Franklin Fair Ass'n v. Secretary of Com.

• Decision Date: 28 February 1964
• Citation: 347 Mass. 110,196 N.E.2d 622
• Parties: FRANKLIN FAIR ASSOCIATION, Inc. v. SECRETARY OF the COMMONWEALTH (and three companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 622

196 N.E.2d 622

347 Mass. 110

FRANKLIN FAIR ASSOCIATION, Inc. v. SECRETARY OF the COMMONWEALTH (and three companion cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 4, 1964.

Decided Feb. 28, 1964.

Robert F. McCormick, Boston (William F. Byrne, Boston, with him), for Franklin Fair Ass'n, Inc.

James W. Bailey, Asst. Atty. Gen., for Secretary of Commonwealth.

Before WILKINS, C. J., and SPALDING, KIRK, SPIEGEL and REARDON, JJ.

WILKINS, Chief Justice.

These four cases by Franklin Fair Association, Inc. (the Fair) against the Secretary of the Commonwealth (the Secretary) have been consolidated for purposes of appeal. They are: (1) a bill for declaratory relief under G.L. c. 231A; (2) a petition under the State Administrative Procedure Act, G.L. c. 30A, to review the action of the Secretary in revoking the Fair's charter; (3) a petition for a writ of certiorari for the same purpose; and (4) a petition for a writ of mandamus to order the Secretary (a) to accept the Fair's 'reports' for the years 1954 to 1962, inclusive, required by G.L. C. 180, § 26A, AND (B)¹ to issue a certificate of the Fair's corporate existence.

To the bill for declaratory relief the Secretary demurred on two grounds: (1) that the Fair had failed to state a case presenting a controversy proper for determination; and (2) that a declaratory decree, if entered, would not terminate the controversy. After hearing the demurrer was sustained on both grounds, and the Fair appealed. From a final decree dismissing the bill the Fair appealed.

To the petition under the State Administrative Procedure Act the Secretary demurred on the ground that the petition failed to state grounds for judicial review under G.L. c. 30A. The Fair appealed from an interlocutory decree sustaining the demurrer and from a final decree dismissing the petition.

To the petition for a writ of certiorari the Secretary demurred on the grounds that (1) the matters contained in the petition are insufficient in law; and (2) those matters have already been decided in the first two cases. After hearing the demurrer was sustained, and the Fair appealed.

The petition for a writ of mandamus was heard on a statement of agreed facts. An entry was made on the petition: 'Petition denied by the Court.' This is to be treated as an order for judgment. Klier v. Building Inspector of Lawrence, 333 Mass. 111, 112-113, 128 N.E.2d 781. The Fair appealed.

In the bill for declaratory relief the demurrer was sustained on both grounds quoted above. The Secretary argues that the Commonwealth is a necessary party. We do not agree. The controversy is between the Fair and the Secretary and raises the definite questions whether its certificates were properly filed and whether its charter has been properly revoked. These issues are not within the holding of Executive Air Service, Inc. v. Division of Fisheries & Game, 342 Mass. 356, 173 N.E.2d 614. See Sheridan v. Gardner, Mass., 196 N.E.2d 303 ². This case is similar to a number of bills for declaratory relief which have been decided by this court where the controversy was between some State official or agency and another as to the construction of statutes or the powers of the official or agency. Saint Luke's Hosp. v. Labor Relations Comm., 320 Mass. 467, 70 N.E.2d 10; Treasurer of City of Worcester v. Department of Labor and Industries, 327 Mass. 237, 98 N.E.2d 270; Insurance Co. of North America v. Commissioner of Ins., 334 Mass. 108, 134 N.E.2d 423; Winch v. Registrar of Motor Vehicles, 334 Mass. 271, 135 N.E.2d 17; Gildea v. Commissioner of Correction, 336 Mass. 48, 142 N.E.2d 400; Stow v. Commissioner of Corps. & Taxn., 336 Mass. 337, 145 N.E.2d 720; Sun Oil Co. v. Director of the Div. on the Necessaries of Life, 340 Mass. 235, 163 N.E.2d 276, 89 A.L.R.2d 896; Silverman v. Board of Registration in Optometry, 344 Mass. 129, 181 N.E.2d 540; Hall-Omar Baking Co. v. Commissioner of Labor and Industries, 344 Mass. 695, 184 N.E.2d 344; Hynson, Westcott & Dunning, Inc. v. Commissioner of Public Health, Mass., 195 N.E.2d 74 ³.

Other suggestions in the Secretary's brief seem to relate to aspects of the merits of the controversy which ought to be decided by a binding declaration rather than to be refused determination by sustaining a demurrer. 'Ordinarily a demurrer cannot properly be sustained to a bill for a declaratory decree on the ground that the court does not agree with the proposition for which the plaintiff contends. Usually a declaratory decree should be made in any event.' Dukes County v. New Bedford, Woods Hole, Martha's Vineyard and Nantucket S. S. Authy., 333 Mass. 405, 406, 131 N.E.2d 206, 207. Neither is this a situation where a declaratory decree would not terminate the controversy, as in Harvey Payne, Inc. v. Slate Co., 342 Mass. 368, 370, 173 N.E.2d 285, and Weinstein v. Chief of Police of Fall River, 344 Mass. 314, 317, 182 N.E.2d 525. See G.L. c. 231A, § 3, which contains a requirement, not observed in the court below, that the reasons for refusal on that ground should be stated in the record. Holdings one way or the other upon the filing of the certificates and the revocation of the Fair's charter would terminate the controversy.

Unlike the Weinstein case there would remain no discretionary acts to be performed by the Secretary. Both parties are in agreement that the Secretary's function in accepting the certificates for filing is clerical. See Arnold v. Commissioner of Corps. & Taxn., 327 Mass. 694, 701, 100 N.E.2d 851.

The demurrer to the bill for a declaratory decree should have been overruled. We now turn to the statement of agreed facts which by its terms is applicable to any of the four cases considered on the merits.

The Fair was organized as a charitable corporation pursuant to G.L. c. 180 on November 24, 1944. Certificates as required by G.L. c. 180, § 26A, were filed with, and accepted by, the Secretary with respect to each year from 1944 to 1953, inclusive. ⁴ The Secretary sent to the Fair a letter dated January 8, 1962, entitled 'Notice of Dissolution,' which stated that the records of his office indicated that the Fair 'has filed its last annual report on None Filed.' The letter went on to say that the Fair had failed to comply with G.L. c. 180, § 26A, and gave 'notice that unless said certificates are filed with this office within 90 days, the charter of said corporation will be revoked by this office.' By letter dated April 17, 1962, the Secretary's office notified the Fair that no annual reports had been filed for the years from 1945 to 1961, inclusive. This letter purported to be in receipt of a letter from the Fair dated February 12, 1962, the contents of which are not given.

On January 14, 1963, the Fair filed with the Secretary nine certificates, required by § 26A, covering the years from 1954 to 1962, inclusive, and paid a filing fee of $5 each. These were accepted by the Secretary. On January 15, 1963, the Secretary certified that the Fair 'was a duly organized and existing corporation.' On February 27, 1963, the Fair forwarded to the Secretary for filing eight amended and corrected certificates for the years 1954 through 1961 ⁵ with filing fees of $5 for each certificate.

On February 28, 1963, at 4 P.M. the Fair's former president was notified by telephone that at 2 P.M. on March 1, 1963, the Secretary would hold a hearing on the revocation of the Fair's corporate charter. At the hearing the Fair was represented by counsel. The Fair requested that the Secretary consider the amended and corrected certificates. The Secretary denied the request on the ground that the purpose of the hearing was to consider the validity of the certificates originally filed.

On March 6, 1963, the Fair received notice of the Secretary's decision declaring its corporate charter void and of no further effect on the ground that the Fair had failed for two successive years to file the certificates 'in proper form' as required by § 26A. On the same day the Fair also received a letter stating that the Secretary's office declined to accept the amended and corrected certificates submitted for filing on February 27, and returning the documents and the Fair's check for filing fees. Later the Fair received a draft of the State Treasurer dated March 28 in the amount of $40 as a refund of the fees of certificates filed on January 14.

The Fair contends that the Secretary lacked power to revoke the charter after accepting for filing its annual certificates on January 14, 1963. Reliance is also placed upon the fact that on January 15, 1963, the Secretary certified that the Fair was a validly organized and existing corporation. The Secretary's revocation was based upon the following provision of G.L. c. 180, § 26A: 'If the corporation fails to submit its certificate for two successive years, the state secretary shall give notice thereof by mail, postage prepaid, to such corporation in default. Failure of such corporation to submit the required certificates within ninety days after the notice of default has been given shall be sufficient cause for the revocation of its charter by the state secretary.'

The Fair's contention does not take into consideration the fact that on February 27, 1963, the Fair sent to the Secretary for filing eight amended and corrected certificates for the years 1954 through 1961. This action made on its own motion was an admission that those previously filed were deficient in some respect or respects not shown by the record.

The Fair also argues that the Secretary did not give the ninety day notice of default required by...