Parker v. Com.

• Citation: 178 Mass. 199,59 N.E. 634
• Parties: PARKER COMMONWEALTH; PARKMAN BRINTON v. COMMONWEALTH; PARKMAN BRINTON v. COMMONWEALTH. COMMONWEALTH; PARKMAN BRINTON v. COMMONWEALTH.
• Decision Date: 01 March 1901
• Court: United States State Supreme Judicial Court of Massachusetts

178 Mass. 199

59 N.E. 634

PARKER COMMONWEALTH; PARKMAN BRINTON v. COMMONWEALTH; PARKMAN BRINTON v. COMMONWEALTH. COMMONWEALTH; PARKMAN BRINTON v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1901

COUNSEL

A. D. Hill, R. Homans, J. L. Thorndike, E. R Thayer, Reginald Foster, and W. D. Turner, for petitioners.

H. M Knowlton, Atty. Gen., Frederick N. Nash, Asst. Atty. Gen and Franklin T. Hammond, Asst. Atty. Gen., for the Commonwealth.

OPINION

HOLMES C.J.

These are petitions by owners of land affected by St. 1899, c. 457, to have the amount of damages assessed which have been sustained by them in their property by reason of the act. The statute in question limits the height of buildings on a small tract west of the state house to seventy feet, and allows these petitions if and in so far as the act, or proceedings to enforce it, may deprive the petitioners of rights existing under the constitution. The cases are reported upon demurrer and agreed facts.

In some of the arguments addressed to us it was assumed that the only view which it was possible to take of this statute was that it was intended to benefit the state house considered as a dominant estate, and to annex to it an easement or quasi easement, whether for prospect or security it does not matter. Manifestly this is not true. It may be argued that the statute was passed at least as much in the interest of the public at large as travelers on the highway as it was in the interest of the commonwealth as an owner of property--that one object at any rate was to save the dignity and beauty of the city at its culminating point for the pride of every Bostonian and for the pleasure of every member of the state. It is on this footing that it is argued for the commonwealth that the act is a valid exercise of the police power; that a building law would be valid within reasonable limits; Attorney General v. Williams, 174 Mass. 476, 478, 55 N.E. 77; People v. D'Oench, 111 N.Y. 359, 361, 18 N.E. 862; 1 Lewis, Em. Dom. (2d Ed.) § 156; that a limitation to seventy feet is reasonable, and that such a law is no less valid when passed to satisfy the love of beauty than when passed to appease the fear of fire. 174 Mass. 479, 480, 55 N.E. 77.

It will be observed that this argument avoids the objection that a police law could not be limited to this narrow tract. For all that appears, and probably in fact, the symmetry of Beacon Hill and the domination of the state house as seen from the western approaches, the Mill Dam or Cambridge Bridge for instance, are or may be secured without restricting a larger tract, and if so the statute is coextensive with the public need.

The language of the act is, we repeat, that in so far as it 'may deprive any person of rights existing under the constitution' those in the petitioners' situation may have a remedy. Of course it is possible to read this as the attorney general would have us read it, as importing an exercise of the police power so far as the legislature constitutionally could go, and as saving a remedy for all damages beyond the limit. If interpreted in that way it lets in the argument just stated. The objection to the interpretation is that it supposes the legislature without clear words to have used the police power in one of its extreme manifestations for a purpose which, although conceded to be public, is a purpose which may be described as of luxury rather than necessity, and which, in part after all is for the benefit of the state house land and its proprietor merely as such. So that to sustain the restriction to its whole extent under the police power would be a startling advance upon anything heretofore done. If it should be suggested that the restriction might be sustained under the police power beyond a certain number of feet from the ground and compensation allowed for the restriction between that height and seventy feet, apart from the difficulty of fixing a constitutional limit by feet and inches, which might not...