Page:Harvard Law Review Volume 12.djvu/349

329 MASSACHUSETTS AS A PHILANTHROPIC ROBBER. 329 for its negligent acts, why should not the Legislature pass a general statute allowing the enforcement of such claims for injury by suit in the courts? Why should such liability be allowed or disallowed according to the whim of the particular Legislature? But far from allowing such a right of suit to individuals, the Legislature and the courts have been very jealous in guarding the sanctity of the State against such suits in the courts. As Judge Gray said in Troy & Greenfield R. R. v. The Commonwealth: — ^ " It is a fundamental principle of our jurisprudence that the Common- wealth cannot be impleaded in its own courts except by its own consent, clearly manifested by act of the Legislature ; " and in Briggs v. Light Boats,^ in i860, Judge Gray had explained the reason for this doctrine (which had existed in this State as far back as 1812),^ saying " that it would be inconsistent with the very idea of supreme executive power, and would endanger the perform- ance of the public duties of the sovereign to subject him to repeated suits as a matter of right at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on the govern- ment in war and peace, and the money in his treasury." In 1879, Governor Talbot, in his inaugural address, recommended, and the Legislature passed, an act allowing the bringing of suits or " claims founded on a contract for the payment of money" against the State.* In 1887 another act was passed^ allowing " all claims whether at law or in equity" to be enforced against the State. But in Murdock Grate Co. v. Commonwealth,^ in 1890, the court held that the statute of 1887 could not be meant by the Legislature to create " an entirely new class of claims for which a sovereignty has never been held responsible and to impose a liability therefor," and so it held that the State could not be sued for negligence in over- loading the floor of a building and causing damage to the plaintiff. " We do not find that demands founded on the neglect or torts of ministerial officers, engaged as servants in the performance of duties 1 127 Mass. 46 (1879). 2 II Allen, 162. ' See Sewall v. Lee, 9 Mass. 370; Commonwealth v. Andre's heirs, 3 Pick. 225 (1825) ; Pingree v. Coffin, 12 Gray, 321 (1858) ; Dewey v. Garvey, 130 Mass. 86 (1881). Wesson v. Commonwealth, 144 Mass. 60.
 * See Acts of 1879, ch. 255, and Milford v. Commonwealth, 144 Mass. 64, and
 * Acts of 1887, ch. 246. •152 Mass. 28.