Mayor of Boston v. Treasurer & Receiver General
Mayor of Boston v. Treasurer & Receiver General
Opinion of the Court
In providing an additional $348,000,000 in financial aid to the cities and towns in the budget for the current year, the Legislature imposed a specific limitation on the distribution of funds to the city of Boston. St. 1981,
We are aware of the disruptive consequences of the result we reach in this case. It would have been less disruptive to reach a contrary conclusion. It is, however, often precisely when seductive, extraneous pressures are most intense that the need is greatest for judges to focus on constitutional principles. We believe any disruption need only be temporary. The Legislature is still in session. The problem is not insoluble.
The plaintiffs commenced this action in the Supreme Judicial Court for the County of Suffolk seeking declaratory and injunctive relief against the operation of the limitation imposed on Boston’s receipt of its share of the funds additionally made available by St. 1981, c. 351, § 2, item 0611-5500. A single justice reserved and reported the case to this court on the complaint, the answer, and a statement of agreed facts.
We summarize certain of these facts. Item 0611-5500 was not enacted on a petition filed or approved by the voters or by the mayor and city council. Nor was item 0611-5500 enacted by a two-thirds vote of each branch of the General Court following a recommendation of the Governor.
The Home Rule Amendment provides (in relevant part) that the General Court has “the power to act in relation to cities and towns, but only by general laws which apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two” (emphasis supplied). In passing item 0611-5500, to provide reimbursement to cities and towns, the General Court was acting “in relation to cities and towns.” The act containing the budget was a general law. Finally, it is apparent that, in limiting Boston’s use of the funds, the law does not “apply alike to all cities, or to all towns, or to all cities and towns, or to a class of not fewer than two.” It applies to a class fewer than two, that is, to Boston alone. Boston alone is told how to use funds made available to it. It alone is denied the opportunity to decide how to allocate funds generally made available to meet the financial problems of Proposition 2lA. Boston alone is told that, if it wants the stated financial aid, it must achieve compliance with the restrictions of Proposition 2Vz, largely if not entirely, by budgetary reductions in departments other than police and fire.
A straight-forward reading of the Home Rule Amendment indicates that the restriction on legislative action imposed by that Amendment has been violated by the limitation concerning police and fire protection in Boston. There are procedures described in the Home Rule Amendment by which the limitation might have been lawfully enacted. The procedure followed here is not one of them. Although “the scope of the disability imposed on the Legislature by the [Home Rule] [A]mendment is quite narrow” (Arlington v. Board of Conciliation & Arbitration, 370 Mass. 769, 773 [1976]), that disability is total and its scope is explicit. It
The conclusions we reach are supported by a thoughtful analysis of the Home Rule Amendment, published shortly after its enactment in 1966. See Eighth Report of the Special Commission on Implementation of the Municipal Home Rule Amendment to the State Constitution, Senate Doc. No. 1547 (November 30, 1967), containing “an analytical discussion of the Home Rule Amendment made for the Home Rule Commission by its legal consultant firm.” In discussing the enactment of laws in relation to cities and towns, that document states “[a] law granting moneys to or imposing expenses upon cities and towns would seem to be a law in relation to cities and towns” (emphasis supplied). Id. at 25. Indeed, on what theory would a law granting funds to municipalities not be a law in relation to cities and towns? In discussing the special circumstances of General Laws which have excepted Boston from their application, the 1967 analysis of the Home Rule Amendment states: “But a general law may not create a new special rule for Boston only or change one exception for Boston only into a different exception for Boston only, because such a law does apply to Boston and fails to apply alike to it and at least one other city or town” (emphasis supplied). Id. at 27.
The defendant argues that the limitation applicable to Boston is a matter of regional concern and that, therefore, it does not fall within the restrictions of the Home Rule Amendment. He points to the importance of Boston as a regional center for business, tourism, and commerce in
We also reject the defendant’s argument that the authority of the Legislature in granting funds to municipalities is unrestrained by the Home Rule Amendment. Nowhere in the Home Rule Amendment is there the slightest suggestion that its provisions are inapplicable to a conditional grant of funds to a municipality. If we were to conclude that conditions and limitations could be imposed on an individual municipality in the process of distributing local aid, a substantial and unwarranted exception would be added judicially to the Home Rule Amendment. Surely, no one would sustain, against a Home Rule challenge, a separate special or general law which imposed on Boston the limitation involved here. The limitation acquires no constitutional respectability merely because it is wrapped in the mantle of a grant of local aid.
We acknowledge and reaffirm the broad power of the Legislature in matters relating to appropriations. It has been said, in a different context, that “it would require words in the Constitution of unequivocal meaning to prevent the General Court from attaching conditions to the expenditure of moneys appropriated by it.” Opinion of the Justices, 294 Mass. 616, 621-622 (1936). The Home Rule Amendment contains just such words of unequivocal meaning.
We reject the plaintiffs’ argument that the conditional language concerning Boston is severable from the rest of the item. We accept the argument of the Attorney General that, if the limitation is unconstitutional, the entire local aid item ($348,000,000) must be struck down. “[Wjhere a statutory provision is unconstitutional, if it is in its nature separable from the other parts of the statute, so that they may well stand independently of it, and if there is no such connection between the valid and the invalid parts that the Legislature would not be expected to enact the valid part without the other, the statute will be held good, except in that part which is in conflict with the Constitution.” Krupp v. Building Comm’r of Newton, 325 Mass. 686, 691 (1950), quoting from Commonwealth v. Petranich, 183 Mass. 217, 220 (1903). If the court is unable to know whether the Legislature would have enacted a particular bill without the unconstitutional provision, it will not sever the unconstitutional provision, but will strike the entire statute. Pedlosky v. Massachusetts Inst. of Technology, 352 Mass. 127, 129 (1967).
We cannot say that the General Court would have enacted the same budget item without the limitation if it had known the limitation to be illegal. Perhaps the Legislature granted Boston extra funds, by its adjustment of the distribution formula, because of the additional burden of the
Judgment is to be entered declaring that (1) the limitation on the receipt of funds by the city of Boston stated in St. 1981, c. 351, § 2, item 0611-5500, violates the provisions of the Home Rule Amendment to the Constitution of the Commonwealth; (2) the limitation may not be severed from item 0611-5500; and (3) funds may not be distributed to the cities and towns according to the provisions of item 0611-5500.
So ordered.
The provisions of item 0611-5500 state in part: “For additional assistance to the cities and towns, there is hereby appropriated the sum of three hundred and forty-eight million dollars from the General Fund to be credited to the Local Aid Fund as established under the provisions of section two D of chapter twenty-nine of the General Laws and to be distributed to said cities and towns in accordance with the provisions of section eighteen C of chapter fifty-eight of the General Laws; provided, however, that no funds shall be distributed to the city of Boston unless said city shall maintain the same level of police and fire protective services as during fiscal nineteen hundred and eighty, and also maintain as operating facilities all police and fire stations operating during fiscal nineteen hundred and eighty, unless otherwise approved by the secretary of public safety ...” (emphasis supplied).
General Laws c. 58, § 18C, provides for the distribution of amounts credited to the Local Aid Fund to the cities and towns of the Commonwealth according to a formula that is based, roughly, on census figures and property subject to local taxation. The Local Aid Fund was originally established to receive revenues from the State lottery (St. 1971, c. 813, § 1, inserting G. L. c. 29, § 2D), but has since been expanded to receive funds from tax sources. St. 1978, c. 367, § 58, amending G. L. c. 29, § 2D.
The limitation authorizes the secretary of public safety to approve a lower level of police and fire services and facilities in Boston than existed in fiscal 1980. This avenue of relief from the statutory limitation on Boston does not have any significant bearing on the home rule issue before us because it too is limited exclusively to the city of Boston.
The plaintiffs also argue that the limitation on Boston violates C. L. c. 29, § 27C, inserted by St. 1980, c. 580, § 2 (commonly known as “Proposition 2Vi”). We need not reach the issue of the effect, if any, of Proposition 2Vi on a statute subsequently adopted.
These facts are relevant because they exclude the possibility that item 0611-5500, or any part of it, was enacted pursuant to procedures that are authorized under the Home Rule Amendment for the enactment of legislation directed toward only one municipality.
In their complaint the plaintiffs allege that it would cost the city in excess of $50,000,000 during the current fiscal year to restore police and fire operations to the level set forth in item 0611-5500, but the defendant has not agreed, by his answer or otherwise, to this allegation.
“[P]rovided, further, that, notwithstanding the provisions of any special or general law to the contrary, any census figures used to determine the amounts of assistance to be distributed pursuant to this item shall be equal to the state census figures for nineteen hundred and seventy-five for any city or town which has filed suit against the United States bureau of the census to challenge the figures certified by said bureau for the national census of nineteen hundred and eighty; provided, further, that the attorney general shall have filed as a co-plaintiff in such suit; and provided, further, that if the figures certified for said national census, after adjustments related to definitions, are greater than said state census figures, said national census figures shall be used . . . .”
Opinion of the Justices, post 828 (1981). Attorney Gen. v. Administrative Justice of the Boston Municipal Court Dep’t of the Trial Court, ante 511 (1981). Opinion of the Justices, post 820 (1981).
Opinion of the Justices, 374Mass. 843, 849-850 (1978). Hadley v. Amherst, 372 Mass. 46, 50 (1977). Belin v. Secretary of the Commonwealth, 362 Mass. 530, 534 (1972). Opinion of the Justices, 357 Mass. 831, 834 (1970). Opinion of the Justices, 356 Mass. 775, 787-788 (1969). See City Council of Boston v. Department of Pub. Utils., 7 Mass. App. Ct. 379, 382 (1979).
Dissenting Opinion
(dissenting, with whom Liacos and Lynch, JJ., join). I dissent. The Home Rule Amendment forbids the Legislature to “act in relation to” any single city or town. In my view, the Legislature did not “act in relation to” Boston within the meaning of the Amendment. The Legislature merely placed a condition upon a grant of money, and imposed no obligation or mandate. Consequently, there was no violation of the Home Rule Amend
This court has on several prior occasions had the opportunity to consider whether a particular special law was “in relation to” a city or town.
It is beyond dispute that the power to spend money, founded in Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth, is an important and central feature of the legislative function. The placing of conditions or restrictions upon the use of State money is an integral part and privilege of the exercise of that power. We should therefore not lightly read limitations on that power into the Constitution. Opinion of the Justices, 294 Mass. 616, 621-622 (1936) (“it would require words in the Constitution of unequivocal meaning to prevent the General Court from attaching conditions to the expenditure of moneys appropriated by it”). The history surrounding the enactment of the Home Rule
Nor can I accept the argument that the condition is coercive. “[T]o hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties.” Steward Mach. Co. v. Davis, 301 U.S. 548, 589-590 (1937). Boston can opt not to receive its share of State aid; or it can elect to comply with the condition and receive its share. In either case it will be no worse off than if the General Court had not passed the budget item at all. Since the condition is purely permissive in nature, there is no direct interference in the local affairs of Boston. Where a wholly voluntary condition is used pursuant to the exercise of the Legislature’s spending power, I think, in light of the objectives of the Home Rule Amendment, that no constitutional violation should be found when such condition is applied even to a single municipality.
Analogy in the instant case may be drawn to the Federal cases arising under the Tenth Amendment to the United States Constitution.
The basic principle of the Federal cases just cited is applicable here. The Home Rule Amendment was enacted upon recognition of the values inherent in the preservation of decentralized government. None of those values are offended here. The conditional grant of funds does not impair the ability of municipal officials to respond to local expectations concerning the conduct or affairs of municipal
I do not say that there are no limits on the power of the General Court to place conditions upon a grant of money to a single municipality. If, for example, the conduct sought to be stimulated or discouraged were unrelated to the intended use of the funds being granted, then a constitutional challenge might succeed. See Steward Mach. Co. v. Davis, supra at 591; L. Tribe, American Constitutional Law, supra at 316. Cf. Attorney Gen. v. Administrative Justice of the Boston Municipal Court Dep’t of the Trial Court, ante 511, 515 (1981) (“where a provision of án appropriation bill does not direct the way an appropriation is to be used or qualify the appropriation, the provision is separable and susceptible to an item veto”). The existence of a connection between the purpose intended by the grant of funds and the conduct sought to be regulated ensures that the power being exercised is indeed a spending power, rather than an impermissible regulation of local affairs. I think the existence of that connection is clearly implied in the legislative action here.
A condition on a legislative grant of funds to a city or town might also be susceptible to constitutional attack if the amount of funds were inadequate to meet the condition imposed. See L. Tribe, American Constitutional Law § 5-22, at 315-316 (1978). Arguably, the use of a disproportionate condition would be more in the nature of an exercise of regulatory power, rather than a spending power, and thus impermissibly intrusive into local affairs, despite its still voluntary character. However, the plaintiffs have made no showing that Boston’s share of the Local Aid appropriation will be inadequate to restore its police and fire protective services to their 1980 levels.
The plaintiffs also argue that, even if the budget item is constitutional, it nevertheless is in violation of G. L. c. 29, § 27C, inserted by St. 1980, c. 580, § 2 (Proposition 2V2).
Severability.
I agree with the majority that, since the court has decided against the validity of the condition in the budget item, we cannot conclude that the condition is severable and thereby allow Boston to receive its share free of any restrictions. On the basis of the limited information before this court I cannot say that the General Court would have enacted the same budget item without the condition had it known the condition to be illegal. The Legislature had any number of alternatives available to it. It is sheer conjecture to say that one of these alternatives would not have been adopted. To find the condition severable in such circumstances would constitute nothing short of judicial legislation. On the other hand, I, like the majority, have little problem in concluding that the local aid item is wholly severable from the rest of the 1982 budget. Thus, I agree that a finding of unconsti
Conclusion.
I believe that the Legislature as to this discretionary grant could validly decide to give nothing to Boston, or any other single town or city. Given this illustration of the broad spending powers of the Legislature, it seems incongruous to hold that it cannot constitutionally impose upon any one municipality a condition upon the use of money granted.
Opinion of the Justices, 374 Mass. 843 (1978). Hadley v. Amherst, 372 Mass. 46 (1977). Belin v. Secretary of the Commonwealth, 362 Mass. 530 (1972). Opinion of the Justices, 357 Mass. 831 (1970). Opinions of the Justices, 356 Mass. 775 (1969). See City Council of Boston v. Department of Pub. Utils., 7 Mass. App. Ct. 379 (1979).
This is not the first time we have found it helpful to analogize to Federal law in interpreting the Home Rule Amendment. See Bloom v. Worcester, 363 Mass. 136, 155-156 (1973).
It is perhaps noteworthy in this respect that one of the basic concepts of our Home Rule Amendment, embodied in §§ 6 and 7 of art. 89, resembles the “devolution of powers” principle of the Tenth Amendment, whereby “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Although Katzenbach concerned the enforcement powers of Congress under the Fifteenth Amendment, rather than the spending power, the Court stated, “The basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States.” South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966).
General Laws c. 29, § 27C, provides: “Any law imposing any direct service or cost obligation upon any city or town shall be effective in any city or town only if such law is accepted by vote or by the appropriation of money for such purposes . . . unless the general court, at the same session in which such law is enacted, provides, by general law and by appropriation, for the assumption by the commonwealth of such cost, exclusive of incidental local administration expenses and unless the general court provides by appropriation in each successive year for such assumption.” G. L. c. 29, § 27C (a).
Dissenting Opinion
(with whom Lynch, J., joins, dissenting). The court concludes that item 0611-5500, St. 1981, c. 351, § 2, is unconstitutional as violative of art. 89 (Home Rule Amendment). While I join the Chief Justice in his separate opinion, it is appropriate for me to state a few supplementary thoughts. I agree, if the court’s premise of invalidity were correct, the limitation in item 0611-5500 is not severable, and the whole grant of local aid contained in item 0611-5500 would fail. But, I think the court’s premise is wrong not only for the reasons advanced by the Chief Justice, but for the following reasons.
At the outset, the court’s opinion is startling in that it appears totally to ignore a fundamental judicial principle applicable to determining the validity of any attack on the constitutionality of a legislative enactment. That principle requires that a court give a strong presumption of constitutionality to a legislative enactment. Massachusetts Pub. Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 93 (1978). Zayre Corp. v. Attorney Gen., 372 Mass. 423, 432-433 (1977). This court also has recognized that the “power of appropriation is exclusively a legislative power, to be exercised only by the Legislature and in the particular manner prescribed under our Constitution” (emphasis supplied). Opinion of the Justices, 375 Mass. 827, 833 (1978). The “particular manner prescribed” is set forth in art. 63 of the Amendments. Hence, what is also remarkable to me is that
In my view, the enactment of a budget is a unique legislative process which, arguably, involves the enactment of neither a “general” nor a “special” law. Article 63 prescribes a process which does not apply to any other kind of “law.” For example, a special time limit is set by § 2 of art. 63 for the submission of a proposed budget by the Governor. The Governor is not otherwise limited in submitting proposed “laws” to the General Court. See Ft. II, c. 2, § 1, art. 5. The Governor is given a “line item” veto power as to budget items, art. 63, § 5, but has no such power as to any other law, general or special. The budgetary process previously has been described as “unique,” Opinion of the Justices, post 820, 824 (1981); the item veto power in this context has been described as a “special veto power.” Attorney Gen. v. Administrative Justice of the Boston Municipal Court Dep’t of the Trial Court, ante 511, 515 (1981). See also Opinion of the Justices, post 828 (1981). The budgetary appropriation process also is a process, unlike any other “law,” that requires that it can only be enacted (except for legislative salaries and expenses) on “recommendation of the governor,” art. 63, § 3. Also, unlike the enactment of any other “law” the budget bill must have “[a]ll appropriations . . . paid from taxes or revenues” incorporated in the bill. Art. 63, §§ 2, 3.
One wonders, in this light, how the court could treat item 0611-5500 as a “special law” in relation to Boston when such item is a part of unique legislative power to appropriate State moneys in a general appropriation bill.
The court admits that the “‘scope of the disability imposed on the Legislature’ ” by the Home Rule Amendment is quite narrow (supra at 722). Arlington v. Board of Conciliation & Arbitration, 370 Mass. 769, 773 (1976). The court also acknowledges and “reaffirm[s] the broad power of the Legislature in matters relating to appropriations.” (Supra at 724.) The court quotes from the Opinion of the Justices, 294 Mass. 616, 621-622 (1936), where the Justices stated, “[I]t would require words in the Constitution of unequivocal meaning to prevent the General Court from attaching conditions to the expenditure of moneys appropriated by it.” Yet, according to the court, a “straight-forward reading of the Home Rule Amendment” (supra at 722) requires the conclusion it reaches. The court reaches this conclusion, despite the complete silence of art. 89 as to the appropriation powers of the Legislature. The statements of the court (id. at 724) that no “special or general law” imposing such limitations as those involved here would be valid miss the mark (emphasis supplied).
Cf. art. 115 of the Amendments.
Later appropriations authorized after the “general appropriations bill” are referred to as “special appropriation bills.” Art. 63, § 4.
It should also be noted that matters pertaining to appropriations are exempt from initiative and referendum petitions under art. 48, The Initiative, II, § 2; art. 48, The Referendum, III, § 2.
I agree there is no doubt that a special law would be invalid; a “general” law would most likely be valid within the express language of art. 89, § 8.
Reference
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