340 Mass. 646 | Mass. | 1960
The General Court in 1953 (St. 1953, c. 606) provided “for the construction, maintenance, repair and operation of a toll tramway on Mount Greylock, the creation of the Mount Greylock Tramway Authority, and . . . the financing of said project.” Statute 1959, c. 608, §§ 2, 3 and 4, purports to amend St. 1953, c. 606, by enacting the Commonwealth’s guaranty of the interest on the Authority’s bonds and authorizing the Treasurer of the Commonwealth to borrow for the purpose of the guaranty.
In this proceeding under G. L. c. 29, § 63, the petitioners, including, as the statute requires, six taxable inhabitants from each of four counties, seek a ruling that the Treasurer may not expend money or incur obligations purporting to bind the Commonwealth under St. 1953, c. 606, as amended by St. 1959, c. 608, for the reason that the amending statute was enacted, unconstitutionally, without a yea and nay vote of two thirds of each house present and voting.
The case is here by reservation and report of a single justice, without decision, upon the petition, the answer and a stipulation.
Statute 1959, c. 608, purports to make three changes in St. 1953, c. 606. Section 2 of the amending act states the insertion of a new § 2 containing these words: “provided, however, that the interest payable on such bonds shall be guaranteed by the commonwealth. All such tramway revenue boiids shall contain on the face thereof a statement to the effect . . . that the payment of the interest on said bonds is guaranteed by the commonwealth.” By § 4, the amending act purports to amend § 10 of St. 1953, c. 606, to include the following: “If, on December first of any year, the amount of the fund established under this section is insufficient' to create reserves for such purposes as the authority shall have provided and to pay the principal and interest on its revenue bonds as they become due and payable, the authority shall notify the treasurer of the commonwealth of such deficiency, and the commonwealth shall pay the au
The Constitution provides in art. 62 of the Amendments: § 2. “The commonwealth may borrow money to repel invasion, suppress insurrection, defend the commonwealth, or to assist the United States in case of war, and may also borrow money in anticipation of receipts from taxes or other sources, such loan to be paid out of the revenue of the year in which it is created. Section 3. In addition to the loans which may be contracted as before provided, the commonwealth may borrow money onfy by a vote, taken by the yeas and nays, of two-thirds of each house of the general court present and voting thereon. The governor shall recommend to the general court the term for which any loan shall be contracted.”
The stipulation states the agreement that no bonds have been issued under St. 1953, c. 606, as amended by St. 1955, c. 476, and St. 1959, c. 608, and that “if bonds are issued . . . and if the respondent is notified that on December first of any year the amount of the fund established under § 10 of . . . St. 1953, c. 606, as amended, is insufficient to create reserves for such purposes as the Authority shall have provided and to pay the principal and interest on its revenue bonds as they become due and payable, the respondent will, if it is determined that the provisions added to said § 10 . . . by St. 1959, c. 608, § 4, are valid, pay the Authority
The petition is properly brought under G. L. c. 29, § 63. It is shown that “if events take their normal course, if no extraordinary intervention occurs, and if there is no restraint by the court ... he [the respondent] will pay out money . . . .” Sears v. Treasurer & Recr. Gen. 327 Mass. 310, 318. See Prince v. Crocker, 166 Mass. 347, 358.
■ We are unable to accept the respondent’s construction that St. 1959, c. 608, § 4, authorizes a borrowing in anticipation of receipts. The respondent as we understand his brief recognizes that a prior appropriation would be required if the deficit is to be paid from funds on hand, or from funds borrowed in anticipation of receipts. Art. 63, §§ 1-5, of the Amendments to the Constitution. Const. Part II, c. 2, § 1, art. 11. G. L. c. 29, § 18. Opinion of the Justices, 297 Mass. 577, 580 (“All money belonging to the Commonwealth must be paid into the treasury. No money can be paid out of the treasury except-under the provisions of the budget which require both executive and legislative sanction”). Opinion of the Justices, 300 Mass. 630, 636 (“Legislative and executive sanction for such payments must, at least ordinarily, be given by statutes making appropriations therefor”). Opinions of the Justices, 302 Mass. 605, 612, 614; 323 Mass. 764, 766-767; 334 Mass. 716, 718. Auditor of the Commonwealth v. Trustees of Boston Elev. Ry. 312 Mass. 74, 81.
The respondent, to meet the need for an appropriation prior to the borrowing, suggests that St. 1959, c. 608, § 4, is to be construed as an advance appropriation of such sums as may be necessary from year to year. See Opinions of the Justices, 308 Mass. 601, 615; 309 Mass. 571, 583, and citations; 334 Mass. 716. We disagree. The statute provides that “[i]n order to meet any payment required . . . the
It is not significant that the statute requires that the term of the notes to be issued under § 4 be such as to bring them within the constitutional authorization for borrowings in anticipation of receipts or that the Governor is by the Constitution to recommend the term for which a loan requiring a two-thirds vote is to be contracted. The. essential declared purpose of the borrowing remains unaffected by these provisions.
Other statutes of somewhat similar wording áre distin
We rule (1) St. 1953, c. 606, § 10, as amended by St. 1959, с. 608, § 4, purports to authorize the borrowing of money as the only means of making payment under the stated guaranty of interest on the tramway bonds; (2) such borrowing is not a borrowing in anticipation of receipts, is not authorized by § 2 of art. 62 of the Amendments to the Constitution, and is subject to § 3 of that article; (3) such borrowing not having been authorized by a statute enacted by a two-thirds vote of each house of the General Court, taken by yeas and nays, in accordance with § 3, is unauthorized.
The petition does not present other questions of the con
The decree will provide that the Treasurer and Receiver General, under St. 1953, c. 606, § 10, as amended by St. 1959, c. 608, § 4, may not borrow, and, on the case presented, may not pay from funds raised by taxation deficiencies in interest on the bonds of the Authority.
So ordered.
Section 9 provides: “If as of the last day of December in any year the amount remaining in the reserve fund shall be insufficient to meet the deficiency . . . the Authority shall notify the state treasurer of the amount of such deficiency, less the amount, if any, in the reserve fund applicable thereto, and the commonwealth shall thereupon pay . . . the amount so ascertained .... In order to meet any payment required . . . the state treasurer may borrow ... in anticipation of the assessments to be levied upon the cities and towns . . . and he shall repay any sums so borrowed as soon after said assessments are paid as is expedient. . . . [S]uch amount with interest or other charges incurred in borrowing the money for the purpose, except such amounts as may be appropriated by the general court therefor, shall be assessed on the city of New Bedford and the towns of Falmouth and Nantucket and the county of Dukes County . . ..”
“. . . [T]he commonwealth shall thereupon pay . . . [the net deficit]. In order to meet any payment . . . the treasurer and receiver general may borrow at any time, in anticipation of the assessments to be levied upon the cities and towns, such sums of money as may be necessary to make said payments . . ..”