291 Mass. 428 | Mass. | 1935
This is a petition for a writ of mandamus brought to restrain the board of examiners for Middlesex County from issuing certificates of election to Thomas B. Brennan as county commissioner and to Edward L. Harley and Melvin G. Rogers as associate commissioners, based on an election held on November 6, 1934, and to order the board of examiners to call a new election to elect a county commissioner and two associate commissioners; to restrain Brennan from attempting to act as county commissioner, and to restrain Harley and Rogers from attempting to act as associate commissioners.
The petitioners, when the petition was filed on December 28, 1934, were the three commissioners holding office; Victor
The respondents Leggat and Jordan filed an answer, from which it appears that certificates of election were issued by the board of examiners to Brennan on December 31, 1934, and to Harley and Rogers on January 3, 1935. The facts alleged in the answer were not traversed. Brennan, Harley and Rogers filed demurrers, assigning among other causes (1) that there was misjoinder of parties as petitioners and parties as respondents, (2) that mandamus is an inappropriate remedy because the petitioners do not claim title to the offices held by these respondents but that an information in the nature of quo warranta filed with the intervention of the Attorney General is the proper process, (3) that this petition for mandamus is an attempt to impeach the title to office collaterally, and (4) that the office of the respondents (board of examiners) is purely ministerial, and the petition discloses that there was no failure to elect either a county commissioner or associate county commissioners. The demurrers were sustained and an order was entered dismissing the petition as matter of law. Exceptions of the petitioners bring the case here.
The demurrers were rightly sustained. Mandamus does not lie at the instance of those joined as petitioners. One
Even if the petitioners Donaldson and Jewett, as holders in office with no independent claim of title, could separately bring petitions for writs of mandamus to try the title of their successors to office, their joinder in one petition is not proper. The rule is that persons having a common and joint interest in the controversy may be joined as petitioners, while those having separate and distinct interests may not be so joined, and that in case of misjoinder the proceedings should be dismissed. Kimball v. Metropolitan District Commission, 257 Mass. 55, 58. See cases cited in 87 Am. L. R. 528. Regarded as claimants to separate and distinct offices, these petitioners are improperly joined. Rex v. Chester, 5 Mod. 10.
The petitioners Wardwell, Bowditch, Hurd and Wanamaker cannot properly bring such a petition. As they have no claim to office, they have no right to try the title of Brennan, Harley and Rogers to office in this manner. Sevigny v. Russell, 260 Mass. 294. While, as citizens and voters and interested public officials, they have in proper circumstances a right to bring mandamus to procure the
The orders sustaining the demurrer and dismissing the petition were right.
Exceptions overruled.