Opinion
1921.
Action of the General Court, agreeing at an extra session in December, 1920, to a proposal for an amendment to the Constitution and referring it for further action to the next General Court, did not conform to the requirement of § 2 of subdivision IV of art. 48 of the Amendments to the Constitution, because it was not laid before the joint session "not later than the second Wednesday in June;" and it therefore was invalid.
If the General Court at its regular session of 1921 likewise adopted the amendment proposed as above described, it would not be competent, without further action by any subsequent General Court, to submit it to the people as provided in § 5 of subdivision IV of art. 48 of the Amendments to the Constitution; and, if such a submission were made and the proposed amendment received the affirmative vote of a majority of the voters voting thereon at the next State election thereafter, the proposed amendment would not become a part of the Constitution.
THE following order was passed by the Senate on February 25, 1921, and on March 1, 1921, was transmitted to the Justices of the Supreme Judicial Court.
WHEREAS, The General Court at the extra session in December, 1920, acting under authority of sections 2 and 4 of subdivision IV of Article XLVIII of the Amendments to the Constitution of the Commonwealth, did in joint session agree to a proposal for a legislative amendment to the Constitution relative to the establishment of municipal or city governments in towns, a copy of which is hereto annexed, and
WHEREAS, Said proposed amendment is now pending before the present General Court for final action thereby, under the provisions of section 5 of said subdivision IV, therefore be it
ORDERED, That the Senate require the opinions of the justices of the Supreme Judicial Court upon the following important questions of law:
(1) Was the action of the General Court, agreeing to said proposed amendment at the extra session in December, 1920, and referring it for further action to the next General Court, valid, notwithstanding that such action was taken after the second Wednesday of June?
(2) If the present General Court likewise adopts said proposed amendment, will it be competent, without further action by any subsequent General Court, to submit the same to the people as provided in section 5 of said subdivision IV?
(3) If such action is taken by the present General Court, and the same receives the affirmative votes of a majority of the voters voting thereon at the next State election, will said proposed amendment become a part of the Constitution of the Commonwealth?
On March 7, 1921, the Justices returned the following answer:
To the Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court, having considered the questions set forth in the order of February 25, 1921, a copy whereof is hereto annexed, respectfully submit these answers:
Subdivision IV of art. 48 of the Amendments to the Constitution, is entitled "Legislative Action on Proposed Constitutional Amendments." It is provided in § 2 of that subdivision, that in the event of a proposal for amendment of the Constitution and a call for the consideration thereof in joint session by vote of either branch of the General Court, "such proposal shall, not later than the second Wednesday in June, be laid before a joint session of the two houses."
The facts, with reference to which these words of the amendment require interpretation, are that a proposal for a legislative amendment to the Constitution, copy whereof is annexed to the order, was introduced at a special assembling of the General Court held in December, 1920. During that month that proposal was agreed to in joint session.
The words of § 2 of subdivision IV of art. 48 of the amendments are plain to the effect that such proposal for amendment must be laid before the joint session "not later than the second Wednesday in June." 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. They are an explicit command from the people. The Constitution for the time being controls the government and the governed. It forms the standard by which is measured the power to be exercised by the delegates as well as by the sovereign people. It establishes fundamental maxims and lays down fixed rules to which all departments of government must conform in shaping their conduct. 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. Attorney General v. Methuen, 236 Mass. 564. Cooley, Const. Lim. (6th ed.) 93.
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. A negative answer is made to each of the questions contained in the order.
ARTHUR P. RUGG. HENRY K. BRALEY. CHARLES A. De COURCY. JOHN C. CROSBY. EDWARD P. PIERCE. JAMES B. CARROLL. CHARLES F. JENNEY.