Attorney Gen. ex rel. Bates v. Henry

Decision Date05 January 1928
PartiesATTORNEY GENERAL ex rel. BATES et al. v. HENRY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

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.

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 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 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 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. 438;Buckland v. Green, 133 Mass. 421;Costelo v. Crowell, 134 Mass. 280, 284;Fay v. Duggan, 135 Mass. 242, 244;Pierce v. Charter Oak Ins. Co., 138 Mass. 151;Lewis v. Austin, 144 Mass. 383, 11 N. E. 538;Wright v. Vermont Life Ins. Co., 164 Mass. 302, 305, 41 N. E. 303;Silva v. New England Brick Co., 185 Mass. 151, 69 N. E. 1054;Drew v. Farnsworth, 186 Mass. 365, 71 N. E. 783. See, also, Hutchinson v. Tucker, 124 Mass. 240;McLaughlin v. West End St. R. Co., 186 Mass. 150, 71 N. E. 317;Eaton v. Walker, 244 Mass. 23, 29, 138 N. E. 798;Phillips v. Director General of Railroads, 251 Mass. 263, 147 N. E. 96; certiorari denied, 269 U. S. 573, 46 S. Ct. 101, 70 L. Ed. 418.

[1][2] Every substantive allegation of fact necessary for an information in the nature of a quo warranto was set forth in the petition for mandamus. The party now named as petitioner, of course, was in existence at the time the original proceeding was instituted. A legal remedy is sought, founded on the same facts as in the original petition. The cause of action is the same as that set forth in the original petition and is described in the same words. The substance of the pleadings and the agreed facts on which the merits of the controversy must be decided are the same. Amendment changing the name of the process and the form of the petition is permissible in these circumstances. Davenport v. Holland, 2 Cush. 1, 12, 13;Maker v. Bouthier, 242 Mass. 20, 23, 136 N. E. 255; and cases there collected; Sanger v. Newton, 134 Mass. 308;Childs v. Boston & Maine R. Co., 213 Mass. 91, 99 N. E. 957,48 L. R. A. (N. S.) 378;Gray v. Inhabitants of Everett, 163 Mass. 77, 39 N. E. 774;Merrill v. Beckwith, 168 Mass. 72, 46 N. E. 400;Clark v. New England Telephone & Telegraph Co., 229 Mass. 1, 5, 6, 118 N. E. 348;Magee v. Flynn, 245 Mass. 128, 130, 139 N. E. 842;Savage v. Welch, 246 Mass. 170, 140 N. E. 787;Holmes v. Carraher, 251 Mass. 536, 539, 146 N. E. 900;Weinstein v. Miller, 251 Mass. 503, 505, 146 N. E. 902. The case at bar is distinguishable from cases like Church v. Phillips, 157 Mass. 566, 32 N. E. 911;Partridge v. Inhabitants of Arlington, 193 Mass. 530, 79 N. E. 812;Brooks v. Boston & Northern Street Railway, 211 Mass. 277, 97 N. E. 760;Guarino v. Russo, 215 Mass. 83, 102 N. E. 128;Sterling v. Frederick Leyland & Co., Ltd., 242 Mass. 8, 14, 136 N. E. 60; and Hester v. Brockton, 251 Mass. 41, 146 N. E. 224, where, for reasons having no relevancy to the facts disclosed on the present record, motions to amend have been denied.

The petition of the Attorney General, praying for leave to intervene and to be permitted to become the moving party and to amend the proceeding into an information in the nature of a quo warranto, is allowed.

[3][4] The material facts are that the respondent was duly elected one of the board of three selectmen of the town of Upton. By the board of selectmen of which he was a member, he was appointed superintendent of streets, the town of Upton not having authorized the election of road commissioners or surveyors of highways. It is provided by G. L. c. 41, § 66, in substance that in such...

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