Jeduthun Wellington et al. Petitioners &c., 16 Pick. 87

Shaw C. J. delivered the opinion of the Court. In considering the question, whether the act passed June 5, 1830, providing for the enclosure and appropriation of Cambridge common is a constitutional act, having the force and effect of law, the delicacy and importance of the subject may render it not improper to repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of

an act of legislation passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.

Still however it cannot be doubted, and I believe it is nowhere denied, that in a limited government like ours, acting under a written constitution with numerous and detailed provisions, a constitution which is in itself perpetual and irrepealable except by the people themselves, and which imposes many restraints upon the power of the legislature by express provisions and many others by necessary implication, and where the same constitution has provided for the establishment of a judiciary as a coordinate department of the government, with power in all cases to expound the laws, to declare what has and what has not the force of law, and to apply them to the investigation and adjustment'of the rights, duties, and obligations of citizens, in the actual administration of justice, it is clearly within the power, and sometimes the imperative duty of courts, to declare that a particular enactment is not warranted by the power vested in the legislature, and therefore to the extent, to which it thus exceeds the power of the legislature, it is without efficacy, inoperative, and void.

Perhaps, however, it may be well doubted, whether a formal act of legislation can ever with strict legal propriety be said to be void ; it seems more consistent with the nature of the subject, and the principles applicable to analogous cases, to treat it as voidable. But whether or not a case can be imagined, in which

an act of the legislature can be deemed absolutely void, we think it quite clear, that when such act is alleged to hi; void, on the ground that it exceeds the just limits of legislative power, and thus injuriously affects the rights of others, it is to be deemed void only in respect to those particulars, and as against those persons, whose rights are thus affected.

Prima facie, and upon the face of the act itself, nothing will generally appear to show that the act is not valid; and it is only when some person attempts to resist its operation and calls in the aid of the judicial power, to pronounce it void, as to him, his property, or his rights, that the objection of unconstitutionality can be presented and sustained.

Respect for the legislature, therefore, concurs with well established principles of law, in the conclusion, that such act is not void, but voidable only ; and it follows as a necessary legal inference from this position, that this ground of avoidance can be taken advantage of, by those only who have a right to question the validity of the act, and not by strangers. To this extent only is it necessary to go, in order to secure and protect the rights of all persons, against the unwarranted exercise of legislative power, and to this extent only, therefore, are courts of justice called on to interpose.

Besides, and this is another argument leading to the same result, if a legislative act may or may not be valid according to circumstances, courts are bound by the plainest principles of exposition, as well as by a just deference to the legislature, to presume the existence of those circumstances which will support it and give it validity. For instance, if

an act of the legislature appears on the face of it to be an encroachment on the rights of any persons, but would nevertheless be valid if passed with the consent of those persons, the court is bound to presume that such consent was given.

And this presumption must prevail in favor of the validity of the act, until the contrary is shown, and shown too by a person having an interest in the maintenance of the rights supposed to be thus injuriously affected, and having a right to call for the interposition of the court for their support and protection, and a stranger can have no right to appear and contest the validity of the act upon such a ground. Several objections have been taken to the constitutionality of this act, which deserve consideration. 1.

The first is, that the commonwealth did not own tne soil, and that the legislature had no authority to appropriate the land to public use, without the express consent of tne owners ; and if such consent is not given, the act is of itself illegal and void. This objection, we think, cannot be sustained ; the consent of the owners in such case may be subsequent as well as previous, presumed and tacit, as well as express and proved by some positive act. But whether so or not, the objection cannot be taken by a stranger who has and claims no title or interest in the soil.

It may often happen in a newly settled township or other place, that a qualified appropriation of a portion of the property to certain specified public uses, with a provision for its embellishment and improvement, will enhance the value of the property and confer a great benefit on the owner, a benefit so obvious, that the legislature may think it quite superfluous to wait for the owner’s consent. Shall not his assent be presumed ? Can a stranger treat the act as a nullity and destroy the improvement ?

It is said, that if this act can be sustained, the legislature might appropriate ail the property in the town of Cambridge to public use. Suppose it were so. If the legislature were to provide for laying out walks over all the farms in Cambridge, for levelling, improving, and embellishing such walks, and all the owners of those farms should acquiesce, I know no principle which should authorize a stranger to interfere and treat the law providing for the making and for the protection of these improvements as a nullity.

But it is contended, that if this act is to depend for its validity upon the consent of the town of Cambridge, then such consent must be deemed equivalent to a positive act of the town, appropriating the land to the same uses declared by the act of the legislature, that this would be a breach of the condition of the grant under which the town holds it, and the proprietors of common and undivided lands might enter for condition broken, revest the title in themselves, and thus having become owners, would be in a condition to contest the validity of the act and resist its operation.

Although it is obvious to remark, that this looks to many contingencies and that it is time enough to discuss this question when it is raised by the proprietors, it may tend to a more satisfactory elucida tion of the general question, to give it a passing consideration. The vote of the proprietors in 1769 designates the land as the town commons, and it is probable from the buildings aroumi it, that it had remained open for public use, from the first settlement of the town. By the terms of the grant, this land is to be used as a training field, to lie undivided, and to remain for that use for ever.

To take these clauses separate Iv. It is insisted, that the act of the legislature and the proceedings of the special commissioners under it are contrary to this condition, because the common is thereby divided into several distinct enclosures. We think this implies a misapplication of the term. When this term undivided is used and applied to lands by proprietors of common and undivided lands, it implies land set apart from their general domain, and not subject to partition, and not to be divided, set off and allotted to individual proprietors, to hold in severalty.

The substance of the provision is, that it is to remain common and public. As to the other branc-h of this condition, that it is to be used as a training field, and declaring a forfeiture, if the town should dispose of, grant or appropriate the same to any othei use, it is to be considered what the effect of this condition is, and whether, had the town done the same acts, and made the same improvements, contemplated by the act of the legislature, it would have been a breach of this condition.

By the grant the town became owners of the soil with full power, as such owners, to make any use of the property, which owners of land can make, subject only to the restraint and limitation expressed in the condition. All such limitations and restrictions, especially those which go to create a forfeiture, are to be construed strictly, and not to be extended beyond the plain terms of the clauses in which they are expressed, and the obvious purposes for which they are introduced. Any other construction would impose a useless embarrassment upon the rights of property in the grantee, without benefit’ to the grantor.

It appears to us, construing this grant according to these rules, that the intent of the restriction and condition in this deed was, that the land should remain common and open, in contradistinction to being divided to be held in severalty, and appropriated to private use, and that no disposition or appropriation should be made of it, inconsistent with its use as a training field.

To what various uses, not incompatible with these purposes, the town as owners might appropriate it, it is not necessary here to inquire ; it is sufficient, for all the purposes of this view of the subject, if the use contemplated by the act of the legislature, is not inconsistent with those expressed in the condition of the grant from the proprietors to the town.

And we think upon the best consideration we have been able to give the subject, that the use contemplated, is not inconsistent with those in the condition, and perhaps it is not saying too much to add, that they are in furtherance and promotion of the same object. It is declared by the act to be forever appropriated to puolic use only, as a public park, promenade, and place for military parade, with a strong negative clause, for greater caution, that no part thereof shall on any pretence be appropriated to any purpose of private' use or emolument.

Nor are any of the nowers conferred on the persons named in the act, nor the acts which they are authorized to do, such as will render the place unfit for the purposes of military parade. They are authorized to enclose the grounds with a fence, to level the surface, to plant trees, to lay out and make walks, all being done with the approbation of the selectmen of the town, leaving suitable and convenient avenues for persons passing on foot.

All these improvements would rather increase than diminish the fitness and convenience of the place, as a military parade ; .and if required to be opened for the evolutions of artillery or cavalry, the provision in the act appropriating it generally to public use as a place of military parade, would be a sufficient authority for so using it.

As to the general principle above stated, that the terms of the condition do not restrain the town from such a use of the property, as will be perfectly consistent with the use contemplated by the condition of the grant, and even promotive of its genera] object, it may serve as an illustration to inquire, whether a highway or town road over the land would be a breach of the condition and cause of forfeiture. Roads are not only not incompatible with the purposes of military parade, but are necessary to military operations.

Suppose the town had laid out a town way, or petitioned the proper authorities to lay out a highway over this common, could it be contended that this was appropriating it to a purpose other than that of keeping it undivided and appropriating it for a place of military parade ?

If this were so, the laying out of the Cambridge and Concord Turnpike, the subsequent laying out of a highway by the commissioners, the loss of which these petitioners so much lament, supposing it done, as it probably was, with the consent of the town, was a breach of condition and forfeiture of the land ; nay, the very act which the petitioners are now urging the commissioners to do, if done with the consent of the town, which must be presumed, where the considerations of common convenience and necessity are so obvious and urgent as the petitioners represent them, would subject the town to a forfeiture.

On the whole, on this part of the case, we are of opinion, that the condition in this grant of the proprietors to the town, does not restrain them or expose them to any forfeiture, by consenting to the improvements and appropriations contemplated by the act of June 1830, because they are in no degree inconsistent with the purposes and appropriations, declared in the grant, but rather tend to promote, confirm, and perpetuate the use and appropriation therein contemplated. 2.

It is objected, that there was no adjudication that the laying out of Cambridge common, and the enclosure thereof, were of common convenience and necessity. But the legislature are bound to no particular form. Representing the sovereign authority of the Commonwealth, if the act done is within the scope of their authority, the mode of doing it is optional, and it is sufficient if done in any mode that is intelligible. The act itself is sufficient evidence of the opinion and judgment of the legislature, that the public use contemplated would be of public convenience. 3.

It is objected, that no provision is made in the act for compensation to parties aggrieved for damage done to private property. If there were any force in this objection, in a case where such

an act could affect private property, it can have no effect here, because it contemplated no property not al ready appropriated to public use, it was exclusively the property of the town of Cambridge, and was calculated to enhance the benefit, instead of injuriously affecting the property. 4. Another objection was, that nobody is charged with the duty of keeping this common or the roads around it in repair. This objection, we think, is not sustained in point of fact as to the roads.

The special commissioners were authorized to make alterations in the roads by which the common was then traversed ; that is, they were empowered to discontinue some roads and lay out others, regard being had to the common convenience and necessity. When they had executed this authority and made their return as they did, the roads by them laid out as a substitute for those which crossed the enclosure, became lawful public highways, and the town bécame liable to the duty of supporting them as such.

As to the other branch of the objection, that no provision is made for the preservation and support of the improvements when made, this may be a defect in the act, but cannot affect its validity or constitutionality. 5. Another objection taken and somewhat relied on, was, that the legislature had no power to declare that any portion of territory should be forever appropriated to any one public use, because it had a tendency to encroach upon the acknowledged sovereign power of the State, in case of emergency, tc take any property, public or private, which the exigencies ot the country might require.

We think there is no weight in this objection. Nothing in this act supersedes, or has a tendency to supersede, that sovereign power over all property, inherent in all governments, sometimes called the right of eminent domain, the power of taking property for public use, as the exigencies of the country may require. All acts of legislation not in terms limited in their operation to a particular term of time, are in legal contemplation perpetual or declared to be in force forever; which means, until duly altered or changed by competent authority.

Upon a consideration of all the objections, we are of opinion, that the act of June 1880, did not exceed the just limit?: of legislative power, and is not unconstitutional.

We have considered this question, because it was freely discussed in the very able argument in this cause ; and yet it cannot escape observation, that if this act was unconstitutional, and as con tended, absolutely null and void, then all acts done under ii are void, the highways over this common have not been legally discontinued, there is already a highway on the precise place where the petitioners now pray to have one laid out, and therefore any act of the commissioners laying out a highway as prayed for, would be wholly nugatory and inoperative.

The other material question presented is, supposing the act in question to be valid and to have the force of law, whether it does by its operation supersede the jurisdiction of the county commissioners and take away their power to lay out a common highway over the common thus appropriated in a qualified manner to public uses.

There is no doubt, we think, of the power of die legislature to make provision for the appropriation of any territory to any special use, and thereby to provide that the power of the commissioners to lay a highway over it, being inconsistent with the particular use, shall be suspended or superseded. The subject of highways, bridges, canals, and other public works, for facilitating communication between one part of the territory of a State and another, are peculiarly within the province of the sovereign power of the State, represented and exercised by the legislature.

In the cases of more frequent recurrence, as those of roads and ferries, it has been the practice of the legislature of this Commonwealth to provide for the establishment of this common class of public easements, by delegating the power to some properly constituted body.

But in the more rare and often the more important and interesting cases, as those of bridges over navigable waters, cana.s, and more recently railroads, the legislature has exercised the power in each particular case, as also in that large class of the most important highways, turnpikes, the expense of which is borne by individuals in the first instance and repaid by tolls. There seems to be no objection in principle to the exercise of this authority on the part of the legislature ; and there are many cases in the books, in which it has been held to be valid.

And in cases of navigable rivers, in which the public have an easement of a more general nature, it is held that the court of sessions, and county commissioners, have no authority to lay out a highway, because inconsistent with the more general public use, to which it is appropriated. Commonwealth v. Coombs, 2 Mass. R. 492 ; Arundel v. M‘Culloch, 10 Mass. R. 70 ; Commonwealth v. Charlestown, 1 Pick. 180.

Without going into all the authorities, the result is, that the county commissioners exercise a qualified, limited general authority, lo lay out and alter highways, and discontinue them, but that this does not supersede the authority of the legislature, and that whenever the legislature, in the exercise of its powers, has annexed the character of public use to any property, and this public use thus declared, would be destroyed or interrupted by the laying out of a highway, the power of the county commissioners to lay out a highway is superseded.

It is manifest, that in cases of rare occurrence, as that of a railroad, or other similar work, if property could not be appropriated to public use by the legislature, it could not be done at all, because there is no provision by law for its being done in any other way. The right of the sovereign power of the State is incontestable. No other provision being made for its exercise, it is therefore necessarily vested in the legislature. Such is the present case, that of a public park, promenade, and place for military parade.

Cases may be supposed, in which the exercise of the power would be important, not only to the convenience and comfort, but to .he security and military defence of the inhabitants ; but this ¡lower must be exercised by the legislature, either in each, particular instance, or by general law, or must lie dormant.

Considering the power of the legislature undeniable, the question is, whether the act by its terms and provisions does supersede the power of the county commissioners to lay out a highway over this common ; and this depends upon another, namely, whether the obvious public use and purpose, to which this area is appropriated by the act, would be defeated, destroyed, or greatly diminished and impaired, by laying a highway over it.

To determine this question we must examine the act, to ascertain what the use and purpose were, which were intended to be secured and made perpetual by the act The leading object and purpose of the act was to provide for the enclosing of such parts of the common, as the commissioners should determine. It must of course be understood, enclosing by a fence. The second

section provides, that the said enclosure shall be forever kept appropriated to public use only, as a public park, &c. The third

section inflicts penalties upon all persons who shall maliciously injure or destroy the fences, &c. The act empowers the commissioners to make alterations in the direction of all roads, by which the common is traversed, and it requires convenient avenues to be left, for the accommodation of persons who may have occasion to enter or pass over any part of the enclosure on foot.

It seems to the Court very clear from these provisions, and from the whole tenor of the act, including the title, that it was the intention of the legislature by this act to appropriate this ground to public use, as an enclosed foot walk, securing to al. the citizens a general right of way as foot passengers, and necessarily excluding the general travel of a highway, by horses,- carriages, and teams.

If such be the natural, the necessary and legal construction of the act, it is to have tne same effect as if negative words had been used, and i had been declared that it should not be used for the general purposes of a highway.

We think, therefore, that the rule applies to this case, that where the legislature have appropriated any territory to a specific public use, and the laying a highway over it would be inconsistent with such public use, and contrary to the terms and provisions of such appropriation, the general power of the county commissioners to lay out highways, so far as such appropriated territory is concerned, is suspended and superseded.

It appears to us that this decision does not involve the sovereign right of eminent domain, or affect the power of the 'egislature to appropriate this property to other public uses, as public exigencies may arise. The sole question is, whether it supersedes the ordinary power and action of the county commissioners, and we are of opinion, for the reason already stated, that it does, and that the decision of the commissioners, refusing to inquire into the question whether a highway in the place proposed, was of common convenience and necessity, and dismissing the petition, was correct.

One other question was raised and somewhat discussed in the argument, whether the petitioners in the present case stand in such a relation to the cause and the subject matter, as to warrant them in applying to this Court for a writ of mandamus. It was contended by the respondents, that they do not, and that the petition ought to be dismissed upon that ground.

Undoubtedly the general rule is, that a private individual can apply for a writ of mandamus only in a case where he has some private or particular interest to be subserved, or some particular right to be pursued or protected by the aid of this process, independent of that which he holds in common with the public at large ; and it is for the public officers exclusively to apply, where public rights are to be subserved. Rex v. Merchant Tailors’ Co., 2 Barn. & Ald. 115.

But, although the proceedings before the county commissioners now, and before the Court of Sessions formerly, for obtaining the laying out of a highway, are in some measure public proceedings, inasmuch as the ultimate object is to acquire an easement for the public, yet by the course of the proceeding as presented and regulated by statute, it assumes in some degree the form of a private adversary suit.

The foundation of the proceeding is a petition to the cointy commissioners by individuals, praying for the laying out of a new highway, or the alteration or discontinuance of an old one, "n a course designated by a description sufficiently particular to indicate it to all parties interested. Without such a petition, they have no jurisdiction, nor have they power to go beyond the matter prayed for, as by laying out a new road where the petition was for an alteration. In some cases the petitioners are required to give security, and in some cases they are liable for costs.

From these views of this somewhat anomalous proceeding, it may perhaps be urged with some force, that petitioners so situated are parties and as such have an interest in the final and correct determination of the cause, and a right to have the suit brought to its regular and proper termination ; and that if obstacles intervene and questions of law arise, in the course of such cause, they have such a vested or actual interest, as will entitle them to obtain a writ of mandamus, when that is the regular and proper process to enable them to bring the suit to a legal and correct termination.

But from the view which we have taken of the merits of this subject, it has become unnecessary to decide this question, and therefore we give no opinion upon it. Petition dismissed.