Morris v. Goss

Decision Date05 October 1951
Citation83 A.2d 556,147 Me. 89
PartiesMORRIS et al. v. GOSS, Secretary of State.
CourtMaine Supreme Court

Berman, Berman & Wernick, Portland, for petitioners.

Alexander A. LaFleur, Atty. Gen., Boyd Bailey, Asst. Atty. Gen., and Powers McLean, Sp. Asst. Atty. Gen., for the State.


MERRILL, Justice.

On exceptions. This is a mandamus proceeding by which the petitioners seek to compel the Secretary of State to receive petitions invoking the referendum provided for in the Constitution of this State on a bill enacted by the Legislature as an emergency measure and entitled 'An Act Imposing a Sales and Use Tax'. The petitioners for the writ were citizens, taxpayers and electors of the State of Maine whose names appeared on the voting lists of the various cities and towns in which they resided as qualified to vote for Governor of the State of Maine. The petitioners instituted the petition for mandamus in their own names upon the refusal by the Attorney General of the State of Maine, after being duly requested so to do, to permit the use of his name, title or office to proceed by mandamus against the Secretary of State regarding the controversy set forth in the petition.

The 95th Legislature of the State of Maine enacted 'An Act Imposing a Sales and Use Tax', the same being designated as Chapter 250 of the Public Laws of 1951. This act will be hereinafter referred to as Chapter 250. This act purported to be enacted as an emergency measure to take effect when approved and it was approved by the Governor on the 3rd day of May, 1951. On the 19th day of May, 1951, the Legislature enacted 'An Act for the Assessment of a State Tax for the Year Nineteen Hundred and Fifty-one and for the Year Nineteen Hundred and Fifty-two', designated as Chapter 213 of the Private and Special Laws of 1951. This act will be hereinafter referred to as Chapter 213. This act also purported to be enacted as an emergency act to take effect when approved. It was approved by the Governor May 21, 1951.

Chapter 213 materially amended certain provisions of Chapter 250.

In the petitions for a referendum the petitioners set forth a copy of Chapter 250 as originally enacted, ignoring the amendments thereto which had been made by Chapter 213.

Chapter 250 contained the following emergency preamble:

'Emergency preamble. Whereas the essential needs of state government require that additional revenue be raised by this legislature; and

'Whereas, the revenue to be collected under the provisions of this act may not be sufficient to provide for said needs during the next fiscal biennium unless the tax is imposed on retail sales made on and after the date of beginning of the next fiscal year, namely, July 1, 1951; and

'Whereas, it is necessary to proceed immediately to create and organize an efficient administrative agency for the collection of said tax on and after July 1, 1951; and

'Whereas, in the judgment of the legislature, these facts create an emergency within the meaning of the constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,'.

Chapter 250 also contained the following emergency clause: 'Emergency clause. In view of the emergency cited in the preamble, this act shall take effect when approved.'

The basic controversy between the parties is whether Chapter 250 is subject to the referendum provisions of the Constitution. The respondent, Secretary of State, alleges that the bill was duly and legally enacted in compliance with the terms of the Constitution as an emergency measure, that it thereby took effect when approved by the Governor and that therefore it is not subject to referendum.

He also claims that the petitions invoking the referendum are invalid as not complying with that portion of Section 20 of Part Third, Article IV of the Constitution, as amended, see Amend. art. 31, which provides, 'The petitions shall set forth the full text of the measure requested or proposed.' This claim is based upon the fact that the measure set forth in the petition is Chapter 250 as originally enacted and without the amendments thereto enacted by Chapter 213.

He further claims that the questions involved in the case are now moot because the constitutional ninety day period for filing referendum petitions has elapsed, and that the tender of valid petitions in a sufficient number cannot be the equivalent to filing the same. He further claims that the question is moot because even if the Secretary of State is compelled to receive the petitions under the mandamus, other time limits, for action thereon, expressed in the Constitution cannot be complied with.

The petitioners, on the other hand, claim that Chapter 250 was not constitutionally enacted to take effect as an emergency measure, and that not being so enacted it was subject to referendum. As to the claim that the petitions are invalid, the petitioners allege that the Constitution, Article IV, Part Third, Section 17, contemplates a referendum not only upon the whole but upon a part or parts of an enacted bill and that therefore, the petitions comply with constitutional requirement. They also take issue with the respondent on the other issues raised by him.

The Justice of the Superior Court ordered the first or alternative writ to issue. The Secretary of State filed a return. To this return the petitioners demurred. The Justice sustained the contentions of the respondent that the bill was constitutionally enacted as an emergency measure and that the referendum petitions were invalid, overruled the demurrer and denied the peremptory writ. To the ruling of the presiding Justice the petitioners alleged exceptions which were allowed and certified to the Chief Justice in accordance with the provisions of Sec. 18 of Chap. 116 of the Revised Statutes. It is upon these exceptions that the cause is now before the Justices.

If Chapter 250 was constitutionally enacted as an emergency measure it was not subject to referendum and that fact would be decisive of this case. As we sustain the ruling of the Justice below on this ground it will be unnecessary to consider the other grounds of objection by the respondent to the issue of the peremptory writ.

We are not unmindful of the well established rule that questions of constitutional law should not be passed upon unless strictly necessary to a decision of the cause under consideration. Payne v. Graham, 118 Me. 251, 107 A. 709, 7 A.L.R. 516. This rule should not be departed from except for strong reason and under extraordinary circumstances. The rule is particularly applicable to cases involving the validity of action by the Legislature, a coordinate branch of government. One of the basic reasons for the rule is that the Court should refrain from the exercise of its undoubted authority to declare legislative action to be in violation of the Constitution except in those cases where such declaration is absolutely required of it, thereby exhibiting the respect which one coordinate branch of the government should render to another. Furthermore, except in extraordinary cases the Court will rely upon the presumption of the constitutionality of legislative action and not even examine the question unless a determination thereof is strictly necessary to a decision disposing of the cause before it for determination.

We believe, however, that we should depart from the rule in this case. It is a cause of great public moment. More than thirty thousand (30,000) citizens have sought to nullify legislative action on the ground that it was taken in violation of constitutional provisions. It is the first time in the history of this State that such a controversy has arisen between the people, as such, and the Legislature. We believe it to be in the public interest that we decide this cause not upon a technicality or technicalities, but squarely upon the constitutionality of the exercise of legislative power by the Legislature. Surely it is no disrespect to that branch of government to examine its action and to hold (as we do hold) that it has acted with strict fidelity, not only within its constitutional authority, but in the discharge of its duty as an independent branch of government.

Section 16, Part Third of Article IV of the Constitution is as follows: 'No act or joint resolution of the legislature, except such orders or resolutions as pertain solely to facilitating the performance of the business of the legislature, of either branch, or of any committee or officer thereof, or appropriate money therefor or for the payment of salaries fixed by law, shall take effect until ninety days after the recess of the legislature passing it, unless in case of emergency, (which with the facts constituting the emergency shall be expressed in the preamble of the act), the legislature shall, by a vote of two-thirds of all the members elected to each house, otherwise direct. An emergency bill shall include only such measures as are immediately necessary for the preservation of the public peace, health or safety; and shall not include (1) an infringement of the right of home rule for municipalities, (2) a franchise or a license to a corporation or an individual to extend longer than one year, or (3) provision for the sale or purchase or renting for more than five years of real estate.'

Counsel for the respondent strenuously contend that the Court has no authority to review a legislative determination that an act is immediately necessary for the preservation of the public peace, health or safety. On the other hand, counsel for the petitioners as vigorously contend to the contrary.

The briefs submitted are of unusual excellence. They are exhaustive and contain the authorities relied upon as sustaining the respective views of the parties. They also contain clear analyses of opposing...

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