In re Opinion of the Justices

• Decision Date: 29 May 1941
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 609

35 N.E.2d 5

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

May 29, 1941.

Answers to questions propounded to the Justices of the Supreme Judicial Court by the Governor and the Council of the Commonwealth of Massachusetts.On April 30, 1941, the Governor and Council adopted and transmitted to the Justices the following order:

To the Honorable the Justices of the Supreme Judicial Court for the Commonwealth of Massachusetts:

Whereas, with relation to the Boston Elevated Railway Company it is provided by Special Acts of 1918, c. 159, sections 9 and section 11, as amended [St.1935, c. 99], as follows:

‘Section 9. Whenever the income of the company is insufficient to meet the cost of the service as herein defined, the reserve fund shall be used as far as necessary to make up such deficiency, and whenever, on the other hand, such income is more than sufficient to meet the cost of the service, the excess shall be transferred to and become a part of the reserve fund.

‘Section 11. If, as of the last day of June in the year nineteen hundred and nineteen, or the last day of any June thereafter to and including the last day of June in the year nineteen hundred and thirty-four, or as of the last day of March in any year after the year nineteen hundred and thirty-four, the amount remaining in the reserve fund shall be insufficient to meet the deficiency mentioned in section nine, it shall be the duty of the trustees to notify the treasurer and receiver general of the commonwealth of the amount of such deficiency, less the amount, if any, in the reserve fund applicable thereto, and the commonwealth shall thereupon pay over to the company the amount so ascertained. Pending such payment it shall be the duty of the trustees to borrow such amount of money as may be necessary to enable them to make all payments, including dividend payments, as they become due. If, as of the last day of any June thereafter to and including the last day of June in the year nineteen hundred and thirty-four, or as of the last day of March in any year after the year nineteen hundred and thirty-four, during the period of public operation, the reserve fund shall exceed the amount originally established, the trustees shall apply the excess, so far as necessary, to reimbursing the commonwealth for any amounts which it may have paid to the company under the provisions hereof, and the commonwealth shall thereupon distribute the amount so received among the cities and towns in which the company operates, in proportion to the amounts which they have respectively been assessed as provided in section fourteen.

‘In order to meet any payment required of the commonwealth under the provisions of this section the treasurer and receiver general may borrow at any time, in anticipation of the assessments to be levied upon the cities and towns, such sums of money as may be necessary to make said payments, and he shall repay any sums so borrowed as soon after said assessments are paid as is expedient’. and,

Whereas, it is provided in pt. 2d, c. II, sec. 1, art. XI of the Constitution, that ‘No moneys shall be issued out of the treasury of this commonwealth, and disposed of (except such sums as may be appropriated for the redemption of bills of credit or treasurer's notes, or for the payment of interest arising thereon) but by warrant under the hand of the governor for the time being, with the advice and consent of the council, for the necessary defence and support of the commonwealth; and for the protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the general court’; and

Whereas, the Trustees of the Boston Elevated Railway Company have notified the Treasurer and Receiver General that the amount of the deficiency referred to in said section 11 for the period ending March 31, 1941, less the amount in the reserve fund applicable thereto, is $2,341,167.29 and the Treasurer and Receiver General has caused the said sum of $2,341,167.29 to be placed upon a warrant for the purpose of paying over the same to the said company under the terms of said section 11, and such warrant is now before the Governor for his signature, and the Governor has requested the advice and consent of the Council with relation thereto; and

Whereas, doubt exists as to the power and authority of the Governor and Council under the law;

Ordered, that the Justices of the Supreme Judicial Court be required to give their opinion to the Governor and Council upon the following important questions of law:

1. Whether the provisions of pt. 2d, c. II, sec. 1, art. XI of the Constitution of the Commonwealth require that a warrant providing for the payment of a deficiency of which the Treasurer and Receiver General has been notified by the Trustees of the Boston Elevated Railway Company, in accordance with section 11 of chapter 159 of the Special Acts of 1918, as amended, be signed by the Governor with the advice and consent of the Council, as a condition precedent to the payment by the Treasurer and Receiver General of the amount of such deficiency.

If the answer to question 1 is in the affirmative:

2. Whether doubt on the part of the Governor and Council as to the correctness of the deficiency as notified by the Trustees of the Boston Elevated Railway Company to the Treasurer and Receiver General in accordance with section 11 of chapter 159 of the Special Acts of 1918, as amended, would as a matter of law give to the Governor the right to withhold his signature to said warrant, and give to the Council the right to withhold its advice and consent with relation to said warrant providing for payment of the said deficiency.

3. Have the Governor and Council the right to withhold payment of the alleged deficiency of the Boston Elevated Railway Company for the year ending March 31, 1941, pending a determination of the correctness of the amount of the said alleged deficiency?

4. Has the Governor the right to withhold his signature from the warrant providing for the payment of $2,341,167.29 as a deficiency of the Boston Elevated Railway Company under the provisions of Special Acts of 1918, chapter 159, sections 9 and 11 as amended, and has the Council the right to withhold from the Governor its advice and consent with respect to approval of said warrant by his signature thereon, doubts having been raised as to the correctness thereof as notified to the Treasurer and Receiver General by the Trustees of the Boston Elevated Railway Company?

5. Is the Governor required to sign the warrant and is the Council required to give its advice and consent to the Governor with relation to the warrant providing for the payment of the deficiency to the Boston Elevated Railway Company for the year ending March 31, 1941, the payment of which is regulated by Special Acts of 1918, chapter 159, sections 9 and 11 as amended, notwithstanding the matter of doubts raised and presented to the Governor and Council as to the correctness of the amount of the deficiency?

To His Excellency the Governor and The Honorable Council of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court, in reply to your order of April 30, 1941, respectfully submit these answers to the questions therein contained. Copies of certain documents accompanied the order.

It appears from the order and the accompanying documents that on April 16, 1941, the board of trustees of the Boston Elevated Railway Company, created by and existing under Spec.St.1918, c. 159, as amended, purporting to act under § 11 of said chapter as most recently amended by St.1935, c. 99, notified the Treasurer and Receiver General of the Commonwealth that ‘as of the last day of March in the year Nineteen Hundred and Forty-one, the income of the Company during the period since the last day of March in the year Nineteen Hundred and Forty has been insufficient to meet the cost of the service as defined in said Act by the amount of Two Million Three Hundred Forty-one Thousand One Hundred Sixty-seven Dollars and Twenty-nine Cents ($2,341,167.29); that on said thirty-first day of March 1940 and continuously since said date there has been no amount in the reserve fund provided by said Chapter 159 as amended, applicable thereto; and consequently that the amount of such deficiency less the amount in the reserve fund applicable thereto is Two Million Three Hundred Forty-one Thousand One Hundred Sixty-seven Dollars and Twenty-nine cents ($2,341,167.29).’

It appears also that the Treasurer and Receiver General made a request of the comptroller that ‘a warrant be drawn to cover the above payment’ and that, accordingly, the comptroller has certified ‘that there is due upon the roll hereunto annexed the sum set against each name [in this instance ‘Boston Elevated Railway Deficiency Fund Boston Elevated Railway Co 2 341 167 29’], amounting in the aggregate to $2,341,167 29 on account of Boston Elevated Railway Deficiency Fund Ch 159, Spec Acts 1918 (see letter attached)'-a letter from the comptroller to the Governor and the Council in which he explained that, in compliance with the request of the Treasurer and Receiver General, ‘I am forwarding this Warrant to you for whatever action you deem advisable in the circumstances.’ See G.L.(Ter.Ed.) c. 29, § 18; Opinion of the Justices, 13 Allen 593.

The questions submitted relate to the duties of the Governor and the Council with respect to the payment of the amount herein referred to in view of the provision of the Constitution of the Commonwealth, Part II, c. 2, § 1, art. 11, which is as follows: ‘No moneys shall be issued out of the treasury of this commonwealth, and disposed of (except such sums as may be appropriated for the redemption of bills of credit or treasurer's notes, or for the payment of interest arising thereon) but by warrant under the hand of the governor for the time being, with the advice and consent of the council, for the necessary...