OPINION OF THE JUSTICES TO THE GOVERNOR AND COUNCIL.

OPINION OF THE JUSTICES TO THE GOVERNOR AND COUNCIL.

304 Mass. 681

October 20, 1939

On October 20, 1939, the Governor and Council adopted the following order and transmitted it to the Justices of the Supreme Judicial Court:

WHEREAS, Chapter five hundred and twelve of the Acts of the current year, enacted on the last legislative day of the session of the general court in said year, provides in section three that the Metropolitan District Sewer Construction Commission, established by section one, shall carry out certain projects and may expend therefor sums not exceeding, in the aggregate, ten million four hundred and twenty-eight thousand dollars, provided that not less than forty-five per cent of the sums so authorized to be expended is made available from grants of federal money; and

WHEREAS, Sections nine and eleven of said chapter five hundred and twelve relate to certain preliminary work necessary to be done before the actual carrying out of said projects and read as follows:

"Section 9. Pending receipt of a grant of federal money for the foregoing purposes, the metropolitan district commission shall make borings and surveys and prepare plans and specifications for each of the foregoing projects. For the purpose of carrying out said work said commission may expend, from the amount authorized by

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section three, a sum not exceeding four per cent of the estimated cost of the aforementioned projects."

Section 11. The commission shall have, in addition to any powers expressly given by law, such powers as may be proper and reasonably necessary to carry out said preparation of plans, specifications and borings."

; and

WHEREAS, The commissioner of the metropolitan district commission, who is also chairman of the metropolitan district sewer construction commission, ex officio, by a letter dated October 19, 1939, a copy of which is herewith submitted, has informed the governor, the supreme executive magistrate of the commonwealth, that he is of the opinion that, under the provisions of said chapter which relate to the performance of said preliminary work, it is doubtful whether said commission or the metropolitan district commission is to perform such work and whether or not a grant of federal money is necessary as a condition precedent to the undertaking of such preliminary work, and has requested that the governor and council secure a determination of the meaning of such ambiguous and contradictory provisions by an advisory opinion of the justices of the supreme judicial court; and

WHEREAS, The governor has submitted the aforesaid matter to the council for its action thereon, pursuant to the constitution of the commonwealth, and said matter is now pending before the governor and council; and

WHEREAS, The meaning of said ambiguous provisions must be determined before the state treasurer and the governor can perform their respective duties relative to an issue of bonds, notes or certificates of indebtedness to raise funds for said preliminary work, and before the governor and council can approve the salary of a chief engineer to be appointed under said chapter five hundred and twelve, or any rules or regulations to be made thereunder, or can issue warrants for expenditures for the aforesaid preliminary work; and

WHEREAS, Said chapter five hundred and twelve immediately prior to its enactment into law was a bill known as Senate Bill, No. 624 of the current year which, as appears

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on page numbered 1486 of the senate journal for August 12, 1939, was substituted by amendment in the senate for a bill (House Bill, No. 2482 of the current year) which, as appears on page numbered 2121 of the house journal for August 11, 1939, had been passed to be engrossed by the house of representatives, copies of said bills and of said journals being submitted herewith; and

WHEREAS, An examination of said bills discloses that sections one to nine of said House Bill, No. 2482 were used as a basis of sections three to eleven of said Senate Bill, No. 624 and that the substitution of the newly established metropolitan district sewer construction commission, in place of the metropolitan district commission, as the agency for carrying out sewer projects, resulting from the aforesaid senate amendment, was effected by changing in appropriate places the phrase "metropolitan district commission", as appearing in said house bill to the phrase "the commission", which latter phrase was defined by section one of said senate bill to be the said metropolitan district sewer construction commission, but discloses that no such change was made in section nine of said senate bill, even though such change was made in section eleven which relates to substantially the same subject matter as said section nine; and

WHEREAS, It is necessary that the preliminary work referred to in said sections nine and eleven be undertaken at the earliest possible time in order to eliminate as soon as possible certain unhealthy conditions in the metropolitan area (see House Bill, No. 2465 of 1939, a copy of which is herewith submitted) and also in order to increase the likelihood of obtaining a grant of federal money for the projects described in said chapter five hundred and twelve; and

WHEREAS, A serious emergency and solemn occasion exists requiring the opinions of the justices of the supreme judicial court, now therefore, be it

ORDERED, That the opinions of the justices of the supreme judicial court be required by the governor and council upon the following important questions of law:

1. Is the preliminary work referred to in sections nine and eleven of chapter five hundred and twelve of the acts of

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nineteen hundred and thirty-nine lawfully authorized to be done by the metropolitan district sewer construction commission, established by said chapter, or by the metropolitan district commission?

2. Can such preliminary work be carried on in advance of the application for or the obtaining of any grant of federal money for such work?

On October 27, 1939, the Justices returned the following answers:

To His Excellency the Governor and the Honorable Council of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in your order of October 20, 1939, a copy of which is hereto annexed.

The questions relate to c. 512 of the acts of the current year, entitled "An Act making additional provisions for the sewage disposal needs of the north and south metropolitan districts and other communities which now and hereafter may be included in said districts," and more particularly to the meaning of Sections 9 and 11 thereof.

This statute must be interpreted in connection with the existing statutory law. Under that law there exists a commission described therein as the "metropolitan district commission" (G.L. [Ter. Ed.] c. 28), upon which by G.L. (Ter. Ed.) c. 92, Sections 1-9, is imposed the duty to "construct, maintain and operate . . . main sewers and other works" in the north and south metropolitan sewer districts. St. 1939, c. 512, by its first section, establishes the "Metropolitan District Sewer Construction Commission" which is to include in its membership the "commissioner of the metropolitan district commission" and "the director and chief engineer of the sewerage division of the metropolitan district commission," and states in this section "said commission being hereinafter referred to as the commission." By Section 3 of said c. 512 "the commission" is authorized and directed, subject to certain conditions, to carry out several described "projects" including the construction of storm overflow conduits, a sewage treatment plant, and the extension

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of a sewer, and provides further that "Upon completion of said projects the commission shall turn the same over . . . to the metropolitan district commission, which shall hereafter maintain them as parts of the metropolitan sewer system under chapter ninety-two of the General Laws." By the same section "the commission" is authorized "For the purpose of carrying out said projects" to expend a large sum of money "provided, that not less than forty-five per cent of the sums so authorized to be expended or made available from grants of federal money."

Section 4 of said c. 512 provides, in part: "No such project shall be entered into unless it is approved . . . by the emergency public works commission," and that the State Treasurer "For the purpose only of carrying out said projects" may borrow money (see also Section 8); Section 5 provides: "No payment shall be made or obligation incurred for the carrying out of said projects following their approval by the said emergency public works commission and the governor, and their approval for federal aid by the proper federal authorities, until plans, specifications and contracts therefor, and alterations thereto subsequently proposed, have been approved by the said commission, unless otherwise provided by such rules or regulations as said commission may make"; and Section 7 provides, in part: "The commission, in addition to any powers expressly given by law, shall have such powers as may be determined and certified by said emergency public works commission to be proper and reasonably necessary to carry out said projects."

Section 9 is as follows: "Pending receipt of a grant of federal money for the foregoing purposes, the metropolitan district commission shall make borings and surveys and prepare plans and specifications for each of the foregoing projects. For the purpose of carrying out said work said commission may expend, from the amount authorized by section three, a sum not exceeding four per cent of the estimated cost of the aforementioned projects." Section 10 authorizes the State Treasurer to borrow money "For the purpose of carrying out the work as provided by section nine." Section 11 is as follows: "The commission shall

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have, in addition to any powers expressly given by law, such powers as may be proper and reasonably necessary to carry out said preparation of plans, specifications and borings."

The first question submitted is whether the work described in Section 9 is to be performed by the metropolitan district commission or by the metropolitan district commission. Section 9 in terms imposes the duty of performing this work upon the "metropolitan district commission," and authorizes the expenditure of money therefor by "said commission," obviously referring to the same commission. These words of Section 9 must be given their literal meaning, unless a clear indication of a different meaning is to be found in the context, the purpose of the statute considered as a whole, and its history. We find no such indication.

The powers conferred by Section 11 are in terms conferred upon "the commission," words which generally throughout the statute refer to the metropolitan district sewer construction commission by reason of the statement in Section 1 of the statute. But these words follow, without intervening reference to any commission, the provision in Section 9 referring to the metropolitan district commission, and, ordinarily, apart from the statement in Section 1, would refer to that commission as the nearest antecedent. And the powers conferred relate to carrying out "said preparation of plans, specifications and borings," obviously referring to the work that, by Section 9, the metropolitan district commission is directed to do and authorized to expend money in doing. The natural construction of Section 11, therefore, is that this section refers to the commission that is referred to in Section 9.

Furthermore, we find no indication in the statute as a whole of a legislative purpose necessarily inconsistent with the provisions of Section 9 literally construed. The Legislature may have thought that the commission that has general charge of metropolitan sewers and is to have charge of the projects authorized by St. 1939, c. 512, when completed, was the proper body to carry out the preliminary work described in Sections 9 and 11 for the projects authorized by the statute. Moreover, it is apparent from the language of Section 9 that the work therein referred to is to be carried out before

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these projects are approved for Federal aid. And it is reasonable to assume that some such work would be required before a grant of this aid could be obtained. The Legislature may have thought that an existing commission would be in a better position to do this preliminary work than a commission newly established to carry out the projects if they should be so approved. Certainly the work described in Section 9 is not so clearly an integral part of these projects that, on this ground, the explicit language of Section 9 directing the metropolitan district commission to do that work can be disregarded. Nor is there any necessary inconsistency between a provision directing the metropolitan district commission to do the work and the provision contained in Section 5 relating to "plans, specifications and contracts" for these projects, "following" the approval of the projects for Federal aid.

Finally, the history of the statute does not warrant an interpretation of Section 9 contrary to its literal meaning. This statute, if it had been enacted in the form in which it originally passed the House of Representatives, would have imposed the duty of constructing these projects upon the metropolitan district commission. The Senate, however, substituted for the bill in that form a bill -- which became St. 1939, c. 512 -- imposing the duty of constructing these projects on a special commission created by that statute. The bill so substituted incorporated wholly or in part several sections contained in the bill as it had passed the House, with the words "the commission" substituted for the words "the metropolitan district commission." No such substitution was made in Section 9, though the words "the commission" were substituted in Section 11 for the words "the metropolitan district commission." The latter circumstance is not enough to warrant the conclusion that failure to make the substitution in Section 9 was through inadvertence and does not reflect the intention of the Legislature.

It follows that in our opinion the answer to the first question submitted must be that the work referred to in Sections 9 and 11 of St. 1939, c. 512, is to be done by the metropolitan district commission.

The second question submitted is whether the work

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referred to in Section 9 can be carried on in advance of the application for or the obtaining of a grant of Federal money for such work. The statute, by the provisions contained in Sections 3 and 5 thereof, clearly makes a grant of Federal money a necessary condition precedent to the carrying out of the projects referred to in the statute. But the Legislature may have thought that these projects would not be approved for Federal aid by the proper Federal authorities unless such authorities were furnished information in regard to them which could be obtained and furnished only through the preliminary work above described -- that such preliminary work would be prerequisite to approval for Federal aid. And it could hardly have been thought that this preliminary work would be done without the payment of money or the incurring obligations. It was natural, therefore, that the Legislature should except from the general requirement of previous approval of the projects for Federal aid the doing of the prelimianary work described, the expenditure of money therefor and the borrowing of money to meet such expenditures. This exception is made by Sections 9 to 11, inclusive, of the statute. Such is the necessary import of the authorization by Section 9 of the carrying out of the preliminary work "Pending receipt of a grant of federal money for the foregoing purposes" -- those purposes being the carrying out generally of the projects previously referred to. And in our opinion the phrase quoted does not import that an application for such a grant actually must have been made before this preliminary work can be done. On the contrary the phrase apparently is used in contradistinction to the provisions prohibiting expenditure for the projects generally before they are approved for Federal aid.

The second question must be answered "Yes."

FRED T. FIELD.

CHARLES H. DONAHUE.

HENRY T. LUMMUS.

STANLEY E. QUA.

ARTHUR W. DOLAN.

LOUIS S. COX.

JAMES J. RONAN.