166 Mass. 347 | Mass. | 1896
Lead Opinion
The general complaint of the plaintiffs, as stated in their bill, is, that if the Transit Commissioners are permitted to proceed in the execution of the enterprise committed to them by St. 1894, c. 548, they will involve the city of Boston in an indebtedness or liability of many millions of dollars beyond the .limit of indebtedness prescribed by the laws of the Commonwealth, and will do this without the authority of the city council or the consent of the taxpaying citizens; and also that this statute would have the effect to deprive the city of many rights and privileges belonging to its inhabitants, and especially that it would infringe rights which relate to the control of the streets and highways of the city by the aldermen and street commissioners ; all in violation of the right of the inhabitants of the city to govern themselves.
It is provided by § 40 of the statute that the Transit Commission shall not “ take any land or commence the construction of any subway or tunnel until this act shall be accepted by a majority of the voters of said city voting at some special election called by the mayor,” etc. In the printed copy of the subway legislation furnished to us by mutual consent of counsel, it is stated that this act was accepted at a special election held on July 24,1894. There is no averment in the bill that no such vote of acceptance had been passed, and though the briefs on both sides say little or nothing on this point, yet it is implied in the brief furnished by one of the counsel for the plaintiffs (Mr. Bryant)
If this power were otherwise doubtful, in the present case the statute under consideration is not peremptory and absolute, but it remained inoperative until accepted by a majority of the voters of the city. The plaintiffs contend that the statute is to become operative without the authority of the city council, or the consent of the taxpaying citizens ; but if a consent were necessary, we know of no authority or legal reason for requiring any other consent than that of the qualified voters. In Merrick v. Amherst, 12 Allen, 500, 506, the court, while intimating that no consent at all was necessary, said: “ To guard against all danger of mistake, and to obtain the highest evidence from those most interested that the imposition of the tax was not unequal or disproportionate to the expected benefits, the Legis
The foregoing considerations apply to the bridge over Charles River, provided for in § 30, as well as to the subway itself.
' That the Legislature can authorize a city or town to tax its inhabitants only for public purposes is well settled and familiar. Opinion of the Justices, 155 Mass. 598, 601, and cases there cited. But railroads are always held to be built for public use, whether the right to take land, or the right to grant pecuniary aid to them, is considered. The Legislature of this Commonwealth has granted aid to railroad corporations from its own treasury. See instances cited in 153 Mass. 570. It has also, in a number of instances, authorized cities and towns to furnish such aid by subscribing to stock or otherwise. For illustrations, see Sts. 1852, c. 156; 1855, cc. 394, 395; 1860, cc. 34, 184; 1861, c. 98; 1862, cc. 56, 78; 1863, cc. 96, 104, 105; 1864, cc. 11, 242, 245, 246, 249, 260. At last, such municipal aid was authorized by general laws. Sts. Í870, c. 325, § 3; 1874, c. 372, § 35. Pub. Sts. c. 112, § 46. The constitutionality of such legislation has not been brought into direct controversy before this court, but indirectly it has been recognized. Kittredge v. North Brookfield, 138 Mass. 286. Commonwealth v. Williamstown, 156 Mass. 70. And elsewhere it has been established by such a weight of judicial authority that we regard it as settled. Olcott v. Supervisors, 16 Wall. 678, 694-696. Railroad Co. v. Otoe County, 16 Wall. 667. Pine Grove Township v. Talcott, 19 Wall. 666. Dillon, Mun. Corp. (4th ed.) §§ 153-158, 508. The building of the subway for the carriage of such passengers as pay the regular fare is therefore for a public use; and it is within the constitutional power of the Legislature to order or sanction taxation for it.
The plaintiffs also contend that the statute is in violation of the Fourteenth Amendment to the Constitution of the United States. This objection is not dwelt upon in argument, and it is enough to say that we think it is unfounded.
In respect to the matter of providing compensation, the stress of the argument of the plaintiffs rests on the contention that there is no provision for compensation for so much of the Common and Public Garden as may be taken. It is urged that these were dedicated to the use and enjoyment of the inhabitants of the town long before the city charter was granted, and that they are held by the city in trust, to secure and promote such use; that the city, as trustee for these purposes, is entitled to compensation if any part of either is taken ; and that the fact that the city is the party to pay, as well as to receive, does not affect this argument, because the city acts in two different capacities.
If we assume that the plaintiffs are entitled to be heard on this branch of the argument, it is well settled that land already appropriated to one public use may be taken by authority or direction of the Legislature for another public use. Old Colony Railroad v. Framingham Water Co. 153 Mass. 561. We do not need to go into any nice consideration of the precise capacity, interest, or duty of the city in caring for the Common or Public Garden, because both the Legislature and the city have consented to such new use of both as may be included within the terms of the statute. If the right to their use is in the inhabitants of the city, their vote accepting the act binds them. If it is in the public at large, as distinguished from the inhabitants of the city, the interests of the public are under the protection of the Legislature. The plaintiffs, in their capacity of taxpaying citizens of Boston, or as voters, or as a constituent part of the public at large, can assert no right to the continued use of the Common or of the Public Garden, as public parks, or to have compensation paid for the surrender of such use, against the combined
It is also contended by the plaintiffs that, if St. 1894, c. 548, bears such a construction as to allow the Transit Commission to enter the Public Garden with the subway, the statute is unconstitutional, because it impairs the obligation of a contract between the Commonwealth and the city. This supposed contract is found in St. 1859, c. 210, § 3, which provided that the commissioners on the Back Bay should fill up and complete, at the expense of the Commonwealth, so much of Arlington Street as remained to be completed, and the strip of land easterly of said street which bad theretofore been released by the Commonwealth to the city, and, further, that “ no building shall hereafter be erected between Arlington and Charles Streets, except such as are expedient for horticultural purposes.” It is argued that this is a contract that the Commonwealth would not erect a building there, and that the subway, as constructed, is a building, and, if it is authorized by St. 1894, c. 548, then that the statute is a violation of said contract. The short answer to this argument is that the inhabitants of the city have accepted St. 1894, e. 548, and so have consented to whatever is contained therein. Contracts may be waived by the parties to them. If this was a contract, the city was a party to it, and might waive it.
The plaintiffs also contend that the statute is invalid because the work to be done under it will increase the debt of the city much beyond the limit of municipal indebtedness fixed by St. 1885, c. 178, § 2. But the same authority which fixed that limit may change it; and § 37, which requires the treasurer of the city to issue bonds, also provides that this debt shall not be included in determining the limit of indebtedness. Similar exceptions have been very numerous in the legislation of the last ten years. See Blue Book for 1895, p. 805. There is no averment in the bill that the limit of indebtedness as thus ex
It is also argued by the plaintiffs that the statute does not authorize any entry upon the Public Garden, that at any rate it does not authorize the erection of a building thereon, and that the subway as constructed there is a building, which is in violation of Pub. Sts. c. 54, §§ 16, 17. -
In determining whether an entry upon the Public Garden is authorized, the court will take notice of the situation of the streets and squares and public grounds. The Boylston Street Mall upon the southerly side of the Common extends westerly along the line of Boylston Street, from Tremont Street to Charles Street, which last named street separates the Common from the Public Garden, and Park Square is a space open for travel south of Boylston Street and bounding thereon, and is in part opposite to the southerly end of Charles Street, where it joins Boylston Street at right angles. Columbus Avenue opens into Park Square from the southwest.
The St. of 1894, c. 548, § 25, authorizes the Transit Commission to construct a subway or subways of sufficient size for four railway tracks, with approaches, entrances, sidings, stations, and connections therefor, and for the running of railway cars thereon, through and under Tremont Street and the adjoining- mall of Boston Common, etc. Section 27 authorizes the commission also to “ construct subways, to be used for the same purposes as said other subways, but which may be made of sufficient width for two tracks only, as follows: Prom Tremont Street through and under Boylston Street and the adjoining mall of Boston Common, or other public or private lands adjoining said street, to a point on or near Boylston Street where a suitable connection with surface tracks may be made; from Boylston Street through and under Park Square and Columbus Avenue, or other lands adjoining said square and avenue, to a point on or near Columbus Avenue, where a suitable connection with surface tracks may be made, and from Tremont Street through and under Park Street,” etc. Section 29 provides that “ Said commission may locate and construct said subways, tunnels, approaches, tracks, sidings, stations, entrances, and connections where it deems best within the limits aforesaid, . . . but shall not permanently occupy above
Having reference to the locality, it thus appears that it was probably contemplated that the subway should remain below the surface of the ground in Park Square, and on the Common at the corner of Boylston and Charles Streets; that is, that in going west from Tremont Street it should be under ground till after leaving the Common, and that it should be built through and under Boylston Street and the adjoining mall of Boston Common, or other public or private lands adjoining said street, to a point on or near Boylston Street, where a suitable connection with surface tracks might be made. Since a connection with surface tracks is to be made on or near Boylston Street, and since no such connection can be made east of Charles Street without getting above ground, a right is implied to emerge from under ground west of Charles Street, and to continue the subway for that purpose as far as is necessary, in order to make a suitable connection with surface tracks, but no farther; and, so far as is necessary for that purpose, to enter upon the Public Garden, that being public ground adjoining Boylston Street. The plaintiffs do not aver that the present construction of the subway extends farther upon the Public Garden than is necessary in order to emerge from under ground immediately west of Charles Street, and to make a suitable connection with surface tracks at a point as near as is practicable. If the fact is so, it
It is further argued for the plaintiffs that the subway, as constructed on the Public Garden, is a building, and that it is in violation of the provision of the Pub. Sts. c. 54, § 16, that “no building exceeding six hundred square feet in area upon the ground shall be erected in or upon a common or park dedicated to the use of the public, without leave of the General Court.” The manner of the construction of the subway is set forth, and it is averred that it is a building; but it is not averred in the bill, nor was it suggested in the arguments, that the subway as built is unnecessary or unsuitable or unreasonable in its form or structure, if a subway was to be built at all. The permission of the Legislature to build a subway such as is adapted for the uses and purposes described in § 25 of the statute of 1894, by implication authorizes such a structure as is necessary and reasonable for those purposes, and, in the absence of any averment to the contrary, we must assume the present structure to be within this implied authority; and therefore, if the subway is a building, the leave of the General Court which is required by Pub. Sts. c. 54, § 16, is given, by the giving of authority to enter with the subway upon the Public Garden for a short distance west of Charles Street.
The suggestion is also made that the building of the subway in the Public Garden is in violation of Pub. Sts. c. 54, § 13, providing that “ No highway, town way, street, turnpike, canal, railroad, or street railway shall be laid out or constructed over a common or park dedicated to the use of thq public, or appropriated to such use without interruption for the period of twenty years, . . . unless with the consent of the inhabitants of the city or town, after public notice, given in the manner provided in cases of the location and alteration of highways.” But the Legislature might, and by St. 1894, c. 548, did authorize the subway to extend upon the Public Garden as above explained, and in § 40 it was provided that the Transit Commission should not begin work until the act should be accepted by a majority of
According to the terms of the report, the entry must be,
Bill dismissed.
Concurrence Opinion
I concur with the opinion of the court, except that I think it was not the intention of St. 1894, c. 548, and of St. 1895, c. 440, that any part of the subways should be constructed in the Public Garden. The use to be made of Boston Common in the construction of the subways is very carefully provided for in § 29 of the St. of 1894, and in' § 3 of the St. of 1895, but not a word is said concerning the Public Garden in either statute. Considering the very careful provisions made in the statutes concerning the use of the Common for subways, it is improbable that the Legislature would not have made equally careful provisions concerning the use of the Garden if it had supposed that the commissioners could use the Garden for the purposes of the subways, or could construct a subway in or under it. I think that the intention of the Legislature was that the connection of the subway with the surface tracks of the railway on Boylston Street should be made at or near the corner of the Common bounded by Charles and Boylston Streets, and that the incline of the subway for these tracks should begin there. By § 25 of the St. of 1894, the principal subway was to begin at “a point or points within one thousand feet of the junction of Tremont Street and Shawmut Avenue,” and was to continue “ through and under Tremont Street and the adjoining mall of Boston Common or other public or private lands adjoining or near said street,” to Scollay Square, etc. By § 27, subways to be connected with the principal subway might be constructed for the use of the cars which run along Columbus Avenue through Park Square and those which run along Boylston Street. At the time of the passage of these statutes, at the junction of Charles and Boylston Streets and Park Square the surface tracks of the railways were connected with one another. No provision was made by the statutes whereby
The report of the presiding justice states that “ on the admission of the plaintiffs that they did not rely on the allegation in the bill as to extending the subway from opposite Church Street to Arlington Street, in view of the statement which was made by the defendants that there was no intention on their part to do so, I sustained the demurrer,” etc. The work actually done by the commissioners in the Public Garden perhaps indicated an intention on their part, not of reaching the surface 'tracks on Boylston Street by the nearest practicable approach to the subway as it was built under Charles Street, but of deflecting the surface tracks on Boylston Street, at its junction with Arlington Street, to the southwesterly side of the Garden, and of laying tracks over the surface of the Garden until they reached the incline of the subway in the Garden. But any such intention, if it ever existed, it seems has been abandoned.
The opinion of the court justifies the construction of the sub