Willar v. Commonwealth
| Decision Date | 01 July 1937 |
| Citation | 9 N.E.2d 405,297 Mass. 527 |
| Parties | WILLAR et al. v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Petition in Superior Court, Suffolk County; Pinanski, Judge.
Petition by Harry Willar and another against the Commonwealth. The respondent's demurrer to petition was overruled, and the case was reported.
Order overruling demurrer affirmed.
R. Clapp, Asst. Atty. Gen., for the Commonwealth.
D. A. Foley and M. L. McCrath, both of Boston, for petitioner.
The petitioners allege in substance that the Commonwealth, through the department of public works, took their land for a public highway; that they made with the department an agreement for settlement whereby the Commonwealth was to pay them $27,780 in full for their damages; that the account has been certified by the comptroller (G.L.[Ter.Ed.] c. 29, § 18); but that the Gover nor and Council have taken no action there on, and the money has not been paid. As we construe the petition, breach of the contract of settlement is the gist of the petitioners' case.
The principal contentions of the respondent are that the department of public works had no authority to make the settlement, and that, at least in the absence of authority specifically given to others, any such settlement can be made only by the Governor with the advice and consent of the Council. See G.L.(Ter.Ed.) c. 79, § 2.
The department of public works had authority to make a settlement binding upon the Commonwealth. G.L.(Ter.Ed.) c. 81, § 7, gives the department authority to take land ‘by eminent domain on behalf of the commonwealth under chapter seventy-nine’ for the purposes of a State highway. It may fairly be inferred from the petition that the settlement was made under section 39 of said chapter 79. That section permits ‘the body politic or corporate’ which is liable for damages to effect a settlement with the person entitled thereto. In this instance the ‘body politic’ was the Commonwealth. Of course the Commonwealth must act through its lawfully authorized officers, and the officers authorized to take the land were the members of the department. If it be said that a settlement is not a taking, yet section 39, under which this settlement was made, is an integral part of the eminent domain statute. That section by its own terms becomes operative only after there has been a taking and ‘after the right to * * * damages has become vested.’ It describes one of the steps in the condemnation proceedings and furnishes a means by which either a settlement may be effected without a trial or an offer made which will reduce the liability for interest. We think that when the Legislature gave to the department power to take land by eminent domain ‘under chapter seventy-nine’ it intended to give to the department full and complete power to carry the necessary proceedings through to a final termination, with all the incidents and alternatives set forth in chapter seventy-nine. It would be strange if a department which has authority to take the land and to make the initial award required by section 6 of chapter 79 should be powerless when it becomes advisable to effect a settlement under section 39 of that chapter, especially as the initial award itself can be recovered under section 41, and no offer under section 39 can be of a less amount than...
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City of Lowell v. Massachusetts Bonding & Ins. Co.
...to the obligation of the city to pay their wages. Godfrey Coal Co. v. Gray, 296 Mass. 323, 325, 5 N.E.2d 556;Willar v. Commonwealth, 297 Mass. 527, 529, 9 N.E.2d 405;City of Lowell v. Massachusetts Bonding & Ins. Co., 304 Mass. 153, 155, 156, 23 N.E.2d 91. See Barnard v. City of Lynn, 295 M......
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City of Lowell v. Massachusetts Bonding & Ins. Co.
... ... See ... State v. Farris, 197 Ind. 128 ... A third rule is ... succinctly stated and applied in Commonwealth v ... McCormack, 177 Ky. 474. It is to the effect that moneys ... disbursed in an unlawful manner by the wrongdoing official ... are paid out at ... obligation of the city to pay their wages. Godfrey Coal ... Co. v. Gray, 296 Mass. 323 , 325. Willar v ... Commonwealth, 297 Mass. 527, 529. Lowell v ... Massachusetts Bonding & Ins. Co. 304 Mass. 153 , 155, ... 156. See Barnard v. Lynn, 295 ... ...