Brooks v. Registrar of Motor Vehicles

• Decision Date: 23 January 1973
• Citation: 1 Mass.App.Ct. 78,294 N.E.2d 487
• Parties: Joseph H. BROOKS v. REGISTRAR OF MOTOR VEHICLES.
• Court: Appeals Court of Massachusetts

Page 487

294 N.E.2d 487

1 Mass.App.Ct. 78

Joseph H. BROOKS v. REGISTRAR OF MOTOR VEHICLES.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 11, 1972.

Decided Jan. 23, 1973.

James F. Freeley, Jr., Boston, for plaintiff.

Walter H. Mayo, III, Asst. Atty. Gen. (John F. McGarry, Asst. Atty. Gen., with him), for defendant.

Before HALE, C.J., and KEVILLE and GRANT, JJ.

KEVILLE, Justice.

This is a petition for a writ of mandamus. The original petition was filed in the Superior Court on May 2, 1969. It was prefaced by the petitioner's motion, filed and allowed on that day, for an extension of time in which to file the petition. A demurrer was sustained to the original petition. We have before us a substitute petition filed by leave of court on January 29, 1970. It is here on appeal from the allowance of a motion to dismiss for lack of jurisdiction and from an order for judgment dismissing the petition.

The petitioner seeks reinstatement to his former position in the Registry of Motor Vehicles. The question for decision is whether in the circumstances the court lacked jurisdiction to entertain the petition under the provisions of G.L. c. 31, § 46A, as appearing in St.1959, c. 569, § 5. That section provides in pertinent part that '(t)he supreme judicial court shall have jurisdiction of any petition for a writ of mandamus for the reinstatement of any person alleged to have been illegally discharged . . . provided, that such petition shall be filed in said court within six months next following such allegedly illegal discharge . . . unless said court for cause shown extends the time.' ¹

The judge found that the petitioner was suspended from the Registry of Motor Vehicles on June 9, 1964, that he was officially discharged on June 16, 1964, that he received actual notice of his suspension and discharge at that time, and that no extension of time in which to file a petition for a writ of mandamus was requested or granted by leave of court within six months of the date of discharge, viz., prior to December 16, 1964.

We perceive no error. Not having filed his petition within six months following his discharge and not having obtained within that period an extension of time within which to file the petition, the petitioner could not thereafter properly file the petition. Coyne v. City Manager of Cambridge, 331 Mass. 270, 118 N.E.2d 768. In that case where the petition was filed thirty-three months after discharge as compared with sixty months in the instant case, the court held that it was too late for the petitioner to proceed by mandamus.

In the Coyne case the Supreme Judicial Court considered the legislative history of G.L. c. 31, § 46A, which was inserted in the General Laws by St.1930, c. 243. The statute was enacted pursuant to the report of a Joint Special Committee on Civil Service Laws, Rules and Regulations, 1930 House Doc. No. 1001. The Report with respect to § 46A reads as follows: 'LIMITATION OF ACTIONS. The Committee further recommends that a time limitation of six months be set for the bringing of an action for reinstatement in any court by any person who claims that his removal from service is illegal. An action was, in 1928, brought by a man against the city of New Bedford, seeking reinstatement because of his having been removed, in 1925, illegally, from a position in the city service, and the Supreme Judicial Court ordered him reinstated with full pay from the date of his removal. The Committee feels that a period of six months is all that should be allowed for the bringing of such an action, in justice to the taxpayers of any city or town.'

The draft legislation accompanying this report (Appendix L.) is entitled: 'An Act defining and limiting the jurisdiction of the supreme judicial court relative to petitions for writs of mandamus to compel reinstatement of certain persons to positions under the classified civil service.' The text, substantially the same as the statute as enacted, contains the identical concluding phrase 'unless said court for cause shown extends the time.'

'To extend means to stretch out or to...