MOLLIE H. BROMFIELD & another, executors, & others [Note 1] vs. TREASURER AND RECEIVER GENERAL & another. [Note 2]

NOLAN, J. This is an action in the nature of mandamus pursuant to G. L. c. 79, Section 10A. The case is before us following a reservation and report by a single justice of this court on March 2, 1983. Mass. R. Civ. P. 64, 365 Mass. 831 (1974). The principal issue for our determination is whether an order directed to the Treasurer and Receiver General of the Commonwealth (Treasurer) should issue to compel payment of a judgment and execution rendered in an eminent domain action, where the initial appropriation authorizing the taking has been exhausted, and where the Legislature has made no new appropriation sufficient to satisfy the judgment. For the reasons stated below, we conclude that mandamus is an inappropriate remedy.

The parties have agreed to the following facts. On June 26, 1970, the Commonwealth, acting through the Metropolitan District Commission (MDC), seized the plaintiffs' land, known as Peddocks Island, for conservation and recreation purposes. [Note 3] The record owner of Peddocks Island at that time, East Coast Realty Corporation, petitioned for an assessment of damages in the Superior Court in Plymouth County on March 1, 1971. Trial of that action commenced June 14, 1982; on June 23, 1982, following the jury's verdict, judgment was entered against the Commonwealth in the amount of $2,080,000, plus interest and costs. No appeal was taken.

The court then issued a certificate of judgment in the amount of $3,262,980.33, representing the judgment, plus

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interest and costs accrued until the date of its issuance, [Note 4] August 17, 1982. On the same day, the certificate was sent to the Comptroller of the Commonwealth.

By letter dated September 16, 1982, counsel for the plaintiffs made demand upon the MDC for payment of the judgment, with interest, pursuant to G. L. c. 79, Section 37. On September 29, 1982, the MDC responded by stating that the executive assistant to the Commissioner of the MDC had requested funds to satisfy the judgment, that no appropriation had been received, and that the MDC would proceed "as expeditiously as possible" in pursuance of that request.

Having received no monies from the Commonwealth, the plaintiffs filed the instant action on February 11, 1983. The Commonwealth concedes both the $3,262,980.33 debt owed to the plaintiffs and its liability for ten per cent annual interest from the date of the certificate of judgment until the end of the month preceding payment. [Note 5] The parties stipulate that the original appropriation for the acquisition of Peddocks Island has been exhausted, and that the Legislature has made no further appropriation from which to satisfy the judgment.

The plaintiffs contend that the Commonwealth's failure to satisfy the judgment is unreasonable and deprives them of property without just compensation, in violation of art. 10 of the massachusetts Declaration of Rights and the Fifth Amendment to the United States Constitution. Further, the plaintiffs assert that the Treasurer and the Commonwealth

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were bound by G. L. c. 79, Section 36A, to pay the August 17, 1982, judgment within thirty days of its entry, and that mandamus should issue under G. L. c. 79, Section 10A, to compel that payment.

While admitting the indebtedness of the Commonwealth, the defendants state that the Treasurer can make no payment in the absence of an appropriation, and that the plaintiffs have suffered no deprivation, inasmuch as their judgment, when paid, will include interest compensating them for delay.

1. The obligation of the Commonwealth. The duty of the Commonwealth to provide compensation for land seized through its powers of eminent domain is constitutionally compelled by art. 10 of the Declaration of Rights. [Note 6] Because the Commonwealth's Constitution affords protection parallel to that of the United States, we will deal with the plaintiffs' arguments as a matter of State law. See Sweet v. Rechel, 159 U.S. 380, 400 (1895) (Massachusetts' provision for reasonable compensation and Federal mandate of just compensation are substantially similar). Whenever the Commonwealth chooses to exercise its powers of eminent domain, it incurs a corollary and inseparable obligation to make payment for the land seized. The fundamental principle is stated as follows:

"The duty of paying an adequate compensation, for private property taken, is inseparable from the exercise of the right of eminent domain. The act granting the power must provide for compensation, and a ready means of ascertaining the amount. Payment need not precede the seizure; but the means for securing indemnity must be such that the owner will be put to no risk or unreasonable delay." Haverhill Bridge Proprietors v. County Comm'rs of Essex, 103 Mass. 120, 124-125 (1869). Here, where the Commonwealth has

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acknowledged its debt, the plaintiffs cannot be said to be at "risk" at this time. The issue, then, is whether there has been "unreasonable delay."

Delay is vexatious to the plaintiffs and likely to be costly to the Commonwealth, owing to sizable accumulations of interest. However, we do not perceive the delay of approximately six months between issuance of the certificate of judgment and the initiation of this litigation to be "unreasonable delay." The record before us indicates no wilfulness or bad faith on the Commonwealth's part in failing to make a sufficient appropriation to satisfy its debt. [Note 7] At this juncture, in the absence of some reason other than the ordinary delays inherent in the legislative process, there is no basis for finding that the time elapsed between issuance of the execution and commencement of this litigation amounts to an impairment of the plaintiffs' constitutional right to reasonable compensation.

The presumption exists that the Commonwealth will honor its obligations. Talbot v. Hudson, 16 Gray 417, 431-432 (1860). This is not to say, however, that the plaintiffs are relegated to standing idly by, left only to consider, as reasonable compensation, the vague hope that on some unascertainable future date their judgment will be satisfied. [Note 8] It has long been established that no citizen ought be compelled "to trust to the future justice of the Legislature" to provide the compensation owing him. Connecticut River R.R. v. County Comm'rs of Franklin, 127 Mass. 50, 53

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(1879), quoting from Bloodgood v. Mohawk & Hudson R.R., 18 Wend. 9, 17 (N. Y. 1837). If the Legislature should fail to make an appropriation sufficient to meet the Commonwealth's obligation to pay this judgment with accrued interest by the end of the 1984 legislative session, consideration will be given to ordering a reconveyance of the property to the plaintiffs by imposing a constructive trust upon the property in the hands of the MDC by reason of the taking. [Note 9] Cf. Peerless Weighing & Vending Mach. Corp. v. Public Bldg. Comm'n of Chicago, 209 F. Supp. 877, 883 (N.D. I11.), appeal dismissed, 371 U.S. 801 (1962). But see Reynolds v. State Bd. of Pub. Roads, 59 R.I. 120, 123-124 (1937). Alternatively, this court may consider enjoining the MDC (assuming it were added as a party defendant) from taking any other lands until this judgment is satisfied. See Perez v. Boston Hous. Auth., 379 Mass. 703, 729 (1980). Further, we may contemplate a departure from tradition by permitting levy of execution upon the Commonwealth's property. In the interim, however, the Legislature must be afforded an opportunity to meet its acknowledged, and ever-increasing, debt. The severity of the remedial devices which may be considered in the future demands caution, but we shall not shrink from the task of doing justice. The instant case calls for prompt legislative action, not a resort to extraordinary judicial intervention. Given adequate time for action, we are confident, the Legislature will respond to its obligation.

2. The propriety of mandamus against the Treasurer. The plaintiffs argue that the Massachusetts Constitution and the General Laws impose upon the Treasurer an obligation to pay this judgment, and that this court has the power to compel him to do so. The thrust of the plaintiffs' argument is that under art. 10 of the Declaration of Rights

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they are entitled to reasonable compensation for the seized lands; that pursuant to G. L. c. 79, Section 36A and 10A, payment of any judgment in an eminent domain proceeding must be made within thirty days thereof; that noncompliance may be enforced by writ of mandamus; [Note 10] and that the provisions of Part II, c. 2, Section 1, art. 11, of the Massachusetts Constitution present no obstacle to issuance of that writ. [Note 11]

The plaintiffs' argument fails to recognize that, in the ordinary case, the treasurer has no power to disburse any monies on behalf of the Commonwealth in the absence of an appropriation therefor, and then only where there exists a warrant executed by the Governor. Part II, c. 2, Section 1, art. 11, of the Massachusetts Constitution. [Note 12] Under G. L. c. 79,

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Section 10A, mandamus will issue only to those having a duty of compliance with other provisions of the eminent domain statute. It is true that if there existed an unexhausted appropriation sufficient to pay all or part of the judgment, the Treasurer would be obliged to comply with c. 79, Section 36A. This court could then compel him to do so in accordance with Section 10A; however, that is not so where no funds are available from which the Treasurer might draw.

The Treasurer is not free to pick and choose among the funds entrusted to him to satisfy demands for payment. Were that the case, the Treasurer could, at will, usurp the powers of appropriation which, under the Commonwealth's Constitution, reside with the Legislature. Part II, c. 1, Section 1, art. 4, of the Massachusetts Constitution. Article 63, Section 3, of the Amendments to the Massachusetts Constitution. [Note 13] To adopt the plaintiffs' reasoning would be to confer upon the Treasurer a "most dangerous discretion." Reeside v. Walker, 52 U.S. (11How.) 272, 291 (1851).

The cases relied upon by the plaintiffs are inapposite. In County Comm'rs of Middlesex County v. Superior Court, 371 Mass. 456, 461-462 (1976), officials had available reserve funds from which they might lawfully draw to meet unanticipated salary increases for certain court personnel. There was nothing in that case that may be construed to authorize expenditures in excess of appropriations in the ordinary case. Id. at 460-461. In O'Coins, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 509 (1972), this court recognized an inherent judicial power to bind the county contractually when the functioning of the courts requires

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reasonably necessary expenses. O'Coin's is distinguishable from this case. The result in O'Coin's is demanded by the inherent power of the courts, "a separate and independent department of government entrusted with the exclusive power of interpreting the laws." Id. at 509. Implicit in the constitutional grant of power to the courts is the authority to take all steps necessary for proper judicial administration. Id. at 510. This rationale cannot be stretched into the radical transformation of the Commonwealth's fiscal policy which the plaintiffs' argument implies. Finally, in Markus v. County of Middlesex, 356 Mass. 517, 518-519 (1969), this court recognized that mandamus could issue to enforce an eminent domain award, but in that case there existed an unexhausted appropriation from which payment could be made.

Similarly, this court cannot accept the suggestion that an eminent domain judgment is in the nature of a "public debt" such that appropriation and warrant requirements need not be met. [Note 14] This term comes from G. L. c. 29, Section 18, and has no application to this case. Nor is this a proper case for the exercise of certain borrowing powers which have been conferred upon the Treasurer. Where such powers exist, they are narrowly confined and circumscribed by the Constitution and the General Laws. [Note 15]

The case is remanded to the county court which is to retain jurisdiction until the prorogation of the 1984 legislative session, after which an appropriate judgment shall be entered. [Note 16]

So ordered.