Troy & G. R. Co. v. Commonwealth

• Decision Date: 24 June 1879
• Citation: 127 Mass. 43
• Parties: Troy and Greenfield Railroad Company v. Commonwealth
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 43

Troy and Greenfield Railroad Company v. Commonwealth

Supreme Court of Massachusetts

June 24, 1879

[Syllabus Material]

Suffolk. Bill in equity, filed January 20, 1879, the allegations of which, so far as it is now necessary to state them, were as follows:

On May 10, 1848, the plaintiff was incorporated by the St. of 1848 c. 307, and authorized to construct a railroad from the town of Greenfield in this Commonwealth to connect with a railroad to be constructed from the city of Troy in the state of New York.

On July 28, 1855, under the St. of 1854, c. 226, an act authorizing the Commonwealth to lend its credit, to the amount of $ 2,000,000, to enable the plaintiff to construct a tunnel and railroad through the Hoosac Mountain, and requiring the plaintiff to mortgage its franchise and property, the plaintiff mortgaged to the Commonwealth "the entire railroad of said corporation, with its franchises, income and property," to secure the payment of said loan.

By the St. of 1860, c. 202, the terms of the loan were modified, and the plaintiff was required to execute a further bond and mortgage, and to purchase "the entire road, franchise, stock, bonds and other property" of the Southern Vermont Railroad Company, and transfer the same to the Commonwealth as security for a loan then made and as additional security for the payment of the loan already made. In pursuance of this statute the plaintiff, in April 1860, purchased the last-named property and mortgaged the same to the Commonwealth; and, on July 6, 1860, also made a mortgage to it of "its own entire railroad," "and all its franchises and property whatever." On April 5, 1862, a further mortgage was made to the Commonwealth of "all the franchises and property whatsoever, real, personal and mixed, of said Troy and Greenfield Railroad Company." All of these mortgages were as additional security for the payment of the above-mentioned loans.

On September 4, 1862, under the St. of 1862, c. 156, an act authorizing the plaintiff to surrender to the Commonwealth the property mortgaged, and providing for the completion of the road and tunnel by the Commonwealth, and that "the right of redemption" should not be barred until ten years had elapsed after the road and tunnel should be completed and open for use, the plaintiff surrendered to the Commonwealth, under the several mortgages, all its property, real, personal and mixed. This surrender was made, not by reason of any default on the part of the plaintiff, but because the Commonwealth was specially interested in completing the road and tunnel, and requested the surrender to be made. At the time of the surrender, the Commonwealth had only advanced on account of the road and tunnel the sum of $ 725,338; and, after the surrender, the Commonwealth remained in exclusive possession of the property and managed the same as it saw fit, and completed the road and tunnel, and opened them for use about June 30, 1876.

On December 21, 1878, a demand was made on the treasurer of the Commonwealth for an account of the expenditures made in behalf of the road and tunnel, and an offer made to redeem on payment of such sum as was equitably due.

The prayer of the bill was for an account; that the plaintiff should be allowed to redeem on payment of such sum as should be found to be due; and for further relief.

The Commonwealth appeared specially, and demurred to the bill, assigning the following, among other grounds of demurrer: "The defendant is a sovereign state, and cannot be impleaded in said cause, or be bound by any order or decree that may issue from this honorable court therein."

The case was heard by Endicott, J., on the bill and demurrer, and reserved for the determination of the full court. If the demurrer was sustained, the bill was to be dismissed.

Bill dismissed.

G. Marston, Attorney General, for the Commonwealth.

E. R. Hoar, & S. Dickson of Pennsylvania, (D. W. Gooch with them,) for the plaintiff. At common law in England, a petition of right will lie even for a breach of contract by the sovereign, resulting in unliquidated damages. Thomas v. The Queen, L. R. 10 Q. B. 31. See Chisholm v. Georgia, 2 Dall. 419, 437 & seq. And where a sovereign assumes the character of a trader, the privilege of sovereignty is waived. The Charkieh, L. R. 4 Ad. & Ec. 59. See also Curran v. Arkansas, 15 How. 304.

The St. of 1862, c. 156, § 2, under which the plaintiff surrendered its property to the Commonwealth, expressly provides that "the right of redemption shall not be barred" for a certain time. What remained in the plaintiff after the surrender was therefore clearly recognized as a right, and not as a matter of grace; and the fact that no form of remedy was specifically pointed out is a strong indication that the Legislature intended that the plaintiff should have the remedy already provided in similar cases. Construing the statutes then and now in force in connection with the St. of 1862, c. 156, there is no difficulty in finding the remedy.

As early as 1804, the right was given to any mortgagor, who had mortgaged "any real estate" to the Commonwealth, to file a bill in equity in this court to redeem the same. St. 1804, c. 103. In the subsequent reenactments of this statute, the words "real estate" are omitted. Rev. Sts. c. 107, §§ 35-39. Gen. Sts. c. 140, §§ 45-48. In 1804 railroad mortgages were unknown, but in 1860 they were very common, and it may well be that the change in phraseology was intentionally made broad enough to include them. However this may be, the greater part of the property in question is real estate, and so comes within the most restricted construction of the act. And the Gen. Sts. c. 63, § 128, specifically give this court jurisdiction in equity "of all questions arising out of railroad mortgages." This language is broad enough to include mortgages to the Commonwealth, and that such was the intention of the Legislature is shown by the three following sections, which provide for the form of a railroad mortgage to the Commonwealth, what property it shall include, and where it shall be recorded.

Gray C. J. Ames & Lord, JJ., absent.

OPINION

Gray C. J. It is a fundamental principle of our jurisprudence, that the Commonwealth cannot be impleaded in its own courts, except by its own consent clearly manifested by act of the Legislature; and this principle is applicable to actions to recover real estate, and to bills in equity to enforce trusts, or to foreclose or redeem mortgages. The distinction suggested in the case of The Charkieh, L. R. 4 Ad. & Ec. 59, cited in the able and learned argument for the plaintiff, as to a foreign sovereign assuming the character of a trader, cannot be entertained by the courts of the government against which the suit is brought. United States v. Clarke, 8 Pet. 436. Curran v. Arkansas, 15 HOW 304, 309. The Davis, 10 Wall. 15. Carr v. United States, 98 U.S. 433. Sewall v. Lee, 9 Mass. 363, 370. Commonwealth v. Andre's Heirs, 3 Pick. 224, 225. Pingree v. Coffin, 12 Gray 288, 321. Briggs v. Light Boats, 11 Allen 157, 170-176, and cases there cited.

The object of the present bill is to redeem the entire railroad, franchise and property of the Troy and Greenfield Railroad Company, mortgaged by that corporation to the Commonwealth under the Sts. of 1854, c. 226, and 1860, c. 202, and surrendered to the Commonwealth under the St. of 1862, c. 156, which provides that "the right of redemption shall not be barred until ten years have elapsed after said road and tunnel are completed and the same open for use." Neither of these statutes contains any provision as to the manner of asserting this right of redemption.

The only provisions of statute, that can be supposed to have any application to the case, are contained in those chapters of the General Statutes which relate to the equity jurisdiction of this court, to the foreclosure and redemption of mortgages, and to railroad corporations.

The statute defining the equity jurisdiction of this court enumerates, among other subjects within its cognizance, "suits for the redemption of mortgages, or to foreclose the same." Gen. Sts. c. 113, § 2. Even if this clause could be construed to include mortgages of railroads, yet to hold that such a general provision, in which the Commonwealth is not named, gives this court jurisdiction to entertain suits against the Commonwealth, would be inconsistent with settled rules of construction of statutes, and would oblige the court to hold that the other clauses in the same section, conferring, in like general terms, jurisdiction in equity of suits for enforcing and regulating the execution of trusts, or for specific performance, or in matters of account, or cases of accident or mistake, or under any other head of chancery jurisdiction, likewise include suits against the Commonwealth.

Chapter 140 of the General...