Burnham v. Mayor & Aldermen of Beverly

• Decision Date: 24 June 1941
• Citation: 309 Mass. 388,35 N.E.2d 242
• Parties: BURNHAM et al. v. MAYOR AND ALDERMEN OF BEVERLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 388

35 N.E.2d 242

BURNHAM et al.

v.MAYOR AND ALDERMEN OF BEVERLY.

Supreme Judicial Court of Massachusetts, Essex.

June 24, 1941.

Exceptions from Supreme Judicial Court, Essex County; A. W. Dolan, Justice.

Certiorari by Mary C. Burnham and others against the Mayor and Aldermen of Beverly to quash proceedings of the respondents purporting to take the petitioners' land for the purpose of establishing a municipal airport. From an order dismissing the petition, the petitioners bring exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

E. R. Anderson, of Boston, for petitioners.

Philip Massarella, City Sol., of Beverly, for respondents.

RONAN, Justice.

The question presented by these exceptions to the order of a single justice, which dismissed a petition for certiorari brought by the petitioners to quash proceedings of the respondents purporting to take their land for the purpose of establishing a municipal airport, is whether land can be taken by eminent domain, in behalf of a city, for such purpose.

The power to appropriate private property for a public use may, subject to the limitations expressed in the Constitution, Part I, art. 10, and arts. 39, 43, 49 and 51 of the Amendments, be exercised by the Legislature itself or it may be delegated by statute to the cities and towns. Such statutes are in derogation of the rights of individual ownership in property and must be construed with reasonable strictness, so that no citizen shall be deprived of the use and enjoyment of his land except by a valid exercise of the appropriating power subject to which all private property is held. Glover v. Boston, 14 Gray 282;Lajoie v. Lowell, 214 Mass. 8, 100 N.E. 1070;Comiskey v. Lynn, 226 Mass. 210, 115 N.E. 312; Jenks v. Mayor & Municipal Council of Taunton, 227 Mass. 293, 116 N.E. 550;Holliston v. Holliston Water Co., 306 Mass. 17, 27 N.E.2d 194.

Cities and towns are political subdivisions created for the convenient administration of government, and they possess only such powers as are conferred upon them either in terms or by necessary implication of enabling statutes. Wheelock v. Lowell, 196 Mass. 220, 81 N.E. 977,124 Am.St.Rep. 543,12 Ann.Cas. 1109;MacRae v. Selectmen of Concord, 296 Mass. 394, 6 N.E.2d 366, 108 A.L.R. 1450;Adie v. Mayor of Holyoke, 303 Mass. 295, 21 N.E.2d 377. They are separate units, possessing only the authority thus entrusted, and acting as instrumentalities of local self-government. Nowhere is the limitation of their power more obvious than in the expenditure of funds raised by taxation. Such funds can be expended only for a public purpose sanctioned by law. The appropriation of money for ‘the establishment, maintenance and operation of public airports' is expressly authorized by G.L. (Ter.Ed.) c. 40, § 5(35), and cities and towns may borrow within the limit of indebtedness for the establishment of public airports, including the acquiring of land, the construction of buildings and the surfacing of the landing and taking- off field. G.L.(Ter.Ed.) c. 44, § 7(12). The necessity of expediency of the exercise of eminent domain is a legislative function, but whether the purpose is a public one is subject to judicial review. Boston v. Talbot, 206 Mass. 82, 89, 90, 91 N.E. 1014;Broderick v. Department of Mental Diseases, 263 Mass. 124, 160 N.E. 404;Stockus v. Boston Housing Authority, 304 Mass. 507, 24 N.E.2d 333.

The transportation of passengers and mail along definite air lanes, on regular schedules, between several of our cities has been conducted on a large and increasing scale for many years. Travel by air is preferred by many to travel by land or sea. Large sums have been invested in the development and manufacture of airplanes and in the operation of lines for service to the public. Air traffic has become a usual method of travel. It has been employed extensively in the transportation of persons on interstate journeys. Besides, there is considerable flying by persons who own or hire aircraft, most of which is confined within comparatively short distances from the field where the craft is housed. Aviation has become a necessary and important branch of the armed forces of the national government, and the use of airplanes as an effective weapon of modern warfare has been conclusively demonstrated. The expenditure of municipal funds to assist either the Commonwealth or the Federal government in a local undertaking of a public nature may be authorized by the Legislature. Merrymount Co. v. Metropolitan District Commission, 272 Mass. 457, 172 N.E. 593;Opinion of the Justices, 297 Mass. 567, 8 N.E.2d 753.

An airport is as essential to aerial navigation as are docks and harbors to marine navigation, terminals to automobile bus transportation, and depots and freight yards to railroads. The establishment by a State or city of subways, tunnels, docks, wharves, bridges and highways, the operation of ferries, and the rendering of financial aid to railroad corporations and railway companies, have all been upheld as undertakings of a public nature. The adequacy of means for the transportation of the public at large is a matter of public interest. Central Bridge Corp. v. Lowell, 4 Gray 474;Attorney General v. Boston, 123 Mass. 460; Troy & Greenfield Railroad v. Commonwealth, 127 Mass. 43;Kingman, Petitioner, 153 Mass. 566, 570, 27 N.E. 778,12 L.R.A. 417;Commonwealth v. Williamstown, 156 Mass. 70, 30 N.E. 472;Prince v. Crocker, 166 Mass. 347, 44 N.E. 446,32 L.R.A. 610;Browne v. Turner, 176 Mass. 9, 56 N.E. 969;Boston v. Treasurer and Receiver General, 237 Mass. 403, 130 N.E. 390;Wright v. Walcott, 238 Mass. 432, 131 N.E. 291, 18 A.L.R. 1242;Goodman v. Provincetown, 283 Mass. 457, 186 N.E. 625;D. N. Kelley & Son, Inc. v. Selectment of Fairhaven, 294 Mass. 570, 3 N.E.2d 241.

The two statutes authorizing the expenditure of municipal funds for the establishment of airports, to which we have referred, and G.L.(Ter.Ed.) c. 90, § 51, which was inserted by St.1939, c. 393, § 3, regulating the establishment, maintenance and supervision of airports and landing fields, may be said to express legislative sanction of the municipal airport as a public purpose. Hubbard v. Taunton, 140 Mass. 467, 5 N.E. 157;Attorney General v. Williams, 174 Mass. 476, 479, 55 N.E. 77,47 L.R.A. 314;Wheelock v. Lowell, 196 Mass. 220, 223, 81 N.E. 977,124 Am.St.Rep. 543,12 Ann.Cas. 1109;Duffy v. Treasurer & Receiver General, 234 Mass. 42, 50, 125 N.E. 135;Ducey v. Webster, 237 Mass. 497, 130 N.E. 53;Attorney General v. Lowell, 246 Mass. 312, 320, 141 N.E. 45;D. N. Kelley & Son, Inc. v. Selectmen of Fairhaven, 294 Mass. 570, 574, 3 N.E.2d 241. The decisions in other jurisdictions are to the effect that the establishment and maintenance of public airports are municipal purposes. Ragsdale v. Hargraves, 298 Ark. 614, 129 S.W.2d 967, 123 A.L.R. 993;Krenwinkle v. Los Angeles, 4 Cal.2d 611, 51 P.2d 1098;Central Hanover Bank & Trust Co. v. Pan American Airways, Inc., 137 Fla. 808, 188 So. 820;Swoger v. Glynn County, 179 Ga. 768, 177 S.E. 723;Howard v. Atlanta, 190 Ga. 730, 10 S.E.2d 190;Mayor & Aldermen of Savannah v. Lyons, 54 Ga.App. 661, 189 S.E. 63;Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 63 A.L.R. 478;Dysart v. St. Louis, 321 Mo. 514, 11 S.W.2d 1045, 62 A.L.R. 762;State v. Johnson, 117 Neb. 301, 220 N.W. 273;Hesse v. Rath, 249 N.Y. 436, 164 N.E. 342;Albany v. Bol, 173 Misc. 1047, 19 N.Y.S.2d 522;Goswick v. Durham, 211 N.C. 687, 191 S.E. 728;State v. Jackson, 121 Ohio St. 186, 167 N.E. 396;Ardmore v. Excise Board of Carter County, 155 Okl. 126, 8 P.2d 2;McClintock v. Roseburg, 127 Or. 698, 273 P. 331;Wentz v. Philadelphia, 301 Pa. 261, 151 A. 883;Spokane v. Williams, 157 Wash. 120, 288 P. 258.

We do not think that the city in acquiring and constructing an airport is acting any differently than when it engages in the public projects we have already enumerated. The respondents have found that public necessity and convenience required the establishment of a municipal airport. With that legislative determination we have no right to interfere if the purpose is a public one and the respondents were authorized by law to take the necessary land in order to accomplish the purpose. In any event, the Legislature must have thought the use a public one as it authorized the city to expend public funds for the acquisition and establishment of the airport, and this is true even if we assume in favor of the petitioner that the statutes authorizing the expenditure do not permit the exercise of eminent domain. In this respect, we need point out simply that legislative sanction to purchase, in order to be valid, could rest only on the ground that the purchase would serve a public need. Opinion of the Justices, 175 Mass. 599, 600, 57 N.E. 675,49 L.R.A. 564;Wright v. Walcott, 238 Mass. 432, 434, 131 N.E. 291, 18 A.L.R. 1242.

The petitioners, however, contend that, even if the purpose is a public one, the city was without power to acquire the property by eminent domain. This contention rests upon the fact that the right to take is not expressly given by G.L.(Ter.Ed.) c. 40, § 5(35), c. 44, § 7(12), and c. 90, § 51.

If we accepted the premises set forth by the petitioners, we would not be led to the conclusion that they urge. These statutes do not stand alone. G.L.(Ter.Ed.) c. 40, § 14, as amended by St.1933, c. 283, § 1, provides, in so far as now material, that ‘The aldermen of any city * * * may purchase, or take by eminent domain under chapter seventy-nine, any land * * * for any municipal purpose for which the purchase or taking of land * * * is not otherwise authorized or directed by statute.’ One of the aims of this statute is to broaden and enlarge the powers of municipalities to purchase and take any land needed for a municipal purpose, where that power is not given by any other statute. Byfield v. Newton, 247 Mass. 46, 141 N.E. 658;Walker v. Medford, 272 Mass. 161, 172 N.E. 248. The...