Newcomb v. Inhabitants of Rockport

• Decision Date: 27 February 1903
• Citation: 183 Mass. 74,66 N.E. 587
• Parties: NEWCOMB et al. v. INHABITANTS OF ROCKPORT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 74

66 N.E. 587

NEWCOMB et al. v. INHABITANTS OF ROCKPORT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1903

COUNSEL

H. Huestis Newton, for petitioners.

Sumner D. York, for respondents.

OPINION

LATHROP, J.

This is a petition for a writ of mandamus, brought against the town of Rockport and the school committee of that town, by the lighthouse keepers on Thatcher's Island and Straitsmouth Island, to compel the town to provide and maintain a sufficient number of schoolhouses, properly furnished and conveniently located, for the accommodation of the children of the petitioners, and to compel the school committee to procure a suitable place for the schooling of these children together with fuel and all other things necessary for the comfort of the pupils therein. The case comes before us upon the petition and answer, and an agreed statement of facts. The two islands are off the coast of Cape Ann, and are both within the limits of the town or Rockport. Thatcher's Island contains about 80 acres, and is about a mile distant from the mainland. Straitsmouth Island contains about 40 acres. The only residents on these islands are the lighthouse keepers and their families. When the petition was filed there were seven children on Thatcher's Island, and one on Straitsmouth Island, all of school age.

Before the acts hereinafter referred to, these islands were the property of the commonwealth. See, as to Thatcher's Island, Prov. St. 1770-71, c. 35; 5 Prov. Laws (State Ed.) p. 137. The statute of 1790 (chapter 4) entitled 'An act for granting to the United States of America the several public lighthouses within this commonwealth,' begins: 'That there be and hereby are granted unto the United States of America the lighthouse situate on Lighthouse Island, in the harbor of Boston, together with the lands and tenements thereunto belonging, the property of this commonwealth, with the jurisdiction of the same; also the two lighthouses situate on Thatcher's Island, so called, in the county of Essex, together with the lands and tenements thereunto belonging, the property of this commonwealth, with the jurisdiction of the same.' The act then proceeds to set forth other lighthouses, and concludes, in section 2 with three provisos: (1) That if the United States shall neglect to keep lighted and in repair any one or more of the lighthouses, then the grant of such lighthouse or lighthouses so neglected shall be void and of no effect; (2) 'that all civil and criminal processes, issued under the authority of this commonwealth or any officers thereof, may be executed on any of said lands or in any of said buildings, in the same way and manner as if the jurisdiction had not been ceded'; and (3) 'that if the United States shall, at any time hereafter, make and compensation to any one of the United States for the cession of any lighthouse heretofore, or which may be hereafter made to the United States; that then like compensation be made to this commonwealth by the United States, for the cession of the lighthouses aforesaid, in proportion to their respective values.' It would seem from this last proviso that the lighthouses on, Thatcher's Island were granted to the United States without compensation, and there is nothing in the case before us to show whether compensation for them has ever been made. The statute of 1835 (chapter 151) entitled 'An act to cede to the United States the jurisdiction over Straitsmouth Island,' provides 'that the jurisdiction over Straitsmouth Island, near the eastern point of Cape Ann in this commonwealth, be, and hereby is granted to the United States of America, for the sole purpose of erecting and maintaining a lighthouse on the same: provided that this commonwealth shall retain, and hereby does retain, concurrent jurisdiction with the United States, in and over said land, so far as that all civil processes issued under the authority of this commonwealth, or any officer thereof, may be executed on any part of said island, or in any building which may be erected thereon, in the same way and manner, as if jurisdiction has not been granted as aforesaid: and provided also that all persons who shall dwell upon said tract of land shall be deemed and taken to be inhabitants of the town of Gloucester in this commonwealth, and shall there do the same duties, and have and enjoy the same privileges as other inhabitants of said town, save that the keeper of said lighthouse shall not be liable to serve as a juror, or to perform military duty.'

So far as the second proviso in the act relating to Thatcher's Island and the first proviso in the act relating to Straitsmouth Island are concerned, it is settled that the purpose of such provisos is to prevent the territory ceded from becoming a sanctuary for debtors and criminals, and not for the purpose of reserving jurisdiction on the part of the state of an offense committed within the territory. Commonwealth v. Clary, 8 Mass. 72; United States v. Cornell, 2 Mason, 60, Fed. Cas. No. 14,867; Mitchell v. Tibbetts, 17 Pick. 298; Opinion of Justices, 1 Metc. 580; Ft. Leavenworth Railroad v. Lowe, 114 U.S. 525, 533, 5 Supp. Ct. 995, 29 L.Ed. 264. In Opinion of Justices, 1 Metc. 580, in reply to the question, 'Are persons residing on lands purchased by, or ceded to, the United States, for navy yards, arsenals, dock yards, forts, lighthouses, hospitals, and armories, in this commonwealth, entitled to the benefits of the state common schools for...