Opinion of the Justices
| Decision Date | 27 May 1954 |
| Citation | 331 Mass. 771,120 N.E.2d 198 |
| Parties | OPINION OF THE JUSTICES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the House of Representatives on May 18, 1954, and transmitted to the Justices on May 19.
The questions relate to a bill now pending before the House, entitled 'An Act to provide for the housing of elderly persons of low income.' The order adopted by the House contains recitals to the effect that there is not in certain parts of the Commonwealth an adequate supply of decent, safe, and sanitary housing for elderly persons of low income available for rents which such persons can afford to pay, and the rents which such persons can afford to pay would not warrant private enterprise in providing such housing for such persons; that this situation tends to cause an increase and spread of communicable and chronic diseases and is detrimental to property values in the localities in which it exists and constitutes a menace to the health, safety, welfare, and comfort of the inhabitants of the Commonwealth; that a public exigency exists which makes the provision of housing for elderly persons of low income a public necessity; that this situation can be relieved only by construction of such housing by a housing authority under a contract for financial assistance, entered into between such authority and the Commonwealth, and by authorizing such authorities to take land by eminent domain; and that the pending bill incorporates by reference the provisions of section 26GG of c. 121 of the General Laws. See G.L. (Ter.Ed.) c. 121, § 26GG, as appearing in St.1949, c. 760, § 41.
The pending bill amends that part of the housing authority law contained in c. 121 of the Tercentenary Edition of the General Laws and appearing under the caption 'Part VII' in St.1953, c. 668, § 1. It provides that the housing authority of each city or town shall have power to provide housing for elderly persons of low income either in separate projects or in projects undertaken under Part III or Part V of the chapter, or in remodeled or reconstructed existing buildings, and that the provisions of Parts I, II, III, and V of the chapter shall, so far as apt, be applicable to projects and parts of projects undertaken under Part VII, except as otherwise provided in the chapter. It is further provided that housing for elderly persons of low income shall be designed so as to alleviate the infirmities characteristic of the elderly. The bill amends section 26NN so as to provide that a housing authority may remodel or reconstruct parts or projects erected under that section to make the same available for occupancy by elderly persons qualifying for housing under the proposed bill. The term 'Elderly persons of low income' is defined by existing law as meaning 'persons having reached the age of sixty-five or over whose annual net income is less than the amount necessary to enable them to maintain decent, safe and sanitary housing.' § 26J, St.1953, c. 668, § 3.
The pending bill also contains provisions relative to financing to the effect that the Commonwealth, acting through the State housing board, may contract with a housing authority for State financial assistance in the form of a guaranty by the Commonwealth of housing authority bonds or notes issued to finance the cost of projects, and of annual contributions by the Commonwealth to the authority.
The questions are as follows:
'(a) Under the power to make all manner of reasonable and wholesome laws under Part II, Chapter I, Section I, Article IV of the Constitution of the Commonwealth;
'(b) Under the provisions of Part I, Article X, empowering the legislature to authorize the taking of land by eminent domain for a public purpose;
'(c) Under Article XLIII of the Articles of Amendment authorizing the Commonwealth to take land and to hold, improve, subdivide, build upon and sell the same for the purpose of relieving congestion of population and providing homes for citizens?
The finding of the House contained in the order are entitled to weight, since they are set forth as 'the conditions' upon which question 1 is predicated. See Lawell v. City of Boston, 322 Mass. 709, 735, 79 N.E.2d 713.
In the case of Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288, 23 N.E.2d 665, this court decided that the housing authority law as then appearing in G.L. (Ter.Ed.) c. 121, §§ 26I to 26II, inserted by St.1938, c. 484, § 1, was constitutional. That decision rested upon the double aspect of the statute as providing for slum clearance and for the elimination of unsafe or unsanitary buildings as well as for low rent housing, and upon the belief that, in view of the legislative findings contained in that statute, slum clearance and the elimination of unsafe and unsanitary dwellings were public purposes for which public money could be expended, and that the provisions for low rent housing complemented the other provisions and did not render the statute unconstitutional.
The proposed bill in the present instance is in many respects similar to the statute passed upon in the Allydonn case. It incorporates by reference, 'so [far?] as apt,' § 26GG, which in its present form, as appearing in St.1949, c. 760, § 4, although somewhat weakened by amendments subsequent to its appearance as section 26CC in the statute of 1938, still provides in general terms for the elimination of 'unsafe or unsanitary dwelling units situated in the locality or metropolitan area substantially equal in numbers to the number of newly constructed dwelling units provided by such project'. But section 26GG does not fully cover the activities contemplated by the pending bill. The pending bill in its section 26TT expressly says that projects to provide housing for elderly persons of low income may be undertaken 'in remodeled or reconstructed existing buildings'. Section 26GG by its express terms applies only to projects 'involving the construction of new dwellings'. That section therefore would not be 'apt' with reference to a project that involved no new construction. So far as we can see, if the proposed bill is enacted, it might be possible for a housing authority to take over a large existing hotel as a housing project for elderly persons of low income without ever eliminating any slums or any unsafe or unsanitary dwellings. Moreover, section 2 of the pending bill provides for so amending the present section 26NN as to permit a housing authority to remodel or reconstruct for...
To continue reading
Request your trial
- Opinion of the Justices
-
Massachusetts Home Mortg. Finance Agency v. New England Merchants Nat. Bank of Boston
... ... On March 1, 1978, the bank received an opinion from its counsel doubting the constitutionality of the special act and the validity of the notes of the MHMFA on the ground, among others, that the ... We think it may be helpful to review briefly a number of decisions by this court and opinions of the Justices of this court showing the application and development of this fundamental constitutional principle since the Lowell decision ... ...
-
Massachusetts Bay Transp. Authority v. Boston Safe Deposit & Trust Co.
... ... Provisions of the statute, so far as material to the issues before us, will be discussed later in this opinion ... The Transportation Crisis and the Authority's Immediate Plans ... The financial situation of the majority of the railroads ... The general purpose of G.L. c. 161A is, as the defendants recognize, clearly public. Opinion of the Justices, 337 Mass. 800, 806-807, 152 N.E.2d 90, and cases cited. Transportation concerns every inhabitant of the Commonwealth and every aspect of our ... ...
-
Sheiner v. State
... ... Minutes of Supreme Court of California, 43 A.C. No. 17, page 2. Our attention is also called to an advisory opinion of the Supreme Judicial Court of Massachusetts, Opinion of the Justices, 126 N.E.2d 100, addressed to the House of Representatives, dated April 13, ... ...
-
What's yours can be mine: are there any private takings after Kelo v. City of New London?
...Water Works Co. v. Bird, 130 N. Y. 249). (80.) See, e.g., Neufeld v. O'Dwyer, 79 N.Y.S.2d 53 (N.Y. 1948); Opinion of the Justices, 120 N.E.2d 198 (Mass. 1954); Davis v. City of Lubbock, 326 S.W.2d 699 (Tex. 1959) (all affirming the use of eminent domain for slum (81.) Berman v. Parker, 348 ......