In re Opinion of the Justices

• Citation: 313 Mass. 779,47 N.E.2d 260
• Parties: OPINION OF THE JUSTICES.
• Decision Date: 24 February 1943
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 779

47 N.E.2d 260

OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

Feb. 24, 1943.

Opinions of the Honorable the Justices of the Supreme Judicial Court as to the constitutionality of ‘an act providing that cities and towns may appropriate money for the removal of snow and ice from private ways therein open to public use if the voters thereof so vote’ (House No. 1287).

The Commonwealth of Massachusetts

Senate, February 16, 1943.

Whereas, There is pending before the general court a bill, current House Document No. 1287, a copy of which is submitted herewith, providing that cities and towns may appropriate money for the removal of snow and ice from private ways therein open to public use, if the voters thereof so vote;

Whereas, Because said bill may authorize the expenditure of public money for private purposes, grave doubt exists as to its constitutionality if enacted into law; and

Whereas, A solemn occasion exists, requiring the opinions of the Honorable the Justices of the Supreme Judicial Court; now, therefore, be itOrdered, That the opinions of the Honorable the Justices of the Supreme Judicial Court be requested by the Senate on the following important questions of law:

1. May the general court authorize cities and towns to appropriate money for the removal of snow and ice from all private ways therein which are open to public use?

2. If the answer to the first question is in the negative, may the general court authorize cities and towns to appropriate money for the removal of snow and ice from private ways therein open and dedicated to the public use which have not become public ways?

3. If the answer to the first question is in the negative, may the general court authorize cities and towns to appropriate money for the removal of snow and ice from private ways therein which have been open to public use for over six years?

4. If the answer to the first question is in the negative, may the general court authorize cities and towns to appropriate money for the removal of snow and ice from such private ways therein open to public use as are designated by the city council or the selectment?

5. If the answer to the first question is in the negative, may the general court authorize cities and towns to appropriate money for the removal of snow and ice from private ways therein open to public use on which the city or town has made repairs?

To The Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the Senate on February 16, 1943, and transmitted to the Justices on February 18, 1943. Copy of the order is hereto annexed.

The questions submitted relate to a bill now pending in the General Court (House, No. 1287) which is entitled ‘An Act providing that cities and towns may appropriate money for the removal of snow and ice from private ways therein open to public use, if the voters thereof so vote.’ The bill, if enacted into law, would amend G.L. c. 40 by inserting after § 6B thereof, as appearing in the Tercentenary Edition, two new sections, one of which, § 6C, is as follows: ‘A city or town which accepts this section in the manner provided in section six D may appropriate money for the removal of snow and ice from such private ways within its limits and open to the public use as may be designated by the city council or selectmen; provided, that for the purposes of section twenty-five of chapter eighty-four, the removal of snow or ice from such a way shall not constitute a repair of a way.’ Section 6D provides a method for submitting § 6C for acceptance to the registered voters of the cities and towns.

The order recites that the opinions of the Justices are requested for the reason that ‘grave doubt exists as to * * * [the] constitutionality [of the bill] if enacted into law’ because it ‘may authorize the expenditure of public money for private purposes.’

The first question submitted is: ‘May the general court authorize cities and towns to appropriate money for the removal of snow and ice from all private ways therein which are open to public use?’

This question must be answered with respect to the pending bill. Opinion of the Justices, 309 Mass. 631, 641, 35 N.E.2d 676. And we so answer it. Purely abstract questions of law cannot properly be answered. Opinion of the Justices, 301 Mass. 615, 617, 17 N.E.2d 906;Id., 309 Mass. 609, 614, 35 N.E.2d 5. And it is not the function of the Justices to interpret a pending bill except so far as interpretation is required in answering questions submitted. Opinion of the Justices, 308 Mass. 601, 607, 32 N.E.2d 298;Id., 309 Mass. 571, 581, 34 N.E.2d 527.

The pending bill, according to its terms, relates to ‘private ways * * * open to the public use.’ The words ‘private ways' are susceptible of different meanings. It is a statutory rule of construction of statutes, which will be applicable to the pending bill, if enacted, that ‘Words and phrases shall be construed according to the common and approved usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning‘ G.L.(Ter.Ed.) c. 4, § 6, Third, but this rule is not to be followed if it ‘would involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute.’ G.L.(Ter.Ed.) c. 4, § 6. Chapin v. Lowell, 194 Mass. 486, 488, 80 N.E. 618. Although the words ‘private ways' may occasionally be used in the statutes with a different meaning, see, for example, G.L. (Ter.Ed.) c. 84, §§ 12-14, they commonly mean ways of a special type laid out by public authority for the use of the public. G.L.(Ter.Ed.) c. 82, §§ 21-32A. Such “private ways' are private only in name, but are in all other respects public.’ Denham v. Bristol County Commissioners, 108 Mass. 202, 208;Munroe v. Worthington Pump & Machinery Corp., 245 Mass. 474, 478, 139 N.E. 828. See, also, Flagg v. Flagg, 16 Gray 175. It may be that in the pending bill the words ‘private ways' are used in this technical sense. Or it may be that the words ‘private ways' in connection with the words ‘open to the public use’ mean or include ways ‘opened and dedicated to the public use, which [have] not become * * * public way[s],’ within the meaning of G.L. (Ter.Ed.) c. 84, §§ 23-25. See Smith v. Lowell, 139 Mass. 336, 340, 1 N.E. 412. A dedication of a way to the public use within the meaning of this statute is permanent. Longley v. Worcester, 304 Mass. 580, 588, 24 N.E.2d 533. But the words ‘private ways', as commonly understood and as sometimes used in the opinions of this court, have a broader meaning than either of the meanings here mentioned. See Warner v. Holyoke, 112 Mass. 362, 368;Paine v. Brockton, 138 Mass. 564, 567;Brooks v. West Boston Gas Co., 260 Mass. 407, 410, 157 N.E. 362. The words may well mean or include defined ways for travel, not laid out by public authority or dedicated to public use, that are wholly the subject of private ownership, either by reason of the ownership of the land upon which they are laid out by the owner thereof (see Morse v. Stocker, 1 Allen 150;Munroe v. Worthington Pump & Machinery Corp., 245 Mass. 474, 478, 139 N.E. 828), or by reason of ownership of easements of way over land of another person. For reasons that will later appear we think an interpretation of the words ‘private ways' in the pending bill is not required in answering the question submitted.

The words ‘open to the public use’ in the pending bill, however, require interpretation. The meaning of the words is not necessarily limited to ‘open to the public use’ as of right or permanently, and may include ‘open to the public use’ by license or permission, although such license or permission is terminable at the will of the owner of the private way in question. See Morse v. Stocker, 1 Allen 150, 154, 156, 157. But ‘open to the public use’ as applied to a private way naturally means that such way is actually susceptible of use by the public other than for purposes that are merely incidental to...