George R. Whitten, Jr., Inc. v. County Com'rs of Essex

• Decision Date: 05 June 1967
• Citation: George R. Whitten, Jr., Inc. v. County Com'rs of Essex, 227 N.E.2d 347, 352 Mass. 579 (Mass. 1967)
• Parties: GEORGE R. WHITTEN, JR., INC. v. COUNTY COMMISSIONERS OF ESSEX et al.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

Page 347

227 N.E.2d 347

352 Mass. 579

GEORGE R. WHITTEN, JR., INC. v. COUNTY COMMISSIONERS OF ESSEX et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 3, 1967.

Decided June 5, 1967.

John E. Lecomte, Boston, for petitioner.

No argument or brief for respondents.

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

WILKINS, Chief Justice.

In this petition for contempt the respondents are the commissioners and the treasurer of Essex County. The petition arises out of a procedural question following a hearing of a bill in equity for a declaratory decree brought pursuant to G.L. c. 231A by Whitten (now the petitioner for contempt) against the commissioners and the treasurer. The binding declaration which had been sought was as to the validity of a contract entered into by Whitten with the commissioners. In the equity suit a judge in the Superior Court caused to be entered 'Findings of Fact, Rulings of Law, and Order for Decree,' in which it was declared that the contract had been validly awarded, and that Whitten was entitled to be paid.

No 'Final Decree' was entered. The sole issue is whether one is required by G.L. c. 231A, § 1. The judge ruled that because none was entered, the county treasurer could not be held in contempt for not paying the amount due under the contract. Whitten both excepted and appealed. We dismiss the appeal and consider the exceptions. Treasurer of City of Worcester v. Department of Labor & Indus., 327 Mass. 237, 239, 98 N.E.2d 270; Elbaum v. Sullivan, 344 Mass. 662, 665, 183 N.E.2d 712.

So far as material, G.L. c. 231A, § 1, provides: 'The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations * * *, either before or after a breach * * * in any case in which an actual controversy has arisen and is specifically set forth in the pleadings and whether any consequential judgment or relief is or could be claimed at law or in equity * * *; and such proceeding shall not be open to objection on the ground that a merely declaratory judgment or decree is sought thereby and such declaration, when made, shall have the force and effect of a final judgment or decree and be reviewable as such * * *' (italics supplied).

The issue has never been raised under G.L. c. 231A, § 1, which was first enacted by St.1945, c. 582, § 1. Except for the period between the effective date of G.L. c. 231, §§ 96, 144, on January 1, 1921, and that of St.1928, c. 306 (Siciliano v. Barbuto, 265 Mass. 390, 393--394, 164 N.E. 467), it has been our invariable practice to terminate equity suits by a final decree and...