330 Mass. 713 | Mass. | 1953
The Justices of the Supreme Judicial Court respectfully submit these answers to the questions contained in your order adopted May 21, 1953, and transmitted to us May 25,
1953. A' copy of the order and of chapter 354 of the Acts of 1952, to which the order refers, are attached hereto.
For a proper understanding of the questions and of our answers it is necessary to keep in mind the general nature and certain outstanding features of the statute which has given rise to the doubts expressed in the order. The purpose of the statute, as stated in its title, is “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.” To accomplish this purpose the statute sets up as “a public instrumentality” a body politic and corporate to be known as the Massachusetts Turnpike Authority to consist of three members to be appointed by the Governor with the advice and consent of the Council. § 3. The authority is authorized and empowered to construct, maintain, repair, and operate the proposed highway as a toll express highway, to be known as the Massachusetts Turnpike, between the termini as stated in the title and at such location as may be approved by the State department of public works, and to finance the turnpike by issuing bonds of the authority payable solely from revenues of the turnpike. § 1. § 5 (g). § 8. § 16. Great care is taken to make clear that neither the credit of the Commonwealth nor that of any of its political subdivisions is pledged for payment of the bonds.
In addition to the provisions of the statute to which reference has been made certain other provisions are so immediately related to the questions and answers that it seems advisable either to quote from them or to summarize them in greater detail. Thus by § 4 (b) the word “turnpike” is defined as including not only “the express toll highway,” or such parts thereof as may be constructed under the act, but also “all bridges, tunnels, overpasses, underpasses, interchanges, entrance plazas, approaches, connecting highways, service stations, restaurants and administration, storage and other buildings and facilities which
The questions contained in the order are these:
“1. Is the general grant of powers to the Massachusetts Turnpike Authority, as set forth in Sections 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
“3. If 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?”
The doubts which inspired these questions seem to have arisen chiefly, if not wholly, because of the language of art. 10 of the Declaration of Rights as amended by the addition of the last sentence by art. 39 of the Amendments. Article 10 as amended reads, “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary: but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. [[The legislature may by special acts for the purpose of laying out, widening or relocating
Long before the amendment to art. 10 the delegation by the Legislature to counties, cities, and towns of the general power to take lands by eminent domain for the purpose of ways and other public purposes without description or specification in the enabling act of the lands to be taken had become a commonplace. It had also become recognized and fairly common practice before the subjects were covered by general laws for the Legislature to delegate to private corporations such as canal companies, turnpike companies and railroads power to exercise rights of eminent domain for the public purpose of promoting the transportation of persons and goods between termini and by routes often described with no greater particularity than is done in the statute now under consideration.
These are simply instances falling within the recognized principle that the Legislature, having adopted a policy, may delegate the working out of the details of that policy. See Commonwealth v. Hudson, 315 Mass. 335, 341; Scannell v. State Ballot Law Commission, 324 Mass. 494, 501-502; Treasurer of Worcester v. Department of Labor & Industries, 327 Mass. 237, 241. Springfield Institution for Savings v. Worcester Federal Savings & Loan Association, 329 Mass. 184.
From what has been said we think it sufficiently appears that if art. 10 of the Declaration of Rights had not been amended by art. 39 of the Amendments in the manner indicated by the brackets inserted in the amended art. 10 as above quoted, there would be no serious question as to the power of the Legislature in general to delegate rights of eminent domain to the Massachusetts Turnpike Authority for the purpose of constructing a great highway. If such rights can be delegated to a private corporation serving the public such as a railroad or other public service corporation it would be difficult to see why art. 10, as unamended, or anything else in the Constitution, would stand in the way of a similar delegation to a public corporation like the authority the members of which are appointed by the Governor. Such delegation by the Legislature would be a suffi
It next becomes necessary to examine the amendment to art. 10 added by art. 39 of the Amendments to ascertain its exact meaning in restricting or enlarging the legislative power of delegation, and this examination must be made in the light of the public exigency which called forth the amendment. General Outdoor Advertising Co. Inc. v. Department of Public Works, 289 Mass. 149, 158. Opinion of the Justices, 324 Mass. 746, 749.
It appears from Opinion of the Justices, 204 Mass. 607, and Opinion of the Justices, 204 Mass. 616, that in the early part of the year 1910, as a result of a report of the joint board on metropolitan improvements which had been created the preceding year, the Legislature had before it a proposal for the construction for commercial purposes of a broad street or streets in the city of Boston which involved the taking of private lands on the sides of the proposed street or streets, not as part of such street or streets or to serve any purpose of such street or streets, but solely for the purpose of division into suitable lots to be sold to private owners under conditions designed to develop the location for commerce, trade, and industry. The Justices gave their opinion that private lands could not be taken by eminent domain for the purpose of resale to other private owners with the object of promoting a commercial development in the manner proposed. The Justices advised that this would be an unconstitutional use of the power of eminent domain and of public moneys for a purpose not public in character. Article 39 of the Amendments was adopted by the Legislatures of that same year and of the year following and was approved and ratified by the people on November 7, 1911. The amendment, as hereinbefore quoted, expressly provides that the Legislature may, for the purpose of laying out, widening or relocating highways or streets, authorize the taking in fee by the Commonwealth, or by a county, city, or town, “of more land and property than are needed for the actual con
It follows that the Legislature still possesses all the power of delegation held and frequently exercised by it before the amendment, and that the restrictions and limitations contained in the amendment apply only where the Legislature authorizes the taking of “more land and property than are needed for the actual construction of such highway or street.” It becomes necessary therefore to determine whether by St. 1952, c. 354, the Legislature has attempted to authorize the taking of more land than is needed for the actual construction of the turnpike. If it has, since the statute does not comply with the hmitations and restrictions of the amendment, the statute is invalid in so far as it relates to the taking of such additional land. And in determining whether the act does attempt to authorize the taking of more land than that needed for the turnpike we must first determine what are the component parts of the turnpike itself.
It is evident that this is to be no ordinary highway of the kind with which our history has made us familiar. It is an entirely new type-of highway which has made its appearance only in comparatively recent years as a result of the many changes in the lives and customs of the people brought about
What land is needed for the actual construction of this new type of turnpike and what forms part of it and what is outside of it are matters not to be determined by the same standards as would be applied in the case of the country
More doubt may exist as to restaurants, but on the whole, in dealing with such a highway as the proposed turnpike, we are inclined to classify them with the services previously mentioned. Undoubtedly many travellers will seek food on their way across the State. It will be a great convenience to them to find it at a place where they can park their vehicles without interfering with traffic and without the necessity of looking for an exit, searching for a restaurant, and then reentering the turnpike. The utility of restaurants in connection with travel is attested by the facts that they have long been a customary feature in railroad stations and are now commonly found at the larger airports. The provision for restaurants may also have some tendency to reduce the amount of stopping along the route and to keep the roadway free of refuse. We think restaurants such as are provided for in the act are parts of the turnpike, and that a reasonable amount of land taken for them is land “needed for the actual construction” of the highway and is devoted to
In reaching our conclusions we have derived some assistance from the New York cases of Blank v. Browne, 217 App. Div. (N. Y.) 624, Anderson v. Taconic State Park Commission, 262 App. Div. (N. Y.) 892, affirmed, 287 N. Y. 668, and People v. La Frantz, 188 Misc. (N. Y.) 989, dismissed for failure to prosecute appeal, 302 N. Y. 699.
The provisions in § 5 (f) of the act for the leasing by the authority of “gasoline stations, restaurants and other services” are not unconstitutional. They do not involve the taking or holding of lands for private purposes. Property leased will still be devoted to the public purpose of the turnpike, to which these services are wholly subordinate. “While land cannot ordinarily be taken by eminent domain for the purpose of renting and sale . . . this principle is inapplicable where, as here, the property so rented or sold is thereby devoted to a public purpose.” Opinion of the Justices, 321 Mass. 766, 770. Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371, 377-378. McLean v. Boston, 327 Mass. 118, 121. See Murphy v. Commonwealth, 187 Mass. 361, 375; Wright v. Walcott, 238 Mass. 432, 438; D. N. Kelley & Son, Inc. v. Selectmen of Fairhaven, 294 Mass. 570, 574-575.
Neither do we think that any difficulty arises from the use of the indefinite expressions “other buildings and facilities which the Authority may deem necessary for the operation of the turnpike” in § 4 (b) of the act and “other
The power granted in § 5 (k) to take “abutting property to preserve and protect the turnpike” is not, we think, a grant of power to take more land than is “needed for the actual construction” of the highway as the words just quoted are used in the amended art. 10 as hereinbefore interpreted. Land really needed to preserve and protect the turnpike is needed for its actual construction within the meaning of art. 10. Doubtless this power to take “abutting property” would be construed with considerable strictness. It is not a roving commission.
We are not entirely clear as to the interpretation to be given to the first question. Sections 1, 5, and 7 of the act, referred to in this question, contain some provisions of such breadth that the widest possible interpretation of the question itself would require us to pass upon practically every separate detailed provision contained in the act, including provisions as to which no direct reference is made and no doubts are expressed in the order. We do not believe this was intended. We think that this question was designed to ask whether the general plan or scheme of the act whereby power is delegated to the Massachusetts Turnpike Authority to construct the “Massachusetts Turnpike” from a point in the vicinity of Boston to a point at or near the New York line and to exercise rights of eminent domain for that purpose, without further specification in the grant of powers of the location of the turnpike or of the property authorized to be taken, is constitutional without consideration of the particular provisions of § 5 to which reference is made in the second question or of each other particular provision of the act. To this question, so construed, our answer is “Yes.” In dealing with this question in this manner we do not mean to imply that we have discovered constitutional difficulties in any part of the act to which no reference is
To the second question our answer is “No.”
In view of what has been said the third question scarcely need be answered; but a brief comment may be proper. When a court is compelled to pass upon the constitutionality of a statute and is obliged to declare part of it unconstitutional, the court, as far as possible, will hold the remainder. to be constitutional and valid, if the parts are capable of separation and are not so entwined that the Legislature could not have intended that the part otherwise valid should take effect without the invalid part. Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 81. This may sometimes involve a difficult decision. Where the statute contains a severability clause like that embodied in § 20 of the act here involved, this is a declaration by the Legislature that it intends to have the principle of severability invoked wherever possible. No doubt there are many provisions in Sk 1952, c. 354, which are so far collateral and ancillary to the main object of constructing the turnpike that the provisions for accomplishing that main object could stand even if the collateral and ancillary provisions were invalid. Thus it would seem that the fundamental provisions of the act would not be invalidated even if the .provision for acquiring sites abutting on the turnpike for the purposes mentioned in § 5 (f) were held invalid; or it might well be held that land could be acquired for such purposes by purchase even if it could not be acquired-for such purposes by eminent domain. But inasmuch as in our opinion all provisions of the statute to which our. attention has been directed are valid it does not seem profitable to pursue this subject further.
We feel compelled to add that we have entertained serious question as to whether the order of His Excellency the Governor and the Honorable Council shows that they have such present duties to perform in connection with St. 1952, c. 354, as to make this a solemn occasion within the purview of Part II, c. 3, art. 2, of the Constitution. But in view of the statement in the order that 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 to proceed to the discharge of functions assigned to them under that chapter, and in view of the possibility that because of the importance of the statute and the many ramifications connected with such an extensive enterprise as the construction of the turnpike there may well exist or soon arise problems for consideration of His Excellency the Governor and of the Honorable Council of which we are not aware, we have preferred to cast aside our own doubts as to the existence of a solemn occasion and to submit these answers. We do this, however, without intending to depart from the construction heretofore given to Part II, c. 3, art. 2, of the Constitution. See Opinion of the Justices, 269 Mass. 611, 618-619.
Stanley E. Qua.
Henry T. Lummus.
James J. Honan.
Raymond S. Wilkins.
John Y. Spalding.
Harold P. Williams.
Edward A. Counihan, Jr.
See Opinion of the Justices, 250 Mass. 591, 596; St. 1791, c. 57 (Massachusetts Canal); St. 1793, c. 21 (Middlesex Canal); St. 1795, c. 21 (Cumberland Canal); St. 1796, c. 5 (First Massachusetts Turnpike Corporation); St. 1796, e. 72 (Second Massachusetts Turnpike Corporation); St. 1799, c. 48 (Eighth Massachusetts Turnpike Corporation); St. 1829, c. 12 (Providence and Bristol Turnpike Corporation); St. 1829, c. 26 (Worcester Rail Road Company); St. 1829, c. 93 (Franklin Rail Road Company); St. 1829, c. 94 (Massachusetts Rail Road Corporation); St. 1829, c. 95 (Boston, Providence and Taunton Rail Road Corporation); St. 1830, c. 4 (Boston and Lowell Rail Road Corporation); St. 1831, c. 56 (Boston and Providence Rail-Road Corporation); St. 1831, c. 57 (Boston and Ontario Rail Road Corporation); St. 1832, e. 97 (Pittsfield and West Stockbridge Rail Road Company); St. 1833, c. 109 (Andover and Wilmington Rail Road Corporation); St. 1833, c. 116 (Western Rail Road Corporation). The foregoing list is not intended to be complete.