Duane v. City of Quincy

• Decision Date: 04 January 1966
• Citation: 350 Mass. 59,213 N.E.2d 250
• Parties: Herbert T. DUANE et al. v. CITY OF QUINCY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 250

213 N.E.2d 250

350 Mass. 59

Herbert T. DUANE et al. v. CITY OF QUINCY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 4, 1965.

Decided Jan. 4, 1966.

Harrt Pavan, Quincy, for petitioners.

Douglas A. Randall, City Sol., for respondent.

Before SPALDING, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

KIRK, Justice.

Under G.L. c. 231A the petitioners, hundreds in number, and all residents and taxpayers of the city of Quincy (the city), seek a determination of the constitutionality of St.1964, c. 666, ¹ which authorized and empowered the city to construct a refuse disposal incinerator on designated land owned by it, '[n]otwithstanding any zoning ordinance, or any general or special law to the contrary * * *'. The petitioners allege an interest in the subject matter because 'they own land on or near Quarry Street.' They seek to enjoin the city permanently from building the incinerator.

The suit was commenced in the Probate Court pursuant to the provisions of G.L. c. 215, § 6, as amended by St.1963, c. 820, § 1, the pertinent parts of which are set out in the footnote. ²

The city filed a demurrer, based on eight grounds. ³ By an interlocutory decree which did not state any ground, the demurrer was sustained. Thereafter, by final decree, the petition was dismissed by the judge 'for want of jurisdiction under G.L. Chapter 215, Section 6,' which was one of the stated grounds of demurrer. The petitioners have appealed from both decrees.

We first consider the interlocutory decree sustaining the demurrer generally. It is elementary that if any ground of demurrer is good, the demurrer must be sustained. North v. City Council of Brockton, 341 Mass. 483, 484, 170 N.E.2d 470. Wade v. Ford Motor Co., 341 Mass. 596, 598, 171 N.E.2d 282. The city's second ground of demurrer sufficiently raised the issue whether the petition adequately alleged facts essential to the maintenance of a petition for declaratory relief. One of the requirements under G.L. c. 231A, § 1, is that 'an actual controversy has arisen and is specifically set forth in the pleadings.' Here the petitioners merely allege 'that there is an actual controversy between them and * * * [the city] concerning the legality and constitutionality' of St. 1964, c. 666, under the constitutions of the Commonwealth and the United States. There is no allegation or intimation that the city by direct action, by any expression of purpose or by any preparatory step intended to exercise the authority granted to it by St.1964, c. 666. The absence of any factual allegations that there is a live controversy arising from any assertion or act by the city under St.1964, c. 666, leaves the petition as no more than a request for an opinion on the constitutionality of the statute. It follows that it does not present proper matter for declaratory relief. 'Parties are not entitled to decisions upon abstract propositions of law unrelated to some live controversy.' Cole v. Chief of Police of Fall River, 312 Mass. 523, 526, 45 N.E.2d 400, 401, and cases cited, appeal dism. sub. nom.; Cole v. Violette, 319 U.S. 581, 63 S.Ct. 1204, 87 L.Ed. 1599, rehearing den. 320 U.S. 810, 64 S.Ct. 28, 88 L.Ed. 489. The demurrer was properly sustained. BOB WARE'S FOOD SHOPS, INC. V. TOWN OF BROOKLINE, MASS., 208 N.E.2D 505^A.

We note, in passing, that the record does not show that there was compliance with the provisions of G.L. c. 231A, § 8, requiring that the Attorney General be notified and be entitled to be heard when a question of constitutionality is involved. Since, for the reason already stated, the petition was not cognizable under G.L. c. 231A, the respondent was entitled to a decree dismissing the petition. By the provisions of § 3, however, the reasons for refusing declaratory relief should be stated. The judge assigned as his reason, in substance, want of jurisdiction of the subject matter under G.L. c. 215, § 6, as amended by St.1963, c. 820, § 1. In view of what we have said, it is unnecessary for us now to discuss the jurisdictional question assigned by the judge.

The final decree...