USA > Massachusetts > Worcester County > Worcester > Town annual reports of the several departments for the fiscal year ending December 31, 1883 > Part 8
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During the last year the COMMISSION have been presented by Mr. Charles H. Davis with an elegant representation, in Japanese bronze, of what they assume to be Ardea Herodias, the Great Blue Heron ; although not positive that Asia, or the Islands con- tiguous, are comprised within its habitat. Magnified as is this work of art, the living bird of the same genus betrayed no jeal- ousy, as he did subsequently when beholding the connubial happiness of the pair introduced from Philadelphia by Mr. E. S. Knowles. Perhaps he did not recognize the kinship of species ; a matter of less wonder since men and women have been overheard at a distance of but ten feet, marvelling if "the creature were alive " ! The pecuniary value of that gift is of least importance in the estimation of the COMMISSION, considerable though it must have been. But they prefer to recognize in it a new and mate- rial evidence of the interest which Mr. Davis has always shown in their work; another proof of his zeal for the adornment of his native City ; additional testimony that some tastes are heredit- ary, and that his liberality and its direction descend naturally enough from one who, long years ago, made proffer to Worcester of a large tract of land which, it is to be greatly regretted, is not now in municipal possession and popular enjoyment.
The COMMISSION improve this, their first opportunity to express their sense of the loss sustained by themselves in the departure from the City of its late Water Commissioner, Mr. Frank E. Hall. Whatsoever assistance he could give them, during many years of official intercourse, was rendered in no halting, hesitating, half-hearted manner. His co-operation was ever most cordial, dictated by a generous nature and confirmed by a clear percep- tion, too seldom evinced, that such thorough accord tends most
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directly to promote the public welfare. Perhaps Worcester can afford to dispense with the expert service of men who, like Mr. Hall, have grown up in her employment ; and surrender them to the better appreciation of private corporations in our smaller towns ! A few dollars are doubtless saved for the immediate present. And yet
" The scripture saith, 'Thou shalt not muzzle the ox that treadeth out the corn. And, The labourer is worthy of his reward.'"
The COMMISSION are observing closely the character of that growing Winter's dump upon the Common. As a convenience for the Highway Department, it will be suffered so long as it is not actually injurious. But the Street Railway Co. has no claims upon their official consideration. And when such messes are loaded up for deposit upon the Public Grounds, as was noticed by the Chairman on the evening of the 23rd January, cur- rent, near Harrington Corner, it may become necessary to borrow the Salt and Sand Metres used in Boston, by whose disclosures prohibition was rendered imperative upon the Common of the metropolis.
The Ordinances of the City under the broad caption of " Police," define the following among other duties of the City Marshal :
" It shall be his duty to enforce and carry into effect all laws and City Ordinances, and to be vigilant to detect and punish any breach thereof."
No portion of his duties, no corresponding obligation of his subordinates, is anywhere or at any time transferred to the strong shoulders of the COMMISSION OF PUBLIC GROUNDS. Yet the Stat- utes of Massachusetts and the Ordinances of Worcester take Shade-Trees under their care, denounce penalties for any careless or wanton damage to them, and assume that any injury will be punished as promptly as the sale of a glass of beer by some poor woman who uses illegal methods of eking out a wretched liveli- hood. The Chairman of the COMMISSION has complained ; although ordinary " vigilance to detect," by those who are sworn
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and paid to do it, should have anticipated or precluded the neces- sity for such action on his part. The late Judge Williams told the Chairman as he was detailing instances of neglect, if not of " hush thee my baby ! In the tree top !", to complain thereafter directly to him. Quite recently trees in Elm street, by the Lin- coln House ; and on Main street before the Central Exchange, and Flagg Block ; are gnawed daily. No patrolman sees it, although every other person does : perhaps none care to " detect and punish " the offender. But every man of them concurs in the policy of perpetually increasing the Force !
A year or two since, of a Sunday, the Chairman shew a pa- trolman, just now promoted, where a horse was in the very act of gnawing and destroying one of the largest Elms on Main street. The officer knew who was the owner, saying that he was at his devotions on Walnut street and must shortly be out in the world. Would he take the team to the Police-Office ? His beat would not expire for a little while longer. Would he tell his relief to notify the owner, when he came, of his liability, and complain at headquarters when he got there ? Yes ! but he never did. The Chairman went in person to the Police Office, as soon as he could walk thither, and narrated all the circumstances. That was all that came of it. The case was one of lawlessness, but it held neither beer nor rum !
Well,-on this 24th day of January, A. D., 1884, the Chair- man has himself accomplished a little bit of detective work that he asked a patrolman to undertake weeks since. It was done simply enough : just happening around at the right time.
What this COMMISSION would like to know, is,-if the Ordi- nances and Laws protecting Shade-Trees are meant to be regard- ed ; if they are comprised among those " Laws and City Ordi- nances " that the Marshal is sworn to "enforce and carry into effect ;" and if not, why not ?
Popular attention has been invited, in former Reports of this COMMISSION, to corporate aggression and usurpation. Trees have been mutilated, or cut down, not only without leave, but seem- ingly without the slightest idea on the part of the offender that
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any could be requisite but his own instance and volition. Two or three Telegraph Corporations know more about the true inwardness of the Common and Statute Law than they did, in their callow youth ; and if the knowledge came to them without extreme cost, they may thank the forbearance of the writer. For although vigilant like his colleagues, to guard the City from detriment, within their exclusive province ; he has not, more than they, any fondness for a wanton exercise of authority. If, after long sufferance and slowness to anger, the average man of Worcester had come to think that the gentle dews of Heaven could only be distilled over his garden or farm through a warp and woof of wires ; in whose location he was not consulted and for whose location he was never compensated ; he has mainly to thank a political education whereby the individual is subordinated to the corporation ; the man made in the image of God to the bastard simulacrum fostered by a half-century of statutory privilege and municipal concession.
" The horse-leech hath two daughters, crying Give! Give !"
The Great and General Court can grant much ; being at times profuse in that species of largesse that costs him so little who re- joiceth that it is more blessed to give than to receive.
But, for the safeguard of the individual, the unit of a free State ; for the better muniment of the public liberty,-the sum and substance of private right and immunity from all forms of oppression ; all pervading and instinct with the breath of Revo- lutionary life, exists in actual and hearty force, the Massachusetts Bill of Rights, qualifying, explaining, defining, and restricting. Thus far shalt thou go, and no farther !
Does the latter-day abject,-ready, or even solicitous to pay the duty on Tea ! inquire with bated breath-Quis custodiet custodes ? Who shall oversee the watchmen ? The Bill of Rights-never read in our schools ! and therefore scarcely known out of them ; provides for the permanent establishment of a tribunal as
" Free, impartial, and independent as the lot of humanity will admit."
And therefore, although the General Court too often "slops over ;" abnegating its sovereignty with but hasty audience or de-
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CITY DOCUMENT .- No. 38.
liberation ; delegating the tremendous privilege of Eminent Domain to the more importunate and least meritorious ; but in- variably to those who would buy in open market, at a fair price, if they were not authorized to extort ; it has never yet cared, or dared, to enact that a
" Part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the repre- sentative body of the people."
Or that
" Whenever the public exigencies require that the property of any individ- ual should be appropriated to public uses he shall (not) receive a reasonable compensation therefrom."
With how much nicer precision, then, would a concession of such almost absolute power be guarded, when sought to be exer- cised by a body of individuals associated for private gain ! What exact precaution to ensure that every step shall be carefully indi- cated in advance ! each successive location, whether of rail or wire, designated and allowed by the proper and competent au- thority ; and all of those locations or positions subject to the fundamental rights of property so jealously protected by the Bill of Rights !
The same Charter that creates a CITY COUNCIL, with its Board of Aldermen, provides in its very next section, for the establish- ment of a COMMISSION OF PUBLIC GROUNDS. The same Charter that defines the jurisdiction of either or both branches of that City Council over the highways and streets, is particular and explicit in conferring upon such COMMISSION the
" sole care, superintendence and management of the Public Grounds belong- ing to said City of Worcester ;"
phraseology which, to an ordinary master of the English lan- guage, might appear sufficiently comprehensive and definite.
Any trespass upon their authority in derogation of Common Right ; whether emanating from ignorance or superciliousness ; could not be winked out of their sight, nor neglected when in plain view of the COMMISSION. Distorted and unseemly poles, illegally set within the notorious and well-defined limits of the
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Common, were felled in pursuance of orders duly issued by the Chairman. Some correspondence that preceded and followed this action is given, in this connection, and in proper sequence, for a more thorough explanation of the whole matter; so inter- esting, as affecting, in a measure, the most vital interests of the people :
[COPY. ]
COMMISSION OF PUBLIC GROUNDS. Worcester, Mass., December 13, 1883.
FRANK P. GOULDING, Esq.,
City Solicitor :
MY DEAR SIR :-
Will you kindly inform me if, by their Acts of Incorporation, or by the General Statutes, Telephone Companies are authorized to enter upon the Pub- lic Grounds of this City, and to erect and maintain their business poles thereon, without leave or license from this COMMISSION?
The matter appears plain enough to me-but there are those who will need to be convinced by your official opinion.
Believe me, most sincerely, your friend,
EDWARD WINSLOW LINCOLN, Chairman.
[COPY. ]
WORCESTER, MASS., Dec. 14, 1883.
EDWARD WINSLOW LINCOLN, Esq.,
Chairman, Comm'n of Public Grounds, &c.
MY DEAR SIR :-
In your letter of 13th inst., you ask me (whether) by their Acts of Incor- poration, or by the General Laws, Telephone Companies are authorized to enter upon the Public Grounds of this City ;- and to erect and maintain their business poles thereon, without leave or license of your Commission.
In answer, I would say that I am aware of no law which gives to Telephone Companies any such right; and I am of opinion that they have no such authority, and that such poles, not being in a highway, but on the Public Grounds of the City ;- set and maintained without your permission,-are there without any right whatever.
Yours Truly,
FRANK P. GOULDING,
City Solicitor.
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CITY DOCUMENT .- No. 38.
As connected with res gestæ, and illustrative of the inch and ell theory ; the following note deserves insertion, here :
TO THE EDITOR OF THE GAZETTE :-
I desire to state to the public my connection with the setting of the Tele- phone poles on the Common, which were cut down yesterday, by order of Commissioner Lincoln. Mr. Wilson, of the Telephone Co., applied to me, as Chairman of the Committee on Highways, for leave to set poles so as to con- centrate a large mass of wires with a cable. Alderman Coes, of the Com- mittee, Alderman Tatman, of the Committee on Lighting Streets, and Engi- neer Brophy, of the Fire Department, were consulted, and we all agreed that the change was a desirable one.
Accordingly, I gave Mr. Wilson permission, informally, to set three poles, but I understood they were to be set close to the inside edge of the sidewalk between Front and Park Streets. The location of the poles, where they were afterward set, was never contemplated by us, and was entirely without the knowledge of the Committee.
CALEB COLVIN, Chairman, Committee on Highways.
And now came a direct application to the City Council, from the Telephone Company, for leave to set poles within the limits of the Common. This was referred, as a matter of course, to the Highway Committee, with power to act: although it had be- come evident to the people, at least, that this COMMISSION claimed sole jurisdiction in the premises. Not desiring any controversy that could be avoided, the Chairman addressed a note to Alder- man Colvin, as follows :
COMMISSION OF PUBLIC GROUNDS.
Worcester, Mass., Dec. 20, 1883.
Alderman,
CALEB COLVIN, Chairman.
MY DEAR SIR :-
Will you provide for the removal, from the Common, of the pole lately set up illegally, by the N. W. corner of the Old South Meeting-house; or must I seek for redress, and remedy, in the only way that has hitherto approved itself effectual?
I spared it, as it is too good a stick to be spoiled, unnecessarily.
Very Respectfully,
EDWARD WINSLOW LINCOLN, Chairman.
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There are other Poles, with their armament of wires, that were set up and are now maintained within the limits of the Common ; whose location was never sanctioned by this COMMISSION. Asser- tion was profuse that the Board of Aldermen had designated the positions actually occupied ; and courtesy to that Honorable Body seemed to require that this COMMISSION should await its wiser and more considerate action. There would appear, at this time of writing, to have been some fearful lying, in the premises. The Aldermen are understood to disclaim, with entire unanimity, any responsibility for the location of those poles of an Electric Light Company. When due regard for comity ceases, and duty to the public demands action ; it will then devolve upon this COMMISSION to determine whether it may be better to tolerate in- vasion ; exacting an annual revenue per pole, or for length of wire; or to eradicate and efface. Possibly the reflection of light upon the COMMON, without charge, may be deemed to afford a partial compensation for that "location " which expects a remu- neration, from the municipality, for the illumination of Front Street !
For the invasion of popular sovereignty is flagrant and offen- sive. In the judgment of this COMMISSION, resting upon that but- tress of the Common Law; which, founded on the Rock of Ages, has ever been a sure reliance to him who had no other place whereon to put his foot ; no authority entrusted to, or lav- ished upon any municipal body can delegate power in dero- gation of Common Right. Whether that position be valid, or not, it cannot be disputed by the most refined casuist that, in their latest codification of the statutes, the " Plain People " have erected a barrier not to be surmounted save by their own idiocy and ignoble surrender :
"No highway, townway, street, turnpike, canal, railroad, or street railway, shall be laid out or constructed over a Common or Park dedi- cated to the use of the public, or appropriated to such use without interruption for the period of twenty years; nor shall any part of such Common or Park be taken for (widening or altering) a highway, town- way or street, unless with the consent of the inhabitants of the City or Town, after public notice, given in the manner provided in cases of the location and alteration of highways, setting forth the extent
11
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CITY DOCUMENT .- No. 38.
and limits of the portion thereof proposed to be taken. Such consent shall be expressed by vote of the inhabitants, if ten or more voters file a request in writing to that effect with the Selectmen, or the Mayor and Aldermen, within thirty days after the publication of the notice; in the absence of such request, consent shall be presumed."-[Public Statutes of Mass'tts, 1882. Chap. 54, Sec. 13-14.
And as the greater includes the less; the mention of so many by name, presupposing that they were every method of infringe- ment, or invasion of Common Right, known A. D., 1876, when that Act was passed; by parity of reasoning the law for the older rail may be considered law for the more modern wire. But, note ! those who still enjoy,-as well as those who would grasp it ! that the exclusive and unmolested possession and use of their COMMONS and PARKS can only be bartered, for the usual mess of pottage, by the people themselves, in Ward or Town meeting lawfully assembled !
The following correspondence, occurring since the above was written, is inserted here, although it passed within the current official year. It relates to the topic immediately under consider- ation, however ; and is of present interest as defining the fixed position of the COMMISSION upon the entire subject-matter :
[COPY.]
" WORCESTER DIVISION,
NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY.
Worcester, Jan. 14, 1884. E. W. LINCOLN, Esq.,
Chairman, Commission on Parks and Shade Trees
of the City of Worcester. DEAR SIR :-
In behalf of the New England Telephone and Telegraph Co., I would respectfully request permission to set two poles on the Common, near the Old South Church, on the East line of Main St. sidewalk, to carry cables for Telephonic purposes; also, to accommodate the Fire Alarm wires.
These poles will be tall enough to carry cables over the trees so as not to interfere with them whatever. Your early attention to this will greatly oblige, »
Yours, Very Respectfully,
W. F. BLACK,
Super'nt."
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PUBLIC GROUNDS.
COMMISSION OF PUBLIC GROUNDS.
WORCESTER, MASS., January 16, 1884.
W. F. BLACK, Esq.,
Supt. N. E. Telephone & Telegraph Co.
SIR;
The Commission of Public Grounds have considered your application for "permission to set two poles on the Common near the Old South Church on the East line of Main St. sidewalk to carry cables for Telephonic purposes, also to accommodate the Fire Alarm wires; " and would answer that, in their judgment, they are forbidden by the spirit, if not the letter, of the law, from according such leave.
The Statutes are explicit in their restriction of the power of allowing . encroachment, of certain kinds upon Commons or Parks, to the inhabitants of Cities assembled in Ward meetings, duly warned, whereat consent or denial shall be formally expressed by ballot. The Telephone is not specifically designated, as are highways, street-railways, &c. But, it must be borne in mind that the Telephone is a recent discovery,-the actual priority of inven- tion being even now a subject of litigation; and that your own patent is almost precisely coëval with the date of enactment of that Statute whereby it was designed to protect the integrity of Public Grounds.
The Commission cannot forget that just previous to the passage of what may well be termed the Disabling Act, the People of Worcester had made strenuous efforts and endured some sacrifices for the purpose of reclaiming their Common. Those efforts and sacrifices must have been familiar to the members of the General Court who passed the Statute of A. D. 1876. It is not doubted, by this Commission, that it was the deliberate intention of the Legislature to forbid and prevent any concession of right, or privilege, within " Commons or Parks dedicated to the use of the Public," save such as should be sanctioned by the People themselves, in their collective sovereignty.
The Commission do not conceive that you are subjected to inconvenience by their decision, adverse to your request, since the highways are open to you, by law, upon your compliance with legal requirements. If, as you assert, you charitably propose to accommodate the Fire Alarm wires, the Commission do not doubt that a suitable location, along such highways will. be designated by the Honorable Mayor and Aldermen.
But, for themselves,-this Commission recognize but one duty : that of inflexible fidelity to the trust committed to them.
I remain, Very Respectfully,
EDWARD WINSLOW LINCOLN, Chairman.
In the precipitate erection of Poles, by an electric construction company, somewhat earlier in the season, throughout Main Street,
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CITY DOCUMENT .- No 38.
statements were made to the Chairman of this Commission which led to the subjoined correspondence :-
[ Copy. ]
COMMISSION OF PUBLIC GROUNDS. Worcester, Mass'ts, 1 P. M., November 8, A. D. 1883.
My Dear Sir,
As it has become evident that an attempt has been made to impose upon this Commission ;- in order to gain for a private interest and behoof a concession which the Commission would not unreasonably withhold from a stated demand by the City, for public uses; this is to give notice that no wires, electric or otherwise, will be suffered to be affixed to the Shade- Trees of the City, whether by direct attachment; through eye-bolts; or, in any manner whatsoever.
EDWARD WINSLOW LINCOLN, Chairman.
The original was personally left by the Chairman, at the office of Charles B. Whiting, Electric Manager; and copies handed to William Brophy, Electrician for the City ; as well as to the City Marshal,-with the following postscript to the latter:
" The Marshal is requested to direct the officers to see that the above is complied with. E. W. L." [ Copy. ]
Nov. 9, '83.
" Mr. LINCOLN,
Dear Sir,
In reply to your communication of the 8th inst., I will say that it is not the intention of parties interested in the Electric Light Co. to " affix to the Shade-Trees of the City, by direct attachment through eye-bolts " any wires, or to injure the trees in any manner.
It will be necessary to pass wires between the limbs of trees occasionally, which I presume you will not object to as the wires which are insulated will then pass through rubber piping.
Very Respectfully, CHAS. B. WHITING.
How far that explicit notice, and the unconditional acceptance of its terms, have been observed in fact may be judged by any one who will use his eyes as he passes along the North front of the Common.
Yet, where it might help that company,-at the same time accomplishing work needed by the City, this COMMISSION has not
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hesitated to allow trees to be pruned of superfluous wood, under the competent supervision of Mr. J. G. Kelley, the expenses being defrayed by the Electric Light Corporation.
The COMMISSION will not protract this Report by enlarging upon their cherished design for a Broad Avenue to encompass the City. So much of it has already been built; so great and increasing is the use of it so far as completed ; so valuable has it become as a practical thoroughfare and also an agreeable and inviting way of introducing strangers to Worcester; that further argument in its behalf seems almost supererogatory. Along Park Avenue a settlement of homes is rapidly advancing ; population increases ; and public opinion has crystallized in firm support of the whole far-sighted measure. What is now lacking, chiefly,-are the cross-sections from Southbridge Street to Quin- sigamond ; and from West Boylston Street to Burncoat; affording what does not now exist, a facile and safe mode of inter- communication for those growing portions of the City.
As for the completion-Northwardly,-of Lake Avenue,- legally decreed as it has been for years, it might seem that the need of work for some of our unemployed townsmen who do not wish to beg nor loaf, would suggest also an opportunity. That Avenue will be comparatively idle and useless until constructed to its Northern outlet into Lincoln Street. When so completed it will not only furnish a most convenient way of access and egress for the people, to and from the Lake, but present an admirable mark of delimitation between the land reserved for especial use by the Hospital and that which should be secured by Worcester for a Common or Park.
The Public Grounds of Worcester, A. D., 1883, had their full representation of those " miserable curs" that render even Gov- ernors morose and disturb his present Excellency's serenity of temper. The plague of Dogs, upon the Common, is chronic, omnipresent. Sooner or later, a battue will be inevitable in the interest of common decency. As a " twin relic," it were better abated there where " the offence is rank," than at the distance of thousands of miles whither the " force of example can no farther
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