Executive Air Service, Inc. v. Division of Fisheries and Game

• Decision Date: 03 April 1961
• Citation: 173 N.E.2d 614,342 Mass. 356
• Parties: EXECUTIVE AIR SERVICE, INC. v. DIVISION OF FISHERIES AND GAME et al., and a companion case. *
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 614

173 N.E.2d 614

342 Mass. 356

EXECUTIVE AIR SERVICE, INC.

v.

DIVISION OF FISHERIES AND GAME et al., and a companion case.^*

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 10, 1961.

Decided April 3, 1961.

Allan M. Hale, Middleboro, for Executive Air Service, Inc.

George B. Rowlings, Boston, and Peter W. Kilborn, Cambridge, for Coonamessett Ranch Co.

Edward J. McCormack, Jr., Atty. Gen., and William D. Quigley, Asst. Atty. Gen., for Division of Fisheries and Game and another.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WILKINS, Chief Justice.

These cases are here on report following the sustaining of demurrers (1) in the first case to a bill in equity for a declaratory decree under G.L. c. 231A, and (2) in the second case to a petition under c. 258, relating to claims against the Commonwealth.

The First Case.

The bill, which is brought against the Division of Fisheries and Game, the Commonwealth, and Coonamessett Ranch Co., makes these allegations. The plaintiff for many years has operated in the town of Falmouth an airport, known as the Coonamessett Airport and as The Falmouth Municipal Airport. The airport is located upon about eighty acres of land leased to it by the defendant Ranch company. The present lease, dated May 1, 1955, is for a term of ten years. Under date of July 28, 1958, the director of the defendant division, ¹ acting under G.L. c. 131, § 25 (as amended through St.1951, c. 535), acquired by purchase from the defendant Ranch company two parcels of land in Falmouth containing about 1,400 acres which include the land covered by the plaintiff's lease. In the deeds, which are subject to the plaintiff's lease, the Commonwealth is the grantee. The land is registered, and certificates of title have been issued by the Land Court. General Laws c. 131, § 25, provides that property cannot be acquired 'without the approval of the selectmen,' and such approval was not obtained. The defendant division has assumed control of the 1,400 acres, and has ordered the plaintiff to terminate its activities at the airport. One of the prayers is for a binding declaration as to the validity of the deeds and of the certificates of title.

There were two demurrers to the bill, one by the Commonwealth and the division and one by the Ranch company. One ground common to the demurrers is that proceedings under G.L. c. 231A will not lie against the Commonwealth. This ground of demurrer is good. Chapter 231A ² relates to procedure and does not deal with jurisdiction. Worcester County Nat. Bank v. Commissioner of Banks, Mass., 166 N.E.2d 551. ³

By enacting the declaratory judgment procedure the Commonwealth did not consent to become a defendant in this type of suit. 'Under our system of jurisprudence the commonwealth cannot be impleaded in its own courts, except with its consent, and when that consent is granted it can be impleaded only in the manner and to the extent expressed in the statute.' Glickman v. Commonwealth, 244 Mass. 148, 149, 138 N.E. 252. Putnam Furniture Building Inc. v. Commonwealth, 323 Mass. 179, 185, 80 N.E.2d 649. Franklin Foundation v. Attorney Gen., 340 Mass. 197, 203, 163 N.E.2d 662.

In other States it is generally held that sovereign immunity is not affected by declaratory judgment procedure. State v. Larue's Inc., Ind., 154 N.E.2d 708, 712. Purity Oats Co. v. State, 125 Kan. 558 559, 264 P. 740. Davis v. State, 183 Md. 385, 393, 37 A.2d 880. Lucas v. Banfield, 180 Or. 437, 441, 177 P.2d 244. Hill v. Beeler, 199 Tenn. 325, 331-333, 286 S.W.2d 868. W. D. Haden Co. v. Dodgen, 158 Tex. 74, 77, 308 S.W.2d 838. Borchard, Declaratory Judgments (2d ed.) 374. A similar view prevails in the Federal courts. See 62 Harv.L.Rev. 787, 821-825.

The case involves the title of the Commonwealth to real estate. The Commonwealth is the real party in interest, and the case cannot proceed without it. G.L. c. 231A, § 8, inserted by St.1945, c. 582, § 1. See Morgan v. Banas, 31 Mass. 694, 698, 122 N.E.2d 369. This is not a situation such as that in St. Luke's Hospital v. Labor Relations Comm., 320 Mass. 467, 70 N.E.2d 10, where the agency was the only party directly concerned.

Order sustaining demurrers affirmed.

The Second Case.

The petition makes substantially the same allegations as did the bill in the first case. There are prayers for injunctive relief against the Commonwealth and the division, and for damages. There are two grounds of demurrer: (1) Failure to allege facts upon which the relief requested may be granted. (2) A petition under G.L. c. 258 may be brought for damages but not to try title to land or restrain the Commonwealth.

General Laws c. 258, § 1, provides, 'The superior court, except as otherwise expressly provided, shall have jurisdiction of all claims at law or in equity against the commonwealth. Such claims may be enforced by petition stating clearly and concisely the nature of the claim and the damages...