Argument for Plaintiffs in Error.

land is taken in the laying out of a highway in said city." Acts and Resolves of Massachusetts, 1898, chap. 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-feet line. To this information the defendants pleaded, among other things, that "the statute, 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 thercof. 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 Massachusetts, 476. To review such judgment this writ of error was sued out.

in its application to the defendants,

Mr. Albert E. Pillsbury and Mr. Grant M. Palmer for plaintiffs in error.

The Massachusetts court holds the statute to be an exercise of the power of eminent domain, taking property rights in the nature of an casement in the estate of the plaintiffs in error. As the statute purports to provide compensation, and as it has no relation to the public health, morals, or safety, this is prac

Argument for Plaintiffs in Error.

tically a necessary construction. Talbot v. Hudson, 16 Gray, 417; Dorgan v. Boston, 12 Allen, 223; Parker v. Commonwealth, 178 Massachusetts, 199; Sweet v. Rechel, 159 U. S. 380, 396. This construction will be accepted by this court and the statute dealt with accordingly. W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 466, and cases cited.

1. It is elementary that due provision for just compensation for private property taken for public uses is essential to the validity of an act of eminent domain. Without it, such an act is a nullity, incapable of warranting any interference with the property sought to be taken. Declaration of Rights,

art. XXII; Perry v. Wilson, 7 Massachusetts, 393; Stevens v. Props. of Middlesex Canal, 12 Massachusetts, 466; Brickett v. Haverhill Aqueduct Co., 142 Massachussets, 394; Attorney General v. Old Colony R. R., 160 Massachusetts, 62, 90; Bent v. Emery, 173 Massachusetts, 495. Without such provision the statute "is unconstitutional and void, and does not justify an entry upon the land of the owner without his consent." Conn. River R. R. v. County Comm'rs, 127 Massachussetts, 50, and cases cited.

2. It is not enough that the statute purports to make provision for compensation. The provision must be certain, amounting to assurance of it, without risk of failure in any event. It is beyond legislative power to cast upon the property owner any hazard of loss of his property without compensation. Drury v. Midland Railroad, 127 Massachusetts, 571; Haverhill Bridge v. Essex Comm'rs, 103 Massachusetts, 120, 124; Attorney General v. Old Colony R. R., 160 Massachusetts, 62, 90; Conn. River R. R. v. County Comm'rs, 127 Massachusetts, 50; Brewster v. Rogers Co., 169 N. Y. 73; Bent v. Emery, 173 Massachusetts, 495; Kennedy v. Indianapolis, 103 U. S. 599; Cherokee Nation v. Kansas Railway Co., 135 U. S. 641, 659; Bauman v. Ross, 167 U. S. 548, 598; United States v. Gettysburg Railway, 160 U. S. 668. Sweet v. Rechel, 159 U. S. 404, distinguished.

3. Due provision securing just compensation to the owner of property taken in the exercise of the power of eminent domain by or under the States is required by the due process clause of

Argument for Plaintiffs in Error.

the Fourteenth Amendment. Monongahela Navigation Co. v. United States, 148 U. S. 312, 324 et seq.; Chicago, Burlington &c. Rd. v. Chicago, 166 U. S. 226, 235, 241; Long Island Water Co v. Brooklyn, 166 U. S. 685, 695; Smyth v. Ames, 169 U. S. 466, 526; Backus v. Fort St. Depot Co., 169 U. S. 557, 565; Norwood v. Baker, 172 U. S. 269, 277.

4. The Federal requirement of due process of law extends to judicial as well as to legislative action of the States. The decree of a court may invade the requirement, no less than a statute. Chicago, B. & Q. Rd. v. Chicago, 166 U. S. 226, 241; Virginia v. Rives, 100 U. S. 313; Ex parte Virginia, 100 U. S. 339, 346; Civil Rights Cases, 109 U. S. 311; Logan v. United States, 144 U. S. 263, 290; Scott v. McNeal, 154 U. S. 34, 45; Gibson v. Mississippi, 162 U. S. 565, 581; Williams v. Mississippi, 170 U. S. 213, 220; Blake v. McClung, 172 U. S. 239, 260.

If it is not consistent with due process of law for the court to order the actual destruction of the property while the question whether there is any valid taking or provision for compensation remains in dispute and undetermined, the decree should be reversed, notwithstanding the possibility that in the other proceeding for damages against the city, the statute may eventually be held constitutional and the provision for compensation valid. If assurance of just compensation is, as held by this court, a condition precedent to the exercise of eminent domain, without which the title does not pass in advance of payment, a fortiori is it a condition precedent to actual dispossession and destruction of the property.

The case is peculiar, as the statute out of which it arises is unprecedented. Ordinarily, in the direct taking of property by the State, the State expressly assumes the damages. If the power to take is delegated, the agency authorized to make the taking is expressly made liable. In either case, the act of taking estops the taker to deny its validity or its own liability to make compensation. Gloucester Water Co. v. Gloucester, 179 Massachusetts, 365, 377, and cases cited; Daniels v. Tierney, 102 U. S. 415, 421; Electric Co. v. Dow, 166 U. S. 489.

It is open to the city, in the proceeding for damages, to as

Argument for Plaintiffs in Error.

sail the statute on grounds not open to the plaintiffs in error in this case. In that case, the court must be governed by other considerations, and may find itself constrained to hold that the city is not liable. The State has never undertaken this liability for damages; and it cannot be held liable for the acts of its public officers, whether merely tortious or in course of judicial procedure, under a void statute. Conn. River Rd. v. County Comm'rs, 127 Massachusetts, 50, 56; Murdock Grate Co. v. Commonwealth, 152 Massachusetts, 28; Bent v. Emery, 173 Massachusetts, 495, 498.

In fine, in event of the provision for damages being held non-enforceable as against the city, which is possible in law and not wholly improbable in fact, the plaintiffs in error are arbitrarily despoiled of their property.

Unless the legislature has power to compel a city to establish public parks, it has no power to compel a city to take or pay for property for improving them when established. In the States in which the direct question whether the legislature may compel a city or town to establish public parks has been judicially raised, under constitutional provisions substantially like those of Massachusetts, it has uniformly been determined in the negative. People v. Hurlbut, 24 Michigan, 44, 93; People v. Detroit, 28 Michigan, 228, 233 et seq.; Park Comm'rs v. Mayor, 29 Michigan, 343; Thompson v. Moran, 44 Michigan, 602; Webb v. Mayor of New York, 64 How. Pr. 10; Dillon, Munic. Corp. (4th ed.) secs. 71-74a; Atkins v. Randolph, 31 Vermont, 226; State ex rel. McCurdy v. Tappan, 29 Wisconsin, 664, 680, 687; Louisville v. University, 15 B. Mon. 642; State v. Fox, 63 N. E. Rep. 19, 21 (Indiana).

Until the present case, the Massachusetts court had never gone so far as to hold that the legislature may compel a city to tax its inhabitants for a system of public parks, nor is there believed to be authority for this proposition in any State. It had gone no farther than to hold that the legislature may authorize taxation for this purpose. Holt v. Somerville, 127 Massachusetts, 408, 413; Foster v. Park Commissioners, 133 Massachusetts, 321, 326; Props. of Mt. Hope Cemetery v. Boston, 158 Massachusetts, 509, 519,

Argument for Plaintiffs in Error.

The city of Boston never had any moneys appropriated, nor any specific power to appropriate moneys, to meet the liability cast upon it by the statute of 1898; and its power to raise and appropriate money for any purpose is limited by statute.

It was formerly understood in Massachusetts that the property of the inhabitants is liable to seizure on execution for a debt of a city or town. Conn. River R. R. v. County Comm'rs, 127 Massachusetts, 50. Apparently this can no longer be regarded as the law. Rees v. Watertown, 19 Wall. 107, 122; Merriwether v. Garrett, 102 U. S. 472, 501, 519, 526.

It is inconsistent with the inherent substance of due process of law, as universally understood and applied, to enforce such a statute against the owner of the property, by actual dispossession and demolition, at least until the validity of the provision for damages, upon which the validity of the taking depends, is established as against the party made liable. The statute, construed to authorize such enforcement, is in conflict with the due process clause of the Fourteenth Amendment. If the statute does not authorize it, the decree is itself an invasion of the Federal right.

The judgment cannot be sustained on the police power.

The current of authority is strongly against legislative power to declare or deal with such a building as this as a nuisance, or to apply such legislation under such conditions in the exercise of the police power, or, upon any ground, to cut down private rights to such an extent as that here disclosed, without compensation as for a taking of property. A judicial view of the subject which comes near being universal might well be deemed conclusive in determining, if it were presented, the question of what degree of respect and security for property rights in this regard is essential to the Federal requirement of due process of law. In addition to cases before cited see Yates v. Milwaukee, 10 Wall. 497; Pumpelly v. Green Bay Co., 13 Wall. 166, 177 et seq.; Sweet v. Rechel, 159 U. S. 396 et seq.; Mass. Decl'n of Rights, XII, XXX; Baker v. Boston, 12 Pick. 184, 194; Commonwealth v. Alger, 7 'Cush. 53, 103-4; Morse v. Stocker, 1 Allen, 150, 157-8; Watertown v. Mayo, 109 Massachusetts, 315, 319; Lowell v. Boston, 111 Massachusetts, VOL. CLXXXVIII-32