Wesson v. Commonwealth

Field, J.

In Troy & Greenfield Railroad v. Commonwealth, 127 Mass. 43, 46 , it was said: “ 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.”

The St. of 1879, c. 255, now the Pub. Sts. c. 195, § 1, provides that “the Superior Court shall have jurisdiction of all *62 claims against the Commonwealth, which are founded on contract for the payment of money.” 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 purpose by a warrant drawn by the Governor on the treasurer and receiver-general. §§ 1, 4. If it had been the intention of the Legislature to give to the Superior Court jurisdiction over all claims against the Commonwealth founded on contract, a breach of which by the Commonwealth was alleged, the words “ for the payment of money ” would have been unnecessary, as damages for such a breach must, under the provisions of the statute, necessarily be assessed in money. To give these words any meaning, they must be held to qualify the preceding word “ contract,”, and, as the sole purpose of the statute was to give a judicial remedy against the Commonwealth in cases where it did not previously exist, the words must be held to describe the character of the claim against the Commonwealth which could be enforced under the statute. It must be a claim for the payment of money by the Commonwealth in accordance with the terms of a contract which it had made. If the Commonwealth in a contract promises to do something else than to pay money, the payment of damages for not performing the promise is not the payment of money in accordance with the terms of the contract. Such damages are often somewhat indefinite, and the Legislature apparently intended that the Commonwealth should not be sued in its own courts, except when it had made a contract to pay money where the obligation of the Commonwealth would usually, if not necessarily, be limited by the terms of the contract either to a sum certain, or to a sum to be estimated- in some manner provided by the contract, or to what the services rendered and materials furnished by the other party were reasonably worth. There is nothing in the statute which indicates that the nature of the obligation on the part of the other party to the contract was regarded as material. If there was *63 a valuable consideration for the contract, and the other party had performed, or had been ready and willing to perform, his part of the «contract, the obligation of the Commonwealth would be the same, whether the other party was, by the contract, to pay money, or to do any other valuable thing.

If the history of this legislation can be considered, it confirms the view we have taken of the meaning of the statute. The Governor, in 1879, in his inaugural address, recommended “ that jurisdiction of claims against the Commonwealth be given to the Superior Court, sitting without a jury, with the right of appeal or exception for either party on questions of law.” Acts & Res. 1879, 711. The committee on the judiciary on the part of the House reported a bill, of which a part of the first section was as follows: “ The Superior Court shall have jurisdiction of all claims against the Commonwealth founded on contract ; and petitions setting forth such claims may be brought,” &c. House Doc. No. 22. This bill, as reported, was passed in the House, but was amended in the Senate by inserting after the words “ founded on contract ” the words “ for the payment of money; ” and, some other amendments having been made, the bill was passed to be enacted, and became the St. of 1879, c. 255. Senate Doc. No. 252. This shows that the proposition that the Superior Court should have jurisdiction of all claims against the Commonwealth which are founded on contract was submitted to the Legislature, and was deliberately amended so as to confine the jurisdiction to claims on contracts for the payment of money.

The statutes of the United States and of other States upon a similar subject are so different in their provisions as to afford little or no aid in construing the St. of 1879, a. 255.

Petition dismissed.