Salisbury Land & Imp. Co. v. Com.
| Citation | 102 N.E. 619,215 Mass. 371 |
| Parties | SALISBURY LAND & IMPROVEMENT CO. v. COMMONWEALTH. |
| Decision Date | 21 June 1913 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Horace I. Bartlett, of Newburyport, and Walter Coulson and H Christopher Chubb, both of Lawrence, for petitioner.
James M. Swift, Atty. Gen., and Essex S. Abbott, of Haverhill special counsel, for the Commonwealth.
The question presented is the constitutionality of St. 1912, c 715, entitled 'An act to make Salisbury Beach a public reservation and to establish the Salisbury Beach Reservation Commission.' Its several sections provide for the appointment of a commission and the machinery by which land may be taken, money raised and a public reservation managed. The ground of attack upon its validity is that it authorizes the taking of land for a private rather than a public use. In order to pass intelligently upon its constitutionality in this respect the physical facts to which it is applicable may be considered to ascertain what may be its practical operation. The property which may be taken under the statute is known as Salisbury Beach and consists of sand dunes and beach in the town of Salisbury extending from the New Hampshire line about 3 1/2 miles by the sea to the mouth of the Merrimac river. A street railway has been constructed along the length of the beach. On the ocean side there are cottages for summer occupancy and on the westerly line of the dunes a large number of houses have been built, and hotels, shops, boarding houses, places of amusement and other buildings have been constructed and a summer community has been established, with a system of water and gas pipes, electric lights, sewers and telephones, all of which, including the street railway, were leased by the petitioner or its predecessors in title.
Streets were laid out or provided for by agreement with the town, plans were drawn showing the property divided into house lots and many lots were leased to cottage owners and others. The property was owned by the commoners of Salisbury until 1903, when it passed into private ownership, and finally has come to the petitioner. Since the acquirement of the property by the petitioner many leases have expired and they have not generally been renewed except in a few instances and at a substantial increase in rent.
The material portions of the act are printed in a footnote. [1]
It is a familiar principle of constitutional law that every presumption is made in favor of the validity of a statute. It is not to be held a violation of the fundamental charter established by the people in their Constitution unless so clearly outside the power conferred upon the Legislature as to be free from reasonable doubt in that regard. It must be assumed that the Legislature intended to act within its lawful bounds and this assumption cannot be overthrown unless the statute unmistakably oversteps these bounds by manifest and plain terms. On the other hand when it is clear that the statute transgresses the authority vested in the Legislature by the Constitution, it is the duty of the court, a duty from which they cannot shrink without profaning their oaths of office, to see and to declare the invalidity of the statute. The judicial department of government cannot surrender its judgment respecting the validity of statutes to that of either of the other departments and when the occasion arises must refuse to enforce a statute which does not conform to the requirements of the fundamental law of the land. The statute must be construed as a whole. That which, by fair intendment, its terms may confer power to accomplish, must be ascertained by a broad consideration of the entire act, bearing constantly in mind the presumption in favor of its validity.
The establishment and maintenance of public parks and reservations out of moneys raised by taxation and the exercise of the power of eminent domain for their acquirement plainly are within the power of the Legislature. It requires no discussion to demonstarte that this is a public purpose. Nor can it be contended reasonably in view of many of our decisions that the taking of the fee rather than an easement in land to this end is permissible. Higginson v. Treasurer and School House Com'rs of Boston, 212 Mass. 583, 591, 99 N.E. 523, and cases cited. The acquirment of beaches by eminent domain and at the public expense for bathing and other purposes of general utility has never been questioned in this commonwealth. That it is a legitimate exercise of the sovereign power is not open to doubt. See In re Metropolitan Park Commission, 209 Mass. 381, 95 N.E. 866. Looking alone at section 4 of the act now under consideration, the power conferred does not appear to go beyond the right of acquiring and maintaining land and rights in land for a public park or reservation. But this section must be read in connection with other sections in order to understand the full scope of the act. Section 10 authorizes the commission 'to sell or lease any lands or rights in land taken' 'by it which are not needed as a public reservation.' These words are not restricted as to time. They form a part of the original act and are operative contemporaneously with all its other provisions. There is nothing to require a determination that by reason of changed conditions land deemed necessary at the time of taking, has become no longer needed. These words in connection with section 4 undertake to enable the commission to take 'any and all land' within the designated area and at the same moment to determine that some of the lands thus taken 'are not needed' and immediately to proceed 'to sell or lease' such lands. Thus there may be an adjudication that lands are needed for the public use which involves a payment for them out of moneys raised by taxation, coupled with a determination not to devote some of these lands to the enjoyment of the people at large but to sell or lease them for private occupation. There are no words in this or the other sections which limit this broad power. It is not stated expressly or by implication that such sales or leases can be only of property once needed and used for the public resort but which through changed conditions have become useless therefor, nor confining the right to trifling and almost negligible remnants of estates which would be unsuitable for private use after the part actually needed for public use has been appropriated. That this wide power of taking for private use was intended by the present act is confirmed by reference to the latter part of section 10 to the effect that the town of Salisbury may tax 'all buildings and personal estate in said reservation not owned by the commonwealth * * * and shall collect a tax on all land in said reservation not taken, acquired or used by said commission for the purposes of this act.' The first part of this sentence seems to contemplate that buildings and personal property shall be and remain in private ownership upon the reservation to such an extent as to be substantial subjects of taxation, while the final clause appears to provide for the taking and holding by the commission of substantial areas of land not for the public purposes set forth in the act. No land can be 'in said reservation' until taken or acquired by the commission under the authority of the act. the evident design of section 11 is that upon the reservation shall be such a considerable settlement of inhabitants that special provision was thought to be needed for the education of the children in the public schools of Salisbury. This would be impossible if a reservation of this size were devoted wholly to the public. Whatever may be said of the force of any one of these several provisions standing alone, taken in conjunction and construed together they authorize the taking not only of the seashore and other lands purely for reservation purposes but also of other tracts in the designated territory to be sold or leased to private individuals, or held without appropriation to the use of the public, which means inferentially a holding for private uses. When applied to the subjectmatter, namely, an existing summer resort with all its equipment of cottages and other appurtenances, it is difficult to say which of these two is the dominant aim.
The construction put by the commission upon the powers conferred by the act as revealed by their conduct is in accordance with this interpretation. It merely indicates the natural meaning of the act. The taking, which is made a part of the record, shows generally a careful exclusion of most of the lost not owned by the petitioner, even though in numerous instances this results in an interruption of the shore line and in many others leaves small lots owned by individuals surrounded by land taken. The impression created by looking at the plan of the taking was not inaccurately described in argument as a 'checker board' effect. It was found by the land court that the commission interpreted the act to authorize them legally to 'take such lands as they did take for the purpose of carrying out the intent of the law, which, for the protection of the present cottage owners and people who in the future may become cottage owners or occupants, was to be done by leasing or selling the lands taken.' This statement aptly summarizes the effect of the act. It authorizes the taking of land a part of which may never be intended for any public purpose, but for lease or sale for private use. It would be possible for the commissioners, although strictly following the terms of the statute, to take this entire summer colony with its numerous houses and other buildings and substitute themselves for the petitioner as landlord, and lease all the cottages and buildings indefinitely, or...
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