OPINION OF THE JUSTICES TO THE SENATE

ON March 31, 1910, the following order was passed by the Senate, and on April 5 was transmitted to the Justices of the Supreme Judicial Court. On April 8, 1910, the Justices returned the answer which is subjoined:

Senate, March 31, 1910.

ORDERED , that the opinion of the Justices of the Supreme Judicial Court be required by the Senate upon the following important questions of law, namely:

First. Is it within the power of the Legislature, under the circumstances hereinbelow set forth, to authorize, in connection with the widening of a highway or the laying out of a new highway in the city of Boston, the taking by eminent domain, for and in the name of and for the sole use of said city, of real estate in excess of those parcels which in whole or in part are necessary for the highway itself with a view to the subsequent sale by said city of such excess at its full value, subject to restrictions or conditions designed to promote the public purposes hereinafter set forth; provided such taking is necessary to promote duly

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and adequately the commercial and industrial welfare or growth of the municipality in which the way is situated by insuring opportunity for the construction along said highway of buildings comporting with its importance and its use for the purposes to serve which it is laid out and adapted to modern requirements of commerce, trade and industry and especially to the requirements of those forms of business which to a large extent employ teaming, thereby relieving congestion of teaming traffic on streets in the vicinity or at least helping to prevent an increase thereof and so facilitating the transportation of freight and passengers through the section of the city in which the way is located?

Second. If, in addition to the provisions outlined above, an act were to contain provisions similar in character to those in section 6 of chapter 443 of the acts of the year 1904, would the reply to the first question, if in the negative, be modified thereby?

It is to be assumed that the Act is to contain proper provisions as to compensation for damages suffered and is not to contain any provision authorizing the expenditure of public funds for the construction of buildings on land taken; that necessity for the taking is based on finding that owing to the irregularity of the streets and the smallness of the lots in that portion of the city through which such highway would be laid out, areas of size and shape suitable for the construction along such highway of warehouses, mercantile and manufacturing establishments and other buildings, comporting with its importance and its use for the purposes to serve which it is laid out, cannot be secured through the exercise of eminent domain as now limited by law and could seldom if ever be secured by combination of estates through voluntary sale and purchase and then only after long delays injurious to the public welfare, and also that such takings would not be for any private use but solely for the public benefit as above set forth.

The foregoing questions are of present importance because under the report of the Joint Board on Metropolitan Improvements, created under chapter 113 of the Resolves of the Legislature of the year 1909, which report is printed as Senate document No. 27, a copy of which is transmitted herewith, the

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Legislature has before it the problem as to whether it is expedient to authorize the laying out of a highway through the city of Boston between Atlantic Avenue and Causeway Street, and also as to whether in connection with such laying out it is expedient and under the Constitution permissible to authorize a taking, for and in the name of and for the sole use of said city as aforesaid, of such additional land as in the opinion of the Legislature or its duly authorized agents may be deemed necessary in the interest of the public as above set forth.

To the Honorable Senate of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, in compliance with the Honorable Senate's requirement of our opinion upon the accompanying questions, respectfully answer as follows:

These questions differ but little in substance from those which were answered at length a short time ago in our opinion to the House of Representatives, which has since been published, and to which we ask leave to refer. The statement of the provisions of the proposed statute is very general, and we can give only general answers.

The suggestion is that the city, by right of eminent domain, take land outside the highway and pay for it with money raised by taxation. Seemingly, the predominant, if not the only purpose of doing this is to sell the land afterwards to individuals for use in the construction of buildings adapted to modern requirements of commerce, trade and industry. The city might or might not sell the land at a price above its cost, and in this way derive a pecuniary advantage. Presumably the use of the land and buildings by individuals would increase their business and bring them prosperity, and thereby promote the growth of the city and the interests of the public. Such a result might be expected from a variety of other successful enterprises in different kinds of business. The use of money to promote such enterprises is not a public use, within the meaning of the law, but a use bringing benefit to the public only indirectly, through the activity and success of individuals. Under our Constitution money cannot be raised by taxation for such a purpose.

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That teaming may be necessary in carrying on these different kinds of business seems to us to have little bearing on the question whether land along the sides of a street should be taken by the city or left to its owners.

It is of no consequence that the public funds are not to be used for the construction of buildings on the land taken. If the city could constitutionally pay for land for such a use with money from the public treasury, it also could pay for buildings to be erected on the land.

The taking contemplated by the proposed legislation seems to be for purposes for which money received from taxpayers cannot be expended, and for which owners cannot be forced to give up their property, under the decisions in this Commonwealth and in the courts of the United States and of the several States to which reference is made in the opinion already mentioned.

We are asked whether it would make any difference if the proposed statute contained provisions like those of the St. 1904, c. 443, § 6. In our opinion, given to the House of Representatives, we intimated that this statute is constitutional. In our judgment it goes to the very verge of constitutionality. The grounds on which we are inclined to sustain it have little relevancy to the stated purpose of the unusual provisions of the proposed statute. They are, first, that there can be no taking outside the location of the public work, except of a remnant of an estate a part of which is actually required for the laying out, alteration or location of the public work, and then only if the remnant left after taking such part would, from its size or shape, be "unsuited for the erection of suitable and appropriate buildings," — in other words, only when there is a remnant that is too small or too ill shaped to be of any practical value for the use to which valuable land is commonly put; and, secondly, that such a remnant can be taken only upon an adjudication that public convenience and necessity require the taking. Unless it can be said that public convenience and necessity never can require the taking of such a remnant the statute cannot be declared unconstitutional.

While it is plain that a city or town cannot take land outside a public work for speculative purposes, we can conceive of a remnant of an estate, a part of which is necessarily taken, which

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remnant is so small, or of such shape and of so little value that the taking of it in the interest of economy or utility, or in some other public interest, may be fairly incidental and reasonably necessary, in connection with the taking of land for the public work. But this principle is not applicable to a taking for the larger purposes stated in the questions before us.

We answer the questions in the negative.

MARCUS P. KNOWLTON.

JAMES M. MORTON.

JOHN W. HAMMOND.

WILLIAM CALEB LORING.

HENRY K. BRALEY.

HENRY N. SHELDON.

ARTHUR PRENTICE RUGG.