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To the House
Committee
on Cities.
1911
March 31.

CONSTITUTIONAL LAW - APPROPRIATION OF MONEY RAISED BY
TAXATION PUBLIC PURPOSE MUSEUM OF FINE ARTS.

The Constitution of the Commonwealth, in chapter V., section II., imposes upon
the Legislature the duty "in all future periods of this commonwealth, to
cherish the interests of literature and the sciences, and all seminaries of them,"
and "to encourage private societies and public institutions, rewards and
immunities, for the promotion of . . . arts, sciences, . . and a natural
history of the country," and the appropriation of money in the reasonable
performance of the duty so imposed would be for a public purpose.

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A proposed bill authorizing the city of Boston to appropriate money, not exceeding $50,000 in any single year, for the maintenance and support of the Museum of Fine Arts in said city, subject to certain conditions to be performed by the trustees of such museum, as therein prescribed, would therefore be constitutional.

Under existing law, however, the city of Boston has no authority to appropriate money for such purpose.

You have required my opinion upon the following ques

tion:

With reference to House Bill No. 1527, is there any constitutional objection to the passage of this bill; and, if not, does the city of Boston now have, in your opinion, the right, without additional legislation, to appropriate money for the purposes named in the bill?

House Bill No. 1527 authorizes and empowers the city of Boston to appropriate money, not exceeding $50,000 in any single year, for the maintenance and support of the Museum of Fine Arts, subject to the condition that the trustees thereof

shall continue to open their buildings and collections for free admission to the people of Boston the same number of days in the week as they now do, and that said trustees shall annually report to the mayor and the school committee of the city of Boston statistics showing the financial condition of said museum, its income and disbursements, and the nature and kind of instruction given by it and the number of its teachers and pupils.

Money raised by taxation may be expended only for a public purpose. Lowell v. Oliver, 8 Allen, 247, 253; Opinion of the Justices, 204 Mass. 607, 611. The power of the Legislature to authorize an appropriation by the city of Boston for the benefit of the Museum of Fine Arts must depend upon whether

or not the purpose for which such institution was established is a public purpose. In Kingman v. Brockton, 153 Mass. 255, in discussing a statute authorizing the erection of a memorial hall at the public expense the court said:

That statute may be vindicated on the same ground as statutes authorizing the raising of money for monuments, statues, gates or archways, celebrations, the publication of town histories, parks, roads leading to points of fine natural scenery, decorations upon public buildings, or other public ornaments or embellishments, designed merely to promote the general welfare, either by providing for fresh air or recreation, or by educating the public taste, or by inspiring sentiments of patriotism or of respect for the memory of worthy individuals. The reasonable use of public money for such purposes has been sanctioned by several different statutes, and the constitutional right of the Legislature to pass such statutes rests on sound principles.

This language was cited with approval in the case of Attorney-General v. Williams, 174 Mass. 476. See Williams v. Parker, 188 U. S. 491; see also Higginson v. Nahant, 11 Allen, 530; Hubbard v. Taunton, 140 Mass. 467.

I have before me no precise and definite information as to the purposes for which the Museum of Fine Arts was organized and is maintained, but I assume that among the objects of that institution is the promotion of the education and culture of the public generally in the fine arts, and upon such assumption I am of opinion that its maintenance may well be held to be a public purpose within the principles laid down in the decisions above cited. The Constitution itself imposes upon the Legislature the duty, "in all future periods of this commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them," and "to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures and a natural history of the country" (C. V., § II.); and the appropriation of money in the reasonable performance of this duty would doubtless be for a public purpose. Attorney-General v. Williams, supra, p. 480; Hanscom v. Lowell, 165 Mass. 419; and see Commonwealth v. Boston Advertising Co.,

188 Mass. 348, 351. For authority that the citizens of Boston may be directly taxed, see Merrick v. Amherst, 12 Allen, 500.

You have further required my opinion as to whether or not the city of Boston now has the right, without additional legislation, to appropriate money for the purposes named in House Bill No. 1529. In my opinion it has not. The only provision of law which could now authorize such an expenditure is R. L., c. 26, 28, which is as follows:

The city council may, by a yea and nay vote of two-thirds of the members of each branch thereof present and voting, appropriate money for armories for the use of the state militia, for the celebration of holidays, and for other public purposes to an amount not exceeding in any one year one-fiftieth of one per cent of its valuation for such year.

This section was construed in Hubbard v. Taunton, already cited, in which the court, in refusing to restrain the expenditure of the sum of $200 to pay for twelve public band concerts, used the following language:

The word "other" implies that the celebration of holidays is a public purpose within the meaning of the act, and indicates that purposes which are public only in that sense are included within its scope, although they look rather more obviously to increasing the picturesqueness and interest of life than to the satisfaction of rudimentary wants, which alone we generally recognize as necessary. We know of no simple and merely logical test by which the limit can be fixed. It must be determined by practical considerations. The question is one of degree. But, in reply to the petitioners' argument, we may say that, if the purpose is within the act, we do not see why the city council may not create the occasion. Taking into account the history and language of the act, the safeguards attached to the exercise of the power, the smallness of the sum allowed to be expended, and the fact that it has long been assumed to be within the power of cities to give such concerts in the open air, we are not prepared to say that a case is presented for an injunction.

In view of the language above quoted I do not think that the section above cited should be held to authorize the expenditure of money for public purposes which are permanent and enduring, and which may require a large annual appropriation of money raised by taxation.

CONSTITUTIONAL LAW PUBLIC HIGHWAYS LICENSE - USE
FOR COMMERCIAL OR ADVERTISING PURPOSES.

A city may constitutionally be authorized to require, and to issue through its board
of supervisors, licenses for the use of specified parts of public streets therein
for the storage and sale of merchandise for purposes necessary for the con-
struction or repair of works or buildings and for commercial or advertising
purposes in cases where the consent of the abutting owner or owners has been
obtained. The issuance of such licenses, if confined within reasonable limits,
constitutes a definition by public authority of the public use of a highway.

To the Com

Cities.

1911

April 4.

On behalf of the joint committee on cities you have requested mittee on my opinion "as to the constitutionality of the enclosed bill entitled 'An Act relative to the use of streets in the city of Springfield.'" More precisely, I assume the question to be whether or not the use of the public streets for the purposes and in the manner described in said act is constitutional.

Section 1 of said proposed bill provides that

The board of supervisors of the city of Springfield may require and issue licenses, subject to the provisions hereof, for the use of specified parts of public streets in said city, for the storage and sale of merchandise, for purposes necessary for the construction or repair of works or buildings and for all other purposes requiring the opening of streets, the use thereof for commercial or advertising purposes or for purposes causing more than the ordinary interruption or impairment of travel thereon.

Section 2 provides that any person who desires such a license shall make written application therefor, stating his name, residence and place of business, and describing the location, shape and dimensions of the space which he desires to occupy, the structures which he proposes to use, and the kinds of merchandise which he wishes to store or sell. It further provides that

He shall submit as part of his application the written consent to the issuance of said license on the part of the owner or owners of the premises in front of which he desires to carry on business and of the tenants of the ground floor of such premises, if the license requested is for the sale or storage of merchandise. When the privilege for which a license is asked is to be exercised in front of the premises owned by the city of Springfield, the owner's consent herein provided for shall not be required.

Such a use of the streets does not fall within the limits of the public easement of travel (Commonwealth v. Morrison, 197 Mass. 199, 203; Haberlil v. Boston, 190 Mass. 358), and the Legislature could confer no authority in the premises without the consent of the owner of the fee. Such consent, however, appears to be provided for in the bill submitted to me, and if the use therein licensed does not amount to such a great and permanent obstruction as to constitute a public nuisance or an appropriation of public property to private uses, I am of opinion that the Legislature may authorize the issuance of such license by the city government of Springfield.

Said act may be construed as permitting the supervisors of the city of Springfield to define the limits of the public use and to determine what uses by a private person may be permitted without conflicting therewith. If confined within reasonable limits such use would be constitutional.

To the House

Committee on
Bills in the
Third Read-
ing.

1911 April 12.

CONSTITUTIONAL LAW TAXATION - -EXEMPTION CHARITA-
BLE CORPORATION - LAND ACQUIRED BY INSTITUTION IN-
CORPORATED FOR CARE OF INSANE.

A proposed bill which provides that "no private corporation or association now
existing or hereafter incorporated for the care of the insane shall acquire land
... to be exempt from taxation without the consent of the legal voters of
the town or governing board of a city where such land is located," would
not be unconstitutional as creating an unreasonable exception from the pro-
visions of law for exemption applicable to property of charitable corporations
generally, or because it delegates to cities and towns power to determine
whether specific land therein which may be acquired by such institutions
shall be included within the exemption applicable to land owned by charitable
institutions generally.

In behalf of the committee on bills in the third reading of the House of Representatives, you have requested my opinion as to whether House Bill No. 1170, if enacted, will be constitutional and valid. It provides that

No private corporation or association now existing or hereafter incorporated for the care of the insane shall acquire land in a city or town of the commonwealth to be exempt from taxation without the consent

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