Jacobson v. Parks and Recreation Commission of Boston

• Decision Date: 01 April 1963
• Citation: 189 N.E.2d 199,345 Mass. 641
• Parties: William JACOBSON et al. v. PARKS AND RECREATION COMMISSION OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 199

189 N.E.2d 199

345 Mass. 641

William JACOBSON et al. v. PARKS AND RECREATION COMMISSION OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1963.

Decided April 1, 1963.

William H. Kerr, Boston, for defendants.

Charles F. Mahoney, Boston (Morris M. Goldings, Boston, with him), for plaintiffs.

Paul B. Sargent, Asst. Atty. Gen., for the Atty. Gen.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.

WHITTEMORE, Justice.

This is a bill in equity brought by twelve taxpayers of the city of Boston under G.L. c. 214, § 3(11), against the city's parks and recreation commission (hereinafter parks department) and, by amendment, the city, in order (quoting the words of the statute) 'to enforce the purpose * * * of * * * [the] gift or conveyance' to the city of land in its Brighton district included within the Chestnut Hill Reservoir grounds, for the 'specific purpose * * * in trust or otherwise' of a park. The Attorney General intervened as a party plaintiff under the express authorization of § 3(11) which provides that, the proceeding having been begun by taxpayers with leave of court, 'the attorney general * * * may intervene as a party at any stage of the proceedings.' Although entitled 'Petition to Intervene' the document filed recites that the Attorney General 'intervenes as a party petitioner'; the filing of the document made the Attorney General a party.

The bill of complaint alleged that the city through the parks department with the approval of the mayor and the written authorization of the city council had agreed, illegally, to sell for an apartment building site a parcel of park land at Chestnut Hill Avenue and Commonwealth Avenue of an area of about 64,000 square feet.

The case was heard on a statement of agreed facts and, after findings, rulings and order for a decree, a final decree was entered, from which the defendants have appealed, enjoining the defendants from selling the land 'except as part of a plan to adjust the park area of which it is a part, and without first arranging for the acquisition by the City of Boston, by virtue of * * * [St.1899, c. 274], of other land to be added to the said park area and to be purchased with the proceeds of such sale.'

1. The bill may not be maintained under G.L. c. 214, § 3(11). The land was purchased by the city in 1865 for a substantial consideration for no specific purpose recited in the deeds, 'to have and to hold * * * in fee simple forever.' Statute 1865, c. 131, had authorized the city to build an additional reservoir and this suggests the occasion for the purchase of the land. Statute 1875, c. 185, established a board of park commissioners (now succeeded by the parks department). Statute 1899, c. 274, § 1, gave to that board 'the custody, care and control of all lands owned by the city' in a territory so defined as to include the Chestnut Hill Reservoir lands and authorized the board to 'take by purchase or otherwise such other lands within said boundary not owned by the Commonwealth, as said board with the approval of the mayor may deem desirable for park purposes * * *. [The board] shall have the same powers over any lands placed or taken under the custody, care and control of said board by authority of this act, as if said lands had been taken by said board by the exercise of the right of eminent domain, given by * * * [St.1875, c. 185, as amended or added to].' Section 3 provides that the board 'when authorized by the city council may sell any lands owned by the city, within the boundaries aforesaid, on such terms as [the] board with the approval of the mayor may deem proper, and shall use the proceeds thereof in payment for any lands taken for park purposes under this act.'

The plaintiffs contend that St.1899, c. 274, 'included a conveyance of the land' sufficient to satisfy the requirement of G.L. c. 214, § 3(11). We disagree. Statute 1899, c. 274, made the land park land and placed it in the custody, care and control of the park commissioners. This exercise of the undoubted power of the General Court over a municipality and its property cannot be tortured into a 'gift or conveyance' and it is inconsequential whether the purpose was 'a specific purpose * * * in trust or otherwise.' See Loomis v. Boston, 331 Mass. 129, 131-132, 117 N.E.2d 539; Brooks v. Boston, 334 Mass. 285, 135 N.E.2d 13. Compare Clark v. Mayor of Gloucester, 336 Mass. 631, 633, 147 N.E.2d 191.

2. This park land may be disposed of only on specific legislative authorization. Lowell v. Boston, 322 Mass. 709, 730, 79 N.E.2d 713, and cases cited. Loomis v. Boston, 331 Mass. 129, 132, 117 N.E.2d 539. There being no other statute giving authority the only authorization is in St.1899, c. 274, § 3.

The Attorney General is the proper public officer to protect the general public interest in this land. G.L. c. 12, § 3. It is an interest similar to that which he is expressly authorized to protect by G.L. c. 214, § 3(11). It has been 'generally held * * * that, in the absence of a statute, his authority * * * [to protect the public interest] is restricted to the abatement of public nuisances * * * and to the protection of the public interest under charitable trusts.' Attorney Gen. v. Trustees of Boston Elev. Ry. Co., 319 Mass. 642, 653, 67 N.E.2d 676, 685. See Attorney Gen. v. Department of Pub. Util., 342 Mass. 662, 665-666, 175 N.E.2d 255. We see no reason, however, for applying such a restrictive rule in this case. For examples of the power of the Attorney General to institute mandamus proceedings to vindicate a public right see Attorney Gen. v. Suffolk County Apportionment Commrs., 224 Mass. 598, 610, 113 N.E. 581; Attorney Gen. v. Secretary of the Commonwealth, 306 Mass. 25, 29-30, 27 N.E.2d 265. We need not determine whether the plaintiffs, having no rights under G.L. c. 40, § 53 (Lynch v. Cambridge, 330 Mass. 308, 113 N.E.2d 311; Clark v. Mayor of Gloucester, 336 Mass. 631, 632, 147 N.E.2d 191), or under G.L. c. 214, § 3(11), might, nevertheless, institute proceedings to require the Attorney General to act. See Brewster v. Sherman, 195 Mass. 222, 224, 80 N.E. 821; Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 92-93, 153 N.E. 322; Sears v. Treasurer & Recr. Gen., 327 Mass. 310, 314-315, 98 N.E.2d 621, and cases cited; Concord v. Attorney Gen., 336 Mass. 17, 27, 142 N.E.2d 360; Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 18, 166 N.E.2d 911; Lamson v. Secretary of the Commonwealth, 341 Mass. 264, 267-268, 168 N.E.2d 480. See also Sharpe v. Registrars of Voters of Northampton, 342 Mass. 620, 621, 174 N.E.2d 648. That the plaintiffs as citizens could not act alone is indicated by Kelley v. Board of Health of Peabody, 248 Mass. 165, 169, 143 N.E. 39, Povey v. School Comm. of Medford, 333 Mass. 70, 71-72, 127 N.E.2d 925, Berry v. Quincy, 334 Mass. 703, 134 N.E.2d 135, and Cabot v. Assessors of Boston, 335 Mass. 53, 57, 138 N.E.2d 618. See, as to G.L. c. 231A, Burnes v. Metropolitan Dist. Comm., 325 Mass. 731, 735, 92 N.E.2d 381.

This is an appropriate case for a declaratory decree under G.L. c. 231A. By § 9 the purpose of that statute 'is to remove, and to afford relief from, uncertainty and insecurity with respect to rights, duties, status and other legal relations,' and the statute is to be 'liberally construed and administered.'...