Number 1. July 22, 1968

Number 1. July 22, 1968 HONORABLE EDWARD J. RIBBS Commissioner ofPublic Works 100 Nashua Street Boston, Massachusetts 021 14 Dear Commissioner Ribbs: You have requested my opinion on the proper interpretation of the second paragraph of G.L. c. 79, §3, which provides: "If the person in possession of property which has been taken in fee, or in which an easement has been taken, by eminent domain under this chapter refuses to permit the body politic or corporate by which the taking was made to enter thereon and take possession thereof or to exercise its rights under the taking after thirty days' notice in writing sent to him by registered mail or posted upon the property so taken or in which an easement has been so taken, the board of officers having the direction and control of the public improvement in connection with which the taking was made may issue its warrant to the sheriff of the county in which the property is situated or to his deputy directing him to make entry on the property so taken and to take possession thereof or of the easement therein which has been taken, on behalf of said body politic or corporate, and such sheriff or his deputy shall forthwith execute said warrant using such force as he may deem necessary for the purpose." (Emphasis supplied.) Your letter states: "There is presently under construction in the City of Gardner, work on a section of Route 68, a Federal Aid Secondary Highway pursuant to a layout and decree of the County Commissioners of the County of Worcester and under General Laws, Chapter 82, Sections 1-16 and the Federal Aid Highway Act of 1956. "The work was ordered upon petition of the Mayor of Gardner and others which was filed with the Board of County Commissioners on February 3, 1967. Part of the decree by the Worcester County Commissioners laying out Route 68 Relocation provided that the City of Gardner pay certain awards made for takings and provided as follows: And the City of Gardner is hereby ordered to build and make specific repairs to said highway in accordance with the standard specifications of the Massachusetts Department of Public Works, and under the direction of the Engineer [sic] of said Department.' "The contract, awarded by the County to McDonald and Donovan, Inc., was executed by the State Department of Public Works on March 15, 1968. This contract, in standard form, provided that the work was to be done in accordance with certain specifications adopted and on file with the Department and consideration for the work to be paid by the Commonwealth as set out in an accompanying proposal. P.D. 12 27 "The work has been delayed by the refusal of an occupant to vacate a two-story wooden structure located on land within the layout and taken in connection therewith." It is my understanding that the portion of Route 68 involved is a county highway, rather than a state highway or town way, that title to the highway easements taken by the decree of the County Commissioners still lies in the County of Worcester, and that neither the Commonwealth nor the City of Gardner ever acquired any proprietary interest therein. The documents accompanying your letter indicate that the construction contract was awarded by your Department (and not by the County Commissioners, as stated in your letter), and that neither the County nor the City is a party thereto. I have been advised by members of your staff that your Department undertook this project pursuant to St. 1965, c. 679, §1, and St. 1967, c. 616, § 1, authorizing it to expend funds 'Tor projects for the laying out, construction, reconstruction, resurfacing, relocation or improvement of highways . . . and for construction of needed improvements on other through routes not designated as state highways and without acceptance by the commonwealth of responsibility for maintenance . . ." The background materials furnished by you suggest that your Department did so in order to facilitate federal reimbursement for a share of the construction costs. Your letter continues: "Counsel for the Worcester County Commissioners has stated that the remedy in this situation is for the City of Gardner to send or post notice and if, at the end of thirty days, the building is not vacated, to issue its warrant to the sheriff directing him to take the property in the name of the County. "The City Solicitor for the City of Gardner, however, disagrees and avers that the said City has no authority to issue the necessary warrant. He recommends that the Department of Public Works for the Commonwealth be looked upon to issue the warrant as being the Board of Officers having 'direction and control of the public improvement' here involved. "Interpretation of the words 'board of officers having the direction and control of the public improvement in connection with which the taking was made' would appear to be at issue. Although the contract for work was executed by the Department, the layout was made by the County Commissioners with technical assistance by State Engineers upon the petition of the City of Gardner. It appears that the taking authority in this case is the County of Worcester although the City is required to pay the land damage costs for the right of way. "In view of the differences in opinion as to which agency, political subdivision or Board is authorized to issue its warrant to the sheriff for eviction, the following questions are respectfully submitted: "( 1 ) Under the provisions of General Laws, Chapter 79, Section 3, is the City of Gardner, the Board of Commissioners for the County of Worcester, or the State Department of Public Works the proper authority to issue a warrant to the sheriff to proceed with eviction in this case? 28 P.D. 12 "(2) Does the written notice of taking have to be sent or posted by the same authority that issues the warrant to the sheriff to make entry and take possession? "(3) Under General Laws, Chapter 79, Section 3, which authority in this case should send or post the required written notice? "(4) Can possession be taken under said statute by the sheriff in behalf of a county on a warrant issued by the Department?" It should be noted at the outset that there is a fundamental distinction between a "body politic or corporate" and a "board of officers," as those terms are used in G.L. c. 79, §3. The former term refers to the legal entity on behalf of which land is taken or other official acts performed, such as the Commonwealth, its political subdivisions and certain private corporations. In the present context three "bodies politic or corporate" are involved: the Commonwealth, the County of Worcester and the City of Gardner. A "board of officers," on the other hand, is a group of individuals — such as your Public Works Commission and the Worcester County Commissioners - em- ployed by a "body politic or corporate" to act on its behalf. The first paragraph of G.L. c. 79, §3 imposes certain duties on "the board of officers by whom an order of taking has been adopted" while the second paragraph (quoted above) deals with the responsibilities of "the board of officers having the direction and control of the public improvement in connection with which the taking was made . . . ." In many instances the same "board of officers" falls into both categories, as where your Department takes land on behalf of the Commonwealth for a state highway and supervises all aspects of the layout, engineering and construction thereof. In other cases two different "boards of officers" may be involved, as where the Commonwealth acts through its Department of Mental Health in acquiring land for a state hospital and through its Bureau of Building Construction in erecting the buildings thereon. The possibility of a single project involving "boards of officers" of two different "bodies politic or corporate" for purposes of G.L. c. 79, §3, is, of course, implicit in your questions. It is clear that the phrase "the body politic or corporate by which the taking was made" in the above-quoted paragraph of G.L. c. 79, §3 refers in this instance to the County of Worcester. It is equally clear that whoever has the duty under that section to notify the former owner and issue a warrant to the sheriff, that warrant must direct the sheriff or his deputy to take possession of the subject land "on behalf of" the County of Worcester. The answers to your questions, however, also depend on the identity of "the board of officers having the direction and control of the public improvement in connection with which the taking was made" - which is far less clear. The latter issue is raised squarely by Question (1) in your letter. In answer to that Question, I am of the opinion that the "board of officers" having such "direction and control" is the Worcester County Commissioners, and hence, that they are the proper authority to issue the necessary warrant. As you point out in your letter, this project was undertaken pursuant to G.L. c. 82, §§1-16. Section 1 confers jurisdiction upon county commissioners to "lay out, alter, relocate and discontinue highways and order specific repairs thereon...." Under §8, the commissioners are required to "determine and specify the manner in which a new highway shall be laid out or an existing one altered, relocated or specifically repaired, and [to] specify in sufficient detail P.D. 12 29 the work required so that the same may be completed in accordance with the commissioners' directions, and the time within which it shall be completed, and each town shall perform the work so required within its limits unless other provision is made." The same section provides that "the commissioners or their agents shall examine the work as often as may be necessary during its progress to ascertain that it is well done according to the direction of the commissioners, and, in case the town does not perform the work to the acceptance of said commissioners, the provisions of sections fourteen and fifteen [authorizing the commissioners to impose certain sanctions against delinquent towns] shall apply." Section 8 also authorizes the commissioners to "apportion the expense thereof upon the county and towns, respectively, or [to] agree with the towns in which the highway is located or with the department of public works, or both, as to the apportionment of such expense to be paid by the towns, county or state, respectively." Under these procedures, which the record indicates were followed in the instant case, I think there is little doubt that the Worcester County Commissioners are "the board of officers having the direction and control of the public improvement . . . ." The Mayor of Gardner, in petitioning the County Commissioners for the project, was nothing more than an applicant; under G.L. c. 82, § §2 and 1 1, a group of private citizens could have played the same role. The fact that the City was ordered by the County Commissioners to pay the land damages arising from the takings and "to build and make specific repairs to said highway" still leaves the City in a subordinate position. While your Department has been intimately involved in the preparation and execution of the project, I think it has participated essentially in the capacity of advisor to and contracting agency for the County Commissioners. The assumption by your Department of immediate responsibility for the details of construction does not alter the fact that the County Commissioners have exercised ultimate "direction and control" over the project as a whole: its nature and location, and indeed, its very existence. It is by virtue of the Commissioners' decree, rather than any unilateral action of your Department, that the highway was ordered to be constructed "in accordance with the standard specifications of the Massachusetts Department of Public Works, and under the direction of the Engineer of said Department." Whether or not your Department could lawfully have undertaken the project without the approval of the County Commissioners, the fact remains that it did not follow this course. It is therefore my opinion, on the basis of the facts before me in this case, that the Worcester County Commissioners are the proper authority to issue a warrant to the sheriff under G.L. c. 79, §3. Turning to Question (2), I am of the opinion that the notice required by G.L. c. 79, §3 must be sent or posted by the same agency that issues the warrant thereunder. This, I believe, is the clear implication of the statutory language imposing the notice requirement. On the basis of my answer to Question (2), I answer Question (3) by advising you that the required notice under G.L. c. 79, §3 should be sent or posted by the Worcester County Commissioners. As to Question (4), I do not think that G.L. c. 79, §3, standing alone, would permit the sheriff to take possession of this property on the basis of a warrant issued by your Department. This conclusion is, I believe, dictated by my answer to Question (1). 30 P.D. 12 I do not, however, intend to foreclose the possibility of your Department's taking independent action at some future time pursuant to G.L. c. 81, §30, authorizing it to ''make all contracts and agreements and do all other things necessary to co-operate with the United States in the construction and maintenance of [federally-aided] highways . . . ." (Emphasis supplied.) Assum- ing without deciding that §30 is broad enough to authorize your Department to issue a warrant on behalf of the County Commissioners, it could do so only if this were "necessary to co-operate with the United States . . . ." In the absence of factual details showing that such action by your Department (rather than by the County Commissioners) is "necessary," G.L. c. 81, §30 has no application. See Boston, Worcester & N.Y. Street Ry. v. Commonwealth, 301 Mass. 283, 288. Very truly yours, ELLIOT L. RICHARDSON A ttorney General