In re Opinion of the Justices

• Decision Date: 10 March 1908
• Citation: 103 Me. 506,69 A. 627
• Parties: In re OPINION OF THE JUSTICES.
• Court: Maine Supreme Court

69 A. 627

103 Me. 506

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Maine.

March 10, 1908.

Answers to questions propounded to the Justices of the Supreme Judicial Court by resolution of the Senate of the state of Maine.

In Senate, March 27, 1907.

Ordered:

The justices of the Supreme Judicial Court are hereby requested to give to the Senate, according to the provisions of the Constitution in this behalf, their opinion on the following questions, to wit:

In order to promote the common welfare of the people of Maine by preventing or diminishing injurious droughts and freshets, and by protecting, preserving, and maintaining the natural water supply of the springs, streams, ponds, and lakes and of the land, and by preventing or diminishing injurious erosion of the land and the filling up of the rivers, ponds, and lakes, and as an efficient means necessary to this end, has the Legislature power under the Constitution:

(1) By public general law to regulate or restrict the cutting or destruction of trees growing on wild or uncultivated land by the owner thereof without compensation there for to such owner?

(2) To prohibit, restrict or regulate the wanton, wasteful, or unnecessary cutting or destruction of small trees growing on any wild or uncultivated land by the owner there of, without compensation therefor to such owner, in case such small trees are of equal or greater actual value standing and remaining for their future growth than for immediate cutting, and such trees are not intended or sought to be cut for the purpose of clearing and improving such land for use or occupation in agriculture, mining, quarrying, manufacturing, or business or for pleasure purposes or for a building site; or (3) In such manner to regulate or restrict the cutting or destruction of trees growing on wild or uncultivated lands by the owners thereof as to preserve or enhance the value of such lands and trees thereon and protect and promote the interests of such owners and the common welfare of the people?

(4) Is such regulation of the control, management or use of private property a taking thereof for public uses for which compensation must be made?

In Senate Chamber, March 27, 1907. Read and passed.

F. G. Farrington, Secretary.

To the Honorable Senate of the Seventy-Third Legislature:

The undersigned justices, in obedience to the requirement of the Constitution, severally give the following as their advisory opinion upon the questions of law submitted to the justices of 'the Supreme Judicial Court by the Senate order of March 27, 1907:

We find that the Legislature has by the Constitution "full power to make and establish all reasonable laws and regulations for the defence and benefit of the people of this state, not repugnant to this Constitution nor that of the United States." Const. Me. art. 4, pt. 3, § 1. It is for the Legislature to determine from time to time the occasion, and what laws and regulations are necessary or expedient for the defense and benefit of the people; and, however inconvenienced, restricted, or even damaged particular persons and corporations may be, such general laws and regulations are to be held valid, unless there can be pointed out some provision in the state or United States Constitution which clearly prohibits them. These we understand to be universally accepted principles of constitutional law.

As to the proposed laws and regulations named in the Senate order, the only provision of the United States Constitution having any possible application to such legislation by a state would seem to be that in the fourteenth amendment. As to that provision, we think it sufficient to quote the language of the United States Supreme Court in Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923, where, speaking of the fourteenth amendment, the court said: "But neither the amendment, broad and comprehensive as it is, nor any other amendment was designed to interfere with the power of a state, sometimes termed its 'police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of its people, and to legislate so as to increase the industries of the state, develop its resources and add to its wealth and prosperity." It may be added that the proposed laws and regulations would not discriminate between persons or corporations, but only between things and situations, with a classification not merely arbitrary, but based on real differences in the nature, situation, and condition of things.

We think the only provisions in the state Constitution that could be reasonably invoked against the proposed laws and regulations are the guaranteed right of "acquiring, possessing and defending property," and the provision that "private property shall not be taken for public uses without just compensation." Declaration of Rights, §§ 1, 21. If, however, the proposed legislation would not conflict with the latter provision, it evidently would not with the former. Hence only the latter one need be considered.

The question of what constitutes a "taking" of private property in the constitutional sense of the term has been much considered and variously decided. In the earlier cases and in the older states the provision has been construed strictly. In some states in later cases it has been construed more widely to include legislation formerly not considered within the provision. Still more recently, however, the tendency seems to be back to the principles enunciated in the earlier cases. In Massachusetts, one of the earliest states to adopt the constitutional provision, and in Maine, adopting the same provision in succession, the courts have uniformly considered that it was to be construed strictly as against the police power of the Legislature.

Commonwealth v. Tewksbury, 11 Mete. 55, decided in 1846, was a case where the Legislature prohibited the owners from removing "any stones, gravel or sand" from their beaches in Chelsea as necessary for the protection of Boston Harbor. The court held that the statute did not operate to "take" property within the meaning of the Constitution, but was "a just and legitimate exercise of the power of the Legislature to regulate and restrain such particular use of property as would be inconsistent with or injurious to the rights of the public." Commonwealth v. Alger, 7 Cush. 53, decided in 1851, was a case where the defendant was prohibited by statute from erecting and maintaining a wharf on his own land (flats) beyond certain fixed lines. The court held that the defendant's title to the land (flats) was a fee simple, and that but for the statute he would have had full right to erect and maintain wharves upon any part of it where they would not obstruct navigation. It was not claimed that the proposed wharf would obstruct navigation, but rather admitted that it would not. The court further held, however, that the statute was within the legislative power, and not forbidden by any clause in the Constitution. The question was considered at length in an opinion by Chief Justice Shaw, and the principle stated as follows, viz. (page 84):

"We think it a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth, as well that in the interior as that bordering on tide waters, is derived directly or indirectly from the government and held subject to those general regulations which are necessary for the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from right of eminent domain," etc.

In the case Wadleigh v. Gilman, 12 Me. 403, 28 Am. Dec. 188, decided in 1835, only 15 years after the adoption of our Constitution, there was upon the plaintiff's land a wooden building. A city ordinance was passed by legislative authority prohibiting the erection of wooden buildings within certain limits, which included the plaintiff's building. After the passage of the ordinance, the plaintiff moved his building to another place within the same inhabited limits. The defendant as city marshal, acting under the ordinance, entered upon the plaintiff's land, and took the building down. The court held the ordinance valid and the defendant protected, and declared as follows (page 405 of 12 Me. ): "Police regulations may forbid such a use and such modifications of private property as would prove injurious to the citizens generally. This is one of the benefits which men derive from associating in communities. It may sometimes occasion inconvenience to an individual, but he has compensation in participating in the general advantage. Laws of this character are unquestionably within the scope of the legislative power without impairing any constitutional provision. It does not appropriate private property to public uses, but merely regulates its enjoyment." In Cushman v. Smith, 34 Me. 247, decided 15 years later, in an elaborate opinion by Chief Justice Shepley, the court said of the constitutional provision in question (page 258): "The design appears to have been simply to declare that private property shall not be changed to public property, nor transferred from the owners to others for public use without just compensation." In Jordan v. Woodward, 40 Me. 317, it was said by the court at page 324: "Strictly...