Attorney General v. Henry

• Decision Date: 05 January 1928
• Citation: 262 Mass. 127
• Parties: ATTORNEY GENERAL v. ALVRADO HENRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 127

ATTORNEY GENERAL v. ALVRADO HENRY.

Supreme Judicial Court of Massachusetts, Worcester.

January 5, 1928

December 6, 14 1927.

Present: RUGG, C.

J., BRALEY CARROLL, & SANDERSON, JJ.

Practice, Civil Amendment. Quo Warranto. Mandamus. Municipal Corporations Officers and agents: superintendent of streets, selectmen. Acting under G.L.c. 231, Section 125; Section 51, the full court of the

Supreme Judicial Court allowed a petition by the Attorney General to intervene in a petition by citizens of a town for a writ of mandamus directing the respondent to vacate the office of superintendent of streets because he also was a member of the board of selectmen, and to amend that proceeding into an information in the nature of quo warranto filed by the Attorney General, the same facts and allegations being relied on by both parties and the same remedy being sought.

A member of the board of selectmen of a town which has not elected a highway surveyor and road commissioner under G.L.c. 41, Section 1, cannot properly be elected by that board to the office of superintendent of streets under Sections 66-68 of that chapter, although under G.L.c. 81,

Section 26, the division of highways of the department of public works has general direction over the expenditure of the money to be spent on the public ways of the town; his duties as superintendent of streets are repugnant to the supervisory duties which as a member of the board of selectmen he must under the law exercise over the superintendent of streets.

PETITION, filed in the Supreme Judicial Court for the county of Worcester on June 7, 1927, originally for a writ of mandamus commanding the respondent to vacate the office of superintendent of streets of the town of Upton.

The facts were agreed upon and are described in the opinion. A peremptory writ of mandamus was ordered by Crosby, J., who reported the case to the full court for determination.

The proceedings relating to amendment before the full court are described in the opinion.

G.S. Taft, for the respondent. C.F. Williams, for the petitioners in the petition for a writ of mandamus, before the filing of the petition to amend by the Attorney General.

A.K. Reading, Attorney General.

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, 260 Mass. 294 , 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. 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 petitioner 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 case. 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, Section 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, Section 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 defence." 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, unless prevented by positive rules of law. Valentine v. Farnsworth, 21 Pick. 176, 184. Pizer v. Hunt, 253 Mass. 321 , 331, 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. 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 Life Ins. Co. 138 Mass. 151. Lewis v. Austin, 144 Mass. 383 . Wright v. Vermont Life Ins. Co. 164 Mass. 302 , 305. Silva v. New England Brick Co. 185 Mass. 151 . Drew v. Farnsworth, 186 Mass. 365 . See, also, Hutchinson v. Tucker, 124 Mass. 240 , McLaughlin v. West End Street Railway, 186 Mass. 150 , Eaton v. Walker, 244 Mass. 23, 29, Phillips v. Director General of Railroads, 251 Mass. 263; certiorari denied in Davis v. Phillips, 269 U.S. 573.

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, and cases there collected. Sanger v. Newton, 134 Mass. 308. Childs v. Boston & Maine Railroad, 213 Mass. 91 . Gray v. Everett, 163 Mass. 77. Merril v. Beckwith, 168 Mass. 72 . Clark v. New England Telephone & Telegraph Co. 229 Mass. 1 , 5, 6. Magee v. Flynn, 245 Mass. 128 , 130. Savage v. Welch, 246 Mass. 170 . Holmes v. Carraher, 251 Mass. 536 , 539. Weinstein v. Miller, 251 Mass. 503 , 505. The case at bar is distinguishable from cases like Church v. Phillips, 157 Mass. 566 , Partridge v. Arlington, 193 Mass. 530 , Brooks v. Boston & Northern Street Railway, 211 Mass. 277 , Guarino v. Russo, 215 Mass. 83 , Sterling v. Frederick Leyland & Co. Ltd. 242 Mass. 8, 14, and Hester v. Brockton, 251 Mass. 41 , 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...