Mayor of Boston v. Treasurer & Receiver General

Wilkins, J.

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, *719c. 351, § 2, item 0611-5500. That limitation conditioned the distribution to Boston on the city’s maintaining “the same level of police and fire protective services as during fiscal [1980]” and maintaining “as operating facilities all police and fire stations operating during fiscal [1980].”1 The city and its mayor brought this action to challenge the limitation on Boston on the ground that it violates the Home Rule Amendment, art. 2 of the Amendments to the Constitution of the Commonwealth, as appearing in art. 89 of the Amendments, approved by the people in 1966.2 They argue that the proviso should be treated as a nullity and that Boston’s share of the additional local aid should be distributed to it free of the limitation.3

*720We agree that the limitation exclusively imposed on Boston was adopted in violation of the Home Rule Amendment and is invalid. We do not agree, however, that the proviso can properly be severed from the grant to Boston and Boston’s funds then distributed to it free of the limitation. Moreover, we agree with the Attorney General, arguing on behalf of the defendant Treasurer and Receiver General, that, if the limitation on Boston is unconstitutional, the entire allocation of $348,000,000 in additional local aid must be struck down. We have no hesitancy in concluding, however, that the unconstitutionality of the limitation on Boston does not invalidate any other portions of the budget, which we believe the Legislature would have adopted in any event.

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.4 The number of *721noncivilian personnel of the Boston police department was 1,768 on September 18, 1981, and had been in excess of 2,100 both at the beginning and at the end of the 1980 fiscal year. Also, there were 1,554 noncivilian personnel in the Boston fire department in the middle of September, 1981, and there had been more than 1,900 noncivilian employees in that department both at the beginning and at the end of the 1980 fiscal year. Two district police stations open in fiscal year 1980 have been closed, as have two fire stations. The Commissioner of Revenue has advised the mayor of Boston that distribution of funds to Boston made available pursuant to item 0611-5500, half of which would otherwise have been distributable before December 31, will not be made unless the city complies with the limitation on Boston stated in item 0611-5500 (or unless the Secretary of Public Safety approves). The total amount estimated to be payable to Boston under item 0611-5500 is approximately $56,700,000. The statement of agreed facts does not show what additional costs would be imposed on Boston if it were to comply with the limitation contained in item 0611-5500.5 There is nothing in the record or in any legislative document which shows that additional assistance was given to Boston in item 0611-5500 to compensate Boston for the cost of complying with the limitation concerning police and fire services. We note that in an additional proviso contained in item 0611-5500, and quoted below,6 the Legislature modi*722fied the formula that would otherwise have been used in allocating the additional funds among cities and towns. The modification appears to be designed to benefit certain municipalities that are challenging the results of the 1980 , Federal census. We infer that Boston is one of those municipalities but do not know how much this adjustment in the formula has benefited Boston.

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 *723would be ironic if so recently after careful attention has been given to preventing the budgetary process from being misused to reduce the constitutional authority of the Governor,7 this court should endorse a budgetary device that seriously undercuts the protections of the Home Rule Amendment.

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 *724which the matter of police and fire protection is of interest to many people other than the residents of Boston and its city government. Interpretations of the Home Rule Amendment which say that it is not applicable to legislation principally of State or regional, rather than local concern8 cannot be stretched as far as the defendant argues. To do so in this case would substantially abrogate the Home Rule Amendment as applied to Boston because the limitation imposed here affects Boston in the conduct of its local affairs.

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.

*725We find no persuasive analogy in cases dealing with conditional grants by Congress of funds to the States. The restrictions of the Tenth Amendment are very different from those of the Home Rule Amendment. Quite simply, the Tenth Amendment contains no explicit provision barring Congress in any way from passing a law in relation to a single State. The Home Rule Amendment, however, has an explicit provision barring the Legislature from passing a law in relation to a single municipality (except pursuant to certain procedures). In any event, even under the Tenth Amendment, we are aware of no case in which a condition of Federal funding directed explicitly to a single State has been upheld, if indeed such a law has ever been passed.

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 *726limitation concerning police and fire services in Boston. As to the entire budget item, perhaps the Legislature would have appropriated some amount other than $348,000,000 or it might have directed the funds to be distributed among the municipalities according to a different formula. It is sheer conjecture to say what, if any, alternative the Legislature would have adopted. We would be engaging in legislating ourselves if we were to determine that (1) Boston may receive its share of the additional local aid funds free of the limitation or (2) the portion of the additional local aid funds not going to Boston should be distributed without regard to the invalidity of the conditional grant to Boston. We have, however, no problem in finding that the local aid item as a whole is severable from the rest of the 1982 fiscal year budget. Thus a finding that the limitation concerning Boston is unconstitutional requires only the striking of the entire local aid item applicable to all cities and towns of the Commonwealth.

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).