In re Opinion of the Justices

• Decision Date: 06 May 1912
• Citation: 98 N.E. 611,211 Mass. 624
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 624

98 N.E. 611

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

May 6, 1912.

Opinion of the Justices on a question submitted by the House of Representatives. To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

1. STATUTES (s 126*)-VALIDITY OF STATUTES-TITLE.

The constitutionality of a legislative enactment, authorizing the commonwealth to go into the business of furnishing homes to people who have enough money to pay rent and ultimately become purchasers, must be determined by the actual provisions of the bill, rather than the purposes expressed in its title, so that it would not be rendered constitutional by changing the expressed purpose from providing homes ‘for mechanics, laborers and other wage earners' to the improvement of ‘the public healty by providing homes in the more thinly populated areas of the state for those who might otherwise live in the most congested areas of the state.’

[Ed. Note.-For other cases, see Statutes, Cent. Dig. ss 192-196; Dec. Dig. s 126.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

2. STATES (s 114*)-FUNDS-USE-PUBLIC PURPOSE.

The fundamental test of the constitutionality of a statute requiring the use of public funds is whether the statute is designed to promote the public interests, as opposed to the furtherance of the advantage of individuals, though such advantage to individuals might incidentally serve the public.

[Ed. Note.-For other cases, see States, Cent. Dig. s 113; Dec. Dig. s 114.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

3. STATES (s 114*)-FUNDS-PUBLIC PURPOSE.

Under St. 1908, c. 590, s 56, which requires payment to the treasurer of the commonwealth of all deposits in savings banks, whose owners are unknown, which have remained untouched for 30 years, and a decision determining its constitutionality on the ground that the money is to be held and used by the commonwealth in recognition of the rights of the owner, and of the necessity of repaying it to him upon the establishment of his right thereto, the state holds such funds as a trustee; and any taking of them for a purpose that would make them unavailable to the owner on his demand would necessitate the readiness of the commonwealth to make payments out of other funds, which would have to be raised by taxatio, so that a statute diverting the funds to other than a public use would be invalid.

[Ed. Note.-For other cases, see States, Cent. Dig. s 113; Dec. Dig. s 114.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

4. STATES (s 114*)-FUNDS-PUBLIC PURPOSE.

And though such money be treated as escheated to the commonwealth and lying in the public treasury, freed from any trust, it would still be public money; and an appropriation of it to any but a public purpose would be invalid.

[Ed. Note.-For other cases, see States, Cent. Dig. s 113; Dec. Dig. s 114.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

5. STATES (s 114*)-FUNDS-PUBLIC PURPOSE.

A statute providing for the taking of public money by a state commission to purchase land and build homes for resale to mechanics, laborers, or other wage earners is designed, primarily, for the aggrandizement of individuals and only for the incidental benefit of the public, and is invalid as a taking of public money for private use.

[Ed. Note.-For other cases, see States, Cent. Dig. s 113; Dec. Dig. s 114.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

6. STATES (s 114*)-USE OF FUNDS-EXERCISE OF POLICE POWER.

And such statute is not valid as an exercise of the police power to mitigate the evils of overcrowded tenements and unhealthy slums, as these may be more properly reached by building ordinances and regulations, and inspection as to housing, light, and air, etc.

[Ed. Note.-For other cases, see States, Cent. Dig. s 113; Dec. Dig. s 114.*]

* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r IndexesThe undersigned Justices of the Supreme Judicial Court have considered the questions submitted to them, a copy of which is hereto annexed, and answer as follows:

The questions relate to the constitutionality of a bill entitled ‘An act to extend and define the duties of the Homestead Commission.’ The general scheme embodied in the proposed bill is that the commonwealth shall purchase land, and develop, build upon, rent, manage, sell and re-purchase the same. The Homestead Commission is clothed with the fullest power to go into the business of buying, renting and selling real estate. As expressed in the bill, its purpose is to provide homes ‘for mechanics, laborers, or other wage-earners,’ or as suggested by the amendment set forth in the second question, to improve ‘the public health by providing homes in the more thinly populated areas of the state for those who might otherwise live in the most congested areas of the state.’ In a constitutional sense the difference between these two statements of purpose is not material in view of the actual provisions of the bill. The substance of it is that the commonwealth is to go into the business of furnishing homes for people who have money enough to pay rent and ultimately to become purchasers. It is not a plan for pauper relief. The question is whether this is a public use.

[2] To this fundamental test must be brought all governmental activity in every system based upon reason rather than force. The dominating design of a statute requiring the use of public funds must be the promotion of public interests and not the furtherance of the advantage of individuals. However beneficial in a general or popular sense it may be that private interests should prosper and thus incidentally serve the public, the expenditure of public money to this end is not justified. Government aid to manufacturing enterprises, the development of water powers and other natural resources by private persons or corporations with public funds, either through loans or by the more indirect method of exemption from taxation or taking of stock, have been universally condemned by courts throughout the country, although often attempted by legislation. The leading case is Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39, where a statute was considered authorizing the city of Boston to issue bonds for the raising of money to be lent to owners of real estate whose buildings had been destroyed in the devastation wrought by the Boston fire of 1872. This statement of the law by Mr. Justice Wells, at page 461 of 111 Mass.,15 Am. Rep. 39, hardly can be surpassed for accuracy and clearness:‘The promotion of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object. However certain and great the resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental. The incidental advantage to the public or to the state, which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary. It is the essential character of the direct object of the expenditure which must determine its validity, as justifying a tax, and not the magnitude of the interests to be affected, nor the degree to which the general advantage of the community and thus the public welfare may be ultimately benefited by their promotion.’ This principle has been applied to a great variety of cases. It was amplified with a full citation of authorities in Opinion of the Justices, 204 Mass. 607, 91 N. E. 405,27 L. R. A. (N. S.) 483.

The question, in its last analysis is one of taxation. Can the commonwealth raise money by taxation for the purposes set forth in the act?

[3][4] Taxation is the ultimate question notwithstanding the provisions of section 3, which authorize the treasurer and receivergeneral to lend to the commission, from funds deposited in the treasury of the commonwealth by the savings banks under St. 1908, c. 590, § 56. This statute requires payment to the treasurer...