Prince v. Crocker

166 Mass. 347

• Court: Massachusetts Supreme Judicial Court
• Decided: June 16, 1896
• Status: Published

Opinions

Allen, J.

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) that there had been such an acceptance; and it is then contended that the people at the polls are not the tribunal to determine what debts shall be incurred by or in behalf of the city, because, by a law which stands unrepealed, that question is to be determined by both branches of the city government, and a two thirds vote of each branch is required to authorize the incurring of a debt by the city. As the fact of the acceptance of the statute has significance, in certain aspects of the questions presented, we will state at the outset that, in the absence of any averment to the contrary, we assume that such a vote of accept" anee was duly passed. This is a fact of which the court should take judicial notice. Andrews v. Knox County, 70 Ill. 65. State v. Swift, 69 Ind. 505. Rauch v. Commonwealth, 78 Penn. St. 490. Moreover, it is very doubtful, to say the least, whether the plaintiffs, as taxpaying inhabitants, have any standing to maintain the bill in their own names, except upon the assumption that the vote to accept the statute is virtually a vote to raise or to pay money, within the meaning of Pub. Sts. c. 27, § 129. In this Commonwealth, contrary to what has been held in some other jurisdictions, a suit like the present has been considered not to fall within the general jurisdiction of a court of equity. Baldwin v. Wilbraham, 140 Mass. 459. Steele v. Municipal Signal Co. 160 Mass. 36. Carlton v. Salem, 103 Mass. 141. By Pub. Sts. c. 27, § 129, when a town votes to raise by taxation or pledge of its credit, or to pay from its treasury, any money for a purpose other than those for which it has the legal right and power, it may be restrained by this court upon the suit or petition of not less than ten taxable inhabitants. The case of Frost v. Belmont, 6 Allen, 152, was brought under St. 1847, c. 37, which was like Pub. Sts. c. 27, § 129. The case of Lowell v. Boston, 111 Mass. 454, was also brought under the similar provision found in Gen. Sts. c. 18, § 79. No point was there made that under the statute the petitioners had no right to be heard. It is contended, however, by the present defendants, that the plaintiffs have no standing to maintain this bill; but, in favor of affording a remedy against a use of public money which is supposed to be illegal, we think a somewhat liberal construction should be given, and that the vote to accept the statute is sufficient to give the plaintiffs a standing in court under Pub. Sts. c. 27, § 129.

The two principal grounds upon which the plaintiffs contend that St. 1894, c. 548, as a whole, is invalid, are that it imposes a heavy debt upon the city, and to a certain extent takes away from the city the control of its streets. The plaintiffs deny the power of the Legislature to do either of these things without the authority of the city council, or the consent of the tax-paying citizens of the city. It has, however, been established, by a great weight of usage and authority, that the Legislature may impose such a duty and burden upon towns and cities without their own consent. We do not deem it necessary to go into an extended discussion of this subject, or to consider what objects may be so special or local in their character as not to come within the general rule. As to roads of all kinds, and bridges and sewers, the doctrine is well established, in this Commonwealth and elsewhere, that the Legislature may prescribe what shall be done, and require cities and towns to bear the expense to such an extent and in such proportions as it may determine. The powers which have been given to cities and towns by the Legislature, by special or by general laws, are in no sense a contract, and do not become vested rights as against the Legislature. Coolidge v. Brookline, 114 Mass. 592, 596, 597. Agawam v. Hampden, 130 Mass. 528, 530. Kingman, petitioner, 153 Mass. 566, 573-576. People v. Morris, 13 Wend. 325. Sloan v. State, 8 Blackf. 361. People v. Flagg, 46 N. Y. 401. Philadelphia v. Field, 58 Penn. St. 320. Pumphrey v. Baltimore, 47 Md. 145. Dillon, Mun. Corp. (4th ed.) §§ 54, 73, 74, 831, and other cases there cited.

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 Legislature required that it should not be laid on the inhabitants of the town, unless two thirds of the voters, at a meeting to be called for the purpose, should assent to its imposition.” The instances where Legislatures have provided that towns or cities or counties might or should bear the whole or a portion of the expense of local improvements in case the qualified voters should assent, and not otherwise, are numberless. In our own statutes, from early times, such legislation has been common. In the Public Statutes now in force, many instances are found enacting that cities and towns may by vote accept the provisions of certain statutes, and thereupon shall be subject to certain duties and burdens. There have been many special laws to the same effect. It cannot be necessary to cite more than a few illustrative instances. Pub. Sts. c. 27, §§ 10-13, 27, 44, 65, 69, 74; c. 28, §§ 3, 22, 23; c. 35, § 4; c. 45, §§ 44, 52; c. 50, §§ 20,22, 25 ; c. 51, § 10 ; c. 80, §§ 8-13. By the Second Amendment to the Constitution, city governments cannot be established except with the consent and on the application of a majority of the • inhabitants of the town present .and voting thereon at a meeting. All of the cities of the Commonwealth have been incorporated under this amendment. Larcom v. Olin, 160 Mass. 102, 104, 108. When the Legislature imposes such a condition, in order to bind a city or town or county to assume a particular burden, it must be complied with; but an assent by vote will give full effect to theb statute, and the city, town, or county will thereupon become bound. Hampshire v. Franklin, 16 Mass. 76, 87, 90. Stone v. Charlestown, 114 Mass. 214. Central Bridge v. Lowell, 15 Gray, 106, 116. St. Joseph Township v. Rogers, 16 Wall. 644, 662, 663. Knox County v. Aspinwall, 21 How. 539. Dillon, Mun. Corp. (4th ed.) §§ 44, 519, 526, 551-553, and cases there cited. It is not material that the work is not put in charge of the street commissioners of the city. The Legislature might provide for doing the work at the expense of the city, but through other agents than those regularly appointed by the city; it might impose liability on the city, incur the expense, and require payment by the city. The acceptance of the act by the city precludes objection on this score, even if such objection would otherwise have been open.

The foregoing considerations apply to the bridge over Charles River, provided for in § 30, as well as to the subway itself.

It is further contended that taxation can only be for a public use; that the term “ public use,” in reference to taxation, has a more restricted meaning than when applied to the taking of land by eminent domain; that the subway will not be a highway, or open and free to be used by the public for driving or walking; that when finished the statute authorizes the Transit Commission virtually to grant a lease of it to any street railway company for fifty years; and that the use of the' subway which is contemplated is not a public use.

' 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.

The plaintiffs further contend that the statute is unconstitutional because it omits to provide for compensation for property taken or injured, and especially for taking part of the Common and Public Garden. But the plaintiffs cannot be heard to object to the constitutionality of the statute on grounds which only affect others than themselves. Hingham & Quincy Bridge v. Norfolk, 6 Allen, 353. Davis v. County Commissioners, 153 Mass. 218, 228. So far as other private owners are concerned, the plaintiffs do not represent them, and have no standing to be heard in their behalf.

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 action of the Legislature in passing the statute, and of the inhabitants of the city in accepting it. Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234. Dillon, Man. Corp. (4th ed.) §§ 599 n., 650-651 a, and cases there cited. Under these circumstances, we need not pursue the questions relating to the title to and interest of the public in public parks, — questions somewhat discussed in Abbott v. Cottage City, 143 Mass. 521, and Attorney General v. Abbott, 154 Mass. 323.

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 extended will be exceeded by the issue of the bonds provided for by St. 1894, c. 548.

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 the surface of the ground for any purpose any part of said Common, except so much of the Tremont and Boylston Street Malls as may be necessary for stairways to stations and coverings therefor.” Section 35 provides that “ Said commission may, on or before the completion of said subways and tunnels, grant locations for tracks, . . . shall order all surface tracks to be removed . . . from Boylston Street between Park Square and Tremont Streets.” By St. 1895, c. 446, § 3, it is provided that “ Ho portion of the Common, with the exception of the malls on Boylston and Tremont Streets, shall be permanently occupied above the surface of the ground for any of the purposes of the subway, except so far as necessary for the suitable ventilation thereof, and no portion of said malls shall be permanently occupied above the surface of the ground except so far as necessary for suitable ventilation, and for shelter and other accommodations at the station entrances and exits.”

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 should have heen averred. It was stated in the argument for the plaintiffs that it had been agreed by counsel that the bill should not be treated as averring an intention to go farther west on the Public Garden than the subway is now built, and the defendants have disclaimed any intention of doing so.

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 the voters of the city. This legislation was a substitute, so far as the subway on the Common and Public Garden is concerned, for the Pub. Sts. c. 54, § 13, and the acceptance of the statute furnished all the consent on the part of the inhabitants that is necessary.

According to the terms of the report, the entry must be,

Bill dismissed.