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for active duty, and in such cases is mandatory, and, besides providing a pension for the person retired, is obviously intended to relieve the public service of persons unable to perform the duties required of them. I am therefore of opinion that, with the consent of the Governor, a veteran may be retired, if incapacitated for active duty, without regard to the desire of such veteran in the premises; and while the statute contains no express provision to that effect, I have no doubt that the head of a department may properly request and recommend retirement in such cases.

OF

CONSTITUTIONAL LAW - POLICE POWER REGULATION
SALE OF GOODS, WARES AND MERCHANDISE MADE BY
CONVICT LABOR IN PRISON CONSTITUTION
UNITED STATES

OF THE

COMMERCE CLAUSE.

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A proposed act requiring that all goods, wares and merchandise made by convict labor in any prison, reformatory or jail in this or any other State and brought into this Commonwealth, shall, before being exposed for sale, be marked "Convict Made," and providing that any person offering such goods for sale or having such goods in possession, without the printed label or mark, shall be guilty of a misdemeanor, cannot be justified as a valid exercise of the police power; and since it would constitute a burden or restriction upon interstate commerce, and would therefore be in contravention of the commerce clause (U. S. Const., Art. I., § VIII.) of the Federal Constitution, would therefore be unconstitutional if enacted. 1

Committee

1912

March 8.

Your committee has requested my opinion upon the con- To the stitutionality of House Bill No. 833, entitled "An Act relative on Prisons. to the marking of goods made in penal institutions," and providing, in substance, that all goods, wares and merchandise made by convict labor in any prison, reformatory or jail in this or any other State in which convict labor is employed and imported, brought or introduced into the State of Massachusetts, shall, before being exposed for sale, be branded, labelled or marked "Convict Made;" and that any person offering such goods for sale, or having such goods in possession for that pur

1 See Opinion of the Justices, 211 Mass. 605.

pose, without the brand, label or mark, shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding $1,000 nor less than $50, or by imprisonment for a term not exceeding twelve months or by both fine and imprisonment.

I am of opinion that the proposed bill, if enacted, would be unconstitutional for the reason that it is in contravention of the commerce clause of the Federal Constitution (U. S. Const., Art. I., § VIII) which provides that "the congress shall have power to regulate commerce among the several states, .", since prison-made goods, when brought into the Commonwealth from another State, become articles of interstate commerce, and, as such, may not be discriminated against. Arnold v. Yanders, 56 Ohio, 417. Since, for the reasons which are set forth at length in the opinion of the court in the case of People v. Hawkins, decided by the Court of Appeals of the State of New York (157 N. Y. Rep. 1), the proposed legislation cannot be justified as a valid exercise of the police power, it would constitute a burden or restriction upon interstate commerce, and is therefore unconstitutional.

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The qualifications which shall entitle any person to vote or to be voted for and the right to elect and to be elected to public office are defined in Article IX. of the Declaration of Rights and Articles III., XX. and XXI. of the Articles of Amendment to the Constitution of the Commonwealth.

The conduct of elections may be regulated by the Legislature under the police power for the purpose of providing an easy and reasonable mode of exercising the constitutional right preventing error and fraud and securing order and regularity; but all such regulation must be subordinate to the provisions of the Constitution and cannot add to or diminish the qualifications of a voter as therein prescribed.

Whether or not the provisions of a proposed act which restrict the expenditure of money or the contribution of any other valuable thing in connection with an election by any person whether or not such person is a candidate for public office, to travelling expenses incurred by himself and to expenses for preparing, circulating and filing nomination papers; to forbid, except in cases of age or physical disability, the conveyance of any voter to the polls otherwise than at his own expense, and require that if any person elected to office, or any member or agent, or his campaign committee, or any other person acting in his or their interest or behalf, is convicted of any violation of the law relating to corrupt practices at the primary at which such candidate was named, or at the election at which he was elected, such office shall be vacated and a new election shall be held to fill it, are reasonable and necessary precautions against bribery, fraud and other improper conduct in connection with elections and, therefore, a protection to the constitutional right to elect and to be elected to office, is primarily a question of fact and, therefore, a proper subject for the determination of the Legislature.

It would seem, however, that the enforcement of such stringent regulations as those above described could hardly be held to be a reasonable regulation of the exercise of the right to take part in elections.

A provision in the proposed act requiring that persons who, by reason of age or physical infirmity, are unable to reach the polls without assistance and are, therefore, transported to and from the polls shall, before voting, make a statement under oath of such disability, is clearly unconstitutional as imposing a qualification upon such persons additional to those prescribed by the Constitution.

1912

By an order dated February 27 the Honorable Senate has re- To the Senate. quested my opinion upon four questions of law affecting the March 8. constitutionality of House Bill No. 1360, which is entitled "An

Act relative to election expenses." signed to amend St. 1907, c. 560,

Section 1 of this bill is de-
§ 316, as amended by St.

1911, c. 679, § 1, by striking out the whole of said section and substituting the following section:

No person shall, in order to aid or promote his own or another's nomination or election to a public office, directly or indirectly, himself or through another person, give, pay, expend or contribute, or promise to give, pay, expend or contribute, any money or valuable thing, except for expenses directly incurred and paid by a person for travelling and for purposes properly incidental to travelling, and for preparing, circulating and filing nomination papers; but nothing in this section shall be construed to prohibit a person from making a voluntary payment of money or a voluntary and unconditional promise of payment of money to a political committee for the promotion of the principles of the party which it represents and for expenses properly incidental thereto.

Section 2 of the proposed bill purports to amend St. 1907, c. 560, 317. The section as there set forth, however, has been already amended by St. 1911, c. 679, § 2, and I assume that the proposed bill is applicable to the amended section. The present amendment strikes out the whole of this section and in its place provides that

The mayor of each city and the selectmen of each town of two thousand or more inhabitants in the commonwealth shall, at each primary and election, provide one conveyance for each voting precinct within their jurisdiction, to be used under the direction of the presiding officer at each polling place in transporting to and from the polls such persons only as by reason of age or physical infirmity are unable to reach the same without assistance. A record of all persons so transported shall be kept by the presiding officer, and he shall require from each before voting a statement under oath of such physical disability. No voter shall be conveyed to the polls otherwise than entirely at his own expense except as herein provided.

Section 6 of the proposed bill amends St. 1911, c. 679, § 6, which provides that

If a person elected to public office is convicted of any wilful violation of the law relating to corrupt practices in connection with the primary or election at which he was nominated or elected, his office shall thereby be vacated, and a new election shall be held for the purpose of filling the same.

so that it shall read as follows:

If a person elected to public office, or any member or agent of his campaign committee, or any other person acting in his or their interest or

behalf, is convicted of any violation of the law relating to corrupt practices in connection with the primary or election at which he was nominated or elected, his office shall thereby be vacated, and a new election shall be held for the purpose of filling the same.

The inquiries of the Honorable Senate with relation to the provisions above quoted are as follows:

1. Is the provision in section 1 of the bill printed as House Bill No. 1360 constitutional, which forbids a candidate to incur any expense in order to aid his nomination or election except as provided in lines 12 to 20 of said section?

2. Is the provision in the same section constitutional, which extends the same prohibition to persons not candidates?

3. Is the provision in section 2 of the same bill constitutional, which provides that no voter shall be conveyed to the polls otherwise than entirely at his own expense, except in case of physical inability?

4. Is the provision of section 6 of the same bill constitutional, which provides for vacating an election because of corrupt practices without proof of a candidate's knowledge or consent?

The qualifications which shall entitle any person to vote or to be voted for in this Commonwealth, and the right to elect or to be elected to public office, which is consequent upon such qualifications, are clearly fixed and defined by the Constitution of Massachusetts, and the Legislature cannot add to or alter the former or restrict or destroy the latter. Kinneen v. Wells, 144 Mass. 497, 499. The provisions of the Constitution of the Commonwealth upon this subject are to be found, first, in Article IX. of the Declaration of Rights, which declares that

All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.

and second, in the Articles of Amendment to the Constitution which prescribe the qualifications of voters, to be found in Articles III., XX. and XXXI., of which it is necessary to consider only Article III. This article is as follows:

Every male citizen of twenty-one years of age and upwards, excepting paupers and persons under guardianship, who shall have resided within

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