Opinion
Questions Propounded by the Senate in an Order Dated May 25, 1973.
June 21, 1973.
ARMAND A. DUFRESNE, Jr. DONALD W. WEBBER RANDOLPH A. WEATHERBEE CHARLES A. POMEROY SIDNEY W. WERNICK JAMES P. ARCHIBALD
SENATE ORDER PROPOUNDING QUESTIONS
In the Year of Our Lord One Thousand Nine Hundred and Seventy-Three In Senate, May 25, 1973
Whereas, it appears to the Senate of the 106th Legislature that following are important questions of law and that this is a solemn occasion; and
Whereas, a Bill, H.P. 1382, L.D. 1812, entitled "AN ACT to Organize the Unorganized and Deorganized Territories of the State and to Provide for Management of the Public Reserved Lands," has been introduced into the Legislature, and the constitutionality of portions of the Act has been questioned, and it is important that the Legislature be informed as to the constitutionality of those portions of the Act; now, therefore, be it
Ordered, that in accordance with the provisions of the Constitution of the State, the Senate herewith submits the following Statement of Facts and respectfully requests the Justices of the Supreme Judicial Court to give to the Senate their opinion on the following Questions of Law:
STATEMENT OF FACTS
Beginning as early as 1786, Massachusetts reserved from townships of its public domain which it sold, four lots of 320 acres each for public uses. The reserved lots are hereinafter referred to as the "public lots." The specific public uses for which some of the earliest public lots were reserved included the first settled minister, the use of the ministry, a public grammar school, public education in general and such public uses as the Legislature of Massachusetts might thereafter direct. Massachusetts generally followed this practice during the ensuing years as portions of her public domain were sold.
Laws and Resolves of Massachusetts, 1786, Chapter 40.
The Articles of Separation (Article X of the Constitution of Maine) provide in Paragraph Seventh that:
" Seventh. All grants of land, franchises, immunities, corporate or other rights, and all contracts for, or grants of land not yet located which have been or may be made by the said Commonwealth, before the separation of said District (of Maine) shall take place, and having or to have effect within the said District, shall continue in full force, after the said District shall become a separate State.
* * * * * *
". . .; and in all grants hereafter to be made by either state of unlocated land within said District, the same reservations shall be made for the benefit of Schools, and of the Ministry, as have heretofore been usual, in grants made by this Commonwealth."
In 1824, the Legislature of Maine declared that title to all public lots which were then located in incorporated towns and which had not theretofore become vested in a particular individual or parish within the town, was to be vested in the inhabitants of the town, subject to the supervision of a board of trustees comprised of various municipal officers. At that time, the Legislature required that the towns use the public lots for the purposes for which they were originally reserved, to wit: schools and the ministry. With the exception of this latter provision, that law, together with other laws delineating the powers and responsibilities of the board of trustees in each town containing public lots or school and ministerial funds, is in effect today.
Chapter 254, Public Laws of 1824.
Title 13 M.R.S.A. § 3161.
With respect to the public lots yet to be reserved in land yet to be sold by Maine, the Legislature of Maine also declared in 1824 that:
"There shall be reserved in every township, suitable for settlement, one thousand acres of land to average in quality and situation with the other land in such township, to be appropriated to such public uses for the exclusive benefit of such town, as the Legislature may hereafter direct."
Chapter 280 § 8, Public Laws of 1824.
The essential provisions of this law remained in effect throughout the time during which Maine's public domain was sold and are in effect today.
Title 30 M.R.S.A. § 4151.
In 1831 the Legislature of Maine sought to modify the Articles of Separation to acquire the power to "direct the income of any fund arising from the proceeds of the sale of land required to be reserved for the benefit of the Ministry, to be applied for the benefit of primary schools, in the town in which such land is situate, where the fee has not already vested in some particular Parish in such town, or in some individual." Massachusetts responded with legislation which repeated, substantially verbatim, the act of the Maine Legislature and which recited that the Articles of Separation were thereby "so far modified, as to permit an exercise of legislation by the Government of the State of Maine, over the subject of ministerial and school lands within its territorial jurisdiction, granted or reserved for those purposes before the separation of that State from the Commonwealth . . . ." Pursuant to that modification, therefore, the Legislature of Maine directed that proceeds from the sale of public lots be "annually applied to the support of primary schools in each town." This law is in effect today.
Chapter 492 § 2, Public Laws of 1831.
Laws of Massachusetts, 1831, chapter 47.
Chapter 39, Public Laws of 1832.
Title 13 M.R.S.A. § 3167.
As a result of the foregoing laws public lots were reserved from substantially all of the townships which were sold by Maine and by Massachusetts and by both jointly. As townships became incorporated, title to the public lots vested in the inhabitants in accordance with the provisions of what is now Title 13 M.R.S.A. § 3161. Regardless of the purposes for which the public lots were originally reserved, since 1832 towns have been required to use these lands for the support of public schools in the town.
Prior to the incorporation of the townships or tracts from which the public lots were reserved, the public lots have remained under the control of the State. In 1831, the Legislature of Maine directed, for the first time, that the Land Agent of the State should "take care of the public lots which have been and shall hereafter be reserved for public uses in the several townships in this State, until the fee shall vest in the town or otherwise, according to the force and effect of the grant, and preserve the same from pillage and trespass." In 1853, Massachusetts conveyed to Maine all of its right, title and interest in the public lots and recited in the deed that the public lots were to be held by Maine in accordance with and subservient to the provisions and stipulations contained in the Articles of Separation. The deed also specified that it was not intended to impair or invalidate the obligation in the Articles of Separation for "setting apart and reserving lands to educational and religious uses."
Chapter 510, Public Laws of 1831.
Maine House Document #12, 1854.
In 1842, the Legislature directed that income accruing from the public lots in the unincorporated townships be deposited into a fund to be held by the treasurers of each County and paid "to treasurers of towns rightfully owning it, whenever applied for." The basic requirements of this law remain in effect today, except that the fund is now, and since 1848 has been held by the State Treasurer instead of the County Treasurers. In 1846, the Legislature directed that income from the fund should be used for school purposes pursuant to a specified formula. Though the formula has been significantly refined by the establishment of the Unorganized Townships Fund and the Organized Townships Fund, the basic requirements of the 1846 law remain in effect today. The principal amounts of the Unorganized Townships Fund and the Organized Townships Fund continue to be held by the State Treasurer with a separate accounting for each township and tract in the unincorporated areas of the State, awaiting the incorporation of each such township or tract into a town.
Chapter 33 § 23, Public Laws of 1842.
Title 30 M.R.S.A. § 4164.
Chapter 82, Public Laws of 1848.
Chapter 217, Public Laws of 1846.
Title 30 M.R.S.A. § 4165, 4166.
Since 1850 the public lots in the unincorporated areas of the State have been in the care and custody of the Land Agent, the functions of which are now performed by the Forest Commissioner. There remain today approximately 415 unincorporated tracts and townships in Maine, including approximately 40 plantations. Although portions of a few public lots have been sold pursuant to legislative authority, the unincorporated tracts and townships in Maine presently contain approximately 398,000 acres of public lots. Of these, approximately two-thirds have been "located" or partitioned from the townships or tracts from which they were reserved and the remainder have not yet been located or partitioned, although there exist statutory procedures to effect such a partition. While the public lots have been used by the State in recent years essentially to produce funds to be deposited with the Treasurer of the State as described above, they have been required to be managed under the principles of multiple use since 1965 and the public lots in Baxter State Park have been used like the other lands in Baxter State Park.
Chapter 196 § 1, Public Laws of 1850. The Land Agent was given custody and care of public lots in plantations by Chapter 284 of the Public Laws of 1852.
The Land Agent was made Forest Commissioner by Chapter 100 § 1 of the Public Laws of 1891 and the title "Land Agent" was abolished by Chapter 196 of the Public Laws of 1923.
"Report on Public Reserved Lots" prepared by State Forestry Department, 1963, pursuant to Chapter 76, Resolves of 1961. See also chapters 8, 13 and 16, Resolves of 1971.
Title 30 M.R.S.A. § 4151, et seq. 7.
Title 12 M.R.S.A. § 501-A, subsection 7.
Title 12 M.R.S.A. § 902.
There is presently pending before the 106th Legislature, H.P. 1382, L.D. 1812, entitled, AN ACT to Organize the Unorganized and Deorganized Territories of the State and to Provide for Management of the Public Reserved Lands (the "Act"). The Act is intended, among other things, to effect the following changes in the manner in which and the purposes for which the public lots are managed and owned by the State:
1. Section 5 of the Act would amend Title 13 M.R.S.A. § 3161 to provide that title to public lots shall vest in the inhabitants of any town incorporated and in existence on January 1, 1973. Title to public lots would no longer vest in the inhabitants of towns which may hereafter become incorporated.
2. Section 7 of the Act would direct that the public lots shall be used for the benefit of the State of Maine, to be managed and preserved as State assets, and not for the benefit of the present or future inhabitants of the township or tract from which the public lots were reserved. Section 15 of the Act (in the proposed provisions of Title 30 M.R.S.A. § 4162, subsection 5) further recites that the requirement that the public lots be used for the exclusive benefit of the township from which they were reserved is abolished.
3. Section 14 of the Act would require that in partitioning or locating public lots which have not heretofore been located, the Forest Commissioner shall consider, in addition to the value of timber and minerals, such qualities as scenic value, recreational potential, preservation of significant natural resources critical to the ecology of the State and contiguousness to other public lands.
4. Section 15 of the Act would require, in effect, that the public lots be used and managed as multiple use State forests and gives the Forest Commissioner the power, under certain conditions, to sell, purchase and exchange public lots, without retaining a public lot in each unincorporated township or tract, in order to assemble larger contiguous quantities of land.
5. Section 16 of the Act would discontinue the practice of depositing all income from the public lots into a fund to await the incorporation of the presently unincorporated tracts and townships and income from the public lots would be used (or an equivalent amount from the General Fund would be used) for the management of the public lots and for the acquisition of additional lands to be managed under the same statutory provisions which would be applicable to the public lots.
QUESTIONS OF LAW
QUESTION NO. I:
Do the provisions of Section 5 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
QUESTION NO. II:
If the answer to the preceding question is that any of the provisions of Section 5 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
QUESTION NO. III:
Do the provisions of Section 7 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
QUESTION NO. IV:
If the answer to the preceding question is that any of the provisions of Section 7 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
QUESTION NO. V:
Do the provisions of Section 14 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
QUESTION NO. VI:
If the answer to the preceding question is that any of the provisions of Section 14 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
QUESTION NO. VII:
Do the provisions of Section 15 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
QUESTION NO. VIII:
If the answer to the preceding question is that any of the provisions of Section 15 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
QUESTION NO. IX:
Do the provisions of Section 16 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
QUESTION NO. X:
If the answer to the preceding question is that any of the provisions of Section 16 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
ONE HUNDRED AND SIXTH LEGISLATURE
Legislative Document No. 1812
H.P. 1382 House of Representatives, April 3, 1973
Referred to the Committee on Public Lands. Sent up for concurrence and ordered printed.
E. LOUISE LINCOLN, Clerk
Presented by Mr. Martin of Eagle Lake.
STATE OF MAINE IN THE YEAR OF OUR LORD NINETEEN HUNDRED SEVENTY-THREE AN ACT to Organize the Unorganized and Deorganized Territories of the State and to Provide for Management of the Public Reserved Lands.Be it enacted by the People of the State of Maine, as follows:
Sec. 1. R.S., T. 1 § 72, sub- § 13, repealed and replaced.
Subsection 13 of section 72 of Title 1 of the Revised Statutes is repealed and the following enacted in place thereof:
13. Municipality. "Municipality" shall include cities, towns and plantations, except that "municipality" shall not include plantations in Title 30, chapters 201 to 213, 235, 239, subchapters IV, V and VI, chapter 241 and chapter 243.
Sec. 2. R.S., T. 1 § 72, sub- § 24, repealed. Subsection 24 of section 72 of Title 1 of the Revised Statutes is repealed.
Sec. 3. R.S., T. 12 § 512, amended. Section 512 of Title 12 of the Revised Statutes, as amended, is further amended by adding a new sentence at the end to read as follows:
All lands acquired and administered under this section and all other state forests shall be managed under the same principles which govern the management of the public reserved lands, to the extent not inconsistent with the express provisions of this section, and management of such state forests shall, in any event, be coordinated with the management of the public reserved lands in order to facilitate the accomplishment of applicable management objectives.
Sec. 4. R.S., T. 12 § 514, repealed and replaced. Section 514 of Title 12 of the Revised Statutes, as amended, is repealed and the following enacted in place thereof:
§ 514. Management of public lands
The commissioner shall have the same powers, subject to the same conditions, with respect to the management of lands specified in section 504 as he has with respect to the public reserved lands as set forth in Title 30, section 4162, subsection 4.
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Sec. 5. R.S., T. 13 § 3161, amended. Section 3161 of Title 13 of the Revised Statutes is amended to read as follows:
§ 3161. Fee in ministerial and school land in existing towns.
Where lands have been granted or reserved for the use of the ministry or first settled minister, or for the use of schools, in any town incorporated and in existence on January 1, 1973, and the fee in these lands has not vested in some particular parish therein or in some individual, it shall vest in the inhabitants of such town and not in any particular parish therein for such uses. The inhabitants of any such town shall hold and enjoy said public reserved lands subject to the control of and subject to responsibilities imposed by the State. Sec. 5-A. R.S., T. 13 § 3164, repealed. Section 3164 of Title 13 of the Revised Statutes is repealed.
Sec. 6. R.S., T. 13 § 3167, amended. Section 3167 of Title 13 of the Revised Statutes is amended to read as follows:
§ 3167. Income to support schools
The income of the fund, arising from the sale of lands under section 3164 All income derived from such ministerial and school lands, and from the rents and profits of real and personal estate held under section 3166, shall be annually applied to the support of public schools in the town, and expended like other school moneys.
Sec. 7. R.S., T. 30 § 4151, amended. Section 4151 of Title 30 of the Revised Statutes is amended to read as follows:
§ 4151. Public reserved lands and location by agreement
In every township or plantation now existing or hereafter organized there shall be reserved, as the Legislature may direct, 1,000 acres of land, and at the same rate in all tracts less than a township, for the exclusive benefit of such township or tract the State of Maine, to average in quality, situation and value as to timber and minerals with the other lands therein. Title to such reserved public lots shall be in and all future earnings attributable thereto shall belong to the State of Maine for management and preservation thereof as state assets. In townships or tracts sold and not incorporated, the public reserved lots may be selected and located by the Forest Commissioner and the proprietors, by a written agreement, describing the reserved lands by metes and bounds, signed by said parties and recorded in the commissioner's office. The plan or outline of the lands so selected shall be entered on the plan of the township or tract in the commissioner's office and shall be filed of record in the registry of deeds in the township in which the township is located, which shall be a sufficient location thereof.
Sec. 8. R.S., T. 30 § 4152, repealed. Section 4152 of Title 30 of the Revised Statutes, as amended by section 64 of chapter 226 of the public laws of 1965, is repealed.
Sec. 9. R.S., T. 30 § 4153, repealed and replaced. Section 4153 of Title 30 of the Revised Statutes is repealed and the following enacted in place thereof:
§ 4153. Location without agreement
When the Forest Commissioner and proprietors of a tract or township described in section 4151 cannot agree on such location, the Forest Commissioner may petition the Superior Court in the county where the land lies to
LEGISLATIVE DOCUMENT No. 1812 3
appoint 3 disinterested persons, and issue to them a warrant, under the seal of the court, requiring them, as soon as may be, to locate the public reserved lot or lots in said township or tract. The public reserved lot or lots shall be of average quality with the residue of lands therein.
Sec. 10. R.S., T. 30 § 4154, amended. The last sentence of section 4154 of Title 30 of the Revised Statutes is amended to read as follows:
They shall make return of said warrant and their doings thereon, under their hands, to the next Superior Court in the county after having completed service; which, being accepted by the court and recorded in the registry of deeds in the county or registry district where the land is situated, within 6 months, shall be a legal assignment and location of such public reserved portions for the uses designated lot or lots. Sec. 11. R.S., T. 30, §§ 4155 and 4156, repealed. Sections 4155 and 4156 of Title 30 of the Revised Statutes are repealed.
Sec. 12. R.S., T. 30 § 4159, amended. The first sentence of section 4159 of Title 30 of the Revised Statutes is amended to read as follows:
When in the grant of any townships or parts of townships certain portions are reserved for public uses, and such portions have not been located in severalty prior to the incorporation of the same into a town, the Superior Court in the county where the land lies, on application of the assessors of the town, may appoint 3 disinterested persons of the county and issue to them its warrant under seal of the court, requiring them, as soon as may be, to locate such reserved portion according to the terms of the grant, and if the use or purpose of the reservation is prescribed in the grant, they shall set off and locate the lots accordinglydesignating the use or purpose for which each lot is so reserved and located.
Sec. 13. R.S., T. 30 § 4161, amended. Section 4161 of Title 30 of the Revised Statutes is amended to read as follows:
§ 4161. Report of committee action
The members of the committee shall make return of said warrant and their doings thereon, to the Superior Court in the county, after having completed the service; which, being accepted by the court and recorded in the registry of deeds in the county or registry district where the land is situated, within 6 months, shall be a legal assignment and location of such reserved proportions for the uses designated. Thereafter the lands so set off and located shall be under the care and oversight of the trustees of the ministerial and school funds of the town, with all the powers and subject to the duties prescribed in this chapter and Title 13, chapter 93 including the power to sell and convey the same.
Sec. 14. R.S., T. 30 § 4161-A, additional. Title 30 of the Revised Statutes is amended by adding a new section 4161-A to read as follows:
§ 4161-A. Criteria for location
Whenever land reserved for public uses is located pursuant to this chapter, and whenever the Forest Commissioner makes his return of partition pursuant to section 4158, the determination as to what lands are of an average quality, situation and value with the other lands in the township shall include, but shall not be limited to, appropriate consideration of the following criteria: 1. Contiguousness to other public lands; 2. Public recreation needs;
4 LEGISLATIVE DOCUMENT No. 1812
3. Accessibility to roads, highways and other transportation;
4. Proximity to centers of population; 5. Needs of state agencies; 6. Scenic quality; 7. Value as to minerals; 8. Value as to timber; 9. The preservation of significant natural, recreational and historic resources, including wildlife habitat and other areas critical to the ecology of the State; 10. The provisions of any applicable comprehensive or long-range management plan for use of public lands. Sec. 15. R.S., T. 30 § 4162, repealed and replaced. Section 4162 of Title 30 of the Revised Statutes, as repealed and replaced by section 65 of chapter 226 of the public laws of 1965, is repealed and the following enacted in place thereof:
§ 4162. Management of public reserved lands
1. Purpose. The Legislature finds that it is in the public interest and for the general benefit of the people of this State that title, possession and the responsibility for the management of the public reserved lands contained within the unincorporated areas of the State be vested and established in an agent of the State acting on behalf of all of the people of the State. The Legislature further finds that it is in the public interest that the public reserved lands be managed under the principles of multiple use and to produce a sustained yield of products and services and that such management should be effected by the use of both prudent business practices and the principles of sound planning. 2. Definitions. As used in this section, unless the context otherwise indicates, the following words shall have the following meanings. A. "Multiple use" shall mean the management of all of the various renewable surface resources of the public reserved lots, including outdoor recreation, timber, watershed, fish and wildlife and other public purposes; it means making the most judicious use of the land for some or all of these resources over areas large and diverse enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; it means that some land will be used for less than all of the resources; and it means harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output. B. "Public reserved lands" includes not only all of the public reserved lots and ministerial and school lands in the unincorporated areas of the State, but all lands acquired with proceeds from the sale of such reserved lands, all lands received by the State in exchange for or pursuant to relocation of such reserved lands and all lands purchased by the State and expressly designated as public reserved lands. C. "Sustained yield" shall mean the achievement and maintenance in perpetuity of a high-level regular periodic output of the various renewable resources of the public reserved lots without impairment of the productivity of the land.
LEGISLATIVE DOCUMENT No. 1812
3. Responsibility. The Forest Commissioner shall have the care, custody, control and the responsibility for the management of the public reserved lands in the unincorporated areas of the State. He shall, beginning promptly after the effective date of this Act, prepare, revise from time to time and maintain a comprehensive management plan for the management of the public reserved lands in accordance with the guidelines set forth. The management plan shall provide for a flexible and practical approach to the coordinated management of the public reserved lands. In preparing, revising and maintaining such management plan, the Forest Commissioner shall, to the extent practicable, compile and maintain an adequate inventory of the public reserved lands, including not only the timber thereon but the other multiple use values for which the public reserved lands are managed. In addition, all criteria listed in section 4161-A for the location of public reserved lands shall be considered in developing the management plans. The Forest Commissioner shall be entitled to the full cooperation of the Maine Mining Bureau, Department of Inland Fisheries and Game, Department of Parks and Recreation, Land Use Regulation Commission and State Planning Office in compiling and maintaining the inventory of the public reserved lands and shall consult with those agencies as well as other appropriate state agencies in the preparation and maintenance of the comprehensive management plan for the public reserved lands. As and when prepared, all management of the public reserved lands shall, to the extent practicable, be in accordance with said management plan.
4. Actions. The Forest Commissioner may take the following action on the public reserved lands: A. Grant permits, on such terms and conditions and for such consideration as he deems reasonable, to cut timber, harvest grass and wild foods, tap maple trees for sap and cultivate and harvest crops; provided that such permits shall create in the permittee mere revocable licenses and shall not create any real property interest in the public reserved lands; B. Sell gravel existing in the soil, but only for the construction of public roads or other public works; provided that in the judgment of the Forest Commissioner, the sale of such gravel shall enhance the value of the land in the vicinity from which the gravel was sold and that it shall promote the purposes for which that portion of the public reserved lands are being managed; C. Lease the right, for a term of years not exceeding 25, to set poles and maintain utility lines; D. Lease campsites on an annual basis; E. Construct and maintain overnight campsites and other camping facilities and charge reasonable fees to defer the cost of maintenance; F. With the consent of the Governor and Council and subject to the approval of the Maine Mining Bureau, the Land Use Regulation Commission and of the Department of Environmental Protection under Title 10, chapter 451. Mining and Rehabilitation of Land, grant mining rights; G. Grant the right to construct and maintain public roads; H. With the consent of the Governor and Council, lease mill privileges, dam sites and flowage rights. 5. — additional. The Forest Commissioner shall have the power, subject to this section, to exchange or relocate public reserved lands, both located and unlocated, for other lands and the power to sell public reserved lands, both
6 LEGISLATIVE DOCUMENT No. 1812
located and unlocated, and to use appropriate portions of the proceeds of the sales, in order to purchase, assemble or reassemble contiguous or nearly contiguous quantities of land to be managed as public reserved lands hereunder. The requirement that public reserved lands shall be used for the exclusive benefit of the township from which they were reserved is abolished and the sale, acquisition, assembly and reassembly of public reserved lands may proceed without the necessity of retaining public reserved lands in each tract, township or plantation. The Forest Commissioner shall not exchange, relocate, purchase or sell any public reserved lands unless and until he shall have:
A. Prepared a management plan and determined that such exchange, relocation, purchase or sale is an implementation of that plan or, at least, that it is not in conflict with that plan; B. Certified to the Treasurer of the State that in his opinion the consideration received for the exchange, relocation, purchase or sale is fair and just;
C. Obtained the consent of the Governor and Council to such exchange, relocation, purchase or sale;
D. Consulted with and invited the written comments of the state agencies required to be consulted in the preparation of the management plan about such proposed exchange, relocation, purchase or sale; and
E. Advertised notice of the proposed exchange, relocation, purchase or sale in the state paper not less than 30 days prior to the consummation of the exchange, relocation, purchase or sale. 6. Transfer of responsibility. Whenever a particular portion of the public reserved lands is to be used, pursuant to the management plan, for a single use which use is within the particular expertise of another agency of the State, the Forest Commissioner may, with the consent of the Governor and Council and the state agency involved, transfer to such other state agency the responsibility for the management of such particular portion of the public reserved lands. 7. Application. Nothing herein shall be construed to require the location of unlocated public reserved lands. The determination as to the desirability of locating unlocated public reserved lands shall be made by the Forest Commissioner in the preparation and maintenance of the management plan for the public reserved lands. The Forest Commissioner shall take appropriate steps to insure that in those townships in which public reserved lands remain unlocated, the State receives its proportionate share of common income and that such lands are not subjected to waste by the other cotenants. Sec. 16. R.S., T. 30 § 4163, repealed and replaced. Section 4163 of Title 30 of the Revised Statutes, as amended by section 65-A of chapter 226 of the public laws of 1965, is repealed and the following enacted in place thereof:
§ 4163. Funds from the public reserved lands
1. Receipts from sale, etc. All sums received by the Forest Commissioner for the exchange, relocation or sale of public reserved lands shall be deposited with the Treasurer of State and kept as a separate nonlapsing account to be used by the Forest Commissioner for the acquisition of other lands to be held and managed as public reserved lands. 2. Income. All income received by the Forest Commissioner from the public reserved lands shall be deposited with the Treasurer of State to be credited to the General Fund.
LEGISLATIVE DOCUMENT No. 1812
3. Public Reserved Lots Management Fund. To accomplish the purposes of section 4162, there is established a Public Reserved Lots Management Fund. An amount equal to the General Fund pursuant to subsection 2 shall be transferred by the Treasurer of the State to the Public Reserved Lots Management Fund on the first day of each month following the effective date of this Act. Moneys credited to the Public Reserved Lots Management Fund shall be available for expenditure by the Forest Commissioner for the purposes set forth in section 4162 without limitation as to fiscal year.
Sec. 16-A. R.S., T. 30 § 4164, repealed. Section 4164 of Title 30 of the Revised Statutes is repealed.
Sec. 17. R.S., T. 30 § 4165, repealed and replaced. Section 4165 of Title 30 of the Revised Statutes, as amended by section 66 of chapter 226 of the public laws of 1965, is repealed and the following enacted in place thereof:
§ 4165. Unorganized Territory School Fund
There shall continue in existence the Unorganized Territory School Fund which shall include the existing principal of said fund arising from the public reserved lands prior to the effective date of this Act and any accrued but unexpended income from said fund as of said date. The State shall allow interest annually as earned. Said fund shall be held and administered by the Treasurer of State. The income only of said fund shall be expended and applied as is by law provided for school purposes. The Treasurer of State shall file with the Commissioner of Finance and Administration, on or before January 15th of each year, a list of interest earned by said fund during the preceding calendar year. A copy of said list shall be transmitted to the Commissioner of Educational and Cultural Services by the Treasurer of State. Sec. 18. R.S., T. 30 § 4166, amended. Section 4166 of Title 30 of the Revised Statutes, as amended by section 67 of the public laws of 1965 and as amended by chapter 173 of the public laws of 1967, is further amended to read as follows:
§ 4166. Organized Townships Fund
The 2nd fund shall be known as the Organized Townships Fund and interest shall be allowed annually as earned There shall continue in existence the Organized Townships Fund which shall include the principal of said fund arising from the public reserved lots prior to the effective date of this Act and accrued but unexpended income of said fund as of said date. The State shall allow interest annually as earned. Said fund shall be held and administered by the Treasurer of State. The income of the Organized Townships Fund shall be added to the principal of the funds, until the inhabitants of such township or tract are incorporated into a municipality, unless previously expended according to law. When any such township or tract is incorporated as a town, said funds belonging to it shall be paid by the Treasurer of State to the treasurer of the trustees of the ministerial and school funds therein, to be added to the funds of that corporation and held and managed as other school funds of that town are required to be held and managed. If When such township or tract is organized as a plantation, the interest of said fund shall be paid annually by the Treasurer of State to the treasurer of such plantation to be applied toward the support of schools according to the number of scholars in each school.Before interest of said fund is so distributed to the treasurers of such plantations an amount equaling 10% of the determined total interest sum shall be allocated annually to the Forest Commissioner for use in managing and improving the forest growth of the public reserved lots in said organized plantations Said interest shall be computed to the first day of each January by the Treasurer of State. The Commissioner of Education
8 LEGISLATIVE DOCUMENT No. 1812
Educational and Cultural Services shall file in the office of the State Controller a list of such plantations with the amount due for interest for the preceding year according to a record of such amounts to be furnished to him by the Treasurer of State. The Commissioner of Education Educational and Cultural Services shall be satisfied that all such plantations are organized, and that schools have been established therein according to law, that assessors are sworn and qualified and that the treasurers of such plantations have given bonds as required by law. The State Controller shall thereupon insert the name and amount due such plantations in one of the first warrants drawn in that year.
The amount due Lakeville Plantation, Penobscot County, annually under this section shall be expended in accordance with this section and any excess shall, under the supervision and direction of the superintending school committee of Lakeville Plantation, be used to established scholarship aid for students of Lakeville Plantation to receive post high school education.
Sec. 19. R.S.,T. 30, §§ 5601-5604, repealed. Sections 5601 to 5604 of Title 30 of the Revised Statutes are repealed.
Sec. 20. R.S.,T. 30, §§ 5604-A-5604-H, additional. Title 30 of the Revised Statutes is amended by adding 8 new sections, 5604-A to 5604-H, to read as follows:
§ 5604-A. Purpose and scope
The Legislature finds that it is desirable to extend the benefits of local government to the vast portions of the State which are presently unorganized and deorganized in order to preserve public health, safety and general welfare; to ensure that decisions relating to the governing of said territory clearly reflect the economic, social and educational needs of the citizens who live there; to provide a foundation for the establishment of localized public services; and to regularize voting practices throughout the State.
§ 5604-B. Commission of Unincorporated Territory
There is created the Commission on Unincorporated Territory to carry out the purposes of section 5604-A by organizing into plantations all of the presently unorganized, deorganized or unincorporated territory in the State. The commission shall consist of 7 members: The chairman of the Land Use Regulation Commission, who shall serve as chairman of the commission, the State Planning Director, the State Tax Assessor, the Executive Director of the Land Use Regulation Commission, the Commissioner of Educational and Cultural Services, the Commissioner of Transportation, and one public member to be appointed by the Governor. The members of the commission shall serve until the Legislature approves a boundary plan or their successors are qualified.
§ 5604-C. — commission proceedings; rules
Meetings of the commission shall be held at the call of the chairman. Members of the commission shall not be paid a salary, but shall be reimbursed for all expenses incurred in carrying out their responsibilities. The commission may adopt whatever rules it deems necessary for the conduct of its business. No action shall be taken by the commission unless approved by 3 of its members.
Any hearing may be conducted by a single member of the commission so long as such member conducting the hearing transmits to the full commission all evidence taken at the hearing.
Administrative assistance to the commission shall be provided by the State Planning Office or, in the event a Bureau of Public Lands is established within a Department of Conservation, by said Bureau of Public Lands.
LEGISLATIVE DOCUMENT No. 1812 9
§ 5604-D. — commission duties
The commission shall convene promptly after the effective date of this Act and shall prepare, prior to the next regular session of the Legislature, a boundary plan for organizing into plantations all of the unincorporated territory of the State. The plan may propose the enlargement or alteration of existing plantation boundaries as well as propose the organization into plantations of all unorganized and deorganized areas of the State. The plan shall not propose the inclusion within any plantation of the lands presently comprising Baxter State Park. The boundary plan shall be submitted by the commission as a legislative proposal to the next regular session of the Legislature.
§ 5604-E. Plantation standards
A plantation shall consist of one or more townships, existing plantations, or portions of either or both, and be located in a single county. A plantation shall not consist of less than one township. In preparing the boundary plan, the commission shall apply the following standards:
1. At least 25 persons shall be resident in each plantation;
2. Consideration shall be given to the demography of the unincorporated territory so as to provide to the extent practicable for cohesive plantation units;
3. Consideration shall be given to highway and communication connections, topography, existing schools and concentration of population within each plantation so as to promote a sense of community and facilitate the delivery of public services;
4. Consideration shall be given to the valuation of property located within the unincorporated territories so as to provide, as nearly as practicable, consistent with the other standards contained in this section, for uniform tax rates among the plantations to be organized or reorganized pursuant to the plan.
§ 5604-F. Hearings
The commission shall hold a public hearing to receive evidence with respect to the proposed boundary plan. The hearing shall be held in Augusta no later than September 15, 1974. At least 30 days prior to the hearing, public notice shall be given by publishing 3 times the proposed boundary plan and notice of the hearing in at least 4 daily or weekly newspapers throughout the State in order to bring the proposal to the attention of all interested persons.
The commission may hold other hearings, as it deems necessary, in order to prepare the proposed boundary plan and the commission shall adopt, and may amend and repeal rules relating to the conduct of all hearings and shall make a verbatim record of all hearings held pursuant to this section.
§ 5604-G. Organization of plantations
Plantations organized pursuant to this Act shall be deemed organized, and all laws applicable to organized plantations shall apply to such plantations, upon the effective date of the legislative enactment adopting a boundary plan and all prior organizations of plantations, the boundaries of which are altered by the boundary plan, shall thereby be repealed. Within 90 days after such date, the commissioners of each county, in which plantations have been designated, shall issue their warrant to one of the principal inhabitants of each plantation, commanding him to notify the inhabitants thereof qualified to vote for Governor to assemble on a day not later than 150 days after the effective
10 LEGISLATIVE DOCUMENT No. 1812
date of the adoption of the boundary plan and at a place named in the warrant to choose a moderator, clerk, treasurer, 3 assessors, collector of taxes, constable, superintending school committee and other necessary plantation officers. Notice of such meeting shall be given by posting an attested copy of the warrant therefor in not less than 3 conspicuous places in the plantation in order to inform the inhabitants and by publishing same in the state paper at least 14 days prior to the meeting.
LEGISLATIVE DOCUMENTS No. 1812
§ 5604-H. Organization meeting
At the time and place appointed for the meetings, the person to whom the warrant was directed shall preside until a moderator is chosen by ballot by the voters present. Thereafter, the moderator shall preside. A clerk, treasurer, collector or taxes, superintending school committee and 3 assessors shall be chosen by ballot and sworn by the moderator or a justice of the peace. Other plantation officers may be chosen by ballot or other method agreed on by vote of the meeting and shall be sworn.
Sec. 21. R.S.,T. 30 § 5605, amended. Section 5605 of Title 30 of the Revised Statutes is amended to read as follows:
§ 5605. Copy of proceedings and description of plantation sent to Secretary of State
Upon the organization of a plantation, the clerk and assessors shall transmit to the Secretary of State, to be by him recorded, a certified copy of all proceedings had in completing effecting such organization, including the petition, if any the warrant issued therefor and the return thereon, and the record of the meeting held in pursuance thereof and a written description of the limits of the plantation, and thereupon all laws applicable to organized plantations shall apply to plantations organized as herein provided. Sec. 22. R.S.,T. 30 § 5607, amended. Section 5607 of Title 30 of the Revised Statutes is amended to read as follows:
§ 5607. Annual meeting
Organized plantations shall hold their annual meeting in March and choose a clerk, 3 assessors, treasurer, collector of taxes, constable and superintending school committee one or more surveyors of lumber and 2 or more fence viewers. When money is raised for repair of ways and bridges, the assessors of such plantations shall choose one or more road commissioners as selectmen of towns do.
Sec. 23. R.S.,T. 30 § 5616 and § 5620, repealed. Sections 5616 and 5620 of Title 30 of the Revised Statutes are repealed.
Sec. 24. Land Use Regulation Commission unaffected. Nothing contained in this Act shall be deemed to affect the jurisdiction or authority of the Land Use Regulation Commission over the unincorporated territories.
Sec. 25. Appropriation. There is appropriated to the State Planning Office or, in the event a Bureau of Public Lands is established within a Department of Conservation, then to said bureau, from the General Fund the sum of $30,000 to carry out the purposes of this Act.
LEGISLATIVE DOCUMENT No. 1812 11
STATEMENT OF FACT
This Act provides for a commission to prepare a plan to organize the unorganized territories for self-government and self-support. Bona fide organization of these areas into plantations would terminate outstanding conveyances of grass and timber rights on the reserved public lots.
This Act also provides standards and procedures to assure that the lands thus returned to the public domain will be located, managed and developed for the best interests of the people of the State. This proposal is included in the Governor's Legislative Program.
ANSWERS OF THE JUSTICES
To the Honorable Senate of the State of Maine:
In compliance with the provisions of Section 3 of Article VI of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit answers to the questions propounded on May 25, 1973.
The origins, and continuing creation, of the "public lots" in Maine stem fundamentally, as disclosed by the Statement of Facts, from provisions of Item Seventh of the Articles of Separation operative in two respects: (1) to
"continue in full force, after the . . . District [of Maine] shall become a separate State"
the status of land titles created by Massachusetts by virtue of
"all grants of land . . ., and all contracts for, or grants of land not yet located which have been or may be made by the . . . Commonwealth, [of Massachusetts] before the separation . . . shall take place, . . ."
and (2) directing that
". . . in all grants hereafter to be made by either state of unlocated land within . . . [Maine after the separation], the same reservations shall be made for the benefit of Schools, and of the Ministry, as have heretofore been usual, in grants made by . . . [the] Commonwealth [of Massachusetts]."
Thus, the Articles of Separation are the logical starting point of analysis. Although we have been asked to provide answers to several questions propounded in seriatim sequence, we think it appropriate to present, preliminarily, a unified exposition of the meaning, and legal consequences, of the concepts of Item Seventh of the "Articles" which have material bearing upon the "public lots."
The Statement of Facts recognizes that the "Articles" are not only "terms and conditions" fixed by the Commonwealth of Massachusetts and "agreed and consented" to by Maine in becoming a separate State but also, as here relevant, have become incorporated as provisions of Maine's Constitution. As a part of the Constitution of this State, identified as Article X thereof, Item Seventh of the "Articles" is the delineation of long range controls which the people of Maine have themselves imposed upon all of the State's branches of government, including the legislative, through which the sovereign power of the people will be exercised.
The initial issue for analysis, therefore, becomes the nature of the limitations contemplated by Article X of the Constitution of Maine insofar as the "public lots" have been created by "reservations" constitutionally acknowledged effective as they had been made by Massachusetts prior to separation and constitutionally directed to be brought into existence by Maine (or Maine and Massachusetts acting jointly) after separation.
By thus concentrating attention upon the Articles of Separation in this aspect as a part of the Constitution of Maine, we intend no suggestion that the "Articles" are without independent legal effectiveness as limitations upon the sovereignty of the State of Maine imposed by the Commonwealth of Massachusetts. Cf. Green v. Biddle, 8 Wheat. (21 U.S.) 1, 5 L.Ed. 547 (1823). As the ensuing discussion will disclose, our undertaking to answer the questions propounded need not involve an investigation of this facet of the Articles of Separation.
The core subsidiary question, here, is the meaning imported by the constitutional concept of a "reservation" — in particular, the legal consequences produced by it once it has been effected.
One year after Maine had become a State, the Supreme Judicial Court of the new State in Shapleigh v. Pilsbury, 1 Me. 271 (1821) directed its attention to this subject. After a careful review of approaches taken by the Massachusetts Court in the case of Rice v. Osgood, 9 Mass. 38 (1812) and Brown v. Porter, 10 Mass. 93 (1813), in conjunction with the attitude expressed by Mr. Justice Storey on behalf of the Supreme Court of the United States in Pawlet v. Clark, 9 Cranch (13 U.S.) 292, 3 L.Ed. 735 (1815), the Maine Court strongly indicated the view that the "reservation" process produces the legal consequence that the sovereign, as a grantor "reserving" lands for designated beneficial purposes and as to which specific beneficiaries to take the legal title are not in existence, has created no vested rights in private persons but has effectively subjected itself to a legal restriction; it has removed the "public lots" from its dominion as an absolute proprietor and has denied itself
". . . an authority to convey the premises to any other person or corporation, or for any other uses, . . ." (Shapleigh, supra, 1 Me. pp. 288, 289)
Further, it may fairly be concluded that such doctrine was given continuing approval in the subsequent cases of State v. Cutler, 16 Me. 349 (1839); Dillingham v. Smith, 30 Me. 370 (1849); Dudley v. Greene, 35 Me. 14 (1852); Mace v. Land Lumber Company, 113 Me. 420, 92 A. 486 (1914); and Flye v. First Congregational Parish, 114 Me. 158, 95 A. 783 (1915).
The case of Union Parish Society v. Upton, 74 Me. 545 (1883) is not to the contrary. Its discussion, by way of dictum, conceding that the effect of a "reservation" is to impose "great moral and political" strictures does not exclude the existence of legal obligations.
In State v. Mullen, 97 Me. 331, 54 A. 841 (1903) this Court characterized the "reservation" process and its consequences as follows:
"Prior to the separation of Maine from Massachusetts, the latter State, in making grants or sales . . ., had generally pursued the policy of making reservations of lands for public uses from the lands granted. The beneficiaries of these public uses were not ordinarily in esse at the time of the grant. Massachusetts retained the legal title for the use of the beneficiaries when they should come into existence. After the separation, as held in State v. Cutler, 16 Maine, 349, this state by virtue of its sovereignty became entitled to the care and possession of these reserved lands [in the place of Massachusetts] . . . the State [of Maine] became trustee. . . ." (p. 335, 94 A. p. 843) (emphasis supplied)
The accumulated past expressions of this Court lead us, therefore, to the conclusion that the meaning and legal effect of a "reservation", as contemplated by Article X of the Constitution of Maine, is that thereby the sovereign removes the lands "reserved" from the public domain and must continue to hold and preserve them for the "beneficial uses" intended.
Insofar as Article X embodies the "reservation" process and consequences thereof in the specific context of (1) rendering Maine bound by such "reservations" as Massachusetts had made prior to separation and (2) specifies for the future, after separation, that if Maine makes grants of land from its public domain "reservations" shall be effectuated in such grants for beneficial purposes according to usages which had prevailed in the Commonwealth of Massachusetts prior to separation, the Maine Constitution subjects the Legislature of Maine to the limitation that it treat all "public lots" — i.e., those already, or to be, created by "reservations" — on the principle that the Constitution requires the "public lots" to be held and preserved for the beneficial uses intended.
Pursuant to this approach, the additional issue arises concerning the nature of the beneficial uses constitutionally tolerable under the language of Article X of the Maine Constitution.
As to the direction that "reservations" in future grants after separation
"shall be . . . for the benefit of Schools, and of the Ministry, as have heretofore been usual, in grants made by . . . [the] Commonwealth [of Massachusetts]",
the specific inquiry is: are the two beneficial uses particularly designated, i.e., "Schools" and "Ministry" intended to be exclusive limitations or merely illustrative of a more comprehensive assemblage of beneficial purposes "usual" in "reservations" made by Massachusetts prior to separation?
We believe the latter is the correct interpretation of the constitutional language.
The Colony of Massachusetts Bay, and later the Commonwealth of Massachusetts, maintained a policy of reserving, from grants of public land, certain lots for named public uses. While the local ministry and local schools were named as public uses, lots were also reserved for, inter alia Harvard College, the
Resolve of May 1, 1776, Chapter 12 [1776-77] 5 Acts Resolves of the Province of Massachusetts Bay 666.
"benefit of public education in general, as the General Court shall hereafter direct" (State v. Cutler, 16 Me. 349, 352 (1839)),
and the further appropriation of the General Court. The lands reserved by Massachusetts under its policy were not, therefore, restricted only to use for the ministry and for schools.
Resolve of March 26, 1788, Chapter 80 [1787-8] Mass. Resolves 123; Resolve of February 4, 1790, Chapter 68 [1789-0] Mass. Resolves 58. In addition to its policy of reserving lands, Massachusetts sought to afford public benefits through a policy of direct grants. The public benefits advanced by these grants include both the ministry and education and also such uses as the protection of beaches and harbors. O. Handlin M. Handlin, Commonwealth: A study of the Role of Government in the American Economy (Massachusetts, 1774-1861) 80 (Rev. ed. 1969).
The Maine Legislature itself, shortly after separation, responded to the constitutional requirement of Article X by enacting P.L. 1824, Chapter 280, providing that 1,000 acres be reserved from each township or six-mile tract for "such public uses . . . as the Legislature may hereafter direct." The statute, enacted so soon after the adoption of the Constitution, indicates that when the adoption of the Constitution was a fresh memory, the reservation clause was not construed as restricting uses to schools and the ministry. Additional evidence that the statute of 1824 was viewed as consistent with the Constitution is the fact that no effort was made to procure parallel legislation in Massachusetts. The statute of 1824 was viewed as working no change upon constitutional requirement for the use of public lots.
Article X, Section 5, Paragraph Ninth provides that modification of any of the terms of Article X, Section 5, may be made only with the consent of the Massachusetts General Court.
Grants of public land by the State of Maine under the 1824 statute contained a reservation for "public uses." It is significant that grants of townships by Maine and Massachusetts acting jointly also contained reservations for "public uses" rather than reservations restricted for use of schools and the ministry. This indicates that both states viewed the reservation for "public uses" to be consistent with the usual reservations made by Massachusetts prior to Maine statehood.
E.g., Deed from Maine and Massachusetts conveying T8R13 to Samuel Smith, July 16, 1844. 2 Deeds-Maine and Massachusetts at 47. (State Archives, Augusta, Maine).
In light of the practice of Massachusetts prior to Maine statehood, the legislative response of Maine soon after statehood, and the joint action of the two States, it is evident that the uses mentioned, i.e., schools and the ministry, concerning reservations to be made after separation are illustrative, and not an exclusively exhaustive listing, of the "public uses" for which "reservations" are to be made.
We regard this principle as controlling, also, concerning "reservations" made prior to separation and in which, since the contemplated beneficiary had not come into existence, the "reserved" lands had not become appropriated to any particular uses designated. In such posture, the only obligation upon the sovereign is to hold and preserve the lands "reserved" for those "public uses" generally reflected by the usage of Massachusetts and of which any particularly designated use provides only an example. See: Union Parish Society v. Upton, 74 Me. 545, 546-548 (1883).
The foregoing general analysis provides the foundation for answers to the specific questions propounded as follows.
QUESTION NO. I: Do the provisions of Section 5 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
ANSWER: We answer in the negative.
QUESTION NO. II: If the answer to the preceding question is that any of the provisions of Section 5 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
ANSWER: Since the answer to Question No. I is that the Articles of Separation are not violated, this question is rendered inapplicable.
QUESTION NO. III: Do the provisions of Section 7 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
ANSWER: We answer in the negative.
In providing this answer, however, we emphasize that we are interpreting the provisions regarding the State's title to the public lots, ownership of future earnings attributable thereto and its management and preservation of them as "State assets" — all as appearing in Section 7, — to contemplate recognition of the principle enunciated in the preliminary general discussion that the "public lots" are not part of the public domain over which Maine has absolute proprietorship but must be held and preserved for the generalized "public uses" contemplated by the Articles of Separation.
QUESTION NO. IV: If the answer to the preceding question is that any of the provisions of Section 7 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
ANSWER: Since the answer to Question No. III is that the Articles of Separation are not violated, this question is rendered inapplicable.
QUESTION NO. V: Do the provisions of Section 14 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
ANSWER: We answer in the negative.
Our answer that neither the Articles of Separation nor the Distribution of Power provisions of the Federal or State Constitutions are violated is amply clarified by the preliminary exposition we have presented.
Our answer that the Due Process Clauses of the Federal and State Constitutions are not violated requires further discussion.
Partition, or location, of "public lots" hitherto unlocated in lands which have become privately owned can precipitate questions of constitutional "due process" insofar as rights already vested in private persons may be affected by the criteria and methods utilized to accomplish the partition, or location — in particular, if the Legislature has seen fit to alter the prior law governing at the time private ownership was acquired.
Section 14 retains the foundational criterion for the partition and location of "public lots" first promulgated in 1824 that, as partitioned or located, the "public lots" shall be ". . . average in quality and situation with the other land . . . ." Section 14 further specifies, however, that over and above one subsidiary aspect of "average in quality and situation" previously specified — i.e., "value as to timber and minerals" — other factors shall hereafter be taken into account. We cannot project that such requirement will, or must, per se cause a landowner to lose property on a basis sufficiently different from what would arise by the applicability of such law as governed when ownership rights were acquired to constitute it a retrospective impairment of vested private rights in violation of "due process of law." For this reason, Section 14, taken on its face, is consistent with the Due Process Clauses of the Federal and State Constitutions.
In the context of an advisory opinion we are able to evaluate Section 14, relative to the question propounded, only by considering the language of Section 14 on its face and not with the assistance of particular factual contexts in which it might be applied. Hence, we answer that Section 14 does not violate the Due Process Clauses of the Federal or State Constitutions.
QUESTION NO. VI: If the answer to the preceding question is that any of the provisions of Section 14 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
ANSWER: Since the answer to Question No. V is that the Articles of Separation are not violated, this question is rendered inapplicable.
QUESTION NO. VII: Do the provisions of Section 15 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
ANSWER: We answer in the negative.
As the preliminary exposition has disclosed, the "reservations" by which the "public lots" come into being, and as conceived by Article X of the Maine Constitution, establish a limitation only that the State hold and preserve "public lots" for the general class of public uses derived from the usage of Massachusetts. Thus, no private rights being involved, and the purposes for which the "public lots" are held and preserved being a collective grouping of public uses, the "public lots" themselves may likewise be treated collectively if thereby the general category of public uses may be furthered. Hence, sales, purchases and exchanges of "public lots", without retention of a "public lot" in each unincorporated township or tract and in order to assemble larger contiguous quantities of land, is permissible — provided that it is done to promote the beneficial public uses and purposes for which the "public lots" must be held and preserved.
Insofar as Section 15 confers power upon the Forest Commissioner to "relocate" any "public lots", including "both located and unlocated", we answer here as we answered Question No. 5. We cannot say that such authority to "relocate", taken on its face and per se, entails, necessarily, such interference with vested private rights of property as would amount to a retrospective governmental impairment in violation of the Due Process Clauses of the Federal or State Constitutions.
QUESTION NO. VIII: If the answer to the preceding question is that any of the provisions of Section 15 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
ANSWER: Since the answer to Question No. VII is that the Articles of Separation are not violated, this question is rendered inapplicable.
QUESTION NO. IX: Do the provisions of Section 16 of the Act violate the Articles of Separation, the Distribution of Power provisions or the Due Process Clauses of the Federal or State Constitutions?
ANSWER: We answer in the negative.
The proposed use of the income from the "public lots" is consistent with (1) the concept that the "public lots" be held and preserved for an aggregate of public uses according to the usage of Massachusetts, as described in the answer to Question No. 3 and (2) the authority of the State of Maine to treat its "public lots" as a collective group for the furtherance of such generalized public uses, as explained in our answer to Question No. 7.
QUESTION NO. X: If the answer to the preceding question is that any of the provisions of Section 16 of the Act violate the Articles of Separation, would such provisions be constitutional upon consent to such provisions by the Legislature of Massachusetts?
ANSWER: Since the answer to Question No. IX is that the Articles of Separation are not violated, this question is rendered inapplicable.
Dated at Portland, Maine, this nineteenth day of June, 1973.
Respectfully submitted: