Opinion of the Justices to the Senate & the House of Representatives

Jul 1, 1935

Versions:

*581■ On July 1, 1935, thе order was transmitted to the Justices, who, on July 8, 1935, returned the following answers:

To The Honorable the Senate and the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectful^ submit these answers to thе questions in an order adopted by each branch of the General Court on June 28, 1935, and transmitted to them on July 1, 1935, copy whereof is hereto annexed.

The questions relate to legislative action upon a proposal for an amendment to the Constitution introduced by initiative petition. That initiative amendment was seasonably laid before a joint session of the two houses of the General Court. Special rules previously had been adopted as to *582procedure in that joint session. One provided in part that the “rules of the House of Representatives shall govern the proceedings in the joint sessions in all cases to which they are applicable, and in which they are not inconsistent with the provisions of Article XLVIII of the Amendments of the Constitution.” At a joint session held on June 11, 1935, on a vote of yeas and nays on the question of agreeing to the proposed initiative amendment, the votes of seventy-one members were in the affirmative, being more than one fourth of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍all the members. Thereupon it was announced that the proрosal for amendment would be referred to the next General Court pursuant to art. 48 of the Amendments to the Constitution. Immediately, a motion to reconsider was made, which was entertained under rule 70 of the House of Representatives; at a joint session held on June 12, 1935, on a voice vote the motion to reconsider prevailed subject to a point of order that the action taken on June 11, 1935, was final and that the joint convention of June 12, 1935, was without warrant.

Pertinent provisions of art. 48 of the Amendments are in “The Initiative,” Part IV, entitled “Legislative Action on Proposed Constitutional Amendments.” Section 4 of that Part IV is in these words so far as material: “Final legislative action in the joint session upon any amendment shall be taken only by call of the yeas and nays ... an unfavorable vote at any stаge preceding final action shall be verified by call of the yeas and nays ... At such joint session . . . an initiative amendment receiving the affirmative votes of not less than one-fourth of all the members elected, shall be referred to the next general court.” Rule 70 оf the rules of the House of Representatives provides for reconsideration of a vote by formalities which, according to the recitals preceding the questions in the order, appear to have been followed.

The joint session of the two hоuses of the General Court enjoined by art. 48 of the Amendments for the consideration of a proposal for an initiative amendment to the Constitution is a legislative assembly. It is designed to give opportunity for debate and deliberation concerning the mat*583ter bеfore it commensurate with the importance always accompanying a proposal to amend the frame of government established by the Constitution. It is required by “The Initiative,” Part III, § 1, of art. 48 of the Amendments that a measure introduced by an initiative petition be referred to a committee which, after a hearing to the petitioners and all parties interested and after considera-tian, shall report its recommendations and the reasons therefor in writing to the General Court. The proposal for an initiative amendment may be amended by a vote of three-fourths of the members voting thereon in joint session. “The Initiative,” Part IV, § 3. A substitute for such proposal for amendment may be submitted to the people as an alternative by majority vote in joint session in each of two successive General Courts. “The Initiative,” Part III, § 2. The joint session by necessity possesses the ordinary prerogatives of a deliberative legislative body. One of these is to adopt rules for the regulation of its conduct. Reconsideration of votes is recognized рractice in legislative bodies in this country. Nevins v. City Council of Springfield, 227 Mass. 538, 545-546. Mansfield v. O’Brien, 271 Mass. 515, 518-519. Concerning reconsideration, a rule is generally formulated. Article 48 of the Amendments under “The Initiative,” Part IV, § 4, calls for “Final legislative action” by the joint session in a specified way. It does not prevent the joint session from adopting rules to regulate procedure touching the matters to be considered. Neither its words nor its general purpose precludes the joint session from making a rule to permit and to govern reconsideration of votes taken by it. “Final legislative action” in this connection means such action according to established legislative procedure modified by the constitutional requirements of art. 48 of the Amendments. The vote of the joint session of June 11, 1935, whereby the proposal for the initiative amendment received the affirmative votes taken by yeas and nays of more than one-fourth of all the members elected to the two houses was final action, subject, however, to recon*584sideration. It did not stand as final action because, in conformity to the rules, motion for reconsideration was made forthwith. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Adverse disposition must be made of that motion before the earlier vote would stand as the final action of the joint session.

There is no express requirement in art. 48 of the Amendments that the vote on the motion for reconsideration be taken by a call of the yeas and nays. It is only the “Final legislative action” and “an unfavorable vote at any stage preceding final action” which must be verified by a call of the yeas and nays. “The Initiative,” Part IV, § 4. The vote by the joint session to reconsider the vote taken on June 11, 1935, was not “unfavorable” to the proposed initiative amendment. It was not an expression antagonistic to the merits of that amendment. It was a vote to give to that amendment further reflection, renewed attention, and more сareful deliberation. While the adoption of a motion to reconsider a vote already taken may open the way for a reversal of that vote, it does not import such reversal. It involves temporary postponement of final action. It merely provides for a new vote on the original question after more mature consideration. What may be the result of that new vote, whether affirmative, or negative, or different as compared with the earlier vote, depends upon the judgment of the membеrs of the assembly when it is taken. Whatever may be the state of mind reflected by a vote to reconsider, it cannot in our opinion be held to be an “unfavorable vote” in the sense in which those words are used in the portion of art. 48 of the Amendments already quotеd. Therefore, the vote on reconsideration was not required expressly or by implication to be by yeas and nays but might be by voice vote.

It is the general rule that reconsideration may be voted by a majority of a legislative body, although affirmative final aсtion may require the votes of a different proportion of the members, either more or less than a majority. It was held in Nevins v. City Council of Springfield, 227 Mass. 538; 543 to 547, after some review of precedents, that a *585vote on a matter requiring two-thirds of those present and voting in order to pass it, might be reconsidered by a majority vote. The principle of thаt decision requires the conclusion that there is nothing in art. 48 of the Amendments requiring a vote of higher degree than a majority vote in order to adopt a motion for reconsideration of the vote of the joint session taken on June 11, 1935. Adams v. Townsend Schoolhouse Building Committee, 245 Mass. 543, 547-549. See also vol. 56, part 11, Cоngressional Record, pages 11037 to 11040. (Oct. 3, 1918.)

A proposal for an initiative amendment must be considered at a joint session convened not later than the second Wednesday of June after its transmittal to the General Court. Further pertinent provisions of "The Initiative,” Part IV, § 2, of art. 48 of the Amendments are in these words: "if the two houses fail to agree upon a time for holding any joint session hereby required, or fail to continue the same from time to time until final action has been taken upon all amendments pending, the governor shall сall such joint session or continuance thereof.” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍This section was framed, approved and voted to be submitted to the people by the Constitutional Convention in 1917 at a time when there were annual elections for the choice of members of the Gеneral Court. Its words doubtless were adapted to that situation. Biennial elections are now required by art. 64 of the Amendments to the Constitution. This Amendment was approved and voted to be submitted to the people by the Constitutional Convention several months later thаn art. 48. Both amendments were adopted at the State election of 1918. Opinion of the Justices, 286 Mass. 611, 622. The terms of senators and representatives now are in substance two years from the first Wednesday in January succeeding their election, but the General Court is required to assemble on thе first Wednesday of January in each year. Art. 64 of the Amendments, §§ 1, 3. The precise point is raised whether by the words of Part IV, § 2, just quoted, final action on a proposal for an initiative amendment is confined to that assembling of the General *586Court at which it is presented, or whеther final action may be taken at its second session.

The official life of each branch of the General Court has been lengthened to two years instead of being limited to a single year, as it was before the adoption of art. 64 of the Amendments. The prоvision of that article, to the effect that the General Court shall assemble every year, does not break the continuity of its existence as a legislative body. It simply prescribes two sessions for each General Court. In this particular, each branch of the General Court resembles the House of Representatives of the Congress of the United States, which, although required to assemble at least once in every year, is a single continuous legislative body for the two years for which its members are chosen. Opinion of the Justices, 239 Mass. 603, 605. Articles 48 аnd 64 of the Amendments are equally parts of the Constitution. They stand on the same footing. They are to be construed and interpreted in combination with each other and all other parts of the Constitution as forming a single harmonious instrument for the government of the Commonwealth. Tax Commissioner v. Putnam, 227 Mass. 522, 524. Opinion of the Justices, ante, 572, 575-576. In the main under art. 64 (with exceptions not here material, see, for example, arts. 17, 25 and 63 of the Amendments) it is for the General Court to determine whether legislative action shall be taken on any pending matter at its first or second session. Nothing in the phraseology of Part IV, § 2, of “The Initiative” of art. 48 is imperative that the joint, session convened in accordance with its terms must take final action respecting the matter pending before it within ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍any specified time. Such action must be taken at some time. The mandate is that the joint session shall continue from time to time until final action is taken. That imports the flexibility as to time of final decision dictated by the wisdom and conscience of the legislative assembly upon which is cast the responsibility for disposing of the matter. No exigency as tо action at one session or the other arises from the nature of the business to be transacted. The proposed initiative *587amendment cannot be submitted to the people until it has received the specified vote of a joint session of two successive General Courts. Whether favorable final legislative action on the proposed amendment be taken at the current or at the next session of the present General Court cannot accelerate, retard or affect the-submission of thе amendment to the people. Part IV, § 5, of “The Initiative” of art. 48 of the Amendments.

The answer to the first question is “No.”

The answer to the second question is “Yes.”

The answer to the third question is “Yes.”

The answer to the fourth question is that a majority vote was sufficient for reconsideration.

It is not necessary, in view of what has been said, to answer the fifth question.

The answer to the sixth question is “Yes.”

The answer to the seventh question is “Yes.”

It is not necessary, in view of whаt has been said, to answer the eighth question.

Arthur P. Rugg.

John C. Crosby.

Edward P. Pierce.

Charles H. Donahue.

Stanley E. Qua.

To The Honorable the Senate and the House of Representatives ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the Commonwealth of Massachusetts:

The undersigned agree with the opinion signed by the Chief Justice and other justices, except with respect to the effect of want of verification by yeas and nays of the vote on the motion to reconsider. Apart from reconsideration, there was final action upon the proposed amendment. The motion to reconsider had the purpose to annul that final action, and to subject the proposed amendment to the uncertainty of another vote. We think that the adoption of such a motion was “an unfavorable vote” at a “stage preceding final action,” requiring a vote “verified by call of the yeas and nays” under § 4 of Part IV of Amendment 48 *588to the Constitution. Accordingly we are of opinion that the third question should be answered “No” and the fifth question “Yes.” Until the motion to reconsider is acted upon in accordance with the Constitution, it cannot be determined whether the vote of June 11, 1935, will stand as “final action” or not, and consequently question 1 cannot be answered categorically.

Fred T. Field.

Henry T. Lummus.