Prescott v. Secretary of Commonwealth

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

299 Mass. 191

12 N.E.2d 462

FRANCIS PRESCOTT & others v. SECRETARY OF THE COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

January 17, 1938

November 4, 1937.

Present: FIELD DONAHUE, LUMMUS, QUA, & DOLAN, JJ.

Constitutional Law Emergency law, Separation of powers of government. Governor. Statute, Emergency law. Words, "Emergency."

The questions whether a statement, filed by the Governor with the Secretary of the Commonwealth and purporting under art. 48 of the Amendments to the

Constitution of the Commonwealth, The Referendum, II, to declare a certain law to be an emergency law, conformed to constitutional requirements, and what was the effect of the filing of such statement, were matters for judicial determination in a petition for a writ of mandamus to require the Secretary of the Commonwealth to act in disregard of the purport of such statement. A statement under The Referendum, II, of art. 48 of the Amendments to the

Constitution of the Commonwealth, filed by the Governor immediately upon the enactment of a statute and declaring it to be an emergency law, was not premature although the statute by its terms was to take effect six months later and no petition for a referendum under The Referendum, III,

Section 3, had been filed.

A statement by the Governor declaring St. 1937, c. 384, an emergency law complied in form with the requirements of The Referendum, II of art. 48 of the Amendments to the Constitution by reciting in terms the declaration thereby made essential and stating as facts constituting the emergency that delayed operation of the law to its effective date would result in certain inconvenience to the public and to State, city, and town officials in the framing of their annual budgets.

The situation justifying action by the Governor in declaring a law an emergency law under The Referendum, II, of art. 48 of the Amendments to the Constitution is not merely one sought to be met by the law but may include one resulting from the passage of the law. The result of a declaration by the Governor under The Referendum, II, of

art. 48 of the Amendments to the Constitution that St.

1937, c. 384, was an emergency law, so far as its taking "effect without suspension" and thus preventing referendum proceedings was concerned, was not nullified by the facts that the statute by express terms was to take effect on a certain date and that the Governor in his statement of the reason for his opinion that an emergency existed referred to "delayed operation to the date set forth in the Act."

If it be assumed that action by the Governor in declaring a law an emergency law under The Referendum, II, of art. 48 of the Amendments to the

Constitution is subject to judicial review with respect to the sufficiency of the facts set forth by him in his statement to constitute an emergency, such action cannot be held invalid unless, giving effect to every presumption in its favor, it is wholly without support in the facts set forth. A declaration by the Governor under The Referendum, II, of art. 48 of the

Amendments to the Constitution that St. 1937, c. 384, was an emergency law could not be said to be wholly without support in his statement of the facts constituting the emergency, that delayed operation of the law would result in certain inconvenience to the public and to State officials in the preparation of their budgets; the declaration was valid and resulted in the law taking "effect without suspension" so that it was not subject to referendum.

PETITION, filed in the Supreme Judicial Court for the county of Suffolk on July 6, 1937, for a writ of mandamus.

The case was reported to the full court by Field, J., without decision. R. S. Wilkins, for the petitioners.

J. J. Ronan, Assistant Attorney General, for the respondent.

FIELD, J. 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 art. 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, III, Section 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[s] 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 justice 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, Section 6; c. 231, Section 111; Campbell v. Justices of the Superior Court, 187 Mass. 509 , 510.

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 pre-primary 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 art. 48 of the Amendments to the Constitution of the Commonwealth, The Referendum, III, Sections 1, 2), or that the petition filed with the Secretary of the Commonwealth did not conform to the requirements of The Referendum, III, Section 3. The Constitution in express terms imposes upon the Secretary the duty of providing blanks for additional signatures and other duties thereafter. The Referendum, III, Section 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 the Commonwealth, 257 Mass. 91 , 92-94; Horton v. Attorney General, 269 Mass. 503 . See also Sullivan v. Secretary of the Commonwealth, 233 Mass. 543; Yont v. Secretary of the Commonwealth, 275 Mass. 365; Christian v. Secretary of the Commonwealth, 283 Mass. 98 .

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, III, Section 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, II, 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...