Answer of the Justices

• Decision Date: 14 August 1969
• Parties: ANSWER OF THE JUSTICES to the House of Representatives.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 450

250 N.E.2d 450

356 Mass. 769

ANSWER OF THE JUSTICES to the House of Representatives.

Supreme Judicial Court of Massachusetts Aug. 14, 1969.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit this reply to the question set forth in an order adopted by the House on July 8, 1969, and transmitted to us on July 11. The order recites the pendency before the General Court of a bill printed as House No. 4209, as changed, entitled, 'An Act confirming the authority of the city council of the city of Boston to impose a rent control law in the city of Boston,' a copy of which is submitted with the order.

The bill, as changed, is as follows:

'Notwithstanding any provision of law to the contrary, when public exigency, emergency or distress exists in the city of Boston, the city council of said city, with the approval of the mayor, may by ordinance control the rent for the use or occupancy of housing accommodations in structures having four or more dwelling units excluding motels, hotels or inns, and may create a rent board and empower it to establish as the maximum rent for housing accommodations in the city of Boston the rent in effect therefor on the thirtyfirst day of March, nineteen hundred and sixty-eight, or such higher amount as may be necessary to remove hardships or correct inequities.'

The question is:

'Has the City of Boston power under Section 6 of Article II of the Amendments to the Constitution of the Commonwealth (as amended by Article LXXXIX of such amendments), as limited by Section 7 of said Article II as so amended (see especially clause (5)), to adopt an ordinance to control the rent for the use or occupancy of housing accommodations in said city without a special enabling act passed by the General Court such as House, No. 4209, changed?'

The order does not make the usual recital that 'Grave doubt exists as to the constitutionality of said bill, if enacted into law.' The recital made is: 'Said bill presents to the House of Representatives an important question of constitutional law, which it is necessary that the House of Representatives determines before taking any further action on said bill in the exercise of the legislative power entrusted to it by the Constitution of the Commonwealth.'

Article 89 of the Amendments, which amended art. 2 of the Amendments, is known as the Home Rule Amendment. It was adopted by the General Court (Joint Legislative Session) of 1963 and 1965, and was approved by the people on November 8, 1966. It is rather long for a single amendment, and is unusually complicated. This is the first time a question as to the construction of any part of the Home Rule Amendment has been presented to the Supreme Judicial Court or its Justices.

Article 89 substantially modifies the policy of the Commonwealth as to municipal power which had been in accord with the rule stated in Dillon, Municipal Corporations (5th ed.) § 237, generally called 'Dillon's Rule.' See Atherton v. Selectmen of Bourne, 337 Mass. 250, 225--256, 149 N.E.2d 232, and cases cited.

Subsequent to the present request for an advisory opinion, two more such requests involving the Home Rule Amendment have been transmitted to us. One concerns House Bill No. 5486, entitled, 'An Act providing for the financing, construction, maintenance, repair and operation by the Massachusetts Turnpike Authority of certain public facilities consisting of a stadium complex, a third vehicular tunnel, the Worcester toll road and an arena.' The other relates to Senate Bill No. 1466, entitled, 'An Act authorizing the amendment, revision or repeal of certain special laws by the adoption, revision or amendment of a charter of a city or town.' All three requests are closely related.

The basic general policy of art. 89 is stated in § 1, entitled, 'Right of Local Self-Government.' 'It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article.'

The portions of art. 89 which are specifically cited in the question are § 6 as limited by § 7(5). Section 6 reads: 'Any city or town may, by the adoption, amendment, or repeal of local ordinances or bylaws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court by section eight, and which is not denied, either expressly or by clear implication, to the city or town by its charter. This section shall apply to every city and town, whether or not it has adopted a charter pursuant to section three.' Section 7 provides in material part: 'Nothing in this article shall be deemed to grant to any city or town the power * * * (5) to enact private or civil law governing civil relationships except as an incident to an exercise of an independent municipal power * * *.'

Also of general importance is the first paragraph of § 8, entitled, 'Powers of the General Court,' which reads: 'The general court shall have the power to act in relation to cities and towns, but only by general laws which apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two, and by special laws enacted (1) on petition filed or approved by the voters of a city or town, or the mayor and city council, or other legislative body, of a...