Browne v. Turner
56 N.E. 969
Mass.
1900
Check Treatment
Holmes, C. J.

This bill purports to be brought under St. 1898, c. 490, amending Pub. Sts. c. 27, § 129. As we are of opinion that it fails to make out a case, and as all parties are anxious for a decision upon the merits, we have not considered whether the plaintiffs bring themselves within the purview of the act. The decree will be the same that it would be if we were against them on the preliminary point, and therefore there seems to be no objection to stating the grounds of substantive law which seem to us to support the result.

The point of the bill may be stated in a few words. The Boston Transit Commission proposes to obey St. 1897, c. 500, § 17, by constructing a tunnel from a point on or near Hanover Street in Boston proper to a point at or near Maverick Square in East Boston, and by executing a lease of the tunnel, when completed, to the Boston Elevated Railway Company, for twenty-five years from the date of that act, at the rental specified in the same section. The treasurer of the city proposes to obey § 18 of the act by selling bonds and applying the proceeds to the payment of the cost of the tunnel. The plaintiffs seek an injunction on the ground that the requirements of these sections are unconstitutional, as calling for an unwarranted exercise of the power of taxation, as taking the property of the city without reasonable compensation or due process of law when the lease is executed, and as impairing the obligation of a contract already made by the subway commissioners with the West End Street Railway.

In view of the decisions as to the subway, it does not appear to us to need further argument to show that the contemplated tunnel, even if permanently confined to street railway travel, is a public work for a public use, for building which the Legislature can require the city to pay. Prince v. Crocker, 166 Mass. 347, 361. Mahoney v. Boston, 171 Mass. 427, 429. Local precedent is more important than abstract theory in determining this question, at least so far as the State Constitution is concerned ; and if it be true, as it may be, that the difference between uses which are public within the requirements of the *13Constitution and those which are not is one of degree, that is no novelty, and it is enough that this use has been determined to fall on the right side of the line. Apart from the distinctions suggested between the subway and the tunnel, which do not impress us, it is said that, because of the direction to let the tunnel, and because of the difference between the rental under the statute and that which would have been received under the contract which we have mentioned, the real object of the statute is to throw upon the city the burden of constructing part .of its roadbed for a private corporation and to give it a lease on easier terms.

We cannot accept the suggestion. It does not appear that the statute will have either effect. But if it will, so long as it is possible we are bound to assume that the Legislature did its duty, meant what it said, and regarded the work as a public work really needed by the public, as it may be. The purpose of the act on its face is to create a lawful public improvement.

The lease comes up in another aspect, however. It is said that the compensation to the city is inadequate, and that the lease will be a taking of the city’s property for a private corporation without paying for it. Mount Hope Cemetery v. Boston, 158 Mass. 509. With regard to the former proposition, if the Legislature has the same power that it has with regard to other roads, the matter of compensation is wholly within its power. Norwich v. County Commissioners, 13 Pick. 60. Agawam v. Hampden, 130 Mass. 528, 530, 531, and cases elsewhere in this judgment. See also Mobile v. Kimball, 102 U. S. 691, 702 ; Williams v. Eggleston, 170 U. S. 304. Commonly, when a city or town is required to build a road or bridge within its limits, no compensation is provided for beyond the local benefit of having it there. With regard to the latter branch of the objection, we are of opinion that the case is not like Mount Hope Cemetery v. Boston, or that supposed of an act requiring a transfer of the city hall to a railroad company for a station. This is not a transfer, but only a temporary and quasi experimental lease for a not unreasonable time. The property of the city in the tunnel, assuming it to have a property, is not of a half private sort, as in case of a cemetery, but is merely the control of a public agency. There is no element of the Mount Hope Cemetery case about the matter. McHugh v. Boston, 173 Mass. 408. Commonwealth *14v. Fitzgerald, 164 Mass. 587, 589, 590. Kingman, petitioner, 153 Mass. 566, 574, 575. Cheshire v. Adams & Cheshire Reservoir Co. 119 Mass. 356. As was said at the argument, if the tunnel is to be built it is to be used, and naturally will not be used by the city directly. If the Legislature could authorize it to be let on terms to be agreed upon, as was held in Prince v. Crocker, it could require it to be let upon terms which the Legislature thought just, to a corporation selected by itself engaged in a public work like that for which the tunnel is to be used. In fact, when once the power to require the tunnel to be built is conceded, the rest follows, in the situation now existing in Boston. Assuming that the city is not to go into the transportation business further than it has gone, the use of the tunnel by the corporation which manages the consolidated street railways of the city is the alternative, and such use is not to be expected without a lease.

The contract the obligation of which it is said will be impaired is the former lease of the subway executed by the transit commissioners under Sts. 1893, c. 478; 1894, c. 548 ; 1895, c. 440 ; and 1896, c. 492. This lease was to the West End Street Railway Company, to whose rights the Elevated Railway Company has succeeded, but was at a different rental from the present. The lease declares the word “ subway ” as used therein to include all the subways, tunnels, etc., which the commission has constructed or may construct'under the aforesaid acts. As to future tunnels, of course this is not a lease but only a contract to let them if they are built under the said acts. The Statute of 1894, c. 548, § 26, was to the effect that the commission “ may construct a tunnel . . . from a point on or near Scollay Square in the city of Boston, ... to a point on or near Maverick Square.” Such a contract is not impaired in any way by a repeal of so much of the act as gives the commission authority to build, and it may be that, if it were necessary, we should say that a tunnel with a different terminus built in form under another and later act is not within the words of the lease,— that, in the words of Browne v. Turner, 174 Mass. 150, 160, the contemplated tunnel is “ a substitute for the tunnel authorized by St. 1894.” We prefer, however, to put our decision on more substantial grounds. The railroad company does not ob*15ject to the change, as was the case in Walla Walla v. Walla Walla Water Co. 172 U. S. 1. The city has no greater interest in the lease than it has in the tunnel. Its interest in the lease is as much public property and as subject to legislative control as its interest in the tunnel. No part of the proceeds go to its private uses, (St. 1894, c. 548, § 38; Mahoney v. Boston, 171 Mass. 427, 430,) and if any part did go to such uses it is hard to see how, as against itself, the city, by making a contract to let public property held by it subject to the control of the Legislature, could cut down this control. The control is not subject to the chance of the city’s contracting, but the contract is subject to the power of the Legislature over the subject matter. Essex Public Road Board v. Skinkle, 140 U. S. 334, 339, 340. New Orleans v. New Orleans Water Works Co. 142 U. S. 79, 91, 92. Chicago, Burlington, Quincy Railroad v. Nebraska, 170 U. S. 57, 72. Railroad Co. v. Ellerman, 105 U. S. 166. See Brighton v. Wilkinson, 2 Allen, 27 ; Brimmer v. Boston, 102 Mass. 19 ; Agawam v. Hampden, 130 Mass. 528, 530, 531 et seq. We assume, for purposes of discussion, without deciding, that the contract as to future tunnels was within the authority given by St. 1895, c. 440, § 6 ; St. 1896, c. 492. Bill dismissed.