Flagg v. Bradford

• Decision Date: 20 May 1902
• Citation: 63 N.E. 898,181 Mass. 315
• Parties: FLAGG v. BRADFORD, State Treasurer.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

181 Mass. 315

63 N.E. 898

FLAGG v. BRADFORD, State Treasurer.

Supreme Judicial Court of Massachusetts, Worcester.

May 20, 1902

COUNSEL

Herbert

Parker and Henry H. Fuller, for plaintiff.

J. M Hallowell, Asst. Atty. Gen., for defendant.

OPINION

MORTON, J.

This is an action to recover of the defendant, as he is treasurer and receiver general of the commonwealth, a sum of money which has been certified to him by the metropolitan water board to be paid the plaintiff for land taken under St. 1895, c. 488. The action was brought in the superior court for Worcester county, and a jury trial was claimed by the plaintiff. There was a motion to dismiss on the ground that the superior court for Worcester county had no jurisdiction of the case. This motion was granted, and the plaintiff duly excepted to and appealed therefrom, and thereupon the justice of the superior court, by consent of the parties, reported the case to the full court for its consideration and determination. The action is, in substance and effect, we think, an action against the commonwealth. The liability is a liability of the commonwealth, arising out of the taking of land by the metropolitan water board for the purpose of a metropolitan water supply, and any judgment that might be rendered would be payable out of the proceeds of the bonds which the treasurer and receiver general is authorized to issue from time to time in the name and on behalf of the commonwealth at the request of the water board, for the payment of the land taken and the damages and expenses incurred in the construction of the works. Although nominally against the defendant, it seems to us plain that the action is really against the commonwealth. See Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140. The statute does not create a trust in favor of landowners who become entitled to damages, but merely provides a fund out of which it directs the defendant, as a public officer and agent of the commonwealth, to make payment in such cases when the amounts due have been certified to him by the water board. The case of Nash v. Com., 174 Mass. 335, 54 N.E. 865, is not applicable.

The next question is whether there is any provision under which the commonwealth can be sued in the courts of Worcester county for the sum certified to be due to the plaintiff. Our attention has not been called to any such provision. The statute under which the land was taken provides for...