24 Mass. App. Ct. 690 | Mass. App. Ct. | 1987
Upon complaint by the town of Braintree, John G. Grant & Sons Co., Inc., was found guilty by a jury of six of multiple violations of G. L. c. 131, § 40, the Wetlands Act.
“Whoever violates any provision of this section shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than six months or both. Each day or portion thereof of continuing violation shall constitute a separate offense.”
In the instant case the jury found that violations of the act persisted from November 3, 1982, to, at least, May 4, 1986. The trial judge calculated the maximum penalty which he might impose under § 40 on the defendant to be $1,275,000
Section 90 of c. 131 deals generally with penalties for infractions under c. 131. The fifth paragraph of § 90, as amended by St. 1971, c. 149, provides as follows:
“Whoever violates any provision of section forty, or of any rule or regulation made under authority thereof, shall be punished by a fine of not less than one hundred dollars nor more than five thousand dollars, or by imprisonment for not more than two years, or both.”
It cannot persuasively be argued that § 90 is a section of general applicability which must yield to the specific provisions
No one, as matter of constitutional due process, may, on pain of loss of liberty, be required to speculate about the meaning of penal statutes. United States v. Batchelder, 442 U.S. 114, 123 (1979). Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982). The governing principles were relatively recently set out in the Gagnon opinion at 569: the hypothetical rational person contemplating a violation of law may not be required to guess about punishment any more than about substantive provisions; criminal statutes are construed strictly against the Commonwealth; we may look to outside sources to determine the meaning of a statute whose language is unclear; we indulge every rational presumption in favor of the statute’s validity; but any reasonable lingering doubt as to the meaning of the statute or the intention of the Legislature must be resolved in favor of the defendants.
As of September 23, 1987, the statutory anomaly applicable in this case will cease to exist. By St. 1987, c. 174, § 21, approved June 25, 1987, the penalty provisions which now appear in G. L. c. 131, § 90, are deleted. The penalty provisions in G. L. c. 131, § 40, were amended by § 19 of the 1987 act, to provide that a person who violates § 40 “(a) shall be punished by a fine of not more than [$25,000] or by imprisonment for not more than two years, or both such fine and imprisonment; or (b) shall be subject to a civil penalty not to exceed [$25,000] for each violation. Each day such violation continues shall constitute a separate offense.” It has been open, and continues to be so, through equitable proceedings, to secure compliance with the physical strictures of the Wetlands Act.
In view of our resolution of the claim of vagueness in the penal provisions of G. L. c. 131, §§ 40 and 90, as applicable when the complaint in this case was lodged, it is not necessary to consider the other points raised by the defendant.
The judgment under G. L. c. 131, §§ 40 and 90, is reversed. The corresponding verdict is set aside. The corresponding portion of the complaint against the defendant is to be dismissed.
So ordered.
The complaint also charged the defendant with violating a town by-law that substantially tracks the first paragraph of G. L. c. 131, § 40. The jury also returned a verdict of guilty on that aspect of the complaint. The trial judge regarded the offense against the town by-law as duplicative and did
The judge apparently did some slight rounding off. The maximum days of violation to be inferred from the jury’s verdict were 1279. If multiplied by $1,000, the product is $1,279,000. Had an action been lodged against an individual defendant, the statute admits of the dazzling possibility of 639 years and six months of imprisonment. Indeed, an action had been brought against a principal officer of the corporate defendant, but he died early in the litigation.
If $5,000 is the highest penalty payable, it is not a particularly threatening punishment; the economic rewards of violating the law may greatly exceed the fine. For an individual, of course, the threat of two years imprisonment is a forceful deterrent.