Opinion of the Justices, In re

• Decision Date: 15 July 1958
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 90

152 N.E.2d 90

337 Mass. 800

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

July 15, 1958.

The undersigned Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order of the Senate dated July 8, 1958, and transmitted to us on July 10. The order refers to a bill pending before the Senate which has been amended from a bill printed in Senate No. 765, which is a report by the special commission to investigate and study the continuation of freight and passenger service by the New York, New Haven and Hartford Railroad Company, Boston and Maine Railroad, and Boston and Albany Railroad, and the relocation of the South Station Terminal. See c. 43 of the Resolves of 1958.

The title of the amended bill is 'An act establishing the Old Colony Area Transportation Commission for the purpose of making a contract with the New York, New Haven and Hartford Railroad Company to continue passenger service until July first, nineteen hundred and fifty-nine on the Old Colony lines and extend an option to buy said lines.'

The bill has the following preamble: 'Whereas, The deferred operation of this act would tend to defeat its purpose, which is to avoid substantial loss of employment, great reduction in property values, other irreparable harm to the economic welfare of the southeastern part of the commonwealth and to the city of Boston and vehicular traffic congestion and other hardships in travelling which will ensue if, on July eighth in the current year, railroad passenger service into and out of the city of Boston upon the lines formerly owned by the Old Colony Railroad Company is discontinued pursuant to a certain plan of reorganization, therefore this act is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.'

We summarize the provisions of the bill. There is created until July 1, 1959, the Old Colony Area Transportation Commission, to consist of five persons appointed by the Governor with the advice and consent of the Council, one from Boston and four from certain cities and towns in the area, no two to be from the same municipality (§ 1). The commission is to enter into a contract in the name and behalf of the Commonwealth with the New York, New Haven and Hartford Railroad Company whereby in consideration of an agreement by the Commonwealth to pay the railroad company $900,000 in four equal installments of $225,000 each on October 1, 1958, and January 2, April 1, and July 1, 1959, the railroad company shall agree (1) to grant an option to the Commonwealth to purchase on or before August 15, 1959, a portion of certain lines in the area; and (2) to operate railroad passenger service until July 1, 1959. The option is to be upon that portion of the Boston group lines extending from Boston to Braintree, and the purchase is to be at the salvage value which was accepted and confirmed in 1945 by the United States District Court for the District of Connecticut, Matter of New York, New Haven & Hartford R. Co., 163 F.Supp. 59, in the bankruptcy proceedings for reorganization of the railroad company, plus the depreciated amount of subsequent capital improvements. The option is (a) to be limited to such facilities appurtenant to the Boston-Braintree segment as shall be reasonably required by the Commonwealth for its passenger operation and subject to a right in the railroad company to make joint use of such of those facilities as are not reasonably required for the exclusive use of the Commonwealth; and (b) to be accompanied by an undertaking by the railroad company to accord to the Commonwealth so far as possible, in the event it exercises such option, the right to use the Boston Terminal Company property on the same terms and conditions as enjoyed by the railroad company. The agreed passenger service is to be to and from Boston through the Atlantic station in Quincy to designated stations in Scituate, Plymouth, Falmouth, and Barnstable. The service is to be of the same type as, or of a type which in the judgment of the commission is better than, the service furnished on those lines during the year beginning July 1, 1957, and of a quality and with equipment at least as good as the service furnished during that year. The service is to be furnished on the same or more frequent operating schedules for each season for the designated stations and all intermediate stations as the service furnished during that year, and at tariffs in effect upon the passage of the proposed act (§ 2).

The commission has the duties of superintending for the Commonwealth the performance of the contract and of investigating complaints as to the railroad company's performance, and may refer complaints for advice to a board, established by the bill, known as Old Colony Area Transportation Advisory Council. Upon application of the Commonwealth acting by the Attorney General at the request of the commission, the Superior Court shall have jurisdiction in equity to compel specific performance of the contract by the railroad company (§ 2).

The first payment of $225,000 due on October 1, 1958, is to be made on or before that date by the city of Boston, the assessors of which shall include that sum in assessing taxes in the current year under G.L. c. 59, § 23. The three instalments payable in 1959, with interest or other charges incurred in borrowing money to pay those instalments, shall be assessed as provided in G.L. c. 59, § 20 (as amended through St.1946, c. 432, § 1), upon thirty-seven municipalities in proportions set forth in a schedule. The State Treasurer is authorized to borrow to pay the instalments due in 1959 (§ 3).

The Old Colony Area Transportation Advisory Council is to exist until July 1, 1959, and is to consist of the mayor of each city and the chairman of the board of selectmen in each town whose votes shall be in proportion to the amount of payments, exclusive of interest or other charges, made under § 3. The council shall act only by the affirmative vote of two thirds of the total number of votes in the council (§ 4). The council shall make to the General Court recommendations as to the continuation after July 1, 1959, of commuter service between the Old Colony transportation area and Boston (§ 5).

The order contains these recitals:

'Whereas, Section 1 of Article LXII of the Amendments to the Constitution of Massachusetts provides as follows:----

"The credit of the commonwealth shall not in any manner be given or loaned to or in aid of any individual, or of any private association, or of any corporation which is privately owned and managed.'; and

'Whereas, Under Article X of the Declaration of Rights, Article IV of Section 1 of Chapter I and other provisions of the Constitution of Massachusetts and under the Fourteenth Amendment to the Constitution of the United States public money may not be used except for a public service or a public use; and

'Whereas, Said bill as amended and changed originated in the Senate; and

'Whereas, Article VII, Section III, Chapter I of the Constitution of Massachusetts provides 'All money bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.'; and

'Whereas, Grave doubt exists as to the constitutionality of said amended bill if enacted into law.'

The questions are:

'1. Would the payment of money by the commonwealth to the New York, New Haven and Hartford Railroad under the provisions of the contract described in said amended bill violate the provisions of said section 1 of Article LXII of the Constitution of Massachusetts?

'2. Would the payment of money by the commonwealth to the New York, New Haven and Hartford Railroad under the provisions of the contract described in said amended bill violate said provisions of the Constitution of Massachuetts or of the United States which prohibit the expenditure of public money except for a public service or a public use?

'3. Is said pending bill, as amended and changed, a money bill within the meaning of said Article VII, Section III, Chapter I of the Constitution of Massachusetts?'

The basic problem is raised by question 2, and is whether the proposed bill involves any constitutionally prohibited expenditure of public money for other than a public service or a public use. The purpose of the bill, read as a whole, is to preserve within an important area of the Commonwealth valuable rail transportation and rail facilities. Under the bankruptcy reorganization plan of the railroad company service on the portion of the former Old Colony lines here involved could be abandoned in circumstances which it is not necessary to recite. See e. g. New York, New Haven & Hartford R. Co., Reorganization, 254 I.C.C. 63, 86-99; ibid., 405, 419-423; In re New York, New Haven & Hartford R. Co., D.C.D.Conn., 54 F.Supp. 595, 610-618; Id., 2 Cir., 147 F.2d 40, 51 certiorari denied sub nom. Commonwealth of Massachusetts v. New York, New Haven & Hartford R. Co., 325 U.S. 884, 65 S.Ct. 1577, 89 L.Ed. 1999; In re New York, New Haven & Hartford R. Co., 2 Cir., 150 F.2d 169. Under the reorganization plan also, in certain circumstances, which we need not set out, but which are referred to in the last paragraph of § 2 of the present bill, the Commonwealth was given an option to purchase certain parts of the Old Colony lines which might be of use in a permanent solution (see special commission's report) of 'the difficult problem of providing transportation and reasonable access to Boston for the citizens of southeastern Massachusetts.' An extension of this option, or the negotiation of a new option is a major feature of § 2 of the pending bill.

The report of the special commission shows (a) that on May 13, 1958, the railroad company gave notice of intention to abandon passenger service on the lines pursuant to its privilege under the reorganization plan, and (b) that on June 25 it was...