Danforth v. Groton Water Co.
59 N.E. 1033
Mass.
1901
Check Treatment
Holmes, C. J.

These are petitions to the Superior Court for a jury to assess damages for the taking of water rights. The respondent filed motions to dismiss on the ground that the petitioners had not applied first to the county commissioners. The Superior Court dismissed the petitions, and on report its action was sustained by this court. 176 Mass. 118. - The decision was rendered on May 17, 1900. On May 3 had been passed c. 299 of the statutes of that year, but it escaped every one’s attention until after the rescript had gone. A rehearing subsequently was granted by agreement of all concerned, on the single question of the effect of that act upon this case.

The water was actually withdrawn in November, 1897, and was taken not later than that date. By the respondent’s charter, the right of the petitioners to apply for the assessment of damages was limited*to one year from the taking. Therefore as the law stood just before the enactment of St. 1900, c. 299, the petitioners had lost their chance of recovery from the respondent, because it then was too late to file new applications, and, as the previous decision in this case has shown, the petitions on file could not be entertained.

The statute provides that no such petition as the present “now or hereafter pending in the superior court . . . shall be dismissed for want of jurisdiction in said court solely on the ground that no previous application for the assessment of such damages had been made to a board of county commissioners.” These words seem to us plainly to apply to the present petitions. *476It is true that the petitions had been ordered to be dismissed, but the orders' were made subject to a report to this court, as we have said, and the cases were still pending in the Superior Court. There can be no doubt of the intent of the statute, and the only question is whether it is constitutional with regard to those who, like the respondent, at the time of its passage had a good defence. There certainly is a strong argument that as against parties in the respondent’s position the act cannot be sustained.

In Campbell v. Holt, 115 U. S. 620, in which it was held by a majority of the court that a repeal of the statute of limitations as to debts already barred violated no rights of the debtor under the fourteenth amendment, Mr. Justice Miller speaks as if the constitutional right relied on were a right to defeat a just debt. But the constitutional right asserted was the same that would be set up if the Legislature should order one citizen to pay a sum of money to another with whom he had been in no previous relations of any kind. Such a repeal requires the property of one person to be given to another when there was no previous enforceable legal obligation to give it. Whether the freedom of the defendant from liability is due to a technicality or to his having had no dealings with the other party, he is equally free, and it would seem logical to say that if the Constitution protects him in one case it protects him in ■ all. With regard to cases like Campbell v. Holt, under the State Constitution the later intimations of this court have been that such a repeal would have no effect. Bigelow v. Bemis, 2 Allen, 496, 497. Prentice v. Dehon, 10 Allen, 353, 355. Ball v. Wyeth, 99 Mass. 338, 339. See also Kinsman v. Cambridge, 121 Mass. 558; Rockport v. Walden, 54 N. H. 167; McCracken County v. Mercantile Trust Co. 84 Ky. 344; Cooley, Const. Lim. (6th ed.) 448.

Nevertheless in this case, as in others, the prevailing judgment of the profession has revolted at the attempt to place immunities which exist only by reason of some slight technical defect on absolutely the same footing as those which stand on fundamental grounds. Perhaps the reasoning of the cases has not always been as sound as the instinct which directed the decisions. It may be that sometimes it would have been as well not to attempt to make out that the judgment of the court was *477consistent with constitutional rules, if such rules were to be taken to have the exactness of mathematics. It may be that it would have been better to say definitely that constitutional rules, like those of the common law, end in a peniimbra where the Legislature has a certain freedom in fixing the line, as has been recognized with regard to the police power. Camfield v. United States, 167 U. S. 518, 523, 524. But however that may be, multitudes of cases have recognized the power of the Legislature to call a liability into being where there was none before, if the circumstances were such as to appeal with some strength to the prevailing views of justice, and if the obstacle in the way of the creation seemed small.

In some such cases there has been at an earlier time an enforceable obligation, in others there never has been one, but in both classes the courts have laid hold, of a distinction between the remedy and the substantive right, or have said that “ a party has no vested right in a defence based upon an informality not affecting his substantial equities,” Cooley, Const. Lim. (6th ed.) 454, or that “ there is no such thing as a vested right to do wrong,” Foster v. Essex Bank, 16 Mass. 245, 273, or have called it curing an irregularity, Thomson v. Lee County, 3 Wall. 327, 331, Lane v. Nelson, 79 Penn. St. 407, Randall v. Kreiger, 23 Wall. 137, or have dwelt upon the equities, meaning the moral worth of the claim that was preserved, or by one device or another have prevented a written constitution from interfering with the power to make small repairs which a legislature naturally would possess.

In a case which would seem almost stronger than that of a debt barred by the statute of limitations it was held that services of an unlicensed physician which could not be recovered for when rendered were made a good cause of action by a repeal of the statute which created the bar. Hewitt v. Wilcox, 1 Met. 154. So in case of a usurious contract after a repeal of the usury law. Ewell v. Daggs, 108 U. S. 143.

The constitutional difficulties in the way of the present statute are as small as they well can be. Its' effect in saving the petitioners from being barred by the statute of limitations in the respondent’s charter is only secondary and accidental. All that it does directly which is open to question is to enact that parties *478having a case in court shall not be turned out for neglect of what under the circumstances was a naked and useless form. The case is stronger for the petitioners than Campbell v. Holt or Hewitt v. Wilcox. The respondent had incurred a legal obligation to them which, although not contractual, was voluntary and legal, and which was entitled to the highest protection of the law, as it sprang from the exercise of eminent domain. The petitioners were enforcing the obligation in good faith. There is no especially striking equity in favor of defeating them because of a mistake of procedure, and as the Legislature now has said that they shall not be defeated, we have not much hesitation in yielding to the current of decisions and in accepting its mandate as authoritative in this case.

Motions overruled.