Gray v. City of Salem

• Decision Date: 02 June 1930
• Parties: GRAY et al. v. CITY OF SALEM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

271 Mass. 495

171 N.E. 432

GRAY et al.

v.CITY OF SALEM et al.

Supreme Judicial Court of Massachusetts, Essex.

June 2, 1930.

Appeal from Supreme Judicial Court, Essex County.

Suit by Roland H. Gray and others against the City of Salem and another. From an interlocutory decree adjudging defendants' plea sufficient and a final decree dismissing the bill, plaintiffs appeal.

Affirmed.

G. S. Cottle, of Beverly, for appellants.

J. J. Ronan, of Salem, for appellees.

WAIT, J.

This is a bill in equity brought pursuant to G. L. c. 40, § 53, to restrain the expenditure of money by the city of Salem in payment of a pension to David N. Cook. The defendants named are the city, one Charles G. F. Coker in his capacity as treasurer of the city, and Cook. The plaintiffs are twelve persons alleging themselves to be taxable inhabitants of Salem, and eight others, presumably also taxable inhabitants of the city who have been admitted by amendment.

The bill alleges that on October 4, 1912, the city accepted the provisions of St. 1912, c. 447 (now G. L. c. 32, § 52), which authorized the city council to retire, at a fixed proportion of the compensation previously received, any veteran of the civil war who had been in the service of the city for ten years, if incapacitated for active duty; that Cook, a veteran of the civil war, on November 27, 1912, applied for a pension under the statute; that the city council on January 17, 1913, ordered that he be so retired and fixed the payment at $800 yearly, payable monthly; that, on information and belief, Cook, when the order was made, had not been in the service of the city ten years continuously immediately preceding the day of the order; that payment had been made and continued to be made to him pursuant to the order. It prayed that the order be declared illegal, void and of no effect; that the city and the treasurer be restrained from further payment; and that Cook be ordered to repay to the city all amounts received on account of the pension. The city and the treasurer answered; and they joined with Cook in a plea which set up laches, a prior adjudication, and validation of the council's order by Sp. St. 1915, c. 366. The case was heard on the plea and an agreed statement of facts relating thereto. No objection was taken that the plea was not single. The court entered an interlocutory decree adjudging the plea sufficient on the second and third grounds, and a final decree dismissing the bill with costs. The plaintiffs appeal from both decrees.

There is no dispute that Cook, on January 17, 1913, was a veteran of the civil war and incapacitated, who had long been in the service of the city. In 1926, thirteen taxable inhabitants of Salem, among whom were six of the present plaintiffs, filed a bill against the city, Cook, and one Rollins, then treasurer of Salem, to restrain payment to Cook under the order here complained of, alleging, among other grounds of illegality, the lack of ten years' continuous service here alleged as the sole ground. A master found that the plaintiffs had failed to prove that Cook had not rendered service for ten years continuously before the time of the order; and, further, that they were guilty of laches. After hearing the report was confirmed, and the bill was dismissed without costs. On appeal, this court affirmed the decree, Gray v. Salem, 258 Mass. 559, 155 N. E. 633, on the ground that the evidence justified the finding that the plaintiffs had failed to prove that Cook's service had not been continuous from February 24, 1897, to January 25, 1913, for a period thus exceeding ten years. The plaintiffs' statement at the hearing that ‘they could call witnesses to show otherwise’ was properly disregarded by the master, when they failed to produce them. ‘Because of the finding of continuous service of Cook for the city of Salem for more than ten years before the application for and grant of the pension to him’ this court considered it unnecessary to examine the scope of Sp. St. 1915, c. 336. Gray v. Salem, supra, page 562 of 258 Mass., 155 N. E. 633.

We need not consider whether this prior adjudication was rightly held a sufficient defence to the present bill, because there was no error in ruling that the pension, if ever defective, had been validated. By Sp. St....