So far as the federal Constitution is concerned, a state may
authorize the taking of possession of property for a public use
prior to any payment therefor, or even the determination of the
amount of compensation, providing adequate provision is made for
such compensation.
The statute of Massachusetts of May 23, 1898, providing that no
building should be erected within certain limits in the City of
Boston of over a certain height and also providing that any person
owning or interested in any building then in course of construction
who was damaged thereby might recover damages in an action
commenced within two years from the passage of the act against the
City of Boston for the actual damages sustained by them in the cost
of materials and rearrangement of the "design or construction of
the buildings" provides a direct and appropriate means of
ascertaining and enforcing the amount of such damages, and for
their payment by the City of Boston in regard to the solvency
whereof no question is raised, and such statute is not in conflict
with the federal Constitution.
On May 23, 1898, the Legislature of Massachusetts passed the
following act:
"SEC. 1. Any building now being built, or hereafter to be built,
rebuilt, or altered in the City of Boston upon any land abutting on
St. James Avenue, between Clarendon Street and Dartmouth Street or
upon land at the corner of Dartmouth Street and Huntington Avenue,
now occupied by the Pierce Building, so-called, or upon land
abutting on Dartmouth Street, now occupied by the Boston Public
Library Building, or upon land at the corner of Dartmouth Street
and Boylston Street, now occupied by the New Old South Church
Building, may be completed, built, rebuilt, or altered to the
height of ninety feet, and no more, and upon any land or lands
abutting on Boylston Street, between Dartmouth Street and Clarendon
Street, may be completed, built, rebuilt, or altered to the height
of one hundred feet, and no more:
Provided, however, That
there may be
Page 188 U. S. 492
erected on any such building, above the limits hereinbefore
prescribed, such steeples, towers, domes, sculptured ornaments and
chimneys as the board of park commissioners of said city may
approve."
"SEC. 2. The provisions of chapter three hundred and thirteen of
the acts of the year eighteen hundred and ninety-six, and of
chapter three hundred and seventy-nine of the acts of the year
1897, so far as they limit the height of buildings, shall not be
construed to apply to the territory specified and restricted in
section one of this act."
"SEC. 3. The owner of, or any person having an interest in, any
building upon any land described in section one of this act, the
construction whereof was begun, but not completed, before the
fourteenth day of January in the current year, who suffers damage
under the provisions of this act by reason or in consequence of
having planned and begun such construction, or made contracts
therefor, for a height exceeding that limited by section one of
this act for the locality where said construction has been begun,
may recover damages from the City of Boston for material bought or
actually contracted for, and the use of which is prevented by the
provisions of this act, for the excess of cost of material bought
or actually contracted for over that which would be necessary for
such building if not exceeding in height the limit prescribed for
that locality by section one of this act, less the value of such
materials as are not required on account of the limitations
resulting from the provisions of this act, and the actual cost or
expense of any rearrangement of the design or construction of such
building made necessary by this act, by proceedings begun within
two years of the passage of this act, and in the manner prescribed
by law for obtaining payment for damages sustained by any person
whose land is taken in the laying out of a highway in said
city."
"SEC. 4. Any person sustaining damage or loss in his property by
reason of the limit of the height of buildings provided for in this
act may recover such damage or loss from the City of Boston by
proceedings begun within three years of the passage of this act,
and in the manner prescribed by law for obtaining payment for
damages sustained by any person whose
Page 188 U. S. 493
land is taken in the laying out of a highway in said city."
Acts and Resolves of Massachusetts, 1898, c. 452.
The building of plaintiff in error comes within the scope of
this statute, and on September 17, 1898, the Attorney General of
Massachusetts filed an information in the Supreme Judicial Court of
that state to enjoin the maintenance of that part of the building
above the ninety-foot line. To this information the defendants
pleaded, among other things, that
"the statute, . . . in its application to the defendants, . . .
is in violation of the second clause of Section 1 of the Fourteenth
Amendment, and of other provisions of the Constitution of the
United States."
Pending this proceeding, the defendants commenced actions
against the City of Boston for damages, as provided in sections 3
and 4 of the statute. The city filed a general denial. The
defendants then moved that the Attorney General be required to join
the city as a party defendant in order that the question of the
city's liability to damages might be conclusively determined in
this proceeding, or, in default of such joinder, that it be stayed
until the city's liability could be conclusively determined. This
motion was denied, and the defendants appealed from the denial
thereof. The facts were agreed upon, and the case reserved by the
presiding justice for the consideration of the full court. Upon
March 13, 1901, a decree was entered sustaining the contention of
the Attorney General and directing a removal of those parts of the
building above the height of ninety feet, without prejudice,
however, to the right of defendants under the statute to maintain
such steeples, towers, etc., as the Board of Park Commissioners of
the City of Boston should approve. 174 Mass. 476. To review such
judgment, this writ of error was sued out.
Page 188 U. S. 502
MR. JUSTICE BREWER delivered the opinion of the Court.
Counsel for plaintiffs in error state in their brief that
"the single question in the case is, substantially, whether it
is consistent with due process of law for a court to decree the
actual destruction of property under a statute of eminent domain by
which the state takes certain rights in it, making provision for
compensation only by giving the owners a right of action against a
city for their damages, while the city, which had no part in the
taking, denies the validity of the provision for compensation upon
which the validity of the taking depends, and refuses to pay any
damages unless and until it is held liable therefor in another
proceeding, which is yet undetermined."
That the statute does not conflict with the constitution of the
state is for this Court settled by the decision of the state court.
Merchants' Bank v. Pennsylvania, 167 U.
S. 461, and cases cited;
Rasmussen v. Idaho,
181 U. S. 198. The
constitutional provision of the state, and that found in the Fifth
Amendment to the federal Constitution, are substantially alike. The
Massachusetts provision reads:
"Whenever the public exigencies require that the property of any
individual should be appropriated to public uses, he shall receive
a reasonable compensation therefor."
Declaration of Rights, Art. X. And the Fifth Amendment says:
"Nor shall private property be taken for public use without just
compensation."
So far as the federal Constitution is concerned, it is settled
by repeated decisions that a state may authorize the taking of
possession prior to any payment, or even final determination of the
amount of compensation. In
Backus v. Ft. Street Union Depot
Company, 169 U. S. 557,
169 U. S. 568,
we said:
"Is it beyond the power of a state to authorize in condemnation
cases the taking of possession prior to the final determination
Page 188 U. S. 503
of the amount of compensation and payment thereof? This question
is fully answered by the opinions of this Court in
Cherokee
Nation v. Southern Kansas Railway, 135 U. S.
641, and
Sweet v. Rechel, 159 U. S.
380. There can be no doubt that, if adequate provision
for compensation is made, authority may be granted for taking
possession pending inquiry as to the amount which must be paid and
before any final determination thereof."
We pass, therefore, to inquire as to the adequacy of the
provision for compensation. No question is made as to the general
solvency of the City of Boston. Although in the agreed facts it is
stated that the city has no
"moneys specially appropriated to any such purpose as that
prescribed by the damage clauses of this statute, nor any express
statutory power or authority to raise, appropriate, or pay money
for such a purpose,"
yet, as this statute provides that
"any person sustaining damage . . . may recover such damage . .
. in the manner prescribed by law for obtaining payment for damages
by any person whose land is taken in the laying out of a
highway,"
and as there is a general statute making suitable provision for
such a recovery, the question of solvency does not seem to be
material.
It is true that the city is not a party to the proceedings, and
therefore not estopped to deny its liability by reason of having
sought and obtained the condemnation. In that respect, the statute
differs from ordinary statutes giving to corporations, municipal or
private, the right to condemn. While there is no technical estoppel
by judicial proceeding, yet the state supreme court adjudged the
validity of the statute not merely in respect to the taking, but
also in respect to the liability of the city. In its opinion it
said (p. 481):
"It may be contended that, if the legislature could take this
right for the use of the public, it could not require the City of
Boston to make compensation for it, but should have provided for
the payment of damages from the treasury of the commonwealth. This
contention would limit too strictly the power of the legislature in
the distribution of public burdens. Very wide discretion is left
with the lawmaking power in this particular. The legislature may
change the political subdivisions
Page 188 U. S. 504
of the commonwealth by creating, changing, or abolishing
particular cities, towns, or counties. It may require any of them
to bear such share of the public burdens as it deems just and
equitable. This right has been exercised in a great variety of
ways.
Kingman, Petitioner, 153 Mass. 566, and cases and
statutes there cited."
And this decision is in harmony with prior adjudications of that
court.
It is also true that the proceeding here taken is in many
respects novel. Perhaps no case like it has arisen in this country.
But, as the court of last resort of Massachusetts has treated it as
a condemnation, a taking for the public use, it is a taking for the
use primarily of the citizens of Boston, and comes within the
repeated rulings of the state court in respect to the competency of
the legislature to cast the burden thereof upon the city. And
while, as stated, there may be no technical estoppel by judgment,
yet, in view of these rulings, it would be going too far to hold
that it is essential that there be a judgment establishing the
liability of the city before it can be affirmed that adequate
provision for compensation has been made.
That there may be novel questions in respect to the measure of
damage, the value of the property that is taken, does not avoid the
fact that a solvent debtor -- one whose solvency is not liable to
go up or down like that of an individual, but is of substantial
permanence -- is provided, as well as a direct and appropriate
means of ascertaining and enforcing the amount of all such damage.
In view, therefore, of the prior decisions of the supreme court of
the state as well as that in this case, we are of opinion that it
cannot be held that there was a failure to make adequate provision
for the payment of the damages sustained by the taking.
We have not considered any question of purely state cognizance,
nor have we stopped to comment on the suggestion made by the
supreme court of the state that this statute might be sustained as
an exercise of the police power, or, if it could be so sustained,
that it could be enforced without any provision for compensation.
Considering simply the distinct
Page 188 U. S. 505
proposition so ably presented by the counsel for plaintiffs in
error, we are of opinion that the statute in question cannot be
adjudged in conflict with the federal Constitution, and therefore
the judgment of the Supreme Judicial Court of Massachusetts is
Affirmed.
