Curran v. Boston Police Patrolmen's Ass'n, Inc.

• Decision Date: 20 January 1976
• Parties: John P. CURRAN v. BOSTON POLICE PATROLMEN'S ASSOCIATION, INC.
• Court: Appeals Court of Massachusetts

Page 522

340 N.E.2d 522

4 Mass.App.Ct. 40

John P. CURRAN

v. BOSTON POLICE PATROLMEN'S ASSOCIATION, INC.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 9, 1975.

Decided Jan. 20, 1976.

Manuel Z. Sherman, Boston, for plaintiff.

Frank J. McGee, Marshfield, for defendant.

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

HALE, Chief Justice.

The plaintiff brought a bill of complaint seeking to invalidate an action taken by the defendant's governing body, the House of District Representatives (House), which removed most of the plaintiff's powers and duties as treasurer of the defendant and reduced his salary from seventy-five to ten dollars per week. The defendant filed a demurrer to the bill, assigning as a ground, among others, that the bill failed to state a cause of action. The demurrer was heard after the effective date of the Massachusetts Rules of Civil Procedure (July 1, 1974) and was treated (Mass.R.Civ.P. 1A(3), 365 Mass. --- (1974)) as a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. --- (1974). It was allowed by a Superior Court judge, with leave to move to amend. Thereafter a motion to amend was filed, together with a proposed amended complaint. That motion was denied by another Superior Court judge who, having compared the amended complaint with the original bill, ruled that as 'the amended complaint adds nothing of substance to the original and that the basic legal question is the same under each, the motion to amend is denied, the court . . . having previously determined that question adversely to plaintiff.' Judgment dismissing the complaint was entered by a third Superior Court judge, and the plaintiff has appealed.

In our review of this case we are governed by the well-known standard, formerly applied to demurrers, that for the purpose of deciding a motion to dismiss under Mass.R.Civ.P. 12(b)(6) the defendant admits all the facts well pleaded. George v. Jordan Marsh Co., 359 Mass. 244, 246, 268 N.E.2d 915 (1971). We construe the pleadings, however, under the somewhat less exacting requirements of the Massachusetts Rules of Civil Procedure. See Charbonnier v. Amico, --- Mass. ---, --- - --- ^a, 324 N.E.2d 895 (1975); Harrison v. Textron, Inc., --- Mass. ---, --- ^b, 328 N.E.2d 838 (1975).

The plaintiff claims that he is the duly elected treasurer of the defendant, an incorporated labor organization representing the patrolmen of the police department of the city of Boston; that the by-laws of the defendant provide, '(t)he treasurer and clerk shall be elected annually by and from the membership of the corporation;' and that the action of the House ¹ 'so diluted the office of Treasurer as to deny to the membership, without authority, the benefit of the service of the Treasurer duly elected by said membership . . . and is outside the discretion reserved to the House of District Representatives to control (the) financial concerns (of the defendant).' In other words, the plaintiff contends that the House lacked the authority to divest him of most of the duties of the office to which he was elected by the membership.

Our task is to detemine whether this vote was proper under the by-laws. Mitchell v. Albanian Orthodox Diocese in America, Inc., 355 Mass. 278, 282, 244 N.E.2d 276 (1969). Article 7, § 1, of the by-laws provides in pertinent part: 'The House of District Representatives shall have the entire charge, control and management of the corporation, its property, business, and affairs and shall exercise all the powers of the corporation except such House of District Representatives shall and by these by-laws. Subject as aforesaid, the House may fix and alter the duties, powers and authority of the several officers and agents of the corporation.' The plaintiff now seeks to direct our attention to the exception found at the end of the first sentence of that section, but without having suggested in his complaint or in his brief that any reservation such as may be there referred to does in fact exist. We do not regard that naked phrase as helpful to the plaintiff. The authority for the board's action is explicitly stated in the last sentence of § 1, quoted above, and the overall...