Morrissey v. State Ballot Law Comm'n

• Decision Date: 10 August 1942
• Parties: MORRISSEY et al. v. STATE BALLOT LAW COMMISSION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 121

43 N.E.2d 385

MORRISSEY et al.

v.STATE BALLOT LAW COMMISSION.

Supreme Judicial Court of Massachusetts, Suffolk.

Aug. 10, 1942.

Exceptions from Supreme Judicial Court; Suffolk County.

Certiorari proceeding by Nicholas P. Morrissey and others against the State Ballot Law Commission to quash proceedings before the Commission in which the Commission had rejected an initiative petition proposing as a law a measure relating to a state fund for workmen's compensation. A single justice of the Supreme Judicial Court ruled as a matter of law that the petition be dismissed, and petitioners bring exceptions.

Exceptions overruled. F. B. Wallis and R. E. Goodwin, both of Boston, for petitioners.

R. Clapp, Asst. Atty. Gen., and C. B. Rugg, of Boston, for respondents.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

FIELD, Chief Justice.

The ultimate issue involved in this case is whether a measure proposed as a law by initiative petition relating to a State fund for workmen's compensation (see Opinion of the Justices, 309 Mass. 571, 34 N.E.2d 527 ) shall be submitted to the voters at the State election to be held in 1942. The constitutional requirements for the passage of a law by the initiative process are fixed by art. 48 of the Amendments to the Constitution of the Commonwealth, the Initiative, II, §§ 3, 4, V, § 1; General Provisions, III. These requirements are stated in outline in Compton v. State Ballot Law Commission, 311 Mass. 643, 645, 646, 42 N.E.2d 288. The only question with respect to compliance with these constitutional requirements involved in the present case is whether the initiative petition had been signed by the required number of qualified voters-‘not less than twenty thousand’-when it was filed with the Secretary of the Commonwealth and by him transmitted to the clerk of the House of Representatives so that the proposed law was then ‘deemed to be introduced and pending.’ The Initiative, II, §§ 3, 4; V, § 1. No contention is made that if the initiative petition was so signed by the required number of voters the proposed law should not be submitted to the people at the State election, nor, on the other hand, is it contended that if the initiative petition was not so signed the proposed law should be submitted to the people.

The present proceeding is a petition for a writ of certiorari, G.L. (Ter.Ed.) c. 249, § 4, brought in the Supreme Judicial Court by ten citizens and registered voters of the Commonwealth-constituting the first ten signers of the petition-against the commissioners constituting the State ballot law commission-hereinafter referred to as the commission-for the purpose of quashing the proceedings before the commission in which it decided that it ‘rejects the petition, and the same shall not appear on the official ballot.’ See G.L. (Ter.Ed.) c. 53, § 22A, as appearing in St.1938, c. 192. The commissioners filed a return to the petition embodying therein the original decision of the commission and also a ‘supplementary statement’ of the commission. And the Attorney General in behalf of the commissioners filed a demurrer to the petition in which the reason for demurrer stated was ‘that the petition and return do not set forth any cause or matter whatsoever entitling the petitioners to relief by way of a writ of certiorari against the respondents.’ The case was heard by a single justice of this court. As appears from the bill of exceptions, he ‘sustained the demurrer and ruled as a matter of law that the petition be dismissed,’ and the petitioners ‘duly excepted to the ruling sustaining the demurrer and to the ruling as a matter of law that the petition should be dismissed.’

First. Procedure. No contention is made that a petition for a writ of certiorari is not an appropriate proceeding to review the action of the commission, or that the petitioners are not proper parties to institute the proceeding. See Locke v. Selectmen of Lexington, 122 Mass. 290;Horton v. Attorney General, 269 Mass. 503, 508, 509, 169 N.E. 552;Compton v. State Ballot Law Commission, 311 Mass. 643, 42 N.E.2d 288.

The case was heard by the single justice, in accordance with the usual practice, upon the petition and the return of the commissioners thereto (Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 214;Tewksbury v. County Commissioners of Middlesex, 117 Mass. 563, 564;Worcester & Nashua Railroad v. Railroad Commissioners, 118 Mass. 561, 563, 564;Haven v. County Commissioners of Essex, 155 Mass. 467, 468, 29 N.E. 1083;Warren v. Street Commissioners of Boston, 183 Mass. 119, 120, 66 N.E. 412;Town of Webster v. Alcoholic Beverages Control Commission, 295 Mass. 572, 573, 4 N.E.2d 302), except that, as has been said to be permissible practice (Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477, 481, 160 N.E. 427;Town of Webster v. Alcoholic Beverages Control Commission, 295 Mass. 572, 573, 4 N.E.2d 302; see, also, Worcester & Nashua Railroad v. Railroad Commissioners, 118 Mass. 561, 564;Irwin v. Justice of Municipal Court of Brighton District, 298 Mass. 158, 159, 10 N.E.2d 92 ), a demurrer of the commissioners was filed with the return. We do not discuss the function, in general, of a demurrer in a certiorari proceeding, but since the ground of this demurrer is ‘that the petition and return do not set forth any cause or matter whatsoever entitling the petitioners to relief,’ such demurrer raised no question of law not presented for decision by the petition and the return thereto.

The ‘accurate statement of the force and effect of the return of respondents in a petition for a writ of certiorari is that it is ‘conclusive as to all matters of fact within their jurisdiction, passed upon by them.’ Tewksbury v. County Commissioners, 117 Mass. 563, 565. ' Marcus v. Board of Street Commissioners of Boston, 252 Mass. 331, 333, 147 N.E. 866, 867. See, also, Compton v. State Ballot Law Commission, 311 Mass. 643, 646, 42 N.E.2d 288. This statement, however, necessarily implies that ‘a peitioner may attack the jurisdiction of the inferior tribunal and may, if necessary, introduce evidence in support of his contention.’ Marcus v. Board of Street Commissioners of Boston, 252 Mass. 331, 333, 147 N.E. 866, 867. The petitioners in the present case attack the jurisdiction of the commission to make the decision challenged by them, but the burden rested upon them ‘to prove by evidence outside the record, if necessary, that the respondents were without jurisdiction.’ Morrison v. Selectmen of Weymouth, 279 Mass. 486, 490, 181 N.E. 786, 788. The bill of exceptions, however, does not disclose that any such evidence was introduced at the hearing before the single justice. Evidence outside the record of a proceeding under review may also be received in the trial court to controvert statements of extrinsic facts in the return relied on to show that substantial justice does not require the granting of relief. Tewksbury v. County Commissioners of Middlesex, 117 Mass. 563, 566;Byfield v. Newton, 247 Mass. 46, 53, 54, 141 N.E. 658.Selectmen of Wakefield v. Judge of First District Court of Eastern Middlesex, 262 Mass. 477, 481, 160 N.E. 427. But the return in the present case contains no such statement, and the record does not disclose that any such evidence was introduced at the hearing before the single justice. (Moreover, such evidence, if introduced, would relate to a matter of discretion. Ward v. Aldermen of Newton, 181 Mass. 432, 433, 63 N.E. 1064 ). So far, therefore, as appears from the bill of exceptions, there was no evidence in the case that in any respect tended to controvert the facts stated in the return of the commissioners.

The petitioners, however, rely upon certain allegations of fact in their petition on the theory that, so far as these allegations are not inconsistent with the return of the commissioners, they are admitted by the commissioners by their demurrer, if not otherwise. There were no allegations of fact in the petition bearing upon the jurisdiction of the commission unless this effect is to be attributed to the allegation therein that the objections to the initiative petition filed with the Secretary of the Commonwealth and by him referred to the commission were ‘on the grounds that the signatures appearing thereon were invalid under the provisions of Article 48 of the amendments to the Constitution and of Sections 7, 22A and 22B of Chapter 53, G.L.(Ter.Ed.).’ Even if it is assumed in favor of the petitioners, in any aspect of the case, that this allegation, though not proved by evidence, is to be regarded as true and that any of the grounds of the objections therein stated are beyond the scope of the jurisdiction of the commission-matters upon which no opinion is here intimated-the inclusion of such grounds in the objections is not fatal to the jurisdiction of the commission upon grounds stated in such objections and acted upon by the commission that are within the scope of such jurisdiction. The other allegations of the petition relied on by the petitioners relate to the proceeding before the commission and are allegations with respect to the state of the evidence before the commission at the public hearings upon the objections to the initiative petition, to rulings of law alleged to have been made by the commission at such public hearings, and to requests by the petitioners that certain specific findings be incorporated in the record of the commission. Upon a hearing upon the petition and the return such allegations must be disregarded. Dunn v. Mayor of Taunton, 200 Mass. 252, 260, 86 N.E. 313;Prusik v. Board of Appeal of Boston, 262 Mass. 451, 453, 160 N.E. 312;Newcomb v. Aldermen of Holyoke, 271 Mass. 565, 567, 171 N.E. 826;Walsh v. District Court of Springfield, 297 Mass. 472, 478, 9 N.E.2d 555. In the light of these decisions the statement by the court in Weed v. Mayor & Aldermen of Boston, 172 Mass. 28, 51...