McLean v. City of Boston

• Decision Date: 28 February 1951
• Citation: 327 Mass. 118,97 N.E.2d 542
• Parties: McLEAN v. CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 542

97 N.E.2d 542

327 Mass. 118

McLEAN v. CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1950.

Decided Feb. 28, 1951.

W. M. Bagley, Paul A. Goldstein, Boston, for petitioner.

W. L. Baxter, Corp. Counsel, Boston, S. C. Davenport, Ass't. Corp. Counsel, Roslindale, and William H. Kerr, Boston, for City of Boston.

Willis B. Downey, General Counsel, and Edward F. Cooley, Boston, for Metropolitan Transit Authority.

Before QUA, C. J., and RONAN, WILKINS, WILLIAMS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is a bill in equity under G.L. (Ter.Ed.) c. 231A, inserted by St.1945, c. 582 § 1, seeking a determination of the constitutionality of St.1949, c. 191, as amended by St.1949, c. 734, and as affected by St.1947, c. 544, § 8A(h), inserted by St.1949, c. 572, § 3, which purports to authorize the metropolitan transit authority, hereinafter called the authority, acting as agent for the city of Boston to acquire in fee by eminent domain or otherwise certain parcels of land in East Boston. The suit was tried upon a stipulation agreed to by all the parties 'that the rights of the parties thereto shall be determined from the pleadings therein, to wit, the Substitute Petition for Declaratory Judgment, Respondents' Answer to Substitute Petition, Petitioner's Replication to Respondents' Answer to Substitute Petition, and Acknowledgment of Notice by Attorney General; that the facts set forth in said pleadings are all the material, ultimate facts from which the rights of the parties are to be determined; and that this Court, and any court before which this cause shall come upon appeal, exceptions, report or other proceedings in the nature of an appeal, shall be at liberty to draw from said facts any inferences that might have been drawn therefrom at a trial, as if said pleadings constituted a case stated.'

The judge ruled the statute to be constitutional and the takings hereinafter referred to valid. After entering an order for a decree to this effect he reported the suit to this court.

By St.1945, c. 692, as amended by St.1946, c. 494, the transit commission department of Boston was authorized and directed to extend the East Boston tunnel rapid transit route upon certain conditions all of which have been complied with. Many buildings with dwelling units therein lay within the path of the extension and were taken by eminent domain for that purpose. An acute shortage of housing accommodations existed throughout Boston (including East Boston) and in neighboring communities. Demolition of buildings with housing units would increase this housing shortage and cause most, if not all, of the occupants of such units undue hardship by rendering them homeless. Presumably because of this St.1949, c. 191, as amended, was duly enacted. The transit department was abolished by St.1947, c. 544, § 8A(d), inserted by St.1949, c. 572, § 3, and the authority as directed by clause (h) proceeded to complete the extension of rapid transit facilities as already provided for and to complete as agent for the city of Boston the relocation of building with dwelling units as authorized by St.1949, c. 191, as amended. Twenty-one buildings, all of which were movable, with dwelling units housing two hundred seven persons, comprising fifty-six families, lay within the path of the extension and were taken under St.1945, c. 692, as amended. No private party has at any time offered to relocate these buildings as a private enterprise. Unless relocated these dwelling units would have to be demolished and the housing shortage already acute would be made worse. Under the power purported to have been conferred by St.1949, c. 191, as amended, the city of Boston acting through the authority as its agent perfected a program by which it acquired other sites to which these buildings with dwelling units were moved. It does not appear that these parcels of land with the buildings thereon have yet been disposed of but there is no doubt that this will be done or has been done as provided in St.1949, c. 191, § 1.

The issue here presented is whether or not the taking of two parcels of land owned by the plaintiff by eminent domain was for a public or private purpose. If for a private purpose as the plaintiff argues, then St.1949, c. 191, as amended, is unconstitutional, if for a public purpose as the defendants argue, then it is not.

Section 1 of St.1949, c. 191, so far as here material provides: 'For the purpose of avoiding, so far as practicable, during the period of public exigency, emergency and distrees now existing on account of the acute shortage of housing in Boston and many other cities and towns of the commonwealth, the demolition of dwelling units on land heretofore or hereafter acquired in the East Boston district of the city of Boston for the purposes of' St.1945, c. 692, as amended, the city of Boston may acquire by eminent domain or otherwise parcels of land to which buildings with dwelling units may be moved. It further provides that upon the completion of...