Norcross v. City of Cambridge

Morton, J. The objection that the bill should be dismissed because of the pendency of the proceedings in the Superior Court has not been pressed, and is disposed of by the case of Moore v. Sanford, 151 Mass. 285. The plaintiffs contend that the statute under which their land was taken is unconstitutional, first, because it does not provide compensation by way of interest from the date of the paper taking to the date of the actual entry and taking of possession, and secondly, because the rate of interest is fixed at four per [511] cent instead of six. See Pub. Sts. c. 77, § 3, and c. 171, § 8. In other words, the plaintiffs contend that they have a constitutional right to interest at six per cent from the time of the formal taking. The case of Edmands v. Boston, 108 Mass. 535, seems to us decisive of this. Aside from that, we should hesitate to say that a statute which permits the damages to be assessed as of the date of the formal taking, but postpones interest till possession is actually taken, does not provide the “ reasonable compensation ” which the Constitution requires. The Legislature may have considered, as was said in Edmands v. Boston, and, as has been thought elsewhere, that the use of the land would compensate the owner for the delay in payment. Hamersley v. New York, 56 N. Y. 533. Donnelly v. Brooklyn, 121 N. Y. 9. Fiske v. Chesterfield, 14 N. H. 240. Chicago v. Palmer, 93 Ill. 125. Phillips v. South Park Commissioners, 119 Ill. 626. Second Street, Harrisburg, 66 Penn. St. 132. If it did not, and he was put to trouble and expense by reason of the proceedings prior to the entry, it might be competent for the jury, as was suggested in Edmands v. Boston, and as by statute may be done in the case of highways, Pub. Sts. c. 49, § 14, to include the loss thus occasioned as an element of damage. The rule has been generally laid down in this State, that the landowner is entitled to interest from the time of the taking, because compensation has generally been regarded as due and payable then. We think, however, that the rule cannot be held so far to express a matter of common right that a departure from it by the Legislature in a statute authorizing a taking by eminent domain would render the statute in which it occurred wholly or partly unconstitutional. In the highway act it is expressly provided that interest shall be payable only from the date of actual entry. Pub. Sts. c. 49, § 14. The constitutionality of that provision, so far as we are aware, has never been questioned. There can be no doubt, we think, that the Legislature would have the right to enact that, as between vendor and purchaser, the latter, in the absence of any contract to that effect, should not be liable for interest until he. entered into possession, or took or had the right to take the rents and profits. It has been held that a taking by eminent domain is in the nature of a purchase [512] by the public. Parks v. Boston, 15 Pick. 198. If it is, then it is obvious that the involuntary character of the transaction quoad the landowner cannot take away the right of the Legislature to deal with the question of interest, as in the case of other sales. In re Pigott, 18 Ch. D. 146. Further, if we assume that the damages for taking are to be regarded as a debt, (see Frazer v. Bigelow Carpet Co. 141 Mass. 126,) the right to interest as compensation or damages for the detention of a debt is not an absolute right. Sutherland, Damages, (2d ed.) § 321, At common law interest was not’ only not allowed, but was, it seems, unlawful. Chesterfield v. Jansen, 1 Wils. 286. Lowe v. Waller, 2 Doug. 736, 740. Robinson v. Bland, 2 Burr. 1077, 1086. Houghton v. Page, 2 N. H. 42. Sutherland, Damages, (2d ed.) § 301. Sedgwick^ Damages, (5th ed.) 236, 237. 10 Bac. Abr. Usury, 264. 1 Pollock & Maitland, Hist. Eng. Law, 109. The encumbrance caused by the formal taking is very much like that caused by a contemplated taking. There is a possibility in either case that the object in view will not be carried out, — a little more remote, it is true, in the former case than in the latter, but with the advantage to the landowner in the former case that, whether it is or is not, he gets his damages, while in the latter he does not. Further, the involuntary taking does not put the landowner in any worse position for the time being, so far as the sale or use of his property is concerned, than he would be put by a voluntary contract of sale. As a practical matter, it is generally understood that landowners do not lose anything at the hands of juries because of the involuntary character of the transaction on their part. The plaintiffs further contend that they are entitled to interest at six per cent, because that was the rate established by general law at the time when the special statute was passed under which these proceedings have been taken. But the rate of interest is a matter for the Legislature, and the same power that established it can alter it, and has done so in this case. We know of no constitutional provision which requires a uniform rate of interest in regard to all transactions. In the case of exceptions adjudged frivolous, interest at twelve per cent may be awarded on the debt or-damages. Doubtless there are other instances of excep [513] tional rates to be found. Besides, we cannot say that this case may not mark the beginning, of a legislative policy to allow four per cent hereafter in similar cases. We certainly cannot say, if that question is before us, that four per cent does not provide reasonable compensation for the delay in payment of the damages that may be assessed. Bill dismissed