THE FIRST NATIONAL BANK OF BOSTON & others vs. ATTORNEY GENERAL.

OPINION OF TAURO, C.J. (Reardon, J., concurring) The plaintiffs [Note 1] in their bill for declaratory relief allege that they intend to expend moneys, for newspaper advertisements and similar publicity, in an effort to persuade the voters of Massachusetts to defeat the proposed constitutional amendment to be submitted to the voters in a referendum question at the general election on November 7, 1972. [Note 2] The proposed amendment would grant the General Court the authority to enact a graduated income tax. The bill further alleges that under the 1972 amendment to G. L. c. 55, Section 7 ("political contributions" statute),

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they are forbidden to expend moneys for any such purpose. [Note 3] The defendant, the Attorney General of the Commonwealth, has stated that if the plaintiffs expend any such sums he would prosecute them under the said statute. The plaintiffs allege that the statute, in its present amended form, is unconstitutional on its face and as applied to them, and seek a declaration to that effect.

The case is submitted to us on the pleadings and on a statement of agreed facts and we will consider the case on this record as a case stated.

The plaintiffs [Note 4] can be described briefly as follows: The

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plaintiff banks are engaged in the county of Suffolk in the business of retail, commercial and other forms of banking activities. These include, but are not limited to, maintaining savings and checking accounts for the benefit of both individual and corporate depositors, making loans to individuals and corporations, acting as trustee for the benefit of beneficiaries designated by their customers, acting as transfer agent for certain publicly held corporations and performing other services normally associated with the banking business. John Hancock is a mutual life insurance company engaged principally in life insurance underwriting. Many of its policyholders are residents of Massachusetts. A portion of John Hancock's assets are invested in real estate located within the Commonwealth of Massachusetts. In order to conduct its business John Hancock relies on the services of a group of high level management personnel. John Hancock employs 9,618 persons in Massachusetts. Wyman-Gordon is a business corporation engaged in the business of die forging, utilizing highly sophisticated metal forming techniques. Wyman-Gordon principally serves the aircraft and automotive industries. It has plants in Worcester, Grafton and Millbury, Massachusetts, and employs approximately 2,500 persons in Massachusetts. The plaintiffs believe that because of their far reaching business relationships within Massachusetts, the proposed constitutional amendment, if enacted, would materially affect their business interests.

I. Are Plaintiff Corporations Materially Affected by the Proposed Constitutional Amendment?

Prior to its 1972 amendment, G. L. c. 55, Section 7, did not prohibit a corporation from expending or contributing "any money or other valuable thing for the purpose of . . . affecting the vote on any question submitted to the voters" provided the question materially affected the property, business or assets of the corporation. In Lustwerk v. Lytron, Inc. 344 Mass. 647, 653, we held that a

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question to be submitted to the voters at a State election, proposing a constitutional amendment granting the Legislature the power to impose a graduated income tax on either corporations or individuals, was a question materially affecting the property, business or assets of a Massachusetts business corporation. Expenditures by such a corporation for the purpose of influencing the voters on that proposed constitutional amendment were not, therefore, prohibited by c. 55, Section 7.

The effect of the language of the proposed constitutional amendment in the Lustwerk case, supra, [Note 5] is very similar to that of the language of the constitutional amendment to be put to the voters on November 7, 1972. [Note 6] The proposed constitutional amendment would authorize the Legislature to impose a graduated tax on individuals and corporations. [Note 7] The plaintiffs contend that the potential power to impose a graduated income tax on corporations and individuals would materially affect their business and property. They maintain that such a power if enacted would discourage executives from settling or remaining in the State, alter the plaintiffs' wage and

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compensation structures, shrink total bank deposits and cause a great decline in the State's economic climate to the detriment of the plaintiffs' own business. Whether or not all of the plaintiffs' predictions concerning the future effects of the imposition of such taxes are accurate is not decisive. Indeed it may be that the Legislature will never exercise such power even if granted by the people. However, it is reasonable to conclude on the record before us that the proposed amendment, like its predecessor in the Lustwerk case, supra, at 651, materially affects the property, business or assets of the plaintiff corporations and thus the plaintiffs have reasonable justification for believing that the amendment would so affect them.

II. What was the Legislature's Intent in Enacting the 1972 Statutory Amendment to G. L. c. 55, Section 7?

The rationale of the Lustwerk decision, supra, would have left the plaintiffs in the instant case free to publicize their views upon the proposed constitutional amendment. On June 20, 1972, however, the Legislature amended c. 55, Section 7, by inserting, after the first sentence of Section 7, the following sentence: "No question submitted to the voters concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation." [Note 8]

On its face, it would appear that the Legislature intended this statutory amendment to apply to any referendum question "concerning" taxes on individuals, regardless of whether the precise question put to the voters also concerns the taxation of other entities. Since the proposed constitutional amendment is obviously a question "concerning the taxation of the income . . . of individuals," this interpretation of the Legislature's intent in my view requires us to reach the constitutional questions raised by the plaintiffs. This conclusion is

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based on the premise that the 1972 statutory amendment would prevent the plaintiffs from expressing their views to the public about the November 7 referendum question.

However, Justice Quirico suggests in his concurring opinion (joined by Braucher, J. and Kaplan, J.) that the Legislature intended its 1972 statutory amendment to apply only to referendum questions which solely concern the taxation of individuals. This interpretation of legislative intent leaves the plaintiffs free to expend moneys on the referendum question submitted to the voters on November 7 because that question does not solely concern taxes on individuals.

The strongest reason to accept such a construction is the constitutional rule of adjudication which obligates courts in construing legislative enactments "to take care to interpret them so as to avoid a danger of unconstitutionality." United States v. Congress of Industrial Organizations, 335 U.S. 106, 120-121. The United States Supreme Court has adopted this approach to avoid ruling on the constitutionality of the Federal Corrupt Practices Act. [Note 9] On three separate occasions in the last twenty-five years, the Supreme Court has been asked to decide the constitutionality of that act. On all three occasions, it has avoided reaching the constitutional questions by narrow and sometimes strained statutory construction. United States v. Congress of Industrial Organizations, 335 U.S. 106. United States v. International Union United Auto., Aircraft & Agricultural Implement Wkrs. of Am. (UAW -CIO), 352 U.S. 567, Pipefitters Local Union No. 562 v. United States, 407 U.S. 385. Justice Frankfurter used this doctrine of judicial self-restraint to support the court's decision in United States v. Congress of Industrial Organizations,

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supra. He relied chiefly on Chief Justice Marshall's observation that "`[n]o questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of a legislative act. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed.'" Quoted at 335 U.S. 125, from Ex parte Randolph, 20 Fed. Cas. No. 11, 558 at 254, 2 Brock. 447, 478-479 (C. C. D. Va. 1833).

However, the United States Supreme Court has also acknowledged that the avoidance of constitutional questions is discretionary and should be used only in the proper circumstances. See Clay v. Sun Ins. Office Ltd. 363 U.S. 207. It would be an abnegation of our judicial responsibility to give an unreasonable statutory construction of this 1972 amendment merely to avoid reaching difficult constitutional questions. Thus, the question we must answer before invoking the doctrine of judicial self-restraint is whether this statutory amendment is reasonably susceptible of two interpretations. See Knights Templars' & Masons' Life Indem. Co. v. Jarman, 187 U.S. 197, 205. Is the construction which, in effect, reads the word "solely" into the statutory language to make the amendment apply only to referendum questions pertaining to taxes on individuals a reasonable one? An analysis of the Legislature's intent in passing this amendment clearly indicates that such a construction is unreasonable.

The Legislature's intent in passing this statutory amendment was to prevent any corporation from trying to affect the vote on the referendum question which will be submitted to the voters on November 7, 1972. Realizing that the Lustwerk case would allow corporations to address the voters on questions which concerned both corporate and individual taxation, the Legislature declared the 1972 statutory amendment to be an emergency law which would be immediately enforceable because

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"[t]he deferred operation of this act would tend to defeat its purpose, which is to further regulate those questions submitted to the voters upon which certain corporations may influence or affect the vote." St. 1972, c. 458. Obviously, if the Legislature had intended this amendment to apply to questions solely concerning taxation of individuals, there would have been no reason to declare the amendment an emergency law because the November 7 referendum question concerns both the power to tax individuals and other legal entities on a graduated basis. [Note 10]

We have stated repeatedly that a construction of a statute which would completely negate legislative intent is to be avoided. Assessors of Newton v. Pickwick Ltd. Inc. 351 Mass. 621. A statutory construction which limits the 1972 amendment's application to questions solely involving individual taxation has exactly this effect. The use of the word "concerning" instead of "solely concerning" reflects the Legislature's intent to have the amendment apply to referenda questions which include other matters beyond the taxation of individuals. [Note 11] Limiting the 1972 statutory amendment's effect by interpreting it to apply to questions solely concerning individual taxes constitutes an impermissible judicial redrafting of the statute which invades the Legislature's prerogative. [Note 12] Such a construction also produces the

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absurd result of an emergency resolution which has no impact on the very referendum question it was designed

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to affect by its immediate enactment. This court has repeatedly stated that it will not attribute to the Legislature an intention to accomplish an absurd result unless clearly required to do so by the language of the statute. Johnson v. Commissioner of Pub. Safety, 355 Mass. 94, 99. Certainly, the language of this statutory amendment does not compel such an absurd result.

Judicial self-restraint in reaching constitutional attacks on legislative amendments and judicial rules of statutory construction are both predicated on our desire to respect the Legislature's special prerogative in enacting legislation. I feel that the purposes underlying both these doctrines will be ill served by a ruling which avoids reaching a constitutional question by giving a strained and unreasonable construction of the statute which negates its clear intent. Therefore, I conclude that the clear intent of the 1972 statutory amendment was to negate the effect of the Lustwerk case, supra, and to reimpose a total prohibition on corporate expenditures used to influence the vote on referendum questions that concern the imposition of a graduated tax on individuals, regardless of whether the question also concerns the taxation of the incomes of other entities. Thus, the plaintiffs' intended expenditures on the proposed constitutional amendment are prohibited by the 1972 statutory amendment.

III. Is the Plaintiffs' Expression of their Views on the Proposed Constitutional Amendment Protected by the First Amendment to the United States Constitution?

Since corporations must usually expend moneys to communicate their views, the 1972 statutory amendment's prohibition effectively prevents the plaintiffs from expressing their views to the electorate on the proposed referendum. The plaintiffs contend, therefore, that the 1972 statutory amendment as applied to them and on its face violates the First Amendment to the United States

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Constitution [Note 13] and arts. 16 [Note 14] and 19 [Note 15] of the Declaration of Rights of the Massachusetts Constitution.

The Attorney General argues that the plaintiffs, because they are artificial legal entities, are not protected by the First Amendment as applied to the States through the Fourteenth Amendment. The United States Supreme Court has, however, held that although corporations are not "citizens" within the privileges and immunities clause of Section 1 of the Fourteenth Amendment, Orient Ins. Co. v. Daggs, 172 U.S. 557, 561 (see Waters-Pierce Oil Co. v. Texas, 177 U.S. 28, 45; Hemphill v. Orloff, 277 U.S. 537), they are "persons" within the meaning of the due process clause of Section 1 of the Fourteenth Amendment. See, generally, Covington & Lexington Turnpike Rd. Co. v. Sandford, 164 U.S. 578, 592; Smyth v. Ames, 169 U.S. 466, 522.

The Attorney General relies on some Supreme Court and Federal cases which seem to indicate that artificial persons such as corporations are not specifically protected by the liberty clause of the Fourteenth Amendment, even though they are "persons" protected by the property clause of the due process provisions. [Note 16] See, e.g., Northwestern Natl. Life Ins. Co. v. Riggs, 203 U.S. 243, 255; Western Turf Assn. V. Greenberg, 204 U.S. 359, 363; Hague v. Committee for Industrial Organization, 307 U.S. 496, 527 (opinion of Mr. Justice Stone); Hallmark

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Prod. Inc. v. Mosley, 190 F. 2d 904, 909 (8th Cir.). The Attorney General concludes from these cases that since a corporation cannot claim protection under the term "liberty" in the due process clause, a corporation cannot claim a right to freedom of expression, because that is a liberty protected by the First Amendment, not a property right. We cannot agree.

The Supreme Court has channeled First Amendment liberties through the Fourteenth Amendment to protect some corporations. In Grosjean v. American Press Co. Inc. 297 U.S. 233, 244, the court stated: "That freedom of speech and of the press are rights of . . . fundamental character, safeguarded by the due process of law clause of the Fourteenth Amendment against abridgement by state legislation, has likewise been settled by a series of decisions of this Court beginning with Gitlow v. New York, 268 U.S. 652, 666, and ending with Near v. Minnesota, 283 U.S. 697, 707. . . . Appellant contends that the Fourteenth Amendment does not apply to corporations; but this is only partly true. A corporation, we have held, is not a `citizen' within the meaning of the privileges and immunities clause. Paul v. Virginia, 8 Wall. 168. But a corporation is a `person' within the meaning of the equal protection and due process of law clauses, which are the clauses involved here."

We have also afforded certain corporations First Amendment protection. Brattle Films, Inc. v. Commissioner of Pub. Safety, 333 Mass. 58. Krebiozen Research Foundation v. Beacon Press, Inc. 334 Mass. 86. In the past we have spoken broadly of the liberty of the press to be afforded corporations. In Bowe v. Secretary of the Commonwealth, 320 Mass. 230, we addressed ourselves to the question whether a labor union enjoys the same liberty of the press as individuals. The case was decided under arts. 16 and 19 of the Massachusetts Declaration of Rights but the freedoms in question were held comparable to First Amendment freedoms. We said, "The liberty of the press is enjoyed, not only by individuals, but also by associations of individuals such as labor

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unions (Hague v. Committee for Industrial Organization, 307 U.S. 496), and even by corporations, although a corporation is not a `citizen' and must find its protection against abridgement of its liberty by State action in the due process clause . . . of the Fourteenth Amendment" (emphasis supplied). [Note 17] The Bowe case, supra, at 251.

The Attorney General correctly points out that in those cases where corporations have been afforded First Amendment protection they have been engaged in the business of communication, such as the publication and distribution of newspapers, books, films and magazines. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495. New York Times Co. v. Sullivan, 376 U.S. 254, 266. But we believe that freedom of speech and freedom of the press in their application to corporate entities cannot be so strictly limited. Moreover, the United States Supreme Court has indicated that the prospect of profit gained from a corporation's communication will not oust that communication from First Amendment protection: "It is urged that motion pictures do not fall within the First Amendment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment." Joseph Burstyn, Inc. v. Wilson, supra, 501-502. The mere fact that views on referenda issues materially affecting the plaintiffs' business emanate from corporations engaged in general commercial pursuits (as opposed to corporations in the business of communications) should not totally preclude the expression of these views.

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It is true, of course, that there is a distinction between the plaintiffs' business pursuits and pursuits of corporations in the business of communication. But we believe that it is a distinction that does not defeat the plaintiffs' right to First Amendment protection, at least in circumstances where they seek to express their views to the public on referenda issues that materially affect them. We need not decide now whether in all instances a business corporation can claim the same First Amendment protection afforded individuals or corporations primarily engaged in communications.

IV. Is the Plaintiffs' Expression of their Views on the Proposed Constitutional Amendment Protected by Art. 16 of the Massachusetts Declaration of Rights?

The plaintiffs also claim the protection of arts. 16 and 19 of the Declaration of Rights of the Constitution of this Commonwealth. Since we find protection for the plaintiffs under art. 16, we shall not address ourselves to the type of protection offered by art. 19. Article 16 declares: "The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged." In Bowe v. Secretary of the Commonwealth, 320 Mass. 230, the court had before it an initiative petition that sought to amend G. L. c. 55, Section 7, to include labor unions within its scope. Although the case concerned the addition of labor unions to the statute, one of the results of the proposed legislation was declared to be: "that a corporation . . . would no longer have a right to make any political contribution for the purpose of influencing or affecting the popular vote on any question submitted to the voters even though that question might materially affect the property, business or assets of the corporation." The Bowe case, supra, at 234. The proposed law, which admittedly only directly concerned a labor union, was held inconsistent with the liberty of the press and the right of assembly under arts.

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16 [Note 18] and 19 of the Declaration of Rights and was thus excluded from the popular initiative. There is no doubt that the effect on the plaintiffs of the 1972 statutory amendment to G. L. c. 55, Section 7, so far as it affects the present case, is precisely as stated in the Bowe case, supra.

In the Bowe case, supra, at 249, we said that the freedoms guaranteed to labor unions under arts. 16 and 19 were "comparable to the rights of `freedom of speech' and `of the press,' and the right of the people `peaceably to assemble,' declared in the First Amendment to the Constitution of the United States, and held to be part of the `liberty' protected by the Fourteenth Amendment against abridgment by a State without due process of law." We see no reason why such freedoms should not also be afforded to the corporations in the instant case. [Note 19] Whether the freedom of press and expression guaranteed to corporations under the First Amendment is, in all respects, similar to the freedom guaranteed them under art. 16 of the Declaration of Rights, [Note 20] we need not decide. In the circumstances of this case we hold that the safeguards of art. 16 apply to the plaintiffs.

V. Does the 1972 Statutory Amendment Exceed the Legislature's Power to Regulate Elections when First Amendment Freedoms are at Stake?

The plaintiffs contend correctly that First Amendment protections are preferred to the extent that the usual presumption of validity that attaches to legislation is not operative when the Legislature seeks to curb free expression. See, generally, United States v. Congress of Industrial

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Organizations, 335 U.S. 106, 140-141 (Rutledge, J., concurring). We must resolve the question whether the language of the recent amendment to G. L. c. 55, Section 7, is sufficiently narrow so that it represents a legitimate legislative purpose consistent with the State's compelling interest to guarantee free elections or whether the statutory amendment unnecessarily encroaches upon guaranteed corporate constitutional freedoms.

The Legislature has the power to regulate elections in order to prevent bribery, fraud and corruption to the end that the people's right to vote may be protected. Article 9 of the Declaration of Rights declares that "All elections ought to be free . . .." In the Bowe case, supra, we indicated that First Amendment freedoms are subject to "reasonable regulation in the interest of the public." 320 Mass. at 250. But such regulation must be narrowly drawn to meet the precise evil sought to be curbed. Cantwell v. Connecticut, 310 U.S. 296.

In the analogous area of the Federal Corrupt Practices Act (18 U. S. C. Section 610 [1970]) the Supreme Court of the United States has avoided ruling directly upon the constitutionality of the act. United States v. Congress of Industrial Organizations, 335 U.S. 106. United States v. International Union United Auto., Aircraft & Agricultural Implement Wkrs. of Am. (UAW-CIO), 352 U.S. 567. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385. Some members of the court have, however, offered their views on the constitutionality of the Corrupt Practices Act [Note 21] when applied to curb the activities of labor unions. In United States v. Congress of Industrial Organizations, supra, at 155, Justice Rutledge, in his concurring opinion in which three other Justices joined, declared: "A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed

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and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment."

Justice Rutledge also questioned the constitutionality of the act's prohibition on expenditures when applied to corporations, 335 U.S. 106, 154-155. His statement refutes the Attorney General's argument that the plaintiffs as artificial entities are not entitled to First Amendment protection. "There are of course important legal and economic differences remaining between corporations and unincorporated associations, including labor unions, which justify large distinctions between them in legal treatment. But to whatever extent this may be true, it does not follow that the broadside and blanketing prohibitions here attempted in restriction of freedom of expression and assembly would be valid in their corporate applications. Corporations have been held within the First Amendment's protection against restrictions upon the circulation of their media of expression. Grosjean v. American Press Co. Inc. 297 U.S. 233. It cannot therefore be taken, merely on legislative assumption, practice or judgment, that restrictions upon freedoms of expression by corporations are valid." We agree.

In United States v. International Union United Auto., Aircraft & Agricultural Implement Wkrs. of Am. (UAW-CIO), 352 U.S. 567, 598, Justice Douglas in his dissenting opinion in which Chief Justice Warren and Justice Black joined stated: "The Act, as construed and applied, is a broadside assault on the freedom of political expression guaranteed by the First Amendment. It cannot possibly be saved by any of the facts conjured up by the Court." He recognized that the logic of his argument was not restricted to the act's application to labor unions alone. "Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action. But these are not justifications

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for withholding First Amendment rights from any group -- labor or corporate" (emphasis supplied). 352 U.S. at 597.

In United States v. Congress of Industrial Organizations, 335 U.S. 106, 121, the United States Supreme Court construed the act's prohibitions not to encompass the distribution of a union "in-house" newspaper, and noted: "If Section 313 [predecessor to Section 610] were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders or customers of danger or advantage to their interests from the adoption of measures, or the election to office of men espousing such measures, the gravest doubt would arise in our minds as to its constitutionality" (footnote omitted).

We have previously recognized the necessity of protecting freedom of press and expression on issues of public concern. In Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 252, we said: "One of the chief reasons for freedom of the press is to insure freedom, on the part of individuals and associations of individuals at least, of political discussion of men and measures, in order that the electorate at the polls may express the genuine and informed will of the people."

The people's right to cast their votes freely is the correlative of the Legislature's power to ensure the freedom of elections. The plaintiffs' right not to be silenced completely on referenda issues that materially affect them promotes the people's right to exercise an informed will at the polls.

We believe that corporations are not entirely unprotected by the First Amendment in the circumstances before us. The exercise of an informed vote by the electorate is essential to the freedom of elections. United States v. Congress of Industrial Organizations, 335 U.S. at 144 (Rutledge, J., concurring). Assuming arguendo that massive influence of the vote from any one sector of the society is an evil to be restrained, nevertheless any law that seeks to curtail a source of expression on election

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questions must be narrowly drawn. It must provide the least restrictive alternative available to accomplish its ends. See United States v. Congress of Industrial Organizations, supra, at 146 (Rutledge, J., concurring). Although a corporation's expression on political issues is subject to some restraint, we hold that in the absence of a compelling State interest showing that any amount of corporate expression, however small, on election questions results in undue influence over the electoral process, corporations may not be totally prohibited from expressing their views on issues that materially affect them. The voters have a right to be informed on referenda issues. The statutory amendment does not meet the requirements of a narrowly drawn law, circumscribing only the evil to be curtailed.

On the record before us we do not reach the general question of the manner, mode and extent to which corporate expression may be limited to ensure free elections. [Note 22] In the circumstances of the case we hold that the 1972 amendment to G. L. c. 55, Section 7, which effectively prevents any expression by the plaintiffs on the proposed constitutional amendment amounts to impermissible censorship and thus encroaches upon the plaintiffs' freedom of expression in violation of the First and Fourteenth Amendments to the United States Constitution and art. 16 of the Declaration of Rights of the Massachusetts Constitution.

We have thus far addressed ourselves only to the constitutionality

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of the 1972 amendment of G. L. c. 55, Section 7. By striking down that amendment alone and leaving the remainder of the statute operative (Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 81) the plaintiffs no longer suffer threat of prosecution for their intended actions. Since we have ruled that the plaintiffs' business interests are reasonably considered to be materially affected by the proposed constitutional amendment, the remaining statute provides no curb to the plaintiffs' proposed publication of their views on the forthcoming referendum. Having resolved the controversy before us we need not, at this time, consider the plaintiffs' attacks upon the face of the statute.

As we noted in the Bowe case, supra, at 245-246, "In many cases it would be difficult or even impossible to say abstractly and unconditionally that a statute is or is not constitutional. In part its provisions may be unconsitutional, yet the remainder may be constitutional. . . . A statute may be unconstitutional as applied to some states of fact, but constitutional as applied to others. . . . Only when the impact of a statute upon particular indivuals, who have both the opportunity and the incentive to defend their rights by argument, and upon a set of definite facts established after genuine controversy, has been shown, can a court decide a constitutional question with confidence that relevant considerations have not been overlooked."

Having struck down the 1972 statutory amendment as constitutionally offensive, we no longer have before us proposed activity that is prohibited by the statute and the controversy no longer exists. Our statutory authority to give declaratory relief under G. L. c. 231A, Section 1, inserted by St. 1945, c. 582, Section 1, is circumscribed by the requirement that "an actual controversy has arisen and is specifically set forth in the pleadings." We think that it is clear from the pleadings that the actual controversy between the parties focused specifically on the plaintiffs' intended publication of their views on the proposed constitutional amendment. The plaintiffs do not indicate

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that they wish to contribute to political campaigns generally or to aid, promote or prevent the nomination or election of any person to public office, nor indeed do they indicate that they wish to violate any of the provisions of Section 7 except the 1972 amendment which we have held unconstitutional. Questions as to the constitutionality of c. 55, Section 7, as it now remains there may be, but we reserve our consideration or decision of such questions for an appropriate case. [Note 23]

QUIRICO, J. (with whom Justices Braucher and Kaplan join, concurring in the result) General Laws c. 55, Section 7, as appearing in St. 1946, c. 537, Section 10, provided in part that "no business corporation incorporated under the laws of . . . the commonwealth . . . shall directly or indirectly give, pay, expend or contribute, or promise to give, pay, expend or contribute, any money or other valuable thing for the purpose of . . . influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation" (emphasis supplied). In Lustwerk v. Lytron, Inc. 344 Mass. 647, 648, decided in 1962, we held that this statute did not prohibit a corporation from expending money "for the purpose of influencing the voters to vote against the [proposed] so-called graduated income tax amendment" to our Constitution in the election to be held that year. In that opinion we said at 651 that "[t]he proposed constitutional amendment if adopted, in various respects, will give to the Legislature a substantially broader power than now exists to impose income taxes upon corporations and individuals

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within Massachusetts." The proposed constitutional amendment involved in that case was rejected by the people on November 6, 1962.

The people will again be asked to vote on a "so-called graduated income tax amendment" at the election to be held on November 7, 1972. Despite the use of different language in the present proposal, its effect would be the same as that of the 1962 proposal in that both would authorize the Legislature to impose a graduated income tax on individuals and corporations. The plaintiff corporations desire to expend money to influence the vote of the people at the forthcoming election on the question of the adoption or rejection of the proposed amendment. The only thing which has changed since our decision in the Lustwerk case is that St. 1972, c. 458, approved June 20, 1972, with an emergency preamble, amended G. L. c. 55, Section 7, by adding thereto the following: "No question submitted to the voters concerning the taxation of the income, property or transactions of individuals shall be deemed materially to affect the property, business or assets of the corporation." Does the addition of this sentence to Section 7 make any significant difference between the facts involved, the question to be answered, or the result in the Lustwerk case and the present case? In my opinion it does not.

The amendments proposed in both the Lustwerk case and the present case would "give to the Legislature a substantially broader power than now exists to impose income taxes upon corporations" as well as upon individuals (the Lustwerk case at 651). Therefore the constitutional amendment now proposed must be held to be "one materially affecting" the property, business or assets of the plaintiff corporations, within the meaning of the first sentence of G. L. c. 55, Section 7, unless a different conclusion is required by the sentence added to Section 7 by St. 1972, c. 458. In my opinion the statutory amendment does not require a different conclusion.

We must consider the statute as a whole, and try to give effect to all of its provisions, regarding none of them

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as superfluous, "so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature." Bolster v. Commissioner of Corps. & Taxn. 319 Mass. 81, 85. Both before and after the 1972 amendment, Section 7 expressly recognized the right of a corporation to expend money to influence the vote of the people on a question "materially affecting any of the property, business or assets of the corporation." The 1972 amendment which added a sentence to Section 7 appears to have been intended to preclude any claim by a corporation that it would be entitled to expend money to influence the vote of the people on a question which, although expressly limited to "the taxation of the income, property or transactions of individuals," in fact affects "the property, business or assets of the corporation." The plaintiffs make just such a claim here, viz., that the imposition of a graduated income tax on their officers and employees, particularly those in the higher income brackets, and on their stockholders or policyholders would materially affect "the property, business or assets of the corporation[s]." In my opinion the right of the plaintiff corporations to make the proposed expenditures which are at issue does not derive from or depend on this alleged indirect effect which a graduated income tax on individuals might have on the corporate property, business or assets, but rather it exists by virtue of the direct effect which a graduated income tax on corporations might have thereon. The 1972 preclusion of corporate authority to expend money on questions having only such an indirect effect on their property, business or assets did not in any way, or to any extent or degree, either repeal or diminish the corporate right, recognized in another portion of the statute, to expend money to influence the vote of the people on questions which might directly affect the corporate property, business or assets, even if the expenditure involves comment on the taxation of individuals.

This interpretation of G. L. c. 55, Section 7, as amended

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through St. 1972, c. 458, makes it unnecessary to consider or pass upon the serious constitutional attack leveled against it by the plaintiffs on the basis of their assumption that it should be construed to prohibit the expenditures which they desire to make. See Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 249-252; Rosenthal, Federal Regulation of Campaign Finance: Some Constitutional Questions (Study No. 18, Citizens' Research Foundation); Comment, Free Speech Implications of Campaign Expenditure Ceilings, 7 Harvard Civil Rights -- Civil Liberties L. Rev. 214. The Supreme Court of the United States has on several occasions avoided ruling directly upon the constitutionality of the Federal Corrupt Practices Act (18 U. S. C. Section 610 [1970]), which presents comparable issues. United States v. Congress of Industrial Organizations, 335 U.S. 106, 110. United States v. International Union United Auto., Aircraft & Agricultural Implement Wkrs. of Am. (UAW-CIO), 352 U.S. 567, 590-592. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 400.

In Ashwander v. Tennessee Valley Authy. 297 U.S. 288, Mr. Justice Brandeis in a concurring opinion (pp. 346-348) set forth a "series of rules" which he said that court "developed, for its own governance in the cases confessedly within its jurisdiction, . . . under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Included in the rules were the following: "4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. . . . 7. `When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is riased, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which

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the question may be avoided.' Crowell v. Benson, 285 U.S. 22, 62."

These same rules of statutory construction have long been applied by this court. This is an appropriate case for the application of this self-imposed judicial inhibition against announcing constitutional rulings which are not "absolutely necessary to a decision of the case." Burton v. United States, 196 U.S. 283, 295. United States v. International Union United Auto., Aircraft & Agricultural Implement Wkrs. of Am. (UAW-CIO), 352 U.S. 567, 590. We have said frequently that a statute "will not be declared void unless it is impossible by any reasonable construction to interpret its provisions in harmony with the Constitution." Perkins v. Westwood, 226 Mass. 268, 271, and cases cited. Supreme Malt Prod. Co. Inc. v. Alcoholic Beverages Control Commn. 334 Mass. 59, 61. The rule has also been said to be that "where a statute may be construed as either constitutional or unconstitutional, a construction will be adopted which avoids an unconstitutional interpretation." Demetropolos v. Commonwealth, 342 Mass. 658, 660. In Opinion of the Justices, 341 Mass. 760, 785, we said: "In the light of all these principles, to avoid serious constitutional doubts . . . we are constrained to interpret the second sentence of the proposed Section 6A sufficiently narrowly to ensure its constitutional validity." See Ferguson v. Commissioner of Corps. & Taxn. 316 Mass. 318, 323-324; Bay State Harness Horse Racing & Breeding Assn. Inc. v. State Racing Commn. 342 Mass. 694, 699; Vaughan v. Max's Mkt. Inc. 343 Mass. 394, 397; State Tax Commn. v. Wheatland, 343 Mass. 650, 653-654; Boston Safe Deposit & Trust Co. v. State Tax Commn. 346 Mass. 100, 106; Commonwealth v. Benoit, 347 Mass. 1, 6; Staman v. Assessors of Chatham, 351 Mass. 479, 486-487.

Therefore, I concur with the result accomplished by the order entered by this court on October 13, 1972, to the effect that G. L. c. 55, Section 7, as amended through St. 1972, c. 458, is not effective to prohibit the plaintiffs from making the proposed expenditures which are in issue in

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this case. I do so solely as a matter of interpretation of this statute, without reaching or intimating any opinion on the broad constitutional question whether the Legislature has power to enact statutes either prohibiting or otherwise controlling the expenditure of money by corporations for political purposes. I avoid the strong temptation to engage in a discussion of this interesting constitutional question, not because it is a difficult question, but because it is unnecessary to do so for the decision of this case.