304 Mass. 72 | Mass. | 1939
This case is an outgrowth of Whittemore v. Town Clerk of Falmouth, 299 Mass. 64. One Cahoon main
After judgments in the earlier cases had been entered for the petitioner, the town on February 16, 1938, voted to adopt a second amendment to its zoning by-law, identical in terms with that which we had held invalid. The petitioner, on April 6, 1938, filed the present petition for a writ of mandamus to require the respondent board of selectmen to cause the original zoning by-law to be enforced against Caboon. The present petition does not set out any specific ground of invalidity of the amendment of February 16, 1938, but bases the claim for relief solely upon a supposed adjudication of its invalidity. The petitioner contends that the single justice in the earlier cases ruled that an
Obviously the present petition is not for the same cause of action as the earlier ones. The amendment now attacked is not the same amendment as the earlier one, though identical in terms. For one thing, it is not subject to the defect upon which our earlier decision was rested. Harding v. Hale, 2 Gray, 399. Sawyer v. Woodbury, 7 Gray, 499. Gage v. Holmes, 12 Gray, 428. Stone v. Addy, 168 Mass. 26. Mackintosh v. Chambers, 285 Mass. 594, 596-598. Sandler v. Silk, 292 Mass. 493, 498-500. Marcus v. Richardson, 299 Mass. 11. Tait v. Western Maryland Railway, 289 U. S. 620, 623, 624. Since the validity of the earlier amendment and that of the later one present different controversies or causes of action, the petitioner must show that in the earlier cases some ground of invalidity common to the two amendments was actually tried and determined in her favor. It is not enough to show that such a ground might have been tried and determined. Foye v. Patch, 132 Mass. 105, 110, 111. Sandler v. Silk, 292 Mass. 493, 498. Baltimore Steamship Co. v. Phillips, 274 U. S. 316, 319. Larsen v. Northland Transportation Co. 292 U. S. 20, 25.
Only a ground of invalidity, shown to have entered into the judgments in the earlier cases and to have formed the basis for them, can be said to have been tried and determined so as to amount to an adjudication. Tighe v. Skillings, 297 Mass. 504, 507-508. Foster v. The Richard Busteed, 100 Mass. 409, 412. Stapleton v. Dee, 132 Mass. 279. Nashua & Lowell Railroad v. Boston & Lowell Railroad, 164 Mass. 222. Embden v. Lisherness, 89 Maine, 578. It is of no importance that a single justice found and ruled upon issues that might have been decisive of the cases (United States v. Moser, 266 U. S. 236, 242), where the full
Order sustaining demurrer affirmed.