Slike stranica
PDF
ePub

In "case any difference of opinion should | familiar knowledge from the subsequent arise as to the rights of the parties under cases of Flint v. Gibson, Robbins v. Clark, this policy, the subject thereof shall be re- and Haley v. Bellamy, ubi supra. It would ferred to three disinterested' men

*be hard to reconcile the decision made in Farrell v. German-American Ins. Co., 175 Mass. 340, 56 N. E. 572, with any other view. We are therefore of opinion that referees appointed under the Massachusetts standard policy are not bound to receive evidence upon the amount of the loss, but may proceed to determine that fact in any way in which in the exercise of an honest discretion they may think wise. It follows that the award in the case at bar was not invalid because the referees refused to hear the evidence offered by the defendant.

and the decision of a majority of said referees shall be final and binding on the parties." The second standard form prescribed by St. 1881, c. 166 (re-enacted in Pub. Sts. c. 119, § 139), contained the same provision "as to the amount of loss under this policy." It was held in Reed v. Washington Ins. Co., 138 Mass. 572, that under this last provision the insured could maintain an action on the policy without procuring an award by referees as therein provided. The ground of this decision was that the provision as to having the amount of loss decided by referees was an agreement to refer a cause of action, not a provision "that a cause of action shall arise upon the appraisal or award, which is preliminary to, and in aid and a condition of, the right of action," to quote the words of W. Allen, J., in that case. See 138 Mass. pages 575, 576. Soon after that decision a change was made by St. 1887, c. 214, § 60, and the present provision (now found in St. 1907, c. 576, § 60) was inserted in the standard form of fire insurance policy. The present provision is: "In case of loss under this policy and a failure of the parties to agree as to the amount of loss, it is mutually agreed that the amount of such loss shall be referred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other, and the third being selected by the two so chosen; the award in writing by a majority of the referees shall be conclusive and final upon the parties as to the amount of loss or damage, and such reference unless waived by the parties shall be a condition precedent to any right of action in law or equity to recover for such loss;" but no person shall be chosen or act as a referee against the objection of either party, who has acted in a like capacity within four months. It was held in Lamson Consolidated Store Service Co. v. Prudential Fire Ins. Co., 171 Mass. 433, 50 N. E. 943, that unless waived by the parties this clause created a condition precedent.

The manifest purpose of these enactments was to provide for a new method of determining the amount of loss in place of having that question decided in the way in which cases are tried in court. We cannot believe that it was intended that the referees who were substituted for the court (including an auditor, if appointed, or a jury, if claimed, or both) should be bound to try this question of fact as such questions are tried in civil actions in court. On the contrary we are of opinion that the purpose of these enactments (which ended in St. 1887, c. 214, § 60, now St. 1907, c. 576, § 60) was to adopt the summary method of establishing the amount of the loss which theretofore had been ex

[4] We think it proper. to add that when the building insured is wholly destroyed it would be a wise exercise of discretion-ordinarily, at any rate to determine the amount of loss in the usual way in which civil cases are tried. See in this connection Lurton, J., in Continental Ins. Co. v. Garrett, 125 Fed. 589, 592, 60 C. C. A, 395, and Carlston v. St. Paul Fire Ins. Co., 37 Mont. 118, 94 Pac. 756, 127 Am. St. Rep. 715.

[5] There is one other matter which we think should not be passed by, if for no other reason because by our silence we might be taken to have approved the action taken by agreement in the superior court. By the terms of the report if the award was invalid judgment was to be entered for the defendant. The fire here in question happened on September 11 and 12, 1909. The trial took place December 11, 1911. By force of the clause in the policy providing that no suit or action for any claim by virtue of the policy shall be sustained unless begun within two years from the time the loss occurred, no action other than the one now before us ever can be brought on this policy. If the course sanctioned by the superior court is right, an insurance company can lie by until it is too late for a new action to be brought and then for the first time claim that an award is invalid, and if invalid, that it is entitled to judgment. It has been held in other jurisdictions that in case an award turns out to be invalid without fault on the part of the insured, a new appraisement should be made, or if that is refused, an action can be brought on the policy, in which the damages can be proved without resort to referees. See for example Caledonia Ins. Co. v. Traub, 83 Md. 524, 35 Atl. 13; Christianson v. Norwich Union Fire Ins. Soc'y, 84 Minn. 526, 88 N. W. 16, 87 Am. St. Rep. 379; Levine v. Lancashire Ins. Co., 66 Minn. 138, 68 N. W. 855. But see in this connection Weisman v. Firemen's Ins. Co., 208 Mass. 577, 95 N. E. 411. It is to be observed that it is a "reference" to referees, not an award by referees which by the literal terms of the Massachusetts standard policy is made a condition precedent. We express no opinion upon the question

this clause is limited to a reference only, or covers all acts which a reference requires including an award. In this respect the Massachusetts standard form differs from the New York form which provides that the loss shall not become payable until sixty days after (inter alia) an award by appraisers when appraisal has been required. See 1 Clements, Fire Ins. (1905 Ed.) 479.

By the terms of the report the entry must be judgment for the plaintiffs for $429.70, with interest less $25, being one-half the sum paid by the defendant to the third referee for his services. That is to say, the plaintiffs are entitled to interest on $429.70 from the expiration of sixty days after the plaintiff submitted a statement in writing of her loss. So ordered.

(214 Mass. 602)

In re OPINION OF THE JUSTICES. (Supreme Judicial Court of Massachusetts. June 10, 1913.)

1. STATUTES (§ 26*)-APPROVAL OR VETO BY EXECUTIVE AUTHORITY CONSTITUTIONAL PROVISIONS. Under Const. pt. 2, c. 1, § 1, art. 2, providing that no bill or resolve of the Senate or House of Representatives shall become a law until it shall have been laid before the Governor for his revisal, and that if he have any objection to the passing of such bill or resolve he shall return it, together with his objections, to the house in which it originated, the duty of approving or vetoing bills or resolves is vested in the Governor alone, and while he may seek information or advice from the Council, or from any other source, he is not required to confer with the Council.

[Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 28, 34; Dec. Dig. § 26.*] 2. COURTS (§ 208*)-SUPREME COURT-JUDICIAL POWERS-ADVISORY OPINIONS.

Const. pt. 2, c. 3, art. 2, providing that each branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices of the Supreme Judicial Court upon important questions of law and upon solemn occasions, not only limits the duty of the Justices, but bounds. their right to express opinions, and they cannot give such opinions, except as authorized by the Constitution, especially in view of Declaration. of Rights, art. 30, prohibiting each of the three departments of government from intermeddling with either of the others.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 492, 493; Dec. Dig. § 208;* Constitutional Law, Cent. Dig. § 128.]

3. COURTS (§ 208*)-RULE OF DECISION-PRECEDENTS-ADVISORY OPINIONS.

public and the profession, as indicating what the law is.

[Ed. Note. For other cases, see Courts, Cent. Dig. $$.492, 493; Dec. Dig. § 208;* Constitutional Law, Cent. Dig. § 128.] 4. COURTS (§ 208*)-JUDICIAL POWERS-ADVISORY OPINIONS "GOVERNOR AND COUNCIL."

Under Const. pt. 2, c. 3, § 2, providing that each branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices of the Supreme Judicial Court upon important queswords "Governor and Council" mean the executions of law and upon solemn occasions, the tive department, composed of both the Governor and the Council, and opinions cannot be required by the Governor alone with respect to duties which must be performed by him alone; and hence the Justices cannot express an opinion as to the constitutionality of legislation which is before the Governor for approval or disapproval, since while, in construing statutes or other writings, "or" may be substituted for "and," to effectuate a plain purpose, such interpretation is not commonly to be adopted respecting an instrument drafted with the care and accuracy in the use of language characteristic of the Constitution, especially as, when the constitutional provision was adopted, there were no rapid means of communication or transportation, and there was therefore only a remote chance that it would ever be possible for the Governor to obtain such opinions within the time during which he is required to approve or veto bills.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 492, 493; Dec. Dig. § 208;* Constitutional Law, Cent. Dig. § 128.]

5. CONSTITUTIONAL LAW ( 20*)-CONSTRUCTION OF CONSTITUTION CONSTRUCTION BY EXECUTIVE OFFICERS.

[ocr errors]

The unbroken practice of Governors for more than a century in not requiring opinions of the Justices of the Supreme Judicial Court as to legislation awaiting their revisal under the Constitution is some evidence of the accepted meaning of the clause of the Constitution authorizing such opinions by those charged with the performance of duty under it.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 14, 15; Dec. Dig. § 20.*]

Question submitted to the Justices of the Supreme Judicial Court by the Governor. Question not answered.

In answer to a letter from the Governor received on June 7, 1913, the Justices of the Supreme Judicial Court on June 10, 1913, returned the answer which is subjoined.

To His Excellency, Eugene N. Foss, Governor of the Commonwealth:

The Justices of the Supreme Judicial Court have received your letter of June 7, 1913, in which you ask their opinion as to the constitutionality of a bill which you say has been passed for engrossment by the Legislature, and is about to be laid before you for your revisal in accordance with the Constitution. We understand that the bill is now actually before you and we proceed to state the broad reasons which require us to decline to answer your question.

While, under Const. pt. 2, c. 3, art. 2, providing that each branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices of the Supreme Judicial Court upon important questions of law and upon solemn occasions, such opinions are advisory in their character, are not conclusive upon the rights of parties, and are open to argument in any judicial proceeding regularly brought before the court, they presuppose such examination and consideration by the Justices as the limitations of time and their contemporaneous duties permit, and the formation of a deliberate conclu[1] This question relates to the duty restsion, and hence are accorded weight by the ing upon the Governor of the commonwealth

under Const. c. 1, § 1, art. 2, to approve or veto bills or resolves of the Legislature. The trust thus reposed is personal. It is vested in the Governor alone. It cannot be delegated. He is not required to confer with the Council. While he may seek information or advice from the Council or from any other source, the final responsibility for approval or disapproval is wholly his.

[2, 3] The constitutional duty of the Justices of the Supreme Judicial Court is set forth in chapter 3, art. 2, in these words: "Each branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices upon important questions of law,

and upon solemn occasions."

The question presents itself whether these words require the Justices to give their opinion when asked by the Governor alone, without the concurrence of the Council. This is an important question which we feel obliged to determine, because the Justices are forbidden to go beyond the requirement of the Constitution. The Constitution not only limits their duty but bounds their right to express opinions. By traveling outside these bounds injustice might be done to private litigants and to public interests in an attempt by the Justices to give opinions without the benefit of argument as to the law and an opportunity to vindicate their views to those whose rights might be affected. See Opinion of the Justices, 122 Mass. 600. Opinions given under this provision of the Constitution are advisory in their character. They are not conclusive upon the rights of parties and are open to argument in any judicial proceeding regularly brought before the courts. But they presuppose such examination and consideration by the Justices as the limitations of time and other contemporaneous duties permit, and the formation of a deliberate conclusion, and hence are accorded weight by the public and the profession, as indicating what the law is. Green v. Commonwealth, 12 Allen, 155, 164. The Constitution expressly prohibits each of the three departments of government from intermeddling with either of the others. Declaration of Rights, art. 30. This applies as strongly to the judicial department as to either of the others. It acts as an inhibition upon the Justices giving opinions as to the duties of either the executive or legislative department except under the Constitution.

[4] Although either branch of the legislative department of government is given plainly the right to ask an opinion of the Justices, a like form of words is not used in conferring the power upon the executive department of government. "The Governor and Council" is the phrase employed, and not the Governor or Council, or other language indicating a power to be exercised disjunctively. The expression aptly shows a power to be exercised conjointly. The construction of the

branch of the Legislature" (which relates to the legislative department of government and confers a separate right both upon the Senate and upon the House of Representatives acting alone), by the words "as well as," is set over against "the Governor and Council," which relate to the executive department of government, and where the language joins instead of separates the "supreme executive magistrate" and his constitutional advisers. This is confirmed by other articles of the Constitution, where the executive department is described, and the words "Governor and Council" are used. See for example chapter 1, § 3, art. 11; Articles of Amendment 12, 13. The words "Governor or Council" do not occur in the Constitution. Nowhere in the Constitution are any duties conferred upon the Council, except such as they are to perform in conjunction with the Governor, either approving or disapproving his acts or joining with him as an executive board.

The circumstances under which the Con stitution was framed confirm the view that it was not the intent of its makers to require the Justices to advise the Governor as to his duty of approving or disapproving bills and resolves of the Legislature. The territory of the state of Maine was then included in this commonwealth. Three of the five Justices then constituting the court either lived in what is now Maine or recently had moved therefrom to places now in this commonwealth. In any event, the residences of the Justices were and were liable to continue to be widely separated. The performance of their official duties took them to distant parts of the state. In 1780 no means of communication or of transportation more rapid than the horse and sailing vessel were known. The Constitution then as now required the Governor to act upon bills or resolves of the Legislature within five days after presentation to him. Const. Mass. c. 1, § 1, art. 2. It is obvious that then there was only a remote chance that it ever would be physically possible for him to ask the opinion of the Justices within any such time as would enable him to profit by it. The inference is strong that no such thing was thought of or intended. The duties of the Governor and Council acting concurrently or together as an executive board in the performance of which an "important question of law" or a "solemn occasion" might arise, are not usually such as must be performed within so brief a time. Considering the Constitution as a whole, it seems clear that these three words, "Governor and Council," in this connection mean only the executive department as composed of both the Governor and the Council. Although sometimes it has been held in construing statutes or other writings that "or" may be substituted for "and" in order to effectuate a plain purpose, such interpretation is not commonly to be adopted respecting an instrument drafted

the use of language characteristic of our dence of what has been the accepted meanConstitution.

ing of this clause of the Constitution by those charged with the performance of duty under it. It cannot be presumed that difficult constitutional questions have not confronted successive Governors, as to which they well might have asked the opinions of the Justices, if the right had been supposed to exist. Indeed, this is manifest from the volumes of opinions of the Attorneys General of Massachusetts, which are replete with such opinions, and from state papers of Governors. See for example St. 1905, pp. 632, 633; St. 1906, pp. 882, 884.

The Justices have manifested no disposition to analyze nicely or construe narrowly their duty under the Constitution to give opinions to the other departments of government. They always have interpreted broadly the duty imposed, as is necessary in the

ment which contains only general principles. They have given opinions upon the requisition of the Governor and Council upon a great variety of subjects appertaining to the executive administration of government. But they cannot exceed the limitations of the Constitution. The mischiefs which would follow their failure to hold fast to the monuments established by the Constitution would be far greater than the benefits which might seem to follow from a stretching of its requirements in order to comply with a particular request.

We know of only four instances where the Governor has asked the opinion of the Justices without the concurrent action of the Council. The first was in 1807 (3 Mass. 568), where the question related to elections; the second was in 1853 (11 Cush. 604), where the question was as to the transfer of a prisoner under capital sentence; the third was in 1912 (210 Mass. 609, 98 N. E. 101), where it had to do with the pardoning power; and the fourth (211 Mass. 620, 99 N. E. 294) touched the constitutionality of a statute. In the first of these instances it appears, from papers on file in the office of the Secretary of the Commonwealth, that the opinion was requested by his excellency, Governor Strong, for the purpose of determining whether a bill of the Legislature presented to him for executive action was con- consideration of a great charter of governstitutional. The opinion given by the Justices did not discuss the question whether it was within their constitutional power to answer a question from the Governor without the concurrence of the Council, but by their answer without reference to it an inference may arise that they regarded it as their duty. In the next two instances the powers of the Governor, which were the subjects of inquiry, could be exercised by him only by and with the advice and consent of the Council. In the last instance the Justices expressed a doubt as to their duty to answer, and left the point open. In the last two cases where the present Justices have given their opinions upon the questions asked, there was not then time at their disposal to make the necessary investigation upon the point now discussed. We know of only a single occasion where the Council has undertaken without the Governor or the Lieutenant Governor to ask the opinion of the Justices and where for another reason the Justices declined to answer. 211 Mass. 630, 99 N. E. 286. In no decision or opinion has there been any discussion of the scope of this clause of the Constitution. Without determining how far any of these isolated instances may be regarded as precedents in the future, it is to be said that there is only one, and that occurring more than a century 1. CREDITORS' SUIT (§ 1*)-NATURE OF REMago, where the Justices without reservation have given an opinion to the Governor, when requested by him alone without the advice and consent of the Council, concerning a duty which must be performed by the Governor alone. This was done without any explanation of the meaning of this clause of the Constitution.

[5] There is thus the unbroken practice of more than a century of chief executive magistrates in not undertaking to require opinions of the Justices as to legislation awaiting their revisal under the Constitution. This practice, so long continued, is some evi

For these reasons the Justices of the Supreme Judicial Court feel constrained respectfully to decline to answer the question. ARTHUR P. RUGG.

JAMES M. MORTON.
JOHN W. HAMMOND.

WILLIAM CALEB LORING.
HENRY K. BRALEY.
HENRY N. SHELDON.
CHARLES A. DE COURCY.

(215 Mass. 415)

STOCKBRIDGE v. MIXER et al.

(Supreme Judical Court of Masachusetts. Suffolk. June 18, 1913. Withdrawn from Files and Returned Sept. 11, 1913.)

EDY.

Rev. Laws, c. 159, § 3, cl. 7, authorizing bills by creditors to reach and apply in payment of a debt any interest of the debtor which cannot be attached or taken on execution in an action at law, combines in a single proceeding two different matters, first, the establishment of an indebtedness on the part of the principal defendant to plaintiff which is a procedure at law, and the second a process for collecting the debt, when established, out of property rights which cannot be reached on execution; and jurisdiction to entertain a bill does not fall under any general head of equity jurisprudence and is unaffected by the later statute conferring full equity jurisdiction.

[Ed. Note.-For other cases, see Creditors' Suit, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*]

2. JURY (§ 14*)—RIGHT OF TRIAL BY JURY-| set out at length in Pettibone v. Toledo, CinACTION AT LAW.

A defendant in a suit under Rev. Laws, c. 159, § 3, cl. 7, whereby plaintiff, who has not reduced his claim to judgment, seeks to establish the debt and apply in payment any interest owing to defendant from codefendant, which cannot be seized at law, is entitled to a jury trial respecting the debt alleged to be due from him to plaintiff but he is not entitled to a jury trial respecting the other issue in the case. [Ed. Note. For other cases, see Jury, Cent. Dig. §§ 40-60, 66-83; Dec. Dig. § 14.*] 3. JURY (§ 13*)-RIGHT OF TRIAL BY JURY.

A right to a jury trial preserved by the Constitution guaranteeing a trial by jury as it was understood at common law does not extend to a trial on matters cognizable under the general principles of chancery or to rights gratuitously created by the Legislature.

[Ed. Note. For other cases, see Jury, Cent. Dig. $$ 35-83; Dec. Dig. § 13.*] 4. JURY (§ 13*)-RIGHT TO TRIAL BY JURYCHANGE OF PROCEDURE.

A party, to be entitled to a trial by jury by virtue of the protection given by the Constitution, cannot be deprived of the right because of a change in the form of procedure so as to make the case cognizable in equity.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 35-83; Dec. Dig. § 13.*]

5. JURY (§ 25*)—RIGHT TO TRIAL BY JURY

WAIVER.

Where, in a suit under Rev. Laws, c. 159, § 3, cl. 7, authorizing suits by creditors to apply in payment of a debt any property or interest which cannot be seized at law, an answer was filed in February and an amendment to the bill was filed in January following, and an answer to the bill as amended was filed in February following, and a replication was filed in the same month, and a claim for a jury was made during the same month after the filing of the replication, the claim for a .jury trial was filed within the time fixed by Superior Court Equity Rule 36.

-

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 154-173; Dec. Dig. § 25.*]

cinnati & St. Louis R. R. Co., 148 Mass. 411, 19 N. E. 337, 1 L. R. A. 787. It there was held that the purpose of the statute was not to create a jurisdiction over "a creditor's bill, in the sense in which those words are used in the practice of courts of chancery." Speaking generally, such a bill (except where the estate of a deceased person was involved) could be brought only by a creditor who had secured a judgment at law and who was unable to obtain satisfaction of it, and must be instituted not only for himself but for all other creditors who might come in and be parties to the suit. tain a bill, like that provided by clause 7, Jurisdiction to enterdoes not fall under any general head of equity jurisprudence. Hence it was not affected by the later statute conferring full equity jurisdiction. Barry v. Abbot, 100 Mass. 396; Tucker v. McDonald, 105 Mass. 423. The proceeding has been said to be "in the nature of an equitable trustee process, as distinguished from a creditor's bill." Phoenix Ins. Co. v. Abbott, 127 Mass. 558. afforded by this clause of the statute and The distinction between the special relief that arising under general equity jurisprudence has been referred to many times. Carver v. Peck, 131 Mass. 291; Maguire v. Spaulding, 194 Mass. 601, 604, 80 N. E. 587; Chapman v. Banker & Tradesman Publishing Co., 128 Mass. 478; Geer v. Horton, 159 Mass. 259, 34 N. E. 269; Wilson v. Martin-Wilson Automatic Fire Alarm Co., 151 Mass. 515, 517, 24 N. E. 784, 8 L. R. A. 309; Weil v. Raymond, 142 Mass. 206, 213, 7 N. E. 860. In other cases the remedy established by this

statute has been said to be "not in itself a subject of equitable jurisdiction" (Hoshor

Report from Superior Court, Suffolk Coun- Platt Co. v. Miller, 190 Mass. 285, 286, 76 N. ty; Edward P. Pierce, Judge.

Suit in equity by William M. Stockbridge against J. Frank Mixer and others. The court ruled that a motion to frame issues for

a jury should be granted on the ground that defendants had a right to a jury trial, and reported the case for the determination of the full court. Trial by jury ordered.

Wm. M. Stockbridge, of Boston, pro se. G. W. Anderson, of Boston, for plaintiff. Gleason & Higgins, of Boston, for defendants.

RUGG, C. J. This is a suit in equity under R. L. c. 159, § 3, cl. 7. The plaintiff alleges a debt due to him from two of the three defendants for services rendered, which has not been reduced to a judgment. He seeks to reach and apply in payment of this debt an interest owing to the principal defendants from the third defendant, which cannot be attached or seized in an action at law.

[1-4] The first question is whether the defendant debtors are entitled as matter of right to a trial by jury. The nature and history of the relief afforded by clause 7 is

E. 650), nor like "a creditor's bill under general equity practice" (Snyder v. Smith, 185 Mass. 58, 62, 69 N. E. 1089).

This clause of the statute combines in a single proceeding two different matters or steps in procedure, one at law and the other in equity. The first is the establishment of an indebtedness on the part of the principal defendant to the plaintiff. The second is the process for collecting the debt, when established, out of property rights which cannot be reached on an execution. In essence the first is an action at common law and the second a well recognized head of relief in chancery. Under the circumstances disclosed in the case at bar the plaintiff's initial claim for services rendered by him to two of the defendants presents purely an action at common law. If the plaintiff fails in this respect his bill must be dismissed. If, however, he establishes the indebtedness, then he will be in position to take advantage of the second part of the statute, which relates solely to relief and which is equitable in its nature. The case falls midway be

« PrethodnaNastavi »