OPINION OF THE JUSTICES TO THE SENATE.

Ordered , That the Senate require the opinions of the Honorable the Justices of the Supreme Judicial Court upon the following important questions of law:

First. Has the General Court the constitutional power to enact legislation in amendment of chapter ninety-eight of the General Acts of the year nineteen hundred and sixteen in any manner not specifically affecting the issue submitted under said bill to the voters and decided by them in the affirmative, namely, whether there should be a convention to revise, alter or amend the Constitution of the Commonwealth?

Second. Has the General Court, under the power whereby legislation was enacted enabling women to vote for the nomination and election of members of school committees or otherwise the right to enact legislation enabling women to vote on the acceptance or rejection of the revisions, alterations or amendments of the Constitution of the Commonwealth which may hereafter be adopted by the Constitutional Convention and submitted to the people under the provisions of chapter ninety-eight of the General Acts of the year nineteen hundred and sixteen?

Third. Has the General Court constitutional power to define the word "people" as used in section six of said chapter ninety-eight?

Fourth. Would such definition be binding upon the Constitutional Convention, if enacted?

Fifth. Will any proposed revisions, alterations or amendments of the Constitution of the Commonwealth submitted under the terms of said section six, by the Constitutional Convention to the people, have effect if accepted by the people, as part of the Constitution of the Commonwealth?

Sixth. Would such proposed revisions, alterations and amendments have effect as part of the Constitution of the Commonwealth if submitted to and accepted by a constituency, either greater or less than the entire body of those persons qualified to vote under the provisions of the present Constitution of the Commonwealth?

Seventh. Are the provisions of section six of chapter ninety-eight of the Acts of the year nineteen hundred and sixteen which purport to give to the Constitutional Convention power to submit its proposed revisions, alterations or amendments of the Constitution of the Commonwealth to the people, with the effect

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that if accepted by the people said revisions, alterations and amendments shall become part of the Constitution of the Commonwealth, which power said House Bill, No. 797 seeks to amend, within the constitutional power of the General Court to enact?

In view of the importance of the above questions, the Honorable the Justices of the Supreme Judicial Court are respectfully requested to receive such briefs or written arguments as may be presented by order of the Senate bearing on the above questions.

House Bill No. 797, referred to above, was as follows:

An Act Defining the word "People" as used in Section Six, Chapter Ninety-eight, General Acts of the Year Nineteen Hundred and Sixteen.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Chapter ninety-eight, General Acts of the year nineteen hundred and sixteen is hereby amended by adding to section six thereof the following: — All women entitled to register to vote for school committee shall be regarded as people within the meaning of the word as used in this section.

To the Honorable Senate of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, have considered the questions upon which our opinion is required by the order of March 26, 1917, a copy of which is hereto annexed, and respectfully submit this opinion:

The first four questions, some in general and others in specific forms of expression, are construed as intended to ask in substance whether the General Court has the power to amend St. 1916, c. 98, as proposed by the accompanying House Bill No. 797. St. 1916, c. 98, provides for the holding of a convention to revise, alter or amend the Constitution of the Commonwealth if a majority of those voting on the question vote in favor. It is common knowledge that proclamation has been made to the effect that a majority of the votes cast were in favor of holding the convention. It is enacted in §6 of that act that "Any such revision, alterations or amendments, when made and adopted by the said convention, shall be submitted to the people for their ratification

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and adoption, in such manner as the convention shall direct; and if ratified and adopted by the people in the manner directed by the convention, the Constitution shall be deemed and taken to be revised, altered or amended accordingly." House Bill No. 797 purports to enact that "All women entitled to register to vote for school committee shall be regarded as people within the meaning of the word" "people" as used in § 6 of the act.

The validity and the powers of this convention are not necessarily involved in these questions. Without discussing that subject, we are of opinion that, assuming the validity of St. 1916, c. 98, it is plain that the passage of the proposed bill is wholly beyond the power of the Legislature. If the convention to revise and alter the Constitution is held under the Constitution, it is because the people of the Commonwealth have under the Constitution the right to alter their frame of government according to orderly methods as provided by law, and through the medium of an act of the Legislature.

The word "people" may have somewhat varying significations dependent upon the connection in which it is used. In some connections in the Constitution it is confined to citizens and means the same as citizens. It excludes aliens. It includes men, women and children. It comprehends not only the sane, competent, law abiding and educated, but also those who are wholly or in part dependents and charges upon society by reason of immaturity, mental or moral deficiency or lack of the common essentials of education. All these persons are secured by the fundamental guarantees of the Constitution in life, liberty and property and the pursuit of happiness, except as these may be limited for the protection of society. It is declared in the Preamble to our Constitution that "The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." In this sense "people" comprises many who, by reason of want of years, of capacity or of the educational requirements of art. 20 of the Amendments of the Constitution, can have no voice in government and who yet are entitled to all the immunities and protection established by the Constitution. "People" in this aspect is coextensive with the body politic. But it is

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obvious that "people" cannot be used with this broad meaning in a political signification. The "people" in this connection means that part of the entire body of inhabitants who under the Constitution are entrusted with the exercise of the sovereign power and the conduct of the government. The "people" in the Constitution in a practical sense means those who under the existing Constitution possess the right to the elective franchise and who, while that instrument remains in force unchanged, will be the sole organs through which the will of the body politic can be expressed. "People for political purposes must be considered synonymous with qualified voters." Blair v. Ridgely, 41 Mo. 63, 176, 177. Boyd v. Thayer, 143 U. S. 135, 158, 161. Cooley, Const. Lim. (7th ed.) 57, 58. See Vol. II Works of James Wilson, (Andrews ed.) 6.

The Constitution of Massachusetts in its original form defined the qualifications of the electorate. Const. Mass. c. 1, § 2, art. 2; c. 1, § 3, art. 4. These qualifications have been modified by arts. 3, 17, 20, 28, 31 and 32 of the Amendments. The words of the Constitution as it now stands are "Every male citizen of twenty-one years of age and upwards, excepting paupers and persons under guardianship, who shall have resided within the Commonwealth one year, and within the town or district in which he may claim a right to vote, six calendar months next preceding any election . . . shall have a right to vote" for Governor and other officers. Although these provisions in express terms relate only to the qualifications of voters for the elective officers therein named, it is a necessary and imperative implication that these electors and these only can be treated as qualifed to vote to change the Constitution. The words "qualified voters" as used in art. 9 of the Amendments, wherein are the provisions for amendments to the Constitution, mean the voters qualified according to the requirements of the Constitution. It is an essential and inevitable limitation upon the power vested in the legislative body of a State established by a written constitution that it cannot provide for the revision or change of the frame of government except in a lawful and orderly method and by the body of electors determined according to the terms of that frame of government. The "people" who have a right to vote upon any essential aspect of that revision and change, either for members of the convention

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or the acceptance or rejection of its work, are the people who have a right to vote for State officers and upon State questions, namely, the voters as described by the Constitution itself. It is elementary that the existing Constitution continues in full force and effect until changed or destroyed by act of the sovereign people. It seems indisputable that there is no power under the Constitution, except the sovereign people acting in accordance with their self-imposed, limiting methods of procedure, to enlarge the electorate so as to include as voters persons not eligible to vote upon amendments to the existing Constitution. This is necessarily so, whatever may be the power of the Legislature to define words for the purpose of its own legitimate enactments. The Legislature can proceed only under the Constitution. It would be contrary to its duty to that Constitution to provide for its revision or alteration by a body of electors, whose qualifications were different from those ascertained by the terms of that Constitution. The power of the Legislature to enact that women may be members of or vote for local or other subordinate boards of officers (see Opinion of the Justices, 115 Mass. 602; 136 Mass. 578) is of a different character. The existence of that power touching officers created by the Legislature affords no basis for argument that like power exists to change the electorate established by the Constitution for State affairs. It follows from what has been said that the first four questions must be answered in the negative.

The fifth and sixth questions relate directly to the effect of the work of the convention provided it should be accepted by the people. However pertinent these questions might have been if they had been asked before the enactment of St. 1916, c. 98, they now do not refer to any pending proposed legislation, and also they request an interpretation of an existing statute. Either of these grounds has been said in numerous opinions of the Justices to be sufficient to require them to decline to express an opinion as not being within the scope of the duty imposed on them by the Constitution. Opinion of the Justices, 122 Mass. 600; 148 Mass. 623; 150 Mass. 598; 208 Mass. 614; 217 Mass. 607. Since we already have answered that in any event the Legislature has no power to enact the proposed House Bill numbered 797, the seventh question is subject to the same considerations.

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Therefore, so far as questions Fifth, Sixth and Seventh have not been answered in effect by what has been said already, we are constrained to ask to be excused from answering them.

Arthur P. Rugg.

William Caleb Loring.

Henry K. Braley.

Charles A. De Courcy.

John C. Crosby.

Edward P. Pierce.

James B. Carroll.