*1 Attorney First National Bank of Boston General. sup- most to the that would light plaintiff favorable port her presented cause of action.” Such evidence was here. It does in not matter the defendant its brief offers a number or even possible plausible exculpatory explanations; these will for the if the jury be to consider defendant side. The proof retrial adduces on its trial seems judge have mistaken momentarily standard to for in his applied, directing final remarks jury said, a verdict for he bring the defendant “the plaintiff has not sustained his of proof by burden proving by a fair preponderance of evidence alle- in his declaration.” gations
Exceptions sustained. vs. Bank of Boston & others National Attorney General. 9, 1972. 2, 1972.
Suffolk. October November Kaplan, Tauro, C.J., Reardon, Quirico, Braucher, Present: JJ. & Statute, contribution, Corporation, Construction. Elections. Political protection. Taxation, Constitutional Income tax. Constitutional Law, contributions, Elections, speech and Political Freedom of press. Words, “Persons.” business, equity by corporations engaged general In a suit in certain amended G. L. c. as was ordered this court that through prohibit St. not effective making expenditures publicity purpose of affect- for for ing question adoption of a the vote on a referendum as to the authorizing Legislature constitutional amendment to enact corpo- graduated applicable income tax to both individuals [571-572] rations. 55, 7, Properly construed, L. c. St. the sentence added to G. publicity 458, totally prohibits expenditures by corporations c. for for affecting purpose on a referendum the vote authorizing adoption of a constitutional applicable graduated indi- to both to enact a income tax though corporations, in fact such a constitutional viduals and even Boston Bank of First National property, affect amendment would [576-577]; Reardon, Tauro, C.J., J. corporations. Per assets *2 7, not does construed, of c. properly the 1972 a respect such by corporations to expenditures prohibit wih such Kaplan, Braucher, JJ. Quirico, and question. Per referendum [593-594] in relation proper a statute Discussions of the construction of constitutionality. question [577-581] of its engaged companies, in Corporations, and insurance such as banks business, distinguished of communica- general from the as speech and tion, protection the freedom are entitled to the Constitution, press Federal of the Amendment clause the First process of the applicable through clause due the to the States Rights Amendment, Declaration 16 of the Fourteenth and art. by the Constitution, art. 77 of as amended of the Massachusetts public with Amendments, seeking express views to the to in Tauro, affecting materially respect Per them. to referenda issues C.J., Reardon, [582-586] J. and applied 7, by as The sentence to G. L. c. St. added validity plaintiffs a in attacking in suit corporations as to its by expenditures totally equity interpreted prohibiting and as as affecting purpose vote plaintiffs publicity the the for the for adoption amend- a constitutional a referendum as the tax, graduated authorizing income ment to enact applicable and as individuals as well any showing interests, is, affecting plaintiffs’ absent expression plaintiffs’ influence exert undue of the views regulate vote, Legislature’s elections in of the excess plaintiffs’ right expression First under the and violative of the by Constitution, applicable the States Amendment of the Federal Amendment, process art. 16 and clause of Fourteenth due Constitution, Rights Massachusetts of the Declaration of the Tauro, C.J., by and Per amended art. 77 of the Amendments. Reardon, [589-591] J. equity for Bill in Judicial Court Supreme filed the county 4,1972. of Suffolk on August Reardon, J., reported suit was reserved and without decision.
Francis Fox H. plaintiffs. for the O’Leary, Timothy F. for General, Attorney Assistant the Attorney General. issued order was 13, 1972, following
On October the court: reservation
“whereas this matter is before us on the of the and report single justice; National Bank of Boston “whereas the questions pre- resolution of prompt sented is required; in the opinion
“whereas time does not allow that be time in matter and filed at this view prepared situation; exigencies future; opinion
“whereas said will be filed the near “now, it ordered therefore, §55, 7, Laws c. as amended through “General St. c. 458, is not prohibit effective in issue in making proposed expenditures are which this case.” Opinion of Tauro, J., C.J. (Reardon, concurring) *3 1
The in plaintiffs declaratory their bill for relief allege they intend to for adver- expend moneys, newspaper tisements and similar in effort to publicity, persuade an the voters of Massachusetts to defeat the con- proposed stitutional amendment be to in a to submitted the voters referendum question at the election on general November 7, 1972.23The the grant General Court the to income authority graduated enact tax. The bill further alleges that under the 1972 amend- ment to G. L. c. 55, (“political statute), 7 contributions” 1 plaintiffs (First The are The First National Bank of Boston National); England New Merchants Bank of National Boston (Merchants); (John Company John Hancock Mutual Life Insurance Hancock); Wyman-Gordon Company (Wyman-Gordon). general “Article of Amendment. Art. . The have full court shall power authority impose levy and to at and a tax on rates incomes proportioned graduated according which are or total of amount grant exemptions, income received and to and reasonable deductions abatements, an as alternative to and author the exercise of the ity impose levy provided and a tax on in in incomes the manner Article XLIV of the Amendments of Constitution of the Common the Notwithstanding any provision Constitution, wealth. other of and this limiting generally may foregoing, without the of the such tax imposed by application and levied the the a uniform rate to indi liability vidual income tax as determined under the laws of the United by application graduated States or the rates to the total individual ease, income taxable under the States. laws the United either general may liability court or define the tax the total income imposed graduated which such tax is or levied rates which it at by any provision is taxed reference the laws of the United States any as the same be or or from time to become effective time time, may prescribe exceptions reasonable to and modifications provisions.” such 362 Mass. Attorney General. of Boston Bank
First National pur- such any for moneys to expend are forbidden they Com- Attorney General defendant, The pose.3 any expend plaintiffs if the has stated that monwealth, statute. said them under he prosecute such sums would its statute, present allege The plaintiffs its face and is unconstitutional form, amended effect. to that seek a declaration them, and applied to aon the pleadings to us on The case is submitted case consider facts and we will statement of agreed on this record as a case stated. as follows: briefly can be described (italicized infra) By amended adding one sentence corpo 7, by “No L. c. June G. ration St. effective indemnity, surety, bank, trust, carrying of a on the business telephone, railway, telegraph, insurance, railroad, deposit, safe gas, company having street company, no heat, power, canal, aqueduct, light, or water electric by right or to exer domain to take land eminent any ways, or public granted cise the commonwealth franchises holding county, city town, owning or or no trustee or trustees corporation majority corporation, in no business of the stock such corporated doing in the commonwealth under of or laws any corporation agent acting mentioned and no officer or in behalf of indirectly pay, expend section, directly give, con in tribute, or shall or money contribute, any promise give, pay, or expend or or prevent aiding, promoting thing purpose or other valuable for the aiding, office, ing any person public or the nomination or election of promoting any party, antagonizing political or the interests influencing any question affecting submitted the vote voters, affecting property, busi other than one *4 voters corporation. ness or concerning submitted to the assets of the No income, property or transactions the taxation the of of property, materially business individuals or mittee, shall be deemed affect corporation. political person persons, com assets no or No under of authority person acting political com and no of a mittee, behalf, corporation or in its shall solicit or receive from such any gift, expenditure, payment, or such holders of contribution stock promise give, pay, any purpose. expend or such or contribute for “Any corporation violating any provision shall section punished by dollars, any offi- a fine of not and more than ten thousand cer, any provision agent corporation violating director thereof or of a authorizing violation, any person or in such or violates or who thereof, way knowingly any provision aids or abets the violation of punished by shall be or of not more than five thousand dollars fine by imprisonment for not than more six months.” organized First National is a national bank under the laws of Boston; place United an States with usual in Merchants business organized is a national bank under the of the United States with laws place Boston; an usual life in John a mutual business Hancock is company organized insurance an under the laws of Massachusetts with place Boston; Wyman-Gordon corporation usual of business in is a organized place under an usual laws Massachusetts with business in Worcester.
First National Bank of Boston plaintiff county engaged in banks in the are Suffolk retail, business of other forms of commercial and banking to, These are not limited include, activities. but maintaining savings checking and for the accounts bene- making corporate depositors, fit of both and individual corporations, acting loans to individuals as trustee designated for the benefit of beneficiaries their cus- acting agent publicly tomers, as transfer for certain held performing normally other services banking with associated business. John Hancock company principally engaged a mutual life insurance in underwriting. policyholders Many life insurance of its portion are residents of Massachusetts. A of John Han- cock’sassets are invested in real located within the estate Commonwealth of Massachusetts. In order to conduct its business John Hancock relies on services of a group high management personnel. level John Han- employs persons Wyman- cock 9,618 in Massachusetts. corporation engaged Gordon is a business in the business forging, utilizing highly sophisticated of die metal form- ing Wyman-Gordon techniques. principally serves the plants aircraft and automotive It has industries. Millbury, Worcester, Grafton and Massachusetts, employs approximately persons 2,500 Massachusetts. reaching believe that because of far relationships Massachusetts, within constitutional enacted, if amendment, affect their business interests. Corporations Materially
I. Are Plaintiff Affected Proposed Constitutional Amendment? Prior to its 1972 L. c. amendment, 55, 7, G. did not prohibit corporation expending contributing “any money thing purpose for other valuable affecting any question . . . the vote on submitted to *5 provided question materially the voters” the affected the property, corporation. or business assets of the In Lust- Lytron, werk v. Inc. 344 Mass. 653, we that a 647, held of Boston First National Bank election, at a to be submitted to voters State question Legis- granting a constitutional amendment proposing on income tax lature the to a power impose graduated mate- a individuals, either or aof or assets rially property, affecting Massachusetts business corporation. Expenditures a influencing such for the corporation purpose voters on proposed constitutional amendment were not, therefore, 7. prohibited by The effect of the of the constitu language proposed Lustwerk supra,5 tional very amendment *is case, similar to that of the of the constitutional language to amendment be to the on put voters November 1972.6 The proposed consitutional amendment would authorize the Legislature impose to a graduated tax individuals and corporations.7 plaintiffs contend that the poten tial power to impose a income graduated tax corpo rations and individuals would materially affect business and property. They maintain that such a power if would enacted discourage executives from settling in the remaining State, alter the plaintiffs’ and wage 5In stipulated the Lustwerk following proposed case it was approved constitutional amendment had been in two successive sessions (1959 1961) Legislature joint and sessions and be November, submitted to the voters on the ballot at the election in 1962: power authority hereby “Article granted power -. given Full and are and general court, in the to alternative the exercise authority impose levy and to and a tax on incomes in the man provided ner in Article XLIV of the amendments to the Constitution Commonwealth, impose lexy a tax on incomes at rates proportioned graduated which according are of in to the amount received, irrespective derived, come may of the source which it be grant exemptions, Any and to reasonable deductions and abatements. property the provisions income from which is taxed under of this exempted article tional imposition levying propor from the assessments, present and reasonable and taxes at rates authorized the constitution. This article shall not be construed power general limit levy impose court reasonable Mass, duties and excises.” at n. amendment, For full text of supra. n. see Legislature may already power impose graduated have the corporate Lytron, excise tax on the basis of income. Lustwerk v. Inc., supra, held, however, we that “The constitutional 5, supra] adopted, [see n. respects, give if in various will substantially the pose broader than to im now exists upon corporations income taxes . . . within Massachusetts.” *6 Bank Boston v. National shrink bank
compensation structures, deposits total cause a in to great decline the economic climate State’s the the plaintiffs’ detriment of own business. Whether or not all the plaintiffs’ predictions concerning future effects of the taxes are imposition such accurate is not the decisive. Indeed it be that Legislature will never exercise such the granted by even if However, people. is reasonable on the conclude record before that us the like its proposed amendment, Lustwerk case, the predecessor in supra, mate- rially affects the property, plain- business or assets of the tiff corporations and thus plaintiffs the have reasonable justification for that so believing amendment would affect them.
II. What was the Intent Legislature’s Enacting
1972 Statutory Amendment to L. c. 55, G. 7? The rationale of the Lustwerk decision, supra, would left have plaintiffs the instant case free to publicize their views upon proposed constitutional amendment. On June 1972, however, the Legislature amended 55, § 7, by after inserting, first sentence of sentence: following “No to the question submitted voters concerning taxation of the income, property transactions of individuals shall be deemed affect the property, business assets of the corporation.”
itsOn face, it would in- appear tended statutory amendment refer- apply endum “concerning” individuals, taxes regardless of whether precise to the question put voters also concerns the taxation other entities. Since the proposed constitutional amendment is obviously question “concerning the income taxation .of the ... individuals,” this interpretation of the Legislature’s in- in my tent view us reach requires the constitutional questions raised the plaintiffs. This conclusion 3, supra. n.
8 See Attorney General. of Boston First National Bank premise that the 1972 based on the expressing prevent views question. public referendum about the November 7 concurring suggests in his However, Justice Quirico J.) Kaplan, opinion (joined Braucher, J. and *7 statutory to its 1972 intended solely apply only questions concern which to referendum interpretation legis- of of This taxation individuals. moneys expend to free lative intent leaves the question to the voters referendum submitted solely concern November 7 not because that does taxes on individuals. strongest accept reason such a construction obligates adjudication of constitutional rule which construing legislative
courts in
care
“to take
enactments
interpret
danger
them so
of
avoid a
unconstitu-
tionality.”
Congress
United States v.
Industrial
of
Organizations, 335
106,
U. S.
120-121. The United
Supreme
adopted
approach
States
Court has
to avoid
ruling
constitutionality
Corrupt
on the
of the Federal
separate
Practices Act.9 On three
occasions in
last
twenty-five years,
Supreme
has
Court
been asked
constitutionality
decide the
of that act.
three
On all
reaching
ques-
occasions, has avoided
the constitutional
ions
narrow and sometimes strained
con-
Congress
United
struction.
States v.
Industrial
of
Organizations, 335 U.
106.
S.
United States
Interna-
v.
tional
Agricultural
Union United Auto.,
&
Im-
Aircraft
plement
(UAW-CIO),
Wkrs.
Am.
352
567,
U. S.
Pipefitters Local Union No. 562 v.
States,
United
407
U.
385.
S.
Justice Frankfurter used this
doctrine
judicial
support
self-restraint
the court’s
decision
Congress
United
Organizations,
States v.
Industrial
9
provision originally challenged
Congress
in United States v.
Organizations,
Industrial
106,
Corrupt
U.
335
S.
313 of
§
Act,
Practices
1925. This act was
amended
Man
the Labor
agement
Act,
Relations
predecessor
Section 313 was the
(1970).
18 U. S. C. 610
provision challenged
Section 610
was the
United States v.
Auto.,
Agri
International Union United
&
Aircraft
Implement
cultural
(JJAW-CIO),
Wkrs.
Am.
352 U. S.
Pipefitters
States,
Local Union No. 562 v. United
First National Bank of Boston supra. chiefly He Marshall’s relied on Chief Justice “ brought questions observation judicial before ‘[n]o can be greater delicacy which
tribunal
than those
they
constitutionality
legislative
If
involve the
act.
of a
indispensably necessary
become
case,
the court
must meet and
them;
decide
if the case
be deter-
but
points,
just respect
legislature
mined on other
for the
requires,
obligation
not
of its laws
should
”
unnecessarily
wantonly
assailed.’
at
Quoted
parte Randolph,
U. S.
from Ex
20 Fed.
No.
Cas.
(C.
1833).
Brock.
478-479
D. Va.
C.
Supreme
However, the
also
United States
Court has
acknowledged
ques-
that the avoidance of constitutional
discretionary
only
tions is
in the
should be used
proper
Clay
circumstances.
Ins.
Ltd.
See
Sun
Office
judicial
abnegation
amendment was to
question
to affect the
vote
the referendum
which will
be submitted voters
1972. Real-
November
izing
corporations
that the Lustwerk case would allow
to
questions
address the voters on
both
which concerned
corporate
Legislature
and individual
taxation,
de-
statutory
emergency
clared the 1972
amendment to be an
immediately
law which would be
enforceable because
Mass. 570
Boston v.
First National Bank of
operation
to defeat
act would tend
“[t]he
of this
deferred
regulate
questions
purpose,
those
its
is to
which
further
upon
certain
submitted to the voters
which
c. 458. Obvi-
influence or affect the vote.” St.
ously,
Legislature
amendment
if the
had intended this
apply
solely concerning
questions
of indi-
to
taxation
there
have been no reason to declare
viduals,
emergency
an
the November
amendment
law because
question
tax
referendum
concerns both the
legal
graduated
individuals and other
entities on a
basis.10
repeatedly
of a
We have stated
that a construction
completely negate legislative
statute which would
intent
is to be avoided. Assessors Newton v. Pickwick Ltd.
statutory
Inc.
First National Bank of Boston v. absurd result of an has no emergency resolution which impact on the very referendum it was question designed ring opinion (joined by Braueher, Kaplan, J.) in J. and concludes that preclusion authority money corporate expend “[t]he 1972 of on to questions having only property, such an indirect on their extent busi- effect any way, any degree, ness or assets did not or to either repeal corporate right, recognized portion or diminish the in another statute, expend money people the to to on influence the vote of the questions might directly corporate property, which affect the (emphasis supplied). or assets” obvious, however, begs question It is that this conclusion essential the Legislature speaking corporations whether the can out silence question concerning on a ballot individual taxation. Justice Quirico by creating does this an artificial direct versus effect test which indirect relationship language bears no to the actual of G. L. c. 7. The concurring opinion notes, my opinion right plaintiff “In the the corporations depend alleged . . . does not in- derive from or on this graduated direct . . . a [of] tax . . . but income on individuals effect graduated rather tax on ever, it exists virtue of the direct income which effect corporations might (emphasis supplied). have thereon” How- express language speaks questions the of the statute in terms materially corporations’ business, property, that the or assets. affect Obviously, directly concerning economic measures have individuals serious “indirect” effects on the economic State and climate the thereby materially corporations. Labeling affect “indirect” the effect question materially corpora- does not resolve the of whether it affects important concurring opinion tions. Here it is to note that recites the only portion plaintiff’s complaints a small manner as to the graduated which a income tax on individuals affect corporate their interests. logic concurring opinion The circular involved in the is revealed grants plantiff the relief corporations. Although concurring the opinion only Legislature prevent corpora- admits that intended to speaking question tions from out on the individual taxation involved in referendum, ruling Despite the November 7 its allows them to do so. reasoning its from corporation’s solely right speak to out is derived possible graduated tax, corporate opinion the direct effect of a income ruling concurring under are free to advertise views the individual taxation issue without — n corporate very mention of question their views on the taxation Legislature trying prevent by passage result its statutory emergency amendment as an resolution. Thus, concurring opinion by begging the essential produces issue allowing corporations speak the unusual result of out questions despite legislative individual taxation intent contrary concurring the corporation’s opinion’s and the conclusion own right speak “by out exists virtue of the direct effect graduated . . . corporations.” [of] a income tax on “ Recently said, we ‘A [a statute] construction of ... that would lead to an adopted absurd and unreasonable conclusion is not to be language fairly susceptible where its construction that would logical Cambridge, lead ato and sensible Bell v. Treasurer result.’ McCarthy Authy. Housing 310 Mass. 489.” V. Woburn 341 Mass. By amendment, its enactment of the 1972 posed intelligible has for this court an constitutional issue great importance. my view, it, rather than avoid should meet we squarely decisively. this issue *10 Mass. Attorney General. of Boston First National Bank has This court by enactment. its immediate to affect Legis- repeatedly not attribute that it will stated accomplish unless result an absurd intention to lature an language the statute. clearly required to do so Safety, Pub. Johnson v. Commissioner of statutory Certainly, language amend- of this compel result. such an absurd ment does not reaching at- constitutional self-restraint Judicial judicial legislative rules amendments tacks on predicated statutory on our desire are both construction prerogative Legislature’s special respect in enact- underlying purposes ing legislation. both I feel that the by ruling which avoids ill served these doctrines will be by giving reaching question a strained a constitutional of the statute which and negates construction unreasonable I conclude that Therefore, its clear intent. statutory amendment was clear of the 1972 intent supra, negate Lustwerk case, the effect of the corporate expenditures reimpose prohibition on a total questions that used to influence the vote on referendum imposition graduated individuals, concern the of a tax on regardless also concerns the taxa- whether the plaintiffs’ tion Thus, of the incomes of other entities. expenditures proposed intended on the constitutional statutory prohibited by amendment are the 1972 amendment. Expression
III. Is the their on the Views Plaintiffs’ Proposed Amendment Protected Constitutional the First Amendment to the United Consti- States tution? usually expend moneys Since must statutory views, communicate their the 1972 amendment’s prohibition effectively prevents plaintiffs from ex- pressing views the electorate on the referendum. contend, that the therefore, applied amendment as to them and on its face violates the First Amendment to the United States *11 582 Attorney
First Bank of v. National Boston 13 14 15 Constitution 16 19 Decla- and arts. Rights ration of of the Massachusetts Constitution. Attorney argues plaintiffs, The General that be they legal protected cause are entities, artificial are not applied through the First Amendment as to the States Supreme the Fourteenth The Amendment. United States corporations although has, Court held however, are privileges not “citizens” within the and immunities clause §of 1 of the Amendment, Fourteenth Ins. Orient Co. v. (see Daggs, 172 U. S. 561 Waters-Pierce Co. v. 557, Oil Hemphill Texas, 177 U. 28, 45; S. v. Orloff, 277 U. S. 537), they “persons” meaning are within the of due process clause of 1 See, Fourteenth Amendment. generally, Covington Lexington Turnpike & Rd. Co. v. Smyth Sandford, 164 U. 592; S. 578, Ames, 169 U. S. 466, 522. Supreme
The General relies on some Court and Federal cases which seem to indicate that artificial persons specifically protected such as are not liberty by the clause of the Fourteenth Amendment, even though they “persons” protected by property are process provisions.16 e.g., clause of the due North See, Riggs, western Natl. Ins. Co. v. 203 243, 255; U. S. Life Greenberg, Western Assn. v. 363; 204 359, U. S. Turf Hague Organization, v. Committee Industrial 307 for (opinion Stone); U. S. 527 of Mr. Justice Hallmark 13The First to Amendment has United States Constitution been applicable through held to the States the Fourteenth Amendment. See, e.g., York, Grosjean 652, 666; Gitlow v. New 268 S. v. American U. Press Co. Inc. U. S. 297 14 Eights, Massachusetts Declaration of art. art. as amended liberty press 77 security the Amendments: “The is essential ought not, therefore, of freedom in a state: to be restrained right speech abridged.” commonwealth. The of free shall not be Eights, people Massachusetts Declaration of art. 19: “The have a 1 right, orderly peaceable manner, in an assemble consult good; give representatives, common instructions and to request legislative body, by way addresses, petitions, remonstrances, wrongs them, grievances redress of the done they suffer.” Constitution, 1, provides part: United States Amendment any deprive “. . . erty, person life, nor liberty, prop shall state process without due of law . . ..” 362 Mass. Attorney General. Bank Boston
First National Cir.). (8th Mosley, Inc. v. 190 F. 2d Prod. Attorney since cases that these General concludes protection term corporation under the claim a “liberty” cannot corporation process cannot clause, in the due right expression, because freedom claim a property liberty protected by not a Amendment, right. agree. We cannot Supreme First Amendment has channeled Court *12 protect through Amendment to the Fourteenth
liberties
Grosjean
corporations.
Press Co.
American
v.
some
freedom
stated: “That
244,
press
Inc. 297 U. S.
the court
speech
rights
.
. .
of
and of the
are
of
fundamental
by
process
safeguarded
of
clause
law
character,
due
by
abridgement
against
of the Fourteenth Amendment
by
legislation,
series of
likewise
settled
a
state
has
been
beginning
v. New
decisions of
with Gitlow
this Court
ending
Near v. Minne-
York,
652, 666,
U.
with
S.
Appellant
283 U.
.
contends that
sota,
S.
707. ..
corporations;
apply
Fourteenth
Amendment does not
only partly
corporation,
held,
this is
but
true. A
we have
privileges
meaning
is not a ‘citizen’
of the
within
Virginia,
immunities
Paul v.
But
clause.
We have also afforded certain protection. Amendment Inc. Films, Brattle v. Commis- Safety, sioner Pub. Research Mass. 58. Krebiozen of Foundation v. Beacon Press, Inc. 334 Mass. In the 86. past spoken broadly liberty press we have corporations. Secretary be afforded In Bowe v. Commonwealth, addressed ourselves 230, we question enjoys whether a the same labor union liberty press of the as individuals. case decided under arts. 19 of the 16 and Massachusetts Declaration Rights but the freedoms in were com- held parable to Amendment “The said, freedoms. We liberty press enjoyed, only by is not individuals, also but associations individuals such as labor Attorney
First National Bank of Boston (Hague Organiza- unions Industrial Committee for 496), although corporations, tion, 307 and even U. S. corporation protec- is not a ‘citizen’ and must find its against abridgement liberty by tion of its action State process the due clause ... Amend- Fourteenth supra, (emphasis supplied).17 ment” The Bowe case, at 251. correctly points General out that in those
cases where have afforded First Amend- been protection they engaged ment have been in the business publication communication, such and distribution newspapers, Joseph magazines. books, films and Burstyn, Inc. v. Wilson, 343 York U. 495. New Times S. Co. v. Sullivan, 376 U. S. But we believe speech press freedom of and freedom of the in their application corporate strictly entities be so cannot Supreme limited. Moreover, the United States Court has prospect profit gained corpo- indicated that the from a ration’s communication will not oust that communication protection: urged from First Amendment “It *13 pictures motion do not fall within the First Amendment’s aegis production, because distribution, and exhibi- large-scale private profit. tion is a business conducted for agree. newspapers, maga- We cannot That books, published profit prevent zines are and sold for does not being expression them from liberty a form of is whose safeguarded by Joseph Burstyn, the First Amendment.” supra, Inc. v. Wilson, 501-502. The mere fact that materially affecting views on plain- referenda issues the corporations tiffs’ engaged business from emanate (as general pursuits opposed corporations commercial communications) totally in the business of not should preclude expression of these views. 17 Ramsey But cf. v. Tacoma Land Co. 196 U. S. where it was benefit corporation held that a State is a citizen entitled to §of of the Act of 1887 which names beneficiaries citizens of the United conferring upon purchasers States such citizens are who from a rail
way company excepted grant, right purchase of land from its government. same 362 Mass. Attorney General. of Boston Bank
First National between is a distinction that there course, of true, It corpora- pursuits pursuits of plaintiffs’ we believe But of communication. in the business tions plaintiffs’ defeat the not that does is a distinction it protection, circum- least in right Amendment to First express to the they their views seek to stances where public them. affect issues that on referenda a busi- instances in all now whether need not decide We corporation Amendment claim the same ness can primarily protection afforded individuals engaged in communications. Expression their Views Is the
IV. of Plaintiffs’ Proposed Protected Amendment Constitutional Rights? Declaration Art. 16 the Massachusetts plaintiffs protection 16 and of arts. also claim Rights 19 of the Declaration of of the Constitution protection for the find Commonwealth. Since we we address ourselves under art. shall not type protection offered art. 19. Article liberty press declares: “The security is essential to the ought therefore, of freedom in a state: it not, right free be restrained in this commonwealth. speech Secretary abridged.” shall In Bowe not be Commonwealth, the court had before petition sought an initiative L. c. amend G. scope. Although to include labor unions its within the case concerned the addition labor unions proposed legislation statute, one of the results corporation longer declared to be: “that a . . . no right any political have to make for contribution *14 purpose influencing affecting popular of vote any though submitted the voters even that question might materially property, affect the corporation.” supra, or assets of the Bowe at case, admittedly only directly 234. The law, which concerned a labor union, was held inconsistent with liberty press right assembly and the of under arts.
586 National Boston v. Bank of 18 Rights
16 19 of the Declaration of and was thus popular excluded from the initiative. There is no doubt plaintiffs the effect on the of the 1972 pres- L. amendment to G. so far as it affects the precisely supra. ent case, is Bowe case, as stated supra, In the Bowe case, we that the free- said guaranteed doms to labor unions arts. 16 19 under “comparable rights speech’ were to the ‘freedom press,’ right people ‘peaceably and ‘of the and the assemble,’ declared the First Amendmént to the part Constitution to be States, United and held ‘liberty’ protected by the Fourteenth Amendment against abridgment by process of a State without due why law.” see no We reason such not freedoms should corporations also be afforded in the instant case.19 press expression guaranteed Whether the freedom of under the First is, Amendment in all respects, guaranteed similar to the freedom them under Rights,20 art. 16 of the Declaration of we need not decide. In the circumstances of case we that the safe- hold guards apply plaintiffs. of art. 16 to the Statutory V. Does the 1972 Exceed the Amendment Legislature’s Regulate Power Elections when First Amendment Freedoms are at Stake? correctly contend that First Amendment
protections
preferred
are
extent
the usual
presumption
validity
legislation
that attaches to
is not
operative
expres-
when
seeks
free
to curb
generally,
Congress
sion. See,
United States v.
Indus-
18
supra,
case,
decided,
In 1946
the Bowe
when
was
art. 16 of the
Rights
expressly protect
right
speech
Declaration of
did not
of free
although
speech
encompassed
free
held to be
within
combined
protections
Rights.
of arts.
and 19 of the Declaration
The Bowe
case, supra,
the
at 249.
art.
was amended
the addition of
sentence,
right
speech
abridged.”
“The
of free
shall not be
Congress
Organizations,
See United.
States
Industrial
106,154-155 (Rutledge, J., concurring).
U. S.
Press,
See Krebiozen Research Foundation v. Beacon
Inc. 334 Mass.
86, 96.
*15
587
order to fraud people’s right protected. that the to vote be Article Rights 9 of the “All elections Declaration declares that ought swpra, case, to be free . . ..” In the Bowe we subject indicated that First Amendment freedoms are regulation public.” “reasonable in the interest Mass, regulation narrowly 250. But such must be precise sought drawn to meet the evil curbed. Cantwell v. Connecticut, 310 296. U. S. analogous Corrupt
In the
area of the Federal
Practices
(18
§
[1970])
Supreme
Act
U. S. C. 610
Court
ruling directly upon
United States has avoided
the con-
stitutionality
Congress
of the act.
States v.
United
Organizations,
Indusrial
formed blanketing every expenditure criminate made serving prior connection with an as election, restraint upon expression upon not in fact as forbidden well as squared what is, cannot be with the First Amendment.” Rutledge questioned constitutionality Justice also prohibition expenditures applied of the act’s when corporations, 335 U. 154-155. His re S. statement Attorney argument futes the General’s that the as artificial entities are not entitled to First Amendment protection. important legal “There are of course remaining corporations economicdifferences between unincorporated including associations, unions, labor justify large legal which distinctions between them in may treatment. toBut whatever extent this true, blanketing prohibi does not follow broadside and attempted expres tions here in restriction of freedom of assembly corporate ap sion and would be valid in their plications. Corporations have been held within the First protection against upon Amendment’s restrictions the cir expression. jean culation of their os media of v. Amer Gr ican Press Co. Inc. 297 U. S. It cannot therefore be merely legislative assumption, practice judg taken, or expression by ment, that restrictions freedoms of agree. are valid.” We In United States v. International Auto., Union United (UAW- Agricultural Implement & Wkrs. Am. Aircraft CIO), Douglas 352 U. 567, 598, S. Justice in his dissent- ing opinion in which Chief Justice and Justice Warren joined applied, Black stated: “The Act, construed and political expres- is a broadside assault on the freedom of guaranteed by sion the First Amendment. It cannot possibly by any conjured up by be saved of the facts recognized logic argument Court.” He that the of his application was not restricted to the act’s to labor unions group alone. “Some think that one or another should express pow- not its views in an election it is because too unpopular erful, because it advocates ideas, or because justi- it has a record of lawless action. But these are not of Boston First National Bank rights fications for First Amendment withholding — supplied). any group corporate” (emphasis labor 352 U. S. at'597.
In United States Industrial
Congress
Organiza-
tions,
Supreme
U.
the United States
106, 121,
S.
encompass
Court
not to
construed
act’s prohibitions
the distribution
newspaper,
a union “in-house”
“If
noted:
were construed
[predecessor
610]
to prohibit
and unions
publication, by corporations
in the
course of
regular
affairs,
peri-
conducting
odicals
their members, stockholders or custom-
advising
ers of
interests
from the
danger
to their
advantage
*17
men es-
adoption
measures, or the election to office of
such
pousing
measures,
doubt would arise in
gravest
(footnote omitted).
our minds as to its constitutionality”
We have previously
recognized
necessity
protect-
freedom of
ing
press and
expression on issues
public
Bowe concern.
Secretary
Commonwealth,
The people’s right cast their freely votes the cor- relative the Legislature’s power to ensure the freedom of elections. The plaintiffs’ not to be right silenced com- pletely on referenda issues that affect them materially promotes the people’s to exercise right an informed will at the polls.
We believe that corporations are not entirely unpro- tected First Amendment in the circumstances be- fore us. The exercise of an informed vote elec- torate is essential to the freedom of elections. United States v. Congress Industrial Organizations, 335 U. S. at 144 (Rutledge, J., concurring). Assuming arguendo that massive influence of the vote from any one sector of is an society evil to be restrained, nevertheless any law that seeks to curtail a source of on elec- expression National Bank of Boston questions narrowly pro-
tian must be drawn. It must vide the least restrictive to accom- alternative available plish Congress its ends. United See States v. Indus- Organizations, supra, (Rutledge, trial at 146 J., concur- ring) Although corporation’s expression political . subject issues is to some restraint, we hold that in the compelling showing absence of a State interest corporate expression, amount of small, however on elec- questions tion results in undue influence the elec- over process, corporations may toral totally prohibited not be expressing their views on issues that right affect them. The voters have a informed on referenda issues. The amendment does not requirements narrowly meet the of a law, drawn circum- scribing only the evil be curtailed. general
On the record before us we do not reach the question of the manner, mode and extent to which cor- porate expression may be limited to ensure free elec- tions.22 In the circumstances of the case we hold that the 1972 effectively amendment to G. L. 7, which prevents any expression by on the impermissible constitutional amendment amounts to cen- sorship plaintiffs’ and thus encroaches free- expression dom of in violation of the First and Four- *18 teenth Amendments to the United States Constitution and art. Rights 16 of the Declaration of of the Massa- chusetts Constitution. only
We have thus far addressed ourselves to the con- 22 case, expressed In the Bowe unions, we the view that “labor like individuals, may by corrupt practices be curbed prevented acts and dumping money political campaigns. immense sums of into But proposed under the political law activities of labor unions are not regulated substantially destroyed. Deprived curbed but are right for pay any money sum of advertising newspapers, for . . . buying time, carry any radio a union could not on substantial and political activity. effective get message It could not its to the elec rights torate. Its press peaceable assembly of freedom of the and of Mass, crippled.” would be 320 at 252. Even if it is conceded that the plaintiffs’ expenditures publicize unrestricted their views refer properly by enda is an evil Legislature, curbed it would not follow prohibition there should a expenditures. total such upon Congress See United States v. Organizations, supra, Industrial at (Rutledge, J., concurring). Mass. of Boston
First National Bank § stitutionality 55, 7. L. c. amendment G. of the 1972 leaving By striking and that amendment alone down (Ashley operative Three remainder statute 81) Superior Court, Justices longer prosecution for no suffer threat of plaintiffs’ we that the intended actions. Since have ruled reasonably mate- business interests to be are considered rially by amendment, affected constitutional remaining plaintiffs’ provides the proposed no statute curb forthcoming
publication of their views Having controversy us referendum. resolved the before plaintiffs’ we need at this not, time, consider the attacks upon the face the statute. supra,
As we Bowe “In case, 245-246, noted many impossible cases would be difficult or even say abstractly unconditionally or is statute is part provisions may not constitutional. its be uncon- yet may situtional, the remainder . be constitutional. . . applied A statute be unconstitutional as to some applied states of fact, but as . . constitutional to others. . Only impact particular upon when the of a statute indiv- opportunity uals, who have both the and the incentive to rights by argument, defend their a set of defi- genuine controversy, nite facts established after been has shown, can a court decide constitutional with confidence that relevant considerations have not been overlooked.”
Having statutory struck down the 1972 constitutionally longer offensive, we no have us before proposed activity prohibited by that is statute controversy longer no exists. Our author- ity give declaratory relief under G. L. c. 231 A, inserted St. is circumscribed requirement controversy that “an actual has arisen and specifically pleadings.” set forth in the We think that *19 pleadings it is from controversy clear that the actual parties specifically between plaintiffs’ focused on the publication intended of their views on the con- stitutional amendment. The do not indicate First National Bank of Boston that they political campaigns gen- wish to contribute to or or nomination erally aid, or promote prevent nor indeed do any public office, they election person indicate that they any provisions wish to violate § un- the 1972 amendment which we have held except constitutionality constitutional. as to the Questions § c. 55, 7, as it now remains there but we reserve may be, our an consideration or of such for questions decision case.23 appropriate (with J. Kap- whom Justices Braucher and
Quirico, result) lan in join, Laws c. concurring General § 7, in in appearing 10, provided St. “no part that under corporation incorporated the laws of . . . . directly the commonwealth . . shall or or or indirectly give, pay, expend contribute, promise to give, pay, contribute, or other expend any money valuable for thing of . . . purpose influencing the vote on affecting voters, submitted to the other than one materially property, affecting any of business or assets the corporation” (emphasis sup- In Lustwerk Inc. . Lytron, plied) 647, 648, decided in 1962, we that this statute did not prohibit held a corporation “for the expending money purpose of influencing the voters to vote against [proposed] so-called graduated income tax amendment” to our Con- stitution in the election to be held that year. that we said opinion proposed constitutional “[t]he if in adopted, various will respects, give substantially broader than now power exists to income impose taxes upon corporations and in- specific controversy prohibitions A focused the other con provide L. c. tained G. should us with more concrete adequate might reveal, why among things, corpora record which other they parties tions need to contribute to candidates and when are free spend money questions on referendum affect them. potential Such a record should also discuss whether of cor abuse porate power contributing parties presents economic to candidates or a more serious threat of elections the freedom than the use of such questions. to influence vote on referrendum *20 Mass. 570 Attorney General. of Boston v. Bank First National proposed consti- The within Massachusetts.” dividuals rejected case involved amendment tutional by people the 1962. November people again on a “so-called The be asked vote will graduated election amendment” at the income tax Despite use of different held on November proposal, language present its effect would be in the proposal both au- same as that of the 1962 in that Legislature impose graduated income tax thorize the corporations. corpora- plaintiff individuals and expend money the vote of the tions desire to to influence people forthcoming question at the election on the adoption rejection proposed amendment. only thing changed which has decision in since our approved Lustwerk case is St. June 1972, 458, preamble, emergency 1972, with an amended G. L. c. § by adding following: question thereto “No sub- concerning mitted to the voters in- the taxation property come, or transactions of individuals shall be property, deemed to affect the business or corporation.” assets of the Does the addition of this sen- § any significant tence to 7 make difference between the facts involved, the to be answered, or the result present in the my opin- Lustwerk case and the In case? ion it does not. proposed
The amendments in both the Lustwerk case present “give case would a sub- stantially impose broader than now exists to in- upon corporations” come taxes as well as individ- (the 651). uals Lustwerk case at Therefore the consti- tutional amendment now must be held to be materially affecting” “one property, business or as- plaintiff corporations, sets meaning within the first sentence of L. c. 55, 7, G. unless a different con- required by clusion is the sentence added St. my opinion 1972, c. 458. require
does not a different conclusion. We must try consider the statute as whole, give provisions, regarding effect to all of its none of them
First National Bank of Boston superfluous, “so as a that the enactment considered whole shall constitute a consistent and harmonious stat- utory provision capable effectuating presumed in- Legislature.” tention of the Bolster v. Commissioner *21 Corps. & Taxn. 319 Mass. 85. Both and after before § expressly recognized right the 1972 amendment, 7 corporation expend money of a to influence the vote people any question “materially affecting of the on a property, corporation.” business or assets of the § appears 1972 amendment which added sentence to 7 a preclude any by corpo- to have been intended to claim a expend money ration that it in- would be entitled to people fluence the vote of the on al- which, though expressly income, limited to “the taxation of the property or transactions individuals,” fact affects property, corporation.” “the assets of the plaintiffs just make such a claim that the here, viz., imposition graduated of a income on their tax officers employees, particularly higher those in the income policyholders brackets, and on their stockholders or property, affect “the business or assets of corporation[s].” my opinion right plain- of the corporations proposed expenditures tiff to make the which depend are at issue does not derive from or on this al- leged graduated indirect effect which income tax on might corporate property, individuals have on the busi- ness or assets, but rather it exists virtue of the direct graduated effect which a income tax on might preclusion corporate have thereon. The authority expend money only questions having property, such an indirect effect on their business or as- any way, degree, sets not in did extent or either repeal corporate right, recognized or diminish the portion expend money another of the statute, to to influ- people questions might ence the vote of the which di- rectly corporate property, affect the business or assets, expenditure even if the involves comment on the taxation of individuals. interpretation
This of G. L. c. 55, 7, as amended National Bank of Boston unnecessary through to con- it makes St. upon pass attack constitutional the serious sider or against of their on the basis leveled prohibit assumption it should be construed they expenditures Bowe which to make. See desire Secretary 249- Commonwealth, Campaign Regulation of Fi- 252; Rosenthal, Federal (Study No. nance: Constitutional Questions Some Foundation); Speech Free Comment, Citizens’ Research Implications Campaign Expenditure Ceilings, Har- —Rights 214. The vard Supreme Liberties L. Rev. Civil Civil oc- States has on several Court United constitutionality ruling directly casions avoided (18 Corrupt Federal Practices Act C. U. S. [1970]), presents comparable United which issues. Congress Organizations, States v. Industrial 335 U. S. *22 106, 110. United States v. International United Union Agricultural Implement Auto., & Wkrs. Am. Aircraft (UAW-CIO), Pipefitters 352 Local U. S. 590-592. 567, Union No. 562 v. United States, 407 400. U. S. 385, Valley Authy.
In Ashwander v. Tennessee 297 U. S. (pp. concurring opinion 288, Mr. Justice Brandéis in a 346-348) set forth a “series of rules” said that which he “developed, governance court for its own in the cases confessedly jurisdiction, within its . . . which it under passing upon large part has avoided a of all constitu- pressed questions tional it for decision.” Included following: in the rules were the “4. The will not Court pass upon properly question although a constitutional presented by present if is record, there also some ground upon may disposed other which the case be of. ... grounds, if case Thus, a can be decided either of two involving question, one ques- a constitutional other statutory tion general construction or law, Court only will validity decide the latter. ... 7. ‘When the Congress an question, act of the is drawn even if a constitutionality serious doubt is riased, it is a cardi- principle nal that this Court will first ascertain whether fairly possible by construction of the statute which Mass. 570
First National Bank of Boston v. v. Benson, be Crowell avoided.’
U. 62.” 22, S. long
These same rules of construction have applied by appropriate been This is an case court. self-imposed application judicial for the of this inhibition against announcing rulings which not constitutional are “absolutely necessary decision Burton to a of the case.” 295. United States v. V. United In States, 283, U. S. Agricultural ternational Union Auto., United & Aircraft Implement (UAW-CIO), Wkrs. 567, Am. 352 U. S. frequently 590. have said that a statute not We “will impossible void declared unless isit reasonable interpret provisions harmony construction its with the Constitution.” Perkins v. 226 Mass. Westwood, 268, Supreme Prod. Co. Inc. v. 271, and Malt cases cited. Beverages Alcoholic Control Commn. 334 Mass. 61. The rule has also been said to be that a statute “where may be construed as either constitutional unconstitu adopted tional, a construction will be avoids an which Demetropolos interpretation.” unconstitutional Opinion Commonwealth, 342 Mass. light Justices, we said: “In of all principles, these to avoid serious doubts constitutional interpret ... we are constrained to the second sentence sufficiently narrowly 6A its ensure validity.” Ferguson constitutional Commissioner See Corps. Bay & Taxn. 323-324; 316 Mass. State *23 Racing Breeding Assn. Inc. v. State Harness Horse & Racing Vaughan v. Max’s Commn. 694, 699; Mass. v. Mkt. Inc. 397; Mass. Tax 394, State Commn. Deposit Wheatland, Mass. Boston 650, 653-654; Safe & Trust Co. v. State Tax Commn. 346 Mass. 100, 106; Commonwealth v. Benoit, 347 Mass. 1, 6; Staman As sessors Chatham, 351 479, 486-487. accomplished by I Therefore, concur with the result by order entered 13, this court § October to the through effect that G. L. c. 55, 7, amended St. prohibit is not effective to making proposed expenditures in which are issue Authority. Redevelopment Cambridge
United Carr Inc. I of interpretation this case. do so as a matter solely any opinion statute, intimating without reaching the Legis- on the broad constitutional whether lature has to enact statutes either prohibiting cor- money by otherwise controlling expenditure I porations strong for avoid the political purposes. temptation to of this engage interesting a discussion constitutional ques- not because it a difficult question, tion, but because it is for deci- to do so unnecessary sion of this case. Incorporated Cambridge
United-Carr vs. Redevelopment Authority. September 12, Middlesex. 1972. November 1972. Tauro, C.J., Quirico, Braucher, Hennessey, Present: & JJ. Evidence, value, “Compulsion.” affecting writing. Words, Of Extrinsic proceeding by just compensation to determine for land taken domain, nearby parcel properly eminent evidence of a sale aof was comparable, though purchaser special admitted as even had a parcel, need for jury where the court’s left to the instructions weight special given to determine what to such need should be buy purchaser compelled there was no indication the was any price [599-601]; moreover, paroi at parcel seller of the evidence price parcel as to his allocation the sale between submerged admitted, properly land with which it was sold was though appeared even agree- no such allocation in the written sale ment, party agreement where the condemnee not a [601-602], paroi thus not bound evidence rule filed in the Superior Court on January
Petition The case was tried before Brogna, J.
J ohn Paul Sullivan for the respondent.
James P. Lynch, Jr., for the petitioner.
Tauro, C.J. The case is here on the respondent’s ex- ceptions the admission of certain the denial evidence,