In re Opinion of the Justices

• Decision Date: 02 April 1919
• Citation: 122 N.E. 763,231 Mass. 603
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 603

122 N.E. 763

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 2, 1919.

Opinion of the Justices of the Supreme Judicial Court, submitted to the Senate of the Commonwealth, pursuant to the following order:

Senate, March 12, 1919.

Whereas, there is now pending in the General Court a bill numbered Senate 54, entitled ‘An act establishing a five cent fare on the lines of the Boston Elevated Railway Company and subsidizing the company from the public treasury for any resulting deficiency,’ a copy of which is herewith submitted; and

Whereas, said bill makes reference to chapter 159 of the Special Acts of the year 1918, and proceeds upon the assumption that said chapter 159 is constitutional and wholly operative, the stockholders of the Boston Elevated Railway Company and the West End Street Railway Company having duly accepted the provisions of said chapter 159, and all the conditions prescribed therein having been performed, which under its terms are necessary in order to render it fully effective; and

Whereas, there is also now pending in the General Court a bill numbered House 722, entitled ‘An act to provide for the assumption of subway rentals by the communities served by the Boston Elevated Railway Company,’ a copy of which is herewith submitted, and which also refers to said chapter 159, and likewise proceeds upon the assumption that said chapter 159 is constitutional and wholly operative; and

Whereas, there are other bills pending before the General Court, to wit, Senate Bills numbered 52 and 287, and House Bills numbered 721, 1351 and 1352, copies of which are hereto annexed, which cannot be intelligently acted upon unless the General Court is authoritatively advised relative to the constitutionality of said chapter 159: Therefore be it

Ordered, that the Senate require the opinions of the honorable the Justices of the Supreme Judicial Court upon the following important questions of law:

(1) Would said Senate Bill No. 54 be constitutional if enacted?

(2) Would said House Bill No. 722 be constitutional if enacted?

(3) Is the whole or any part of said chapter 159 unconstitutional?

(4) Is any part, or are any parts, of said chapter 159 which have a direct relation to the validity of said Senate Bill No. 54 or said House Bill No. 722, unconstitutional?

Senate Bill No. 54 reads:

An act establishing a five cent fare on the lines of the Boston Elevated Railway Company and subsidizing the company from the public treasury for any resulting deficiency.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Section 1. The rate of fare for each single passage over the lines of the Boston Elevated Railway Company that may be fixed by the board of trustees of said company, acting under chapter one hundred and fifty-nine of the Special Acts of nineteen hundred and eighteen, shall not exceed the sum of five cents, and the distance that may be traveled for the sum of five cents shall in no case be less than as established on the day ___ nineteen hundred and eighteen.

Section 2. If the rate of fare chargeable under the provisions of section one is inadequate to meet the cost of the service, less all the items to be deducted as provided in section six of said chapter one hundred and fifty-nine, including dividends as therein specified, the reserve fund established under section five of said chapter one hundred and fifty-nine, shall be used to make up the deficiency as provided in section nine of said chapter one hundred and fifty-nine.

Section 3. If at any time said reserved fund be less than seventy per cent. of its amount as originally established, the trustees shall thereupon give notice to the treasurer and receiver general, and the commonwealth shall thereupon pay over to the company such amount as may be necessary to restore said fund to an amount equal to said seventy per cent. In order to meet any payment required under 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, as provided in the following section, such sums of money as may be necessary to make said payment.

Section 4. All sums advanced to the company under the provisions of the preceding section shall be assessed upon the cities and towns in which the company operates in the manner provided by section fourteen of said chapter one hundred and fifty-nine.

Section 5. So much of said chapter one hundred and fifty-nine as is inconsistent herewith is hereby repealed.

Section 6. This act shall not take effect unless it is accepted by the holders of not less than a majority of all the stock of the Boston Elevated Railway Company, not including the preferred stock issued under section five of said chapter one hundred and fifty-nine, and by the holders of not less than a majority of all the stock of the West End Street Railway Company, given at meetings called for the purpose, and the filing with the secretary of a certificate to that effect signed by a majority of the directors of the Boston Elevated Railway Company.

House Bill No. 722 reads:

An act to provide for the assumption of subway rentals by the communities served by the Boston Elevated Railway Company.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

In order to decrease the rates of fares which would otherwise be necessary to meet the cost of service upon the Boston Elevated Railway, the board of trustees of the Boston Elevated Railway Company are hereby directed quarterly on the first of January, April, July and October to certify to the treasurer and receiver general the amount paid during the preceding quarter for rentals of subways or other property owned by the commonwealth, or any city, town, or other subdivision thereof and leased to said company, and the commonwealth shall thereupon pay over to the company the amount so certified. In order to meet said payments the treasurer and receiver general shall borrow any sums necessary therefor, and thereafter repay the same, and any sums so paid to the company together with interest or other charges incurred in borrowing money therefor shall be assessed upon the cities and towns in which the company is operated, in the manner provided by chapter one hundred and fifty-nine of the Special Acts of the year nineteen hundred and eighteen with reference to deficiencies in the reserve fund thereby established. To the Honorable Senate of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, have considered the questions upon which our opinion is required by the order of March 12, 1919, a copy of which is hereto annexed, and respectfully submit this opinion:

The questions relate primarily to the constitutionality, if enacted, of Senate Bill No. 54 and House Bill No. 722. These bills in form and substance are amendments to Special Acts 1918, c. 159. Nevertheless the proposed changes are so radical as to make them in substance important new legislation and not mere perfecting of the details of an existing statute. In order to express an intelligent opinion upon the proposed bills, it is necessary to examine the original statute. We are constrained to do this under these circumstances notwithstanding the well-settled rule, from which we do not here depart, that we are not required to express to the General Court or either branch thereof opinions as to the constitutionality or construction of statutes already enacted. Commonwealth v. Smith, 9 Mass. 531;Opinion of the Justices, 226 Mass. 607 and references at page 612, 115 N. E. 921.

We consider first Special Acts 1918, c. 159. That act was in substance and effect a taking over of the Boston Elevated Railway by the commonwealth for operation for a limited period of ten years and possibly for a longer period under some circumstances, upon condition that its terms should be accepted by the holders of not less than a majority of all the stock of the Boston Elevated Railway Company and of the West End Street Railway Company and upon the further condition that the Boston Elevated Railway Company should provide for raising $3,000,000 by the issuance of that amount of new and preferred stock. Two main purposes of that act were (1) to provide for the establishment of rates of fares which should be adequate to pay the cost of performing the service furnished by the commonwealth through using the property of the Boston Elevated Railway Company as that cost was defined in section 6; and (2) to make an agreement for the payment of the rental for the use of the Boston Elevated Railway Company and its property by the commonwealth by agreement with the companies interested to be manifested by acceptance by their stockholders. That rental was fixed by sections 5 and 6 at payment not exceeding 7 per cent. on the preferred stock and by payment of dividends on the common stock of 5 per cent. for the first two years, 5 1/2 per cent. for the succeeding two years, and 6 per cent. for the remainder of the period of public operation. The chief design of that act was to provide by public operation for fares at rates sufficient to meet all costs of furnishing the service.

In section 11 provision was made for the advancement of moneys by the commonwealth (to be assessed upon the cities and towns enjoying the service) to maintain the reserve fund. But that was rather an incidental provision to tide over the affairs of the company until the fundamental idea of rates adequate to meet the cost of the service could be established and the habits of the traveling public could become adjusted thereto. That act was accepted by the stockholders of the two corporations and the new stock has been subscribed. Thus the act has become operative according to its terms and constitutes a contract between the parties as...