In re Opinion of the Justices

• Decision Date: 06 April 1921
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 598

131 N.E. 25

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 6, 1921.

Answers to questions propounded to the justices of the Supreme Judicial Court by the following order of the Senate:

Senate, April 6, 1921.

Whereas, there is pending before the General Court a bill, printed as House No. 762, entitled ‘An act to promote the conservation, development and utilization of the water resources within the commonwealth,’ and

Whereas, grave doubt exists as to the constitutionality of the said bill if enacted into law; therefore be it

Ordered, that the Senate require the opinions of the Justices of the Supreme Judicial Court on the following important questions of law:

(1) Are the uses for which property may be taken by eminent domain under the provisions of said bill public uses within the meaning of the Constitution of the commonwealth?

(2) Having authorized the taking of property by eminent domain, as provided in said bill, is it constitutionally competent for the General Court to restrict the participation in the benefits to be derived from such taking to particular persons or corporations?

(3) Is it constitutionally essential that where property is taken for a public use by eminent domain proceedings, the public generally, without discrimination, shall be entitled to participate in the benefits to be derived from such taking?

(4) If enacted into law, would said bill be in any respect unconstitutional?

Henry D. Coolidge, Clerk.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in the order of April 6, 1921, copy whereof is hereto annexed.

The general purpose of the pending bill, with reference to which the questions are put, is fairly stated in its title to be ‘to promote the conservation, development and utilization of the water resources within the commonwealth.’ The means by which that general purpose is to be effectuated in any particular instance is, as set forth in the bill, the organization of a corporation, by three or more owners or lessees of a water mill or dam upon any river of waterway within the commonwealth, for the acquisition, construction and operation of storage reservoirs on such river or waterway in order to regulate its flow and increase its usefulness. All such owners or lessees are permitted although not required to become incorporators, stockholders are confined to such owners and lessees, and shares of stock can be transferred only to successors in title to the water privileges of incorporators. Plans for acquiring and constructing reservoirs, together with estimates of cost and other financial and engineering data must be submitted to the department of public works, which shall consider the project in relation to the public interests and the interests of shareholders. It is only when approved by the department that the project may go forward. The taking of property by eminent domain by such corporation for the construction of a storage reservoir may be authorized by the department of public works, and manifestly is within the intendment of the bill. Operation of the reservoirs is required so as to maintain as nearly as is practicable a uniform flow of the stream for the greatest common advantage of the owners of water mills or dams thereon. Authority is conferred upon such corporations to make agreements as to tolls with the owners of water mills or dams on such stream and to lease or make other disposition of the water power developed by any reservoir dam subject to the approval of the department. The right is reserved to the commonwealth to take or to purchase, after ten years from the incorporation, all or any part of the corporate property at a fair valuation. Such corporation may not engage in the generation of electricity and most of its important functions are subject to the control or supervision of the department of public works. There are in the bill other provisions ancillary to its main features, which need not be recited in detail.

It seems clear from this outline of the provisions of the bill that its main design is to benefit those, so far as they choose to avail themselves of the facilities thereby afforded, who may be or who may hereafter become owners or lessees of dams and mills operated in whole or in part by water power within the commonwealth, and those who may be able to make profitable use of water power generated from the reservoirs acquired or built by corporations organized under the act. These benefits are to be conferred by the purchase of existing or the construction of new reservoirs for the impounding of flood or other water not producing power directed to industrial uses, so that it may be released during times of low water and thus the flow of the stream at all seasons be equalized and stabilized. The power of eminent domain may be exercised for the construction of reservoirs for this purpose.

[2] The bill apparently is framed in execution of power created by article 49 of the amendments to the Constitution (see St. 1919, p. 62) ratified and adopted by the people on November 5, 1918. That article so far as material to the present inquiry declares that ‘the conservation, development and utilization of the * * * water * * * resources' of the commonwealth are ‘public uses' and confers upon the General Court ‘power to provide for the taking, upon payment of just compensation therefor, of lands and easements or interests therein, including water and mineral rights, for the purpose of securing and promoting the proper conservation, development, utilization and control thereof and to enact legislation necessary or expedient therefor.’ That article establishes a principle of government. It must be interpreted in harmony with the other parts of the Constitution so as to make the whole a consistent frame of government. It must also be given such scope as to render it practically workable toward the accomplishment of those objects to which it appears to be directed. According to its terms, the property rights of the individual must yield under the mandate of the General Court to the enterprise of those interested in the development of water resources. The people have declared the conservation, development, utilization and control of water resources to be a public use to which all private uses must bend. The adoption of rational means for the furtherance of this end rests with the General Court.

It is apparent from the debates in the convention which proposed the amendment, that one of its aims was to set at rest the question whether the construction of dams for the development of water power for the advantage of privately owned water mills could be regarded as a public use. Whatever may have been the law concerning that subject hitherto, the amendment in unequivocal phrase makes that now a public use. It is unnecessary to review the history of our statutes and decisions concerning the mill acts and similar statutes to determine the state of constitutional law apart from the amendment. The words of the amendment in this respect are not open to doubt.

It must be presumed that the convention proposed and the people approved and ratified the Forty-Ninth Amendment with reference to the practical affairs of mankind and not as a mere theoretical announcement. The development and utilization of water for power imports of necessity that water shall be impounded and suffered to flow, with considerable regularity, under an adequate head, upon a water wheel. The science of hydraulics imposes imperative limitations as to the place and amount of power to be developed from any watershed or on any stream within the commonwealth. Participation in the benefits of such development is inevitably restricted to comparatively few, by the laws of nature concerning water power as at present understood. The development of water power always has been recognized as having peculiar features and limitations. The water course as it flows from its source to the sea affords opportunities for harnessing its current to the uses of man at every fall economically capableof being utilized by the erection of a dam. At every such fall a new potentiality arises for the production of power. The force of the water may be put to work again and again. The conservation of water as a natural resource must be inferred to have been declared in the amendment to be a public use with reference to the industrial situation existing in the commonwealth at the time of its adoption and ratification as well as to that of the future. It is common knowledge that a large part of the head and fall on many streams in the commonwealth is already put to use in driving the machinery of mills highly diversified in variety of product. If storage reservoirs are to be built on the upper reaches of such streams, the practicable employment of the water thus stored is by increasing the energy already developed by the appliances at such existing mills. This situation implies that the general public except as represented by the owners of such mills cannot share in the benefits of such new utilization of water resources.

A rational inference from the words of the amendment and the debate concerning it in the convention is that it is based on the thought that the economic value of the unused Massachusetts water power, limited as it is in quantity and ease of employment, cannot be realized without the interposition of some form of governmental aid and that the general welfare thus to be subserved is paramount to any private interest. It is a general principle of constitutional law that ordinarily private property can be taken only for a governmental use, the enjoyment and advantage of which is open on equal terms to the public. This is true as to water, light, transportation companies and other corporations privately owned but affected with a public...