Mayor of Boston v. Treasurer & Receiver General

Hennessey, C.J.

(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*727ment. The majority, by their reasoning, have placed an impermissible limit upon the broad constitutional power of the Legislature to appropriate State money, and control its use. The Home Rule Amendment.

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.1 In those cases the issue was phrased in terms of whether the law affected a particular municipality in the conduct of its local affairs or whether it concerned matters of State, regional, or general concern. Were I to apply the method of those cases to the budget item challenged here, I might well conclude that it relates to the local affairs of Boston, and thus find a violation of art. 89, § 8. But I think that the approach of those cases is inapplicable where the Legislature merely makes what is in effect an offer of money to a municipality that may be accepted or rejected on a completely voluntary basis. For this reason I believe that the words “act in relation to” do not encompass the placing of conditions or restrictions on a voluntary grant of money to a municipality.

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 *728Amendment suggests that no such limitation was contemplated. Among the asserted evils that were the target of the Amendment were special laws that interfered in local personnel administration (especially in matters dealing with compensation, civil service status, and tenure), and special laws that reorganized or interfered with the structure or election of municipal government. 1961 Senate Doc. No. 580, at 71-88. 1965 Senate Doc. No. 950, at 84-115. Cf. Belin v. Secretary of the Commonwealth, 362 Mass. 530 (1972). These and other alleged abuses imposed substantive or procedural mandates on particular cities or towns. The Home Rule Amendment, then, was intended to limit the power of the Legislature to act by special laws having some affirmative or obligatory effect on a single city or town in the conduct of its local affairs. By contrast, the budget item challenged here imposes no obligation or mandate on the city of Boston.

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.2 Somewhat like our Home Rule Amend*729ment, the Tenth Amendment has been interpreted as a limitation on the power of Congress to interfere with the integral governmental functions of the State. National League of Cities v. Usery, 426 U.S. 833 (1976).3 But similar to our holding here, the Federal cases also indicate that the Tenth Amendment places few, if any, limits on the power of Congress to attach conditions to grants of money, even when those conditions concern matters ordinarily considered within the sphere of State sovereignty. Oklahoma v. Civil Serv. Comm’n, 330 U.S. 127, 142-144 (1947). New Hampshire Dep’t of Employment Security v. Marshall, 616 F.2d 240 (1st Cir.), cert, denied, 449 U.S. 806 (1980). County of Los Angeles v. Marshall, 631 F.2d 767 (D.C. Cir.), cert, denied, 449 U.S. 837 (1980). See Steward Mach. Co. v. Davis, supra. Although there are no cases so holding, it can be persuasively argued that the same conclusion would result where the condition applies to a single State. See South Carolina v. Katzenbach, 383 U.S. 301, 324-327 (1966) (rejecting argument that Congress could not fashion remedies and apply them to particular localities).4

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 *730government. See L. Tribe, American Constitutional Law § 5-22, at 315-316 (1978). Instead, it merely provides an opportunity for enhanced provision of essential government services with no fiscal burden imposed. I do not believe that § 8 of the Home Rule Amendment was intended to foreclose such purely beneficial and permissive offers of State aid.

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.

*731 Proposition 2 ¥2.

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).5 This statute states that “[a]ny law imposing any direct service or cost obligation upon any city or town” shall be effective only if accepted by the city or town or if the Legislature provides for the assumption of such costs by the Commonwealth (emphasis added). Even if I assume that § 27C is binding on subsequent and inconsistent legislative action, I find no conflict with its provisions. The statute is clearly aimed at laws that are mandatory. Suffice it to say that the local aid provision challenged here is not of that nature.

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*732tutionality requires the striking of the entire local aid item applicable to all cities and towns of the Commonwealth.

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).