Finlay v. City of Boston

• Decision Date: 15 October 1907
• Citation: 196 Mass. 267,82 N.E. 5
• Parties: FINLAY et al. v. CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

196 Mass. 267

82 N.E. 5

FINLAY et al. v. CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 15, 1907

COUNSEL

J. J. Feely and Roger Clapp, for petitioners.

Philip Nichols, for respondents.

OPINION

LORING J.

We are of opinion that the demurrer to the petition must be sustained for the second reason stated in the third assignment, to wit: Because the petition is intended to prevent an illegal expenditure of public money and therefore the petitioner's only remedy is under Rev. Laws, c. 25, § 100.

The point has not been taken in the case at bar that a demurrer does not lie to a petition for mandamus.Doubts have arisen before this upon that point by reason of the provision of Rev. Laws, c. 192, § 5, that upon the return of the order of notice 'the person who is required to appear shall file an answer showing cause why the writ should not issue.'

A petition for mandamus is in many cases a petition which ought to be summarily heard and disposed of if the petitioner is to have what he is entitled to.And we are of opinion that this provision in Rev. Laws, c. 192, § 5, was inserted to ensure a speedy hearing on the merits, by requiring a completion of the pleadings on the return day, and that it was not intended to forbid the court's allowing the defendant to file a demurrer, if that is the ground on which he elects finally to put his case, or to set up in his answer the matters which would be the subject of an independent demurrer where he wishes to raise both the right of the petitioner to relief on the allegation of the facts contained in the petition and the truth of those allegations.

The substance of the complaint now before us is that the ordinance in question requiring the employment of union men to the exclusion of nonunion men in the city printing department, 'so far as it can legally do so,' is void, and that for this reason, in the words of the petition 'the expenditure of the public moneys for the maintenance of such a plant, run in such a manner, is an abuse of corporate power and unlawful.'

The petition is in effect a petition to prevent the illegal expenditure of public money.The 12 citizens who bring this petition could have brought a petition under Rev. Laws, c. 25, § 100.The cases of Spaulding v Peabody,153 Mass. 129, 26 N.E. 421, 10 L. R. A. 397andPrince v. Crocker,166 Mass. 347, 44 N.E. 446, 32 L. R. A. 610, indicate that such a petition could have been brought under the statute before the scope of it was enlarged by St. 1898, p. 445, c....