Opinion
No. 3774.
Decided December 7, 1948.
Under both the Federal and State Constitutions the determination of the question of the public purpose for which land is taken by the State by eminent domain is a judicial one while that of the necessity and expediency of the taking is wholly legislative. There is no constitutional requirement, either state or federal, that notice and hearing be given to owners of property prior to its being taken by the State for public purposes by eminent domain. The right of landowners to notice and hearing in the laying out of highways is provided by statute but the law relative thereto does not govern the taking of land by eminent domain for public parks. The fact that authority to acquire certain designated land was conferred by a special legislative act was notice to the owners thereof that they might expect their property to be affected by action of the Governor and Council. Powers of eminent domain may constitutionally be delegated by general act. A fortiori where the consent of the Legislature is clearly embodied in a special act empowering the Governor and Council to take designated land by eminent domain there is no violation of the provisions of Art. 12 of the Bill of Rights that no one's property be taken without his consent or that of the representative body of the people. The requirement that land acquired for a public park by eminent domain by the State be transferred to the town in which such land is located does not invalidate the taking as a "special benefit" since upon such transfer the town will be a public agent exercising powers for the public advantage rather than for its own benefit in its corporate capacity. In proceedings by the State for the acquisition of land, defendants' offer of proof at the hearing on the question of title which was material only on the question of damages was properly rejected where the defendants' rights were protected by the privilege reserved to renew their offer at the hearing on the issue of damages. Authority to determine the extent of the taking of land by eminent domain in the area designated by the Legislature may properly be delegated by it to the Governor and Council. The Legislature is not required to specify the names of the owners of land to be taken for public purposes by eminent domain. No part of the procedure designated by general statute (R. L., c. 27, ss. 23-33) providing for notice to the owners of land taken by eminent domain, a determination of their respective titles, and compensation for land taken, need be followed by the Legislature prior to enactment of special legislation for the acquisition.
PETITION for the acquisition of 4.7 acres of land in Moultonborough, on the northerly end of Long Island, in Lake Winnepesaukee. The State seeks to exercise its powers of eminent domain pursuant to Laws 1939, c. 191, as amended by Laws 1941, c. 72 and Laws 1943, c. 165. A decree of title entered February 8, 1943, and a subsequent report of commissioners assessing damages were set aside on motion of the defendants. On May 31, 1945, the defendants Hailer and Goodhue moved to dismiss the petition upon the ground that the special act of 1939, as amended by that of 1941, and the provisions of the general statutes referred to therein (now R.L., c. 27, ss. 23-33) are unconstitutional. The motion was denied subject to the defendants' exceptions.
On November 19, 1947, upon hearing on questions of title, the same defendants made an offer of proof which was denied subject to their exceptions. Public Service Company of New Hampshire has title by deed to a strip of shore adjoining premises owned by the defendants. In this strip the defendants have certain rights of user, conditioned upon payment of taxes upon the strip, and subject to the owner's right to drain and flow the same. The offer was of proof calculated to show that Public Service Company is unlikely to exercise its right of flowage; that the owners of lake shore properties have used and developed them in reliance upon the present high water mark; and that the existence or non-existence of flowage rights plays no part in the determination of selling prices of such properties. In denying the motion, the Court ruled that the proof offered was immaterial upon the issue of title, but "goes to the question of damages and may be raised at a later point in these proceedings." The order further provided that "before the matter of damages is referred . . . the Court will consider the offer of proof . . ."
On November 24, 1947, the same defendants filed a further motion to dismiss because the land described in the petition and shown by the plan "includes more land than was intended" by the special act, and is "greatly in excess of the amount of land referred to in the Act." This motion was likewise denied subject to the defendants' exceptions.
No exceptions to the decree of title entered December 30, 1947 are presented. The defendants' bill incorporating the exceptions to the denial of their several motions was approved and allowed by Goodnow, C.J. Further facts appear in the opinion.
Ernest R. D'Amours, Attorney General and Gordon M. Tiffany, Assistant Attorney General (Mr. Tiffany orally), for the State.
Nighswander Lord and Mr. Hugh H. Bownes (Mr. Bownes orally), for the defendants Hailer and Goodhue.
The defendants' motion to dismiss upon the ground of the unconstitutionality of the statutes involved assigns as reasons that no provision is made for hearing and the presentation of evidence upon the question of "feasibility" of the proposed taking, and in the case of the general statute, upon the question of public necessity; and that the special act as amended provides for the transfer of title to the town of Moultonborough after taking. As the motion is interpreted, no claim is made that the taking is not for a public purpose (Cf. Shoemaker v. United States, 147 U.S. 282, 297), or that no adequate provision is made for the payment of compensation. Cf. Goodrich Falls Co. v. Howard, 86 N.H. 512.
It is well settled under the Federal Constitution that while determination of the question of public purpose is a judicial one, that of the necessity and expediency of the taking is wholly legislative. The same principle has long since been held applicable under our own Constitution. Concord Railroad v. Greely, 17 N.H. 47, 64; Petition of the Mount Washington Road Co., 35 N.H. 134. In Bragg v. Weaver, 251 U.S. 57, 58, it was held that upon legislative questions a "hearing . . . is not essential to due process in the sense of the Fourteenth Amendment." See also, Joslin v. Providence, 262 U.S. 668, 678; Rindge Co. v. Los Angeles, 262 U.S. 700; City of Oakland v. United States, 124 F.2d 959, cert. den., 316 U.S. 679. Although professing to recognize the force of the principles enunciated in the Bragg and Rindge cases, the defendants assert that "due process of law requires that there be some sort of notice and hearing before the State seizes and takes title to the private property of an individual." As authority for this position they have cited Grand Trunk Railway v. Berlin, 68 N.H. 168 and Hodge v. Manchester, 79 N.H. 437. As to these cases, what was said by the court in Governor and Council v. Morey, 78 N.H. 125, 129, involving proceedings similar to those before us, is here pertinent: "Decisions touching the right of landowners in highway appeals . . . have no application here. Those cases merely construe the peculiar provisions of the statute governing laying out highways. . . . It has no general application."
In Georgia v. Chattanooga, 264 U.S. 472, complaint was made of lack of opportunity for hearing before the passage of an ordinance establishing a street. It was there said: "The taking is a legislative and not a judicial function, and an opportunity to be heard in advance need not be given." Id., 483. See accord, Sears v. Akron, 246 U.S. 242, 251. There is no reason for a different rule under the New Hampshire Constitution. Concord Railroad v. Greely, supra; Petition of the Mount Washington Road Co., supra; see also, State v. Railroad, 77 N.H. 425, 427.
Furthermore the argument ignores the fact that the pending proceedings were instituted by authority conferred by special act to acquire "the northerly end of said Long Island." Laws 1939, supra. This was notice to owners of the land that they might expect it to be affected by action of the Governor and Council. There is no indication that the defendants would have been denied an opportunity for hearing on the "question of feasibility," so far as it was determined by executive action. With respect to legislative action, it is not suggested that the customary notice of pending legislation was omitted when the special act was passed. As the brief for the State points out, to require special notice to interested individuals would be to "deny the basic principle of representative government." No foundation for the defendants' claim of a right to notice is to be found in the Constitution.
The defendants further urge that the legislation delegates power of eminent domain to the Governor and Council in violation of the provision of Article 12th of the Bill of Rights that "no part of a man's property shall be taken from him . . . without his own consent, or that of the representative body of the people." If this issue is open upon exception to the denial of a motion which did not raise it, it may be shortly answered. The consent of the Legislature was clearly embodied in the special act. Furthermore, under what is settled in this jurisdiction, powers of eminent domain may constitutionally be delegated by general act. Backus v. Lebanon, 11 N.H. 19, 25, 26; Ash v. Cummings, 50 N.H. 591, 612-614; Great Falls Mfg. Co. v. Fernald, 47 N.H. 444.
The amendment by which the acquired land is required to be transferred to the town after taking (Laws 1941, c. 72, s. 1) does not operate to invalidate the proceedings. The public character of the park is to be preserved. It will afford no more "special benefit" to inhabitants of Moultonborough than it would if title should remain in the State. "It has never been deemed essential that the entire community or any considerable part of it should directly enjoy or participate in an improvement or enterprise, in order to constitute a public use, within the true meaning of these words as used in the Constitution." Talbot v. Hudson, 16 Gray 417, 425. A grant of the public bounty is "always subject to the condition or trust that the corporation shall assume an obligation to the state to fulfil the purpose of the grant." State v. Railroad, 75 N.H. 327, 337, 338. Upon transfer, the town will be "in fact a public agent exercising powers for the public advantage" (McMillan v. Noyes, 75 N.H. 258, 263) rather than for its own benefit in its corporate capacity (Higginson v. Treasurer c. of Boston, 212 Mass. 583).
The defendants' offer of proof was properly rejected as prematurely made. It had no relation to the issue of title. The evidence was calculated neither to establish title by prescription, nor abandonment by the owner of record. Howard v. Britton, 67 N.H. 484; New England Box Company v. Wood, 81 N.H. 124. On the contrary it tended to show permissive use by the defendants. No exception to the findings incorporated in the decree of title is presented by the defendants' bill, and their rights are fully protected by the privilege reserved to renew their offer at or in advance of the hearing upon damages.
In support of the final motion to dismiss, it is said that the description of the land to be condemned, as contained in the 1939 act, is too vague and indefinite to permit its identification with certainty; and that the Governor and Council exceeded the authority conferred, by taking more land than was intended by the Legislature. The taking authorized was of "the northerly end of said Long Island, to include the whole of the point." The land was to be taken "for the purpose of providing a public park for bathing facilities and a recreational area." We are aware of no requirement for more precise description. Identification with certainty results from the survey caused to be filed in accordance with the general statute. R.L., c. 27, s. 24. Authority to determine the extent of the taking in the designated area might properly be delegated. Concord Railroad v. Greely, supra; Petition of the Mount Washington Road Co., supra. No basis appears for the claim that this authority was exceeded. The land taken includes "the whole of the point." Little if any land south of what may reasonably be regarded as constituting "the point" is included in what is taken. From high water at the southeasterly bound to high water at the southwesterly bound is approximately four hundred fifty feet. The tract is in fact only the "tip" end of the island. Whether the quantity taken is appropriate to the probable use is a legislative question of expediency with which the courts are not concerned. Joslin v. Providence, 262 U.S. 668.
Legislative specification of the names of the owners of the land to be taken was not required. The designated procedure, under the general statute, provided for notice to the owners, and for the determination of their respective titles, as well as compensation for land taken. The contention that some of these steps should have been taken by the Legislature before enactment of the special legislation cannot be sustained.
Exceptions overruled.
JOHNSTON and KENISON, JJ., did not sit: the others concurred.