Opinion
1945
Constitutional Law, Initiative. General Court.
Under art. 48 of the Amendments to the Constitution, The Initiative, V, § 1, a branch of the General Court has no power on or after the first Wednesday of June to vote, either in the affirmative or in the negative, upon the enactment of a law proposed by an initiative petition.
To the Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the Senate on June 7, 1945, and transmitted to the Justices on June 8, 1945. Copy of the order is hereto annexed.
The questions submitted arise out of facts stated in the order and summarized as follows: An initiative petition for a law (printed as House, No. 473) was introduced into the General Court. The House of Representatives enacted said proposed law on Tuesday, June 5, 1945, by a vote taken by yeas and nays. When the proposed law came up for action in the Senate on Thursday, June 7, 1945, a point of order was raised that the proposed law was not properly before the Senate for action thereon for the "reason that Section 1 of Part V of Article XLVIII of the Amendments to the Constitution provides that a vote on such a bill shall be taken by the yeas and nays in both Houses before the first Wednesday in June upon the enactment of such law in the form in which it stands in such petition, and for the further reason that said bill was not before the Senate until Thursday, June seventh, nineteen hundred and forty-five."
Significant portions of art. 48 of the Amendments to the Constitution of the Commonwealth are as follows: The Initiative, V, § 1, of said art. 48 provides in part: "Legislative Procedure. — If an initiative petition for a law is introduced into the general court, signed by not less than twenty thousand qualified voters, a vote shall be taken by yeas and nays in both houses before the first Wednesday of June upon the enactment of such law in the form in which it stands in such petition. If the general court fails to enact such law before the first Wednesday of June, and if such petition is completed by filing with the secretary of the commonwealth, not earlier than the first Wednesday of the following July nor later than the first Wednesday of the following August, not less than five thousand signatures of qualified voters, in addition to those signing such initiative petition, which signatures must have been obtained after the first Wednesday of June aforesaid, then the secretary of the commonwealth shall submit such proposed law to the people at the next state election." Section 2 of said The Initiative, V, provides in part: "Amendment by Petitioners. — If the general court fails to pass a proposed law before the first Wednesday of June, a majority of the first ten signers of the initiative petition therefor shall have the right, subject to certification by the attorney-general filed as hereinafter provided, to amend the measure which is the subject of such petition." And provision is made for submission to the people of the amended measure in like manner as in the case of a measure that has not been amended.
The first question submitted is: "Was the said initiative bill repealing the old age assistance law and substituting therefor an old age pension law to be administered by the Commonwealth in conformity with the law, rules and regulations promulgated thereunder of the Federal Social Security Act so as to be eligible for financing in part by federal funds (printed as House No. 473) properly before the Senate for enactment on Thursday, June seventh, nineteen hundred and forty-five when said point of order was raised?"
The constitutional provisions relating to an initiative petition for a law were for the purpose of providing for the exercise by the people of the power expressly reserved to them by art. 48, I, whereby "the people reserve to themselves the popular initiative, which is the power of a specified number of voters to submit constitutional amendments and laws to the people for approval or rejection." Thus, the basic purpose of the constitutional provisions relating to initiative petitions for laws is to provide for legislation by the people. Though this is the basic purpose of these constitutional provisions, a limited power is conferred thereby upon the General Court to vote upon the enactment of a law proposed by an initiative petition, obviously for the purpose of permitting the General Court by enacting such a proposed law to render unnecessary the submission thereof to the people. The limited power so conferred upon the General Court is stated in language mandatory in form that "a vote shall be taken by yeas and nays in both houses before the first Wednesday of June upon the enactment of such law."
The question submitted raises the point whether it was within the limited power conferred upon the General Court for either branch thereof to take a vote on or after June 6, 1945 — the first Wednesday of June — upon the enactment of a law proposed by an initiative petition. A somewhat similar question was considered by the Justices in Opinion of the Justices, 237 Mass. 589. The question there involved related to the provision in art. 48, The Initiative, IV, dealing with legislative action on proposed constitutional amendments, providing in § 2 thereof that a proposal for a specific amendment to the Constitution "shall, not later than the second Wednesday in June, be laid before a joint session of the two houses." The Justices stated: "The meaning of these words is unmistakable. The named date is fixed as the latest moment in any year when a proposed amendment to the Constitution can for the first time be brought before the joint session. It is not possible to treat these words of the amendment as precatory or merely directory. . . . Specifications in the Constitution respecting the time when or prior to which powers may be exercised, must be presumed to have been designed by the people to describe the only time at which such powers may be exercised. . . . It follows from these settled principles of constitutional law that the action of the General Court in agreeing to the proposed amendment at the extra session in December, 1920, was without validity" (pages 590-591).
The principles stated in Opinion of the Justices, 237 Mass. 589, 590-591, above quoted, with reference to a provision in art. 48, The Initiative, IV, § 2, relating to constitutional. amendments proposed by initiative petitions, are equally applicable to the provision now in question relating to laws proposed by initiative petitions. Consequently, a vote taken by either branch of the General Court on or after June 6, 1945 — the first Wednesday of June — upon the enactment of a law proposed by an initiative petition would be without validity. The difference in the language of the two constitutional provisions — in one "before the first Wednesday of June" and in the other "not later than the second Wednesday in June" — furnishes no ground for a difference in the interpretation of the two constitutional provisions. Nor does the difference in the subject matter of the two provisions furnish a ground for a difference in interpretation.
The context of the constitutional provision here in question furnishes support, if support were needed, for an interpretation thereof in accordance with the principles stated in Opinion of the Justices, 237 Mass. 589, 590-591. Said § 1 of art. 48, The Initiative, V, contains a provision with respect to procedure applicable if "the general court fails to enact such law before the first Wednesday of June." Clearly, the General Court "fails to enact" such law if it votes adversely thereon in either house or if either house, notwithstanding the constitutional mandate that a "vote shall be taken . . . in both houses before the first Wednesday of June upon the enactment of such law," fails to take such a vote. (A like interpretation is to be given to the words "fails to pass a proposed law" in the provision of § 2 of said art. 48, The Initiative, V, relating to amending the proposed measure.) Whether or not the General Court has failed to enact a proposed law must be determined as of some date. By the express terms of the constitutional provision that date is fixed as the first Wednesday of June. Thereupon the constitutional provisions fixing the procedure for submission to the people of a law proposed by an initiative petition become operative. Those provisions fix in express terms the times within which certain specified steps shall be taken.
The petition must be completed by obtaining additional signatures thereto "after the first Wednesday of June," and these additional signatures must be filed with the Secretary of the Commonwealth "not earlier than the first Wednesday of the following July nor later than the first Wednesday of the following August." Obviously, these times are fixed on the basis that the fact that the General Court had failed to enact the proposed law was definitely established by the first Wednesday of June. No adverse vote of the General Court upon the enactment of the proposed law taken on or after this date would have any effect in determining that the General Court had failed to enact the proposed law, or any effect upon the times within which the several steps essential to submission of the proposed law to the people must be taken. Such an adverse vote taken on or after the first Wednesday of June would be wholly without effect — even the limited effect of such an adverse vote taken before the first Wednesday of June.
The Constitution contemplates that the General Court in voting upon the enactment of a law proposed by an initiative petition may vote either for or against the enactment of such law. An interpretation of the governing constitutional provisions as permitting the General Court to vote for the enactment of such law on or after the first Wednesday of June, although the General Court then had no power to vote against the enactment of such law, would be an unreasonable interpretation of the language of these constitutional provisions. No implication that a restricted power of voting, after the first Wednesday of June, only for the enactment of the proposed law was conferred upon the General Court can rightly be drawn from these constitutional provisions. On the contrary these constitutional provisions negative such an implication.
The provision in art. 48, The Initiative, V, § 2, permitting a majority of the first ten signers of the initiative petition, subject to certification by the Attorney General, to amend a proposed law, if "the general court fails to pass . . . [such] proposed law before the first Wednesday of June," also imports that on or after that date the General Court has no power to vote either for or against the enactment of such law. Clearly it was not intended to give to the petitioners for a proposed law the right to amend such law while it was before the General Court for a vote upon its enactment. The power of the General Court was limited to taking a vote "upon the enactment of such law in the form in which it stands in such petition." Art. 48, The Initiative, V, § 1. The power expressly conferred upon the petitioners to amend the proposed law, if the General Court failed to pass it before the first Wednesday of June, is incompatible with a power in the General Court to enact such proposed law on or after the first Wednesday of June.
In our opinion, the language of art. 48, The Initiative, V, § 1, that "a vote shall be taken . . . in both houses before the first Wednesday of June upon the enactment of such law" is mandatory to the effect that such vote shall be taken before that date, and implies that, if no such vote is then taken, neither house has power to take such a vote at any later time, so that the proposed law (printed as House, No. 473) was not properly before the Senate for enactment on Thursday, June 7, 1945.
The answer to the first question submitted is in the negative.
The second question submitted is: "What would be the legal effect if the Senate should enact said bill on or after the said first Wednesday of June?"
In our opinion, for the reasons stated in answer to the first question submitted, a vote by the Senate taken after the first Wednesday of June to enact the proposed law would be without legal effect.
The third question submitted is: "In case the Senate should enact said bill on or after the said first Wednesday of June may it properly be laid before the Governor for his approbation?"
In our opinion, for the reasons stated in answer to the first question submitted, this question must be answered in the negative.
In accordance with established practice this opinion is limited to answering the specific questions submitted. Opinion of the Justices, 275 Mass. 580, 582.
FRED T. FIELD.
HENRY T. LUMMUS.
STANLEY E. QUA.
ARTHUR W. DOLAN.
JAMES J. RONAN.
RAYMOND S. WILKINS.
JOHN V. SPALDING.
JUNE 13, 1945.