215 Mass. 371 | Mass. | 1913
The question presented is the constitutionality of St. 1912, c. 715, entitled “An Act to make Salisbury Beach a public reservation and to establish the Salisbury Beach Reservation Commission. ” Its several sections provide for the appointment of a commission and the machinery by which land may be taken, money raised and a public reservation managed. The ground of attack upon its validity is that it authorizes the taking of land for a private rather than a public use. In order to pass intelligently upon its constitutionality in this respect the physical facts to which it is applicable may be considered to ascertain what may be its practical operation. The property which may be taken under the statute is known as Salisbury Beach and consists of sand dunes and beach in the town of Salisbury extending from the New Hampshire line about three and one half miles by the sea to the mouth of the Merrimac River. A street railway has been constructed along the length of the beach. On the ocean side there are cottages for summer occupancy and on the westerly line of the dunes a large number of houses have been built, and hotels, shops, boarding houses, places of amusement and other buildings have been constructed and a summer community has been established, with a system of water and gas pipes, electric lights, sewers and telephones, all of which, including the street railway, were leased by the petitioner or its predecessors in title. Streets were laid out or provided for by agreement with the town, plans were drawn showing the property divided into house lots and many lots were leased to cottage owners and others. The property was owned by the Commoners of Salisbury until 1903, when it passed into private ownership, and finally has come to the petitioner. Since the acquirement of the property by the petitioner many leases have expired and they
The material portions of the act are printed in a footnote.
It is a familiar principle of constitutional law that every presumption is made in favor of the validity of a statute. It is not to be held a violation of the fundamental charter established by the people in their constitution unless so clearly outside the power conferred upon the Legislature as to be free from reasonable doubt in that regard. It must be assumed that the Legislature intended to act within its lawful bounds and this assumption cannot be overthrown unless the statute unmistakably oversteps these bounds by manifest and plain terms. On the other hand when it is clear that the statute transgresses the authority vested in the Legislature by the Constitution, it is the duty of the court, a duty from which they cannot shrink without profaning their oaths of office, to see and to declare the invalidity of the statute. The judicial department of government cannot surrender its judgment respecting the validity of statutes to that of either of the other departments and when the occasion arises must refuse to enforce a statute which does not conform to the requirements of the fundamental law of the land. The statute must be
The establishment and maintenance of public parks and reservations out of moneys raised by taxation and the exercise of the power of eminent domain for their acquirement plainly are within the power of the Legislature. It requires no discussion to demonstrate that this is a public purpose. Nor can it be contended reasonably in view of many of our decisions that the taking of the fee rather than an easement in land to this end is not permissible. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583 and cases cited at 591. The acquirement of beaches by eminent domain and at the public expense for bathing and other purposes of general utility has never been questioned in this Commonwealth. That it is a legitimate exercise of the sovereign power is not open to doubt. See In re Metropolitan Park Commissioners, petitioners, 209 Mass. 381. Looking alone at § 4 of the act now under consideration, the power conferred does not appear to go beyond the right of acquiring and maintaining land and. rights in land for a public park or reservation. But this section must be read in connection with other sections in order to understand the full scope of the act. Section 10 authorizes the commission to “sell or lease any lands or rights in land taken ... by it, which are not needed as a public reservation. ” These words are not restricted as to time. They form a part of the original act and are operative contemporaneously with all its Other provisions. There is nothing to require a determination that by reason of changed conditions land deemed necessary at the time of taking, has become no longer needed. These words in connection with § 4 undertake to enable the commission to take “any or all of the land ” within the designated area and at the same moment to determine that some of the lands thus taken “are not needed” and immediately to proceed to “sell or lease” such lands. Thus there may be an adjudication that lands are needed for the public use which involves a payment for them out of moneys raised by taxation, coupled with a determinatian not to devote some of these lands to the enjoyment of the people at large but to sell or lease them for private occupation.
The construction put by the commission upon the powers conferred by the act as revealed by their conduct is in accordance with this interpretation. It merely indicates the natural meaning of the
The acquisition of land under the power of eminent domain to be devoted to private uses has been recently considered and discussed somewhat at length. It has been said that the exercise of the power of the State, either through taxation or eminent domain, to take land from one person with the intent of handing it over to another person, is not a public purpose and is contrary to basic and essential principles of free government. Opinion of the Justices, 204 Mass. 607. The underlying objection is that the main end of legislation for this purpose is a private utility
The statute in the case at bar differs materially from others where the right to sell portions of real estate taken by eminent domain has been conferred. The metropolitan water act (St. 1895, c. 488, § 11) authorizes the sale of land “ no longer needed for the water works” and the lease of “property not then so needed.” Property acquired for the metropolitan sewerage sys
The taking here is not of a vast extent of wild or unsurveyed land whose agricultural and other possibilities are undiscovered. It is in one of the oldest towns of the State, is relatively small in area, and is a settled community with a large number of cottages and all its characteristics thoroughly capable of easy comprehension. It requires no discussion to distinguish the power conferred by the present statute from that given to the metropolitan park commission and other like officers to construct or lease buildings manifestly in furtherance of the convenient use by the people of the parks and reservation. A shelter or a restaurant or a bath house, to which all have access on equal terms, do not stand on the same basis as a resort to a considerable extent devoted to cottages to be leased to private families, and from which when leased or sold the public must be excluded.
The cases relied upon by the Commonwealth plainly are distinguishable. In Boston v. Talbot, 206 Mass. 82, the dominant
It is impossible to separate the valid from the invalid parts of this statute. The power of the commission to take land is inextricably interwoven with the power to sell and lease land so taken. It cannot be determined how •the Legislature would have dealt with the subject matter if their attention had been directed specifically to the point that land and buildings, including a large number of dwelling Louses, could not be taken for the purpose of lease and sale under the changed conditions of being in the neighborhood of a public reservation and the expense of the undertaking lessened by the revenue to be derived therefrom. Different financial and other questions would have been presented, which might have caused the General Court to have refrained from action or to have enacted a statute of other tenor. Edwards v. Bruorton, 184 Mass. 529. Commonwealth v. Hana, 195 Mass. 262, 267.
We feel constrained to pronounce the statute unconstitutional. It becomes unnecessary to pass upon the other questions raised by the report.
Case remanded to the Land Court for further proceedings in accordance with this opinion.
Section 4 authorizes the commission “to acquire in fee, by purchase, gift or by right of eminent domain, in the name of the Commonwealth, and thereafter to maintain and make available for the inhabitants of the Commonwealth as a public reservation for the use, exercise and recreation of the inhabitants of the Commonwealth, any or all of the land or any or all of the rights in any land in” a specific portion of the town of Salisbury bounding on the Atlantic Ocean and Merrimae River.
“Section 10. Said commission may sell or lease any lands or rights in land taken or acquired by it, which are not needed as a public reservation for the use, exercise and recreation of the inhabitants of the Commonwealth, with or without restrictions as to its use as it may deem advisable, and may make sales of the grass, sand, and other materials in said reservation. The town of Salisbury shall levy, assess, and collect a tax on all buildings and personal estate in said reservation not owned by the Commonwealth in the same manner as if the said reservation had not been created, and shall collect a tax on all land in said reservation not taken, acquired or used by said commission for the purposes of this act.
“Section 11. The town of Salisbury shall have the general charge and supervision of the education of the children resident in the reservation as in the case of other children resident in the said town.”
In the decision of the judge of the Land Court it was stated that “This taking was filed by said Salisbury Beach Reservation Commission under the advice of counsel specially employed by said commission and without the knowledge of the Attorney General.”