67 
possibly have been thought a taking for public use at the time our constitution 
was drafted when the State was practically a wilderness without a city worthy of 
a name.‘6 
In arriving at his conclusion, dissenting Justice Finley alluded to 
changing circumstances. He documented these changes with statistics 
on demographic movement, municipal fiscal imbalance, and ‘“‘expert”’ 
opinions from economists and others “trained and experienced in 
the fields.” Perhaps these observations offer some guide as to how the 
public use concept might be reoriented. 
Can the doctrine be changed? 
In what has been described as the ‘‘quiet legal revolution’’,*’ the 
public purpose doctrine has undergone continuous evolution to per- 
mit increased positive governmental involvement in urban develop- 
ment, which contemporary urbanization requires. Despite the fact 
that its requiem was written over 20 years ago,*® the doctrine remains 
alive and well. 
The Massachusetts court has not gone as far as other courts, which 
have upheld slum prevention as a public purpose, but like most other 
courts, has used slum clearance as a legal crutch to uphold various 
redevelopment activities. 
The court has indicated that it will consider each case upon its 
own merits and will give weight to legislative findings of fact.*® 
In a recent decision, the court upheld a statute which empowered 
the Massachusetts Housing Finance Agency to make low-interest 
mortgage financing available to housing projects in which one fourth 
of the tenants would be of low-income category with the remainder 
being in the moderate income would be at most incidental and no 
greater than necessary to achieve the purposes of the act.*? 
The court overruled a previous advisory opinion on essentially the 
same issue,*! but because the revised act provided that each new project 
would be accompanied by elimination of an equivalent number of 
slum dwellings, the court apparently continued to rest its finding of 
public purpose, at least partially, on this basis: 
This provision we interpret as designed to ensure, among other things, that 
low income families will obtain substantial benefit from each project and that .. . 
each project will be matched within a reasonable time by public agency elimination 
of an equal number of substandard units. To this extent slum clearance and elimi- 
nation is thus added to the other objectives of the act.®? 
In determining public purpose, the court has continued to hold that 
public benefit must be “primary’’ with only ‘‘incidental’’ benefits to 
private individuals.* This implies that the court can determine where 
the line is. Moreover, it has continued to base its decision upon slum 
clearance as a valid purpose. Whether the Massachusetts court would 
uphold expenditure of public funds and the use of eminent domain for 
new community development on open, unblighted lands is open to 
46 Tbid., at p. 195 quoting Twin City Building and Investment Co. v. Houghton, 144 Minn 1, 174 N.W. 885. 
47 Morris, supra note 74. 
ahs qe “The Public Use Limitation on Eminent Domain: An Advance Requiem,’ 58 “Yale L. J.’”’ 
- 1949). 
49 McLean v. City of Boston, 327 Mass. 118, 97 N.E. 2d 542 (1951). 
50 Massachusetts Housing Finance Agency v. New England Merchants National Bank, 249 N.E. 2d 599 (1969). 
51 “Opinion of the Justices,’ 351 Mass. 716, 219 N.E. 2d. 18 (1966). 
52 Massachusetts Housing Finance Agency v. New England Merchants National Bank, 249 N.E. 599 (1969). 
8 “Opinion of the Justices,’”’ 334 Mass. 760, 135 N.E. 2d. 665 (1956). 
