Going back 100 years, it is interesting to note the outsized influence of Massachusetts on the national stage at that time – the president (Calvin Coolidge), the Speaker of the House (Frederick Gillet), and the Majority Leader of the Senate (Henry Cabot Lodge) were all Republicans from Massachusetts. Back at home, Republicans held the corner office (Channing Cox), the President of the Senate (Frank Allen), and the Speaker of the House (Benjamin Loring Young). The Supreme Judicial Court had mostly been appointed by Republicans as well. With so much unity, it is interesting that the legislature ever even sought counsel from the court, but they did.
The highest court in Massachusetts, the Supreme Judicial Court, has the authority to answer questions posed to it even where there is no pending “case in controversy”. From time to time, the legislature would pose questions to the court asking if some pending legislation, if passed, would be considered constitutional. It’s actually a pretty good system and one, perhaps, which should be employed more these days. One hundred years ago, the Supreme Judicial Court issued two of these “Opinions of the Justices” which are kind of interesting to review on their centenary anniversary mostly because the two issues addressed and answered are still on people’s minds to this day.
“Legal Voters” In re Opinion of the Judges, 247 Mass. 583 (1924)
The legislature was working on issues related to the 1925 census which would determine proportional representation for seats in the Massachusetts House and Senate. There was a question as to the meaning of the term “legal voters” within amendments to the Massachusetts Constitution articles 21 and 22. The term was used in the mid-1800’s when, decidedly, the population it covered was different from who would be considered as a legal voter in 1924 since the 13th, 14th, 15th, and 19th Amendments had all been ratified in the interim. As noted in the opinion, both constitutional articles begin with identical sentences:
‘A census of the legal voters of each city and town, on the first day of May, shall be taken and returned into the office of the secretary of the commonwealth, on or before the last day of June, in the year one thousand eight hundred and fifty-seven; and a census of the inhabitants of each city and town, in the year one thousand eight hundred and sixtyfive, and of every tenth year thereafter. In the census aforesaid, a special enumeration shall be made of the legal voters; and in each city, said enumeration shall specify the number of such legal voters aforesaid, residing in each ward of such city.’
In 1924, the court noted that the term “legal voters” was defined elsewhere in the constitution as, “every citizen of the commonwealth, man or woman, of 21 years of age and upwards, except paupers, persons under guardianship and persons disqualified by law because of corrupt practices in respect to elections, who has resided within the commonwealth 1 year and within the town or district in which he claims a right to vote 6 calendar months next preceding the election, except that in cases of changes of residence within the commonwealth an existing right to vote shall not be lost until the expiration of 6 calendar months from such change, and who is able to read the Constitution in the English language and to write his name unless prevented by physical disability or unless entitled to vote on May 1, 1857, shall have a right to vote.”
Legal voter rabbit hole: It turns out that in Massachusetts, at least as of 1857, people ineligible to vote included, “persons disqualified by law because of corrupt practices in respect to elections”. Sadly, when the constitution was amended in regard to the term, “legal voter”, they left out this oddly timely provision. I was so looking forward to researching how and why this provision was included and whether it had ever been enforced. Honestly, I was hoping against hope it was still in there, but it's not.
Anyone who thinks that determining representation in state government was simpler in bygone days – here’s proof that the legislature was struggling to understand how to establish districts then. As a curiosity, today there are 160 state legislative House seats and 40 Senate seats. This has not always been the case – the General Court has varied in number over the centuries. And, every time they seek to re-apportion, there are numerous questions to resolve.
Ticket Scalping In re Opinion of the Judges, 247 Mass. 589 (1924)
The other opinion of the justices dealt with the face value of tickets for entertainment versus the cost of those tickets at resale. It is a really fun opinion. In the olden days when the two houses of the legislature acted independently, the Senate wanted to regulate the sale and resale of tickets in entertainment venues (no word on whether the House was considering a similar bill). Therefore, the Senate asked the court whether, in entertainment venues operating under a state license, when the state determines that there is a public interest in the entertainment, the state can regulate prices so as to mitigate fraud and exorbitant prices.
The bill in question had several parts including whether tickets must put their value on the face of the ticket, whether any sale or resale for that ticket could be mandated to only be for that face value, whether scalping could be regulated with police powers, whether the state could regulate prices while balancing profit and extortionate costs, etc. It is a really interesting bill. Anyway, they asked the court if they could, in fact, regulate in this manner. The court, essentially, said they could with one exception. They could not require that sale or resale be at face value. What they could do was limit the mark up price.
In coming to its decision, the court noted that in colonial times, theater was prohibited. Indeed, there were prosecutions for violating the entertainment prohibition up until as late as 1797, fully 17 years after the constitution of Massachusetts was ratified. (As an aside, we love the revolutionaries, but they put on quite a show in their description of the Boston Massacre and the protest of the tea tax in 1773; one must wonder whether those acts would be considered a violation of the laws of the province). After the full-on prohibition against entertainment venues, some licenses issued. Then, theatrical performances without a license were banned by statute in the early 1800’s and, according to the court, had been regulated ever since. The court then posited that some entertainment is beneficial, some is not. (Okay. Thanks for that opinionated commentary on what kinds of entertainment the court deems appropriate for adults.) And, in the wake of catastrophic fires (see, for example, Chelsea and Salem, MA) and the recent flu pandemic, the court also noted that public health and safety was affected in places where folks gather. Thus, “such places require constant supervision and inspection.” Why they mentioned all this in regard to ticket sale prices is unclear, but it’s certainly fun.
Then they come to the heart of the matter – that the business of reselling tickets (ostensibly at a large mark-up) has “become a menace to the public welfare.” Here the court related the mark up for resale to interest rates, pawn broker rates, attorney fees for worker compensation claims, and hackney fees. In so determining, the court said that it was not unreasonable to allow for a mark-up of up to fifty cents per ticket. If only that were still good law.