Opinion of the Justices

• Decision Date: 23 February 1970
• Citation: 357 Mass. 787,256 N.E.2d 420
• Parties: OPINION OF THE JUSTICES to the House of Representatives
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 420

256 N.E.2d 420

357 Mass. 787

OPINION OF THE JUSTICES to the House of Representatives.

Supreme Judicial Court of Massachusetts,

Feb. 23, 1970.

On February 23, 1970, the Justices submitted the following answers to questions propounded to them by the House of Representatives

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the House on January 27, 1970, and submitted to the Justices on February 3, 1970.

The questions relate to a pending proposed amendment to the Constitution of the Commonwealth, which was introduced in the General Court by an initiative petition, printed as House Doc. No. 300 of the year 1969, entitled, 'An Initiative Amendment to the Constitution providing [357 Mass. 789] for the reduction of the size of the House of Representatives to One Hundred and Sixty Members and providing for a Decennial Division of the Commonwealth into Representative and Senatorial Districts,' a copy of which, submitted with the order, is set forth in Appendix A.

The proposal was originally submitted as an initiative petition to the Attorney General 'not later than' August 2, 1967, and received the certificate of the Attorney General as to its proper form for submission to the people. The petition, having received the requisite number of signatures, was

transmitted to the General Court on January 3, 1968. Pursuant to art. 48 of the Amendments, on June 5, 1968, the proposal seasonably was laid before a joint session of the two houses at which it received the affirmative votes of more than one fourth of all the members elected and was thereupon referred 'to the next General Court' for its action

The proposal provides for dividing the Commonwealth into 160 representative districts 'which shall be compact and contiguous, and each of which shall contain, as nearly as may be, one one hundred and sixtieth of the legal voters of the commonwealth; and one representative shall be elected from each district so created' (lines 55--59).

The order is preceded by four pages of recitals, twenty-one in number, which appear in Appendix B. The recitals 20 and 21, respectively, are that there exists grave doubt (1) as to whether the pending proposal is properly before the General Court pursuant to art. 48 and (2) as to the constitutionality under the Constitution of the United States of the proposal if submitted to the people and approved by them.

The questions are:

'1. Would the pending proposal for an initiative amendment to the Constitution of the Commonwealth, if submitted and approved by the people constitute a violation of the Fourteenth Amendment to the United [357 Mass. 790] States Constitution for the reason that it provides for the apportionment of the Commonwealth into representative, senatorial and councillor districts on the basis of legal voters instead of population?

'2. Is the matter contained in the pending proposal properly before the General Court pursuant to the provisions of Article XLVIII of the Amendments to the Constitution of the Commonwealth for the reason that the summary fails to indicate--

'(a) That residency qualifications for a representative are substantially changed?

'(b) That the requirement of five years inhabitancy in the commonwealth for a senator and for a councillor is removed?

'(c) That the eligibility of a citizen for election as a councillor from a district in which he is not a legal voter is eliminated?

(This question is contradictory. In order to make answer we assume that the words 'for the reason' should be 'notwithstanding.')

'3. Is the matter contained in the pending proposal properly before the General Court pursuant to Article XLVIII of the Amendments to the Constitution of the Commonwealth in view of the fact that the summary does not contain the sum and substance of the subject matter of the proposed amendment inasmuch as it fails to indicate that the duties of the General Court relative to the arrangement of councillor districts is changed so as to cause a conflict between the proposed initiative amendment and Article XVI of the Amendments to said Constitution?

(This question also is contradictory. In order to make answer we assume that the words 'in view of' should be 'notwithstanding.')

'4. If the initiative amendment were submitted to the people and approved by them, would the councillor districts be arranged by the General Court under said [357 Mass. 791] Article XVI on the basis of senatorial districts as established by the special commission provided for in the pending proposal for an initiative amendment and, if so, is the petition in proper from for submission to the people in view of the fact that it fails to indicate this constitutional change?

(This question also is contradictory. In order to make answer we assume that the words 'in view of' should be 'notwithstanding.')

'5. Is the pending proposal properly before the General Court and for submission to the people notwithstanding its

certification by the Attorney General to be in proper form both as to the petition and its title, when in fact the title and summary gives (sic) the voter no indication of substantial changes in the present Constitution, and the petition itself is ambiguous and in conflict with various articles and sections of the said Constitution without any provision for amendment or repeal of such articles or sections

'6. The proposed amendment in lines 13 to 15, inclusive, defines a legal voter as follows: 'A legal voter is a person who may claim the right to vote under the provisions of Article III of the Articles of Amendment.' Does the inclusion of this definition in the proposed amendment change the meaning and scope of the term 'legal voter' as presently appearing in the Constitution of the Commonwealth as presently defined by your Honorable Court (see Opinion of the Justices, 247 Mass. 583, 143 N.E. 142)?

'7. If the answer to the preceding question (No. 6) is in the affirmative does the failure to mention such change in the summary render the pending proposal invalid as to form?

'8. Is the term 'legal voter' as defined in the pending proposal sufficiently clear so as to permit the taking of an accurate census expeditiously, without confusion, and without requiring the census taker while in the exercise of an executive function to make a judicial or quasi-judicial determination in each case in violation of Article XXX of the Articles of Amendments to the Constitution of the Commonwealth?'

(This is an obvious reference to art. 30 of the Declaration of Rights, which deals with the separation of powers.)

The questions divide themselves into four classes: (1) The propriety of using the term 'legal voters' as the basis for the apportionment of representative, senatorial, and councillor districts instead of population. (2) The validity of the summary to accompany the initiative petition as certified by the Attorney General. The summary and certificate are in Appendix C. (3) Inconsistency between the proposed amendment and other provisions of the Constitution. (4) A supposed violation of art. 30.

Question 1 is in the first class described above, which raises the subject of the overriding effect of the Fourteenth Amendment upon the proposal because of the use of the term 'legal voters' instead of 'population.' Questions 6 and 8 may be conveniently considered with the first class. Question 6 has to do with the effect of the proposal upon the term 'legal voters' as presently appearing in the Constitution and discussed in Opinion of Justices, 247 Mass. 583, 143 N.E. 142.

The material language of the proposed amendment (lines 13--15) is: 'A legal voter is a person who may claim the right to vote under the provisions of Article III of the Articles of Amendment.' Article 3 of the Amendments provides: 'Every citizen of twenty-one years of age and upwards, excepting paupers and persons under guardianship * * * who shall have resided within the commonwealth one year, and within the town or district in which he may claim a right to vote, six calendar months next preceding any election of governor, lieutenant governor, senators or representatives, shall have a right to vote in such election * * *.'

In Opinion of Justices, 247 Mass. 583, 143 N.E. 142, in 1924 answers were submitted to questions inquiring as to the meaning and scope of the term 'legal voters' in arts. 21 and 22 of the Amendments. There the Justices said (page 585, 143 N.E. pages 143--144): 'Those two articles cover the taking the census, the establishment of the number of members of the House of Representatives and of the number of members of the Senate, and the manner of apportionment of the members of each branch of the General Court among and between the several districts according to the relative number of legal voters therein. The first two sentences of these articles are The Constitution has made no express provision for the ascertainment of those who possess the qualifications prerequisite for voting. Manifestly such an ascertainment must be made before the franchise can be exercised in an orderly and expeditious fashion. There must be an examination of the demands of persons claiming to possess the constitutional qualifications to vote, a sifting out of those who in truth possess those qualifications and a separation of those thus qualified from others who lack such qualifications (page 587). The names of those thus found to be qualified must, as a practical matter, be listed and arranged so that elections may be conducted with such speed as to enable all the large numbers of voters to exercise their franchise in a reasonable time and under proper conditions. It is within the jurisdiction of the Legislature to make suitable and wholesome laws upon this subject. * * * The inevitable consequence of these settled propositions is...