If this Act cannot be sustained on this ground, then it seems clear that it impairs a contract, and is therefore prohibited as well by the Constitution of the United States, Art. I. § 10, as by the Constitution of this Commonwealth, Art. IX. § 17. . . .

Upon the whole, then, we have come to the conclusion that the Actof April 15, 1869, is unconstitutional and void. The particular provisions of this Act seem just and reasonable; but they are not features which affect the character of the Act as contrary to the fundamental law the lex legum. We are bound to look at the principle upon which it is based, and its logical and necessary consequences. As it appears to us, it would overthrow the most valuable barriers which are reared against legislative tyranny, and make all property to be held by a most insecure and uncertain tenure. This Act may be but an entering wedge. Its salutary and conservative restrictions may be repealed hereafter without touching its principle, upon which rests the question of its constitutionality, and every man will then hold his ground-rents, - and the same provision may be extended to other kinds of property, -upon the will of a jury in determining for what price he shall be compelled to sell them. Judgment reversed.

AGNEW, J. This case has been argued as if the ground-rent owner had been deprived of his property by a taking for private use, contrary to the Constitution of the State. In my judgment this is not the character of the law it is remedial rather than aggressive. . . .

It does not seek to take the ground-rent from its owner for public or for private use, but simply to transmute an annual sum of money into its equivalent sum of capital, in order that the impolitic, perpetual union of two estates, growing from a single stalk, may be separated for the welfare of the State. Are not the powers of government adequate for this? In thinking and speaking of the power of eminent domain, we are very apt to be controlled in our thoughts by the commonest mode of its exercise, to wit, the taking of land for public use. But this is not its only form. Domain here means dominion, and it is eminent because of its high control. This high power or dominion of the State is not confined to a single mode of exercise, though seldom seen or thought of in others, but is to be found in all those forms grouped under the name of the police power of the State a power exercised for the welfare of the people, and rendered necessary by the circumstances which affect the common good. . . . I think the law can be impugned only on the ground that it impairs the validity of a contract; and to this extent I agree that it is not competent for the legislature to sever the ground-rent from the land to which it is attached by its contract relation as between the parties to the contract and their immediate privies, to the extent that it is in the power of men to create a perpetuity, but no farther. Beyond this, to carry the sanctity of a contract is to make the act of two individuals rise higher than the powers of government and the interests of the State, and to dominate

both the power of the legislature and the rights of the people. It cannot be that the contracts of a past generation are beyond the reach of law for a proper purpose, a purpose not to destroy, but to change, to suit the interests of the State. Otherwise a contract would stand on a higher platform than that of the people to change their form of government. A change of the State constitution would effect nothing, for the contract standing on the higher ground of the Federal Constitution would still claim its protection, and thus descending on unborn generations, would cling like the fatal shirt of Nessus, until escheat or an earthquake should end it. I think, therefore, that the legislature can sever the rent from the land by a fair valuation and payment in money in the case of a ground-rent deed all of whose parties are dead and more than twenty-one years have elapsed since the death of the last survivor. But as these facts do not appear in this bill and answer, the judgment should be reversed.1

LYNCH v. FORBES.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1894.

[37 North Eastern Rep. 437.]

REPORT from Superior Court, Norfolk County; JUSTIN DEWEY, Judge. Case reserved from Supreme Judicial Court, Norfolk County; JAMES M. MORTON, Judge. ́

1 As to a public purpose, see supra, pp. 901-916; infra, pp. 1209-1257.

In Sarannah v. Hancock, 91 Mo. 54 (1886), BLACK, J., for the court, said: "Section 20, Article 2, Constitution of 1875, provides that, whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and, as such, judicially determined, without regard to any legislative assertion that the use is public.' As this is a new section, not found in any of the former constitutions of this State, it may be well to look to the state of the law before its adoption. . . . It will thus be seen that the question whether the use for which the property is about to be taken is a public use, has already been regarded, in this State, as a judicial question, a question which the courts would for themselves decide. Notwithstanding this, it is undeniably true, that the courts were disposed to defer somewhat to a legislative declaration upon the subject. Hence it is said, if the legislature has declared the use, or purpose, to be a public one, its judgment will be respected by the courts, unless the use be palpably private. Dill., Mun. Corp. (3 ed.), sec. 600; Mills on Em. Dom., sec. 10, is to the same effect. Now the constitutional provision of this State, before quoted, makes it the duty of the courts to determine whether the use be a public use, or not, without any regard to a legislative assertion upon the subject. They are freed from the influence of any expressed judgment of the legislature in that behalf, and enjoined to determine the question, wholly regardless of what that branch of the State government asserted upon the subject. The method, however, by which the courts determine whether the use is a public use, remains the same as before. Neither the Constitution, nor any statute, requires that question to be submitted to a jury. The courts will decide the question without the aid of a jury." So Consts. of Col., Miss., and Washington. — ED.

Action by Daniel A. Lynch against Fayette F. Forbes, for trespass to real estate. Defendant justified under Acts 1872, c. 343, and Acts 1888, c. 131, authorizing the town of Brookline to take land for the erection and maintenance of waterworks, and proved that the defendant was the servant and agent of, and acted under the direction of, the selectmen and water board of the town, and was the superintendent and engineer of its water works. The court refused to admit the evidence offered by the plaintiff, or to submit the evidence therein referred to to the jury, but did rule that the question as to whether or not the town had exceeded its authority, and taken more land than it was authorized to take, or any land not within the authority given by said Acts, could not be tested in this suit; that the defendant had shown that the town had conformed to the formal requirements of the statute as to method of taking land, and that defendant's justification was complete, and directed a verdict for the defendant, and, at request of the parties, reported the case to the Supreme Judicial Court for determination. Judgment on verdict for defendant.

Bill in equity by Daniel A. Lynch against the town of Brookline, praying that the acts of the town in taking plaintiff's land be decreed to be void, and for other relief. The case was reserved, at the request of the parties, for the full court, upon the bill and demurrer. Bill dismissed.

Geo. Fred Williams and G. W. Anderson, for plaintiff. M. & C. A. Williams, for defendant.

MORTON, J. The principal questions involved in these two cases are the same, and, by agreement of parties, they were argued, and are to be considered, together. The plaintiff contends, in both cases, that the taking was unlawful; and, at the trial of the case in trespass, he offered to show that prior to the taking in question the town had taken, all the land that it needed, and that this was not suitable and was not necessary, useful, or proper, for any of the purposes named in the Acts under which it was taken. The plaintiff concedes, what is well settled, that the question whether a necessity exists for the taking of private property for a public use is a legislative, and not a judicial, one. He does not deny that the taking of land for waterworks and a water supply for the general benefit of the inhabitants of a city or town is a taking for a public use; but he contends that where, as here, the authority is given "to take . . . any land or real estate necessary," etc., the question of necessity, so far as it relates to the land actually taken, is one of fact, to be settled by the court or jury. Such has not been deemed to be the law in this State, though it is said, in a work of established authority, that the Constitutions of some of the States require it to be done. Lund v. New Bedford, 121 Mass. 286; Eastern R. Co. v. Boston & M. R. Co., 111 Mass. 125; Dorgan v. Boston, 12 Allen, 223; Talbot v. Hudson, 16 Gray, 417; Cooley, Const. Lim. § 538, note. There is no constitutional right on the part of the landowners, in this State, to have the question of the necessity or expe

diency of the taking in any particular instance submitted to a court or jury. Holt v. Somerville, 127 Mass. 411. In the absence of any provision in the statutes submitting the matter to a court or jury, the decision of the question lies with the body or individuals to whom the State has delegated the authority to take. They have the same power as the State, acting through any regularly constituted authority, would have. Fall River Iron Works v. Old Colony & F. R. Co., 5 Allen, 226; People v. Smith, 21 N. Y. 597; Boom Co. v. Patterson, 98 U. S. 406; Railway Co. v. Brown, 9 H. L. Cas. 246; Lewis v. Board, 40 Ch. Div. 55; Cooley, Const. Lim. § 538. See Lewis, Em. Dom. § 238, note, for collection of cases. Of course, neither the State nor its delegates can take, under the guise of eminent domain, the property of A. for the purpose of conveying it to B., or for a purpose clearly in excess of, or at variance with, the powers granted. No question of good faith, however, arises here, and the purpose for which the land was taken is within the scope of the Acts authorizing it. The testimony that was offered was therefore rightly excluded, as was also that offered for the purpose of showing that the town was obtaining water from land taken in February, 1889, and that a part, at least, of the water thus taken did not come from the river by percolation. The validity of the taking now in question does not depend on the conduct of the town in regard to another and an earlier taking.

The result is that in the first case the entry must be, "Judgment on the verdict," and, in the second, "Bill dismissed, with costs; and it is so ordered.

IN Cary Library v. Bliss et al., 151 Mass. 364 (1890), the town of Lexington, in accepting certain propositions from Mrs. Maria Cary for endowing a free public library upon certain terms, if it should be established by that town, proceeded to establish the library, and the trustees received certain gifts from her and other persons for the benefit of the institution. Several years afterwards, and after Mrs. Cary's death, a statute was passed purporting to incorporate a new body (the plaintiff), for carrying out the same purposes, with the assent of the town of Lexington, giving it power "to take and hold . . . the funds and property now held by the trustees of Cary Library," &c. The statute went on to provide that" any person sustaining damages by such taking may have his damages assessed," &c. After holding this statute unconstitutional, as impairing the obligation of contracts, the court (KNOWLTON, J.) said: "As if apprehensive that the statute, in the parts already considered, was in conflict with the Constitution, the framers of the Act embodied, in it a provision for taking the property under the right of eminent domain. Of this property, fifteen hundred dollars was money deposited in a savings bank; and there were two promissory notes of the town of Lexington, amounting to eleven thousand dollars, bearing interest, and payable to the treasurer of the board of trustees.

Property can be taken in this way only in the exercise of the paramount right of the government, founded on a public necessity. The question has been somewhat considered whether that necessity can ever extend to the taking of money. In Burnett v. Sacramento, 12 Cal. 76, Mr. Justice Field, now of the Supreme Court of the United States, says: Money is not that species of property which the sovereign authority can authorize to be taken in the exercise of its right of eminent domain. That right can be exercised only with reference to other property than money, for the property taken is to be the subject of compensation in money itself, and the general doctrine of the authorities of the present day is, that the compensation must be either made, or a fund provided for it in advance.'

"In Cooley on Constitutional Limitations (4th ed.) 656, a similar opinion is expressed, and language to the same effect is found in People v. Brooklyn, 4 N. Y. 419, 424. There may be a great public exigency, as in time of war, which will authorize the government to take money in the exercise of this right. Mitchell v. Harmony, 13 How. 115, 128; Williams v. Wilkerman, 44 Misso. 484; Yost v. Stout, 4 Cold. 205. But it cannot truly be said that the taking of money by a private corporation, created to administer a public charity, is a taking of property for public use. The money taken must be paid ́ for in money. It cannot be taken unless it is paid for in advance, or sufficient provision is made for immediate payment, which provision must be in money or in that which is deemed its equivalent. There can be no necessity for such a taking. In its nature it is not a taking for a public use. There can be a taking for a public use under this power only when, in the nature of the case, there is or may be, a public necessity for the taking. There cannot be such a necessity in favor of a private corporation, which must provide money to pay for money. For this reason, we are of opinion that the legislature could not authorize the taking of this property by the petitioner.

"The only statement of the use to which the property is to be put is found in the provision of the St. of 1888, c. 342, § 5, that it is 'to be held and applied by the corporation in the same manner as if held by said trustees.' The question arises, whether taking property from one party, who holds it for a public use, by another, to hold it in the same manner for precisely the same public use, can be authorized under the Constitution. Can such a taking be founded on a public necessity? It is unlike taking for a public use property which is already devoted to a different public use. There may be a necessity for that. In the first case, the property is already appropriated to a public use as completely in every particular as it is to be. Can the taking be found to be for the purpose which must exist to give it validity? In every case it is a judicial question whether the taking is of such a nature that it is or may be founded on a public necessity. If it is of that nature, it is for the legislature to say whether in a particular case the necessity exists. We are of opinion that the proceeding authorized