Mcarthur Bros. Co. v. Commonwealth

• Decision Date: 02 January 1908
• Citation: 83 N.E. 334,197 Mass. 137
• Parties: McARTHUR BROS. CO. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 137

83 N.E. 334

McARTHUR BROS. CO. v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1908

COUNSEL

Chas. F. Choate, Jr., for petitioners.

Dana Malone, Atty. Gen., and James F. Curtis and Andrew Marshall Asst. Attys. Gen., for respondent.

OPINION

RUGG J.

This is a petition brought against the commonwealth for damages claimed to have been suffered by the petitioner by reason of breaches, committed by the commonwealth acting through the metropolitan water and sewerage board, of contracts entered into by him with it. The aggregate of the sums demanded, as set forth in the petitioner's statement of claim is about $390,000. The single question presented is whether an auditor can be appointed.

It is fundamental that under our jurisprudence the sovereign power cannot be impleaded in its own courts except by its own consent, and then only in the precise manner and to the exactly limited extent, which may be pointed out in the terms in which the consent is expressed. Such consent can only be granted by the Legislature, for our Constitution contains no provision touching the subject. Troy & Greenfield Railroad v. Com., 127 Mass. 43; Wesson v Commonwealth, 144 Mass. 60, 10 N.E. 762.

The first general law by which jurisdiction was conferred upon the courts to adjudicate upon claims against the commonwealth was St. 1879, p. 585, c. 255. Prior to this act the only relief open to those who had suffered damage by dealings with the representatives of the commonwealth was by petition to the Legislature. This act, which was substantially embodied in Pub. St. 1882, c. 195, gave cognizance only of claims 'founded on contract for the payment of money,' or upon sections 98 and 116, c. 63, Gen. St. 1860, the latter provisions referring to the management of railroads. It was discussed in Wesson v. Commonwealth, 144 Mass. 60 10 N.E. 762, and held that under its terms damages could not be recovered for breach of a contract, because this was not a claim for the payment of money by the commonwealth. Milford v. Commonwealth, 144 Mass. 64, 10 N.E. 516, determined that the statute did not authorize the recovery of expenses incurred by a town for the support of a state pauper, for the reason that the obligation to make reimbursement for such expenses did not arise out of contract, but was imposed by the terms of Pub. St. 1882, c. 86, §§ 25, 26. The Legislature in session when these two decisions were announced enacted St. 1887, p. 879, c. 246, which extended the jurisdiction of the court to all claims 'at law or in equity' with certain exceptions not here essential. Murdock Parior Grate Co. v. Commonwealth, 152 Mass. 28, 24 N.E. 854, 8 L. R. A. 399, was then decided, which held that although the statute as amended covered claims like those excluded in Milford v. Commonwealth and Wesson v. Commonwealth, it did not include those for the misfeasance or negligence of agents of the commonwealth in the performance of their duties. The other cases which have arisen under this statute (Nash v. Commonwealth, 174 Mass. 335, 54 N.E. 865; s. c. 182 Mass. 12, 64 N.E. 690; Flagg v. Bradford, 181 Mass. 315, 63 N.E. 898; Kennedy v. Commonwealth, 182 Mass. 480, 65 N.E. 828, and National Contracting Co. v. Commonwealth, 183 Mass. 89, 66 N.E. 839) afford no aid as to the question now presented.

The statute under which this petition is brought, and by which the conduct of the cause must be governed, is Rev. Laws, c. 201, as amended by St. 1905, p. 293, c. 370. Section 1 confers upon the superior court jurisdiction of all claims at law or in equity against the commonwealth. It is first to be noted the superior court alone is given original jurisdiction. This has been the tribunal designated in all the statutes, although until St. 1905, p. 188, c. 263, all other litigants having claims in contract or replevin of more than $1,000, or within Suffolk county of more than $4,000, had the option of bringing their litigation either in the Supreme Judicial Court or the superior court, and in most matters in equity there is now concurrent jurisdiction. While many statutes have conferred exclusive jurisdiction upon the Supreme Judicial Court, this one constitutes the superior court, which is the great trial court of the commonwealth, the exclusive tribunal for trials of this class of causes. It is also provided that the claim shall be enforced only by a petition, not by the ordinary process of writ or bill in equity open to all other suitors in the courts. The petition shall contain a brief statement of the nature of the claim. This is something more than a mere matter of procedure; it is an altogether new form of relief for causes which had theretofore been remediless. The word 'petition' here is used in a sense quite different from that in which it was employed in St. 1887, p. 993, c. 383. Worthington v. Waring, 157 Mass. 421, 32 N.E. 744, 20 L. R. A. 342, 34 Am. St. Rep. 294. The second section makes applicable to such a petition all 'provisions of law relative to tender, offer of judgment, set-off or recoupment.' The express reference to these particular incidents in the progress of a proceeding in court indicates an intention to make inapplicable other ordinary incidents, which are omitted, under the familiar principle of interpretation that express mention of one matter excludes by implication other similar matters not mentioned. It is further provided that there shall be no trial by jury but that the hearing shall be had before the court, and if the amount claimed is more than $2,000, before three justices. The petition must be brought in Suffolk county unless the amount claimed is $2,000 or less, in which event it may at the option of the petitioner be brought in the county of his residence. All these provisions indicate a plain intent on the part of the Legislature to provide a special form of procedure with unusual limitations. It is with this in mind that we approach the interpretation of the clause in the statute which states that 'all hearings shall be in open court.'

Hearing is technically applicable to rpoceedings in chancery ( Babcock v. Wolf, 70 Iowa, 679, 28 N.W. 490; Miller v. Tobin [C. C.] 18 F. 616), and is used in contradistinction to trial which is properly applicable to actions at law; but in modern usage no doubt the two words sometimes overlap in meaning. Final hearing is sometimes used to describe that stage of the proceedings which relates to the determination of the suit upon its merits as distinguished from those of preliminary questions, which are termed interlocutory. Galpin v. Critchlow, 112 Mass 339, 17 Am. Rep. 176; Akerly v. Vilas, 24 Wis. 165, 1 Am. Rep. 166; Joseph Dry Goods Co. v. Hecht, 120 F. 760, 57 C. C. A. 64; Hess v. Reynolds, 113 U.S. 73, 5 S.Ct. 377, 28 L.Ed. 927; Baltimore & Ohio R. R. v. Bates, 119 U.S. 464, 7 S.Ct. 285, 30 L.Ed. 436. But hearing is frequently and perhaps comnonly used in a broader and more popular significance to describe whatever takes place before magistrates clothed with and exercising judicial functions and sitting without jury at any stage of a proceeding subsequent to its inception. U.S. v. Patterson, 150 U.S. 65, 14 S.Ct. 20, 37 L.Ed. 999. In our statutes, trial and hearing are used indifferently to describe what takes place before an auditor. Rev. Laws, c. 165, §§ 55, 56, 59; Id. c. 173, § 81; St. 1900, c. 418. Hearing appears to have been treated as the accurate designation of proceedings before an auditor in Carpenter v. N. Y., N.H. & H. R. R., 184 Mass. 98 , 68 N.E. 28. See Worcester v. Lakeside Mfg. Co., 174 Mass. 299, 54 N.E. 833. Therefore, although the report of an auditor strictly becomes only prima facie evidence, the proceedings before an auditor are of greater dignity than the mere taking of depositions and may properly be termed hearings. But as all hearings provided for in the statute under discussion must be had in open court, it follows that there can be no hearings before auditors, for plainly an auditor is not the court but an officer appointed by the court. It would be natural to construe a requirement that all hearing should be in open court as meaning that all steps in the progress of the case shall be before the justice or justices constituting, for the time being, and convened for the purpose of organizing, the court, formally opened at a legally designated time and place, with the attendance of officers necessary for the proper transaction of its functions, prepared for the...