In re Opinion of the Justices

• Decision Date: 22 November 1927
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 523

159 N.E. 55

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

Nov. 22, 1927.

Answers to questions propounded to the Justices of the Supreme Judicial Court by order of the Senate.

See, also, 159 N. E. 70.

The Commonwealth of Massachusetts.

Senate, April 15 (p. m.), 1927.

Whereas, there is pending before the General Court a bill entitled ‘An act extending the term of the lease to the commonwealth of the properties of the Boston Elevated Railway Company and continuing public management and operation thereof’ (printed as Senate, No. 276, as amended), a copy of which is hereto annexed, relating to the policy to be pursued by the commonwealth in regard to the coninuance of the public operation and management of the Boston Elevated Railway Company; and

Whereas, the Senate is of the opinion that the General Court ought not to proceed further in its consideration of the issues involved until certain grave constitutional questions arising therein are disposed of; therefore be it

Ordered, that the opinions of the honorable the Justices of the Supreme Judicial Court be required on the following important questions of law:--

1. If the period of the lease of the property and franchises of said company to the commonwealth, as provided in chapter one hundred and fifty-nine of the Special Acts of nineteen hundred and eighteen, is extended for a term of years, may the General Court provide that the commonwealth shall guarantee the payment of principal and interest of any securities of the company that the public trustees may be authorized to issue for the purpose of effecting economies in the fiscal management of the company and or promoting more efficient service by said company?

2. Would such guaranty violate the sixty-second article of the Amendments to the Constitution of the commonwealth or any other provision thereof?

3. Would the fact that such securities might be outstanding after the termination of said period of public operation and management render such a guaranty inconsistent with said sixty-second article or with any other constitutional provision?

4. Is it constitutionally competent for the General Court to exempt such securities in the hands of their holders from all taxes levied under state authority?

5. Is it constitutionally competent for the General Court to effect the retirement of preferred stock of the company issued under and in accordance with section two of chapter seven hundred and forty of the acts of nineteen hundred and eleven and of any other class or classes of the company's stock, without the consent of the holders thereof, by the exercise of the power of eminent domain or otherwise?

6. Would sections twelve to fourteen, inclusive, of said bill, providing for the retirement of the company's preferred stock, be repugnant to the provisions of the Constitution of the United States prohibiting a state from passing any law impairing the obligation of a contract or to any other provision of said Constitution or of the Constitution of the commonwealth?

7. Under any extension of the said lease or of the present system of public operation and management of said company, would the provisions of the sixty-second article of the Amendments to the Constitution of the commonwealth apply to the receipts of the company during the period of such lease or of such system of operation and management?

8. Would any such extension be repugnant to the provisions of the fifty-ninth article of the Amendments to the Constitution of the commonwealth or to any other provision thereof?

9. If said bill were enacted into law could the General Court thereafter, by virtue of the said fifty-ninth article, constitutionally amend, alter or repeal such provisions of said bill as are declared thereby and by said chapter one hundred and fifty-nine to constitute a contract binding upon the commonwealth, or any of them?

10. If said bill were enacted by the General Court would it be subject to the referendum provisions of article forty-eight of the Amendments to the Constitution?

11. Would any provision of said bill be unconstitutional if enacted into law?

William H. Sanger, Clerk. A true copy: Attest:

William H. Sanger, Clerk of the Senate. [Bill, Senate, No. 276, as amended, reported by the committees on metropolitan affairs and street railways, sitting jointly.]

The Commonwealth of Massachusetts. In the Year One Thousand Nine Hundred and Twenty-Seven. An act extending the term of the lease to the commonwealth of the properties of the Boston Elevated Railway Company and continuing public management and operation thereof.

Be it enacted, etc., as follows:

Section 1. Section one of chapter one hundred and fifty-nine of the Special Acts of nineteen hundred and eighteen is hereby amended by striking out, in the eighth to tenth lines. inclusive, the words ‘for the term of ten years from the date when they assume the management of the company as hereinafter provied’ and inserting in place thereof the words:-until July first, nineteen hundred and twenty-eight,-by striking out, in the twenty-first and twenty-second lines, the wrods ‘twenty-five of chapter five hundred and fourteen of the acts of nineteen hundred and nine’ and inserting in place thereof the words:-forth of chapter two hundred and seventy-one of the General Laws,-by striking out, in the twenty-seventh and twenty-eighth lines, the words ‘one of chapter seven of the Revised’ and inserting in place thereof the words:-three of chapter twelve of the General,-and by striking out the last paragraphand inserting in place thereof the following:-On July first, nineteen hundred and twenty-eight, or, if this act is not accepted until after said date, as soon after said acceptance as practicable, the Governor, with the advice and consent of the council, shall appoint five trustees for terms of two, four, six, eight, and ten years, respectively, from July first, nineteen hundred and twenty-eight, and thereafter, as the terms of the members so appointed expire, their successors shall be appointed in like manner for terms of ten years each, but not exceeding the period of public management and operation. The board shall organize every two years by the election of a chairman. Each trustee so appointed shall take office upon his appointment and qualification. The foregoing provisions of this section applicable to the first board of trustees appointed hereunder relative to salary, filling of vacancies, designation of chairman, and removals, shall apply to their successors appointed as aforesaid in the year nineteen hundred and twenty-eight or thereafter, except that the chairman and the member chosen as clerk shall each receive a salary of fifty-five hundred dollars,-so as to read as follows:-Section 1. The board of trustees of the Boston Elevated Railway Company is hereby created, to consist of five persons to be appointed by the Governor, with the advice and consent of the council. The persons so appointed shall be sworn before entering upon the performance of their duties; shall own no stock or other securities of the Boston Elevated Railway Company or of any company owned, leased or operated by it; shall serve until July first, nineteen hundred and twenty-eight, and until their successors are duly appointed and qualified, and each shall receive from the company as compensation for his services five thousand dollars annually. In case of any vacancy in said board by reason of death, resignation or otherwise, the Governor, by and with the consent of the council, shall fill the vacancy. The board shall designate one of the trustees so appointed to serve as chairman. Any member of the board may be removed for cause by the Governor, with the advice and consent of the council.

Said trustees shall not be considered public officers within the meaning of section forty of chapter two hundred and seventy-one of the General Laws, but shall be subject in all other respects to the provisions of said section to the same extent as are the directors of the Boston Elevated Railway Company, but said section shall not apply to recommendations by the Governor to said trustees. The provisions of section three of chapter twelve of the General Laws shall not apply to the said board.

On July first, nineteen hundred and twenty-eight, or, if this act is not accepted until after said date, as soon after said acceptance as practicable, the Governor, with the advice and consent of the council, shall appoint five trustees for terms of two, four, six, eight and ten years, respectively, from July first, nineteen hundred and twenty-eight, and thereafter, as the terms of the members so appointed expire, their successors shall be appointed in like manner for terms of ten years each, but not exceeding the period of public management and operation. The board shall organize every two years by the election of a chairman. Each trustee so appointed shall take office upon his appointment and qualification. The foregoing provisions of this section applicable to the first board of trustees appointed hereunder relative to salary, filling of vacancies, designation of chairman, and removals, shall apply to their successors appointed as aforesaid in the year nineteen hundred and twenty-eight or thereafter, except that the chairman and the member chosen as clerk shall each receive a salary of fifty-five hundred dollars.

Section 2. Section two of said chapter one hundred and fifty-nine is hereby amended by inserting after the word ‘trustees' in the first line the words:-and their successors,-by striking out, in the fourth, fifth and sixth lines, the words ‘for a period of ten years, commencing on the first day of the month next after their appointment and qualification’ and inserting in place thereof the words:-until July first, nineteen hundred and forty-three,-and by inserting after the word ‘fares' in the seventeenth line, the words:-and charges for all service rendered or...