OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.

OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.

374 Mass. 843

January 3, 1978

On January 3, 1978, the Justices submitted the following answers to questions propounded to them by the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The undersigned Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted by the House on October 12, 1977, and transmitted to us on October 13, 1977. The order recites (1) that there is pending before the General Court a bill entitled, "An Act to authorize transfer to trustees of Boston University by the Franklin Foundation and the city of Boston of the ownership and control of Franklin Institute of

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Boston and exercise by the city of the city's power to dispose of its share of the accumulating bequest of Benjamin Franklin, and to exercise in favor of the trustees of Boston University the commonwealth's power to dispose of its share of said bequest" (House No. 5503); (2) that this bill was filed as a general petition and not as a petition under art. 2, Section 8, of the Amendments to the Constitution of the Commonwealth; and (3) that grave doubt exists as to the constitutionality of the bill if enacted.

Section 1 of the proposed legislation summarizes the history of Benjamin Franklin's gift and makes the following findings: (1) that the future viability of the Franklin Institute would be "promoted" by its transfer to Boston University; (2) that Boston University has expressed a willingness to have the Franklin Institute transferred to it; and (3) that to promote the transfer, it is "appropriate and advisable" to authorize the city of Boston and the Commonwealth to designate that the Franklin Fund be distributed in 1991 to Boston University.

Section 2 of the bill authorizes the Franklin Foundation to transfer to the Trustees of Boston University the care, custody, management, and control of the Franklin Institute.

Section 3 limits the future powers of the Franklin Foundation to the actions necessary to effect the merger, the transfer of other bequests held for the benefit of the Franklin Institute, and the management of the Franklin Fund on behalf of the city of Boston as trustee until 1991.

Section 4 authorizes the city of Boston, by a majority vote of its city council, to transfer to Boston University its title to the Franklin Institute. Section 5 authorizes the city of Boston, by a majority vote of its city council, to designate Boston University as the recipient of its portion of the Franklin Fund which is to be distributed in 1991.

Under Section 6, if the Franklin Foundation and Boston University effect the transfer of the Franklin Institute, the Commonwealth designates Boston University as the recipient

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of its portion of the Fund to be distributed in 1991. Section 7 is a severability provision.

In a codicil to his will, Benjamin Franklin left one thousand pounds in trust to the town of Boston. [Note 1] He designated the town's "Select Men, united with the Ministers of . . . [its] oldest Episcopalian, Congregational, and Presbyterian Churches" as "Managers" of the Fund and directed that the Fund was to be invested in loans to young artisans. Benjamin Franklin further directed that after one hundred years of accumulation a portion of the Fund was to be laid out in public works chosen by the managers. The remainder of the Fund was to accumulate for another hundred years, at the end of which time approximately one-fourth of the Fund was to be left to the "Disposition of the Inhabitants of the Town of Boston" and approximately three-fourths of the Fund was to be left to the "Disposition of the Government of the State." Franklin placed no specific restrictions on the manner of disposition of the Fund by Boston and the Commonwealth after the second hundred years of accumulation.

The first hundred years of accumulation expired in 1891, and in 1894 the managers withdrew a portion of the Fund to establish a technical school. The managers, however, were not able to implement their plan until 1905 when they received a gift from Andrew Carnegie matching that of Benjamin Franklin. By St. 1905, c. 448, the Legislature authorized Boston to "maintain an institution similar to the Cooper Union in the city of New York" and to issue bonds to finance the purchase of a site for the institution. The institution

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was founded as the Franklin Union, but has since become known as the Franklin Technical Institute.

By St. 1908, c. 569, the Legislature incorporated the managers appointed under the codicil to Franklin's will as the Franklin Foundation and gave the Foundation custody, management, and control of both the Franklin Institute and the part of Franklin's gift accumulating for the second hundred years (the "Franklin Fund").

The questions submitted are:

"1. Would the enactment of House No. 5503, without a home rule petition from the city of Boston, be violative of Article 2, Section 8, of the Amendments to the Constitution of the Commonwealth?

"2. Is it violative of Article 30, Declaration of Rights of the Constitution of the Commonwealth, for the General Court to authorize action at the present time (prior to 1991) by the city of "Boston to assign, transfer, release, or otherwise designate the disposition of Boston's vested interest in the Franklin Fund/bequest?

"3. Is it violative of Article 30, Declaration of Rights of the Constitution of the Commonwealth, for the General Court to authorize action at the present time (prior to 1991) by the city of Boston [sic] [Note 2] to assign, transfer, release, or otherwise designate the

disposition of the Commonwealth's vested interest in the Franklin Fund/bequest?

"4. Would legislative action to assign the Boston's [sic] [Note 3] interest in the Franklin Fund/bequest constitute a violation of Article XLVI (the `anti-aid' amendment) or Article

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LXIII (dealing with revenue and appropriations) of the Amendments to the Constitution of the Commonwealth?"

We invited interested persons to file briefs. In response to this request, briefs were filed by the city of Boston, the Trustees of Boston University, and Northeast Institute of Industrial Technology of Boston.

As pointed out by one of the briefs, only Section 6 of the bill directs action to be taken; the other sections only enable action by Boston's city council and the Franklin Foundation. However, since the Legislature would not have the power to enable actions which if taken would have an unconstitutional result, we examine the legislation as if those who are empowered to act are not only enabled, but also directed, to act. See Salem v. Attorney Gen., 344 Mass. 626 (1962).

I. "Would the enactment of House No. 5503, without a home rule petition from the city of Boston, be violative of Article 2, Section 8, of the Amendments to the Constitution of the Commonwealth?"

Article 2 of the Amendments to the Massachusetts Constitution, as appearing in art. 89 of the Amendments, commonly referred to as the "Home Rule Amendment," was ratified in 1966. Section 1 provides that "[i]t is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local government, and to grant and confirm to the people of every city and town the right of self-government in local matters, subject to the provisions of this article and to such standards and requirements as the general court may establish by law in accordance with the provisions of this article." Thus, in general, the Home Rule Amendment restricts the Legislature from passing laws dealing solely with the internal affairs of one particular city or town. However, Section 8 provides in pertinent part: "The general court shall have 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,

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and by special laws enacted (1) on petition filed or approved by the voters of a city or town, or the mayor and city council, or other legislative body, of a city, or the town meeting of a town, with respect to a law relating to that city or town; (2) by a two-thirds vote of each branch of the general court following a recommendation by the governor." No petition was filed by the voters or the mayor and the city council of Boston and no recommendation was made by the Governor. If the bill is both an act "in relation to cities and towns" and a special law, its enactment would violate the Home Rule Amendment. See Belin v. Secretary of the Commonwealth, 362 Mass. 530 , 533-535 (1972).

The phrase "to act in relation to cities and towns," as it appears in Section 8, has been interpreted as follows: "We do not interpret the words `to act in relation to cities and towns' as precluding the Legislature from acting on matters of State, regional, or general concern, even though such action may have special effect upon one or more individual cities or towns. If the predominant purposes of a bill are to achieve State, regional, or general objectives, we think that, as heretofore, the Legislature possesses legislative power, unaffected by the restrictions in art. 89, Section 8." Opinions of the Justices, 356 Mass. 775 , 787-788 (1969).

In the above advisory opinion it was thought that a proposed bill to permit construction of a stadium did not violate the Home Rule Amendment even though the stadium was to be built in Boston. This interpretation has been the subject of the following comment: "[I]f a subject matter is one of state concern the General Court may legislate on it even though the legislation applies to only one city or town because the legislation is not `in relation to cities and towns,' and thus not the type of legislation to which section 8 applies." Brown, Home Rule in Massachusetts: Municipal Freedom and Legislative Control, 58 Mass. L.Q. 29, 49 (1973). We perceive no Statewide implications of the actions which could be taken under the proposed bill, and no such implications have been suggested to us.

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If, on the other hand, the primary purpose of a bill "is to legislate `with respect to . . . [the] local government,' or `local matters,'" of cities or towns, the bill relates to cities and towns. Opinions of the Justices, 356 Mass. 775 , 788 (1969). See Belin v. Secretary of the Commonwealth, 362 Mass. 530 , 534 (1972).

Sections 4 and 5 of the bill authorize the Boston city council to transfer title to the Franklin Institute to Boston University and to designate Boston University as the donee of Boston's interest in the Franklin Fund. Under the bill's provisions, the mayor appears to have no role in the disposition of the gift to the city. Removing the mayor from the decision making process alters the traditional procedure by which gifts are expended in the city of Boston; G. L. c. 44, Section 53A, provides that gifts of funds to cities such as Boston may be expended only with the approval of the mayor and the city council.

Further, Section 4 enables the Boston city council to convey real property by a majority vote. The city charter, on the other hand, requires a vote of two-thirds of the members of the city council before a sale of city land, other than school land, [Note 4] may be undertaken. St. 1948, c. 452, Section 17E, inserted by St. 1951, c. 376, Section 1, and amended by St. 1966, c. 642, Section 14. Thus, the proposed bill would dramatically alter the method by which decisions are made in Boston. These alterations in the present decision making procedures for the city of Boston constitute legislation concerning local government and local matters. See Belin v. Secretary of the Commonwealth, supra at 534. Therefore Sections 4 and 5 of the bill, if enacted, would legislate "with respect to . . . [the] local government" or "local matters."

A "special law" has been defined as "a statute applicable only to one city or town." Opinion of the Justices, 356 Mass. 761 , 767 (1969). Since the proposed legislation would alter

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the decision making processes only in Boston, it is clearly a special law.

Thus, without a local petition or the Governor's recommendation, the enactment of Sections 4 and 5 of the proposed bill would violate the Home Rule Amendment.

We answer question 1, "Yes."

II. "Is it violative of Article 30, Declaration of Rights of the Constitution of the Commonwealth, for the General Court to authorize action at the present time (prior to 1991) by the city of Boston to assign, transfer, release, or otherwise designate the disposition of Boston's vested interest in the Franklin Fund/bequest?"

Article 30 of the Declaration of Rights of the Constitution of the Commonwealth provides: "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men." In determining whether the proposed legislation authorizing the city of Boston to dispose of its interests in the Franklin gift violates art. 30, we must consider separately the Franklin Institute and the Franklin Fund.

In their briefs, the amici curiae assume that the Franklin Institute is held as a charitable trust. [Note 5] We shall, therefore, analyze question 2 in terms of this characterization of the Institute. [Note 6]

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Under the bill the Franklin Foundation is authorized to transfer the care, custody, management, and control of the Institute to Boston University and the city of Boston is authorized to transfer its title to the Institute to Boston University. The effect of these provisions is to work a change in trustees and a possible change in beneficiaries. Such changes constitute a legislative application of cy pres. [Note 7] We conclude that under art. 30 the Legislature is not authorized to make these alterations.

In general, application of the doctrine of cy pres to alter charitable trusts is performed by the courts. First Christian Church v. Brownell, 332 Mass. 143 , 148 (1955). Brookline v. Barnes, 327 Mass. 201 , 208 (1951). Trustees of Andover Theological Seminary v. Visitors of Theological Inst. in Phillips Academy, 253 Mass. 256 , 297 (1925).

Although the Legislature does possess some authority to alter charitable trusts, this authority is narrowly limited. For example, the Legislature may prescribe who shall administer a charitable trust and how such persons shall be selected when these matters are not provided for in the instrument creating the trust, Ware v. Fitchburg, 200 Mass. 61 (1908), and it may provide for the incorporation of the present managers of a charitable trust, Boston v. Curley, 276 Mass. 549 (1931). In such cases, "[t]he trust remains unimpaired as to title, use and management." Id. at 559. However, "[i]t is not within the power of the Legislature to terminate a charitable trust, to change its administration on

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grounds of expediency, or to seek to control its disposition under the doctrine of cy pres." Opinion of the Justices, 237 Mass. 613 , 617 (1921). See Franklin Foundation v. Attorney Gen., 340 Mass. 197 , 205 (1960); Massachusetts Charitable Mechanic Ass'n v. Beede, 320 Mass. 601 , 609-610 (1947); Adams v. Plunkett, 274 Mass. 453 , 462-463 (1931); Cary Library v. Bliss, 151 Mass. 364 , 373-374 (1890).

The alterations authorized in the proposed bill, since they involve changes in trustees and beneficiaries, fall within the latter type of alterations which the Legislature is not authorized to make. See Massachusetts Charitable Mechanic Ass'n v. Beede, supra at 610; Adams v. Plunkett, supra; Cary Library v. Bliss, supra. Cf. Trustees of Andover Theological Seminary v. Visitors of Theological Inst. in Phillips Academy, supra at 293. Therefore, the proposed alterations in the management and control of the Franklin Institute would violate art. 30.

Under the will of Benjamin Franklin, the city of Boston was given the authority to dispose of one-fourth of the trust [Note 8] fund accumulating until 1991. The proposed legislation authorizes the city of Boston to designate Boston University now as the recipient of its portion of the Franklin Fund which is to be distributed in 1991. The terms of the will, however, contemplate distribution by the city government in 1991 for purposes chosen in 1991. [Note 9] See Franklin Foundation

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of the validity of a present designation by the Commonwealth of Boston University as the recipient of its interest in 1991. The Commonwealth's interest in three-fourths of the Franklin Fund is identical to that of Boston's interest in one-fourth of the Fund: it has the power to dispose of its portion which is accumulating until 1991. The terms of the will contemplate that the State government in 1991 will distribute the Fund for purposes chosen in 1991. A present designation by the Commonwealth of the parties to receive its interest would effect a change in control of disposition and a possible change in beneficiaries. These alterations would also constitute an application of cy pres concerning aspects of trusts which the Legislature is prohibited from changing. Thus, a present determination by the Legislature to designate Boston University as the recipient of its interest in the Franklin Fund would violate art. 30.

We answer question 3, "Yes."

IV. "Would legislative action to assign the Boston's [sic] interest in the Franklin Fund/bequest constitute a violation of Article XLVI (the `anti-aid' amendment) or Article LXIII (dealing with revenue and appropriations) of the Amendments to the Constitution of the Commonwealth?"

The fourth question inquires concerning the disposition of only Boston's interest in the Franklin Fund/bequest. However, the content of the question and the fact that art. 63 applies only to the Commonwealth indicate that the question might not have been intended to be so narrow. We will consider the disposition of both Boston's and the Commonwealth's interests as those dispositions relate to art. 46, and we shall evaluate the Commonwealth's disposition in connection with art. 63.

Article 46, Section 2, of the Amendments to the Constitution, as appearing in art. 103 of the Amendments, provides in pertinent part: "No grant, appropriation or use of public money or property or loan of credit shall be made or authorized by the Commonwealth or any political subdivision thereof for the purpose of founding, maintaining or aiding any infirmary, hospital, institution, primary or secondary school, or

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charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents." Thus, to constitute a violation of art. 46, the property given must be "public money or property."

The purpose of art. 46 is to prevent aid from appropriated funds from being given to nonpublic institutions. Opinion of the Justices, 357 Mass. 836 , 844 (1970). Thus, "public money" within the meaning of art. 46 is money raised by taxation. Opinion of the Justices, 354 Mass. 779 , 784 (1968). "`[L]oans, grants, aid or contributions from any source of either money, property, labor or other things of value'" have been found not to be encompassed by "public money" as it is used in art. 46. Id. Private gifts to the Commonwealth or its subdivisions are therefore not "public money."

The city of Boston and the Commonwealth each have the power to dispose of part of the Franklin Fund in 1991. This Fund was established by a private bequest of Benjamin Franklin. Thus the Franklin Fund is not "public money." Boston and the Commonwealth could, therefore, give their portions of this Fund to Boston University without violating art. 46.

Under the bill, the city of Boston would also transfer its title to the Franklin Institute. With one exception, the assets of the Franklin Institute have been acquired and maintained through private gifts, including the Franklin bequest and the Carnegie donation. For the reasons stated above, transfer of these assets to Boston University would not violate art. 46. The only exception to the use of private funds for the acquisition of the assets of the Franklin Institute was the purchase of the site on which the Institute is located with money from the city's publicly raised general funds. Under the terms of art. 46, the transfer of title to the land to Boston University might be prohibited. However, the bill provides in Section 4 for the payment by Boston University of the fair value of this land. Since fair value would be paid for the portion of the Franklin Institute which was acquired through the

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use of public funds, no violation of art. 46 would result from the transfer of this asset. See Brooks v. Boston, 334 Mass. 285 (1956).

Hence, the transfer to Boston University by the city of Boston and the Commonwealth of their interests in the Franklin Fund and the Franklin Institute would not violate art. 46.

Article 63 of the Amendments to the Constitution of the Commonwealth provides that "[a]ll money received on account of the commonwealth from any source whatsoever shall be paid into the treasury" and that all proposed expenditures of the Commonwealth should be included in some appropriation bill.

Since art. 63 deals exclusively with revenue of the Commonwealth, it does not apply to actions taken by the city of Boston. See Opinion of the Justices, 349 Mass. 804 , 807-808 (1965). The disposition by Boston of its interests in the Franklin Fund and the Franklin Institute therefore would not violate art. 63.

The interest of the Commonwealth in the Franklin Fund consists of a right to determine the disposition of part of the Fund in 1991. At the present time, the Commonwealth has not "received" any money from the Fund. Moreover, unless the Commonwealth should decide to appoint itself the beneficiary of the Franklin Fund, it will never "receive" any money from the Fund. Cf. Howes Bros. v. Unemployment Compensation Comm'n, 296 Mass. 275 , 288-290 (1936), cert. denied, 300 U.S. 657 (1937); Horton v. Attorney Gen., 269 Mass. 503 , 511-512 (1929); Rep. A. G., Pub. Doc. No. 12, at 114 (1973); 8 Op. Att'y Gen. 191 (1926); 6 Op. Att'y Gen. 636 (1922). Consequently, disposition by the Commonwealth of its interest in the Franklin fund would not violate art. 63.

However, as concluded above, the city of Boston cannot transfer the Franklin Institute and neither Boston nor the Commonwealth can now commit their prospective 1991 interests in the Franklin Fund.

We answer question 4, "No."

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The foregoing answers and opinions are submitted by the Chief Justice and the Associate Justices subscribing hereto on the third day of January, 1978.

Mr. Justice Braucher did not participate in this opinion.

Mr. Justice Liacos did not participate in this opinion.

EDWARD F. HENNESSEY

FRANCIS J. QUIRICO

BENJAMIN KAPLAN

HERBERT P. WILKINS

RUTH I. ABRAMS

FOOTNOTES

[Note 1] The facts recited in this opinion are distilled from cases in which we have previously considered various aspects of the Franklin Institute and the Franklin Fund. See Franklin Foundation v. Collector-Treasurer of Boston, 344 Mass. 573 (1962); Franklin Foundation v. Attorney Gen., 340 Mass. 197 (1960); Franklin Foundation v. Boston, 336 Mass. 39 (1957); Boston v. Curley, 276 Mass. 549 (1931); Boston v. Doyle, 184 Mass. 373 (1903); Madden v. Boston, 177 Mass. 350 (1901); and Higginson v. Turner, 171 Mass. 586 (1898).

[Note 2] Since the proposed legislation does not purport to authorize the city of Boston to assign the Commonwealth's interest in the Franklin Fund, this question presumably refers to the Commonwealth's disposition of its own share of the Fund.

[Note 3] The content of this question and the fact that art. 63 applies only to the Commonwealth indicate that the question was probably intended to refer to the Commonwealth as well as to the city of Boston.

[Note 4] "School land" does not seem to encompass land on which a charitable foundation, which is a technical school, is located.

[Note 5] Although the issue whether the Institute is a charitable trust has not been briefed and although we do not decide this issue, there seems to be a high probability that the Franklin Institute would be found to be a charitable trust. See Dunphy v. Commonwealth, 368 Mass. 376 (1975); Sullivan v. Roman Catholic Archbishop, 368 Mass. 253 (1975); Trustees of First Methodist Church v. Attorney Gen., 359 Mass. 658 (1971); Salem v. Attorney Gen., 344 Mass. 626 (1962).

[Note 6] If the Institute were owned outright by the city of Boston, presumably the city could freely transfer it pursuant to its charter without legislation.

[Note 7] Some of the changes in the application of the Franklin Institute and the Franklin Fund authorized by the proposed legislation might more properly be characterized as deviation, rather than as cy pres. See Restatement (Second) of Trusts Section 381 (1959). This distinction, however, is irrelevant to a consideration of the separation of powers issue. A major reason for refusing to authorize the Legislature to apply cy pres to charitable trusts is that the existence of the prerequisites for the application of the doctrine is a determination which courts should make. See Franklin Foundation v. Attorney Gen., 340 Mass. 197 , 205 (1960). The prerequisites for the application of cy pres are similar to those for the application of deviation. Compare Restatement (Second) of Trusts Section 381 (1959), with Restatement (Second) of Trusts Section 399 (1959).

[Note 8] There is no question that the fund accumulating until 1991 is held as a charitable trust. See Franklin Foundation v. Attorney Gen., 340 Mass. 197 (1960).

[Note 9] We need not determine the precise nature of the city's and the Commonwealth's interests in the Franklin Fund since the fact that the will contemplates disposition by those bodies in 1991 for purposes chosen in 1991 is sufficient to decide the art. 30 issues presently before us. One of the briefs argues that the city's and the Commonwealth's interests are either powers of appointment or vested future interests. Under neither characterization, however, would the city or the Commonwealth have the power presently to designate the future recipient of its interest without substantially altering the terms of the will and thus violating art. 30. As indicated, the will contemplates that the determination of the disposition of the Fund be made in 1991. If the interest involved were a power of appointment, the present exercise of this power would effect a change in the donee of the power. The general rule, however, is that the donee of a power cannot be changed. See Merchants Nat'l Bank v. Morrissey, 329 Mass. 601 , 606 (1953); Boston Safe Deposit & Trust Co. v. Prindle, 290 Mass. 577 , 582-583 (1935); Thayer v. Rivers, 179 Mass. 280 , 288-289 (1901). If the interests involved were vested future interests, since the will directs that the disposition of the interests be determined in 1991, the city and the Commonwealth would not have the authority to assign their interests before that time.