Opinion of the Justices

• Citation: 113 N.E.2d 452,330 Mass. 713
• Parties: OPINION OF THE JUSTICES.
• Decision Date: 22 May 1953
• Court: United States State Supreme Judicial Court of Massachusetts

Page 452

113 N.E.2d 452

330 Mass. 713

OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

May 22, 1953.

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

Whereas, Chapter 354 of the Acts of 1952 established the Massachusetts Turnpike Authority which under the provisions of said Act was charged with the construction of a toll express highway from a point in the vicinity of Boston to a point at or near the boundary line between the Commonwealth and the State of New York, and

Whereas, the route for said toll highway is to be established by the Turnpike Authority subject to the approval of the Department of Public Works, and

Whereas, there was appropriated from the Highway Fund under the provisions of Section 18 of said Act the sum of $500,000 to provide for the preliminary expenses of the Authority, and

Whereas, the Turnpike Authority has already expended a sum approximating $300,000 of the $500,000 appropriated to its uses and now proposes to spend additional amounts of money pursuant to said Act, and

Whereas, under Section 5 of said Act power is granted to the Turnpike Authority 'to acquire sites abutting on the Turnpike and to construct or contract for the construction of buildings and appurtenances for gasoline stands, restaurants and other services, and to lease the same for the above purposes in such manner and upon such terms as it may be determined,' and further to take other lands for general purposes of the Turnpike by eminent domain, and

Whereas, doubts exist as to the power and authority of the Executive Department of the Commonwealth and the power and duty of officers under its direction, in the face of constitutional questions which have been raised, to proceed to the discharge of functions assigned to them under applicable provisions of Chapter 354, and

Whereas, such doubts have an important bearing on the marketability of the bonds which the Act contemplates shall be issued, and

Whereas, a further doubt exists as to the constitutionality of said Chapter 354 by reason of its failure to specify any definite route and location for the Turnpike, in view of Article X of Part the First of the Constitution, and

Whereas, the existing uncertainty creates a solemn occasion within the meaning of Article II of Chapter III of Part the second of the Constitution of the Commonwealth; therefore, be it

Ordered, That the opinion of the Justices of the Supreme Judicial Court be required by the Governor and Concil upon the following important questions of law:

1. Is the general grant of powers to the Massachusetts Turnpike Authority, as set forth in Section 1, 5 and 7 of Chapter 354 of the Acts of 1952, a constitutional delegation of authority by the General Court?

2. Does paragraph (f) of said Section 5 providing for the acquisition of 'sites abutting on the turnpike' for the purposes therein set forth, or paragraph (k) providing for the acquisition by eminent domain of 'any fee simple absolute or any lesser interest in such private property as it may deem necessary for carrying out the provisions of this act, including any fee simple absolute in, easements upon, or the benefit of restrictions upon, abutting property to preserve and protect the turnpike', contravene any provision of Article X of Part the First of the Constitution of the Commonwealth?

3. It there is any unconstitutional delegation of certain powers to the Massachusetts Turnpike Authority by the General Court, would such unconstitutional delegation render said Chapter 354 of the Acts of 1952 unconstitutional in its entirety, in view of Section 20 of said Chapter 354?

4. Is Chapter 354 of the Acts of 1952 a constitutional exercise of legislative power?

[CHAP. 354]

An Act Providing for the Construction, Maintenance, Repair and Operation of a Self-Liquidating Express Highway from a Point in the Vicinity of the City of Boston to a Point at or Near the New York State line; Creating the Massachusetts Turnpike Authority and Defining its Powers and Duties; and Providing for the Financing of Such Express Highway.

Whereas, The deferred operation of this act would unnecessarily delay the construction of the much needed express highway provided for herein and thereby delay the removal of many of the present handicaps and hazards on the congested highways in the commonwealth, therefore this act is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety and convenience. Be it enacted, etc., as follows:

Section 1. Massachusetts Turnpike.--The Massachusetts Turnpike Authority (hereinafter created) is hereby authorized and empowered, subject to the provisions of this act, to construct, maintain, repair and operate at such location as may be approved by the state department of public works a toll express highway, to be known as the 'Massachusetts Turnpike', from a point in the vicinity of the city of Boston to a point at or near the boundary line between the Commonwealth and the State of New York or such part or parts thereof as it may determine, and to issue turnpike revenue bonds of the Authority, payable solely from revenues, to finance such turnpike.

Section 2. Credit of Commonwealth not Pledged.--Turnpike revenue bonds issued under the provisions of this act shall not constitute a debt of the commonwealth or of any political subdivision thereof or a pledge of the faith and credit of the commonwealth or of any such political subdivision, but such bonds shall be payable solely from the funds herein provided therefor from revenues. All such turnpike revenue bonds shall contain on the face thereof a statement to the effect that neither the commonwealth nor the Authority shall pay the same or the interest thereon except from revenues of the turnpike and that neither the faith and credit nor the taxing power of the commonwealth or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such bonds.

All expenses incurred in carrying out the provisions of this act shall be payable solely from funds provided under the Authority of this act and no liability or obligation shall be incurred by the Authority hereunder beyond the extent to which moneys shall have been provided under the provisions of this act.

Section 3. Massachusetts Turnpike Authority.--There is hereby created and placed in the state department of public works a body politic and corporate to be known as the 'Massachusetts Turnpike Authority', which shall not be subject to the supervision and regulation of the department of public works or of any other department, commission, board, bureau or agency of the commonwealth except to the extent and in the manner provided in this act. The Authority is hereby constituted a public instrumentality, and the exercise by the Authority of the powers conferred by this act in the construction, operation and maintenance of the turnpike shall be deemed and held to be the performance of an essential governmental function.

The Massachusetts Turnpike Authority shall consist of three members, to be appointed by the governor, by and with the advice and consent of the council, who shall be residents of the commonwealth, not more than two of whom shall be of the same political party. The members of the Authority first appointed shall continue in office for terms expiring on July first, nineteen hundred and fifty-eight, July first, nineteen hundred and fifty-nine and July first, nineteen hundred and sixty, respectively, the term of each such member to be designated by the governor, and until their respective successors shall be duly appointed and qualified. The governor shall designate one of the members as chairman who shall serve as such during his term of office. Upon the expiration of the term of office of such chairman, the governor shall appoint one of the members as his successor as chairman. The successor of each member shall be appointed for a term of eight years, except that any person appointed to fill a vacancy shall serve only for the unexpired term. Any member of the Authority shall be eligible for reappointment. Each member of the Authority before entering upon his duties shall take an oath before the governor to administer the duties of his office faithfully and impartially, and a record of such oaths shall be filed in the office of the secretary of the commonwealth.

The Authority shall elect one of the members as vice chairman thereof and shall also elect a secretary-treasurer who need not be a member of the Authority. Two members of the Authority shall constitute a quorum and the affirmative vote of two members shall be necessary for any action taken by the Authority. No vacancy in the membership of the Authority shall impair the right of a quorum to exercise all the rights and perform all the duties of the Authority.

Before the issuance of any turnpike revenue bonds under the provisions of this act, each member of the Authority shall execute a surety bond in the penal sum of twenty-five thousand dollars, and the secretary-treasurer shall execute a surety bond in the penal sum of fifty thousand dollars, each such surety bond to be conditioned upon the faithful performance of the duties of his office, to be executed by a surety company authorized to transact business in the commonwealth as surety and to be approved by the attorney general and filed in the office of the secretary of the commonwealth. The chairman of the Authority shall receive an annual salary of twelve thousand dollars and the other members shall each receive an annual salary of ten thousand dollars. Each member shall be reimbursed for his actual expenses necessarily incurred in the performance of his duties. All expenses incurred in carrying out the provisions of this act shall be paid solely from funds provided under the authority of this act and no liability or obligation shall be incurred by the Authority...