Opinion of the Justices to the Senate, 229 Mass. 601

Opinion of the Justices to the Senate

229 Mass. 601 | Mass. | 1918

To the Honorable Senate of the Commonwealth of Massachusetts:

We, the undersigned Justices of the Supreme Judicial Court, have considered the questions, of which a copy with the order relating thereto is hereto annexed, and respectfully submit this opinion:

The questions and the accompanying bill relate to the power of the General Court under the Constitution to enact a general statute abolishing the town meeting form of government and substituting for it a qualified kind of municipal meeting wherein the power to vote shall be exercised alone by certain representative voters, consisting of a percentage of the total number, chosen by their fellows from precincts into which the town is to be divided, such statute to take effect automatically in any town when accepted by the affirmative votes of a majority of the voters at a duly warned town meeting.

.The essential and distinguishing characteristic of the town meeting form of government is that “all the qualified inhabitants meet, deliberate, act and vote in their natural and personal capacities, in the exercise of their corporate powers.” Warren v. Mayor & Aldermen of Charlestown, 2 Gray, 84, 101. Each qualified inhabitant of the town has an indisputable right to vote upon every question presented, as well as to discuss it, or there is no town meeting. This is universally understood as the vital feature of the town system of government as practiced in this Commonwealth continuously from a time long before the Declaration of Independence until the present. This form of local government was the fibre of our institutions when the Constitution was adopted. It is implied whenever the word “town” is used in that instrument. It was held in profound esteem and was guarded with jealous care. The public spirit in Massachusetts which led to the opening battles *608of the Revolution was nurtured and promoted in large measure by the deliberations and votes in the various town meetings. Wheelock v. Lowell, 196 Mass. 220, 227.

It is manifest that this vital feature of the right of each qualified citizen to vote upon every question coming before the town meeting is not preserved in the bill proposed. It was considered doubtful in the early days of the Commonwealth whether the Constitution as originally adopted permitted any substantial change by the General Court in the town meeting form of local government. This doubt prevailed so generally that the second amendment to the Constitution was proposed by the convention of 1820 and was adopted by the people. The purpose and effect of that amendment, reported by a committee of which Daniel Webster was chairman, were clearly set forth by Lemuel Shaw, afterwards Chief Justice, who as a member of that convention was its leading supporter. In debate he pointed out that “The Constitution, as it stands, requires a form of town government, not adapted to the condition of a populous town. The inhabitants of towns meet together for the purpose of giving their votes for town, county, State, and United States officers. In these cases the meeting is not deliberative. But they have another class of duties, which consists in deliberating and acting upon all questions falling within their jurisdiction, in which cases they are to be considered in all respects as deliberative bodies. But the Constitution provides that the inhabitants shall meet and the votes be given in open town meeting; that the votes shall be counted, sorted and declared in open town meeting, in which the selectmen shall preside. These provisions render it imperative that the voters should meet together in one body, be they few or many. . . . This then is the essential difficulty. The General Court can grant powers as occasion may require, but cannot dispense with the mode of organization required by the Constitution. What then is the remedy? It is to authorize such an organization as is adapted to the condition of a numerous people, — such an organization as will admit the inhabitants to meet in sections for the purposes of election, and choose representatives who should meet for the purpose of deliberation, instead of the whole body.” Journal Mass. Convention of 1820-21, page 193. That statement of the matter does not appear to have been disputed, but on *609the contrary to have been generally approved in the convention, among whose members were most of the leading constitutional lawyers of the State, including a justice of the Supreme Court of the United States, the chief justice and two associate justices of this court, and three others who subsequently became members of this court. That exposition of the law was adopted in substance in Hill v. Boston, 122 Mass. 344, 354-356, and was recognized in Larcom v. Olin, 160 Mass. 102, 104. The town is the unit for voting purposes recognized by the Constitution. An amendment was required to permit the division of a town into voting precincts. Article 29.

The fundamental and real distinction between the town and the city organization is that in the former all the qualified inhabitants meet together to deliberate and vote as individuals, each in his own right, while in the latter all municipal functions are performed by deputies. The one is direct, the other is representative. The second amendment to the Constitution provides the only method by which the General Court can erect the representative in place of the direct form of municipal government. The power conferred upon the General Court by the second amendment is restricted so “that no such government shall be erected or constituted in any town not containing twelve thousand inhabitants, nor unless it be with the consent, and on the application of a majority of the inhabitants of such town, present and voting thereon, pursuant to a vote at a meeting duly warned and holden for that purpose.” It is plain that the proposed bill is not framed in accordance with that amendment. Its provisions are not limited to towns of twelve thousand inhabitants as thereby required, but are quite unhampered in that particular. The smallest town may adopt it. Moreover, the establishment of a city or other municipal government, representative in its nature, cannot be made by general law but only by special act, passed on the application of the town pursuant to a majority vote of its inhabitants voting thereon. The reason for that is that under the second amendment the first step must be taken in each instance by the town and not by the General Court. This course is reversed when a general law is held out for adoption at any time by any town. That was decided in Larcom v. Olin, 160 Mass. 102. It is unaffected by art. 42 of the Amendments to the Constitu*610tian permitting a general referendum. Different rules apply respecting a change from one .form of representative municipal government to another after the fundamental transition from the town to the representative form has been made in accordance with the terms of the second amendment. Such a change may be made under the provisions of a general act. Cunningham v. Mayor of Cambridge, 222 Mass. 574, 576. It is an immaterial circumstance that in the proposed bill the name “town” is retained as descriptive of the municipal organization. It is the substance of the thing done, and not the name given to it, which controls. It is plain that the proposed bill extinguishes the essential characteristic of the town form of government as universally understood, and sets up in its place in certain respects a kind of representative form of government. In the second amendment the words “corporate town or towns,” of the perfectly well known meaning already adverted to, are used in contrast to the words “municipal or city government,” which are generic in signification and include all forms of representative municipal government. To call the municipal organization established by the proposed bill, “town,” cannot modify its essential governmental nature.

We are constrained to answer "each of the questions in the negative.

Owing to absence from the Commonwealth Mr. Justice Pierce has taken no part in the consideration of the questions.

Arthur P. Rugg.

William Caleb Loring.

Henry K. Braley.

Charles A. De Courcy.

John C. Crosby.

James B. Carroll.