Commonwealth v. Alger

Commonwealth v. Alger, 61 Mass. (7 Cush) 53, was decided by the Supreme Judicial Court of Massachusetts in 1851. The majority opinion was written by Justice Lemuel Shaw.

Parties: The defendant, Alger, was a Boston resident who owned property along the Boston harbor. The Plaintiff is the Commonwealth of Massachusetts.

Relevant Statutes: There are two statutes involved in this case

1) Colony Ordinance of 1647 which stated that owners of waterfront property also owned the adjoining land above the low water mark and within 100 rods of the land, with power to erect wharves and other buildings thereon; subject to the reasonable use of other individuals and of the public's ability to navigate. Construction was also subject to the restraints and limitations as the legislature may see fit to impose for the preservation and protection of public and private rights. 61 Mass. 53 (1851).

2) Massachusetts legislature enacted a subsequent statute pursuant to the Colony Ordinance of 1647 which established lines in the Boston harbor limiting how far out wharves may extend. The statutes stated that if a wharf extended beyond an established line, then it will be considered a public nuisance. In establishing these lines, the legislature overruled the Colony Ordinance of 1647 which allowed owners of Harbor-front land to build a wharf extending 100 rods into the harbor.

Story: In this case, Alger (Defendant) built a wharf in the Boston Harbor that extended beyond a line established by the Massachusetts legislature. Alger's wharf was otherwise within the geographical limits of the colony ordinance of 1647 and it did not impede or obstruct the public's navigation.

Issue: The issue in Commonwealth v. Alger is "What are the just powers of the legislature to limit, control, or regulate the exercises and enjoyment of a property owner's rights." 61 Mass. 53, 65 (1851). In short, when, if ever can a regulation be a taking? The Massachusetts Supreme Court held the Massachusetts Legislature's statutes creating the lines was constitutional law, and the legislature had the authority to make that statute. The statute establishing the line was binding on Alger and he violated the line. Id. at 102.

Sources of Regulatory Power

Justice Shaw held it is settled principle that, "every holder of property...holds it under the implied liability that his use of it may be so regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, not injurious to the rights of the community." Id. at 84.

Police power today is, "generally, but vaguely understood in American jurisprudence to refer to state regulatory power," but really encompasses more. 58 U. Miami L. Rev. 471, 473(2004). In an attempt to define police power, Shaw stated, "the government's power to enact such regulations for the good and welfare of the community as it sees fit, subject to the limitations that the regulation be both reasonable and constitutional." Id. at 479-80. Shaw goes on to explain that, "It is much easier to perceive and realize the existence and sources of this power, then to mark its boundaries, or prescribe limits to its exercise." 61 Mass 53, 85(1851).

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