197 Mass. 137 | Mass. | 1908
This is a petition brought against the Commonwealth for damages alleged to have been suffered by the petitioner by reason of breaches, committed by the Commonwealth, acting through the metropolitan water and sewerage board, of
It is fundamental that under our jurisprudence the sovereign power cannot be impleaded in its own courts except by its consent, and then only in the precise manner and to the exactly limited extent, which may be pointed out in the terms in which the consent is expressed. Such consent can be' granted only by the Legislature, for our Constitution contains no provision touching the subject. Troy & Greenfield Railroad v. Commonwealth, 127 Mass. 43. Wesson v. Commonwealth, 144 Mass. 60. Hodgdon v. Haverhill, 193 Mass. 406.
The first general law by which jurisdiction was conferred upon the courts to adjudicate upon claims against the Commonwealth was St. 1879, § 255. Before this act the only relief open to those who had suffered damage by dealings with the representatives of the Commonwealth was by petition to the Legislature. This act, which was substantially embodied in Pub. Sts. c. 195, gave cognizance only of claims “founded on contract for the payment of money,” or upon §§ 98 and 116 of c. 63 of Gen. Sts., the latter provisions referring to the management of railroads. The act was discussed in Wesson v. Commonwealth, 144 Mass. 60, which held that under its terms damages could not be recovered for breach of a contract, because this was not a claim for the payment of money by the Commonwealth. Milford v. Commonwealth, 144 Mass. 64, determined that the statute did not authorize the recovery of expenses incurred by a town for the support of a State pauper, for the reason that the obligation to make reimbursement for such expenses did not arise out of contract, but was imposed by the terms of Pub. Sts. e. 86, §§ 25, 26. The Legislature in session when these two decisions were announced enacted St. 1887, c. 246, which extended the jurisdiction of the court to all claims “at law or in equity” with certain exceptions not here essential. Murdock Parlor Grate Co. v. Commonwealth, 152 Mass. 28, was then decided, which held that although the statute as amended covered claims like those excluded in Milford v. Commonwealth and Wesson v. Commonwealth, it did not include those for the misfeasance or negligence of agents of the
The statute under which this petition is brought, and by which the conduct of the cause must be governed, is R. L. c. 201 as amended by St. 1905, c. 370. Section one confers upon the Superior Court jurisdiction of all claims at law or in equity against the Commonwealth. It is first to be noted that the Superior Court alone is given original jurisdiction. This has been the tribunal designated in all the statutes, although until St. 1905, c. 263, other litigants having claims in contract or replevin of more than $1,000, or within Suffolk County of more than $4,000, had the option of bringing their litigation either in the Supreme Judicial Court or the Superior Court, and in most matters in equity there is now concurrent jurisdiction. While many statutes have conferred exclusive jurisdiction upon the Supreme Judicial Court, this one constitutes the Superior Court, which is the great trial court of the Commonwealth, the exclusive tribunal for trials of this class of causes. It is also provided that the claim shall be enforced only by a petition, not by the ordinary process of writ or bill in equity open to all other suitors in the courts. The petition shall contain a brief statement of the nature of the claim. This is something more than a mere matter of procedure; it is an altogether new form of relief for causes which had theretofore been remediless. The word “petition” is here used in a sense quite different from that in which it was employed in St. 1887, c. 383. Worthington v. Waring, 157 Mass. 421. The second section makes applicable to such a petition all “ provisions of law relative to tender, offer of judgment, set-off and recoupment.” The express reference to these particular incidents in the progress of a proceeding in court indicates an intention to make inapplicable other ordinary incidents, which are omitted, under the familiar principle of interpretation that express mention of one matter excludes by implication other similar matters not mentioned. It is further provided that there shall be no trial by jury, but that the hearing shall be had before
“Hearing ” is technically applicable to proceedings in chancery, Babcock v. Wolf, 70 Iowa, 676, 679, Miller v. Tobin, 18 Fed. Rep. 609, 616, and is used in contradistinction to.trial which is' properly applicable to actions at law: but in modern usage no doubt the two words sometimes overlap in meaning. Final hearing is sometimes used to describe that stage of the proceedings which relates to the determination of the suit upon its merits as distinguished from preliminary questions, which are termed interlocutory. Galpin v. Critchlow, 112 Mass. 339. Akerly v. Vilas, 24 Wis. 165. Joseph Dry Goods Co. v. Hecht, 120 Fed. Rep. 760. Hess v. Reynolds, 113 U. S. 73. Baltimore & Ohio Railroad v. Bates, 119 U. S. 464. But, hearing is frequently and perhaps commonly used in a broader and more popular significance to describe whatever takes place before magistrates clothed with and exercising judicial functions and sitting without jury at any stage of a proceeding subsequent to its inception. United States v. Patterson, 150 U. S. 65. In our .statutes, trial and hearing are used indifferently to describe what occurs before an auditor. R. L. c. 165, §§ 55, 56, 59; c. 173, § 81. St. 1900, c. 418. Hearing appears to have been treated as the accurate designation of proceedings before an auditor in Carpenter v. New York, New Haven, Hartford Railroad, 184 Mass. 98. See Worcester v. Lakeside Manuf. Co. 174 Mass. 299. Therefore, although the report of an auditor strictly becomes only prima facie evidence, the proceedings before an auditor are of greater dignity than the mere taking of depositions and may properly be termed hearings. But as all hearings provided for in the statute under discussion must be had in open court, it follows that there can be no hearings before auditors, for plainly an auditor is not the court, but an officer appointed by the court.
The statute taken as a whole indicates an intent on the part of the Legislature to create a special tribunal composed of trained and experienced judicial servants, sitting, when large amounts are involved, in the capital of the State, to deal with this peculiarly important class of claims, which is not comprehended within any general classification of actions, under an unusual form of procedure. Under such circumstances only those incidénts of ordinary practice, which are expressly set forth or follow by necessary implication, attach to the procedure. An auditor is not one of the inherently necessary implications of every procedure in court and is not authorized under this statute. The authority of courts to appoint auditors is largely created by statute, although the practice of referring certain matters to them is ancient. Holmes v. Hunt, 122 Mass. 505. Holmes v. Turners Falls Co. 150 Mass. 535. The appointment of an auditor is incompatible with some of the terms of the statute, as has been pointed out, and is inconsistent with its general purpose. Arguments based upon a sound public policy can be adduced in favor of not permitting the interests of sovereignty to be passed upon
The order allowing the motion for the auditor should be reversed and the motion disallowed, and it is
So ordered.
