Hill v. Trustees of Glenwood Cemetery
| Decision Date | 04 November 1948 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CHARLES E. HILL v. TRUSTEES OF GLENWOOD CEMETERY & others (and a companion case between the same parties). |
May 3, 4, 1948.
Present: QUA, C.
J., LUMMUS, DOLAN SPALDING, & WILLIAMS, JJ.
Civil Service. Public Officer. Equity Jurisdiction, To try title to public office. Mandamus. Equity Pleading and Practice, Leave to file pleading, Demurrer, Waiver, Appeal, Judicial discretion. Waiver. Notice.
The sustaining of a demurrer to a bill in equity implied the granting of permission under Rule 2 of the Superior Court (1932) for the filing of the demurrer after the time specified in Rule 25.
A contention by the plaintiff that a demurrer to a bill in equity should not have been considered because it had not been filed within the time fixed by Rule 25 of the Superior Court (1932) had no standing if it was urged for the first time on an appeal from a final decree dismissing the bill after a sustaining of the demurrer.
A court has power to act on a demurrer to a bill in equity although the defendant has waived his right to press the demurrer by voluntarily going to hearing on the merits without seeking a decision on the demurrer.
Neither a suit in equity nor a petition for a writ of mandamus can be maintained to try collaterally title to a public office which the plaintiff-petitioner does not claim for himself.
One removed from his employment by a city could not maintain either a suit in equity or a petition for a writ of mandamus for reinstatement on the alleged ground that he had been removed by a board of officers whose appointment to office had not been in accordance with the city charter.
The mere fact that a public board, after suspension of a civil service employee and a hearing at his request under G. L. (Ter. Ed.) c. 31,
Section 43, had reinstated him without loss of pay, not because they determined that the charges preferred against him were unfounded, but because they had been advised that there was some question as to the legality of his suspension, did not preclude them from proceeding against him anew.
Exercise by a judge of discretion in the denial of a motion to amend a bill in equity or a petition for a writ of mandamus is reviewable on appeal. Under G. L. (Ter. Ed.) c. 31, Section 43, as it stood before amendment by
St. 1945, c.
667, Section 1 notice to a civil service employee of a decision by a board removing him was seasonable where it was given him more than three days after the close of the evidence at a hearing requested by him, but within three days after the summing up or arguments at an adjourned hearing held several days after the close of the evidence.
BILL IN EQUITY filed in the Superior Court on June 19, 1945; also a PETITION for a writ of mandamus, filed in the Superior Court on February 8, 1946.
Demurrers were heard and sustained by Forte, J. Motions to amend were heard and denied by Goldberg, J. A final decree dismissing the bill in equity and judgment dismissing the petition for a writ of mandamus were entered by order of Good, J.
W. F. A.
Graham, for the plaintiff-petitioner.
M. T. Silverstein, for the defendants-respondents.
These appeals, prosecuted by Charles E. Hill, are from a final decree dismissing his bill in equity and from a judgment dismissing his petition for a writ of mandamus entered after demurrers filed by the defendants had been sustained. The defendants named in each proceeding are the five trustees of the Glenwood Cemetery (hereinafter called the trustees), and the mayor, the treasurer, and the auditor of the city of Everett. [1]
The allegations of the bill in equity may be summarized as follows: In 1935 the plaintiff was appointed superintendent of the Glenwood Cemetery (a municipal cemetery of the city of Everett) in accordance with the civil service laws and regulations. He served in that capacity until July 11, 1944, when he received a notice from the trustees to the effect that as of 8 A.M July 12, 1944, he was suspended. After setting forth the reasons for the suspension, the notice stated that for these reasons it was the intention of the trustees "to suspend and/or remove" the plaintiff on July 18, 1944, in accordance with the provisions of G. L. (Ter. Ed.) c. 31, Section 43. The plaintiff requested a public hearing and a hearing was granted to him on July 18, 1944. Later that day the trustees sent a notice to the plaintiff stating that inasmuch as they had been advised by the city solicitor that there was some question as to the legality of the suspension effective July 12, 1944, it had been voted to reinstate the plaintiff as of July 18 without loss of pay. The plaintiff reported to work on the following day at 8 A.M. as directed and resumed his duties as superintendent. Shortly after he had started to work he received a written notice from the trustees stating that he had been suspended as of 8 A.M. that day (July 19). The reasons given for the suspension were the same as those set forth in the previous notice. The notice further stated that for these reasons it was the intention of the trustees to remove the plaintiff on
July 31, 1944. The plaintiff requested a public hearing in accordance with the provisions of G. L. (Ter. Ed.) c. 31, Section 43. On July 21, 1944, the trustees notified the plaintiff that he would be given a hearing on July 31, 1944, at a time and place designated in the notice. In accordance with the notice hearings began on July 31, 1944. A motion of the plaintiff that the hearings be dismissed and that the plaintiff be reinstated was denied. During the hearings, of which there were twenty-six or more between July 31, 1944, and May 22, 1945, and which on the latter date had not been completed, the plaintiff learned that four of the five alleged trustees had not been legally appointed to their offices and were illegally acting as trustees. [1] Thus, the plaintiff alleges, he was never properly suspended by a duly constituted board of trustees. The bill asked that the trustees be restrained from going forward with the hearings, that they be ordered to reinstate him, and that all of the defendants be restrained from doing anything to prevent the plaintiff from resuming his position as superintendent of the cemetery.
The defendants filed an answer to the bill and they also demurred. No action then was taken with respect to the demurrer and the case was partially heard on the merits by a judge of the Superior Court. On July 17, 1945, before the hearing before him was completed, the judge entered an interlocutory decree ordering the hearing to be suspended. The decree also undertook to order the trustees to continue with the hearings before them (which had not then been completed) at certain specified dates and times.
In February, 1946, Hill brought a petition for a writ of mandamus, naming as respondents the same persons who were defendants in the bill in equity. The relief sought was that the trustees be ordered to revoke their action in removing him and that the respondents be ordered to restore him to his position as superintendent and to pay him his salary from July 19, 1944. [1] The respondents demurred to the petition and also filed answers not waiving their demurrers. Subsequently the demurrers to both the bill in equity and the petition for mandamus were considered by the court and were sustained. Motions to amend the bill and the petition were denied. In the equity suit a final decree was entered dismissing the bill, and judgment was entered in the mandamus proceeding dismissing the petition. From the decree and the judgment Hill appealed. Under G. L. (Ter. Ed.) c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4, an appeal in a mandamus case is similar to an appeal in a suit in equity and all questions of fact, law, and discretion are open in this court. Henderson v. Mayor of Medford, 321 Mass. 732 .
We consider first the bill in equity. At the outset the plaintiff contends that since the demurrer was filed after the time fixed by the court for completing the pleadings and was not allowed to be filed late it was not properly before the court. [2] And it is further argued that the defendants by going to a hearing on the merits waived their demurrer and lost the right to have it considered. It is true that under Rule 25 of the Superior Court (1932) the defendants' demurrer could be filed as of right only within the time fixed by the court. But under Rule 2 the court could permit it to be filed later. In view of the action of the judge in sustaining the demurrer, apparently after hearing, we are of opinion that the filing of the demurrer was at least impliedly sanctioned by the judge. Baskin v. Pass, 302 Mass. 338 , 341. Krinsky v. Stevens Coal Sales Co. Inc. 309 Mass. 528 , 532. Furthermore it does not appear that this point was raised in the court below. It cannot be raised for the first time in this court.
Massachusetts Gasoline & Oil Co. v. Go-Gas Co. 267 Mass. 122 , 127. If, as seems to have been the case, the defendants voluntarily went forward on the merits without seeking a decision on their demurrer, they could not, as of right, press it thereafter. Berenson v. H. G. Vogel Co. 253 Mass. 185 , 187. Luciano v. Caldarone, 255 Mass. 270 , 272. Malden Trust Co. v. George, 303 Mass. 528, 529. Whitney v. Whitney, 316 Mass. 367 , 371. But that did not deprive the judge of the power to act on it if he saw fit to do so.
The demurrer to the plaintiff's bill was rightly sustained. The demurrer sets up several grounds but it is necessary to consider only the second one, which alleges want of equity. The primary object of the bill is to prevent the trustees from proceeding further with removal...
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