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commercial value, by the exploitation of which the cost of reclaiming the remainder may be reduced; and may lease or operate such reserved portions in any manner approved by the governor and council.

SECTION 7. This act shall take effect upon its passage.

The title of the bill recites that it is an act "to provide for protecting the public health and promoting the general welfare," but its provisions clearly contemplate not merely the exercise of the police power of the Commonwealth for the preservation of the public health or safety, since, by its provisions, the exercise is required of the governmental powers of eminent domain and taxation (see §§ 1, 2). Nor is it an exercise of the police power in providing reasonable regulations for the general advantage of the owners of wet or swampy lands. See R. L., c. 195, §§ 1-16; Coomes v. Burt, 22 Pick. 422; Day v. Hurlburt, 11 Met. 321; Sherman v. Tobey, 3 Allen, 7; Wurts v. Hoagland, 114 U. S. 606; Head v. Amoskeag Manfg. Co., 113 U. S. 9. Acts of this character are not designed to accomplish a public purpose and do not involve an exercise either of the power of eminent domain or of the power of taxation. Henry v. Thomas, 119 Mass. 583, 584;. Lowell v. Boston, 111 Mass. 454. It is well established that these latter powers may be invoked only where the purpose to be accomplished is a public purpose. Lowell v. Boston, 111 Mass. 454, 462; Talbot v. Hudson, 16 Gray, 417; Opinion of the Justices, 182 Mass. 605, 607; Opinion of the Justices, 155 Mass. 598, 601.

The first and most important question presented by the several inquiries of the Honorable Senate is whether or not the purpose of the proposed bill is a public purpose. The purpose stated in the title, that of protecting the public health, is not conclusive, for the reason that the public health might well be protected under the police power without recourse either to the power of eminent domain or to the power of taxation, since, if conditions warranted it, the wet lands might well be declared a public nuisance, and so abated at the expense of the persons benefited (see R. L., c. 75, §§ 75-85; Grace v. Board of Health of Newton, 135 Mass. 490), or might be abated under a statute

like R. L., c. 195, §§ 1-16, upon the theory that all owners of contiguous property of this character were common proprietors and could be required to join in the work of reclamation and to pay a reasonable and proportionate part of the expense. It is obvious from a consideration of the bill, moreover, that the taking of lands for the purpose of drainage, the purchase of machinery for their development, and the experimental cultivation to "demonstrate the value thereof for agricultural uses," are not in any sense required for the protection of the public health, and that the primary, if not the only, object of the bill is to secure the reclamation of the lands and their development so far as may be necessary to make them marketable. The purpose of the act, then, may fairly be said to be the acquisition and development of wet lands so as to make them, after development, fit for profitable occupation by the people of the Commonwealth or such of the people as may have opportunity to acquire them.

The exercise of the power of eminent domain in connection with the drainage of wet lands has been sustained. See Coster v. Tide Water Co., 3 C. E. Green, 54, 518; State v. Blake, 7 Vroom, 447; Talbot v. Hudson, 16 Gray, 417. In the latter case the court sustained a statute (St. 1860, c. 211) which provided that a considerable tract of land situated in different towns and held by a large number of owners, which was flooded by reason of a dam maintained by private persons, might be reclaimed by the removal of the dam by commissioners appointed under the act, compensation being paid out of the treasury of the Commonwealth to the persons by whom the dam had been maintained. The court discusses at length whether or not the purpose for which the power of eminent domain was here exercised was a public purpose. Thus, at page 423:

In many cases there can be no difficulty in determining whether an appropriation of property is for a public or private use. If land is taken for a fort, a canal or a highway, it would clearly fall within the first class; if it is transferred from one person to another or to several persons solely for their peculiar benefit and advantage, it would as clearly come within

the second class. But there are intermediate cases where public and private interests are blended together, in which it becomes more difficult to decide within which of the two classes they may be properly said to fall. There is no fixed rule or standard by which such cases can be tried and determined. Each must necessarily depend upon its own peculiar circumstances. In the present case there can be no doubt that every owner of meadow land bordering on these rivers will be directly benefited to a greater or less extent by the reduction of the height of the plaintiffs' dam. The act is therefore in a certain sense for a private use, and enures directly to the individual advantage of such owners. But this is by no means a decisive test of its validity. Many enterprises of the highest public utility are productive of great and immediate benefits to individuals. A railroad or canal may largely enhance the value of private property situated at or near its termini; but it is not for that reason any less a public work, for the construction of which private property may well be taken. We are therefore to look further in to the probable operation and effect of the statute in question, in order to ascertain whether some public interest or benefit may not be likely to accrue from the execution of the power conferred by it upon the defendants. If any such can be found, then we are bound to suppose that the act was passed in order to effect it. We are not to judge of the wisdom or expediency of exercising the power to accomplish the object. The Legislature are the sole and exclusive judges whether the exigency exists which calls on them to exercise their authority to take private property. If a use in its nature public can be subserved by the appropriation of a portion of the plaintiffs' dam in the manner provided by this act, it was clearly within the constitutional authority of the Legislature to take it, and in the absence of any declared purpose we must assume that it was taken for such legitimate and authorized use.

The court, in sustaining the exercise of the power, referred to the statutes providing for the improvement of meadows, swamps and low lands as instances of the exercise of the power of eminent domain for purposes like that in the case at bar (page 428). The analogy, however, was denied in Lowell v. Boston, supra (see page 468), although the case was followed upon the principal question, the court, in Lowell v. Boston, saying (page 470): —

The main question was, whether the relief of an extensive territory of valuable lands, in a thickly settled agricultural region, from the nuisance of flooding by the waters of a stream, caused by a single dam below, con

stituted such an object of public concern as to justify the exercise of the power by removing the dam. The court recognized the difficulty that, so far as the removal of the dam benefited each land owner, it was a private use which would not justify the exercise of that power. But the obstruction in the stream injuriously affected "so large a territory, situated in different towns, and owned by a great number of persons," as to give it the character of a public nuisance, the removal of which "would seem to come fairly within the scope of legislative action." While we do not assent to the suggestions in that opinion, that the general provisions of law for the regulation of mills and the improvement of meadows are based upon the constitutional power to appropriate private property under the right of eminent domain, we accord fully with the judgment rendered and the general principle upon which it is founded.

If the use to which the property is to be put is a public use, the decision of the Legislature as to the necessity which requires it to be taken is conclusive. Talbot v. Hudson, supra; Miller v. Fitchburg, 180 Mass. 32, 37. The question as to whether or not the use is a public one, however, must ultimately be decided by the court. Miller v. Fitchburg, supra, page 37, and cases cited. If the proposed bill benefits no one but the present or prospective owners of the land taken, or if the only benefit is in the profitable development and sale of the lands themselves, the purpose of the statute would not, in my opinion, be a public one. See Opinion of the Justices, 182 Mass. 605, 607; Opinion of the Justices, 155 Mass. 601. If, upon the other hand, the development and distribution for occupation of the lands affected gave relief to a considerable and thickly settled agricultural region, and affected beneficially the community as a whole throughout such region, as well as the individuals who acquired the land itself, it would doubtless be held by the court to be a public purpose which would justify the exercise of the power of eminent domain. As I have stated, the ultimate decision is for the court, but without definite knowledge as to the land which may be affected or the resulting benefits to the public as a whole, I am of opinion that I am not required to hold that the purpose of the act, as gathered from its provisions alone, would necessarily be unconstitutional.

The first question of the Honorable Senate, however, extends to and includes not only the general purpose of the act as stated in sections 1 and 2, but also matters of detail comprehended in other provisions, and I am therefore constrained to call attention to the provisions of section 5, that one-half of any sums received by the Commonwealth, upon disposing of such lands, in excess of the cost of the land plus the cost of reclamation, shall be awarded to the original owner or owners of any such land sold; and to say that in my opinion such provision is clearly unconstitutional. By section 2 it is provided that the State Board of Health, with the approval of the Governor and Council, may take by eminent domain any tract of wet land of two or more adjacent owners, at the assessed valuation thereof, and that any person aggrieved by a taking as aforesaid may have his damages assessed in the manner provided by law with respect to the taking of land for public parks, and that title to the land so taken shall pass to the Commonwealth. It is clear that upon such taking the title passes to the Commonwealth in fee, and the owner, having received compensation under the provisions of section 2, has no further right, title or interest in the land taken, and a payment to him of half of the sum received in excess of the cost and expense of development cannot be considered to be an expenditure of public money for a public purpose, since the Commonwealth receives nothing in return therefor, but would be in the nature of a gratuity. With respect to the specific provision just considered, therefore, I am of opinion that the proposed act is unconstitutional.

In reply to the second question of the Honorable Senate I should say that, assuming that the purpose for which the land is taken and the money appropriated was a public purpose within the principles discussed in considering the first inquiry of the Honorable Senate, the expenditure of $10,000 from the treasury of the Commonwealth and the exemption of the land from taxation, so long as the Commonwealth retains title, would be constitutional.

Replying to the third inquiry of the Honorable Senate in the precise terms of said inquiry, I am of opinion that it is

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