Wesson v. Com.

• Decision Date: 26 February 1887
• Parties: WESSON v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 60

10 N.E. 762

WESSON v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1887

COUNSEL

T.H. Tyndale, for plaintiff.

OPINION

The court had jurisdiction of the matter. The words of a remedial statute are to be construed largely and beneficially, so as to suppress the mischief and advance the remedy. "In remedial cases," says Lord MANSFIELD, "the construction of statutes is extended to other cases within the reason and rule of them." Sedg.St. 309, and note; Dwar.St. 632; Bac.Abr. "Statute," § 8. The intention of the legislature is to be sought. This can be best gathered from the cause of making the law. What was the mischief to be remedied, and what the remedy to be advanced? See Governor's Message, Acts, and Resolves of 1879. The purpose of the statute was to relieve the legislature from claims founded on contract and provable in court. In pursuance of this rule that the legislative intention must govern, courts have often adopted a construction contrary to the ordinary meaning of the letter. Burlingame v Bell, 16 Mass. 318. And see Staniels v. Raymond, 4 Cush. 316; Somerset v. Dighton, 12 Mass. 384; Brown v. Pendergast, 7 Allen, 429. Another rule of statutory construction requires that every word should, if possible, be given effect. To adopt the commonwealth's construction necessitates two restrictions of plain language First, to restrict the meaning of "payment of money" to one party only; and, secondly, to restrict the word "claims," in section 6, to the meaning as so restricted. The attempted distinction involved in the commonwealth's construction between a breach by reason of non-payment and by reason of any other non-performance has no foundation in principle. "The state was not excused from carrying out its part of the contract by the fire. Difficulty is not an excuse for non-performance." McDonald v Gardner, 56 Wis. 35, 13 N.W. 689. No reason is seen why the same rule of law should not be applied to the state as to any other contractor. See Brecknock Canal v. Pritchard, 6 Term R. 750; Williams v. Vanderbilt, 28 N.Y. 217; Bullock v. Dommitt, 6 Term R. 650. Even impossibility, in order to avoid performance, must not be temporary and partial, but total and permanent, (1 Whart Cont. § 313;) and, where the impossibility is temporary or partial, the suspension or excuse is only partial, ( Geipel v. Smith, L.R. 7 Q.B. 404; Hadley v. Clarke, 8 Term R. 259.)

That the removal of inmates was merely a temporary measure is shown (1) by the governor's special message thereon to the legislature, (Blue Book 1883, p. 779;) (2) by contemporaneous acts of the legislature; (3) by subsequent acts of the legislature; (4) by the continuance of commitments to Bridgewater; (5) by the trustees, and state board's reports, (see Trustees' Report, 1884; Fifth Annual Report State Board Health, Lunacy, and Charity, p. cxli.) If the court should be of opinion that the location at Bridgewater was disestablished by the removal and by chapter 279 of Acts of 1883, then it is respectfully submitted that the removal of the prisoners did not change its identity, nor the condition or status of the prisoners. They were still inmates of the state work-house, and Wesson should have been allowed to proceed at Westborough. Pub.St. c. 220, § 28, 52; Re Hartwell, 1 Low. 536. If the removal of the prison was lawful, it carried with it all the incidents of a prisoner's life, including this contract. See 1 Whart. 439-445. Unless, therefore, the place of work was an essential element in the contract, and that place was the particular building assigned in the first instance at Bridgewater, it is submitted that the court erred in holding that the commonwealth was discharged from its obligation by the removal. The chief subject-matter of the contract was men and their labor, and they were not destroyed. Leaving the men without this officer, under the circumstances, was a breach of contract of the grossest sort, and Wesson is entitled to recover for his loss by reason thereof. The question as to whether the commonwealth or the superintendent and inspectors personally were liable is settled, moreover, in Dawes v. Jackson, 9 Mass. 490; Freeman v. Otis, Id. 272.

H.N. Shepard, Asst. Atty. Gen., for the Commonwealth.

FIELD J.

In Troy & G.R. Co. v. Com. it was said that "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." Troy & G.R. Co. v. Com., 127 Mass. 43, 46.

St.1879 c. 255, now Pub.St. c. 195, § 1, provides that "the superior court shall have jurisdiction of all claims against the commonwealth which are founded on contract for the payment of money," etc. We think that this means that the claims must be founded on a contract with the commonwealth for the payment of money by the commonwealth. The statute does not provide for enforcing the specific performance of any contract against the commonwealth, but for the assessment of damages, which, on a certificate of the amount found due, with the legal costs, are to be paid out of any appropriations made for the...