Prescott v. Sec'y of Commonwealth

• Decision Date: 17 January 1938
• Citation: 12 N.E.2d 462,299 Mass. 191
• Parties: PRESCOTT et al. v. SECRETARY OF COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 191

12 N.E.2d 462

PRESCOTT et al.

v.SECRETARY OF COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 17, 1938.

Report from Supreme Judicial Court, Suffolk County.

Mandamus proceedings by Francis Prescott and others, as citizens of the Commonwealth, taxpayers and duly qualified and registered voters in various cities and towns thereof, against the Secretary of the Commonwealth to compel him to provide blanks for additional signatures for petition for referendum on a certain law, and to command him to cease to regard the law as already in effect.

Petition dismissed.R. S. Wilkins, of Boston, for petitioners Prescott and others.

J. J. Ronan, Asst. Atty. Gen., for respondent.

FIELD, Justice.

This is a petition for a writ of mandamus. The petitioners are eleven citizens of the Commonwealth, taxpayers and duly qualified and registered voters in various cities and towns thereof. The respondent is the Secretary of the Commonwealth. St.1937, c. 384, was approved by the Governor of the Commonwealth on May 28, 1937. Within thirty days thereafter the petitioners filed with the respondent a petition signed by them, asking for a referendum on the law and requesting that the operation thereof be suspended for the purpose of obtaining a referendum thereon. See article 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, pt. 3, § 3. Thereupon the respondent wrote to one of the petitioners a letter stating that the Attorney General had ‘ruled that the Act is in effect’ and therefore ‘there is no authority under the constitution to request its suspension’ and that he (the respondent) ‘refuse[d] to provide blanks for the use of subsequent signers.’ The respondent declined and continued to decline to provide such blanks. By the petition before us the petitioners seek a writ of mandamus compelling the respondent to provide such blanks and commanding him ‘to cease to regard said act as already in effect.’ The petition was heard by a single justice of this court upon the pleadings and an agreed statement of facts. The single justifice found the facts to be as stated in the agreed statement of facts, and, at the request of the parties, reported, without decision, the questions of law arising in the case for the determination of the full court. See G.L.(Ter.Ed.) c. 211, § 6; c. 231, § 111; Campbell v. Justices of Superior Court, 187 Mass. 509, 510, 73 N.E. 659,69 L.R.A. 311,2 Ann.Cas. 462.

The single justice states in the report that ‘So far as the matter is discretionary with me, I would not exercise my discretion against the issuance of the writ.’ He states also that ‘After the hearing before me was closed the parties reached an agreement whereunder the Attorney General has approved as proper a description of said Chapter 384 of the Acts of 1937, and the respondent has provided proper blanks to the petitioners so that the latter might endeavor to obtain the requisite number of signatures within the time prescribed. This agreement was reached without prejudice to the legal questions involved hereunder, and was entered into in order that the petitioners' rights would not lapse and the questions become moot.’

St.1937, c. 384, which was approved May 28, 1937, is entitled ‘An Act repealing the law providing for party primaries and preprimary conventions of political parties, and reviving and continuing in force certain other laws,’ and reads as follows: ‘Section 1. All provisions of chapter three hundred and ten of the acts of nineteen hundred and thirty-two, providing for party primaries and for pre-primary conventions, and all other laws relative to such primaries or to such conventions, or to both, are hereby repealed. All provisions of law which have been struck out or amended by said chapter three hundred and ten or by any other law relative to such primaries or conventions, or both, are hereby revived as they existed immediately prior to such striking out or amendment, subject, however, to all subsequent amendments not relating to such primaries or conventions, all of which subsequent amendments are hereby continued in force. Section 2. This act shall take effect upon December first in the current year.’

No contention is made that St.1937, c. 384, is not in its nature the subject of a referendum petition (see article 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, pt. 3, §§ 1, 2), or that the petition filed with the Secretary of the Commonwealth did not conform to the requirements of The Referendum, pt. 3, § 3. The Constitution in express terms imposes upon the Secretary the duty of providing blanks for additional signatures and other duties thereafter. The Referendum, pt. 3, § 3. There is no contention that, unless by reason of the action of the Governor of the Commonwealth, hereinafter described, St.1937, c. 384, has taken effect without submission to the people, there are not further duties to be performed by the Secretary, that mandamus is not a proper remedy to compel the performance of these duties, that this petition for a writ of mandamus is not in form and substance adequate for the purpose, or that the petitioners are not proper parties to bring the petition. See Brooks v. Secretary of Commonwealth, 257 Mass. 91, 92-94, 153 N.E. 322;Horton v. Attorney General, 269 Mass. 503, 169 N.E. 552. See, also, Sullivan v. Secretary of Commonwealth, 233 Mass. 543, 124 N.E. 422;Yont v. Secretary of Commonwealth, 275 Mass. 365, 176 N.E. 1;Christian v. Secretary of Commonwealth, 283 Mass. 98, 186 N.E. 38.

The question for determination, therefore, is whether St.1937, c. 384, has taken effect so that the petition filed with the Secretary under The Referendum, pt. 3, § 3, asking for a referendum thereon and requesting that the operation thereof be suspended, has become inoperative. There is no contention, however, that, though St.1937, c. 384, provided expressly that it should take effect on December 1, 1937, the operation thereof was not suspended at least until the annual State election of 1938, unless, by reason of the action of the Governor hereinafter described, this law took effect without such suspension.

The Governor, purporting to act under the provisions of The Referendum, pt. 2, on May 28, 1937, filed with the respondent the following statement: The Commonwealth of Massachusetts, Executive Department, Boston, May 28, 1937. Honorable Frederic W. Cook, Secretary of the Commonwealth, State House. Sir:-I, Charles F. Hurley, by virtue of and in accordance with the provisions of the Forty-eighth Amendment to the Constitution, ‘The Referendum II, Emergency Measures' do declare that in my opinion, the immediate preservation of the public peace, health, safety and convenience requires that the law passed on the twenty-eighth day of May, in the year nineteen hundred and thirty-seven, entitled ‘An Act repealing the Law providing for Party Primaries and Pre-Primary Conventions of Political Parties, and Reviving and Continuing in Force Certain Other Laws' should take effect forthwith, that it is an emergency law, and that the facts constituting the emergency are as follows: Because its delayed operation to the date set forth in the Act will result in inconvenience to the public and to State, City and Town officials, acting on behalf of the public who in the process of their deliberations on and framing of their annual budgets must be certain as to the financial requirements for each budget item involving public expenditures for governmental activities. Very truly yours, Charles F. Hurley, Governor.’ St.1937, p. 431.

Article 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, pt. 2 as amended by article 67 of such Amendments, is as follows: ‘A law declared to be an emergency law shall contain a preamble setting forth the facts constituting the emergency, and shall contain the statement that such law is necessary for the immediate preservation of the public peace, health, safety or convenience. [A separate vote, which shall be recorded, shall be taken on the preamble, and unless the preamble is adopted by twothirds of the members of each House voting thereon, the law shall not be an emergency law. Upon the request of two members of the Senate or of five members of the House of Representatives, the vote on the preamble in such branch shall be taken by call of the yeas and nays. But] if the governor, at any time before the election at which it is to be submitted to the people on referendum, files with the secretary of the commonwealth a statement declaring that in his opinion the immediate preservation of the public peace, health, safety or convenience requires that such law should take effect forthwith and that it is an emergency law and setting forth the facts constituting the emergency, then such law, if not previously suspended as hereinafter provided, shall take effect without suspension, or if such law has been so suspended such suspension shall thereupon terminate and such law shall thereupon take effect: but no grant of any franchise or amendment thereof, or renewal or extension thereof for more than one year shall be declared to be an emergency law.’

1. The question whether the act of the Governor in filing with the Secretary the statement above quoted conformed to the constitutional requirements, and the question of the effect of his act in filing such statement, are matters for judicial determination. ‘It is elementary in constitutional law under the Constitution of this commonwealth that a duty is cast upon the judicial department of government, when the question is properly raised between litigants, to determine whether a public officer is overstepping constitutional bounds and whether statutes duly enacted conform to the fundamental law as expressed in the Constitution.’ Horton v. Attorney General, 269 Mass. 503, 507, 508, 169 N.E. 552, 554. This principle applies to official acts of the Governor (...