323 Mass. 388 | Mass. | 1948
These appeals, prosecuted by Charles E. Hill, are from a final decree dismissing his bill in equity and from a judgment dismissing his petition for a writ of mandamus entered after demurrers filed by the defendants had been sustained. The defendants named in each proceeding are the five trustees of the Glenwood Cemetery (hereinafter called the trustees), and the mayor, the treasurer, and the auditor of the city of Everett.
The allegations of the bill in equity may be summarized as follows: In 1935 the plaintiff was appointed superintendent of the Glenwood Cemetery (a municipal cemetery of the city of Everett) in accordance with the civil service laws and regulations. He served in that capacity until July 11, 1944, when he received a notice from the trustees to the effect that as of 8 a.m. July 12, 1944, he was suspended. After setting forth the reasons for the suspension, the notice stated that for these reasons it was the intention of the trustees “to suspend and/or remove” the plaintiff on July 18, 1944, in accordance with the provisions of G. L. (Ter. Ed.) c. 31, § 43. The plaintiff requested a public hearing and a hearing was granted to him on July 18, 1944. Later that day the trustees sent a notice to the plaintiff stating that inasmuch as they had been advised by the city solicitor that there was some question as to the legality of the suspension effective July 12, 1944, it had been voted to reinstate the plaintiff as of July 18 without loss of pay. The plaintiff reported to work on the following day at 8 a.m. as directed and resumed his duties as superintendent. Shortly after he had started to work he received a written notice from the trustees stating that he had been suspended as of 8 a.m:. that day (July 19). The reasons given for the suspension were the same as those set forth in the previous notice. The notice further stated that for these reasons it was the intention of the trustees to remove the plaintiff on
The defendants filed an answer to the bill and they also demurred. No action then was taken with respect to the demurrer and the case was partially heard on the merits by a judge of the Superior Court. On July 17, 1945, before the hearing before him was completed, the judge entered an interlocutory decree ordering the hearing to be suspended. The decree also undertook to order the trustees to continue with the hearings before them (which had not then been completed) at certain specified dates and times.
In February, 1946, Hill brought a petition for a writ of mandamus, naming as respondents the same persons who were defendants in the bill in equity. The relief sought was that the trustees be ordered to revoke their action in removing him and that the respondents be ordered to re
We consider first the bill in equity. At the outset" the plaintiff contends that since the demurrer was filed after the time fixed by the court for completing the pleadings and was not allowed to be filed late it was not properly before the court.
The demurrer to the plaintiff’s bill was rightly sustained. The demurrer sets up several grounds but it is necessary to consider only the second one, which alleges want of equity. The primary object of the bill is to prevent the trustees from proceeding further with removal hearings because four of them, it is alleged, were not duly constituted members of the board. But “It is a generally recognized^ principle that there is no jurisdiction in equity to try title ' to a public office. . . . The proper way by which to try the title to a public office where . . . the plaintiff does not claim the office for himself is by an information in the nature of quo warranta.” Brierley v. Walsh, 299 Mass. 292, 294. And it is equally well settled that the title to a public office cannot be attacked collaterally. Prince v. Boston, 148 Mass. 285, 287. Sevigny v. Lizotte, 260 Mass. 296. Commonwealth v. DiStasio, 297 Mass. 347, 350-352. The attack here, obviously, is collateral.
The plaintiff insists that the bill contains another ground for equitable relief inasmuch as it discloses that he had previously been tried on the same charges and was reinstated. It is apparent from the bill that the plaintiff was not reinstated because the trustees found him not guilty of the charges which had been preferred. On the contrary, it appears that he was reinstated only because the trustees had been advised that there was some question as to the legality of the suspension. This did not preclude the trustees from proceeding anew under a proper notice. See Donnelly v. Trustees of the Boston City Hospital, 290 Mass.
After the demurrer was sustained the plaintiff moved to amend by the substitution of a new bill of complaint. From what Was in effect an interlocutory decree denying the motion to amend (see Bressler v. Averbuck, 322 Mass. 139, 143) the plaintiff appealed. While the allowance of an amendment was a matter of discretion, the exercise of that discretion is reviewable on an appeal in equity. Abbott v. Bean, 285 Mass. 474, 478. This court, however, will give weight to the exercise of discretion' by the court below. Long v. George, 296 Mass. 574, 579. Coe v. Coe, 313 Mass. 232, 235. The new allegations contained in the proposed amended bill need not be recited. From an examination of them we cannot say that the trial judge wrongly exercised his discretion in denying the motion to amend.
We turn now to the mandamus- petition. Many of the allegations in the petition are similar to those in the bill in equity which have been summarized above. They need not be restated. Of the new allegations many are not now relied on by the petitioner. We shall confine our discussion, therefore, to those parts of the petition which the petitioner now contends entitle him to invoke the remedy of mandamus. First, the petition, as does the bill, alleges that the petitioner was suspended on July 19, 1944, following his reinstatement after a hearing on July 18, and that the charges in the second proceeding were exactly the same as those which gave rise to the first. It is argued that the trustees had no right to proceed against the petitioner a second time. Secondly, the petition alleges that the taking of evidence mTExTHéarmgs conducted by the trustees was concluded on August 2, 1945, and that the trustees then adjourned the hearing to August 7, 1945, for arguments of counsel. The trustees, it is alleged, after arguments of counsel on the latter date, then took the case under advisement and rendered their decision on August 10, 1945. The petitioner contends that the hearings were really concluded on August 2 and that the decision rendered by the trustees on August- 10, more than three days later,
The demurrers were rightly sustained.
The first point relied on by the petitioner is without merit. As we have already said in discussing the bill in equity, the trustees by reinstating the petitioner because of doubt concerning the validity of the first suspension were not precluded from proceeding anew under a proper notice.
The allegations in the petition do not show noncompliance by the trustees with the provision of G. L. (Ter. Ed.) c. 31, § 43, as it then read, with respect to giving notice of their decision within three days after the hearings.
The allegations in the petition to the effect that the trustees were not legally qualified and therefore were without authority to remove the petitioner do not make out a case for relief by mandamus. As we have previously observed in discussing the bill in equity, the authority of the trustees to act could not be questioned collaterally. This principle is none the less applicable where the authority of an officer to act is challenged in mandamus proceedings. Sevigny v. Lizotte, 260 Mass. 296. Even a direct attack on the title to an office cannot be made in such proceedings when, as here, the petitioner does not claim title for himself. Sevigny v. Russell, 260 Mass. 294, 295. Wardwell v. Leggat, 291 Mass. 428, 431.
The petitionér has appealed from the denial of his motion to amend his petition. After comparing the proposed amended petition with the original petition we are of opinion that the judge’s discretion in denying the motion was not improperly exercised.
Interlocutory decree and order affirmed.
Final decree affirmed with costs.
Judgment affirmed.
The trastees originally named were William R Grout, Charles H. Davis, Edgar F. Mitchell, Percy R Bradbrook and Raleigh McKerrall. By amendment Joseph Delcore, John L. Lemieux, Henry E. Wells, William O. Lea Pierre, and William F. Ryan were substituted as defendant trustees. Upon a suggestion of death of Mayor Frank E. Lewis, acting Mayor Ambrose T. English was substituted as a party defendant. Subsequently James R, Reynolds as mayor of Everett was substituted for English.
According to the bill the appointment of these trustees was illegal because there had been no compliance with the provision of the city charter of Everett which requires that those nominated for offices must be confirmed by the board of aldermen by an aye and nay vote.
According to the allegations in the mandamus petition the hearings before the trustees had then been completed and the trustees on August 10, 1945, had notified the petitioner in writing of their decision which, after reciting the findings of the trustees, stated that a majority of them had voted to remove him.
By an interlocutory decree entered June 29, 1945, the pleadings were ordered to be completed on or before July 6, 1945. The demurrer and the answer were filed on July 13, 1945. The answer was filed by leave of court but no leave for the late filing of the demurrer appears to have been obtained;
See now G. L. (Ter. Ed.) e. 31, § 43 (b), as appearing in St. 1945, c. 667, § 1-
General Laws (Ter. Ed.) c. 31, § 43, provided that “the person sought to be removed, suspended, lowered or transferred . . . shall be notified, in writing within three days after the hearing, of the decision of such officer or board.”