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ner. Capen v. Foster, 12 Pick. 485, 488; Kinneen v. Wells, 144 Mass. 497; Cole v. Tucker, 164 Mass. 486.
The regulations in the proposed act with respect to the use of voting machines appear to be reasonable and uniform in their application, and are, therefore, open to no objection upon the ground that they constitute an interference with the constitutional right "to elect officers, and to be elected, for public employments." Art. IX., Declaration of Rights. Nor, in my opinion, do the powers and duties vested in and imposed upon the State Ballot Law Commission involve a delegation of the legislative authority which would be objectionable upon constitutional grounds. See Art. XXX., Declaration of Rights.
It is well established in this Commonwealth that while the Legislature may not delegate the general power to make laws conferred upon it by the Constitution, it may leave to a subordinate tribunal the determination of such details as the Legislature cannot well determine for itself in the carrying out of a legislative act. Brodbine v. Revere, 182 Mass. 598, 602; Commonwealth v. Sisson, 189 Mass. 247.
In the present instance, the examination of the various kinds of mechanical appliances for the purpose of determining which and how many of them conform to the requirements of the laws of the Commonwealth and may, therefore, be used in primaries and elections, is clearly a detail of administration the determination of which may properly be delegated by the Legislature to a subordinate tribunal.
In reply to your second inquiry, I am of opinion that the proposed act as submitted to me indirectly requires the State Ballot Law Commission to approve only such machines as fulfill the requirements of the primary and election law, but does not directly do so, since they are required only to "make and file with the secretary of the commonwealth their report on such machines, ballot boxes and counting apparatus as in their judgment conform to the requirements of law." I suggest in the interests of clearness that this provision be made to read that "they shall file with the secretary of the commonwealth their approval in writing of all machines, ballot boxes and counting
apparatus which in their judgment conform to the requirements of law," and that the words "and of the preceding" be inserted before the word "section" in line 15 of section 2 of the proposed act.
BOARD OF RAILROAD COMMISSIONERS - PROCEDURE
The provision of St. 1906, c. 463, Part III., § 157, that the Supreme Judicial Court or the Superior Court shall have jurisdiction in equity "to review, annul, modify or amend the rulings of any State board or commission relative to street railways . . ." does not require the Board of Railroad Commissioners to make formal rulings upon questions of law or issues of fact with respect to which the performance of their duties does not call upon them to make a decision.
If, however, the determination of a question of law is involved in the decision of the Board upon any matter of administration properly before them, they may express such determination in the form of a ruling.
You have requested my opinion as to whether it is consistent To the Board with the functions of the Board of Railroad Commissioners to Commissioners make specific findings upon certain requests for rulings pre- March 19. sented to them by counsel under the circumstances set forth in your communication of March 11, as follows:
In a communication dated Nov. 16, 1910, Hon. Walter Perley Hall, former chairman of this Board, requested the opinion of the AttorneyGeneral upon certain questions arising in connection with two petitions then pending before this Board, one being the petition of the city of Worcester for approval of authority granted to the Worcester Consolidated Street Railway Company to act as common carrier of baggage and freight in that city, and the other being the petition of the Worcester Merchants' Association that the Worcester Consolidated Street Railway Company be required to act as common carrier of baggage and freight in the city of Worcester. In reply to this communication an opinion was rendered by Hon. Dana Malone, Attorney-General at that time, under date of Dec. 27, 1910.
On Nov. 29, 1911, a conference was held by the Board in relation to the pending petition of the Worcester Merchants' Association, which was attended by representatives of the Worcester Merchants' Association and of the Worcester Consolidated Street Railway Company, and also by Mr. E. H. Vaughan, representing the city of Worcester. On Dec. 1, 1911, two sets of requests for rulings of law were filed by Mr. Vaughan, copies
of which are enclosed herewith. Subsequently, on Dec. 4, 1911, the Board issued an order, a copy of which is also enclosed.
The statute under which this proceeding was instituted is St. 1907, c. 402, § 1, which provides that
A street railway company may become a common carrier of newspapers, baggage, express matter and freight in such cases, upon such parts of its railway, and to such extent, in any city or town, as, after public notice and a hearing, upon the petition of any interested party, the board of aldermen or the selectmen in such city or town and the board of railroad commissioners shall by order approve. If the board of aldermen or selectmen to whom such a petition is presented act adversely thereon or fail to act within sixty days from the date of the filing of such petition the petitioner or any interested party may file such petition with the board of railroad commissioners, who shall after public notice and a hearing determine whether public necessity and convenience require the granting of such petition and shall make an order dismissing such petition or requiring any street railway company named in such petition to act as such common carrier in such cases, upon such parts of its railway and to such extent, and under such regulations and restrictions, as in the opinion of said railroad commissioners public necessity and convenience require. Any street railway company acting under authority hereof shall be subject to such regulations and restrictions as may from time to time be made by the local authorities aforesaid, with the approval of the railroad commissioners, and shall also be subject to the provisions of all laws now or hereafter in force relating to common carriers so far as they shall be consistent herewith and with said regulations and restrictions. The authority conferred upon any street railway company by virtue of the provisions of this act may at any time be revoked or terminated in any city or town or upon any part of its railway, by the board of aldermen or selectmen with the approval of the board of railroad commissioners.
The principal contentions of the city of Worcester were, first, that the board of aldermen had not acted adversely and had not neglected to act within the meaning of the statute above quoted, and that the Board of Railroad Commissioners should have considered the petition which was originally presented to the board of aldermen and not the subsequent petition presented by the Worcester Merchants' Association; and, second, that as matter of law said Board was authorized to approve
limited franchise. In accordance with the opinion of the Attorney-General hereinbefore referred to, however, the Board took no action with respect to the petition of the Worcester Consolidated Street Railway Company, upon which the board of aldermen had acted, and issued an order in the usual form and without any limitation as to the duration of the franchise upon the petition presented by the Worcester Merchants' Association.
The rulings submitted for my consideration are obviously intended to raise the contentions of the city in various forms, doubtless with a view to further proceedings under the provisions of St. 1906, c. 463, Part III., § 157, which is as follows:
The supreme judicial court or the superior court shall have jurisdiction in equity, upon the petition of a street railway company, or of the board of aldermen of a city or the selectmen of a town in which the street railway is located, or of any interested party, to compel the observance of and to restrain the violation of all laws which govern street railway companies, and of all orders, rules and regulations made in accordance with the provisions of this chapter by the board of aldermen of a city, the selectmen of a town or the board of railroad commissioners, and to review, annul, modify or amend the rulings of any state board or commission relative to street railways as law and justice may require.
See Kilty v. Railroad Commissioners, 184 Mass. 310.
It may be doubted whether the use of the word "rulings" in this section was intended to include rulings other than those necessarily involved in or inferred from the determination of administrative questions and the action of the Board consequent thereon, but even if it may be extended to formal rulings upon questions of law requested by parties, the statute does not purport to require that such rulings shall be given by the Board. Moreover, I am of opinion that since the Board of Railroad Commissioners deal primarily with matters of administration, it may be said to be in general inconsistent with their functions to make formal rulings upon questions of law or issues of fact upon which the performance of their duties does not require them to make a decision. Upon the other hand, where the determination of a question of law is involved in the
To the Com-
1912 March 19.
decision of the Board upon any matter of administration properly before them, I see no reason why they may not express such determination in the form of a ruling, and to that extent the making of rulings of law is consistent with the functions of the Board.
CONVICTION - PLEA
CASE PLACED ON FILE
A plea of nolo where the case is placed on file and such plea is not followed by a sentence or other form of final judgment, is not a "conviction" within the meaning of St. 1911, c. 614, § 11, which provides that "every person convicted of violating the game laws shall immediately surrender to the officer who secures such conviction his certificate of registration.
Your communication of March 9 refers to St. 1911, c. 614, § 11, which provides that
Every person convicted of violating the game laws shall immediately surrender to the officer who secures such conviction his certificate of registration; and the officer shall forthwith forward said certificate to the commissioners on fisheries and game, who shall cancel the same and notify the clerk issuing the certificate of registration of the cancellation. No other certificate of registration shall be issued to such person so convicted during a period of one year after the date of conviction.
and you inquire with reference thereto whether "in cases where the defendant pleads nolo and the case is placed on file, is it, in your opinion, a conviction within the meaning of the statute, and should such a person be ineligible for a license within one year?"
In reply to this inquiry I have to advise you that in my opinion upon a plea of nolo, where the case is placed on file and said plea is not followed by any sentence or other form of final judgment, the person so pleading is not convicted within the meaning of the statute above cited, and the provision with respect to the issuance of a certificate of registration is not applicable.