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01/03/78 OPINION JUSTICES TO HOUSE REPRESENTATIVES

January 3, 1978

OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES


Edward F. Hennessey, Francis J. Quirico, Benjamin Kaplan, Herbert P. Wilkins, Ruth I. Abrams. Mr. Justice Braucher did not participate in this opinion. Mr. Justice Liacos did not participate in this opinion.

SYLLABUS BY THE COURT

Charity. Trust, Charitable trust. Jurisdiction, Charity. Constitutional Law, "Home Rule Amendment," "Anti-aid" amendment, Use of public money or property, Municipalities, Special law. Boston. Words, "Public money."

Legislation pending in 1977, which was not filed by a local petition or recommended by the Governor as set forth in § 8 of art. 89 of the Amendments to the Massachusetts Constitution, authorizing the city of Boston, by a majority vote of its city council, to transfer to Boston University the city's title to the Franklin Institute, and authorizing the city, by a similar vote, to designate the University as the recipient of the city's portion of the Franklin Fund to be distributed in 1991, revealed no Statewide actions to be taken, and its provisions altering the decision making processes only in Boston would constitute a "special law" and enactment of the bill would violate § 8 of art. 89. [848-851]

Pending legislation authorizing, prior to 1991, the Franklin Foundation to transfer the care, custody, management, and control of the Franklin Institute, a charitable trust, to Boston University, and the city of Boston to transfer its title to the Institute to Boston University, resulting in a change in trustees and a possible change in beneficiaries, would constitute a legislative application of cy pres which under art. 30 of the Declaration of Rights of the Massachusetts Constitution the Legislature is not authorized to make. [851-853]

Legislation pending in 1977 to authorize the city of Boston through its city council presently to designate Boston University as the recipient of the city's portion of the Franklin Fund, which under the codicil to the will of Benjamin Franklin would be distributed by the city government in 1991, would constitute a legislative application of cy pres, and would, if enacted, violate art. 30 of the Declaration of Rights of the Massachusetts Constitution. [853-854]

Legislation pending in 1977 to authorize the Commonwealth presently to designate Boston University as the recipient of the Commonwealth's interest in 1991 in the Franklin Fund would constitute a legislative application of cy pres, and would, if enacted, violate art. 30 of the Declaration of Rights of the Massachusetts Constitution. [854-855]

No violation of art. 46, § 2, of the Amendments to the Massachusetts Constitution, as appearing in art. 103 of the Amendments, would ensue from the enactment of legislation pending in 1977 and providing for the transfer to Boston University by the city of Boston and the Commonwealth of their respective interests in 1991 in the Franklin Fund, which is not "public money," or of their interests in the Franklin Institute. [855-857]

Article 63 of the Amendments to the Massachusetts Constitution deals exclusively with revenue of the Commonwealth and would not be violated by legislation pending in 1977 purporting to authorize the city of Boston to dispose of its interests in the Franklin Fund and the Franklin Institute [857]; and the legislation would not violate art. 63 by authorizing the Commonwealth to dispose of its interest in the Franklin Fund in 1991 since presently the Commonwealth has not "received" any money from the Fund [857].

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 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, § 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 § 6, if the Franklin Foundation and Boston University effect the transfer of the Franklin Institute, the Commonwealth designates Boston University as the recipient 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. *fn1 He designated the town's "Select Men, united with the Ministers of . . . 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 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 ...


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