The case comes to us on the plaintiff's appeal from an order of the judge sustaining the defendant's demurrer to the declaration. G.L.c. 231, § 96. One of the grounds of demurrer is that the declaration fails to state a cause of action. G.L.c. 231, § 18, Second. Weiner v. Lowenstein, 314 Mass. 642, 646. The plaintiff did not seek to amend. She thus stakes the result of her action upon the adequacy of her case as set out in the declaration. Keljikian v. Star Brewing Co. 303 Mass. 53, 61. We examine the declaration to test its sufficiency.
The declaration alleges that on December 23, 1958, the plaintiff sustained injuries as a result of a fall on a defective sidewalk in the town of Brookline (the town) which had failed to perform its duty to keep the sidewalk in a reasonably safe condition; and that, although she had failed to give notice in accordance with G.L.c. 84, § 18,
We turn to St. 1960, c. 519. That act, approved July 5, 1960, reads: "Hazel Paddock of Brookline may maintain a suit against the town of Brookline under the provisions of section fifteen of chapter eighty-four of the General Laws for an injury which she received from a fall on a sidewalk at 73 Monmouth street in said town on or about December twenty-third, nineteen hundred and fifty-eight, notwithstanding the fact that she failed to give the notice required by sections eighteen and nineteen of chapter eighty-four of the General Laws."
On demurrer the plaintiff is bound by her averment that the notice required by G.L.c. 84, §§ 18 and 19, was not given. Not only is the giving of the statutory notice a condition precedent to the bringing of an action, it is also an
It is plain that the purpose and effect of St. 1960, c. 519, is to suspend the provisions of G.L.c. 84, §§ 18 and 19, as they relate to the plaintiff in connection with her alleged injury, or, otherwise stated, to exempt the particular case from the application of the general statute.
The parties agree that the sole issue in the case is whether St. 1960, c. 519, is constitutional. The issue has two aspects: (1) whether the General Court can constitutionally create a cause of action for the benefit of a named individual by suspending the operation of a provision of the general laws, thereby dispensing with an essential element of a cause of action, and leaving the general law in full force as to all other persons similarly situated; and (2) whether a municipality has standing to raise the issue of the constitutionality of such special and preferential legislation in view of the extensive control the General Court has over cities and towns. We treat each aspect separately.
The town asserts that St. 1960, c. 519, violates certain provisions of the Constitution of Massachusetts. It does not contend that it also violates the Constitution of the United States. We accordingly consider only the alleged violation of the Constitution of Massachusetts (the Constitution). We proceed with caution, however, granting every presumption and resolving all doubts in favor of the validity of the act. In the execution of our duty to uphold the provisions of the Constitution, we are nevertheless bound to declare this act unconstitutional if the General Court has clearly transcended its powers in enacting it. Davison v. Johonnot, 7 Met. 388, 392.
From the beginning, this court has given effect to the broad sweep of power which the Constitution delegates to the General Court, and, although it has often upheld special legislation, it has indicated emphatically that the power so to legislate is not unlimited.
The first case, so far as we are aware, where the court considered an issue similar to the one here presented was Holden v. James, 11 Mass. 396. There, the plaintiff's right of action against an administrator was barred by a four year statute of limitations. The General Court passed a resolve empowering the plaintiff to commence and prosecute his action "in the same way and manner as he might or could have done, if the same had been commenced within the time prescribed by law; ... any thing in any act or law of this commonwealth to the contrary notwithstanding" (399). It was further resolved that the statutes of limitations, so far as they might come within the purview of the resolve, were suspended and should not operate as a bar to the plaintiff's action. The court held that the resolve was not an undertaking by the Legislature to exercise judicial power "in violation of the express provisions of the constitution" (402) (art. 30 of the Declaration of Rights), nor did it construe the resolve as an exercise of the Legislature's power to suspend the laws under art. 20 of the Declaration of Rights. It treated the resolve as "enacting a new and different rule for the government of one particular case. In other words, it would be to ordain that the law, which regulates all other suits against administrators, may be wholly disregarded by the parties in this suit, and shall have no effect in the decision of the controversy between them"
There are, however, instances of special legislation favoring individuals which has been declared valid. These merit discussion. In Rice v. Parkman, 16 Mass. 326, for example, a legislative resolve authorizing the sale of specified realty owned by certain minors, the proceeds to be applied in their interests, was held valid. The court said that, although the power to authorize such sales had been delegated by the Legislature to the courts, this authority, being merely ministerial, was not judicial in its character, and could as well have been delegated to selectmen of towns or clerks of counties. It was also said that the Legislature, in passing the resolve, was exercising its parental power "as the general guardian and protector of those who are disabled to act for themselves"; that the only object of the legislation was "for purposes beneficial to all who were interested
Of special interest is the case of Picquet, appellant, 5 Pick. 65, where the court considered a legislative resolve "empowering" the judge of probate, who had required the appellant (a French subject) to file a $50,000 administrator's bond on his father's estate in this Commonwealth, to grant letters of administration to the appellant upon his filing of a bond, with the usual conditions, executed by himself as principal and his only brother as surety; said bond to "be in lieu of every ... bond ... by any law ... now in force required." The court reversed the decree of the probate judge who had denied letters of administration. It construed the resolve as authorizing the judge to take security other than provided by statute if, in his discretion, it was expedient to do so. The court then held that under the law existing prior to the resolve the bond could be reduced, and "may legally and ought in discretion to be considerably reduced." We quote from the opinion at pages 68-70 where the court, speaking through Chief Justice Parker, said, "The language of the resolve does not import a command or direction to ... [the probate judge] to execute the will of the legislature in relation to a subject of judicial cognizance placed by the laws under his authority and jurisdiction. It would be doing violence to the language and the intentions of the legislature, to suppose that it meant to dictate to a judicial tribunal the course of its
We think that St. 1960, c. 519, which purports to exempt a named individual from the obligations of a general law while allowing the general law to remain in full force and effect as to all other persons, comes squarely within the principle of the Holden case. There is here no exercise of the parental power of the Commonwealth as in Rice v. Parkman, 16 Mass. 326, and in Davison v. Johonnot, 7 Met. 388. Nor is there here any discretion in the court under existing laws to dispense with the requirements of notice in G.L.c. 84, §§ 18 and 19. Picquet, appellant, 5 Pick. 65. On the other hand, there is a "controversy between party and party" (see Rice v. Parkman, 16 Mass. 326, 328), and St. 1960, c. 519, does impose "a new and different rule for the government of one particular case." Holden v. James, 11 Mass. 396, 405. As was said in Dickinson v. New England Power Co. 257 Mass. 108, 111-112, "by art. 10 of the Declaration
We now consider whether a town has standing to challenge the constitutionality of a special act which creates a cause of action against the town by declaring that a particular individual is exempt from the requirement of giving the statutory notice. In order to raise the constitutional issue one must be able to show that the operation of the statute does or will impair his rights. Mullholland v. State Racing Commn. 295 Mass. 286, 292, and cases cited. Massachusetts Commn. Against Discrimination v. Colangelo, 344 Mass. 387, 390-391. Our inquiry is directed to the question whether the town has a right to have its property protected "according to standing laws." Art. 10, Declaration of Rights. If the town does have such a right, that right clearly will be impaired if the town is required to defend against and to respond in damages on account of an action which only the plaintiff, to the exclusion of all others similarly situated, is entitled to bring.
The Constitution of the Commonwealth invests in the General Court "full power and authority to erect and constitute
We conclude, therefore, that there is a limitation on the control which the General Court may exercise over municipalities under art. 2 of the Amendments, and that the limitation is fixed in art. 4 of Part II, c. 1, § 1, of the Constitution, by the words, "for the good and welfare of this commonwealth." This is not a new concept. In Weymouth & Braintree Fire Dist. v. County Commrs. of Norfolk, 108 Mass. 142, 144, Chief Justice Chapman said, "The Constitution does not establish these [municipal] corporations, but vests in the legislature a general jurisdiction over the subject by its grant of power to make wholesome laws as it shall judge to be for the general good and welfare of the Commonwealth" (emphasis supplied). Again, in Proprietors of Mount Hope Cemetery v. Boston, 158 Mass. 509, it was said at page 520: "The control which the Legislature may exercise [over municipal property] is limited; it must act by public agencies and for public uses exclusively." That is the test which the court has applied in the cases discussed above. It is the test which we apply here. We perceive no advantage to the public by the exclusive and preferential treatment which St. 1960, c. 519, extends to the plaintiff, a private citizen. There is, on the contrary, a distinct public disadvantage since the funds to defend against and to pay the preferred claim of the plaintiff, a private citizen, can come only from other private citizens, the taxpayers of the municipality. The legislative power over a municipality is exceeded where no public good is derived from its exercise — "where the only public advantage is such as may be incident and collateral to the relief of a private citizen." See Gray v. Salem, 271 Mass. 495, 498.
The plaintiff relies heavily upon Sanger v. Bridgeport, 124 Conn. 183, where a special act similar to St. 1960, c. 519, was upheld. There are some points of distinction between the Sanger case and the one under consideration which we briefly note. In the Sanger case, the plaintiff had seasonably given notice to the defendant, but the notice was defective in form; the Connecticut Legislature merely purported to cure the formal defect
The order sustaining the demurrer is affirmed, and judgment is to be entered for the defendant. G.L.c. 231, § 125.