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MONEY RAISED BY TAXATION PUB-
The expenditure of money raised by taxation must be limited to a public purpose and it is not, therefore, within the power of the Legislature to authorize the Governor and Council to issue and sell bonds and to expend the proceeds in the construction of highways, where the primary purpose of such construction was to furnish relief to persons out of employment in times of industrial distress.
You have submitted to me, on behalf of the Senate com- To the Senate mittee on ways and means, an inquiry as to whether or not "it Ways and is within the power of the Legislature to authorize the Governor June 9. and Council to issue bonds and to construct public highways for the purpose of creating employment in times of industrial distress;" or, in other words, whether or not it is constitutional to undertake public work, not primarily because such work is required for the public safety or convenience, but in order to provide employment for those whose circumstances require it.
It is well established that the expenditure of money raised by taxation must be limited to a public purpose. Lowell v. Oliver, 8 Allen, 247, 253; Mead v. Acton, 139 Mass. 341, 344; Kingman et al., petitioners, 153 Mass. 566. And the relief of persons who have suffered loss by fire or by any other great and general calamity has been held not to be a public purpose. Lowell v. Boston, 111 Mass. 454; ante p. 151.
It is clear, therefore, that the Legislature may not employ money raised by taxation for the relief of persons who have suffered loss either by some great calamity or by industrial conditions which have deprived them of employment, unless the relief so provided is in the nature of pauper aid; and, in my opinion, the fact that the contemplated relief is to be furnished by means of employment upon public works, as for instance, public highways, does not serve to render constitutional an appropriation therefor of money raised by taxation, if the primary purpose of such appropriation was to furnish relief to
persons out of employment, rather than the construction of highways required by public convenience or safety. In such a case the construction of highways is only incidental to the purpose of affording relief by means of an appropriation of public
You have further requested me to examine House Bill No. 403, with a view to determining whether such bill “is free from objectionable provisions of any other nature." You have not sought my opinion as to whether the bill is objectionable upon the ground set forth in the inquiry which I have already answered, and I therefore express no opinion upon the application of the principle above stated thereto.
The second section of House Bill No. 403 contains provisions for the issuance of bonds, to be described as "The State Highway Emergency Fund Loan," and provides for their sale at such times and prices, and in such amounts and at such rates of interest, not exceeding 4 per cent., as may be deemed best. It then continues:
The sinking fund established by chapter four hundred and ninetyseven of the acts of the year eighteen hundred and ninety-four shall also be maintained for the purpose of providing for the payment of the bonds issued under authority of this act, and the treasurer and receiver-general shall apportion thereto from year to year an amount sufficient with the accumulations of said fund to extinguish at maturity the debt incurred by the issue of said bonds. The amount necessary to meet the annual sinking fund requirements and to pay the interest on said bonds shall be raised by taxation from year to year.
If this section is to be construed as imposing any new liability or obligation upon a sinking fund already established to meet bonds issued under the provisions of St. 1894, c. 497, I am of opinion that it is objectionable as constituting an interference with the obligations of a contract already established and in force. See 2 Op. Atty.-Gen. 505.
Section 5 provides that in case the Highway Commission is directed to undertake the work of constructing highways in any city or town, "they shall employ as laborers and mechanics such
persons as shall be recommended to them by the mayor of the city or the selectmen of the town, giving preference to men out of work, and especially to men having persons dependent upon them for support," provided that such employees are citizens of Massachusetts. This preference, which is based upon the necessity of the employee rather than of the public service, cannot be sustained upon the ground that it is a reward for distinguished public service in the past, or will serve as encouragement for such service in the future. It is therefore, in my opinion, objectionable for constitutional reasons, in that it purports to fix as a basis for employment something which does not bear such a relation to the duties to be performed as to show special fitness for the performance of those duties. Brown v. Russell, 166 Mass. 14; Opinion of the Justices, 166 Mass. 589.
A further provision which is at least of doubtful validity is that contained in section 1, which in effect requires the Governor and Council to determine when a time of industrial distress, arising from scarcity of work, exists among laborers, and to direct the Treasurer and Receiver-General to issue bonds, scrip or certificates of indebtedness to an amount not exceeding the sum of $100,000 in any one year. The powers and duties of the Executive are prescribed by the Constitution, and the Legislature is not authorized to impose upon him duties which do not properly fall within the executive functions vested in him under the Constitution. With respect to the power here sought to be conferred, the authority of the Legislature in the premises may well be questioned. See 1 Op. Atty.-Gen. 172.
To the House of Representatives.
1910 June 13.
MASSACHUSETTS AGRICULTURAL COLLEGE-STATE INSTITU-
To be a state institution implies that the institution, and the work it carries on, is directly under the control of the Commonwealth; that its officers are the agents of the Commonwealth, and that its property is the property of the Commonwealth; and the Massachusetts Agricultural College at Amherst, a public charitable corporation organized under the provisions of St. 1863, c. 220, for educational purposes, and having a distinct corporate existence, does not answer these requirements, and is not, strictly speaking, a State institution.
The trustees of the Massachusetts Agricultural College may not legally, as individuals, purchase land and later sell it to such institution at an increased cost over the original price.
I have the honor to acknowledge the receipt of an order adopted by the Honorable House of Representatives on the 9th day of June, 1910, which is as follows:
Ordered, That the Attorney-General give his opinion. . . to the House of Representatives whether or not in his judgment the Massachusetts Agricultural College at Amherst is a State institution; also, whether the trustees of the Massachusetts Agricultural College, as individuals, have a legal right to purchase land and later sell it to the Massachusetts Agricultural College at an increased price over the original cost.
The first question as to which my opinion is desired is, whether the Massachusetts Agricultural College at Amherst is a State institution.
The Massachusetts Agricultural College was incorporated by St. 1863, c. 220. By that act certain persons were "constituted a body corporate, by the name of the Trustees of the Massachusetts Agricultural College, the leading object of which" should be "without excluding other scientific and classical studies, and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts, in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions of life;" and it was provided that "they and their successors, and
such as shall be duly elected members of said corporation, shall be and remain a body corporate by that name forever." The power of removing trustees from the corporation was given to the trustees, but vacancies in the board of trustees were to be filled by the Legislature. The Governor of the Commonwealth, the secretary of the Board of Education, the secretary of the Board of Agriculture, and the president of the faculty were made ex officio members of such corporation (section 1). The corporation was given the usual powers in regard to taking and holding of property, making by-laws, saving a common seal, suing and being sued (sections 2, 3). The Legislature reserved the right to alter, limit, annul or restrain the powers vested in the corporation, and especially to "appoint and establish overseers or visitors of the said college, with all necessary powers for the better aid, preservation and government thereof" (section 5). The corporation was required to report to the Legislature, and it was provided that its location, plan of organization, government and course of study should be subject to the approval of the Legislature (sections 5, 6). The purchase of a site was authorized, and one-tenth part of the moneys received from the State Treasurer from the sale of land scrip by virtue of the provisions of the 130th chapter of the Acts of the Thirty-seventh Congress was appropriated therefor, on the condition that the further sum of $75,000 should be subscribed for the purpose of erecting suitable buildings thereon (sections 6, 7). When the college was established, two-thirds of the annual income from the fund created by the sale of such land scrip was to be paid to its treasurer (section 8). This land scrip represented public land, and was granted by the United States, by the act of Congress above referred to, to the several States, to be invested by them (see sections 4, 5), other than 10 per cent. thereof, and the interest in each State to be appropriated "to the endowment, support and maintenance of at least one college where the leading object" should be "without excluding other scientific and classical studies, and including military tactics, to teach such branches of learning as are related to agriculture and the mechanic arts." It was further