convention owed its existence to a statute of the General Court approved by vote of the people. Its whole authority and commission was derived from that vote which in turn was founded upon and recognized the binding force of the statute. Upon general principles it had no authority to act in any other way or manner than as set forth in the statute. Opinion of Justices, 6 Cush. 573, 575. The form of government of this commonwealth as established by the people is a written Constitution. That instrument is the fundamental law of the people. To its terms the people themselves and every department of their government must conform. By that instrument the judicial department is charged with the obligation of exercising judicial powers and excluded from exercising executive or legislative functions, and the executive and legislative departments are with equal emphasis forbidden to exercise judicial powers. Article 30 of the Bill of Rights. Thus the people in their wisdom have delegated to the judicial department as their special guardians in this particular the duty of interpreting, applying, defending and preserving their creation. Whether that instrument has been changed or modified is a question of fundamental law. That is as thoroughly a question of law as the interpretation of the provisions of the Constitution. In both instances it is the ascertainment of the determination of the people as disclosed by written documents. To that all must yield. In order to interpret and apply the fundamental law, it is essential first to determine whether the original Constitution has been amended, altered, changed or superseded in whole or in part, and if in part, in what part. The judicial department cannot move in the performance of its duty without first settling that question. It cannot bound its own jurisdiction, determine the conflicting contentions of parties, or decide upon the rights, obligations and liberties of individuals until the Constitution, which marks their definitions in broad outlines, fixes the nature and the limitations of the departments of government and declares its great objects, shall itself be ascertained. This is a government regulated by law under a written constitution. The judicial department alone can decide what the law is. It is the only authoritative instrumentalityto that end established by the Constitution. On principle there seems to us no distinction in this regard between an amendment or amendments to the Constitution and a rearrangement of existing constitutional provisions undertaken by peaceful methods under the forms of law and not by revolutionary proceedings. This is the consensus of opinion, so far as we are aware, of all courts which have had occasion to consider the question. It was said in Ellingham v. Dye, 178 Ind. 336, 391, 99 N. E. 1, 21 (Ann. Cas. 1915C, 200), writ of error to which was dismissed in Marshall v. Dye, 231 U. S. 250, 34 Sup. Ct. 92, 58 L. Ed. 206, as the result and conclusion of an ample discussion:

‘And so the power resides in the courts, and they have, with practical uniformity, exercised the authority to determine the validity of proposal, submission and ratification of change in the organic law.’

This statement is supported by citations of decisions from 23 other states of the Union. We do not need to review or recite them. Since that decision the question has arisen and been settled in the same way in at least 2 other states. McCreary v. Speer, 156 Ky. 783, 162 S. W. 99;Foley v. Democratic Parish Committee of Parish of Orleans, 138 La. 220, 70 South. 104;State v. American Sugar Refining Co., 137 La. 407, 68 South. 742. See, also, for review of authorities, McConaugley v. Secretary of State, 106 Minn. 392, 401, 402, 119 N. W. 408;Bott v. Wurts, 63 N. J. Law, 289, 43 Atl. 744, 881,45 L. R. A. 251; and Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738,15 N. W. 609. See, also, to same point, Scott v. Secretary of State, 202 Mich. 629, 644, 168 N. W. 709;State v. Marcus, 160 Wis. 354, 358, 359, 152 N. W. 419;Crawford v. Gilchrist, 64 Fla. 41, 59 South. 963, Ann. Cas. 1914B, 916, decided since Ellingham v. Dye. The same question in its essence has come before the Supreme Court of the United States. In the National Prohibition Cases, 253 U. S. 350, 40 Sup. Ct. 486, 588,64 L. Ed. 946, it was argued strenuously by counsel of the highest eminence that the Eighteenth Amendment to the federal Constitution was beyond the power of amendment reserved in article 5 of that instrument and was not a part of the fundamental law. The court entertained those questions and decided them at page 387 of 253 U. S. (40 Sup. Ct. 486, 588,64 L. Ed. 946). That decision, if followed, is conclusive of that point in the case at bar. In principle there can be no distinction between deciding upon the validity and regularity of an amendment and of a new Constitution.

There is nothing inconsistent with this view in Luther v. Borden, 7 How. 1, 12 L. Ed. 581. It there was held that under the federal Constitution the Supreme Court of the United States did not have jurisdiction to decide which of two instruments was the valid Constitution of a state on the ground that that was by the terms of the Constitution of the United States a political question to be settled by the Congress and not by the courts of the United States. It also there was said in substance that no court can declare invalid the government they serve or that the Constitution which they have sworn to protect is a nullity. This principle controlled decision in Carpenter v. Cornish, 83 N. J. Law, 696, 85 Atl. 240,Brittle v. People, 2 Neb. 198, and Miller v. Johnson, 92 Ky. 589, 18 S. W. 522,15 L. R. A. 524. Without impugning that principle, it seems to us not applicable to the facts here presented. As between the partisans of rival forms of government arrayed against each other in armed conflict, as was the case in Dorr's rebellion involved in Luther v. Borden, 7 How. 1, 12 L. Ed. 581,...