Higginson v. Slattery

• Citation: 212 Mass. 583,99 N.E. 523
• Parties: HIGGINSON et al. v. SLATTERY et al.
• Decision Date: 15 October 1912
• Court: United States State Supreme Judicial Court of Massachusetts

212 Mass. 583

99 N.E. 523

HIGGINSON et al. v. SLATTERY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 15, 1912

Oct 15, 1912.

COUNSEL

Nathan Matthews and Philip Nichols, both of Boston, for petitioners.

Geo. A Flynn, of Boston, for respondents.

OPINION

RUGG C.J.

This is a petition in equity by taxpayers of Boston to restrain certain officers of that city from erecting a building upon a public park known as the Back Bay Fens. This park was established in 1879 under the authority of St. 1875, c. 185. The city of Boston acquired the fee to the lands included within the park, and has expended large sums of money in locating, laying out, constructing and improving it. By St. 1911, c. 540, the park commissioners of Boston (the public board having control of the Back Bay Fens and other parks) were authorized, upon request of the schoolhouse commissioners of the city, with the approval of the school committee, to permit the erection of a building for the High School of Commerce within the limits of the Back Bay Fens.

The first question is whether the Legislature has the power to authorize the construction of such a building in a public park of Boston without the consent of the city expressed either by its voters or its city council, and without the exercise of the power of eminent domain. This necessitates an inquiry into the nature and quality of the right and title of a municipality in land acquired by it for park purposes. The park in question was taken by Boston in the exercise of the power of eminent domain. Therefore, no question arises respecting compliance with the terms of a gift, devise, grant or bequest, and considerations which would be decisive under such circumstances are aside from this discussion. Howe v. City of Lowell, 171 Mass. 575, 51 N.E. 536. See Cary Library v. Bliss, 151 Mass. 364, 375, 25 N.E. 92, 7 L. R. A. 765; Village of Riverside v. MacLain, 210 Ill. 308, 71 N.E. 408, 66 L. R. A. 288, 102 Am. St. Rep. 164; Lamar County v. Clements, 49 Tex. 347; Cummings v. St. Louis, 90 Mo. 259, 2 S.W. 130; San Francisco v. Itsell, 80 Cal. 57, 22 P. 74; Fessler v. Union, 67 N. J. Eq. 14, 56 A. 272. This is the simple instance of a park acquired by the expenditure of public moneys raised by taxation.

Cities and towns are territorial subdivisions of the state created as public corporations for convenience in the administration of government. They exercise only the powers which have been conferred by express enactment of the Legislature or by necessary implication from undoubted prerogatives vested in them. They have a twofold character, the one governmental and the other private. In the one they execute the functions and possess the attributes of sovereignty which have been delegated by the legislative department of government; in the other they are clothed with the capacities of a private corporation, and may claim its rights and immunities, and are subject to its liabilities. Neff v. Wellesley, 148 Mass. 487, 20 N.E. 111, 2 L. R. A. 500; Davies v. Boston, 190 Mass. 194, 76 N.E. 663; Haley v. Boston, 191 Mass. 291, 77 N.E. 888, 5 L. R. A. (N. S.) 1005; Kies v. Lowrey, 199 U.S. 233, 26 S.Ct. 27, 50 L.Ed. 167; Hunter v. Pittsburg, 207 U.S. 161, 178, 28 S.Ct. 40, 52 L.Ed. 151; Vilas v. Manilla, 220 U.S. 345, 356, 31 S.Ct. 416, 55 L.Ed. 491.

The property of which a city or town has acquired absolute ownership as an agency of the state, and which it holds strictly for public uses, is subject to legislative control. It may be transferred to some other agency of government charged with the same duties, or it may be devoted to other public purposes. This power always has been exercised in this commonwealth upon some principles of public justice to the communities affected. Rawson v. Spencer, 113 Mass. 40; Agawam v. Hampden County, 130 Mass. 528; Springfield v. Springfield St. Ry. Co., 182 Mass. 41, 64 N.E. 577; Worcester v. Worcester Cons. St. Ry. Co., 182 Mass. 49, 64 N.E. 581; s. c., 196 U.S. 539, 25 S.Ct. 327, 49 L.Ed. 591. The property which a municipality holds in its private capacity is not subject to the unrestricted authority of the Legislature, and no person can deprive it of such property rights against its will, except by the exercise of eminent domain with payment of full compensation. Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 33 N.E. 695, 35 Am. St. Rep. 515; Ware v. Fitchburg, 200 Mass. 61, 68, 85 N.E. 951; Codman v. Crocker, 203 Mass. 146, 150, 89 N.E. 177, 25 L. R. A. (N. S.) 980.

The precise point is whether the city of Boston in establishing this park acted as an arm of the commonwealth or as a private corporation in its proprietary capacity. This point has never been exactly decided in this commonwealth. In several cases, however, the character of land devoted to use as a park or common has been before the court, and expressions indicative of its view have been used. It was said in Holt v. City of Somerville, 127 Mass. 408, 411, respecting park land taken under a statute similar to that we are now considering: 'The legal title became vested in the city not for its own use in a corporate capacity, but in perpetual trust for the use of all who at any time might enjoy the benefit of a public park.' In Clark v. Waltham, 128 Mass. 567, 569, it was decided that the city held 'the park not for its own profit or emolument but for the direct and immediate use of the public. If it can be said that there is any duty in the town to construct paths over it or to keep such paths in repair it is a corporate duty imposed upon it as the representative and agent of the public and for the public benefit.' It was held in Inhabitants of Wrentham v. Norfolk, 114 Mass. 555, 562, that the title to an ancient common or training field laid out by the original proprietors was in the town not for its own use in a corporate capacity, but for the benefit not only of inhabitants of the town but of all 'who might have occasion to use it.' In Oliver v. Worcester, 102 Mass. 489, 494, 3 Am. Rep. 485, it was said respecting a similar common: 'The whole common is in one sense dedicated to the public use, as a place of public resort and recreation, over any part of which persons may pass freely, unless restricted for some public and sufficient reason.' In Abbott v. Cottage City, 143 Mass. 521, 525, 10 N.E. 325, 58 Am. Rep. 143, respecting a park, it was asserted by Mr. Justice Holmes apparently as a proposition too plain to require further discussion, that 'the use is in the public at large.' In Atty. Gen. v. Abbott, 154 Mass. 323, 28 N.E. 346, 13 L. R. A. 251, while holding that a park could be established by dedication, it was said that the easement was 'not in the town but in the public at large.' See, also, Atty. Gen. v. Vineyard Grove Co., 181 Mass. 507, 64 N.E. 75; In re Wellington, Pet'r, 16 Pick. 87, 26 Am. Dec. 631. In Com. v. Abrahams, 156 Mass. 57, 30 N.E. 79, where rights in Franklin Park, acquired by Boston under the same statute as the Back Bay Fens, were considered, it was said: 'The parks of Boston are designed for the use of the public generally.' This language was quoted with approval in Com. v. Crowninshield, 187 Mass. 221, 224, 72 N.E. 963, 965 (68 L. R. A. 245).

Several cases have arisen involving the character of the public interest in Boston Common which was dedicated by its owners in 1634 'for the common use of the inhabitants of Boston as a training field and cow pasture.' In Steele v. Boston, 128 Mass. 583, it was said that 'the city holds the Common for the public benefit, and not for its emolument, or as a source of revenue, and * * * maintains the Common solely for the benefit of the public. If there is any legal duty to keep the paths in a safe condition, it is solely a public duty.' In Lincoln v. Boston, 148 Mass. 578, 580, 20 N.E. 329, 330 (3 L. R. A. 257, 12 Am. St. Rep. 601), it was said as to the Common: 'The use of it is dedicated to and belongs to the public. * * * The city cannot let or sell the Common. * * * The ordinance set out in the declaration is not the exercise of an owner's authority over his property, but is a police regulation for the use of a public place by the public.' In Com. v. Davis, 162 Mass. 510, 39 N.E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389, Mr. Justice Holmes said: 'There is no evidence to show us that the power of the Legislature over the Common is less than its power over any other park dedicated to the use of the public or over public streets the legal title to which is in a city or town. * * * As representative of the public, it may and does exercise control over the use which the public may make of such places.' In Codman v. Crocker, 203 Mass. 146, 152, 153, 89 N.E. 177, 179, 180 (25 L. R. A. [N. S.] 980), it was said by Chief Justice Knowlton: 'In different decisions the city has been treated as holding the legal title [to the Common], but it holds it only as an agency of government representing the interests of the public. It has no rights of a private owner, apart from its holding as a representative of the government. As an agency of the government representing the people it is subject to the control of the Legislature, which may abolish it and establish another agency in its place, or may deprive it of its power to represent the public, or may transfer a part or all of its governmental authority to another creation. * * * We are of opinion that the title of the city is held only in its municipal capacity as an agency of the government for the benefit of the public, and that the power of the Legislature to represent this interest is supreme.'

These decisions touching Boston Common, although made respecting land dedicated instead of taken by eminent domain nevertheless concern the character and nature of the purpose to which common...