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two-thirds of the members of the House present and voting did, however, affirmatively vote to pass the act notwithstanding the
The question you raise is one of very serious importance. I take it to comprise an inquiry as to the constitutionality of the law, assuming it to have been duly enacted, as well as the question whether, as matter of law, it has been enacted at all in view of the Executive veto.
If the statute has been lawfully enacted, I am of opinion that I should not be justified in declaring it to be unconstitutional. The Supreme Judicial Court must determine that question if it be raised. I therefore confine my attention, investigation and discussion to the more specific inquiry and the more important, in view of my duty, whether it was in law enacted in view of the facts which I accept as above stated.
The constitutional provisions upon which this question must be determined are to be found in chapter I., article II., of Part the Second of the Constitution of this Commonwealth, the material. part of which is to be found in the paragraphs defining the veto power of the Executive, the language being:
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 reconsideration, 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.
There is an obvious difference in the phraseology defining the reconsideration and re-enactment of a law, notwithstanding the Executive veto, with regard to the two branches of the Legislature, the one in which the act originated and the other whose action supplements that of the branch in which the law had its origin; in the case of the branch originally acting it being required that there must be an affirmative vote of two-thirds of the said Senate or House of Representatives, and in the other case, the affirmative vote required being two-thirds of the members present. Whether the omission is the one requirement of the word "present and its appearance in the other be intentional or accidental, suggests the first line of inquiry which my investigation pursues.
The presumption must be that the terms and provisions of the Constitution find place through the intent of its framers rather than through accident or inattention. I must therefore conclude that the difference of phraseology in the two sections above cited was intentional, and my inquiry is, in consequence, confined to the question whether this difference of phrase leads to a necessary difference of vote in the two houses required to enact a law, notwithstanding the veto of the governor.
That the attention of the framers of the Constitution was directed especially to this section is apparent from the report of the constitutional convention of 1779-80. The report of that convention, which is very incomplete and unsatisfactory, states that a motion was made to insert the words " being equal in numbers to those present at the passing thereof." The report does not state at what point in the section these words were to be inserted. The convention, however, declared in favor of the paragraph in its present form. See Journal of the Convention, 1779-80, Boston, 1832.
The records of the constitutional convention of 1853 present an interesting and suggestive discussion of the question before me though it furnishes no decisive authority. Debates in Massachusetts Convention, 1853, volume III., page 662 et seq. A committee of the convention reported a revision of article IV., by which revision the word "present" was inserted and made applicable to the vote required for enactment after a veto, by the body in which the act originated. It was contended by Mr. Lord of Salem that the insertion of the word effected a palpable alteration of the Constitution which was beyond the authority of the reporting committee. Upon a question of order, whether the report, by reason of the change of phrase, did transcend the authority of the committee, the presiding officer of the convention ruled that it did not, since, in the opinion of the chair, "the insertion of the word 'present' does not change the substance of the article; the experience of the chair has been invariably that a question has been considered settled on receiving the assent of two-thirds of the members present and voting thereon. The chair does not therefore regard it as changing the substance of the article." Mr. Lord earnestly and forcibly argued that the inserted word "present" did change the meaning of the Constitution, and he was opposed to such insertion both because it was beyond the authority and province of the committee as well as upon the broader ground that it diminished the vote required to override an Executive veto. He thereupon moved that the report of the committee be amended by striking out the word "present." The question was taken upon this motion, and
upon a division the vote stood, ayes 63, noes 162, and Mr. Lord's amendment was rejected.
The Constitution, with article IV. containing the inserted word "present," was adopted by the convention, but the new draft of the Constitution was rejected by popular vote. It thus appears that an attempt to amend the Constitution by the insertion of a word claimed by some to be only a change of phrase without change of meaning, and by others to be a change of substance, failed of accomplishment through the disapproval of the people, and so the attempt to remove the doubt of construction, if it were only such, failed; and it is also obvious that the express provision requiring only a two-thirds vote of members present for the passage of an act over the Governor's veto, if such were a change in the constitutional requirement, was not ratified by the popular
Article XXXIII. of Amendments to the Constitution, adopted Nov. 3, 1891, is as follows:
A majority of the members of each branch of the General Court shall constitute a quorum for the transaction of business, but a less number may adjourn from day to day, and compel the attendance of absent members. All the provisions of the existing Constitution inconsistent with the provisions herein contained are hereby annulled.
This amendment does not, in my opinion, affect the question before, me or aid in its determination. None of the pre-existing provisions of the Constitution affecting this question are inconsistent with, or in consequence annulled by, those of this amendment, which merely defines what shall constitute a quorum for the transaction of business in either branch of the General Court, and was evidently directed to and in amendment of article IX. of chapter I. of section II. and article IX. of chapter I. of section III. of the Constitution.
A constitutional requirement fixing the minimum vote necessary for affirmative action upon a specific proposition or question is not, in my opinion, affected by a provision designating the limit of attendance without which ordinary business cannot be transacted. Unless an amendment revises the whole subject embraced by the previous constitutional provision the latter cannot be held to have been repealed by implication, especially as it may be given, as in this case, full effect without conflict or inconsistency with the subsequent amendment. See Harnden v. Gould, 126 Mass. 413.
I have examined the reported rulings of presiding officers of the House and Senate upon the construction of the constitutional provision under consideration, and it appears to have been held
that in the branch first taking action a vote of two-thirds of the members present is sufficient to pass a bill notwithstanding a veto. Clifford, S., 1862, page 625; Bullock, H., 1862, page 586. But such decisions, not being upon the construction of the rules of the Senate or House but upon the organic law superior to and controlling all legislative action, can neither be final, nor, indeed, be held to carry any authority beyond that of the learning and sound wisdom of the eminent gentlemen who declared them.
The dissenting opinion of Mr. Justice Bradley, in County of Cass v. Johnston, 95 U. S. 370, most forcefully presents reasons bearing high intrinsic authority of a great jurist, to the effect that in the absence of qualifying or limiting words a constitutional requirement of a specific vote of a given body means such vote of the entire body, not such proportion of the members thereof as may at any assumed moment participate in the vote.
The opinion of Mr. Justice Bradley appears to me consonant with the true principle governing this inquiry, and would by itself justify grave doubt whether, in the case before me, a two-thirds vote of members present in the house of origin of the bill satisfied the requirement of the Constitution, even if the phrase of requirement were identical as applied to action in both houses, and this view is directly sustained in the case of State v. Gould, 31 Minn.
There are authorities, however, which hold that the word "house," where context, subject or condition suggests or induces such conclusion, is to be construed as meaning a quorum of such house. Southworth v. Palmyra & Jackson Railroad Company, 2 Mich. 287; Green v. Weller, 32 Miss. 650. The reason upon which these decisions rest is absent from the case before us, since it is here apparent that peculiar responsibility and gravity attach to that vote which is to nullify an Executive veto, and it is therefore to be distinguished from routine action incident to the mere transaction of ordinary legislative business. Again, the context under consideration before us exhibiting a difference in phrase forbids that generalization of reason which carried the opinion of the court in the cases above cited. In the construction of statutes, and much more so in that of the Constitution, it is the safe method to give effect to the particular words. When in the same sentence different words are used, the courts of law will presume that they were used in order to express different ideas. Parkinson v. State, 14 Md. 184, 197.
Where there is such difference of phrase as that plainly before us, that difference must be held to have an intentional significance which I certainly cannot and shall not assume to ignore by any
rule of construction which holds that the word "present" in the second clause and absent in the first is mere heedless surplusage, the result of a want of consideration or inattention on the part of the framers of the Constitution, or the result of an incapacity that must await the charitable constructive assistance of commentators of a later day. I am of opinion that our Constitution took its vigor at the moment of its adoption and in the very phrase of its expression, and that no one of its provisions can be discarded, or that phrases of different form and import are yet to be held as of the same intent by any authority, save that of the decision of that tribunal to which its construction was by its own precept committed, the Supreme Judicial Court.
I cannot doubt that the courts will recognize a distinction in the phrases about which our inquiry centres, and unless it shall be held that these apparent distinctions are, nevertheless, to be construed as of the same effect and tenor, it must follow that an act can be passed, notwithstanding the Executive veto, only in the event that two-thirds of the entire membership of the house in which the act originated shall vote to pass the same, notwithstanding the veto; as it must certainly be held that the act may be passed, notwithstanding such veto, by the other house if twothirds of the members present so vote.
I think, in view of such obvious difference in phraseology and apparently of such significance, it must be left to the courts of competent jurisdiction alone to declare that the framers of the Constitution nevertheless intended that no distinction should exist. A careful search of the reports of judicial construction has failed to disclose to me any such declaration; indeed, I have been able to discover no adjudication directly bearing upon this issue. I am therefore left to pursue such lines of reasoning as appear to me to be sound and conclusive, realizing that however they may so appear to me, they must still fail to carry that authority which can alone settle and determine the important question which your inquiry presents. But since you have sought, and may feel that you must govern your official action by, such opinion as I can render to you, I deem it my duty to suggest some of the reasons which guide me to the conclusion which I submit.
Assuming that full weight must be given to each and all of the provisions of the Constitution, and assuming that each is there inserted for a purpose, for every clause and word even of a statute shall be presumed to have some force and effect (see Opinion of the Justices, 22 Pick. 573; Browne v. Turner, 174 Mass. 150, 160), I conclude that the framers of the Constitution intended that that branch of the Legislature in which the act in question