This case was considered by the full court on the bill, demurrer, plea, and certain facts found at the hearing before a single justice, and was reported in 174 Mass. 476. It now comes before us for a final decree on the pleadings and certain facts agreed by the parties, subject to objection as to their competency. We need only consider how far, if at all, the aspect of the case is changed by the competent facts agreed.
The defendants contend that a decree cannot be entered in this suit without first joining the city of Boston, which is made liable by the statute for such damages as the defendants suffer from the taking of an interest in their land, and they have moved to have the city made a party. This motion was rightly overruled. The city of Boston is not a proper party to this suit. Its rights and liabilities in reference to the taking are fixed by the statute, and it is not entitled to be heard on the question whether the defendants are violating the law; nor does the fact that the defendants must resort to the city for the recovery of their damages, and that the city may then raise some of the questions which have been heard and determined in this suit, constitute a sufficient reason for bringing the city into litigation on subjects to which its interests are only collateral.
The former decision was upon an averment of the bill that Copley Square, upon which said St. James Avenue abuts, “is an open square and a public park intended' for the use, benefit and health of the public, and is surrounded by buildings devoted to religious, charitable and educational purposes, some of which contain books, manuscripts and works of art of great value.” It is contended that the facts agreed fail to sustain this averment. *335Without considering these facts in detail, we are of opinion that they fully sustain the averment.
The agreed facts as to the construction of the building leave the case as it was formerly presented, without material modification. The erection of the building to its present height was expressly forbidden by the statute.
The statute is not unconstitutional as impairing the obligation of contracts. In addition to the express provisions contained in section three, covering certain kinds of damage, there is a general provision in section four which gives compensation to any person sustaining damage by reason of the limit of the height of the buildings provided for in the act.
Most of the matters stated in regard to the proceedings preliminary to the passage of the act, are incompetent.- The act must be construed by an application of its language to the subject to which it relates. If it can be given a reasonable construction which will sustain it as constitutional, it would be our duty so to construe it, even if it appeared that in the endeavors which suggested the legislation, considerations were presented to the Legislature which would not be a sufficient constitutional justification for such an enactment.
The facts disclosed in regard to the circumstances preceding the commencement of this suit do not sustain the defence of loches.
Decree for the plaintiff.
Order for Decree.
In the case of Hosea M. Knowlton, Attorney General, v. Henry Bigelow Williams et al., pending in the Supreme Judicial Court for the county of Suffolk:
Ordered, that the clerk of said court in said county make the following entry under said case in the docket of said court, and file a decree as follows, viz. :
This case came on to be heard and was argued by counsel and thereupon on consideration thereof it is ordered adjudged and decreed as follows: the defendants Williams f Ayer, trustees of the Westminster Chambers Trust, so called, and each of them, and their servants and agents are enjoined and restrained from maintaining the building mentioned in the *336 information, and known as Westminster Chambers, after the first day of October next, above the height of ninety feet, and from hereafter constructing or erecting it above that height, and from maintaining it above that height if newly constructed; loithout prejudice however to their right under the statute to maintain or erect and maintain on said building above the height of ninety feet such steeples, towers, domes, sculptured ornaments, and chimneys as the board of park commissioners of the City of Boston may hereafter approve; and the said Williams Ayer trustees are commanded and directed on or before the first day of October next to take down and remove those parts of the walls of said building which are above the height of ninety feet, and such other parts of said building as are above that height; this is without prejudice however to their right under the statute to erect and maintain such steeples, towers, domes, sculptured ornaments, and chimneys as the Board of Park Commissioners of the City of Boston may hereafter approve ; and the plaintiff shall recover his costs of these defendants. The other defendants will take no-costs.