Loring v. Young

Crosby, J.

Because I believe the decision in these cases to be an invasion of the rights of the voters of the Commonwealth *387 as expressed by the State election held November 4, 1919, and therefore wrong, I feel constrained to express my dissent.

Mandamus is an appropriate remedy to obtain the relief sought; that it will lie in the cases presented would seem to be undoubted. G. L. c. 211, § 3. Attorney General v. Boston, 123 Mass. 460, 476 . Brewster v. Sherman, 195 Mass. 222 . Sinclair v. Mayor of Fall River, 198 Mass. 248 . Dullea v. Selectmen of Peabody, 219 Mass. 196 . Attorney General v. Suffolk County Apportionment Commissioners, 224 Mass. 598 . Union Pacific Railroad v. Hall, 91 U. S. 343, 355 .

In the determination of the principal question before us, namely, whether the Constitution of 1780 with the amendments, or the rearranged Constitution ratified and adopted by the people at the polls, is the Constitution of the Commonwealth to be printed with the General Laws, the proceedings which occurred before the State election held in 1919 are important to be considered. In his address to the Legislature on January 6,1916, the Governor recommended the calling of a constitutional convention to revise the Constitution. Thereafter an act, entitled “An Act to ascertain and carry out -the will of the people relative to the calling and holding of a constitutional convention,” was enacted by the Legislature, and was approved by the Governor on April 3, 1916. St. 1916, c. 98. Section 6 of this act provides in part that “ Any such revision, alterations or amendments, when made and adopted by the said convention, shall be submitted to the people for their ratification and adoption, in such manner as the convention shall direct; and if ratified and adopted by the people in the manner directed by the convention, the Constitution shall be deemed and taken to be revised, altered or amended accordingly; and if not so ratified and adopted the present Constitution shall be and remain the Constitution of the Commonwealth.” At the annual State election in 1916, the people voted that there should be a convention to revise, alter or amend the Constitution of the Commonwealth; and thereafter, in pursuance of St. 1916, c. 98, delegates to a constitutional convention were duly elected and assembled, and sessions thereof were held in the years 1917, 1918 and 1919.

On August 20, 1918, after three amendments proposed by the convention had been ratified by the people, and nineteen others *388 had been approved by the convention for submission to the people at the State election to be held in November, 1919, an order was. adopted by the convention as follows: “ Ordered, That a special committee on Rearrangement of the Constitution, to consist of the President and eighteen other members of the Convention to be appointed by the President, shall, after the submission to' the people of all the amendments proposed by the Convention, arrange the Constitution, as amended, under appropriate titles: and in proper parts, chapters, sections and articles, omitting all sections, articles, clauses and words not in force, and making no substantive change in the provisions thereof. And printed copies of the report of such committee, containing the draft and arrangement so made as aforesaid, and showing in detail any and all omissions and any and all alterations in punctuation and phraseology, shall be mailed to each delegate of the Convention; and

“ Ordered, further, That, when the convention closes its present session, it shall adjourn, subject to call by the President or Secretary, to meet not later than within twenty days after the prorogation of the General Court of 1919, for the purpose of taking action upon such report. Any rearrangement of the Constitution with its amendments, made and adopted by the Convention, shall be submitted to the people for their ratification and adoption in such manner as the Convention shall direct.”

In accordance with the order a special committee was appointed, from which five members were named by its chairman as a subcommittee. The sub-committee presented to the special committee for approval four printed documents. Document No. 2 was the-rearranged form of the Constitution, and became a part of the report to the convention; it was accompanied by a memorandum showing in detail changes made by the proposed rearrangement in the existing Constitution and amendments. Thereafter, the convention added one article to the draft Constitution as proposed by the special committee, and then approved the Rearrangement of the Constitution as shown in Document No. 2, and ordered that it be submitted to the people for their ratification and adoption. At the annual State election held on November 4, 1919, the question was submitted to the people in the following form:

“ Shall the Rearrangement of the Constitution of the Com *389 monwealth, submitted approved and ratified? by the Constitutional Convention, be

Before the election the Secretary of the Commonwealth sent to each voter a pamphlet on the outside cover of which were the words: “ Text of the Rearrangement of the Constitution submitted by the Constitutional Convention.” The people voted to approve and ratify the rearranged Constitution, and the executive council in ascertaining and declaring the vote made the following record:

‘ The Committee of the whole Council to whom was referred the returns of votes on the Rearrangement of the Constitution of the Commonwealth submitted by the Constitutional Convention/ reported the total number of votes was 263,359 Yes. Opposed 64,978. ‘ And the said rearrangement appears to be ratified/ ”

A recital of the foregoing undisputed facts makes it plain that the rearranged Constitution, and not the Constitution of 1780 with the amendments, is the present State Constitution, unless. Article 157 requires a different conclusion.

The advisory opinion given to the Governor and Council, that the “ ‘Rearrangement of the Constitution’ is not the ‘Constitution or Form of Government for the Commonwealth of Massachusetts/ ” was merely the individual opinion of the Justices, based upon the facts and considerations then before them, without the benefit of argument; it was not an adjudication by the court, and is not to influence the court in their determination of the present cases. Young v. Duncan, 218 Mass. 346, 351 . Perkins v. Westwood, 226 Mass. 268 .

The question is before the corut for the first time to be decided upon the agreed facts in the light and with the assistance of the arguments presented. Material facts now submitted to the court, were not before the Justices at the time the advisory opinion was given.

In 1918, when the order for the Rearrangement of the Constitution went into effect, a period of one hundred and thirty-eight years had elapsed since the establishment of the fundamental law; and in the meantime many changes and additions had been made in its provisions by amendment. At the time of the adoption of the order there were forty-seven amendments, and nineteen others *390 had been agreed to by the convention for submission to the people at the State election to be held in the November following. In the light of these facts it fairly may be inferred that the convention in adopting, and the people in ratifying, the rearrangement intended to relieve the confusion in which the fundamental law then was, by arranging it in such form as would bring the original Constitution and its amendments together in one document and make plain its provisions. That such was the dominant purpose of the Governor in recommending the calling of the convention in 1916, would seem to be apparent from that part of his address to the Legislature where he said, “No Constitutional Convention has been held in Massachusetts since 1853. It is doubtful if another period of history of equal length can be found more characterized by social and industrial change than the sixty-two years which have elapsed since that time-. After so long and so restless an interval, during which nothing but piecemeal revision has been considered, in the first instance by Legislatures, I believe the time has come when our constitutional system should receive that connected and careful revision which it can best receive from a Convention chosen for the purpose.” It seems to me impossible to doubt that the convention, having finished the work of specifically amending the Constitution in August, 1918, then deemed it advisable that the Constitution as a whole, with all its amendments, should be embodied in one instrument; and that such was the intention of the convention and the purpose of the order adopted on August 20. Unless the rearranged Constitution was intended by the convention and by the people to be the Constitution of the Commonwealth, it has no binding force or effect. It is not to be presumed that the convention in agreeing to it, after many months in its' preparation, and that the people in ratifying it, meant that their acts should be a mere nullity. There is nothing to indicate that the rearrangement should be simply an index or digest of the Constitution of 1780 with the amendments. The committee had no authority for that purpose, its duty was to “arrange the Constitution, as amended, under appropriate titles and in proper parts, chapters, sections and articles, omitting all sections, articles, clauses and words not in force, and making no substantive change in the provisions thereof,” In the Constitution as rearranged a few changes of substance were made; if it be assumed that these *391 new provisions were beyond the power of the committee to propose, they were duly adopted by the convention and ratified by the people acting within their sovereign rights.

The question to be decided seems to be based principally if not wholly upon the construction of Article 157. The language there used appears to me to be plain and free from ambiguity. It must be construed in connection with the instrument as a whole. The petitioners contend that its ordinary and natural signification is that the provisions of the Constitution of 1780 together with the amendments re-enacted in the rearranged Constitution shall not change the meaning of such parts of the old Constitution and amendments as then remained in force, and which would no longer be valid when the new instrument was ratified and adopted by the people unless carried forward by some provision in Article 157. The act of the people in approving and ratifying the rearrangement was a codification and revision of the Constitution of 1780, — omitting parts that had become obsolete, rearranging what remained active, and adding some new provisions of substance. The effect of this article, as it seems to me, is to preserve the settled meaning and interpretation given to the original Constitution so far as its provisions are the same in the new instrument. While in accordance with well settled rules that meaning and interpretation would doubtless prevail, yet to prevent the possibility of their being changed the article in question was incorporated in the rearrangement, thereby embodying in the fundamental law a rule of construction which the different departments of our government were bound to follow.

The plain implication of the language to me is that upon the ratification and adoption by the people of the new instrument, the original Constitution is no longer “ existing or operative.” If the language standing alone is of doubtful meaning, it is made clear when considered in connection with the instrument as a ■whole. Accordingly, I am of opinion that neither the debates in the convention, nor the testimony or opinions of members of the convention as to the construction of Article 157, can be considered in deciding the issue presented.

In Old South Association v. Boston, 212 Mass. 299 , in construing the language of a statute the meaning of which was not doubtful, it was said at pages 304 and 305: “ Although the plain meaning *392 of a statute cannot be affected by resort to the proceedings incident to its passage (Boston & Providence Railroad v. Midland Railroad, 1 Gray, 340 , 366; Browne v. Turner, 174 Mass. 150, 159 ; Boston v. Talbot, 206 Mass. 82, 91 ), it is permissible to examine records of legislative proceedings to illumine language of doubtful import.” In Boston v. Talbot, 206 Mass. 82 , where the effect and validity of a taking of land by the Boston transit commission under St. 1902,. c. 534, for use in the construction of a tunnel beneath Washington Street in Boston were in question, Chief Justice ICnowIton said, at page 91: “We come now to the defendant’s offer of proof. It is to be remembered that this is an offer of evidence to control the-construction of a writing which stands in the place of a legislative-act. It is not competent to inquire into the individual opinion or motive of any member of the Boston transit commission. Said Mr. Justice Field in giving the opinion of the court in Soon Hing v. Crowley, 113 U. S. 703 , 710: 'The rule is general with reference to the enactments of all legislative bodies that the courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the acts, or inferrible from their operation, considered with reference to the condition of the-country and existing legislation. . . . The diverse character of such motives, and the impossibility of penetrating into the hearts-of men and ascertaining the truth, precludes all such inquiries as-impracticable and futile.’ . . . While facts that appear in connection with the proceedings in the enactment of statutes may sometimes be shown for the purpose of illustrating the subject to which the statute applies, the expression of individual opinions, in debates- or otherwise, is never competent. Under this principle, most of what was offered was incompetent. ' The sense of the commission/ the belief of the commission, and the ' conclusion ’ of the commission in reference to the taking, are to be determined from their final act of taking. The offers, in these particulars, seem to be attempts to show the views and opinions of individual members of the commission, which could not be put in evidence.” In Aldridge v. Williams, 3 How. 1 , at page 24, it was said in construing a legislative act: “The law, as it passed, is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with the. *393 laws upon the same subject, and looking if necessary, to the public history of the times in which it was passed.”

In my opinion the debate in the convention, at the meeting to consider the report of the committee on the rearranged Constitution, is of no weight and cannot properly be considered in determining whether the old or the new Constitution is the present Constitution of the Commonwealth. The inquiry of a member as to the meaning of the instrument reported by the committee, and his opinion respecting it, and the reply of a member of the committee, cannot be found to represent the views of the majority of those present. The fact that no reply was made to the opinions expressed did not bind all the members nor indicate that the majority acquiesced in the construction so stated. The language of the court in United States v. Trans-Missouri Freight Association, 166 U. S. 290 , at pages 318, 319, would seem to be pertinent upon this question. It is there said: “ There is, too, a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body. . . . The reason is that it is impossible to determine with certainty what construction was put uppn an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other; the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it was passed.” Mitchell v. Great Works Milling & Manuf. Co. 2 Story, 648, 653. Legal Tender Case, 110 U. S. 421, 444 . United States v. Wong Kim Ark, 169 U. S. 649, 699 . United States v. St. Paul, Minneapolis & Manitoba Railway, 247 U. S. 310, 318 . Duplex Printing Press Co. v. Deering, 254 U. S. 443 . Southwark Bank v. Commonwealth, 26 Penn. St. 446, 450. Newell v. People, 7 N. Y. 9 . State v. Board of Curators of University of Missouri, 268 Mo. 598 . Taylor v. Taylor, 10 Minn. 107, 125 . G. & D. Taylor & Co. v. Place, 4 R. I. 324. People v. May, 3 Mich. 598, 605 . If the debate above referred to cannot be said necessarily to represent the views of the majority of the convention, with stronger reason it cannot reflect those of the majority of the people who did not hear it. If *394 the meaning of Article 157 be regarded as obscure or ambiguous, and it is permissible to recur to the proceedings of the convention in adopting the rearrangement and to the act of the people in ratifying it, it seems equally clear that it was intended to supplant the Constitution of 1780.

The president of the convention in August, 1918, when its sessions were about to adjourn and its labors of proposing and adopting specific amendments had been practically completed, stated: “ It has seemed to the convention that its work could not be complete until it had submitted to the people a revised draft of the Constitution that should incorporate therein all the amendments, nearly fifty in number, adopted since the original Constitution of 1780. It is obvious that such a revision would be of slight value if it did not include also such amendments now submitted as the people may adopt at the coming election. The convention therefore has provided for a special committee to meet after the results of the voting in November are known. This committee is to prepare a draft of a revised Constitution, incorporating therein all the amendments that shall have been adopted then, and this draft is to be submitted to the Convention next summer. It is believed that the Convention can pass upon it then without delay and provide for its submission to the people at the following election, and having so done the Convention will adjourn sine die, satisfied that, to the best of its ability, it has discharged faithfully and completely the great trust reposed in it.” This statement makes it apparent that the special committee was expected to prepare a draft of the Constitution as revised by it to be submitted to the convention the following year; that such revised Constitution should be submitted to the people for ratification in the fall of 1919; and that that having been accomplished it was believed the work of the convention would be fully performed. During the following winter and spring the sub-committee prepared four documents, and presented them for approval to the full committee in May, 1919. Document No. 1 was a reprint of the Constitution of 1780 and its amendments, with its parts, chapters and sections numbered consecutively for the information and convenience of the full committee and the convention; and was included in the report which, after many meetings, was made by the committee to the convention on August 12, 1919. The report, in part, is as *395 follows: “ The object of the order [that is the order whereby provision was made for the rearrangement of the Constitution] was, as the committee understands it, to have the existing Constitution and its amendments, sixty-six in all, brought together in one body, omitting all sections, articles, clauses and words ’ which by the lapse of time, or by repeal, or annulment, or otherwise have ceased to be in force, and making such rearrangement, with the changes in phraseology and punctuation necessarily involved, as would form a consistent and connected whole. The committee are of opinion that it manifestly was not intended that they should draft a new Constitution embodying the existing Constitution and amendments, and they have not attempted to do so. They have considered that their duty in that regard was confined to one of rearrangement. The committee have construed the order to mean that it was the will and purpose of the convention that no change in the existing Constitution and its amendments should be made by the committee which would or might in any way affect their meaning or present construction, or the construction which has heretofore been given to the provisions thereof, and they have carefully refrained from making any change which, it seemed to them, would or might have that effect. Where there was an obvious omission, or a manifest ambiguity, as there seems to have been in a few cases, or where a change in phraseology or punctuation was rendered necessary by the rearrangement, or by the omission of words, phrases or articles, and when it was clear that another word or phrase should be substituted for the one used, to secure consistency, or uniformity in, language, the committee deemed that it came within the scope of their duty to supply such omissions or remove such ambiguity or make such changes, and they have done so. The textual changes so made have been comparatively few.” The memorandum states, with reference to Article 157, (being Article 156 in the “ Text of the Rearrangement ”): “ This is a new division and title. It adopts in part the language of the act for calling and holding the convention (St. 1916, c. 98), and is introduced to show that the proposed draft, if adopted, is to be regarded as a continuation of the existing Constitution and amendments so far as the provisions thereof are in force, and that no substantive change in the present meaning and construction or that which has been heretofore given to them is intended.”

*396 In view of the order of the convention that the committee should make a rearrangement “omitting all sections, articles, clauses and words not in force ” in the old Constitution, it seems reasonable to infer that the instrument prepared and submitted by it to the convention was a new Constitution in which were embodied the provisions of the old Constitution so far as they had not been changed. The inclusion of Article 157 I think was to establish a rule of construction to the effect that the provisions of the Constitution of 1780 and the amendments, which were embodied in the rearrangement, should, have the same meaning and interpretation as had heretofore been given to them. I cannot believe that it was the purpose of the convention, or of the people, to repeal any new provisions of the rearranged Constitution or to continue in force those in the driginal Constitution which had been eliminated therefrom because not operative. The circumstance that a few changes of substance were made in the rearrangement and ratified by the people make it plain it was intended that the provisions of the old Constitution should no longer be valid, but were superseded by the new.

In the performance of their duty, the committee in preparing the rearrangement was ordered to omit “ all sections, articles, clauses and words not in force ” and to send printed copies of the report “ showing in detail any and all omissions and any and all alterations,” to each delegate by mail. Accordingly, “ Rearrangement Document No. 3 Omissions from the Present Constitution,” explaining in detail the omissions and the reasons therefor, was sent to each delegate.

On August 13, 1919, the convention adopted an order providing for the manner in which the rearranged'Constitution should be submitted to the people, entitled “A Constitution or Form of Government for the Commonwealth of Massachusetts.” Its last article (158) provides that “This form of government shall be enrolled on parchment, and deposited in the secretary’s office, and be a part of the laws of the land; and printed copies thereof shall be prefixed to the book containing the laws, of this Commonwealth, in all future editions of such laws.”

The instrument submitted by the convention to the people and adopted and ratified by more than four fifths of the total vote contains no reference to rearrangement, revision or codification; *397 and whatever construction or differences of meaning may be attached to these worcjs becomes immaterial, as the instrument adopted by the convention and ratified by the people declares that it is “A Constitution or Form of Government for the Commonwealth of Massachusetts.” That the delegates and the people intended it to be something else, or of no binding force or validity, would seem to me to be a conclusion that ought not to be reached. If it is permissible to refer to the debates in the convention for the purpose of ascertaining the intention of the members, the closing address of the president is illuminating. He said, in part: “ We assembled at this session of 1919 for one distinct purpose. It was that we might submit to the people for their adoption a rearranged Constitution containing within its text all that is not at present obsolete of our original Constitution and of the sixty-six amendments that have been passed since 1780. Owing to the efficient and faithful manner in which the special committee on rearrangement, headed by Mr. Morton of Fall River, and to whom you have just paid such well deserved tribute, has discharged its work, there has been nothing left for you to do but to adopt it practically as it came from the committee and to submit it to the people. This you have done, and in so doing you have rounded out and completed your work.”

Before the election the Secretary of the Commonwealth sent to each voter a pamphlet containing a copy of the text of the rearrangement (together with certain referendum question) on the outside page of which was printed the following:

“ THE COMMONWEALTH OF MASSACHUSETTS

Office of the Secretary

State House, Boston

TEXT OF THE REARRANGEMENT OF THE CONSTITUTION SUBMITTED BY THE CONSTITUTIONAL CONVENTION

together with

Referendum Questions Submitted to Voters under Amendments to the Constitution, Article XLVIII, General ‘ Provisions, IV, Information to Voters

*398 STATE ELECTION, NOVEMBER 4, 1919

[cut of state seal] (

Boston

Wright & Potter Printing Co., State Printers

32 Derne Street

1919 ”

Every presumption is to be made in favor of the apparent purpose of the people, in the exercise of their sovereign power, in adopting and ratifying a constitution or in amending, revising and codifying an existing constitution. This presumption cannot be overcome, but must prevail in the cases at bar, unless the act of the people is clearly shown to be inconsistent with a purpose to. adopt and ratify a new constitution.

The people in ratifying a constitution are presumed not to have adopted and ratified one which was to be without validity or binding force. The same presumption applies to legislative enactments. Borden v. Enterprise Transportation Co. 198 Mass. 590, 592 . In Kendall v. Kingston, 5 Mass. 524 , it was said by Chief Justice Parsons, at page 534: "... certainly the construction of the constitution by the legislature ought to have great weight, and not to be overruled, unless manifestly erroneous.” In Wellington, petitioner, 16 Pick. 87 , where the question of the constitutionality of a statute was involved, it was said by Chief Justice Shaw at page 95: “. . . the delicacy and importance of the subject may render it not improper, . . . that when called upon to pronounce the invalidity of an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.” This language would seem to apply with even stronger reason where an attempt is made to overthrow a constitution ratified by the people in conformity with all the required legal formalities. Oqden v. Saunders, 12 Wheat. 213 . Cooley, Const. Lim. (7th ed.) 252, 254, and note. In Newell v. People, supra, a case «involving the construction of a constitutional provision, it was said, at page *399 97: . . when we are speaking of the most solemn and deliberate of all human writings, those which ordain the fundamental law of States, the rule rises to a very high degree of significance. It must be very plain, nay, absolutely certain, that the people did not intend what the language they have employed, in its natural signification, imports, before a court will feel itself at liberty to depart from the plain reading of a constitutional provision.”

Beginning with the date of the passage of the statute (St. 1916, c. 98) entitled “ An Act to ascertain and carry out the will of the people relative to the calling and holding of a constitutional convention,” up to and including the report of the committee of the executive council declaring that “ said rearrangement appears to be ratified,” every requisite formality necessary to the validity of the act of the convention in adopting, and of the people in ratifying, the rearrangement, was observed; and no contention is made to the contrary. To recapitulate: the order appointing the committee to arrange the Constitution was adopted on August 20, 1918. On August 12, 1919, the committee reported to the convention the result of its labors covering a period of nearly a year. The document which it reported and the convention adopted and the people afterwards ratified is entitled " A Constitution or Form of Government for the Commonwealth of Massachusetts.” It embodies in substance and in proper form the provisions of the Constitution of 1780 that have not been repealed nor superseded, and contains all amendments in force when ratified by the people; it is lacking in no particular of being a complete embodiment of the fundamental law.

The instrument speaks for itself. I am of opinion that it is what it purports to be, and is such a constitution as is provided for under § 6 of the convention act (St. 1916, c. 98). For the reasons stated it seems plain to me that the instrument ratified by the people at the annual election of 1919 is the State Constitution and as such should be printed with the General Laws. To declare that the Constitution of 1780 with the amendments remains the Constitution of the Commonwealth, in my opinion defeats the dominant object sought to be accomplished, namely, to revise the Constitution (St. 1916, c. 98, § 1) by so arranging and codifying the fundamental law as to obviate the confusion and difficulty previously existing in its construction due to the many changes *400 wrought by amendments adopted at various times during the one hundred and thirty-eight years that had elapsed since 1780. The fundamental law ought to be in such form that it can readily be understood by the people at large.

To decide that the rearranged Constitution is not the present Constitution reaches a result contrary to the intent and purpose of the majority of the members of the convention, and of the people, as shown by the instrument itself. The competent facts presented by the record would seem to indicate a purpose to make a new constitution complete in all its parts. If instead of the word “ rearrangement ” in Article 157 the word “ revision ” had been used, it cannot be doubted that the instrument in question would supersede the Constitution of 1780 and the amendments. The language of that article should not be construed with such verbal nicety as will result in defeating the will of the people. We should rather seek to ascertain the effect of the words used which would appear' most natural and obvious to the common understanding. Attorney General v. Methuen, 236 Mass. 564 . Bishop v. State, 149 Ind. 223 . Cooley, Const. Lim. (7th ed.) 101. The word “ rearrangement ” as used in Article 157, in my opinion was in effect synonymous with the word “ revision ” or “ codification;” this is the reasonable inference when the proceedings of the convention and the instrument as finally adopted are considered. To hold that the committee in the performance of their duty, after many months of deliberation reported the rearrangement, and that the convention after making certain amendments thereto adopted it, and the people ratified it by an overwhelming vote with no intention that it should be of any validity whatever, is a conclusion that I am unable to reach.

I am of opinion that the Constitution of 1919 should be printed in the first volume of the General Laws as the Constitution of the Commonwealth; and that a writ of mandamus should issue in each case as prayed for.