OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.

THE following order was passed by the House of Representatives on February 23,1910, and on the following day was transmitted to the Justices of the Supreme Judicial Court. On March 4, 1910, the Justices returned the answer which is subjoined.

ORDERED, that the opinion of the Justices of the Supreme Judicial Court be required upon the following important question of law:

If the Legislature is of the opinion

(1) That the commercial interests and general prosperity of the inhabitants of the commonwealth, and particularly of the city of Boston, are dependent on the existence in said city of facilities for the transaction of foreign and domestic trade and commerce in a manner suited to the methods of business now in use in the principal cities of other states and in other parts of the world; and that chief among such facilities are the existence of broad and convenient thoroughfares for the transportation of goods and merchandise, and the existence on said thoroughfares of sites adequate in size and means of access (both front and rear) for the construction and use of warehouses, mercantile establishments and other buildings suited

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to the needs of trade and commerce as now carried on in the principal cities of other states and countries;

(2) That although there is, in the interest of said city and its inhabitants, and of the commonwealth at large, an urgent and pressing need for the existence of such facilities in the said city of Boston, no such street now exists in that part of the city where such a street ought to exist in order that trade and commerce, foreign and domestic, may be carried on according to the methods of business now in use in other parts of the world; and that the commercial and industrial interest of said commonwealth and city are injuriously affected, and their growth retarded, by the non-existence of such facilities;

(3) That not only does said city not now possess any such thoroughfare, but, owing to the narrow, nonparallel, and tortuous nature of most of the streets in that portion of said city where such a thoroughfare should exist, and the great number of small sized and irregularly shaped individual estates abutting thereon, the said facilities cannot be furnished by the mere laying out and construction of new thoroughfares or streets, and the sale or lease of such odd parcels or remnants of land as might be left in the hands of the public authorities if said ways were laid out under existing statutes, because the said parcels would not be suitable in size or shape; and

(4) That the said facilities can only be secured by the obliteration in whole or in part of the present lines of individual ownership along any such thoroughfare as may be laid out and constructed, the concentration through the exercise of the power of eminent domain of such abutting estates in parcels of suitable size and shape, the laying out of rear streets, and the development and use of such parcels, under such restrictions as the public authorities may prescribe, for warehouses, mercantile establishments and other buildings suited to the needs of trade and commerce as now carried on in other cities in other parts of the world-

Is it within the constitutional power of the Legislature to authorize the city of Boston, or such other public authority as the Legislature may select, to lay out such a thoroughfare and rear streets, and to take not only the land or easements necessary for the same, but also such quantities of land on either

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side of said thoroughfare or between the same and said rear streets, as may be reasonably necessary for the purposes hereinbefore set out, with a view to the subsequent use by private individuals of so much of the property taken as lies on either side of said thoroughfare, under conveyances, leases, or agreements which shall embody suitable provisions for the construction on said land of buildings suited to the objects and purposes hereinbefore set out, and for the use, management and control of said lands and buildings in such manner as to secure and best promote the public interests and purposes hereinbefore referred to; assuming that the act provides just compensation for all persons sustaining damage by the said takings?

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, have considered the question submitted to us, a copy of which is hereto annexed, and we answer it as follows:

The question relates to the proposed laying out of a thoroughfare or street through a part of the city of Boston. The power of the city, by its officers, to lay out and construct a street or thoroughfare in any place within the city, or of any width or mode of construction, if it is found that the public necessity and convenience require it, is undoubted. Rev. Laws, c. 48, § 1; St. 1891, c. 323; St. 1902, c. 521; St. 1904, c. 443.

The question seems to relate particularly to the power of the Legislature to take and use land outside of the proposed thoroughfare, for purposes which have no direct relation to the construction or use of the street for travel. It is presented upon the hypothesis that the desired facilities for the profitable use of the land can be secured only by the obliteration in whole or in part of the present lines of individual ownership along the street, the concentration, through the exercise of the power of eminent domain, of these abutting estates, in parcels of suitable size and shape, and the development or use of such parcels for warehouses, mercantile establishments and other buildings suited to the demands of trade

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and commerce. The question is whether such land can be taken with a view to the subsequent use of it by private individuals, under conveyances, leases or agreements which shall embody suitable contracts for the construction on the land of buildings adapted to use in domestic and foreign trade and commerce, and for the use, management and control of the lands and buildings in such manner as to secure and promote such trade and commerce. The proposed legislation to which the inquiry relates, necessarily would contemplate action by the city in the procurement, management and control of land along a street within the city, for no other purpose than to induce and promote a use of it by merchants or traders. It would contemplate a taking of private property in the exercise of the right of eminent domain, and an expenditure of money to pay for it and fit it for occupation.

It is a rule of law universally recognized in this country, that neither of these things can be done unless the taking or expenditure is for a public use. This has been stated so often, and the principles on which it is founded have been considered so fully, that it is unnecessary to discuss it or to cite authorities. The only question about which there is a possibility of doubt is whether the proposed use of the land outside of the thoroughfare is a public use. It is plain that a use of the property to obtain the possible income or profit that might inure to the city from the ownership and control of it would not be a public use. The city cannot be authorized to take the property of a private owner for such a purpose, nor can the city tax its inhabitants to obtain money for such a use. It could as well tax them to raise money to carry on any other private business with a hope of gain. Such proceedings are entirely outside the functions of a state or of any subdivision of a state.

It is equally true and indubitable that a management and use of such property to promote the interests of merchants or traders who might occupy it, and to furnish better facilities for doing business and making profits, would not be a public but a private use of the real estate. In Lowell v. Boston, 111 Mass. 454, after the Great Fire of 1872 which destroyed all the buildings in an important part of Boston, it was decided that a statute authorizing

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the city to borrow money on bonds and lend it on mortgages to the owners of land whose buildings had been burned, was unconstitutional. The lending of such money presumably would have promoted building and the transaction of business in the devastated district, but the benefit to the public would not have been direct, but only incidental. The court said, speaking by Mr. Justice Wells at page 461 of 111 Mass. : ‘The promotion of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object. However certain and great the resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental. The incidental advantage to the public, or to the state, which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary. It is the essential character of the direct object of the expenditure which must determine its validity, as justifying a tax, and not the magnitude of the interests to be affected, nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion.’ This statement of the law is clear and accurate. It has governed all later decisions upon kindred questions in this commonwealth. Opinion of the Justices, 155 Mass. 598; Mead v. Acton, 139 Mass. 341. It is the law of the Supreme Court of the United States as laid down in an able and exhaustive opinion by Mr. Justice Miller, in Loan Association v. Topeka, 20 Wall. 655, in which it was held that a statute authorizing a town to issue its bonds in aid of a manufacturing enterprise was invalid. It has been followed by that court in later cases. Parkersburg v. Brown, 106 U. S. 487; Cole v. La Grange, 113 U. S. 1; Missouri Pacific Ry. Co. v. Nebraska, 164 U. S. 403. It has been applied in different forms in a variety of cases in courts all over the United States. Opinion of the Justices, 58 Me. 590; Allen v. Jay, 60 Me. 124; Markley v. Mineral City, 58 Ohio St. 430; State v. Osawkee Township, 14 Kan. 418; Central Branch Union Pacific R. R. v. Smith, 23 Kan. 745; Coates v. Campbell, 37 Minn. 498; Deering & Co. v. Peterson, 75 Minn. 118;

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Minnesota Sugar Co. v. Iverson, 91 Minn. 30; Eufaula v. McNab, 67 Ala. 588; Manning v. Devil's Lake, 13 N. D. 47; Michigan Sugar Co. v. Auditor General, 124 Mich. 674; Deal v. Mississippi County, 107 Mo. 464; Feldman & Co. v. City Council of Charleston, 23 S.C. 57; Sutherland-Innes Co. v. Evart, 86 Fed. 597.

In Attorney General v. Eau Claire, 37 Wis. 400, 436, it was held that a statute authorizing a municipality to build a dam for the purpose of letting water power to manufacturing industries was void. In Mather v. Ottawa, 114 Ill. 659, 666, a similar case, the court said: ‘It may be, and probably is, true that the contemplated improvement of the water power on the Illinois and Fox rivers in the city of Ottawa, if it had been judiciously and properly carried out, might have built up the city and added greatly to its general growth, welfare and prosperity; but the establishment of any kind of manufactures which employed capital and labor within the city might have produced the same result, and yet the city would have had no power to impose taxes to raise money to be devoted to such purposes.’ In Dodge v. Mission Township, 107 Fed. 827, the Circuit Court of Appeals decided that a statute authorizing the levy of a tax for the promotion of the construction of factories to manufacture sorghum cane into sugar was invalid. In dealing with the proposed taking of stock in a great manufacturing enterprise, the court said, in Weismer v. Douglas, 64 N. Y. 91, 103: ‘Any such enterprise tends indirectly to the benefit of every citizen by the increase of general business activity, the greater facility of obtaining employment, the consequent increase of population, the enhancement in value of real estate and its readier sale, and the multiplication of conveniences. But these are not the direct and immediate public uses and purposes to which money taken by tax may be directed.’

Cases which have sustained statutes on the ground that the use for which the money was to be expended was public are clearly distinguishable from the considerations which are presented hypothetically by this question. An illustration is found in the many decisions holding that cities and towns may be permitted to aid in the construction of railroads. A railroad is a great highway for use by the public. Another illustration is

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furnished by the decisions that the establishment of irrigation districts under legislative authority, for the improvement of large areas of arid and worthless land is allowable. Fallbrook Irrigation District v. Bradley, 164 U. S. 112; Talbot v. Hudson, 16 Gray 417, was treated by the court as governed by similar principles.

The decision in Moore v. Sanford, 151 Mass. 285, rests upon the ground that the work done was in a true sense for the promotion of commerce, through its direct and close relation to the improvement of Boston Harbor, in making connections between the great highways used for interstate commerce and the numerous ships that are passing back and forth between Boston and foreign ports. All that was done was held to be fairly incidental to the main purpose of promoting commerce between the United States and distant countries. The improvement of harbors and the construction of public docks, wharves, and possibly of warehouses, to be used under governmental authority as a part of the facilities for the transportation of merchandise in commercial enterprises, and the building of railroads to be used for the same object, may all affect the public so directly as to constitute a public purpose for which money raised by taxation may be expended.

The question before us refers to trade and commerce in connection with the use of land for buildings along the sides of a street through a busy part of Boston. In Webster's International Dictionary commerce is defined as ‘the exchange of merchandise on a large scale between different places or communities.’ Under the Constitution of the United States, Congress is given the exclusive right to legislate for the regulation of interstate or foreign commerce. The use of buildings along such a thoroughfare as is proposed presumably would be chiefly for trade, the buying and selling of goods, and perhaps, to some extent, for the business of manufacturing. We do not think this is commerce, in such a sense that money can be raised by taxation for the promotion of it, as it can be raised for the improvement of a harbor or the construction of a railroad. In reference to the interest of the public in it, it stands no differently from other useful kinds of business.

An affirmative answer to this question would make it possible

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for the city to take the home of a resident near the line of the thoroughfare, or the shop of a humble tradesman, and compel him to give up his property and go elsewhere, for no other reason than that, in the opinion of the authorities of the city, some other use of the land would be more profitable, and therefore would better promote the prosperity of the citizens generally. We know of no case in which the exercise of the right of eminent domain or the expenditure of public money has been justified on such grounds.

A statute of New York authorized a corporation to construct and maintain ‘basins, docks, wharves and piers, and to erect thereon suitable warehouses, mills, furnaces, foundries, factories, shops, and such other buildings as might be necessary and proper for docking, loading and unloading vessels, for the storage of goods and for carrying on generally the business of a dock, warehousing and manufacturing company, and in any and every other proper and suitable way promoting and increasing the facilities for commerce, manufacture, and business generally,’ and to take lands for that purpose. In Matter of Eureka Basin Warehouse & Manufacturing Co., 96 N. Y. 42, 48, 49, the statute was held unconstitutional. The court said: ‘The fact that the use to which the property is intended to be put, or the structure intended to be built thereon, will tend incidentally to benefit the public by offering additional accommodations for business, commerce or manufactures, is not sufficient to bring the case within the operation of the right of eminent domain, so long as the structures are to remain under private ownership and control, and no right to their use or to direct their management is conferred upon the public.’ The court expressly refrained from considering whether, if the authority were to construct ‘a basin and wharves to the use of which the public would be entitled, under regulations to be established by public authority, the use would be a public one,’ and whether the ‘addition to such powers of the right to establish private warehouses, shops, mills or factories, and to carry on the business of a dock, warehousing and manufacturing company’ would invalidate the delegation to the company of the right of eminent domain.

The case of Matter of Mayor of New York, 157 N. Y. 409;

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s. c., 28 App. Div. 143, has little relevancy to the subject before us. In the city of New York the fee of the land in the public streets is in the city when they are laid out in the ordinary way, and is in private ownership when they are ways by dedication. A statute providing for the disposition of the land in connecting streets, which are discontinued in the laying out of a new street, was held constitutional. It was a reasonable provision for the disposition of this land, the fee of which, in most cases, would be in the city, subject to easements of adjacent owners. It was entirely incidental to the main purpose of the statute, and in principle, although unlike it in detail, it was similar to our St. 1904, c. 443.

We answer the question in the negative.

MARCUS P. KNOWLTON.

JAMES M. MORTON.

JOHN W. HAMMOND.

WILLIAM CALEB LORING.

HENRY K. BRALEY.

HENRY N. SHELDON.

ARTHUR PRENTICE RUGG.