Opinion of the Justices
| Decision Date | 19 June 1956 |
| Citation | 136 N.E.2d 223,334 Mass. 721 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | OPINION OF THE JUSTICES. |
The Justices of the Supreme Judicial Court respectfully submit these answers to questions set forth in an order of the Senate dated May 16, 1956, and transmitted to us on May 24.
The questions relate to a pending bill creating the Massachusetts Port Authority, hereinafter called the Authority, to take over, finance and operate the existing East Boston vehicular tunnel, known as the Sumner tunnel, the State owned airports at East Boston and Bedford, the Mystic River Bridge, and the 'port properties,' consisting of piers and harbor facilities, and to finance, construct, and operate an additional crossing by bridge or tunnel between Boston proper and East Boston.
The bill comprises thirty closely printed pages, including in § 1 about five pages of definitions of the terms employed. We shall attempt to summarize only the portions of the bill that seem directly involved in the questions asked.
The Authority is to be 'placed in the department of public works,' but 'shall not be subject to the supervision or regulation of the department of public works or of any department, commission, board, bureau or agency of the commonwealth except to the extent and in the manner provided in this act.' It is described as 'a body politic and corporate.' It is 'constituted a public instrumentality and the exercise by the Authority of the powers conferred by this act shall be deemed and held to be the performance of an essential governmental function.' The Authority is to consist of seven members appointed by the Governor with the advice and consent of the Council for terms of seven years, with provision for staggered terms and for removal of members by the Governor with the advice and consent of the Council for certain causes mentioned. § 2.
Among the powers granted to the Authority by § 3 are these:
To adopt by-laws for the regulation of its affairs and the conduct of its business, and to fix penalties not in excess of $100 for violation thereof.
To adopt an official seal.
To sue and be sued in its own name.
To extend, enlarge, improve, rehabilitate, lease as lessor or as lessee, maintain, repair, and operate the projects under its control, and to establish rules and regulations for the use of any such projects, subject to exceptions as to the operation of aircraft and the powers of police officers not here material.
To issue its revenue bonds, payable solely from revenues.
To fix and to revise tolls, rates, fees, rentals, and other charges for the use of any project under its control, with certain qualifications not material here.
'To acquire, hold and dispose of real and personal property in the exercise of its powers and the performance of its duties under this act.'
'To acquire in its own name by purchase or otherwise, on such terms and conditions and in such manner as it may deem proper, or by the exercise of the power of eminent domain * * * such public or private lands * * * as it may deem necessary for carrying out the provisions of this act; provided, that the Authority shall act in its name and on its behalf in exercising its functions under this clause. * * *'
To apply for and receive Federal grants.
'To make and enter into all contracts and agreements necessary or incidental to the performance of its duties * * *.'
Section 4 contains further power to acquire property by purchase 'and to take title thereto in the name of the Authority,' and to acquire 'in its own name by purchase or otherwise' or to take by eminent domain real estate. Provision is made for the relocation or removal of tracks and public utilities.
'Title to the airport properties shall be vested in the Authority,' and possession shall be transferred to it upon the payment to the treasurer of the Commonwealth of the aggregate principal amount of certain bonds of the Commonwealth issued under certain previous enactments and of a sum equal to the aggregate cash payments under certain other previous acts. § 5.
'[T]itle to the port properties shall be vested in the Authority' and possession shall be transferred to it upon the issue of revenue bonds and the application of their proceeds under § 8, certain payments being made to the treasurer of the Commonwealth until there shall have been paid a sum equal to payments previously made by the Commonwealth under certain statutes and to the principal outstanding amounts of certain bonds of the Commonwealth issued under certain enumerated statutes, and interest thereon after the transfer. § 6.
By § 8 the Authority is given power to issue 'revenue bonds of the Authority' to provide funds for refunding the Mystic River Bridge revenue bonds, paying to the city of Boston $2,619,380 heretofore paid by the city for operating deficits of the Sumner tunnel, paying to the city $5,300,000, 'determined to be the amount,' in addition to the amount of other sums mentioned, 'due the city in payment of just compensation for the tunnel,' paying to the commissioners of sinking funds of the city the principal of outstanding tunnel bonds, paying the cost of the additional crossing, making the required payments to the treasurer of the Commonwealth for the airport properties, and making some other payments that need not be detailed here. This section further provides that the payments to the city of Boston and its sinking fund commissioners for the Sumner tunnel shall be presumed to constitute just compensation for the tunnel, if accepted or not rejected by vote of the city council within sixty days after the effective date of the act.
'The principal of and the interest on all bonds issued under the provisions of this act shall be payable solely from the funds provided therefor from revenues as herein provided.' § 10. The bonds 'shall not be deemed to 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.' § 11.
The bonds are to be 'secured' by a trust agreement between the Authority and a corporate trustee with which the proceeds of the bonds shall be deposited and which shall make the payments hereinbefore mentioned. Subject to qualifications the trust agreement may pledge or assign the tolls and other revenues. § 12.
Upon the issuance of revenue bonds and the application of the proceeds as provided in § 8 'title to the Mystic River bridge and to the Sumner tunnel shall be vested in the Authority,' and 'said bridge and tunnel shall thereafter be maintained, repaired and operated by the Authority * * *.' § 13.
The Authority is authorized to fix tolls, rates, fees, rentals and other charges, to be so fixed and adjusted as to provide a fund sufficient to pay current expenses, to meet sinking fund requirements for the outstanding tunnel bonds, to pay the principal and interest on all bonds to be issued under the act and for certain other payments mentioned in the act. 'Such tolls, rates, fees, rentals and other charges shall not be subject to supervision or regulation by any department, division, commission, board, bureau of agency of the commonwealth or any political subdivision thereof.' § 14.
All moneys received pursuant to the authority of the act shall be deemed trust funds to be held and applied solely as provided in the act. § 15.
The Authority shall not be required to pay any taxes or assessments upon any property acquired or used under the act or upon income therefrom, and the bonds issued under the act, their transfer, and the income therefrom, including profit on sale thereof, are to be free from taxation within the Commonwealth, with certain qualifications as to lands of the Authority leased for business purposes. § 17.
Under the heading 'Freedom from Competition' are provisions that so long as any bonds issued under the act are outstanding no bridge, tunnel, or ferry for vehicular traffic shall be constructed within certain limits by the Commonwealth or any political subdivision thereof or by any public instrumentality other than the Authority and no frachise shall be granted for any bridge, tunnel or ferry for such traffic. § 20.
The Authority is to be liable for injury or death by reason of defects or want of repair of its ways to the same extent as a municipal corporation would be liable. § 23.
When all payments due under § 6 shall have been made and all bonds issued under the act and interest thereon have been paid or a sufficient amount in trust has been set aside therefor, all projects under the control of the Authority 'shall be operated and maintained in such manner as may be provided by the general court.' § 25.
The questions are as follows:
'1. Would the proposed bill, if enacted, be in violation of the first section of the Sixty-third Article of Amendment to the Constitution in that it provides that the bulk of funds and revenues of the authority, a 'body politic and corporate' performing an 'essential governmental function' (Sec. 2), shall not be paid into the state treasury?
'2. Is Section 2 of the bill establishing the Massachusetts Port Authority as 'a body politic and corporate' an 'act of incorporation' within the meaning of Article 59 of the Amendments to the Constitution?
'3. If Section 2 is an act of incorporation, does it violate Article 59 of the Amendments as not being 'subject to revocation or amendment' until provision is made for retirement of all bonds issued by the authority, particularly in view of Section 20 of the bill?
'4. If the is subject to revocation or amendment at any time, is the Commonwealth bound by contract as against purchasers of bonds of the Authority, to continue the powers granted the authority by this bill in a...
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