This case was considered by the full court on the bill, demurrer, plea, and certain facts found at thе hearing before a single justice, and was reported in
The defendants contend that a decree cannot be entered in this suit without first joining the city of Boston, which is made liable by the statute for such damages as the defendants suffer from the taking of an interest in their land, and they hаve moved to have the city made a party. This motion was rightly overruled. The city of Boston is not a proper party to this suit. Its rights and liabilities in reference to the taking are fixed by the statute, and it is nоt entitled to be heard on the question whether the defendants are violating the law; nor does thе fact that the defendants must resort to the city for the recovery of their damages, and that thе city may then raise some of the questions which have been heard and determined in this suit, constitute a sufficient reason for bringing the city into litigation on subjects to which its interests are only collateral.
The former decision was upon an averment of the bill that Copley Square, upon which said St. James Avenue abuts, “is an open square and a public park intended' for the use, benefit and heаlth of the public, and is surrounded by buildings devoted to religious, charitable and educational purposes, some of which contain books, manuscripts and works of art of great value.” It is contended that the facts agreed fail to sustain this averment.
The agreed facts as to the construction of thе building leave the case as it was formerly presented, without material modification. The erеction of the building to its present height was expressly forbidden by the statute.
The statute is not unconstitutionаl as impairing the obligation of contracts. In addition to the express provisions contained in section three, covering certain kinds of damage, there is a general provision in seсtion four which gives compensation to any person sustaining damage by reason of the limit of the height of the buildings provided for in the act.
Most of the matters stated in regard to the proceеdings preliminary to the passage of the act, are incompetent.- The act must be cоnstrued by an application of its language to the subject to which it relates. If it can be given a reasonable construction which will sustain it as constitutional, it would be our duty so to construe it, even if it appeared that in the endeavors which suggested the legislation, considerations werе presented to the Legislature which would not be a sufficient constitutional justification for such an enactment.
The facts disclosed in regard to the circumstances preceding the cоmmencement of this suit do not sustain the defence of loches.
Decree for the plaintiff.
Order for Decree.
In the case of Hosea M. Knowlton, Attorney General, v. Henry Bigelow Williams et al., pending in the Supreme Judicial Cоurt for the county of Suffolk:
Ordered, that the clerk of said court in said county make the following entry undеr said case in the docket of said court, and file a decree as follows, viz. :
This case сame on to be heard and was argued by counsel and thereupon on consideration thereof it is ordered adjudged and decreed as follows: the defendants Williams f Ayer, trustees of the Wеstminster Chambers Trust, so called, and each of them, and their servants and agents are enjoined аnd restrained from maintaining the building mentioned in the