359 Mass. 185 | Mass. | 1971
This is a petition for a writ of mandamus. We summarize the averments of the petition as follows: The Massachusetts Port Authority (Authority) has title to
The petitioners sought a writ of mandamus ordering the respondents “to maintain and keep in good condition and repair the Pier,” and that this court “enter a decree that the original covenants contained in the indenture of lease dated September 24, 1910, . . . have been breached by the . . . Corporation and that the . . . Authority be commanded to expel and remove the . . . Corporation from the . . . Pier as provided in said instrument.” The petitioners appeal from orders sustaining the demurrers of the
1. The demurrer of each respondent contained four grounds. Each demurrer was sustained generally. If any ground is good, it is sufficient to dispose of the appeal. Hiller v. American Tel. & Tel. Co. 324 Mass. 24, 25. Since grounds common to both demurrers were (1) that the relief sought is discretionary, and (2) that the relief sought by the petition was too vague, we find it unnecessary to discuss the demurrers separately.
In so far as the petition seeks an order directing the respondents to maintain and keep in good condition the Pier, it is far too vague to be a foundation for mandamus. “That writ is issued only where the respondents are under a legal duty to perform some particular act or acts the performance of which the court can order in definite terms and enforce if necessary” (emphasis supplied). Scudder v. Selectmen of Sandwich, 309 Mass. 373, 375. This court will not involve itself in an order which requires the respondent to maintain and keep the premises in good condition and repair. There is not only the uncertainty in the interpretation of these words, as applied to the Pier, but the enforcement of them calls for continuous court supervision of what might be, or might not be, thought to be “good condition and repair.” Gardner v. Callahan, 347 Mass. 21, 23.
It would appear that the real thrust of the petition is not the relief just discussed but rather is to compel the Authority to expel the Corporation from the Pier as provided by the 1910 lease. What the petition asks in effect is that the court enter an order commanding the Authority to determine that the Corporation has failed to maintain the premises in the same condition as they were in 1910 and that this failure constitutes a breach of the lease provisions, and finally to exercise its option to terminate the lease for breach of covenant. Ordering an official body to make such discretionary determinations is not a proper function of a writ of mandamus, since if the act is discretionary there is by definition no official duty to perform it. Knights v.
2. The denial of the motion to amend the petition reveals no error of law. The proposed amendment left the petition substantially unchanged and did not cure the defects discussed above. There was no abuse of discretion in denying this motion. Kolodny v. Building Commr. of Brookline, 346 Mass. 289, 293.
Orders sustaining demurrers affirmed.
Order denying the motion to amend affirmed.
The statutory reference appears to be §§ 23, 1, as amended, of St. 1956, c. 465, relating to the Authority.