Slama v. Attorney General

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; ABRAMS
• Citation: 384 Mass. 620,428 N.E.2d 134
• Parties: George R. SLAMA et al. v. ATTORNEY GENERAL et al.
• Decision Date: 17 November 1981

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428 N.E.2d 134 384 Mass. 620 George R. SLAMA et al.
v.
ATTORNEY GENERAL et al. Supreme Judicial Court of Massachusetts, Suffolk. Argued Oct. 9, 1981.
Decided Nov. 17, 1981.

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Craig E. Stewart, Boston (Douglas H. Wilkins, Boston, with him) for George R. Slama and others.

Harold J. Carroll, Corp. Counsel, Boston, for the city of Boston, joined in a brief.

Alexander G. Gray, Jr., Asst. Atty. Gen., for the Attorney General and another.

Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

ABRAMS, Justice.

George R. Slama and eleven other qualified voters (first signers) signed an initiative petition entitled "An Act providing for the participation of the municipalities in State taxes generated in those municipalities" (Initiative 11/81). Citing art. 48 of the Amendments to the Massachusetts Constitution, the Attorney General refused to certify Initiative 11/81, because it "makes a specific appropriation of money from the treasury."

[384 Mass. 621] The first signers and the city of Boston sought an injunction from a single justice compelling the Attorney General to certify and prepare a fair and concise summary of Initiative 11/81. In addition, the plaintiffs asked the single justice to order the State Secretary to prepare blank signature forms for Initiative 11/81. The single justice reserved and reported the following two questions for the court's consideration: "1. Whether the initiative petition ... makes a specific appropriation of money from the treasury of the Commonwealth within the meaning of Mass. Const. Art. Amend. 48, Init., Pt. 2, § 2. 2. Whether the City of Boston has standing to join this suit as a plaintiff."

On October 19, 1981, we issued an order that "(t)he case is remanded to the county court where judgment is to be entered declaring that the initiative petition 11/81 is a specific appropriation measure and thus prohibited by Mass. Const. Art. Amend. 48, Init. Pt. 2, § 2." The motion to dismiss the city of Boston as a party plaintiff was also allowed.

We summarize the statement of agreed facts and the provisions of Initiative 11/81. Initiative 11/81 requires the Commonwealth to share its sales, use, storage, consumption and income tax revenues with the cities and towns that generate these revenues. It is the initiative's stated purpose "(a) to encourage and facilitate reductions in local property taxes without causing serious disruptions in the level or quality of essential municipal services; (b) to diversify the sources of municipal tax revenue; and (c) to allow each city and town to share with state government the increases in tax revenue generated by the local economy of that city or town."

To achieve these goals, Initiative 11/81 calls for the creation of two separate funds, the local sales and use tax fund and the

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local personal income tax fund. Within each fund, Initiative 11/81 sets up separate accounts for each city and town. The local sales and use tax fund would consist of not less than one-fifth of all net receipts from the sales and use tax. G.L. c. 64H, c. 64I. If the vendor collects the excise in Massachusetts, the net receipt would be credited to the [384 Mass. 622] city or town in which the vendor maintains the place of business where the sale or other transaction occurred. But if the vendor collects the excise outside the State or if the excise is paid directly to the Commonwealth, the receipt would be directed to the account of the municipality where the sale or transaction occurred.

The local personal income tax fund would be funded as follows. No less than ten per cent of the net tax on interest, dividends, and capital gains would be credited to the account of the city or town where the taxpayer resides. At least five per cent of the net tax on income other than interest, dividends, and capital gains derived from real or tangible personal property located in Massachusetts would be credited to the city or town that is the situs of the property. No less than five per cent of the net tax on employment income would be credited to the municipality in which the employer's principal place of business is located. At least five per cent of the net tax on income other than interest, dividends, and capital gains would be credited to the city or town where the taxpayer resides. Initiative 11/81 would distribute both funds to each city and town. All funds so allocated would be transferred automatically without appropriation by the Legislature.

Motion to dismiss. The plaintiffs in this action are twelve qualified voters who signed Initiative 11/81, and the city of Boston. The Attorney General moved to dismiss the city from the action, claiming that Boston was not a proper plaintiff in this case.

"Traditionally we have considered the first ten signers of an initiative or referendum petition to be proper parties in moving through the courts to protect their petition. See Cohen v. Attorney Gen., 354 Mass. 384, 237 N.E.2d 657 (1968); Compton v. State Ballot Law Comm'n, 311 Mass. 643, 42 N.E.2d 288 (1942); Yont v. Secretary of the Commonwealth, 275 Mass. 365, 176 N.E. 1 (1931)." Buckley v. Secretary of the Commonwealth, 371 Mass. 195, 197-198, 355 N.E.2d 806 (1976). The Attorney General does not challenge the right of the twelve qualified voters who signed Initiative 11/81 to bring this action. The only issue is whether the city of Boston also may be a plaintiff.

[384 Mass. 623] The purpose of art. 48 is to give a greater voice in the government to the people. "The object and purpose (of the initiative) ... is to give to the people of the Commonwealth a larger control and domination over legislation, to enable the people to have some say which now they do not have with regard to constitutional amendments and also with regard to the laws which shall be enacted." Sherman L. Whipple of Brookline, 2 Debates in the Massachusetts Constitutional Convention of 1917-1918, 39 (1918).

Thus, in art. 48, the people "reserve to themselves the popular initiative." The people referred to in art. 48 are qualified voters. ¹ "The 'people' in the Constitution in a practical sense means those who under the existing Constitution possess the right to the elective franchise and who ... will be the sole organs through which the will of the body politic can be expressed. 'People for political purposes must be considered synonymous with qualified voters.' Blair v. Ridgely, 41 Mo. 63, 176, 177 (1867); Boyd v. Thayer, 143 U.S. 135, 158, 161, 12 S.Ct. 375, 380, 382, 36 L.Ed. 103 (1892); Cooley, Const. Lim. (7th ed.) 57, 58. See Vol. II Works of James Wilson, (Andrews ed.) 6." Opinion of the Justices, 226 Mass. 607, 611, 115 N.E. 921 (1917).

Boston, like any corporation, "has no right to vote and no right to submit initiative petitions for enactment by the people.

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It has asserted no rights guaranteed it under the Constitution of the United States ...." Massachusetts Pub. Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 91, 375 N.E.2d 1175 (1978)....