Com. v. Henry's Drywall, Inc.

Decision Date02 November 1972
Citation362 Mass. 552,289 N.E.2d 852
PartiesCOMMONWEALTH v. HENRY'S DRYWALL, INC.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Terence M. Troyer, Asst. Dist. Atty., for the Commonwealth.

Robert M. Mardirosian, Watertown, for defendant.

Before TAURO, C.J., and QUIRICO, BRAUCHER and HENNESSEY, JJ.

QUIRICO, Justice.

This case is before us on an interlocutory report of a question under G.L. c. 278, § 30A, inserted by St.1954, c. 528. On January 24, 1968, a complaint was filed in the First District Court of Eastern Middlesex in Malden charging that on January 4, 1968, the defendant 'being a corporation engaged in construction work, did require or knowingly permit . . . a person employed by it in such work to use certain devices commonly called stilts, designed to be attached to the feet or legs of such employee for the purpose of elevating him to high placed or positioned work,' in violation of G.L. c. 149, § 129B, inserted by St.1964, c. 233, and as appearing in St.1967, c. 261. 1 On February 6, 1968, the defendant was found guilty and fined on the complaint in the District Court and it appealed to the Superior Court under G.L. c. 278, § 18.

On September 13, 1968, the case was transferred from the Superior Court to the Third District Court of Eastern Middlesex at Cambridge for trial by a jury of six persons. 2 Thereafter the case was continued on ten different dates for varying consecutive periods of time ranging from a minimum of five days to a maximum of about twenty-three months, the last of which expired on December 10, 1971. On the latter date the case was reported to this court and trial of the case was continued indefinitely pending this court's decision thereon.

The report stems from a motion filed by the defendant on November 1, 1971, to dismiss the complaint on the grounds that G.L. c. 149, § 129B, as amended, (a) violates art. 12 of the Declaration of Rights of our Constitution, (b) violates the due process clause and the equal protection clause of the Fourteenth Amendment of the Unied States Constitution, and (c) is unreasonable and unnecessary. After hearing the motion the judge, without ruling on it, reported the following question for decision by this court: 'Should the Defendant's Motion to Dismiss be granted dismissing the complaint or should an order issue that the Defendant forthwith be brought to trial, or should some other appropriate disposition be made?' The report describes the prior proceedings in the case, incorporates a stipulation of the parties and certain exhibits, and concludes with the statement that the report 'contains all the material facts necessary for a review of the questions of law presented, to which the parties agree.' 3

We assume, despite the form of the question reported, that the basic decision which the judge and the parties would like to obtain from this court is whether G.L. c. 149, § 129B, is constitutional. Before reaching that important question, we feel compelled to consider whether this is an appropriate situation for the exercise of the power conferred by G.L. c. 278, § 30A, to report interlocutory questions of law in criminal cases for decision by this court. Resort to the history of this statute will shed light on this point.

It is well settled that '(t)he authority of a judge of . . . (an inferior court) to report questions of law for the decision of the full court is wholly the creature of statute.' Commonwealth v. Cronin, 245 Mass. 163, 164, 139 N.E. 647, 648, and cases cited. With this premise, the opinion in the Cronin case, decided in 1923, continued (p. 165, 139 N.E. p. 648): 'The only right to report in criminal cases is found in G.L. c. 278, § 30, and is expressly confined to instances where a person has been convicted. This court has no jurisdiction to decide an interlocutory question arising in a criminal prosecution until the case shall have been finally disposed of by conviction in the superior court.' This state of the law remained unchanged until the enactment of St.1954, c. 528, inserting § 30A in G.L. c. 278 to provide as follows: 'If, prior to the trial of a person in a criminal case in the superior court, a question of law arises which, in the opinion of the presiding justice, is so important or doubtful as to require the decision of the supreme judicial court thereon before trial, in the interest of justice, he may report the case so far as necessary to present the question of law arising therein; and thereupon the case shall be continued for trial to await the decision of the supreme judicial court.' 4

As early as 1934 there were efforts to obtain passage of a statute similar in purpose to the present G.L. c. 278, § 30A, See 1934 House Bill No. 718, referred to in 19 Mass. L.Q. (No. 2) 9, as relating to 'procedure to allow Massachusetts to discover the meaning of its own criminal law.' However, it was not until after the Judicial Council had recommended the passage of legislation authorizing interlocutory reports in criminal cases in its annual reports for 1952 and 1953 that the Legislature enacted the present § 30A in substantially the same language proposed by the Council. See Twenty-eighth Report of the Judicial Council (December, 1952), Pub. Doc. No. 144, 32--35; and Twenty-ninth Report of the Judicial Council (December, 1953), Pub.Doc. No. 144, 36--37. The Judicial Council reviewed the history of statutes authorizing judges of trial courts to report questions of law in both civil and criminal cases to this court and noted that there was no such authority to report interlocutory questions in criminal cases. It then said (in its Twenty-eighth Report, 34--35): 'It would seem that they should have authority expressly recognized by statute, to deal with exceptional cases and prevent the possible injustice of a protracted trial (lasting perhaps weeks or months and delaying other trials) by a carefully prepared interlocutory report, where the judge considers that justice to the Commonwealth and the defendant calls for a decision whether his ruling on a decisive question of law is right or wrong before everyone involved is subjected to the ordeal of a long trial. Excessive use of such interlocutory reports by trial judges can be readily checked by the sound judicial discretion of the Supreme Court in criminal cases as it is in civil cases.' The Council then quoted the following language from John Hetherington & Sons, Ltd. v. William Firth Co., 212 Mass. 257, 259, 98 N.E. 797: 'Considerable discretion is conferred upon judges of the superior court in reporting cases before they are ripe for final judgment. If this discretion should be too generously exercised, and if moot, speculative or subsidiary questions are reported, they would not be considered.' See Terry v. Brightman, 129 Mass. 535, 537--538.

On the basis of the record before us and the history and language of G.L. c. 278, § 30A, we hold that his is not an appropriate case in...

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    ...and that subsequent proceedings in the trial court will be substantially facilitated by so doing." Commonwealth v. Henry's Drywall Co., 362 Mass. 552, 557, 289 N.E.2d 852 (1972), quoting John Gilbert Jr. Co. v. C.M. Fauci Co., 309 Mass. 271, 273, 34 N.E.2d 685 (1941). Interlocutory reports,......
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