309 Mass. 388 | Mass. | 1941
The question presented by these exceptions to the order of a single justice, which dismissed a petition for certiorari brought by the petitioners to quash proceedings of the respondents purporting to take their land for the purpose of establishing a municipal airport, is whether land can be taken by eminent domain, in behalf of a city, for such purpose.
The power to appropriate private property for a public use may, subject to the limitations expressed in the Constitution, Part I, art. 10, and arts. 39, 43, 49 and 51 of the Amendments, be exercised by the Legislature itself or it may be delegated by statute to the cities and towns. Such statutes are in derogation of the rights of individual owner-; ship in property and must be construed with reasonable strictness, so that no citizen shall be deprived of the use and enjoyment of his land except by a valid exercise of the appropriating power subject to which all private property is held. Glover v. Boston, 14 Gray, 282. Lajoie v. Lowell, 214 Mass. 8. Comisky v. Lynn, 226 Mass. 210. Jenks v. Mayor & Municipal Council of Taunton, 227 Mass. 293. Holliston v. Holliston Water Co. 306 Mass. 17.
Cities and towns are political subdivisions created for the convenient administration of government, and they possess only such powers as are conferred upon them either in terms or by necessary implication of enabling statutes. Wheelock v. Lowell, 196 Mass. 220. MacRae v. Selectmen of Concord, 296 Mass. 394. A die v. Mayor of Holyoke, 303 Mass. 295. They are separate units, possessing only the authority thus entrusted, and acting as instrumentalities of local self-government. Nowhere is the limitation of their power more obvious than in the expenditure of funds raised by taxation. Such funds can be expended only for a public purpose sanctioned by law. The appropriation of money for “the establishment, maintenance and operation of public airports” is expressly authorized by G. L. (Ter. Ed.) c. 40, § 5 (35), and cities and towns may borrow within the limit of indebtedness for the establishment of public airports, including the acquiring of land, the construction of buildings and the surfacing of the landing and taking-
The transportation of passengers and mail along definite air lanes, on regular schedules, between several of our cities has been conducted on a large and increasing scale for many years. Travel by air is preferred by many to travel by land or sea. Large sums have been invested in the development and manufacture of airplanes and in the operation of lines for service to the public. Air traffic has become a usual method of travel. It has been employed extensively in the transportation of persons on interstate journeys. Besides, there is considerable flying by persons who own or hire aircraft, most of which is confined within comparatively short distances from the field where the craft is housed. Aviation has become a necessary and important branch of the armed forces of the national government, and ,the use of airplanes as an effective weapon of modern warfare has been conclusively demonstrated. The expenditure of municipal funds to assist either the Commonwealth or the Federal government in a local undertaldng of a public nature may be authorized by the Legislature. Merrymount Co. v. Metropolitan District Commission, 272 Mass. 457. Opinion of the Justices, 297 Mass. 567.
An airport is as essential to aerial navigation as are docks and harbors to marine navigation, terminals to automobile bus transportation, and depots and freight yards to railroads. The establishment by a State or city of subways, tunnels, docks, wharves, bridges and highways, the operation of ferries, and the rendering of financial aid to railroad corporations and street railway companies, have all been upheld as undertakings of a public nature. The adequacy of means for the transportation of the public at large is a matter of public interest. Central Bridge Corp. v. Lowell, 4 Gray, 474. Attorney General v. Boston, 123 Mass. 460.
The two statutes authorizing the expenditure of municipal funds for the establishment of airports, to which we have referred, and G. L. (Ter. Ed.) c. 90, § 51, which was inserted by St. 1939, c. 393, § 3, regulating the establishment, maintenance and supervision of airports and landing fields, may be said to express legislative sanction of the municipal airport as a public purpose. Hubbard v. Taunton, 140 Mass. 467. Attorney General v. Williams, 174 Mass. 476, 479. Wheelock v. Lowell, 196 Mass. 220, 223. Duffy v. Treasurer & Receiver General, 234 Mass. 42, 50. Ducey v. Webster, 237 Mass. 497. Attorney General v. Lowell, 246 Mass. 312, 320. D. N. Kelley & Son, Inc. v. Selectmen of Fairhaven, 294 Mass. 570, 574. The decisions in other jurisdictions are to the effect that the establishment and maintenance of public airports are municipal purposes. Ragsdale v. Hargraves, 198 Ark. 614. Krenwinkle v. Los Angeles, 4 Cal. (2d) 611. Central Hanover Bank & Trust Co. v. Pan American Airways, Inc. 137 Fla. 808. Swoger v. Glynn County, 179 Ga. 768. Howard v. Atlanta, 190 Ga. 730. Mayor & Aldermen of Savannah v. Lyons, 54 Ga. App. 661. Wichita v. Clapp, 125 Kans. 100. Dysart v. St. Louis, 321 Mo. 514. State v. Johnson, 117 Neb. 301. Hesse v. Rath, 249 N. Y. 436. Albany v. Bol, 173 Misc. (N. Y.) 1047. Goswick v. Durham, 211 N. C. 687. State v. Jackson, 121 Ohio St. 186. Ardmore v. Excise Board of Carter County, 155 Okla. 126. McClintock v. Roseburg, 127 Ore. 698. Wentz v. Philadelphia, 301 Penn. St. 261. Spokane v. Williams, 157 Wash. 120.
We do not think that the city in acquiring and constructing an airport is acting any differently than when it engages in the public projects we have already enumerated. The
The petitioners, however, contend that, even if the purpose is a public one, the city is without power to acquire the property by eminent domain. This contention rests upon the fact that the right to take is not expressly given by G. L. (Ter. Ed.) c. 40, § 5 (35), c. 44, § 7 (12), and c. 90, § 51.
If we accepted the premises set forth by the petitioners, we would not be led to the conclusion that they urge. These statutes do not stand alone. G. L. (Ter. Ed.) c. 40, § 14, as appearing in St. 1933, c. 283, § 1, provides, in so far as now material, that "The aldermen of any city . . . may purchase, or take by eminent domain under chapter seventy-nine, any land ... for any municipal purpose for which the purchase or taking of land ... is not otherwise authorized or directed by statute.” One of the aims of this statute is to broaden and enlarge the powers of municipalities to purchase and take any land needed for a municipal purpose, where that power is not given by any other statute. Byfield v. Newton, 247 Mass. 46. Walker v. Medford, 272 Mass. 161. The authority that a city has apart from this statute to purchase a site for an airport is consistent with the power conferred by this statute to take the site by eminent domain. To construe the statute
The petitioners next direct attention to the fact that St. 1933, c. 283, § 1, which was the most recent amendment of G. L. (Ter. Ed.) c. 40, § 14, was entitled “An Act clarifying the law relative to taking land by eminent domain for highway purposes.” This chapter consisted of three sections and the last two were concerned with the taking of
There is nothing in Smith v. New England Aircraft Co. Inc. 270 Mass. 511, contrary to anything here decided. It was pointed out at pages 520-521, after a discussion of statutes regulating height for the operation of aircraft, that these statutes “do not authorize the taking of private rights to promote such navigation. See now St. 1928, c. 350; G. L. c. 40, § 14, as amended by St. 1925, c. 272, as to airports.” That statement was accurate as to the effect of the particular statutes there under consideration. In order that no inference would be drawn that the quoted statement meant that land for a municipal airport could not be taken by eminent domain, the court immediately directed attention to other statutes regulating the establishment of
Exceptions overruled.