Paddock v. Town of Brookline

Decision Date19 March 1964
Citation347 Mass. 230,197 N.E.2d 321
PartiesHazel PADDOCK v. TOWN OF BROOKLINE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Herbert Hershfang, Boston, for plaintiff.

Albert R. Mezoff, Boston (Phillip Cowin, Town Counsel, with him), for defendant.

Before SPALDING, WHITTEMORE, CUTTER, KIRK and REARDON, JJ.

KIRK, Justice.

The case comes ot us on the plaintiff's appeal from an order of the judge sustaining the defendant's demurrer to the declaration. G.L. c. 231, § 96. One of the grounds of demurrer is that the declaration fails to state a cause of action. G.L. c. 231 § 18, Second. Weiner v. Lowenstein, 314 Mass. 642, 646, 51 N.E.2d 241. The plaintiff did not seek to amend. She thus stakes the result of her action upon the adequacy of her case as set out in the declaration. Keljikian v. Star Brewing Co., 303 Mass. 53, 61, 20 N.E.2d 465. We examine the declaration to test its sufficiency.

The declaration alleges that on December 23, 1958, the plaintiff sustained injuries as a result of a fall on a defective sidewalk in the town of Brookline (the town) which had failed ot perform its duty to keep the sidewalk in a reasonably safe condition; and that, although she had failed to give notice in accordance with G.L. c. 84, § 18, 1 and § 19, 2 she was authorized to bring this action under the provisions of St.1960, c. 519.

We turn to St.1960, c. 519. That act, approved July 5, 1960, reads: 'Hazel Paddock of Brookline may maintain a suit against the town of Brookline under the provisions of section fifteen of chapter eighty-four of the General Laws for an injury which she received from a fall on a sidewalk at 73 Monmouth street in said town on or about December twenty-third, nineteen hundred and fifty-eight, notwithstanding the fact that she failed to give the notice required by sections eighteen and nineteen of chapter eighty-four of the General Laws.'

On demurrer the plaintiff is bound by her averment that the notice required by G.L. c. 84, §§ 18 and 19, was not given. Not only is the giving of the statutory notice a condition precedent to the bringing of an action, it is also an essential ingredient indispensable to the existence of the cause of action. Miller v. Rosenthal, 258 Mass. 368, 369, 155 N.E. 3, and cases cited. Souza v. Torphy, 336 Mass. 584, 585-586, 147 N.E.2d 157. See Brocklesby v. Newton, 294 Mass. 41, 42, 200 N.E. 351, and George v. Worcester, 326 Mass. 446, 448, 95 N.E.2d 167. 'The notice must not only be given, but that it was given must be pleaded.' Berlandi v. Union Freight R. R., 301 Mass. 47, 51, 16 N.E.2d 17, 20, and cases cited. The demurrer was therefore properly sustained unless St.1960, c. 519, saves the declaration.

It is plain that the purpose and effect of St.1960, c. 519, is to suspend the provisions of G.L. c. 84, §§ 18 and 19, as they relate to the plaintiff in connection with her alleged injury, or, otherwise stated, to exempt the particular case from the application of the general statute.

The parties agree that the sole issue in the case is whether St.1960, c. 519, is constitutional. The issue has two aspects: (1) whether the General Court can constitutionally create a cause of action for the benefit of a named individual by suspending the operation of a provision of the general laws, thereby dispensing with an essential element of a cause of action, and leaving the general law in full force as to all other persons similarly situated; and (2) whether a municipality has standing to raise the issue of the constitutionality of such special and preferential legislation in view of the extensive control the General Court has over cities and towns. We treat each aspect separately.

The town asserts that St.1960, c. 519, violates certain provisions of the Constitution of Massachusetts. It does not contend that it also violates the Constitution of the United States. We accordingly consider only the alleged violation of the Constitution of Massachusetts (the Constitution). We proceed with caution, however, granting every presumption and resolving all doubts in favor of the validity of the act. In the execution of our duty to uphold the provisions of the Constitution, we are nevertheless bound to declare this act unconstitutional if the General Court has clearly transcended its powers in enacting it. Davison v. Johonnot, 7 Metc. 388, 392.

The Constitution confers upon the General Court full authority 'to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances * * *; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same * * *.' (emphasis supplied). Part II, c. 1, § 1, art. 4, of the Constitution of Massachusetts.

From the beginning, this court has given effect to the broad sweep of power which the Constitution delegates to the General Court, and, although it has often upheld special legislation, it has indicated emphatically that the power so to legislate is not unlimited.

The first case, so far as we are aware, where the court considered an issue similar to the one here presented was Holden v. James, 11 Mass. 396. There, the plaintiff's right of action against an administrator was barred by a four year statute of limitations. The General Court passed a resolve empowering the plaintiff to commence and prosecute his action 'in the same way and manner as he might or could have done, if the same had been commenced within the time prescribed by law; * * * any thing in any act or law of this commonwealth to the contrary notwithstanding' (399). It was further resolved that the statutes of limitations, so far as they might come within the purview of the resolve, were suspended and should not operate as a bar to the plaintiff's action. The court held that the resolve was not an undertaking by the Legislature to exercise judicial power 'in violation of the express provisions of the constitution' (402) (art. 30 of the Declaration of Rights), nor did it construe the resolve as an exercise of the Legislature's power to suspend the laws under art. 20 of the Declaration of Rights. It treated the resolve as 'enacting a new and different rule for the government of one particular case. In other words, it would be to ordain that the law, which regulates all other suits against administrators, may be wholly disregarded by the parties in this suit, and shall have no effect in the decision of the controversy between them' (405-406). The court struck down the resolve and ordered a nonsuit against the plaintiff. In passing upon the constitutional question the court referred to the citizen's 'right to protection, 'according to standing laws," 3 and continued: 'It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages, which are denied to all others under like circumstances: or that any one should be subjected to losses, damages, suits or actions, from which all others under like circumstances are exempted. There is no doubt that the legislature may suspend a law, or the execution or operation of a law, whenever they shall think it expedient. * * * But it was never supposed that it [the writ of habeas corpus, for example] could be suspended as to certain individuals by name, and left to be enjoyed by all the other citizens.' Holden v. James, 11 Mass. 396, 404-405. See Simonds v. Simonds, 103 Mass. 572, 573. The soundness of this salutary principle has never been questioned by this court.

There are, however, instances of special legislation favoring individuals which has been declared valid. These merit discussion. In Rice v. Parkman, 16 Mass. 326, for example, a legislative resolve authorizing the sale of specified realty owned by certain minors, the proceeds to be applied in their interests, was held valid. The court said that, although the power to authorize such sales had been delegated by the Legislature to the courts, this authority, being merely ministerial, was not judicial in its character, and could as well have been delegated to selectmen of towns or clerks of counties. It was also said that the Legislature, in passing the resolve, was exercising its parental power 'as the general guardian and protector of those who are disabled to act for themselves'; that the only object of the legislation was 'for purposes beneficial to all who were interested therein'; that there was no interference with the rights of others; and that 'it was not a case of controversy between party and party.' Rice v. Parkman, 16 Mass. 326, 328, 331. 4 To the same effect and based upon the same premises was the holding in Davison v. Johonnot, 7 Metc. 388, that the Legislature has power to authorize the guardian of a person adjudged non compos mentis to sell a part of his ward's real estate and apply the proceeds to discharge encumbrances on other parts thereof.

Of special interest is the case of Picquet, appellant, 5 Pick. 65, where the court considered a legislative resolve 'empowering' the judge of probate, who had required the appellant (a French subject) to file a $50,000 administrator's bond on his father's estate in this Commonwealth, to grant letters of administration to the appellant upon his filing of a bond, with the usual conditions, executed by himself as principal and his only brother as surety; said bond to 'be in lieu of every * * * bond * * * by any law * * * now in force required.' The court reversed the decree of the probate judge who had denied letters of administration. It construed the resolve as authorizing the judge to take security other than provided by statute if, in his discretion, it was expedient to do so. The court then held that under the law existing prior to the resolve the bond could be...

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