Danforth v. Groton Water Co.

• Decision Date: 03 April 1901
• Citation: 59 N.E. 1033,178 Mass. 472
• Parties: DANFORTH GROTON WATER CO.; VALE MILLS v. GROTON WATER CO.; VALE MILLS v. GROTON WATER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 472

59 N.E. 1033

DANFORTH GROTON WATER CO.; VALE MILLS v. GROTON WATER CO.; VALE MILLS v. GROTON WATER CO.

Supreme Judicial Court of Massachusetts, Middlesex.

April 3, 1901

COUNSEL

Chas K. Cobb and Wm. D. Whitmore, Jr., for plaintiffs.

Wm. F Wharton, for defendant.

OPINION

HOLMES, C.J.

These are petitions to the superior court for a jury to assess damages for the taking of water rights. The respondent filed motions to dismiss on the ground that the petitioners had not applied first to the county commissioners. The superior court dismissed the petitions, and on report its action was sustained by this court. Danforth v. Water Co., 176 Mass. 118, 57 N.E. 351. The decision was rendered on May 17 1900. On May 3 had been passed chapter 299 of the statutes of that year, but it escaped every one's attention until after the rescript had gone. A rehearing subsequently was granted by agreement of all concerned, on the single question of the effect of that act upon this case.

The water was actually withdrawn in November, 1897, and was taken not later than that date. By the respondent's charter the right of the petitioners to apply for the assessment of damages was limited to one year from the taking. Therefore as the law stood just before the enactment of St. 1900, c. 299, the petitioners had lost their chance of recovery from the respondent, because it then was too late to file new applications, and as the previous decision in this case has shown, the petitions on file could not be entertained. The statute provides that no such petition as the present 'now or hereafter pending in the Superior Court * * * shall be dismissed for want of jurisdiction in said court solely on the ground that no previous application for the assessment of such damages had been made to a board of county commissioners.' These words seem to us plainly to apply to the present petitions. It is true that the petitions had been ordered to be dismissed, but the orders were made subject to a report to this court, as we have said, and the cases were still pending in the Superior Court. There can be no doubt of the intent of the statute, and the only question is whether it is constitutional with regard to those who, like the respondent, at the time of its passage had a good defense. There certainly is a strong argument that as against parties in the respondent's position the act cannot be sustained. In Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483, in which it was held by a majority of the court that a repeal of the statute of limitations as to debts already barred violated no rights of the debtor under the fourteenth amendment, Mr. Justice Miller speaks as if the constitutional right relied on were a right to defeat a just debt. But the constitutional right asserted was the same that would be set up if the Legislature should order one citizen to pay a sum of money to another with whom he had been in no previous relations of any kind. Such a repeal requires the property of one person to be given to another when there was no previous enforceable legal obligation to give it. Whether the freedom of the defendant from liability is due to a technicality or to his having had no dealings with the other party, he is equally free, and it would seem logical to say that if the Constitution protects him in one case it protects him in all. With regard to cases like Campbell v. Holt. under the State Constitution the later intimations of this court have been that such a repeal would have no effect. Bigelow v. Bemis, 2 Allen, 496, 497; Prentice v. Dehon, 10 Allen, 353, 355; Ball v. Wyeth, 99 Mass. 338, 339. See, also, Kinsman v. Cambridge, 121 Mass. 558; Rockport v. Walden, 54 N.H. 167; McCracken Co. v. Mercantile Trust Co., 84 Ky. 344, 1 S.W. 585; Cooley, Const. Lim. (6th Ed.) 448. Nevertheless in this case, as in others, the prevailing judgment of the profession has revolted at the attempt to place immunities which exist only by reason of some slight technical defect on absolutely the same footing as those which stand on fundamental grounds. Perhaps the reasoning of the cases has not always been as sound as the instinct which directed the decisions. It may be that sometimes it would have been as well not to attempt to make out that the judgment of the court was consistent with constitutional rules, if such rules were to be taken to have the exactness of mathematics. It may be that it would have been better to say definitely that constitutional rules, like those of the common law, end in a penumbra where the Legislature has...