176 Mass. 9 | Mass. | 1900
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
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
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