Opinion of Justices to Governor

• Decision Date: 24 April 1972
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: OPINION OF the JUSTICES TO the GOVERNOR.

Page 629

282 N.E.2d 629

361 Mass. 897

OPINION OF the JUSTICES TO the GOVERNOR.

Supreme Judicial Court of Massachusetts.

April 24, 1972.

On April 24, 1972, the Justices submitted the following answers to a question propounded to them by the Governor.

To His Excellency, the Governor of the Commonwealth:

The undersigned Justices of the Supreme Judicial Court respectfully submit this answer

to the question set forth in a request dated April 3, 1972, and submitted to us on April 4, 1972

Your request indicates that the representative from the Fifth Congressional District of Massachusetts to the Ninety-second Congress of the United States will soon resign, thereby creating a vacancy in the Commonwealth's representation in Congress. At the time of the last general election on November 3, 1970, G.L. c. 57, § 1, as appearing in St.1967, c. 472, § 1, provided that the Fifth Congressional District was to consist of the cities of Lawrence, Lowell, and Woburn and the towns of Andover, Bedford, Billerica, Burlington, Carlisle, Chelmsford, Dracut, Dunstable, Groton, Lexington, Methuen, North Reading, Pepperell, Reading, Tewksbury, Tyngsborough, Wakefield and Wilmington. By St.1971, c. 1074, § 1, amending G.L. c. 57, § 1, the boundaries of the Fifth Congressional District were changed in the following manner: The city of Woburn and the towns of Burlington, Reading, and Wakefield were transferred from the district, and the towns of Acton, Ashby, Boxborough, Concord, Littleton, Townsend, and Westford were transferred into the district. Chapter 1074, § 2, provided that the act should 'take effect upon its passage.'

In view of the change in district boundaries, you request our opinion as to 'which version of G.L. c. 57, § 1, would govern for purposes of identifying the cities and towns to which precepts (for a special election) would be issued under G.L. c. 54, § 140.'

General Laws c. 54, § 140, is the statute clearly intended to apply in the event of a vacancy. It reads as follows: 'Upon failure to choose a representative in congress or upon a vacancy in said office, the governor shall cause precepts to be issued to the aldermen in every city and the selectmen in every town in the district, directing them to call an election on the day appointed therein for the election of such representative' (emphasis supplied). The General Court may enact such a statute. See art. 1, § 2, first and fourth pars. and § 4, first par. of the Constitution of the United States; 2 U.S.C. §§ 1--9, esp. § 8 (1970).

The issue is the meaning of the words 'in the district' in G.L. c. 54, § 140. The current phraseology dates from St.1898, c. 548, § 272. The Legislature then combined two paragraphs in the election act of 1893 which dealt separately with failure to elect a representative and a vacancy in that office. See St.1893, c. 417, § 216. The second paragraph of § 216 governing the filling of a vacancy provided: 'If a vacancy occurs in the office of representative in congress, the governor shall . . . cause precepts to be issued for an election of representative in congress in the district in which the vacancy occurs' (emphasis supplied). By comparison, the first paragraph of § 216 provided: 'If there is a failure at an election to choose a representative in congress in a congressional district, the governor shall cause precepts to be issued to the board of aldermen in every city and the selectmen in every town in the district' (emphasis supplied). Earlier statutes, the first enacted in 1833, likewise treated failures to elect and vacancies in office separately and contained language similar to that in the 1893 act. See St.1833, c. 68, §§ 4, 5; Rev.Sts. c. 6, §§ 6, 7; Gen.Sts. c. 9, §§ 5, 6; Pub.Sts. c. 9, §§ 5, 6; St.1890, c. 423, §§ 167, 168.

We are of opinion that, when the Legislature by St.1898, c. 548, § 272, combined the separate provisions just cited, there was no intention to change the pre-existing law. The 1898 act was entitled, 'An Act to revise and codify the laws relative to elections.' The general rule is that 'verbal changes in the revision of a statute do not alter its meaning and are construed as a continuation of pre-existing law in the absence of some accompanying report of revisers or other indication showing an express purpose to change the substance of the law.' Derinza's Case, 229 Mass. 435, 442--443, 118 N.E. 942, 946. See The incumbent representative was elected by the people of the Fifth Congressional District as that district existed on November 3, 1970. In these circumstances, we are of opinion that, notwithstanding any change in district boundaries made subsequent to his election, he continues to represent the people of the cities and towns which chose him. In Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506, the Supreme Court of the United States said: 'Legislators represent people . . .. Legislators are elected by voters.' Cf. Wesberry v. Sanders, 376 U.S. 1, 7--9, 84 S.Ct. 526, 11 L.Ed.2d 481. These cases indicate that a legislator represents the constituency which elected him. Since the incumbent was elected to the Ninety-second Congress to represent a particular constituency, in the normal course of events he would serve that constituency for the duration of that Congress. We are of opinion, therefore, that, if the incumbent does not serve his full term but ceases to serve during his term, the resulting vacancy in the Ninety-second Congress will then occur in the district from which he was elected to office.

Longyear v. Commissioner of Corps. & Taxn., 265 Mass. 585, 588, 164 N.E. 459; Neiss v. Burwen, 287 Mass. 82, 95--96, 191 N.E. 654. There is nothing to indicate that a change in substance was intended. Instead, it appears that the change was made purely to consolidate two provisions redundant in some respects. We conclude, therefore, that G.L. c. 54, § 140, as applicable to congressional vacancies, continues the import of earlier statutes, and that an election to fill a vacancy in the House of Representatives should be conducted in the district in which the vacancy exists.

As we interpret St.1971, c. 1074, § 1, in so far as it applies to elections of representatives in Congress, the statute was intended to establish districts for electing representatives to the Ninety-third Congress and subsequent Congresses. It was not designed for the purpose of filling vacancies in the Ninety-second Congress. Two factors lead us to this view.

First, ordinarily 'statutes do not govern situations not within the reason of their enactment and giving rise to radically diverse circumstances presumably not within the dominating purpose of those who framed and enacted them.' Commonwealth v. Welosky, 276 Mass. 398, 403, 177 N.E. 656, cert. den. 284 U.S. 684, 52 S.Ct. 201, 76 L.Ed. 578; Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 362, 197 N.E.2d 886. As is commonly known, the reason for enacting St.1971, c. 1074, was to redistrict the Commonwealth for the next regular congressional election in accordance with the 'one person, one vote' principle. See Wesberry v. Sanders, 376 U.S. 1, 7--18, 84 S.Ct. 526, 11 L.Ed.2d 481, applying Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821, to congressional districting. See also Dinis v. Volpe, 264 F.Supp. 425, 428 (D.Mass.). There is nothing to indicate an intention that the apportionment scheme is to apply to a special election held to fill the uncompleted term of a representative elected to the present Congress.

Second, a statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts about it upon that score. Loriol v. Keene, 343 Mass. 358, 363, 179 N.E.2d 223. If St.1971, c. 1074, were to be interpreted as applicable, a serious constitutional question might arise. The apportionment cases of the Supreme Court indicate that the right to vote includes the right not to have that vote diluted. See Wesberry v. Sanders, 376 U.S. 1, 7--9, 84 S.Ct. 526, 11 L.Ed.2d 481; Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506. If the proposed special election were to be held in the new Fifth Congressional District (G.L. c. 57, § 1, as appearing in St.1971, c. 1074, § 1) the voters of Woburn, Burlington, Reading, and Wakefield would be denied The problem would become particularly acute if, for a subsequent election, the number of representatives allotted to the Commonwealth were to be reduced. Such a situation arose in 1962 (see e.g. St.1962, c. 315, § 1), when it would have been difficult, if not impossible, to employ the new districts in filling a vacancy.

a voice in the replacement of their representative in the present Congress. By the same token, the voters of Acton, Ashby, Boxborough, Concord, Littleton, Townsend, and Westford would be allowed to participate in the selection of a seccessor to a representative whom they did not elect in the first place. Such a result might be thought to dilute the votes cast in the last general election by the residents of the four municipalities which the 1971 act removes from the old Fifth Congressional District. If the 1971 act contracts the value of the votes cast by some citizens, it at the same time expands the value of those cast by other citizens. It is at least doubtful, in view of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, whether a State may enforce an apportionment scheme which produces these results. Furthermore, if the eighteenth (1960) decennial census remains the governing census for apportionment purposes until the election of the Ninety-third Congress (as may well be the case under 2 U.S.C. § 2a (1970)), then a special interim election conducted in a district set out in the 1971 act might also be subject to attack on the ground that the new statute is based on the nineteenth (1970) decennial census which is not as yet applicable. Cf. Ex parte Siebold, 100 U.S. 371, 383--384, 25 L.Ed. 717.

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