Opinion of the Justices to the Governor , 353 Mass. 785 ( 1967 )

To His Excellency, the Governor of the Commonwealth:

The Justices of the Supreme Judicial Court respectfully submit these answers to the first question contained in the request of the Governor dated September 13, 1967, for an advisory opinion relating to a bill, House No. 5000, pending before him. A copy of the bill was transmitted with the order. The bill is entitled, “An Act apportioning representatives to the several counties of the Commonwealth and providing that each representative shall represent an equal number of inhabitants, as nearly as may be.”

The request recites that the Governor is “of the opinion that . . . [the] bill violates the Constitution of the Commonwealth” ; that the bill, following an opinion of the Attorney General dated August 11, 1967, questioning its constitutionality, had been returned to the General Court without the approval of the Governor and with suggestions for amendments; and that the Legislature has not seen fit to adopt such amendments.

The bill provides in detail for the apportionment of representatives until the next decennial apportionment (see § 3). There is in § 1 a preamble indicating the general intention of the Legislature that “the members of the house of representatives shall be apportioned in a fair and nondiscriminatory manner,” that “the districts shall be so established that they will be as nearly equal in population as is practicable,” and that there shall be applied the so-called principle of “one-man, one vote” reflected in certain recent decisions of the Supreme Court of the United States. The preamble asserts that “the constitution of Massachusetts calls for each representative to represent an equal number of ‘legal voters,’ while the United States Supreme Court has decreed in effect that each representative shall represent an equal number of ‘inhabitants. ’ ” It is unnecessary now to state further details of the bill.

The questions are:

“First. Does the request for an opinion directed by the Governor to Your Honorable Bodies pursuant to Chapter 3, Article 2 of Part the Second of the Constitution of this Commonwealth relative to a bill placed before him for his revisal by the Legislature serve to extend, toll or otherwise modify the five day period after presentment of a bill pursuant to Chapter 1, Section 1, Article 2 of Part the Second of said Constitution,¹ within which such bill must be acted upon by the Governor or have the force of a law by operation of said Constitution?

¹ ‘ Second. If your answer to the first question is in the affirmative, how shall the period within which the Governor may return a bill or resolve pursuant to Chapter 1, Section 1, Article 2 of Part the Second of the Constitution of the Commonwealth be computed when such an Opinion of Tour Honorable Bodies is requested by the Governor?

“Third. Would House Bill 5000 if enacted into law, violate the provisions of Article XXI of the Amendments of the Massachusetts Constitution, more specifically those which provide for apportioning House seats ‘to the several counties of the Commonwealth, equally, as nearly as may be, according to their relative number of legal voters’?

“Fourth. Does Article XXT of the Amendments of the Massachusetts Constitution conflict with the provisions of the Constitution of the United States ?

“Fifth. If the answer to the immediately preceding question is in the affirmative, does said House Bill 5000 conform to the requirements of the United States Constitution and also to those of the Massachusetts Constitution (insofar as these may still be compatible with the United States Constitution) ? ’ ’

It is appropriate for us to answer at this time only the first question. No answer to the second question is required in view of our answer to the first question. The fourth and fifth questions present constitutional issues of great difficulty. The Justices are of opinion that answers to these questions should not be given without full deliberation or without receiving briefs from interested persons, including those engaged in proceedings now pending in the Supreme Judicial Court for Suffolk County. These proceedings present most of the questions discussed in the Governor’s request. It will be impossible for the Justices to complete such deliberation, or to obtain such briefs, within the five day period allowed to the Governor for consideration of a bill placed before him, pursuant to the Constitution of the Commonwealth, Part II, c. 1, § 1, art. 2. See also arts. 1 and 56 of the Amendments of the Constitution. Accordingly, this answer to the first question only is now submitted separately because of the possibility that this answer may be of assistance in dealing with the problems disclosed by the request.

The constitutional provision just mentioned contains no express provision for any extension of the time for the Governor’s consideration of a measure because of his request for the advice of the Justices. Indeed, prior to the adoption in 1964 of art. 85 of the Amendments, the Governor, by himself without the participation of the Council (see Constitution of the Commonwealth, Part II, c. 3, art. 2), could not have required the opinions of the Justices, There is no basis for inserting by implication, in the provision affording the Governor alone five days for considering a measure laid before him, any extension of the five day period to obtain an opinion which he once could not require without the consent of the Council. The five day period heretofore has been interpreted with strictness by this court and in Opinions of the Justices. In Opinion of the Justices, 291 Mass. 572, 576, the Senate was advised that the five day period does not include Sundays and legal holidays, and it was said, ‘ ‘ The time allotted to . . . [the Governor] by the Constitution for the performance of that weighty duty cannot be abbreviated or lengthened by the legislative department of government. The words defining that time are to be given a construction in conformity to the broad purpose of the instrument in which they were used.” See Tuttle v. Boston, 215 Mass. 57, 60, where it was held that the power of veto could not be exercised on the last of the five days, where the Governor had given no notice of intention to make any communication to the Legislature or its clerk and a veto message was transmitted “after the branch of the Legislature in which the bill originated had adjourned for the day, and after the usual and reasonable time for closing the office of its clerk had come, and after it in truth was closed and no one was there . . ..” It was also said (at pp. 59-60) that the power of veto is “conferred by the Constitution itself. It cannot be narrowed or cut down in any respect by the legislative department. The time within which it is to be exercised under the Constitution cannot be lessened, directly or indirectly, by the Legislature. So long as the veto power is exercised within the limits prescribed by the Constitution, it is effective. But the extraordinary character and far reaching consequences of the act of veto are some indication of a necessity that it shall be exercised with a regularity and orderliness commensurate with its importance.” See also Opinion of the Justices, 334 Mass. 765, 770-771.

We conclude that a request by the Governor for an opinion of the Justices does not operate to extend the five day period. Our answer to the first question is “No.”

In view of our answer to the first question it is not now apparent that House No. 5000 will be pending before the Governor or either, house of the Legislature after the expiration of the five day period for action by the Governor, or that, if recalled by the Legislature for further consideration, it will again be placed before the Governor in its present form. In any event, our further consideration of the three remaining questions, and our power and duty to consider them may be affected by whatever action is taken by the Governor and the Legislature during the five day period and thereafter.

Mr. Justice Spiegel by reason of brief absence from the Commonwealth has been unable to participate in this opinion.

Raymond S. Wilkins

John V. Spalding

Arthur E. Whittemore

R. Ammi Cutter

Paul G. Kirk

Paul C. Reardon

1 This provision reads, “No bill or resolve of the senate or house of representatives shall become a law, and have force as such, until it shall have been laid before the governor for his revisal; and if he, upon such revision, approve thereof, he shall signify his approbation by signing the same. But if he have any objection to the passing of such bill or resolve, he shall return the same, together with his objections thereto, in writing, to the senate or house of representatives, in whichsoever the same shall have originated; who shall enter the objections sent down by the governor, at large, on their records, and proceed to reconsider the said bill or resolve. But if after such reconsiderar tian, two thirds of the said senate or house of representatives, shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and if approved by two thirds of the members present, shall have the force of a law: but in all such cases, the votes of both houses shall be determined by yeas and nays; and the names of the persons voting for, or against, the said bill or resolve, shall be entered upon the public records of the commonwealth. And in order to prevent unnecessary delays, if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law. ’ ’ See art. 56 of the Amendments which reads, “The governor, within five days after any bill or resolve shall have been laid before him, shall have the right to return it to the branch of the general court in which it originated with a recommendation that any amendment or amendments specified by bim be made therein. Suet bill or resolve shall thereupon be before the general court and subject to amendment and re-enactment. If such bill or resolve is re-enacted in any form it shall again be laid before the governor for his action, but he shall have no right to return the same a second time with a recommendation to amend. ’ ’