178 Mass. 199 | Mass. | 1901
These are petitions by owners of land affected by St. 1899, c. 457, to have the amount of damages assessed which have been sustained by them in their property by reason of the act. The statute in question limits the height of buildings on a small tract west of the State House to seventy feet, a*nd allows these petitions if and in so far as the act, or proceedings to enforce it, may deprive the petitioners of rights existing under the Constitution. The cases are reported upon demurrer and agreed facts.
In some of the arguments addressed to us it was assumed that the only view which it was possible to take of this statute was that it was intended to benefit the State House considered as a dominant estate, and to annex to it an easement or quasi easement, whether for prospect or security it does not matter. Manifestly this is not true. It may be argued that the statute was passed at least as much in the interest of the public at large as travellers on the highway as it was in the interest of the Commonwealth as an owner of property — that one object at any rate was to save the dignity and beauty of the city at its culminating point, for the pride of every Bostonian and for the pleasure of every member of the State. It is on this footing that it is argued for the Commonwealth that the act is a valid exercise of the police power; that a building law would be valid within reasonable limits; Attorney General v. Williams, 174 Mass. 476, 478; People v. D'Oench, 111 N. Y. 359, 361; Lewis, Em. Dom. § 156; that a limitation to seventy feet is reasonable, and that such a law is no less valid when passed to satisfy the love of
It will be observed that this argument avoids the objection that a police law could not be limited to this narrow tract. For all that appears, and probably in fact, the symmetry of Beacon Hill and the domination of the State House as seen from the western approaches, the Mill Dam or the Cambridge Bridge for instance, are or may be secured without restricting a larger tract, and if so the statute is coextensive with the public need.
The language of the act is, we repeat, that in so far as it “ may deprive any person of rights existing under the constitution ” those in the petitioners’ situation may have a remedy. Of course it is possible to read this as the Attorney General would have us read it, as importing an exercise of the police power so far as the Legislature constitutionally could go, and as saving a remedy for all damages beyond the limit. If interpreted in that way it lets in the argument just stated. The objection to the interpretation is that it supposes the Legislature without clear words to have used the police power in one of its extreme manifestations for a purpose which, although conceded to be public, is a purpose which may be described as of luxury rather than necessity, and which, in part after all, is for the benefit of the State House land and its proprietor merely as such. So that to sustain the restriction to its whole extent under the police power would be a startling advance upon anything heretofore done. If it should be suggested that the restriction might be sustained under the police power beyond a certain number of feet from the ground and compensation allowed for the restriction between that height and seventy feet, apart from the difficulty of fixing a constitutional limit by feet and inches, which might not be insuperable, see Quinn v. New York, New Haven & Hartford Railroad, 175 Mass. 150, 151, the answer is that the constitutional difficulty would not grow appreciably less until we reached a point at which the restriction became nugatory because it was beyond the height to which any one would wish to build. Apart from the difficulties which we have stated, and simply reading the words without consideration of consequences, while we can gather that the Legislature was willing to take anything without paying for it that this court
For the foregoing reasons we are of opinion that the construction adopted by the Attorney General must be rejected, and therefore we do not find it necessary to express an opinion whether a law, in which the Legislature, either with a declaration of purposes such as we have imagined for this act or without it, should give clear expression to its intent to restrict these buildings in the exercise of its police power without payment, would infringe the Constitution. Such a law certainly would present grave difficulties even when approached with all the presumptions that exist in favor of a legislative decision, and with the duty to uphold it unless it was impossible to do so. Compare Farist Steel Co. v. Bridgeport, 60 Conn. 278, 292, with Attorney General v. Williams, 174 Mass. 476, 479, 480. See also Bent v. Emery, 178 Mass. 495.
On the construction of the act which we adopt it treats the limits of the police power as if they were a matter which might be left to this court to fix in the first place without any preliminary exercise of legislative judgment. If it stopped here it would raise new difficulties, but it does not. It goes on and gives a remedy if the act deprives the parties of rights existing under the Constitution. In the absence of an adjudication by the Legislature that the public needs require the petitioners’ property to be restricted without compensation, the statute does deprive the parties of such rights, and on the construction of the statute which we adopt there has been no such adjudication. The exercise of the police power always deprives a party of what would be his rights under the Constitution but for such an adjudication. The right to build the seventy-first foot from the ground is just as much a right under the Constitution as the right to build the sixty-ninth or the first. It may be of less importance, but it is the same in kind. The justification of a building law is not that it does not qualify or affect a right under the Constitution ; if that were the justification the petitioners would be entitled to nothing because no right of theirs would have been infringed. The justification is that although the law
If it be deemed more logical, instead of saying that a constitutional right is cut down or taken away under an implied constitutional power, to say that the right is limited to the extent of the lawful exercise of the police power, it does not leave the petitioners’ case less strong. For under that form of statement also the right exists until the Legislature adjudicates that the public welfare requires its termination without being paid for. That, as we have said, the Legislature has not adjudicated but has left to this court.
Demurrers overruled.
