Opinion of the Justices

Decision Date14 August 1969
Citation356 Mass. 775,250 N.E.2d 547
PartiesOPINION OF THE JUSTICES to the House of Representatives.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

On August 14, 1969, the Justices submitted the following answers to questions propounded to them by the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order adopted by the House of Representatives on July 16, 1969, and transmitted to us on July 23. The order recites the pendency before the General Court of a bill, House No. 5486, a copy of which and a copy of an earlier draft of the bill, Senate No. 1033, covering much the same subject matter, are transmitted with the order. House No. 5486 is entitled 'An Act providing for the financing, construction, maintenance, repair and operation by the Massachusetts Turnpike Authority of certain public facilities consisting of a stadium complex, a third vehicular tunnel, the Worcester toll road and an arena.'

House No. 5486 has more than twentyeight printed pages. The order contains recitals to which we now refer. The second of these states that the city council of Boston adopted an order, approved by the mayor, that 'a petition to the general court, accompanied by a bill for a special law relating to * * * Boston * * * hereby is * * * approved under clause (1) of section 8 of article 2, as amended, of the Amendments (as appearing in art. 89 of the Amendments) to the Constitution of the Commonwealth of Massachusetts.' A copy of the city council order is annexed as Appendix A to this opinion.

The order requesting our opinion further recites, 'No bill for a special law was filed with the * * * (city council) Order but the General Court has been informed * * * that it was the intention of said City Council and Mayor to approve a new draft of said Senate, No. 1033 (House, No. 5486) which would combine the provisions of that Bill with the additional provisions contained in the Order of said city insofar as any such additional provisions are constitutional'; and that grave doubt exists as to the constitutionality of House No. 5486 if enacted.

The questions present novel and difficult issues under art. 89 and other important constitutional problems. Counsel for the Massachusetts Turnpike Authority (the Authority), at the direction of its chairman, requested and obtained leave to file a brief as an amicus curiae. A comprehensive brief was filed. We invited briefs from other interested persons to be filed by August 13. In response other briefs were filed by the Attorney General and by the corporation counsel of the city of Boston.

Various provisions of House No. 5486 we now summarize. Others are mentioned in connection with our answers below.

Section 1 of House No. 5486 recites that 'there exists in the commonwealth an acute * * * need for a large multi-purpose stadium, open and available to * * * citizens * * * in large number, for the purpose of providing * * * facilities for public activities * * * such as political and patriotic rallies, public exercises, conventions and meetings of public officials, organizations protective of the rights of working men and women, and * * * groups dedicated to civic and social betterment * * * forums for educational addresses * * * conventions of educators and student organizations * * * concerts, theatrical exhibitions and other cultural * * * and recreational activities, including shows, expositions and professional and amateur athletic events'; that 'the existence of a suitable gathering place for large numbers of persons will contribute substantially to the public interest'; that 'there presently exists no stadium or equivalent facility in the commonwealth capable of satisfying the above needs'; that 'there is * * * urgent need to finance and construct under the Boston Harbor a third tunnel for vehicular traffic'; that 'there is * * * urgent need for the * * * Worcester toll road'; that 'there exists in the commonwealth * * * critical need for an arena, providing indoor facilities for public activities and events in * * * Boston'; and that 'the public facilities * * * authorized * * * under this act will promote the economic development of the commonwealth and enhance the prosperity, health, culture and welfare of its inhabitants.' Later in § 1, it is stated that the 'purposes for which such facilities and projects shall be provided are * * * declared to be public purposes.'

Section 2, among other definitions, in subsection (b) defines 'project' as 'any one or all of the following three public facilities, or any combination thereof * * * (1) a stadium complex consisting of a multi-purpose * * * stadium (with various related facilities) * * * and a third tunnel for vehicular traffic * * * under Boston harbor * * * (2) the Worcester toll road (a north-south road from the Connecticut boundary to the New Hampshire boundary) * * * (and) (3) a closed arena * * * to be located in the general vicinity of * * * (the) stadium complex.' Subsection (c) defines 'public facilities system' to mean 'collectively (i) any or all projects provided under this act, or any combination thereof,' (ii) the Sumner tunnel and the Callahan tunnel and appurtenant facilities, constructed by the Authority under St.1958, c. 598, after payment (or provision for payment) of the tunnel revenue bonds issued under c. 598, and '(iii) the Massachusetts Turnpike, including the Boston extension,' constructed under St.1952, c. 354, as amended, after payment (or provision for payment) of any revenue bonds issued under c. 354, as amended, 'provided, however, that the Authority is authorized to provide, in any resolution authorizing * * * bonds under this act for any project, for the wxclusion of such project from the public facilities system and for the payment of such bonds from the revenues derived from * * * such project and any other funds pledged therefor under this act.'

Section 3 of the bill provides that bonds 'issued under * * * 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, except as otherwise provided herein, of any such political subdivision.'

Section 4 makes a grant of specified powers to the Authority. Among other things it empowers the Authority in subsection (e) 'to fix and revise from time to time and charge and collect tolls, rents, fees and other charges for the use or occupancy of or services rendered by the public facilities system or any part thereof, or any project * * * provided that no toll or charge shall be collected by the Authority (i) for the use of the Sumner' or Callahan tunnels or the third vehicular tunnel by Boston city vehicles, or (ii) for the use of the tunnels or the Worcester toll road by 'funeral processions of Vietnam veterans * * * or (iii) for the use of any of said tunnels by any vehicle customarily garaged in * * * East Boston * * * which is in excess of the tolls and charges now in effect for the use and provided, further, that tolls now in effect for the said existing tunnels of the two existing tunnels * * * shall not be increased prior to January first,' 1976. There appears to be confusion in lines 70 to 73 of this provision and we assume that by inadvertence the words 'of the two esisting tunnels' in line 71 have not been placed after the word 'use' in line 70 where there appears to be some unintentional omission of language.

With 'respect to the stadium complex and the arena,' § 4(c) gives the Authority broad powers of management 'without regard to any * * * laws or regulations of any * * * political subdivision of the commonwealth, and, except as otherwise provided * * * to enter into operating agreements * * * lease to lessees and grant concessions with respect to the public facilities system or any project excluded from such system, and otherwise to enter into such contracts and dispose of such interest in said system as in the determination of the Authority is in the public interest, provided, however, that any agreement providing for the leasing by the Authority of any part of the public facilities system or any project shall provide for the payment of such rent therefor as in the determination of the Authority will be at least sufficient with any other funds available therefor, to enable the Authority to pay to the extent feasible the obligations that the Authority shall incur in connection with such facilities or project leased, and provided further that the leasing of the stadium complex or the arena or the grant of any concession therein for a term of more than one year shall be subject to approval of the governor of the commonwealth.'

Under § 5 (see also § 4(d)), the Authority, to provide funds 'to pay all or any part of the cost of any one or more projects included in the public facilities system,' may provide 'for the issuance * * * of one or more series of its public facilities system revenue bonds.' To provide funds 'to pay all or any part of the cost of any project to be excluded from the public facilities system, the Authority is * * * authorized to provide by resolution (see also the proviso in § 2(c), already mentioned) for the exclusion of such project ect from the public facilities system and for the issuance * * * of one or more series of its project revenue bonds therefor.' It also is provided that, 'either in the resolution authorizing the jissuance of revenue bonds for the stadium complex and the third vehicular tunnel or in the trust agreement securing the same,' the Authority may 'pledge as additional security such money as shall be paid from time to time by the city of Boston pursuant to its guaranty as provided in * * * (§ 21) of this act; provided, however, that such guaranty * * * shall terminate when any project other than the stadium complex...

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