Mayor of Boston v. Treasurer & Receiver General

Liacos, J.

(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 *733the court fails to take cognizance of the fact that what is involved here is not simply an apparent clash between a “general law” and art. 89, as the court describes it (supra at 722) but between two constitutional provisions, arts. 63 and 89. Nor does the court seek to harmonize the apparent clash between these constitutional provisions. Opinion of the Justices, 303 Mass. 631, 640 (1939). See Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585 (1981). Instead, it relies in part, in an unusual manner, on a document written after the enactment of art. 89 to interpret the meaning of that article.

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, 3.1 In short, a budget must be “balanced,” showing adequate revenues to pay for expenditures. Addi*734tionally, the budget bill, unlike any other “law,” general or special in nature, is self-liquidating as it is in force only for the fiscal year to which it applies. Last, an examination of art. 63 finds the budget referred to nowhere as a “general” law or a “special” law. It is referred to, instead, as “the budget,” or as the “general appropriation bill.”2

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.3

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).4 Such com-*735merits miss the mark because there is, as the Chief Justice points out, nothing “imposed” on Boston; also, they miss the mark because the budget is not covered by art. 89. To focus this point further, I submit a question: Could not the Legislature, in distributing discretionary grants in aid have simply excluded Boston? The answer seems to be clearly, “Yes.” How then can a conditional grant of money — to be accepted or rejected — at Boston’s option be one that intrudes on the purpose of Home Rule, as stated in art. 89, § 1: “to grant and confirm to the people of every city and town the right of self-government in local matters”? I would hold item 0611-5500 to be constitutional in its entirety.

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.