I understand that the "operation" of the dry dock contemplated by your question consists of the cradling of the vessels preparatory to the work of repairing and overhauling by the owners or persons to be employed by them.

A consideration of your question must be based upon the fact that by virtue of the provisions of chapter 335 of the Special Acts of 1915, and chapter 748 of the Acts of 1911, the Legislature has authorized the construction of a dry dock and the expenditure of the public moneys therefor. Furthermore, it must be based upon the definite proposition now before you for approval, namely, the construction of a dry dock "equipped with modern facilities and appliances sufficient in size for the accommodation of any modern steamship." I do not understand that up to the present time private enterprise has constructed and equipped, nor that there is any reasonable expectation that it will construct and equip, in Boston Harbor, a dock possessing the magnitude and affording the facilities which the Legislature believes necessary to the development of the resources of the Commonwealth and the preservation of her industrial and commercial prosperity. The proposition, therefore, is this: Do the acts of the Legislature, above referred to, authorizing the expenditure of the State's moneys raised by taxation for the construction and operation of such a dry dock in Boston Harbor, constitute a violation of Article X. of the Declaration of Rights, providing that "no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent or that of the representative body of the people?" This provision has been held to mean that the property of the individual can be taken only for a public purpose. Talbot v. Hudson, 16 Gray, 417. "This is equally true whether the property is a dwelling house taken by right of eminent domain, or money demanded by the tax collector." Opinion of the Justices, 182 Mass. 606.

The legislative adjudication of the wisdom of constructing a dry dock carries with it a presumption in favor of its constitutionality, which can be overthrown only upon the clearest proof. "Courts are bound to presume the existence of those circumstances which will support it and give it validity." Wellington, Petr., 16 Pick. 96; Opinion of the Justices, 8 Gray, 21; Talbot v. Hudson, 16 Gray, 417. "The purposes of the act as declared therein, its general structure, the nature of its provisions, its probable operation and effect are

all to be considered in determining whether it is a lawful exercise of legislative power."

To apply these principles of interpretation to the question before us, what are the declared purposes of the legislative act? They are expressed in the title to chapter 748 of the Acts of 1911, "An Act relative to the development of the port of Boston." They are expressed in section 2, providing that "the Directors of the Port of Boston shall be the administrative officers of the port, shall cause to be made all necessary plans for the comprehensive development of the harbor," etc. They are expressed in section 12, which makes it one of the duties of the Directors forthwith "to make, and, so far as may be practicable, to put into execution, comprehensive plans providing on the lands now owned or hereafter acquired by the Commonwealth in the area described in section four of this act, adequate piers, capable of accommodating the largest vessels, and in connection with such piers suitable highways, waterways, railroad connections and storage yards, and sites for warehouses and industrial establishments," and requires a report of "all necessary plans and estimates of cost for the construction of a dry dock equipped with modern facilities and appliances, sufficient in size for the accommodation of any modern ocean steamship." They are expressed in section 5 which, by the act first referred to, includes a dry dock providing for "the constructing, or securing the constructing or utilizing of, piers and, in connection therewith, highways, waterways, railroad connections, storage yards and sites for warehouses and industrial establishments," etc. In short, the purposes of the legislative acts include the comprehensive development and improvement of the principal harbor of the Commonwealth as a gateway through which the products of Massachusetts industry, and the articles of her commerce, may come and go to the greatest advantage of her citizens. They include the improvement of that system of transportation, both by water and land, for those products and those articles upon which the prosperity of our citizens depends.

The improvement of Boston Harbor is no new field for the legitimate expenditure of public money. In the case of Moore v. Sanford, reported in 151 Mass. 285, in passing upon the constitutionality of an act providing for the condemnation of flats in Boston Harbor, and the filling, improving and ultimate sale of them, a purpose which inevitably to some extent entered the field of private enterprise, the Supreme Court

said the act "was for the avowed purpose of improving the harbor of Boston and also of providing better and more accommodations for the railroad and commercial interests of the city by the solid land which would take the place of the flats over which the tide ebbed and flowed;" and further, "that the improvement of Boston Harbor is an object of a public nature, and thus that lands taken for this purpose are taken for a public use can hardly be controverted."

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In commenting upon this case in Opinion of the Justices, 204 Mass. 207, the same court refers to it as a case which 'rests upon the ground that the work done was in a true · sense for the promotion of commerce, through its direct and close relation to the improvement of Boston Harbor in making connections between the great highways used for interstate commerce and the numerous ships that are passing back and forth between Boston and foreign ports. All that was done was held to be fairly incidental to the main purpose of promoting commerce between the United States and distant countries. The improvement of harbors and the construction of public docks, wharves, and possibly of warehouses, to be used under governmental authority as a part of the facilities for the transportation of merchandise in commercial enterprises, and the building of railroads to be used for the same object, may all affect the public so directly as to constitute a public purpose for which money raised by taxation may be expended."

In my judgment the development and improvement of the port of Boston is a purpose for which the Legislature may constitutionally authorize the use of the public moneys. The advisability or wisdom of appropriating them to such a use are matters entirely within the discretion of that body. It is within the power of the Legislature to determine further that a dry dock may be an essential part of the improvement of the harbor, and even necessary to its full development. But whether the benefits hoped for justify the expenditure of any of the moneys so appropriated for the particular dry dock now in question before the Governor and Council, as an essential part of such development and improvement, is a question the responsibility for answering which the Legislature has placed upon the Directors of the Port and yourselves.

Very truly yours,

HENRY C. ATTWILL, Attorney-General.

The Directors of the Port of Boston have authority, with the approval of the Governor and Council, under R. L., c. 96, as amended by St. 1911, c. 748, § 4, to license the building by the city of Boston of a structure within the boundary of the property granted to it by Spec. Acts, 1915, c. 326.

SEPT. 17, 1915.

Directors of the Port of Boston, 40 Central Street, Boston, Mass.

GENTLEMEN: Under date of Sept. 3, 1915, you have called my attention to chapter 326 of the Special Acts of 1915, whereby the harbor line in Boston Harbor at Fort Point Channel is changed by advancing it approximately 50 feet southeasterly from Dorchester Avenue for a distance of 1,500 feet, and the city of Boston is authorized to build a sea wall on the new line "and to fill solid, without payment of compensation for land of the commonwealth or for the displacement of tide water, the area enclosed by said sea wall for the purpose of constructing a high pressure fire pumping station;" and the city is further authorized "to hold, lease, sell or so much of said area as is not appropriated" to this purpose; and to the further fact that the city of Boston has applied to your Board for a permit to build a structure 60 by 200 feet at the corner of Dorchester Avenue and Summer Street. This application, therefore, requests a permit to build 10 feet outside of the harbor line as established by said act.

use ...

You have since informed me, however, that the city of Boston has withdrawn its request as to this 10 feet, and is now applying for a license only as to territory within the new harbor line.

On this state of facts you have requested my opinion as to whether your Board has authority to grant a permit for a location within the boundary of the property granted by the Legislature to the city of Boston.

St. 1911, c. 748, § 4, confers upon your Board all the rights, powers and duties pertaining to the Board of Harbor and Land Commissioners, in general, with respect to the port of Boston. Under section 2 of said act your Board is given immediate charge of the lands now or hereafter owned by the Commonwealth upon or adjacent to the harbor front, with certain exceptions, "and of the construction of piers and other public works therein."

The powers of the Harbor and Land Commissioners pertinent to the question raised by you are set forth in R. L., c. 96, 14, 16 and 17. Section 14 provides, in part, that if harbor lines are established by the General Court "no wharf, pier or other structure shall thereafter be extended into said harbor beyond such lines." Section 17 provides:

Said board may license and prescribe the terms for the construction or extension of a wharf, pier, dam, sea wall, road, bridge or other structure, or for the filling of land or flats, or the driving of piles in tide water below high water mark, but not, except as to a structure authorized by law, beyond any established harbor line, nor unless with the approval of the governor and council, beyond the line of riparian ownership.

Accordingly, it would seem to be clear that your Board has authority to grant a petition to build any structure within the established harbor lines.

Your doubt apparently arises from the fact that section 2 of chapter 326 of the Special Acts of 1915 directly authorizes the city to build a sea wall and fill solid the area for the purpose stated..

While it is undoubtedly open to the city to proceed under this statute, with the approval of your Board under R. L., c. 96, 16, if the city of Boston wishes to go further, and, disregarding the authority granted to it by the special act of 1915, seeks a license from your Board under R. L., c. 96, § 17, such course would seem to be open, subject to the limitation against any structure "beyond any established harbor line." I cannot believe that in enacting the aforesaid special act of 1915 there was any intention on the part of the Legislature of abrogating or limiting the powers conferred by R. L., c. 96, § 17. A special act such as this would not by implication repeal a general law unless there was an absolute inconsistency. There seems to be nothing inconsistent in your Board granting a license to do something which the Legislature has approved, nor in the city of Boston taking the position that it does not choose to accept the special grant of the Legislature, but to proceed under the general laws.

If the city elects to follow this course there may be considerable doubt as to whether it is not thereby debarred from accepting the privileges conferred by the 1915 act; but upon that point no opinion at present seems required.