In re Opinions of the Justices
| Citation | 293 Mass. 589,199 N.E. 538 |
| Parties | In re OPINIONS OF THE JUSTICES. |
| Decision Date | 31 December 1935 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Opinion of the Justices of the Supreme Judicial Court on questions submitted by Order of the House of Representatives.On June 28, 1935, the House of Representatives adopted the following order:
Whereas, there is pending before the General Court a bill entitled: ‘An Act providing for the Acquisition by the Boston Metropolitan District of the Entire Assets, Property and Franchises of the Boston Elevated Railway Company,’ printed as House No. 2141, a copy whereof is hereto annexed, which bill relates to the policy to be pursued by the commonwealth with reference to public ownership by the Boston Metropolitan District of the Transportation system of the Boston Elevated Railway Company and the management and operation thereof under such public ownership; and
Whereas, the funds necessary for the acquisition by said district of such assets, property and franchises are to be obtained under said bill by the sale of bonds of said district to the amount of many million dollars, upon the successful sale of which, at adequate prices and at reasonable interest rates, the whole plan and purpose of said bill depend; and
Whereas, the interest rates which must be paid upon said bonds, the prices which said district may obtain for them, and their marketability, depend upon the rights which said bill would give to purchasers or holders of said bonds, and particularly upon the extent to which, under the terms and conditions of said bonds, as provided for in said bill, the provisions of said bill if enacted into law, could constitutionally be varied by subsequent legislation and upon the certainty as to whether or not there would be available to purchasers or holders of such bonds any effective remedy to prevent violation of such rights as are given to them by the terms of said bonds or under section fifteen of part II of said bill; and
Whereas, the House of Representatives is of the opinion that the General Court ought not to proceed further in its consideration of said bill until certain grave questions of law rising in respect to the said bill 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 said bill is enacted into law and bonds of said district are issued and sold containing the recitals required by section fifteen of part II of said bill, would the enactment of subsequent legislation by the General Court (1) varying the provisions of said bill relative to the management and operation of the transportation system to be acquired thereunder, otherwise than in accordance with the provisions of said section fifteen, or (2) altering the provisions of section three of part II of said bill regulating certain construction and the making of certain contracts or leases which would increase the capital debt of the district, or (3) authorizing such construction or the making of such contracts or leases otherwise than in accordance with the provisions of said section three, constitute a violation of section 10 of article 1 of the Constitution of the United States?
[293 Mass. 592]2. If said bill is enacted into law and bonds of said district are issued and sold as aforesaid, would it be constitutionally competent for the General Court to enact any such subsequent legislation?
3. If said bill is enacted into law and bonds of said district are issued and sold as aforesaid, would it be constitutionally competent for the General Court to enact subsequent legislation, otherwise than in accordance with the provisions of said section fifteen,
(a) Regulating or fixing fares or charges for services (see section five of said part II);
(b) Directing the operation of particular street railway, rapid transit or bus lines or otherwise determining the character and extent of the services and facilities to be furnished (see said section five);
(c) Altering the provisions of section six of said part II relative to the determination, certification and payment of deficiencies or deficits in the cost of service and to assessment and collection thereof;
(d) Abolishing the board of transportation created by section one of said part II and providing for the appointment of a substitute board;
(e) Changing the provisions of said section one with reference to tenure of office or method of appointment or removal of members of said board;
(f) Modifying or changing the provisions of section five of said part II; or
(g) Varying in any way the provisions of said bill relative to the management and operation of the transportation system to be acquired thereunder?
4. If said bill is enacted into law and bonds of said district are issued and sold as aforesaid, could an individual holder of such a bond containing the recitals required by said section fifteen maintain any action at law or suit in equity to effectively enforce such recitals in the event of the enactment of any subsequent legislation such as is set forth in each of the items specified in question three or which alters the provisions of section three of part II of said bill regulating certain construction and the making of certain contracts or leases which would increase the capital debt of the district, or in the event of the enactment of any subsequent legislation, otherwise than pursuant to said provisions of said section three, which authorizes any construction or making of any contract or lease as aforesaid?
5. If said bill is enacted into law and bonds of said district are issued and sold as aforesaid, could any city or town within the limits of the Boston Metropolitan District or any individual holder of such a bond containing the recitals required by said section fifteen, or any other person, maintain any action at law or suit in equity to restrain said district or the board of transportation thereof or its members or any other person from acting under or in accordance with any subsequent legislation such as is set forth in each of the items specified in question three, or which alters the provisions of section three of part II of said bill regulating certain construction and the making of certain contracts or leases which would increase the capital debt of the district, or under or in accordance with any subsequent legislation, enacted otherwise than pursuant to said provisions of said section three, which authorizes any construction or making of any contract or lease as aforesaid?
6. Is it constitutionally competent for the General Court, as proposed in said bill, to authorize the Boston Elevated Railway Company to contract to sell, assign, transfer and convey to the Boston Metropolitan District all its assets, property, privileges and franchises upon the terms and conditions set forth in part I of said bill, if such sale is authorized by the holders of not less than 65 per cent. of the entire capital stock of the company, assuming that all such stock is entitled to vote?
7. In view of the provisions of sections one and three of part I of said bill, providing for the assumption by the Boston Metropolitan District of all indebtedness, obligations and liabilities of the company, and authorizing direct action against the district at law or in equity to enforce the same, it is constitutionally competent for the General Court to provide for the dissolution of the company and distribution of cash received from the sale of its assets, property, privileges and franchises, as set forth in section four of said part I?
8. Is it constitutionally competent for the General Court to provide that all the assets, property, privileges and franchises of the Boston Elevated Railway Company shall be transferred to and vested in the Boston Metropolitan District without further or other conveyance, assignment, transfer, deed, agreement or writing, as provided in section three of part I of said bill?
9. If said bill is enacted into law, would it be subject to the referendum provisions of article 48 of the amendments to the Constitution of the Commonwealth?
The order was transmitted to the Justices on July 1, 1935, and on December 31, 1935, they returned the following answers:
The Justices of the Supreme Judicial Court respectfully submit these answers to questions contained in the order adopted on June 28, 1935, copy whereof is hereto annexed. The questions relate to a pending bill entitled, ‘An Act providing for the Acquisition by the Boston Metropolitan District of the Entire Assets, Property and Franchises of the Boston Elevated Railway Company.’ That title is fairly descriptive of the scope of the bill. The Boston Elevated Railway Company was incorporated by St.1894, c. 548. Large powers were conferred upon it; by section 4, it was authorized to mortgage or pledge its franchise and property as security for its bonds, and by section 16, it was enpowered to establish a fare not in excess of 5 cents for a single ride, which sum could not be reduced by the Legislature during a period of twenty years. See, also, St.1897, c. 500, §§ 10, 17, 19, 21. It was granted by subsequent legislation exclusive leases for terms of years of subways and tunnels. By Sp.St.1918, c. 159, its management and operation were taken over by the commonwealth as a public enterprise and exercised through a board of trustees appointed by the Governor with the advice and consent of the council. That statute constituted in substance a lease of the properties of the railway company to the commonwealth. The income derived from that operation has not been sufficient to meet required expenses at least for a part of the time, and taxes have been levied to make up the deficiency. Boston v. Treasurer and Receiver General, 237 Mass. 403, 415, 420, 421, 130 N.E. 390. The Boston Metropolitan District was created by St. 1929, c. 383 (see St.1931, c. 333; St.1932, c. 147) as a political subdivis...
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