Opinion of the Justices to the House of Representatives

261 Mass. 556 | Mass. | 1927

On November 22,1927, the Justices returned the following answer:

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

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions contained in the order adopted on the twenty-fifth day of April, 1927. Those questions relate to pending bills concerning public control of the Boston Elevated Railway system which if enacted affect or amend Spec. St. 1918, c. 159, and to other kindred matters. Copy of the order is hereto annexed.

The first question in substance is whether it is constitutionally competent for the General Court to empower the Boston Elevated Railway Company to sell its property to a new corporation to be chartered for the purpose of acquiring the same, if such sale is authorized by the holders of not less than a majority in amount of the capital stock of the Boston Elevated Railway Company, including the preferred stocks of all classes and the common stock, as provided in bill, House No. 522.

The Boston Elevated Railway Company is a public service corporation. Its chief corporate purpose is to afford carriage of passengers for hire within parts of Boston and nearby cities and towns by means of cars moved mainly by electricity on and through elevated structures, subways, tunnels and surface street railway tracks and other means adapted to that end. It cannot sell or alienate its rights and properties without legislative permission. The nature of its business is public. Its management and operation have been taken over by the Commonwealth as a public enterprise and exercised through a board of public officers called trustees. Spec. St. 1918, c. 159. The validity of that statute was upheld against certain attacks founded upon its alleged unconstitutionality in Boston v. Treasurer & Receiver General, 237 Mass. 403, affirmed in 260 U. S. 309, and in Chelsea v. Treasurer & Receiver General, 237 Mass. 422. See Opinion, of the Justices, 231 Mass. 603. What is there decided is accepted without repeated references as the basis of this opinion and goes far toward answering the questions here presented.

The power of the General Court over ordinary domestic corporations is broad. They cannot come into existence except by legislative sanction. Since St. 1831, c. 81, it has been provided that every act of incorporation thereafter enacted shall be subject to amendment, alteration or repeal by the General Court. This statute long ago was extended to corporations chartered under general law. Its present terms are found in G. L. c. 155, § 3. There are limitations to

the exercise of this reserved power, but they do not seem to be germane to the question because the operative force of the proposed statute is optional upon its acceptance by the Boston Elevated Railway Company. It is not compulsory. Such limitations, therefore, need not be examined. See Commonwealth v. Essex Co. 13 Gray, 239, 252; Central Bridge Corp. v. Lowell, 15 Gray, 106, 117; Superior Water, Light & Power Co. v. Superior, 263 U. S. 125. Since the Boston Elevated Railway Company is a corporation organized under special statute for the performance of an important public service having relation to the general welfare, the power of the Legislature over it is extensive. Such a company may be empowered by the General Court to sell all its property to another similar public service corporation, when approved by a majority vote in amount of its capital stock including all classes of its stockholders both preferred and common. The new corporation, as provided by proposed bill, House No. 522, will be a corporation organized for the performance of functions similar to those of the Boston Elevated Railway Company for the benefit of the public, and although privately owned, it is to be managed and controlled by a board of public officers. Numerous statutes have been enacted authorizing the consolidation, sale and lease of steam railroads and street railways. The power of the General Court to this end is well established. Hale v. Cheshire Railroad, 161 Mass. 443. Federal Trust Co. v. Bristol County Street Railway, 222 Mass. 35. Brown v. Boston & Maine Railroad, 233 Mass. 502. Proprietors of Locks & Canals on Merrimack River v. Boston & Maine Railroad, 245 Mass. 52. It is constitutionally competent for the General Court to enact a statute of that tenor under the power conferred upon it by c. 1, § 1, art. 4, of the Constitution to make, ordain and establish all manner of wholesome and reasonable laws and statutes.

We answer “ Yes ” to question 1.

The second question relates to the power of the General Court under the Constitution to authorize the Boston Elevated Railway Company to dissolve and liquidate its affairs as provided in said proposed bill, House No. 522, with special reference to the votes of stockholders framed to accomplish that result. There appear to be four classes of stock in the Boston Elevated Railway Company consisting of three kinds of preferred and the common stock. The first and second preferred stocks were authorized by St. 1911, c. 740, § 2, whereby it was enacted that “Said first and second preferred stock shall have the same power of voting ... as said other [common] stock, and shall be counted with said common stock in all questions of majorities and quorums.” It is plain that such stock came into existence upon these express statutory terms and the holders thereof can claim no rights in addition to those there stipulated. These two classes of stock stand upon the same footing touching all matters of voting on corporate affairs as does the common stock. The other class of preferred stock was authorized by Spec. St. 1918, c. 159, § 5. It was there described simply as preferred stock. No express provision was made in that statute respecting the voting power of this stock. It was provided however that it “shall be subject. . . to such preferences in liquidation, as the stockholders may determine, and shall be subject to retirement at the request of the trustees or after the period of public operation” at a stated price. We are not informed whether any such preferences have been determined by the stockholders, nor, if there are any, what they are. The rights of the holders of this stock with reference to voting are not specified. We are of opinion that therefore they are on the same basis in this particular as holders of the other two classes of preferred stock and of the common stock. Hale v. Cheshire Railroad, 161 Mass. 443, 445. It follows that under existing statutes all the stockholders are on an equality with respect to voting on the subject of sale of property and liquidation of the affairs of the railway company. There is no provision that in voting upon any questions the holders of the several classes of stock shall vote separately or as a unit, or have any special privileges or powers one over another.

It is a general principle of the administration of corporations that the majority in value of the stockholders declare the policy of the corporation in the absence of special pro-

visions to the contrary. Treadwell v. Salisbury Manuf. Co. 7 Gray, 393, 404, 405. Durfee v. Old Colony & Fall River Railroad, 5 Allen, 230. O’Brien v. O’Brien, 246 Mass. 411, 420. Thomas v. Laconia Car Co. 251 Mass. 529, 534, 535. Boucher v. Hamilton Manuf. Co. 259 Mass. 259. Unanimity on the part of all stockholders as to corporate action is not required by.any principle of law. “Dissenting stockholders are bound by the vote of the majority, acting in good faith and within legislative sanction.” Hale v. Cheshire Railroad, 161 Mass. 443, 445.

It is not within the charter powers of the Boston Elevated Railway Company to sell its franchises, property and privileges at the volition of its stockholders as provided in the proposed bill. Richardson v. Sibley, 11 Allen, 65. Clemons Electrical Manuf. Co. v. Walton, 206 Mass. 215, 221. Attorney General v. Boston & Albany Railroad, 233 Mass. 460, 463, 464, and cases there collected. See G. L. c. 161, §§ 14. The Boston Elevated Railway Company is authorized to mortgage or pledge its franchise and property as security for its bonds. St. 1894, c. 548, § 4, as amended by St. 1897, c. 500, § 1. See St. 1912, c. 485; St. 1919, c. 369. That authority does not justify a sale to a new corporation to be chartered to take over its property. Whether a majority or a larger proportion of all the stock of all classes is to be required for a vote of the railway company to make sale of its property as provided in bill, House No. 522, is a matter to be determined by the General Court in accordance with its conceptions of just and sound policy. No provision of the Constitution demands one course rather than another in this particular.

It is contemplated in the main by the provisions of this proposed bill that there shall be a sale to the new company of the property, privileges and franchises of the Boston Elevated Railway Company if voted by its stockholders as there set forth. The price to be paid is not in cash but in stock of the new corporation. Whether such sale shall be made upon the terms specified in § 5 is to be determined by vote of a majority of the stockholders of the Boston Elevated Railway. There is no taking under the power of eminent domain by the new company of any stock in the old company or of any of its property. It is a simple bargain and sale between two corporations of property and franchises upon terms specified. The price to be paid by the new company to the Boston Elevated Railway Company for all its property, privileges and franchises, as provided in § 5 of the proposed bill, is the issuance and delivery of the stock of the new company for the outstanding stock of the Boston Elevated Railway Company as followsan amount of its common stock equal in par value to the par value of the common stock of the Elevated and an amount of its preferred stock equal in par value to the aggregate value of the first preferred stock taken at one hundred and twenty-five per share, second preferred stock taken at one hundred and ten per share, and preferred stock taken at one hundred and five per share. Whether a sale shall be made upon these terms is a matter of corporate policy to be determined by the stockholders of the Boston Elevated Railway Company. The proposed bill, House No. 522, in § 11 does not provide for an equal distribution of the shares of stock in the new company thus to be received among the stockholders of the Boston Elevated Railway Company. By its terms one and one quarter shares of such stock shall be issued for each share of the first preferred, one and one tenth shares of such stock for each share of the second preferred, one and one twentieth shares of such stock for each share of the preferred stock, and an amount of the common stock of the new company equal in par value to the common stock, held by each stockholder in the Boston Elevated Railway Company. To the holders of nonassenting first preferred and second preferred stock payment in cash is to be made under §■ 12 for such stock at par value, which is $100 per share, see St. 1911, c. 74p, § 2, and to holders of the preferred stock payment in cash at $105 per share, see Spec. St. 1918, c. 159, § 5. We assume, as appears to be assumed in the question, that this cash payment for preferred stock is in accordance with preference in. liquidation determined by the stockholders in accordance with said § 5 and we make answer on this assumption but we have no information on this point.

The amounts of stock in the new company to be issued to assenting holders of the several classes of preferred stock in the Boston Elevated Railway Company are not on the footing of share for share nor in conformity to any existing statutory preferences but are on the footing of new preferences established by the proposed bill. This is the appearance of the proposed bill on its face and we have no other information concerning it. The provisions of this nature must be affirmed and approved by vote of the stockholders of the Boston Elevated Railway Company. The holders of the several classes of preferred stock who accept this provision of course have no right to complain. The holders of first and second preferred stock who do not assent to it cannot complain because they will receive the precise amounts in cash to which, under the terms of the governing statutes authorizing the issue of such stock, they are entitled in case of liquidation. Therefore the proposed bill, House No. 522, in §§ 11, 12 and 13 establishes a new kind of preference for the several classes of preferred stock (except perhaps the preferred stock issued under Spec. St. 1918, c. 159, § 5, as to which we have no information) over the common stock. Such preferences are unequal, when measured by par value of stock, with respect to holders of common stock who do not assent to the plan. Hence it is necessary to make some provision for the payment for such shares of common stock at their fair value or upon some just basis in order that it * may be extinguished and the corporation liquidated.

The holders of common stock in the Boston Elevated Railway Company who accept the exchange for stock in the new company of course have no right to complain. The holders of such stock who do not accept such exchange have no right to complain because under §§ 6 and 7 of the proposed bill they will receive in cash the “per share value” of their stock as ascertained by judicial decision, which is equivalent to reasonable and just compensation therefor. No stockholder rightly can ask more than that for his shares in the final liquidation of a corporation. No owner of property can be compelled against his will to part with it at any price for a private purpose. Riverbank Improvement Co. v. Chadwick, 228 Mass. 242. That principle is not applicable to this part of the proposed bill, which as a whole provides for the liquidation of a public service corporation pursuant to a vote of its stockholders in accordance with statutory authority upon fair terms.

The shares of common stock paid for in cash at the value thus ascertained are to be extinguished. One purpose of such extinguishment is to accomplish the complete and final liquidation of the Boston Elevated Railway Company. These parts of the plan all have reference to the promotion of the public welfare touching this transportation system. We are of opinion that the provisions of §§ 6 and 7 of the proposed bill, House No. 522, for the ascertainment of the per share value of the common stock and for the payment of such value to the holders of nonassenting shares in §§ 12 and 13 of the proposed bill are essential to its validity as a whole and cannot be eliminated.

The proposed bill makes provision for the liquidation of the Boston Elevated Railway Company, that is, for the sale and transfer of all its property, the payment of all its obligations and the extinguishment of all its stock, and the distribution of the remainder of what is received in payment for such sale or transfer among its stockholders. Liquidation of that company upon fair and just terms approved by vote of the stockholders as provided in the proposed bill is within the constitutional power of the General Court for reasons already given.

We answer “Yes ” to subdivisions (a), (b) and (c) of question 2, and “No” to subdivision (d) of that question.

The inquiry presented by question 2A is whether upon such liquidation the General Court may provide for such payment in cash for the first preferred, second preferred, and preferred stock as is “provided in the event of liquidation” in the statutes and “the terms of issue of such preferred stock, or exercise such rights of conversion into common stock as they have, without appeal to any judicial tribunal for a valuation of their shares.” These assumptions appear to be made in this question, namely, that liquidation is voted by the stockholders of the Boston Elevated Railway Company, and that payment in cash or by the exercise of the right of conversion into stock of the new corporation is to be made for the three classes of preferred stock in strict accordance with all preferences established for such classes of preferred stock. We infer from the terms of the proposed bill, to which the question is directed, that this question is intended to apply only to those holders of the several classes of preferred stock who do not assent to the terms of the proposed bill as to taking in exchange for their stock preferred stock in the new company and whose stock is marked "non assenting” under § 6 of the proposed bill. With these assumptions and this interpretation we are of opinion that such an enactment by the General Court would be within its constitutional power. The holders of the several classes of preferred stock cannot complain if they are permitted either to take stock in the new company upon terms deemed fair by the General Court and voted by a majority of the stockholders of the Boston Elevated Railway Company or to receive the amount in cash to which by the terms of issuance of such stock they are entitled upon liquidation and such other preferences as they may be entitled to. The holders of such stock took it upon specific conditions as to their rights in the liquidation of the company. Treadwell v. Salisbury Manuf. Co. 7 Gray, 393. Boston & Maine Railroad v. Graham, 179 Mass. 62, 67, 68. Hale v. Cheshire Railroad, 161 Mass. 443.

We answer "Yes” to question 2A.

In answering this question, we feel constrained to direct attention to this fact: It is required by St. 1911, c. 740, § 2, that upon liquidation of the Boston Elevated Railway Company the holders of the first and second preferred stock "shall be entitled to the payment of the par value of their shares and all accrued and unpaid dividends” before any payment to other shareholders. The rates of dividends are specified in said c. 740, §§ 2, 3. It is to be noted that the proposed bill does not in terms provide for the payment in cash of accrued and unpaid dividends in addition to the specified price per share. See § 6 of this proposed bill, lines 27 to 30 inclusive. It is open to grave doubt whether payment of accrued and unpaid dividends can be implied from the present bill. .If there are no such dividends, then no difficulty will arise. This difficulty can easily be avoided.

We answer "Yes” to question3 of the present order. The reasons for this opinion are set forth in our answer to question 5 of the order of the Honorable Senate adopted on April 15, 1927, to which reference is respectfully made.

The reasons already stated in answering questions 1 and 2 of the present order are equally applicable to each of the subdivisions of question 4. It is also within legislative power to enact that the stockholders of the Boston Elevated Railway Company may accept the statute by a majority vote, if a quorum is present. Morrill v. Little Falls Manuf. Co. 53 Minn. 371, 377. Fowle Memorial Hospital Co. v. Nicholson, 189 N. C. 44. We answer "Yes” to question 4.

We answer "No” to question 6 of the present order. The reasons for that conclusion are set forth at length in our answer to question 9 of the order adopted by the Honorable Senate on April 15, 1927, to which reference is respectfully made.

We answer "No” to question 8 of the present order. The reasons therefor are stated in our answer to question 7 of the order of the Honorable Senate, already mentioned. Reference is respectfully made to that answer.

We answer "No” to question 9 of the present order for the reasons set forth in the answers to questions 1, 2 and 3 of the order of the Honorable Senate of April 15, 1927, to which reference is respectfully made.

We answer "No” to question 10 of the present order. For a statement of the reasons for this view, reference is respectfully made to our answers to questions 1, 2 and 3 of the order of the Honorable Senate already described.

Question 11 inquires whether "the joint control for operating and maintaining the Boston Elevated Railway Company, as set forth in said bill, Senate No. 276, [is] repugnant to article 62 of the Amendments to the Constitution of the Commonwealth.” That article of the Amendments forbids the use of the credit of the Commonwealth in aid of "any corporation which is privately owned and managed.” The proposed bill rests upon the theory that while the Boston Elevated Railway Company will continue to be privately owned, it will be under public management and that hence the credit of the Commonwealth may be given in its aid. We assume without discussion that such aid can be granted only in aid of a corporation substantially under the exclusive management of public officers and cannot be granted in aid of one under the joint management of public officers and of those representing, and selected by, private interests. It becomes necessary to examine the terms of this proposed bill to ascertain the nature of the management thereby to be established.

It is provided in said c. 159, § 4, that although the stockholders of the Boston Elevated Railway Company shall elect a board of directors, such board shall, "during the period of public operation, have no control over the management and operation of the street railway system.” This provision is not affected or modified in any essential features by the proposed bill, Senate No. 276. In § 3 of that proposed bill is a clause to the effect that no "contracts for the operation or lease of any subways, elevated or surface lines in addition to those now owned, leased or operated by the company, or any extensions thereof beyond their present limits, shall be entered into which shall involve the payment of any rental or other compensation by the company beyond the period of public operation without the consent of the directors of the company,” with a further provision to the effect that without such consent no such lines shall be constructed or purchased beyond the limits of existing surface lines after the Commonwealth has elected to discontinue public management. These provisions do not in any essential aspects modify, constrict or control the public management and control of the railway system as a public corporation. Public officers have the exclusive management and control of all existing property of the railway company and the performance of all service for the public. It is only in respect to this narrow field which will affect directly the property of the railway company after its return to private operation that the directors have any power whatever. It follows that we are unable to perceive in the provisions of said proposed bill, Senate No. 276, especially those in § 3 when read in conjunction with said c. 159 of which it is an amendment, and particularly § 4 thereof, anything which constitutes “joint control for operating and maintaining the Boston Elevated Railway Company” in its vital features as a public corporation. We answer “No” to question 11 of the present order. Reasons for this view also are stated in our answers to questions 1, 2 and 3 in the order of the Honorable Senate already described, to which reference is respectfully made.

We answer “No” to questions 12 and 13 of the present order. The reasons are given in our answers to questions 1, 2 and 3 of said order of the Honorable Senate, to which reference is respectfully made.

Questions 14 to 22, both inclusive, of the present order relate to bill, Senate No. 285. That bill in brief provides for the extension and improvement of transit facilities in Boston, by the construction of two rapid transit routes, the first lying wholly within and the second lying partly within and partly outside of Boston. It confers authority upon the city of Boston acting through its transit department to acquire, lay out and construct that portion of the routes described in the proposed bill lying within the territorial limits of Boston and authority upon the Commonwealth acting through the department of public utilities to acquire, construct and own the portion of the second route lying outside those territorial limits. Both routes are to be leased to the Boston Elevated Railway Company for a term ending on July 1, 1936, at a specified rental. These routes appear to be in part in, over and through existing structures and in part in, over and through new rights of way to be acquired and new structures to be constructed.

The purport of question 14 is whether the General Court has the constitutional power to enact the provisions of this proposed bill for the assessment of all or a specified part of the cost of this public improvement upon the area, which will receive special benefit or advantage beyond the general advantage to the community from such public improvement, to an amount not in excess of such, special benefit or advantage.

The routes to be laid out and constructed under the proposed bill are designed to afford increased accommodations for the public by facilitating the means of travel and transportation. They belong to the same class of public enterprises as highways. They are in substance and effect highways and are governed in the main by the same general principles of constitutional law as are the laying out and construction of highways and bridges. Boston v. Treasurer & Receiver General, 237 Mass. 403,414,416. So far as concerns the constitutional principles underlying and authorizing the assessment of betterments they are indistinguishable from the laying out, construction and establishment of sewers, sidewalks, parks and kindred public improvements. It has long been the policy of the Commonwealth to provide for raising a part of the funds for the laying out and construction of highways and similar public works by assessment of benefits upon lands receiving special and peculiar benefit therefrom in excess of the general advantage to the entire community. Such assessment cannot lawfully exceed the amount of such special benefit. Such assessments when made in conformity to recognized constitutionariimitations have always been upheld. Dorgan v. Boston, 12 Allen, 223. Butler v. Worcester, 112 Mass. 541, 555. Smith v. Mayor & Aldermen of Worcester, 182 Mass. 232. Sayles v. Board of Public Works of Pittsfield, 222 Mass. 93. Parsons v. Worcester, 234 Mass. 108. Briscoe v. Commissioners of the District of Columbia, 221 U. S. 547, 551.

The circumstance that the structures, which are to constitute these routes, are to be leased to a public corporation does not affect the power of the General Court to authorize the levying of an assessment for special benefits flowing from this public enterprise. It has no more effect than the possibility of granting in a highway locations for street railway tracks, or for poles, wires and conduits for telegraph, telephone, electric light and power companies has upon the validity of a betterment assessment for laying out a highway. We think that this point is well settled by the analogy of numerous decisions. Sears v. Street Commissioners, 180 Mass. 274,279. An express adjudication in accordance with, this view is found in Milheim v. Moffat Tunnel Improvement District, 262 U. S. 710. We think that the implication of § 6 of the proposed bill, Senate No. 285, is that in no event shall the assessment exceed the special benefit.

We answer “Yes” to question 14.

This proposed bill provides for the determination of the area receiving such special benefit by commissioners appointed by the Supreme Judicial Court who are to hold hearings and whose report when approved by the court shall be final and conclusive as to all matters included therein. The General Court has a wide discretion in selecting the method for determining the amount of the special benefits arising from public improvements. Various methods have been adopted in the past as appears from statutes and decisions of this court. The General Court may itself determine the area benefited by a public improvement. Smith v. Mayor & Aldermen of Worcester, 182 Mass. 232. It may vest jurisdiction to determine the area benefited and the amount of benefit in established boards of municipal or other public officers. Butler v. Worcester, 112 Mass. 541, 555. Howe v. Cambridge, 114 Mass. 388. Sayles v. Board of Public Works of Pittsfield, 222 Mass. 93. Houck v. Little River Drainage District, 239 U. S. 254, 262. It may authorize the Governor to appoint a commission. Or it may impose that duty upon commissioners appointed by the court. Hitherto where legislation has vested the determination of an assessment in commissioners appointed by the court, the duty required has been the apportionment of a burden of general taxation among municipalities or districts. Assessments of that nature have been upheld. We are unable to perceive any difference in constitutional principle between an apportionment of that nature and the assessment required by the terms of the proposed bill. The principle of strict separation of legislative, judicial and executive functions enjoined by article 30 of the Declaration of Rights of the Constitution does not prevent legislation of this character. That principle must of course be strictly followed. Boston v. Chelsea, 212 Mass. 127. But it is not applicable to this branch of the proposed bill.

The requirement of § 6 of the proposed bill that the report of the commissioners when accepted and confirmed by the court shall be final and conclusive presents no constitutional barrier. The court will determine for itself whether the report is extravagant or unreasonable or based upon any error of law and would reject it for such cause. But the court will not revise the judgment- of the commissioners or substitute its views of expediency for those of the commissioners. Weymouth, petitioner, 251 Mass. 359, 361.

The circumstance that the landowner is given no right to trial by jury as to the betterment does not render the proposed bill unconstitutional. Chapin v. Worcester, 124 Mass. 464, 468.

We think that affirmative answer is required to question 15 by Kingman, petitioner, 153 Mass. 566-579, De Las Casas, petitioner, 178 Mass. 213; S. C. 180 Mass. 471, In re Metropolitan Park Commissioners, petitioners, 209 Mass. 381, 384, 385, Mayor & Aldermen of Springfield, petitioners, 234 Mass. 578, 583, Opinion of the Justices, 234 Mass. 612, 616, where the pertinent constitutional principles are discussed at large.

The provision of the proposed bill to the effect that the amount of betterments to be assessed shall be apportioned among the several parcels of land in proportion to the valuation of such parcels for purposes of taxation exclusive of buildings reserving to the owners the usual remedies for reduction in valuation does not exceed legislative competency. This question we regard as settled by Downer v. Boston, 7 Cush. 277, Springfield v. Gay, 12 Allen, 612, and Snow v. Fitchburg, 136 Mass. 183. See Valley Farms Co. of Yonkers v. County of Westchester, 261 U. S. 155, 163.

We answer “Yes” to question 16.

Question 17 raises the point whether, if the routes are to be constructed and the expenses therefor met from the proceeds of bonds, payment of the assessment of betterments may “be spread over the life of the bonds by an annual payment bearing the same relation to the sum required to meet the annual payments for interest and sinking fund upon the bonds as tbe amount of benefit to be assessed bears to _ the cost of the improvement.”

The assessment of a betterment arising from a public improvement is a method of taxation. The power of the General Court as to the time of payment of taxes is extensive. Ordinarily taxes must be paid promptly to the end that the expenses of government may be met. But statutes have hitherto been enacted to the effect that such assessment may be made payable in annual instalments over a period of years. See G. L. c. 80, § 13. Gardner v. Boston, 106 Mass. 549. We are of opinion that such apportionment as is suggested in the question is not unreasonable and is within . the constitutional power of the General Court. Difficulties in this connection as to the title to land, preservation of liens, and other matters present questions of legislative expediency rather than constitutional competency. The determination of the amount of annual assessment as'set forth in lines 55-76, both inclusive, of § 6 of this proposed bill seems complicated; but so far as we understand those provisions, they involve difficulties of interpretation and application rather than of constitutional power. In principle this point is covered by Fairbanks v. Mayor & Aldermen of Fitchburg, 132 Mass. 42, 47, 48.

We answer “Yes” to question 17.

The inquiry presented by the first part of question 18 is whether there is constitutional obstacle in the way of the division of the area, receiving special benefits above the general advantage flowing from this public improvement, into zones consisting respectively of land which will receive a more direct and special advantage than the rest of the area and land benefited by more remote means, and the determination by the commissioners of the proportion of the assessment to be levied in each zone. We perceive no constitutional objection in these provisions. They add complications to the always difficult problem of apportionment of betterment assessments. These, however, relate to the practical administration of the proposed bill, if enacted into law, and not to its constitutional aspects. The validity of this method of assessment we think was upheld in principle by Butler v. Worcester, 112 Mass. 541, 556, and Collins v. Mayor & Aldermen of Holyoke, 146 Mass. 298, 307.

The final branch of question 18 is whether the apportionment of the assessment among the several parcels of land within the respective zones in proportion to valuation for purposes of taxation would be valid. We infer that this means valuation of the land exclusive of buildings, as provided in line 80 of § 6 of this proposed bill.

We are of opinion that this method of apportionment under the circumstances would contravene no provision of the constitution, provided always that such assessment does not exceed the amount of the special benefit conferred upon such parcel by the proposed public improvement. The valuation of land exclusive of buildings for purposes of taxation often has been required by statute as the basis for the assessment of special benefits and has been upheld, as already pointed-out.

We answer “Yes” to question 18.

The purport of question 19 is whether it is within the power of the General Court to authorize the additional transportation facilities and equipment, acquired through the use of public credit by issuance of bonds, to be leased to the Boston Elevated Railway Company for a term extending beyond the period of public control at a rental less than interest charges on such bonds and to provide that the balance of such interest charges and sinking fund and serial payments be met from betterment assessments or taxes and that after the maturity of such bonds the rental shall be only such sum as will adequately cover the maintenance and upkeep of the leased property and equipment. This question must be considered in the light, of the nature of the Boston Elevated Railway Company as a public service corporation performing functions for the public benefit, and all the existing statutory limitations as to maximum dividends on its stocks and the policy of the Commonwealth touching that particular corporation and similar corporations. The rate of dividends per annum upon the first and second preferred stocks of the Boston Elevated Railway Company is limited by St. 1911, c. 740, §§ 2, 3, to the possible maximum of eight per cent, upon the preferred stock to seven per cent by Spec. St. 1918, c. 159, § 5, and upon the common stock to six per cent by said c. 159, § 15. We are not advised whether the rate of dividend upon the second preferred stock is seven or eight per cent under St. 1911, c. 740, §§ 2 and 3, but our answer would be the same, whichever it may be. These are the maximum rates of dividend possible after the return of the properties to the corporation at the termination of public management. The rates of fare which can be charged by the corporation after the termination of public management are limited to "such just and reasonable fares as will produce an income sufficient to pay the reasonable cost of the service as defined in section six, including dividends upon the common stock from time to time outstanding of six per cent per annum on the par value thereof but no more.” Spec. St. 1918, c. 159, § 15. Thus the maximum income which the Boston Elevated Railway Company may derive from the collection of fares is limited to the amount necessary to meet (1) the cost of the public service rendered as defined by the General Court and (2) dividends upon the several classes of its stock at rates authorized by the General Court. Thus the possible income which the Boston Elevated Railway Company may receive if and when it resumes management of its property is strictly limited by legislative enactment to an amount no more than is reasonable to insure (1) recompense for the actual cost of the service rendered by it to the public and (2) a fair return upon its capital investment. Bluefield Water Works & Improvement Co. v. Public Service Commission of West Virginia, 262 U. S. 679, 690, 693, 694. The term for which the routes may be leased ending as it does on July 1, 1936, under § 5 of this proposed bill plainly is within the power of the Legislature. Of course the Legislature cannot authorize a gift to a private corporation or divert public funds to private uses. The reduction of rental suggested by the question and provided by this proposed bill in § 5 is not obnoxious to this principle. It is a provision designed in its last analysis to permit a reduction in fares charged to the public. It is not a gift or contribution to a private corporation. The construction of the rapid transit routes as proposed in this bill is a public enterprise. It may be paid for out of public money. These routes are and are to be and to remain public property. They are in a sense highways for public travel. The rental to be charged therefor is a matter within the legislative power. It has been the custom to grant privileges in public ways for the use of poles and wires and underground pipes and conduits to various public service corporations without charging any rental therefor. It has never been suggested, so far as we are aware, that statutes of this nature transcended the legislative power.

If the General Court deems these provisions of the proposed bill to be in the public interest and for the general welfare, we perceive no constitutional prohibition against their enactment.

We answer “Yes” to question 19.

The reasons stated in answer to question 19, lead us to the conclusion that like answers are required to questions 20 and 21. We accordingly answer each in the affirmative.

The substance of question 23 is whether it is constitutionally competent for the General Court to require the Boston Elevated Railway Company to sell all its property and franchises as a going concern if authorized by the majority in amount of its capital stock, and the Commonwealth to buy, and to authorize the Commonwealth thereupon to sell the same to a new corporation to be incorporated and to be privately owned, with provision that the same may be oper-. ated under some scheme of public management. The plan outlined in this question involves an expenditure of public money for the purchase of this railway system from its present owner for the avowed purpose of selling the same to another corporation privately owned. If the Commonwealth buys the property it must pay for the same out of public money. If it sells the same to another corporation it will divest itself of all title and interest in property and transfer the same to the new corporation which is privately owned. It has been decided after great deliberation and with full review of decided cases that the Commonwealth has no power to expend public money for the purpose of acquiring property with the intention of selling or transferring the whole or any substantial part of the property so acquired to private individuals. We are of opinion that the supposition put in the question brings it within the constitutional prohibitions pointed out and elucidated in Salisbury Land & Improvement Co. v. Commonwealth, 215 Mass. 371, and Opinion of the Justices, 204 Mass. 607; 211 Mass. 624. The vote of the stockholders to sell does not affect this result because the difficulty is not with the power of the owner to sell, but with the power of the Commonwealth to buy with public money. Nor is the result affected by the factor that public management is to be continued or undertaken in a new form. The constitutional obstacles remain that under the assumption contained in the question the Commonwealth is to expend public money to effect a transfer of property privately owned by one corporation and one set of stockholders to another corporation privately owned by another set of stockholders. That is not a public use of public money and is not permissible under the Constitution.

We answer “No” to question 23.

The same reasons just stated in answering question 23 require a negative answer to question 24.

We have answered all the questions thus far specified, although several of them relate to bills pending in the Honorable Senate and not directly pending before the Honorable House of Representatives and which therefore may never .reach the Honorable House of Representatives for consideration. There is grave doubt whether an opinion on such matters can rightly be required under the Constitution. The object of the clause of the Constitution touching such opinions, c. 3, art. 2, is “to enable the Senate, the House of Representatives, or the Governor and Council, to obtain the advice of the Justices upon any important question of law which the body making the inquiry has occasion to consider in the exercise of the legislative or executive powers intrusted to them respectively.” Opinion of the Justices, 122 Mass. 600, 601, 602. Opinion of the Justices, 217 Mass. 607, and opinions there reviewed; 148 Mass. 623, 626; 226 Mass. 607, 612. See Commonwealth v. Smith, 9 Mass. 531. We have not taken the time to investigate and dispose of the doubt existing on this point, but these answers are not to be regarded as establishing a practice and the question is left open, for future determination, if and when it may arise.

We respectfully ask to be excused from answering questions 5, 7 and 22 of the present order. It has always been the practice of the justices to confine the answers to particular questions of law submitted to them and not to discuss a general inquiry as to the constitutionality of a complicated bill in its entirety. Opinion of the Justices, 239 Mass. 606, 612; 247 Mass. 589, 598.

The present order was transmitted to us too late in the session of 1927 to enable us to make adequate answers before the prorogation of the General Court: and this opinion is transmitted before the reassembling of the Honorable House of Representatives.

Arthur P. Rugg.

Henry K. Braley.

John C. Crosby.

Edward P. Pierce.

James B. Carroll.

William C. Wait.

George A. Sanderson.