Attorney Gen. ex rel. Bates v. Henry

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: 262 Mass. 127,159 N.E. 539
• Parties: ATTORNEY GENERAL ex rel. BATES et al. v. HENRY.
• Decision Date: 05 January 1928

262 Mass. 127
159 N.E. 539

ATTORNEY GENERAL ex rel. BATES et al.
v.
HENRY.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 5, 1928.

Report from Supreme Judicial Court, Worcester County.

Petition for mandamus by Frank P. Bates and others to be directed to Alvrado Henry, in which the Attorney General sought to intervene and to amend petition to an information in quo warranto by the Attorney General at the relation of the original petitioners. On report. Petition of Attorney General allowed, and judgment of ouster ordered.

[262 Mass. 128]C. F. Williams, of Milford, and A. K. Reading, Atty. Gen., for petitioners.

G. S. Taft, of Worcester, for respondent.

RUGG, C. J.

This case was brought as a petition for a writ of mandamus. The petitioners were seven citizens of the town of Upton. The respondent was a member of the board of selectmen of that town, who had been appointed superintendent of streets of that town by the board of selectmen. The purpose of the petition was to test the question whether the respondent lawfully could be appointed to that office by a board of selectmen of which he was and continued to remain a member. The pleadings were completed and the case submitted upon the petition, answer and an agreed statement of facts to a single justice, who ordered a peremptory writ of mandamus to issue and reported the case for the determination of the full court. The case was entered in the full court. After the decision by the single justice an opinion was handed down in Sevigny v. Russell (Mass.) 157 N. E. 601, wherein it was held that mandamus was not appropriate for such a case and that the proper process by which to try the title of one to a public office (except in cases when the [262 Mass. 129]petitioner lays claim to the office himself) is an information in the nature of a quo warranto filed by the Attorney General. See, also, Kenney v. Consumers' Gas Co., 142 Mass. 417, 419, 8 N. E. 138. The case then came on for argument before the full court. The Attorney General has filed in this court a petition that he be permitted to intervene in the case, that its title be amended so that it shall be an information in the nature of a quo warranto, and that he be permitted to prosecute the information at the relation of the original petitioners. His petition further sets

[159 N.E. 540]

forth that, ‘as the petition heretofore filed sets forth all allegations and facts in proper form for an information in the nature of quo warranto, your petitioner adopts said petition as his information, and further adopts the agreed statement of facts and the brief of the petitioners heretofore filed in the matter of the petition for mandamus, * * * as fully and completely as though the same had been filed and made by him.’ This petition is assented to by representatives of all parties to the original cases. It was stated at the bar that the question of law involved is one of general interest to the smaller towns of the commonwealth and that a decision of it is of public importance and is earnestly desired.

The petition for intervention and amendment is offered under G. L. c. 231, § 125, which provides that the ‘Supreme Judicial Court, upon any appeal, bill of exceptions, report, or other proceeding in the nature of an appeal in any civil action, suit or proceeding, shall have all the powers of amendment of the court below. * * *’ The powers of courts to allow amendments are found in G. L. c. 231, § 51, in these words:

‘The court may, at any time before final judgment, except as otherwise provided, allow amendments introducing a necessary party, discontinuing as to a party or changing the form of the action, and may allow any other amendment in matter of form or substance in any process, pleading or proceeding, which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, or enable the defendant to make a legal defense.’

This statute as to amendments has been broadly interpreted for many years so as to accomplish as to form and technical procedure whatever the justice of the case requires, save in cases where [262 Mass. 130]positive rules of law prevent. Valentine v. Farnsworth, 21 Pick. 176, 184;Pizer v. Hunt, 253 Mass. 321, 331, 148 N. E. 801, and cases there collected. Numerous cases have arisen where a new plaintiff has been introduced or substituted by amendment. Crafts v. Sikes, 4 Gray, 194, 64 Am. Dec. 62;Winch v. Hosmer, 122 Mass....