In re Opinion of the Justices
| Decision Date | 04 March 1910 |
| Parties | In re OPINION OF THE JUSTICES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Opinion of the Justices of the Supreme Judicial Court on the following question submitted to them by the House of Representatives as to the constitutional power of the Legislature to authorize the City of Boston or other public authority to do certain acts in exercise of the power of eminent domain in laying out streets and taking adjoining land for certain purposes:
The Commonwealth of Massachusetts.
House of Representatives, Feb. 23, 1910.
Ordered, that the opinion of the Justices of the Supreme Judicial Court be required upon the following important question of law:
If the Legislature is of the opinion.
(1) That the commercial interests and general prosperity of the inhabitants of the commonwealth, and particularly of the city of Boston, are dependent on the existence in said city of facilities for the transaction of foreign and domestic trade and commerce in a manner suited to the methods of business now in use in the principal cities of other states and in other parts of the world; and that chief among such facilities are the existence of broad and convenient thoroughfares for the transportation of goods and merchandise, and the existence on said thoroughfares of sites adequate in size and means of access (both front and rear) for the construction and use of warehouses, mercantile establishments and other buildings suited to the needs of trade and commerce as now carried on in the principal cities of other states and countries;
(2) That although there is, in the interest of said city and its inhabitants, and of the commonwealth at large, an urgent and pressing need for the existence of such facilities in the said city of Boston, no such street now exists in that part of the city where such a street ought to exist in order that trade and commerce, foreign and domestic, may be carried on according to the methods of business now in use in other parts of the world; and that the commercial and industrial interest of said commonwealth and city are injuriously affected, and their growth retarded, by the non-existence of such facilities;
(3) That not only does said city not now possess any such thoroughfare, but, owing to the narrow, nonparallel, and tortuous nature of most of the streets in that portion of said city where such a thoroughfare should exist, and the great number of small sized and irregularly shaped individual estates abutting thereon, the said facilities cannot be furnished by the mere laying out and construction of new thoroughfares or streets, and the sale or lease of such odd parcels or remnants of land as might be left in the hands of the public authorities if said ways were laid out under existing statutes, because the said parcels would not be suitable in size or shape; and
(4) That the said facilities can only be secured by the obliteration in whole or in part of the present lines of individual ownership along any such thoroughfare as may be laid out and constructed, the concentration through the exercise of the power of eminent domain of such abutting estates in parcels of suitable size and shape, the laying out of rear streets, and the development and use of such parcels, under such restrictions as the public authorities may prescribe, for warehouses, mercantile establishments and other buildings suited to the needs of trade and commerce as now carried on in other cities in other parts of the world--
Is it within the constitutional power of the Legislature to authorize the city of Boston, or such other public authority as the Legislature may select, to lay out such a thoroughfare and rear streets, and to take not only the land or easements necessary for the same, but also such quantities of land on either side of said thoroughfare or between the same and said rear streets, as may be reasonably necessary for the purposes hereinbefore set out, with a view to the subsequent use by private individuals of so much of the property taken as lies on either side of said thoroughfare, under conveyances, leases, or agreements which shall embody suitable provisions for the construction on said land of buildings suited to the objects and purposes hereinbefore set out, and for the use, management and control of said lands and buildings in such manner as to secure and best promote the public interests and purposes hereinbefore referred to; assuming that the act provides just compensation for all persons sustaining damage by the said takings?
James W. Kimball,
Clerk of the House of Representatives.
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
We, the Justices of the Supreme Judicial Court, have considered the question submitted to us, a copy of which is hereto annexed, and we answer it as follows:
The question relates to the proposed laying out of a thoroughfare or street through a part of the city of Boston. The power of the city, by its officers, to lay out and construct a street or thoroughfare in any place within the city, or of any width or mode of construction, if it is found that the public necessity and convenience require it, is undoubted. Rev. Laws, c. 48, § 1; St. 1891, c. 323; St. 1902, c. 521; St. 1904, c. 443.
The question seems to relate particularly to the power of the Legislature to take and use land outside of the proposed thoroughfare, for purposes which have no direct relation to the construction or use of the street for travel. It is presented upon the hypothesis that the desired facilities for the profitable use of the land can be secured only by the obliteration in whole or in part of the present lines of individual ownership along the street, the concentration, through the exercise of the power of eminent domain, of these abutting estates, in parcels of suitable size and shape, and the development or use of such parcels for warehouses, mercantile establishments and othr buildings suited to the demands of trade and commerce. The question is whether such land can be taken with a view to the subsequent use of it by private individuals, under conveyances, leases or agreements which shall embody suitable contracts for the construction on the land of buildings adapted to use in domestic and foreign trade and commerce, and for the use, management and control of the lands and buildings in such manner as to secure and promote such trade and commerce. The proposed legislation to which the inquiry relates, necessarily would contemplate action by the city in the procurement, management and control of land along a street within the city, for no other purpose than to induce and promote a use of it by merchants or traders. It would contemplate a taking of private property in the exercise of the right of eminent domain, and an expenditure of money to pay for it and fit it for occupation.
It is a rule of law universally recognized in this country, that neither of these things can be done unless the taking or expenditure is for a public use. This has been stated so often, and the principles on which it is founded have been considered so fully, that it is unnecessary to discuss it or to cite authorities. The only question about which there is a possibility of doubt is whether the proposed use of the land outside of the thoroughfare is a public use. It is plain that a use of the property to obtain the possible income or profit that might inure to the city from the ownership and control of it would not be a public use. The city cannot be authorized to take the property of a private owner for such a purpose, nor can the city tax its inhabitants to obtain money for such a use. It could as well tax them to raise money to carry on any other private business with a hope of gain. Such proceedings are entirely outside the functions of a state or of any subdivision of a state.
It is equally true and indubitable that a management and use of such property to promote the interests of merchants or traders who might occupy it, and to furnish better facilities for doing business and making profits, would not be a public but a private use of the real estate. In Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39, after the Great Fire of 1872 which destroyed all the buildings in an important part of Boston, it was decided that a statute authorizingthe city to borrow money on bonds and lend it on mortgages to the owners of land whose buildings had been burned, was unconstitutional. The lending of such money presumably would have promoted building and the transaction of business in the devastated district, but the benefit to the public would not have been direct, but only incidental. The court said, speaking by Mr. Justice Wells at page 461 of 111 Mass. (15 Am. Rep. 39): ...
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