OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.

On May 7, 1965, the Justices submitted the following answers to questions propounded to them by the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order adopted by the House of Representatives on April 26, 1965, and transmitted to us on April 29, 1965. The order recites the pendency before the General Court of a bill, House No. 3495, entitled, "An Act changing the boundaries of the wards of the city of Peabody," a copy of which was transmitted with the order. We are now informed that the amended title of the bill is: "Bill redividing the territory of the city of Peabody into wards." The order recites that the bill presently before the House for concurrence in Senate amendments is in three sections and that there is pending in the House a motion further to amend the bill by striking out Sections 2 and 3 as amended by the Senate and substituting therefor a new Section 2.

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Section 1 of the bill redivides the city of Peabody into six wards. The order recites that the population of Peabody by wards as of January 1, 1964, was as follows:

WARD POPULATION AS OF JANUARY 1, 1964

and that the redivision by Section 1 of House Bill No. 3495 would apportion the 1964 voters to the new six wards as follows:

Section 2 of the bill, if the amendment pending in the House were to be adopted, would read:

"Section 2. This act shall take effect as of December thirty-first, nineteen hundred and sixty-four and the city clerk of the city of Peabody shall report the results of the special enumeration taken in the current year as if the wards established by this act were in existence on January first, nineteen hundred and sixty-five."

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Sections 2 and 3 of House No. 3495, if adopted in the form received in the House with Senate amendments, would provide as follows:

"Section 2. For all state elections and primaries held in said city prior to any antecedent primary of the first biennial state election at which representatives and senators are to be elected from new representative and senatorial districts established, under the provisions of the constitution, on the basis of the special enumeration of legal voters to be made in the year nineteen hundred and seventy-five, the wards as existing previous to their redivision under this act shall continue and for all such purposes the election officers shall be appointed and hold office and voting lists shall be prepared and all other things required by law shall be done as if there had been no such redivision; provided, that, for the purposes of any municipal election and its antecedent primary or preliminary election, if any, held prior to said antecedent primary of said first biennial state election, the new wards shall be in effect and the mayor of said city shall make such adjustments in the personnel and assignments of election officers as may be necessary.

"Section 3. This act shall be submitted to the voters of the city of Peabody for acceptance at the municipal election to be held in said city in the year nineteen hundred and sixty-five in the form of the following question, which shall be placed upon the official ballot to be used at said election: -- `Shall an act passed by the General Court in the year nineteen hundred and sixty-five entitled "An Act changing the boundaries of the wards of the city of Peabody", be accepted?' If a majority of the votes in answer to said question is in the affirmative, this act shall there-upon take full effect, but not otherwise."

The order recites that members of the city council of Peabody are elected one from each ward and four at large (but see Sp. St. 1916, c. 300, Section 5, as amended by St. 1961, c. 234); that the city council failed to make a new ward division under G. L. c. 54, Section 1; that over-representation

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exists for some citizens as a result of the present division into wards; and that "[g]rave doubt exists as to the constitutionality of said bill, if enacted into law with the amendments adopted by the Senate or with the amendments presently pending in the House."

The questions are:

"1. Would it be constitutionally competent for the General Court to enact legislation providing for a new division of the territory of said city into wards which would take effect only if accepted by the voters of said city substantially as provided in the Senate amendments, particularly in view of the unequal number of voters in the present wards and of the Opinion of the Justices, 254 Mass. 617?

"2. Would it be constitutionally competent for the General Court to enact legislation dividing the territory of said city into wards to take effect as of December thirty-first, nineteen hundred and sixty-four and providing that the city clerk report the results of the special enumeration taken in the current year on the basis of such division?

"3. Would it be constitutional to rearrange the census data taken as of January first, nineteen hundred and sixty-five in each dwelling place and building in the city of Peabody so as to reflect the number of voters in new wards designated by the General Court after said date?"

1. The Senate amendments of House No. 3495, Section 2 and Section 3, would permit the voters of Peabody to provide for the use of the six new wards in local elections after the 1965 election, but would perpetuate, until the apportionment after the 1975 census, the former seven wards for State elections. This would mean also that the old ward lines would prevail for the apportionment of voters, due to be made following the 1965 enumeration, among representative, senatorial, and councillor districts under arts. 21, 22, and 71 of the Amendments to the Constitution of the Commonwealth. See Moran v. Secretary of the Commonwealth, 347 Mass. 500, 501-502, fn. 2. It would mean that for a

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number of years many voters would be listed for State elections and primaries in wards different from those in which they would be listed for voting in local elections. See Lamson v. Secretary of the Commonwealth, 341 Mass. 264, 278-279. This complicated procedure, we assume, was deemed constitutionally necessary because of the language in Opinion of the Justices, 142 Mass. 601. For reasons stated below we are of opinion that the Constitution does not so require. Question 1, however, raises directly only the constitutionality of the option given to the voters to accept or reject the creation of the six new wards, and the reapportionment involved therein.

The General Court under the Constitution of the Commonwealth may create wards or provide for their creation. General Laws c. 54, Section 1, provides: "In nineteen hundred and twenty-four, and every tenth year thereafter, in December, a city, by vote of its city council, may make a new division of its territory into such number of wards as may be fixed by law. The boundaries of such wards shall be so arranged that the wards shall contain, as nearly as can be ascertained and as may be consistent with well defined limits to each ward, an equal number of voters. The city clerk shall forthwith give written notice to the state secretary of the number and designations of the wards so established, together with an official copy of the description of said wards." This statutory procedure may be superseded or modified. See Lamson v. Secretary of the Commonwealth, 341 Mass. 264, 278; St. 1954, c. 665. Making the proposed statute effective only upon its acceptance by the voters of Peabody is within the competence of the Legislature. See Graham v. Roberts, 200 Mass. 152, 157-158; Brucato v. Lawrence, 338 Mass. 612, 614-616. In Opinion of the Justices, 254 Mass. 617, there is no indication of any constitutional impediment to what is proposed. The issue there was whether the constitutional provisions for a referendum (see art. 48 of the Amendments, The Referendum) applied to a bill for reapportionment under art. 22 of the Amendments.

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We deem it appropriate to invite attention to an issue which may be presented if the voters of Peabody should reject the proposed bill, thus leaving unchanged the serious inequalities in the city elections of council members caused by the present ward lines. A question then might arise under the Fourteenth Amendment of the Constitution of the United States whether there was a denial of equal protection of the laws to voters adversely affected by the uneven representation. See Baker v. Carr, 369 U.S. 186, 208-237; Reynolds v. Sims, 377 U.S. 533. It would then be possible, of course, for the Legislature to avoid any such question by adopting a statute, not subject to local rejection, containing essentially the provisions of the present bill as now proposed to be amended in the House. Subject to this caveat, we answer question 1, "Yes."

2. In Opinion of the Justices, 142 Mass. 601, the Justices were of the view that art. 21 and art. 22 of the Amendments required that the Commonwealth be divided by the General Court into representative and senatorial districts according to the boundaries and the wards and towns thereof as they existed at the time prescribed for the enumeration and that intervening new wards must be disregarded. They noted (p. 605) that "the Constitution does not furnish . . . the means of ascertaining the number of voters who resided in the new town or ward . . . [at the time fixed for the enumeration]" and that the "official returns . . . do not show" the voters of new wards and towns. The Justices said that the Legislature "might perhaps, by other means, . . . ascertain approximately the number, but this would be a violation of the provision that the official enumeration shall determine the apportionment." We think these objections are sufficiently met by Section 2 of the bill as proposed in the pending House amendment. The official returns of the voters of the new wards will be those reported by the city clerk. The relisting of voters by areas to conform to the new ward lines is a ministerial act, no more subject to error than the allocation of voters to the existing wards. We assume that, as implied

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in question 3, the 1965 enumeration shows the addresses of the voters listed. In respect of wards, art. 21 and art. 22 provide only that wards are not to be divided. This ensures that the decennial reapportionments required by these articles will not group voters differently for State elections than for local elections, and thus avoids the complication of voting procedures otherwise possible or likely. See Lamson v. Secretary of the Commonwealth, 341 Mass. 264, 278-279. Had the city council of Peabody created new wards in 1964 in accordance with G. L. c. 54, Section 1, this purpose would of course have been fully served. The purpose of these articles in respect of wards will be served equally well, however, by a statute whereby the Legislature divides the city into wards nunc pro tunc, as of December 31, 1964. This will be the effect of House No. 3495 if it is enacted with the amendment now pending in the House. This is an appropriate implementation of the basic constitutional purpose and well within the power of the General Court. See Opinion of the Justices, 220 Mass. 609, 612; Donnelly v. Dover-Sherborn Regional Sch. Dist. 341 Mass. 497, 501.

We answer question 2 and question 3, "Yes."

RAYMOND S. WILKINS

JOHN V. SPALDING

ARTHUR E. WHITTEMORE

R. AMMI CUTTER

PAUL G. KIRK

JACOB J. SPIEGEL

PAUL C. REARDON