N. Ward Co. v. Board of Street Com'rs of City of Boston

• Decision Date: 01 April 1914
• Citation: 104 N.E. 965,217 Mass. 381
• Parties: N. WARD CO. v. BOARD OF STREET COM'RS OF CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

217 Mass. 381

104 N.E. 965

N. WARD CO. v. BOARD OF STREET COM'RS OF CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1914

COUNSEL

George L. Mayberry, of Boston, for petitioner.

Joseph J. Corbett and John A. Sullivan, Corp. Counsel, both of Boston, for respondents.

OPINION

SHELDON J.

It is practically agreed by both parties that the city of Boston had no right to make this taking of upland and flats, unless that right had been given to it by legislation. This is undoubtedly correct. No such authority has been given in express terms. But it was provided by St. 1909, c. 486, § 31 that: 'At the request of any department, and with the approval of the mayor, the board of street commissioners, in the name of the city, may take in fee for any municipal purpose any land within the limits of the city not already appropriated to public use. Whenever the price proposed to be paid for a lot of land for any municipal purpose is more than twenty-five per cent higher than its average assessed valuation during the previous three years said land shall not be taken by purchase, but shall be taken by right of eminent domain and paid for in the manner provided for the taking of and the payment of damages for land for highways in said city. No land shall be taken until an appropriation by loan or otherwise for the general purpose for which land is needed shall have been made by the mayor and city council by a two-thirds vote of all its members; or in case of land for school purposes by the school committee and school house department in accordance with law; nor shall a price be paid in excess of the appropriation, unless a larger sum is awarded by a court of competent jurisdiction. All proceedings in the taking of land shall be under the advice of the law department, and a record thereof shall be kept by said department.' The first question in this case is therefore, whether under the statute the city has authority to take land for the erection thereon of a plant for the disposal of city refuse of garbage.

It is to be observed that by this enactment the Legislature has forbidden the purchase by the city of land for any purpose for a price greater than that limited by the act. Rightly or wrongly the Legislature apparently considered that the officers of the city should not be entrusted with an unrestricted power of spending the public money in this way. But it was manifest that there might be cases where the result of this prohibition would be to prevent the city from purchasing at all particular parcels of land that might be indispensably necessary for municipal purposes. To meet such exigencies, it was provided that when land was needed for municipal purposes, if the price proposed to be paid therefor exceeded the statutory limit, the land should not be taken by purchase, but only by eminent domain--in which case a fair price, to be fixed if necessary, by proceedings in court, would be paid therefor. In our opinion the intention of the statute was to give to the city the same right to take land by eminent domain that it already had to acquire land by purchase--that is, in the language of the act, 'for any municipal purpose.' It was intended, according to the natural meaning of the words used, to enlarge the power of taking by eminent domain so as to make it include every municipal purpose; and this construction is required also by the plain object of the statute.

It is true that statutes granting the power to exercise the sovereign right to eminent domain are to be construed with some strictness, and are not to be extended to include matters not expressly or by necessary implication brought within their language. But it also is true that such an operation must be given to this act as will carry into effect its manifest purpose and intention. Nothing is to be added to what the Legislature has said; and on the other hand effect is to be given to all that it has said. This is the result of the decisions. Commissioners on Inland Fisheries v. Holyoke Water Power Co., 104 Mass. 446, 449, 6 Am. Rep. 247; Housatonic Railroad v. Lee & Hudson Railroad, 118 Mass. 391; Boston & Maine Railroad v. Lowell & Lawrence Railroad, 124 Mass. 368; Slingerland v. Newark, 54 N. J. Law, 62, 23 A. 129; Matter of Thomson, 86 Hun, 405, 33 N.Y.S. 467. And see the cases collected in Lewis on Eminent Domain, 3rd ed. § 388.

We do not regard it as material that by legislation enacted since 1909 power has been given to the city to take land by eminent domain for various particular purposes, many of which probably were already overed by the act referred to. St. 1911, cc. 169, 435, 453, 598; St. 1912, cc. 338, 558, 661; St. 1913, cc. 337, 363, 412, 536, 695. Some of these statutes were amendatory of earlier acts; some provided specially for the procedure to be followed under them; some though strictly unnecessary, may have been passed out of abundant caution, to put the power of the city beyond any possible question. We find nothing in these or any other enactments that amounts to a legislative construction of the statute first cited, or that requires us to say that the statute is to have less than the full effect which the Legislature intended to give to it.

Nor have we any doubt that the collection and disposal of garbage and refuse constitute a legitimate municipal purpose. That doctrine has been recognized by this court. Vandine, Pet'r, 6 Pick. 187, 17 Am. Dec. 351; Haley v. Boston, 191 Mass. 291, 77 N.E. 888, 5 L. R. A. (N. S.) 1005. It is provided by R. L. c. 25, § 14, among other things, that a town may make contracts 'for the disposal of its garbage, refuse and offal.' This was treated as one of the proper functions of the city of Boston by St. 1903, c. 411, and St. 1909, c. 486, § 6. It has been so regarded in other courts. State v. Orr, 68 Conn. 101, 35 A. 770, 34 L. R. A. 279; State v. Robb, 100 Me. 180, 60 A. 874, 4 Ann. Cas. 275; Atlantic City v. Abbott, 73 N. J. Law, 281, 62 A. 999; Grand Rapids v. De Vries, 123 Mich. 570, 82 N.W. 269; Walker v. Jameson, 140 Ind. 591, 37 N.E. 402, 39 N.E. 869, 28 L R. A. 679, 683, 49 Am. St. Rep. 222; Kilvington v. Superior, 83 Wis. 222, 53 N.W. 487, 18 L. R. A. 45; California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 26 S.Ct. 100, 50 L.Ed. 204; Gardner v. Michigan, 199 U.S. 325, 26 S.Ct. 106, 50 L.Ed. 212.

This taking included not only upland, but also adjacent flats lying between high and low water mark. The petitioner contends that these could not be taken without distinct legislative authority. It is settled that without such authority a city or town cannot lay out a way over navigable waters or over flats covered with water at high tide. Commonwealth v. Coombs, 2 Mass. 489; Commonwealth v. Charlestown, 1 Pick. 180, 11 Am. Dec. 161; Kean v. Stetson, 5 Pick. 492; Charlestown v. County Commissioners, 3 Metc. 202; Marblehead v. County Commissioners, 5 Gray, 451; Commonwealth v. Roxbury, 9 Gray, 451, 494. But these and other similar decisions go upon the ground that the flats which, when covered by water, are of public right, are within the control of the Legislature, and that this control is not taken to be abandoned by the use of mere general words, to which full effect can otherwise be given. Boston Water Power Co. v. Boston & Worcester Railroad, 23 Pick. 360; Attorney General v. Woods, 108 Mass. 436, 440, 11 Am. Rep. 380. On the other hand there is no question that the Legislature may authorize the taking of flats as well as of upland, and will be taken to have done so when that intention clearly appears. The power to take flats by eminent domain, though that power did not appear to have been given by express words, was assumed by this court to exist in Breed v. Lynn, 126 Mass. 367, 371, although the court doubted its authority to compel the city to exercise that power. In Wyman v. County Commissioners, 157 Mass. 55, 31 N.E. 715, the court upheld an adjudication of county commissioners that it was necessary to take for the enlargement of a burial ground not only certain upland, but also the adjacent flats lying between high and low water mark, which belonged as private property to the owner of the upland. The court referred to the fact that the flats could not be filled or any structure put upon them without a license from public authority. Pub. Sts. c. 19, § 9, now R. L. c. 96, § 17. And the court said further (Field, J., 157 Mass. 57, 31 N.E. 715): 'The interests of the public in land covered by the tides are not affected by the change of ownership, nor does that change in and of itself work any obstruction to navigation, and private property in such land is not exempted from being taken for a public use if it is necessary.' In our opinion, that decision settles the question now being considered. It is a fact within common knowledge, referred to in our statutes and in many of our reported cases, that the city of Boston hsas a large water front, and includes many islands, some but not all of which are in its private ownership. There must be in it many municipal purposes which best can be served by the use of flats as well as of upland. Public landing places, for example, probably would require the use of flats. In the case at bar, the flats taken may have been indispensable to the carrying out of the use intended. At any rate that was a matter to be determined by the body to which the Legislature chose to intrust the decision. Talbot v. Hudson, 16 Gray, 417 424; Dingley v. Boston, 100 Mass. 544, 550; Moore v. Sanford, 151 Mass. 285, 288, 24 N.E. 323, 7 L. R. A. 151; Lynch v. Forbes, 161 Mass. 302, 37 N.E. 437, 42 Am. St. Rep. 402; Burnett v. Boston, 173 Mass. 173, 53 N.E. 379; Boston v. Talbot, 206 Mass. 82, 91 N.E. 1014. And here, as in Wyman v. County...