Browne v. Turner

• Decision Date: 28 March 1900
• Parties: BROWNE et al. v. TURNER, Treasurer, et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 9

56 N.E. 969

BROWNE et al. v. TURNER, Treasurer, et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 28, 1900

COUNSEL

N. Matthews, Jr., H. L. Harding, and W. G Thompson, for petitioners.

A. E Pillsbury, for defendants Boston El. Ry. Co. and West End St. Ry. co.

Solomon Lincoln, for defendant Boston transit commission.

T. M. Babson, for defendant city of Boston.

OPINION

HOLMES C.J.

This bill purports to be brought under St. 1898, c. 490, amending Pub. St. c. 27, § 129. As we are of opinion that it fails to make out a case, and as all parties are anxious for a decision upon the merits, we have not considered whether the plaintiffs bring themselves within the purview of the act. The decree will be the same that it would be if we were against them on the preliminary point, and therefore there seems to be no objection to stating the grounds of substantive law which seem to us to support the result.

The point of the bill may be stated in a few words. The Boston transit commission proposes to obey St. 1897, c. 500, § 17, by constructing a tunnel from a point on or near Hanover street, in Boston proper, to a point at or near Maverick Square in East Boston, and by executing a lease of the tunnel, when completed, to the Boston Elevated Railroad Company for 25 years from the date of that act, at the rental specified in the same section. The treasurer of the city proposes to obey section 18 of the act, by selling bonds and applying the proceeds to the payment of the cost of the tunnel. The plaintiffs seek an injunction on the ground that the requirements of these sections are unconstitutional, as calling for an unwarranted exercise of the power of taxation, as taking the property of the city without reasonable compensation or due process of law when the lease is executed, and as impairing the obligation of a contract already made by the subway commissioners with the West End Street Railway.

In view of the decisions as to the subway, it does not appear to us to need further argument to show that the contemplated tunnel, even if permanently confined to street-railway travel, is a public work for a public use, for building which the legislature can require the city to pay. Prince v. Crocker, 166 Mass. 347, 361, 44 N.E. 446; Mahoney v. City of Boston, 171 Mass. 427, 429, 50 N.E. 939. Local precedent is more important than abstract theory in determining this question,--at least, so far as the state constitution is concerned; and if it be true, as it may be, that the difference between uses which are public within the requirements of the constitution and those which are not is one of degree, that is no novelty, and it is enough that this use has been determined to fall on the right side of the line. Apart from the distinctions suggested between the subway and the tunnel, which do not impress us, it is said that, because of the direction to let the tunnel, and because of the difference between the rental under the statute and that which would have been received under the contract which we have mentioned, the real object of the statute is to throw upon the city the burden of constructing part of its roadbed for a private corporation, and to give it a lease on easier terms. We cannot accept the suggestion. It does not appear that the statute will have either effect. But, if it will, so long as it is possible we are bound to assume that the legislature did its duty, meant what it said, and regarded the work as a public work really needed by the public, as it may be. The purpose of the act on its face is to create a lawful public improvement.

The lease comes up in another aspect, however. It is said that the compensation to the city is inadequate, and that the lease will be a taking of the city's property for a private corporation without paying for it. Proprietors of Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 33 N.E. 693.

With regard to the former proposition, if the legislature has the same power that it has with regard to other roads, the matter of compensation is wholly within its power. Inhabitants of Norwich v. County Com'rs of Hampshire, 13 Pick. 60; Inhabitants of Agawam v. Hampden Co., 130 Mass. 528, 530, 531, and cases elsewhere in this judgment. See, also, Mobile Co. v. Kimball, 102 U.S. 691, 702, 26 L.Ed. 238; Williams v. Eggleston, 170 U.S. 304, 18 S.Ct. 617, 42 L.Ed. 1047.

Commonly when a city or town is required to build a road or bridge within its limits, no compensation is provided for, beyond the local benefit of having it there. With regard to the latter branch of the objection, we are of opinion that the case is not like Proprietors of Mt. Hope Cemetery v. City of Boston, or that supposed of an act requiring a transfer of the city hall to a railroad company for a station. This is not a transfer, but only a temporary and quasi experimental lease for a not unreasonable time. The property of the city in the tunnel, assuming it to have a property, is not of a half-private sort, as in the case of a cemetery, but is merely the control of a public agency. There is no element of the Mt. Hope Cemetery Case about the matter. McHugh v. City of Boston, 173 Mass. 408, 53 N.E. 905; Com. v. Fitzgerald, 164 Mass. 587, 589, 590, 42 N.E. 119; In re Kingman, 153 Mass. 566, 574, 575, 27 N.E. 778, 12 L. R. A. 417; Cheshire v. Reservoir Co., 119 Mass. 356. As was said at the argument, if the tunnel is to be built it is to be used, and naturally will not be used, by the city directly. If the legislature could authorize it to be let on terms to be agreed upon, as was held in Prince v. Crocker, 166 Mass. 347, 44 N.E. 446, it could require it to be let on terms which the legislature thought just to a corporation selected by itself,...