Town of Amherst v. Attorney General

Decision Date15 December 1986
Citation502 N.E.2d 128,398 Mass. 793
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert W. Ritchie, Town Counsel (Alan Seewald, Amherst, and Robert Troxell, Northampton, with him) for plaintiff.

Joan C. Stoddard, Asst. Atty. Gen., for defendant.


ABRAMS, Justice.

The Attorney General disapproved a by-law adopted by the town of Amherst (town). 1 The by-law would prohibit with some limitation the discharge of certain firearms within town limits. The town filed a civil action in the nature of certiorari 2 2 in the Supreme Judicial Court for the county of Suffolk. After hearing, a single justice reserved and reported the case without decision. Essentially, the town complains that the Attorney General exceeded his authority and usurped the municipal legislative power in his disapproval of the by-law. We agree.

The case is before us on a statement of agreed facts which are summarized as follows. On October 19, 1981, town meeting members, at an adjourned session of the town's special town meeting, voted, under art. 52 of the warrant, to adopt a by-law prohibiting the discharge of certain firearms, with limited exceptions. We set out the by-law in the margin. 3 Pursuant to G.L. c. 40, § 32 (1984 ed.), the town clerk forwarded an attested copy of the vote under art. 52 to the Attorney General.

On February 12, 1982, the Attorney General disapproved the by-law. 4 In a letter accompanying the disapproval, the Attorney General, acting through an assistant attorney general, explained that the by-law would bar any person issued a hunting license in Massachusetts from exercising that license by means of any gun, fowling piece, or other firearm. The assistant attorney general further explained that "[i]f duplicated in other communities [Article 52] would deprive the Commonwealth of its control over the hunting of wild and stocked animals and game by firearms for the common welfare." The letter concluded by reasoning that, while "[r]estrictions on the discharge of firearms may be reasonable in densely populated urban areas[, i]n rural areas where hunting is a traditional pursuit serious justification for restrictions would be required."

The town claims that the by-law is consistent with both State and local law and that the Attorney General exceeded his authority by ruling that it is not. In contrast to the Attorney General's broad general power to prosecute actions which he believes are in the interest of the Commonwealth, Feeney v. Commonwealth, 373 Mass. 359, 366 N.E.2d 1262 (1977), the Attorney General's power to disapprove town by-laws is limited. The Attorney General only may disapprove a by-law if it violates State substantive or procedural law. See Concord v. Attorney Gen., 336 Mass. 17, 24, 142 N.E.2d 360 (1957).

The Attorney General is guided in the exercise of his limited power of disapproval by the same principles that guide us. See Concord v. Attorney Gen., supra at 24-25, 142 N.E.2d 360. It is fundamental that every presumption is to be made in favor of the validity of municipal by-laws. See Grace v. Brookline, 379 Mass. 43, 49, 399 N.E.2d 1038 (1979). See also Crall v. Leominster, 362 Mass. 95, 101-102, 284 N.E.2d 610 (1972); Brown v. Carlisle, 336 Mass. 147, 148, 142 N.E.2d 891 (1957). The Massachusetts Constitution reaffirms the "customary and traditional liberties of the people with respect to the conduct of their local government...." Art. 2, § 1, of the Amendments to the Constitution of Massachusetts (Home Rule Amendment), as amended by art. 89. In the exercise of this right to local government, towns have the power to pass by-laws for the purpose of preserving peace and order. G.L. c. 40, § 21 (1984 ed.). 5 The town exceeds its power only when it passes a by-law inconsistent with the Constitution or laws of the Commonwealth. See Home Rule Amendment, § 6. G.L. c. 43B, § 13 (1984 ed.) (Home Rule Procedures Act). 6 See Marshfield Family Skateland, Inc. v. Marshfield, 389 Mass. 436, 440-441, 450 N.E.2d 605, appeal dismissed, 464 U.S. 987, 104 S.Ct. 475, 78 L.Ed.2d 675 (1983). To determine whether a by-law is inconsistent with any general law within the meaning of § 6 of the Home Rule Amendment and § 13 of the Home Rule Procedures Act, the Attorney General must apply the same process of ascertaining legislative intent as that applied by this court in Federal preemption cases and in our cases involving inconsistent local ordinances. "The legislative intent to preclude local action must be clear." Bloom v. Worcester, 363 Mass. 136, 155, 293 N.E.2d 268 (1973). If such intent is not clear, that intent may be inferred if legislation deals with a subject comprehensively. Id.

A local enactment must prevent the achievement of a clearly identifiable purpose of State legislation in order to be struck down as inconsistent with that State legislation. Wendell v. Attorney Gen., 394 Mass. 518, 524, 476 N.E.2d 585 (1985). Merely "[t]he existence of legislation on a subject ... is not necessarily a bar to the enactment of local ordinances and by-laws exercising powers or functions with respect to the same subject. If the State legislative purpose can be achieved in the face of a local ordinance or by-law on the same subject, the local ordinance or by-law is not inconsistent with the State legislation." Bloom v. Worcester, supra, 363 Mass. at 156, 293 N.E.2d 268.

The Attorney General asserts that the by-law before us is inconsistent with and preempted by State statutes regarding hunting. See G.L. c. 131 (1984 ed.). The Attorney General does not point to any section of G.L. c. 131 which is inconsistent with the by-law. Indeed, the Attorney General has approved similar by-laws in twenty-eight localities. 7 Chapter 131 outlines, as the Attorney General notes, carefully guarded conditions by which one may hunt in the Commonwealth safely, provisions by which one is licensed, and provisions designed to preserve and maintain the wildlife and natural resources of the Commonwealth. While hunting is permissible in this Commonwealth, there is no indication in c. 131 that a municipality cannot prohibit the use of firearms. Some of c. 131's guidelines do concern the safe use of certain firearms, see, e.g., §§ 58, 60-64, 66-70, but the Amherst by-law in no way frustrates those sections. "The mere existence of statutory provision for some matters within the purview of the by-law will not render [the by-law] invalid as repugnant to law." Commonwealth v. Baronas, 285 Mass. 321, 323, 189 N.E. 62 (1934). See John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206, 212, 339 N.E.2d 709 (1975); Boston Police Patrolmen's Ass'n v. Boston, 367 Mass. 368, 372, 326 N.E.2d 314 (1975). 8

As we read the letter explaining the Attorney General's disapproval, he based his decision on his assumption 9 that Amherst is a rural town and that, as a rural town, it cannot restrict the discharge of firearms. The General Court, of course, may make a distinction between urban and rural communities, but it has not done so in c. 131. The Attorney General is not free to make a distinction which the Legislature has not made. It is for the Legislature, not the executive branch, to determine legislative policy. See Opinion of the Justices, 375 Mass. 827, 833, 376 N.E.2d 1217 (1978); Concord v. Attorney Gen., supra 336 Mass. at 24, 142 N.E.2d 360. The Attorney General must "be faithful to the words of the statute ... as written, and an event or contingency for which no provision has been made does not justify judicial [or Attorney General] legislation." Massachusetts Bay Transp. Auth. v. Massachusetts Bay Trans. Auth. Retirement Bd., 397 Mass. 734, 740, 493 N.E.2d 848 (1986). Neither we nor the Attorney General may comment on the wisdom of the town's by-law. American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 189, 372 N.E.2d 520 (1978).

Because the only reasons we may consider in examining the validity of the Attorney General's disapproval of a by-law are those included in his letter of disapproval, see Concord v. Attorney Gen., 336 Mass. 17, 21, 142 N.E.2d 360 (1957), the Attorney General's disapproval of the town's by-law is quashed and judgment shall enter declaring that the by-law was lawfully adopted.

So ordered.

1 The Attorney General acted pursuant to G.L. c. 40, § 32 (1984 ed.), which provides in part: "Except to the extent that a zoning by-law may take effect as provided in section five of chapter forty A, before a by-law takes effect it shall be approved by the attorney general or ninety days shall have elapsed without action by the attorney general after the clerk of the town in which a by-law has been adopted has submitted to the attorney general a certified copy of such by-law with a request for its approval, a statement clearly explaining the proposed by-law, including maps and plans if necessary, and adequate proof that all of the procedural requirements for the adoption of such by-law have been complied with.... If the attorney general disapprove[s] a by-law he shall give notice to the town clerk of the town in which the by-law was adopted of his disapproval, with his reasons therefor."

2 General Laws c. 249, § 4 (1984 ed.), establishes that "[a] civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court."

3 The by-law adopted by the town provides: "No person shall fire or discharge any gun, fowling piece or other firearm in the Town of Amherst; but to the extent not otherwise prohibited by law, the provisions of this section shall not apply to (A) the discharge of shotguns or air-guns, or (B) the discharge of firearms

1. in the lawful defense of the person,...

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