Opinion of the Justices to the Senate & House of Representatives

190 Mass. 605 | Mass. | 1906

On April 30, 1906, the Justices returned the following answer:

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

We, the Justices of the Supreme Judicial Court, have received the order, a copy of which is hereto annexed, requesting our opinion upon four important questions of law, and we respectfully submit the following opinion.

Section 10 of article 1 of the Constitution of the United States contains this provision: “No state shall . . . pass any ... ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility,” etc. Upon each of the bonds referred to, issued by the city of Boston in accordance with the provisions of the St. of 1897, c. 500, are stamped the following words: “ East Boston Tunnel. The whole amount of the rentals for" the use of and tolls for persons passing through the East Boston tunnel is pledged for the payment of the principal and interest of this loan.” This statement, which was thus made a part of the contract on the faith of which purchasers have bought, the bonds, was authorized and required by the statute. The fact that lies behind the state-* ment, namely, that the rentals and tolls are actually set apart and pledged as security for this payment, is also a requirement of the statute. We have therefore a contract which rests not only upon the agreement of the city, made for a valuable consideration, but upon the deliberate action and solemnly pledged faith of the Commonwealth. The tolls referred to are the tolls then established by law and they cannot be diminished without reducing the security to which the owners of the bonds are entitled. It is plain that the sale of bonds, carrying on their face this stipulation, creates a contract with each purchaser which it is not in the power of the Legislature to impair. We make this answer to the first and second questions.

The third question, “ Is it lawful for the city of Boston to deduct the cost of collection from the gross amount of tolls collected,” while less important, is more difficult than either of the first two. The words “ whole amount of the . . . tolls ” are broad enough to include the entire sums prescribed by statute and collected as tolls, without diminution for the cost of collection. But the law contemplates collection of these tolls by the Boston Elevated Railway Company, acting as the city’s agent, and suggests payment of compensation for collecting. St. 1897, c. 500, § 17. We think that the purpose and intent of the statute are accomplished if the city retains as security the amount received for the tolls, less a necessary and reasonable allowance to the railway company for the collection of them. This is in accordance with the opinion of the Justices upon a similar question, as to whether the annual payment of one per cent of its income, which the Western Railroad Corporation was required by St. 1838, c. 9, § 3, to make to a sinking fund, was payable from its gross income or its net income. It was held that the percentage was to be reckoned on the net income. Opinion of the Justices, 5 Met. 596.

The fourth question refers to the fact that there are two stations on the tunnel, besides the stations at the termini, and some passengers who ride in the tunnel choose to leave the car without passing through the whole length of the tunnel. It may be that the construction of these intermediate stations was not anticipated when the statute was enacted, and that it was not supposed that passengers would be able to pass through any part of the tunnel without going from one end of it to the other. However that may be, we are of opinion that the application of the statute, to the tunnel as it is, requires us to hold that one who takes a car and rides through a part of it, and then voluntarily leaves the car at an intermediate station, passes through the tunnel, within the meaning of the statute, and is liable to pay the prescribed toll. With any other construction of the statute it would be difficult, if not impossible, to make a distinction between different parts of the tunnel, or to say that tolls could be collected of any passenger who did not ride through the entire tunnel from end to end.

If the term “ tolls ” includes payments by those who leave the tunnel without passing through the whole of it, these are pledged by the contract, as well as the payments for rides through its entire length, and it is beyond the constitutional power of the Legislature to affect the rights of bondholders to this part of their security.

Marcus P. Knowlton.

James M. Morton.

John Lathrop.

John W. Hammond.

William Caleb L orino.

Henry K. Braley.

Henry N. Sheldon.