The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order received on the sixteenth day of April, 1937, a copy whereof is hereto annexеd. These questions relate to a proposed statute authorizing the city of Salem to take by eminent domain, or acquire by purchase or otherwise, “the land in said city known as Derby Wharf” and other land in its neighborhood, all located within said city, for the purpоse of constituting a memorial to the sailors of Salem. No description of “Derby Wharf” or of its special connection with sailors has been transmitted to us. We have no particular knowledge touching that matter beyond general information as to the preeminence of Salem for many years as a center of extensive commerce on the high seas with distant ports in many parts of the world. Reference is made in the body of the proposed statute to the land to be taken as a “memorial tо the sailors of Salem,” as “a national historic monument,” and as an “historic monument to be a marine park which will be educational and recreational and conducted for the benefit of the public.” These constitute the avowed uses of the land tо be taken. For the purpose of acquiring this land, the city is empowered to borrow a sum not exceeding ninety-five thousand dollars on conditions stated. By § 3 of the proposed statute, “Said city is further authorized to convey said land to the United States of Ameriсa without monetary consideration, to be laid out or restored and preserved by said United States as a national historic monument under authority of an act of Congress ...” therein designated.
The important question is whether the General Court may authorize a single city to take by eminent domain land for the uses set forth in the proposed statute and to pay for the same out of moneys to be raised by taxation,
It is fundamental under our system of government that land can be taken by eminent domain only for a public purpose. Money raised by taxation can be expended only for a public purpose. A public use commonly is one the enjoyment and advantage of which are open to the public on equal terms. The circumstances may be such that only a relatively small portion of the inhabitants may participate in the benefits, but the use or service must be of such nature that in essence it affects them as a community and not merely as individuals. Opinion of the Justices,
The purposes for the acquisition of the land set forth in the proposed statute are public, Manifestly, use of the
The land authorized to be taken in the proposed statute is also described as an “historic monument.” The word “monument” in its common use means ordinarily a shaft, statue, or memorial of stone, bronze, or other appropriate material. It has a more comprehensive sense as comprising a structure or a place designed to commemorate an importаnt event, to honor distinguished service, or to perpetuate the memory of a notable individual or a highly useful class in the community. Rhode Island Hospital Trust Co. v. Benedict, 41 R. I. 143, 145, 146, 147. In its broad signification a monument may denote land or structures dedicated to public historical, patriotic, educational, and recreational purposes. A monument to a great spiritual leader is a public charity. Eliot v. Trinity Church,
The General Court has a wide discretion in the distribution of public burdens among the several cities and towns. It may authorize cities or towns to acquire by the exercise of eminent domain land within their own bounda
The question remains whether the provisions of § 3 of the proposed statute are valid, authorizing the city of Salem to convey the land taken to the United States without monetary consideration to be laid out or restored and preserved by the United States as a national historic monument under authority of a specified act of Congress. This is a new question in this Commonwealth.
The act of Congress to which reference is made in § 3 of the proposed statute is entitled "An Act to provide for the рreservation of historic American sites, buildings, objects, and antiquities of national significance, and for other purposes." Section 1 of that act declares that "it is a national policy to preserve for public use historic sites, buildings and objects of nаtional significance for the inspiration and benefit of the people of the United States." Other sections provide that the Secretary of the Interior through the "National Park Service” shall have specified powers and perform enumerated duties and functions. Among others, he may acquire, in the name of the United States by gift, title to real estate of value as commemorating and illustrating the history of the United States and cognate matters, and may “Restore, reconstruct, rehabilitate, preserve, аnd maintain historic or prehistoric sites, buildings, objects, and properties of national historical or archaeological significance," and may “Operate and manage historic and archaeologic sites, buildings, and properties acquired undеr the provisions of this Act together with lands and subordinate buildings for the benefit of the public, such authority to include the power to charge reasonable visitation fees and grant concessions, leases, or permits for the use of land, building space, roads, or trails when necessary or desirable
The line of separation between the United States of America and the several States as to jurisdiction and sovereignty is clear in its constitutional aspects. Though sometimes difficult to define, it is sharply maintained. A. L. A. Schechter Poultry Corp. v. United States,
The conclusion is that our answer is "yes” to questions 1, 2, 3 and 4. So far as question 5 has not already been answered, it presents no specific point but is general in nature and hence need not be answered. Opinion of the Justices,
Arthur P. Rugg.
John C. Crosby.
Edward P. Pierce.
Fred T. Field.
Charles H. Donahue.
Henry T. Lummus.
Stanley E. Qua.