Proprietors of Mt. Hope Cemetery v. City of Boston
| Decision Date | 03 April 1893 |
| Citation | 33 N.E. 695,158 Mass. 509 |
| Parties | PROPRIETORS OF MT. HOPE CEMETERY v. CITY OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wm Gaston, J.B. Richardson, and Saml. W. Creech, Jr., for petitioner.
Thomas M. Babson, for city of Boston.
John Taylor, for respondent.
Over property which a city or town has acquired and holds exclusively for purposes deemed strictly public,--that is which the city or town holds merely as an agency of the state government for the performance of the strictly public duties devolved upon it,--the legislature may exercise a control, to the extent of requiring the city or town, without receiving compensation therefor, to transfer such property to some other agency of the government, appointed to perform similar duties, and to be used for similar purposes, or perhaps for other purposes strictly public in their character. Thus much is admitted on behalf of the city, and the doctrine is stated and illustrated in many decisions. Weymouth & B. Fire Dist. v. County Com'rs, 108 Mass. 142; Whitney v. Stow, 111 Mass. 368; Rawson v. Spencer, 113 Mass. 40; Stone v. Charlestown, 114 Mass. 214; Kingman, Petitioner, 153 Mass. 566, 573, 27 N.E. 778; Meriweather v. Garrett, 102 U.S. 472; Mayor etc., of Baltimore v. State, 15 Md. 376. By a pretty general concurrence of opinion, however, this legislative power of control is not universal, and does not extend to property acquired by a city or town for special purposes, not deemed strictly and exclusively public and political, but in respect to which a city or town is deemed rather to have a right of private ownership, of which it cannot be deprived against its will, save by the right of eminent domain, with payment of compensation. This distinction we deem to be well founded, but no exact or full enumeration can be made of the kinds of property which will fall within it, because, in different states, similar kinds of property may be held under different laws, and with different duties and obligations, so that a kind of property might in one state be held strictly for public uses, while in another state it might not be. But the general doctrine that cities and towns may have a private ownership of property, which cannot be wholly controlled by the state government, though the uses of it may be in part for the benefit of the community as a community, and not merely as individuals, is now well established in most of the jurisdictions where the question has arisen. Commissioners v. Lucas, 93 U.S. 108, 114, 115; Mt. Pleasant v. Beckwith, 100 U.S. 514, 533; Railroad Co. v. Ellerman, 105 U.S. 166, 172; Cannon v. New Orleans, 20 Wall. 577; Mayor, etc., of New York v. Second Ave. R., 32 N.Y. 261; People v. Batchellor, 53 N.Y. 128; People v. O'Brien, 111 N.Y. 1, 42, 18 N.E. 692; Webb v. Mayor, etc., 64 How.Pr. 10; Montpelier v. East Montpelier, 29 Vt. 12; Western Sav. Fund Soc. v. Philadelphia, 31 Pa.St. 175; Park Com'rs v. Detroit, 28 Mich. 228, 235, 236, 238; People v. Hurlbut, 24 Mich. 44; Detroit v. Detroit & H.P.R. Co., 43 Mich. 140, 5 N.W. 275; Mayor v. Park Com'rs, 44 Mich. 602, 7 N.W. 180; Louisville v. President, etc., 15 B.Mon. 642; Richland Co. v. Lawrence Co., 12 Ill. 1; People v. Mayor, etc., of Chicago, 51 Ill. 17; Grogan v. San Francisco, 18 Cal. 590; Hewison v. New Haven, 37 Conn. 475. The same conclusion is arrived at, after a full and clear discussion of the subject, in Dill.Mun.Corp. (4th Ed.) §§ 66-68, and notes. See, also, Cooley, Tax'n, 688.
In this commonwealth the question has not directly arisen in reference to the power of the legislature to compel a transfer of the property of a city or town, but the double character of cities and towns, in reference to their duties and liabilities, has very often been adverted to. When a city or town acts merely as an agent of the state government in performing duties for the general benefit, it is usually held free from liability to persons who sustain injuries through negligence, except in the case of defective highways, which constitute an exception to the general rule. But in other cases, where an element partly commercial comes in, a liability is usually enforced. Tindley v. Salem, 137 Mass. 171, 172, and cases cited; Worden v. New Bedford, 131 Mass. 23; Bailey v. Mayor, etc., 3 Hill, 531. In such cases the ultimate question usually is, did the legislature mean that the city or town, or other creature of statute, should be liable for negligence, or did it not? Howard v. City of Worcester, 153 Mass. 426, 27 N.E. 11; Southampton, etc., Bridge Co. v. Local Board, 8 El. & Bl. 801, 812; Cowley v. Mayor, etc., 6 Hurl. & N. 565, 573; Mersey Docks v. Gibbs, 11 H.L.Cas. 686, 707, 709, 710, 721. But, in determining this question, courts make a discrimination in respect to the character of the duties and of the property which are involved. Nowhere else has this ground of distinction been more often or more strongly insisted on than in Massachusetts. See cases cited in 137 Mass. 174; Pratt v. Weymouth, 147 Mass. 245, 254, 17 N.E. 538; Neff v. Inhabitants of Wellesley, 148 Mass. 487, 493, 20 N.E. 111; Lincoln v. City of Boston, 148 Mass. 578, 20 N.E. 329; Curran v. City of Boston, 151 Mass. 505, 508, 24 N.E. 781. In the recent case of Merrimack River Sav. Bank v. City of Lowell, 152 Mass. 556, 26 N.E. 97, we had occasion to make an analogous discrimination between the general duty which the city of Lowell was under, to furnish water on equal terms to all its inhabitants, and the particular undertaking to furnish water for a year to an individual who had paid a year's rates in advance. In the case before us, we have to determine whether the city of Boston's title to the Mt. Hope Cemetery is subject to legislative control; and this involves an inquiry, to some extent, into the usages and laws in this commonwealth relating to burying grounds, with a view of ascertaining whether, in the ownership of such property, towns have heretofore been regarded, or have acted, merely as agencies of the state government.
In early times, when land was set apart for a burying ground, it was sometimes under the care and control of the town or district, and sometimes under that of the parish. It is said in First Parish in Shrewsbury v. Smith, 14 Pick 297, 301: "The fact, probably, was that towns, parishes, and proprietors often consisted so nearly of the same individuals that a grant or appropriation of one of these bodies to another was little more than an appropriation by themselves, in one capacity, to the use of themselves in another." And in Lakin v. Ames, 10 Cush. 198, 218: "Although, in early times, the establishment, care, and control of burial grounds, like the support of schools, might have been partly a parochial, and partly a municipal, duty, yet before the erection of a new parish in the town of Pepperell, in 1831, they were regarded as appertaining rather to towns than to parishes." We cannot find, either in the statutes or the history of Massachusetts, any clear line of distinction between the duty or usages of towns and of parishes in this respect. Sometimes land was set apart or bought and owned by the town or district for this purpose, and sometimes by the parish. Instances of ancient ownership by towns, by districts, and by parishes are referred to in First Parish in Shrewsbury v. Smith, 14 Pick. 297; Bachelder v. Wakefield, 8 Cush. 243; Lakin v. Ames, 10 Cush. 198; and there appears to be no doubt that money for providing, enlarging, and maintaining them was raised by each of these corporate bodies. More than 200 years ago the town of Boston bought land for burying grounds; the Chapel, Copp's Hill, and the Granary Burying Grounds being the earliest. Shurtleff's Topog. & Hist. Description of Boston, 182 et seq.; 1 Memorial History of Boston, 554, 555; 2 Memorial History of Boston, 528, 529. In the general legislation of the commonwealth, burying places, whether belonging to towns, districts, parishes, or precincts, were early spoken of, in connection with other pieces of land, as "appropriated for the general use, ease, or convenience of the community," and provision was made for defining their boundaries and protecting them from incumbrances. St.1786, c. 67, § 7, and St.1786, c. 81, § 6, re-enacted in Rev.St. c. 24, §§ 61, 63. By St.1829, c. 141, § 1, the First Parish in Rowley was authorized to assess a tax for the enlargement of its burial ground, or to purchase a new one, on all polls within the territorial limits of the said parish, and on estates within said limits, for the use and benefit of all the inhabitants living within said limits, and their successors, forever. No general statute which in express terms authorizes the expenditure of money for the purchase and care of land for this purpose has been found, earlier than St.1829, c. 107, in which towns, districts, and parishes or religious societies are all put on the same footing. The statute is as follows: "Be it enacted," etc., "that the inhabitants of each town, district, parish, or religious society within this commonwealth, qualified to vote in town, district, or parish meetings, shall have power, at any meeting called for that purpose, to raise, in the same manner that other town, district, or parish charges may now by law be raised, such sum or sums of money as they shall deem necessary for the purchase of lands for burial grounds, and for the care and preservation of the same." This, as we believe, was merely giving the express sanction of law to what had long been a prevailing usage. The above statute, when incorporated into the Revised Statutes, was divided; the part relating to towns being contained in Rev.St. c. 15, § 12, (which included districts,--Rev.St. c. 2, § 6, cl. 17,) and that relating to...
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