COMMONWEALTH vs.

CYRUS ALGER

Facts:

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).[1] 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.

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.[1]
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).[2] 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.[2] 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).

Eminent domain vs. police power

Most notably, the court also attempts to differentiate between eminent domain and police power. In
what is often referred to as the most important paragraph of the opinion, the court explains that police
power, "is very different from the right of eminent domain, the right of a government to take and
appropriate private property to public use, whenever the public exigency requires it; which can be done
only on condition of providing a reasonable compensation therefore. The power we allude to is rather
the police power, the power vested in the legislature by the constitution, to make, ordain, and establish
all manner of wholesome and reasonable laws, statutes and ordinance, either with penalties or without,
not repugnant to the constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same." Id.[1]
It is often hard to distinguish between police power and eminent domain, Professor Benjamin Barros
states, "Shaw's attempt to make a principled distinction between eminent domain and the police power
was understandable. In the 19th century, it was widely accepted that just compensation was required
only for physical takings, and regulatory restraints on property were generally considered to be outside
of the scope of the Takings clause. Categorizing the law that prohibited Alger from building his wharf as
a regulation allowed Shaw to deny Alger's claim for compensation. By using the new term 'police
power,' Shaw tried to explain this rule in terms of two distinct government powers, each serving a
different purpose." 58 U. Miami L. Rev. 471, 480-81(2004).[2] Shaw provides obvious uses of police
power, such as prohibiting the use of warehouses for the storage of gunpowder when the warehouses
are located near homes or highways, placing restraints on the height of wooden buildings in crowded
areas and requiring them to be covered with incombustible material, and prohibiting buildings from
being used as hospitals for contagious diseases or carrying on of noxious or offensive trades. 61 Mass.
53, 85-86(1851).[1]
Justice Shaw reasoned the Massachusetts statute was, "not an appropriation of the property to a public
use, but the restraint of an injurious private use by the owner, and is therefore not within the principle
of property taken under the right of eminent domain." Id. at 86.[1] Shaw also thought the court's holding
in this case would promote certainty, "Things done may or may not be wrong in themselves, or
necessarily injurious and punishable as such at common law; but laws are passed declaring them
offenses, and making them punishable, because they tend to injurious consequences; but more
especially for the sake of having a definite, known and authoritative rule which all can understand and
obey." 58 U. Miami L. Rev. 471, 481 (2004).[2] Shaw gave an example of the certainty outcome he
expected to obtain with this holding: "The trademan needs to know, before incurring expenses, how
near he may build his works without violating the law or committing a nuisance; builders of houses to
know, to what distance they must keep from the obnoxious works already erected, in order to be sure
of the protection of the law for their habitations. This requisite certainty and precision can only be
obtained by a positive enactment...enforcing the rule thus fixed, by penalties." 61 Mass. 53, 96-97
(1851).[1] Applying this reasoning to the facts in Alger, Professor Barros concluded that, "the law
challenged in Alger thus legitimately established a point beyond which wharves could not be built, and
Alger's wharf was subject to such regulation even though it was not intrinsically harmful." 58 U. Miami L.
Rev. 471, 482 (2004).[2]
Compensation[edit]
Justice Shaw states that even though these prohibitions and restraints resulting from the Massachusetts
statute may diminish the profits of the owner, the owners are not entitled to compensation because
they are exercises of police power. (61 Mass. 53, 86).[1] Justice Shaw's statement regarding
compensation was generally accepted doctrine at the time, namely that the obligation to compensate
was limited to exercises of eminent domain. 58 U. Miami L. Rev 471, 480(2004).[2] However, passage of
time "would show this rule to be flawed." Id. at 481.[2]