Reilly v. Selectmen of Blackstone

• Decision Date: 27 March 1929
• Citation: 165 N.E. 660,266 Mass. 503
• Parties: REILLY et al. v. SELECTMEN OF BLACKSTONE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 503

165 N.E. 660

REILLY et al.

v.SELECTMEN OF BLACKSTONE et al.

Supreme Judicial Court of Massachusetts, Worcester.

March 27, 1929.

Exceptions from Supreme Judicial Court, Worcester County.

Suit by James F. Reilly and others against the Selectmen of Blackstone and others. A plea of defendants was sustained, and plaintiffs bring exceptions. Exceptions overruled.F. W. Morrison, of Worcester, for plaintiffs.

F. W. McCooey, of Blackstone, and L. M. Harlow, of Boston, for defendants.

RUGG, C. J.

This case comes before us by exceptions. The record is confused and difficult to understand. This illustrates the wisdom of the oft-repeated remark that it is better equity practice to bring a case to the full court by appeal from a final decree. We must take the case as presented and deal with the record as we find it.

It appears from the copies of papers sent us that a final decree was entered before the exceptions were filed. No question of practice in these circumstances has been argued or considered. See G. L. c. 214, § 25; St. 1926, c. 177; St. 1928, c. 306; Sullivan v. Roche, 257 Mass. 166, 170, 153 N. E. 549;Romanausky v. Skutulas, 258 Mass. 190, 192, 154 N. E. 856;Siciliano v. Barbuto (Mass.) 164 N. E. 467.

It is stated in the exceptions that this is a suit by twelve taxpayers of the town of Blackstone ‘under the provisions of General Laws, c. 40, § 53, and chapter 44, § 59.’ The defendants are the selectmen, assessors, town clerk, treasurer, tax collector and sealer of weights and measures of that town. The allegations of the bill are voluminous. Summarized, so far as material to this decision, they are to the effect that the salaries of the several defendants prior to March 24, 1928, were fixed by a section of a by-law of the town, and that salaries as thus fixed were paid to the several defendants in 1927. At a special town meeting held on March 24, 1928, upon an adequate article in the warrant, that section of the by-law was repealed. Upon another article in the same warrant it was voted to raise and appropriate for services of the officers of the town for each of the years 1927 and 1928 sums in excess of those fixed by the by-law of 1927. The increases for the year 1927 in excess of the amounts fixed by the by-law are about to be paid. A list of town officers and the amounts thus voted to them are set forth in paragraph 13 of the bill. The collector of taxes is not there named, but allegations as to him are set forth in paragraph 20 of the bill. The allegations as to the collector of taxes are different from those as to the other town officers. It is averred that at the annual town meeting held on March 14, 1927, there was an article in the warrant in substance to see if a change should be made in the compensation to be paid the collector of taxes, and that a vote was passed thereunder amending the town by-law on this subject by increasing such compensation to one and one-half per cent. of the total tax levy, payable in specified installments as collections were made; that this amendment to the by-law was never submitted to the Attorney General for his approval or published as required by G. L. c. 40, § 32, and hence never became operative; that the pre-existing by-law on this subject was repealed by vote of the town meeting of March 24, 1928, and that hence no compensation is due the collector of taxes but that payments to him of compensation at the rate of one and one-half per cent. on the tax levy have been or are about to be paid to the collector of taxes contrary to law.

There are other allegations of illegal payments during past years to several defendants from the treasury of the town, with prayers for return thereof. These are all laid to one side because not proper for inquiry in this proceeding, which is designed not for the correction of completed wrongs but for the prevention of those voted and immediately impending. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 260, 147 N. E. 878. No question was raised as to the form of the bill.

The defendants filed a ‘plea in bar’ in four paragraphs: (1) That the increases in salaries for 1927 ‘as set forth in paragraph 13 of the bill,’ payment of which was sought to be restrained, had all been paid prior to the bringing of the suit; (2) that the court had no jurisdiction under G. L. c. 40, § 53, since the salaries had already been paid; (3) that G. L. c. 44, § 59, cited in the bill, had no application to the subject-matter of the complaint; (4) that as to overpayments for previous years there was a plain and adequate remedy at law and no relief could be afforded in this proceeding. It is to be observed that the plea in paragraph 1 refers only to the allegations in paragraph 13 of the bill (which include numerous town officers but not the collector of taxes) and does not specify paragraph 20 of the bill relating to the collector of taxes, nor refer to it in any way. The allegations of that paragraph were not put in issue by the plea and there was no answer to that part of the bill.

As a plea in equity this was open to criticism. The proper office of such a plea is to set forth some single fact or point, the establishment of which will defeat the suit or the part of it to which the plea applies. Eastman Marble Co. v. Vermont Marble Co., 236 Mass. 138, 148, 128 N. E. 177, and cases there cited; Chapin v. Coleman, 11 Pick. 331, 336;Crease v. Babcock, 10 Metc. 525, 543, 544;Hancock v. Carlton, 6 Gray, 39, 53, 54, 63;E. S. Parks Shellac Co. v. Jones (Mass.) 163 N. E. 883;Farley v. Kittson, 120 U. S. 303, 7 S. Ct. 534, 30 L. Ed. 684. The first paragraph of the plea sets up a fact; the other paragraphs set up points of law. But the form of the plea was not challenged. It may be treated as a double and defective plea presented and tried without objection. See Bailey v. Hemenway, 147 Mass. 326, 17 N. E. 645;Parker v. New England Trust Co., 215 Mass. 226, 102 N. E. 427;Ellis v. Hunt, 228 Mass. 39, 116 N. E. 956;Shapiro v. Park Trust Co., 253 Mass. 383, 385, 149 N. E. 313;Rhode Island v. Massachusetts, 14 Pet. 210, 259, 10 L. Ed. 423. No replication to the plea was filed by the plaintiffs. One could not be filed except by leave of court. G. L. c. 214, § 14; (1926) Equity Rule 16. Ten days after the plea was filed the plaintiffs by leave filed an amendment adding a paragraph to their bill and alleging therein facts by way of reply to the plea to the effect that the payments, if made as set out in the plea, had been made out of such funds that nevertheless they would be included in the tax levy contrary to law. Numerous prayers, also, were added by way of amendment seeking additional relief against the tax levy. It is stated in the exceptions that the ‘defendants were then given an opportunity to answer further and counsel for defendants stated in open court that a denial under the equity rule would be filed to the allegations contained in the amendment [paragraph 31] to the plaintiffs' bill of complaint.’ Whatever this may mean, see Burke v. McLaughlin, 246 Mass. 533, 537, 141 N. E. 601, no such answer is before us. The propriety of these amendments has not been questioned and is not before us. No answer whatever was filed. No pleading was filed touching the allegations of paragraph 20 as to the collector of taxes. There is nothing in the record on this point. In this state of the pleadings the case came on to be heard (as stated in the exceptions) ‘upon the defendants' plea in bar and upon evidence relating to the allegations contained in the plaintiffs' amendment to their bill.’ The pleadings were manifestly inadequate. It has been suggested in argument that the allegation of paragraph 20 of the bill ought to be deemed to be confessed under (1926) Equity Rule 6, because not denied in the answer. But there is no answer whatever. The plaintiffs took no steps to have this part of their bill taken for confessed so far as disclosed by the exceptions. When the pleadings have been so loose as in the case at bar, and upon this state of the record, this equity rule cannot be invoked by the plaintiffs for the first time at this stage of the case. However, it appears from the copies before us (G. L. c. 212, § 11) that the plaintiffs filed a motion praying that the bill be taken for confessed against the defendants ‘except as to the issues by the defendants' plea in bar alleging payment.’ An interlocutory decree was entered denying the motion. From this decree no appeal was taken. Manifestly the plaintiffs cannot with propriety urge now that any part of the bill ought to be taken for confessed.

The trial was had upon the plea. When filed the plea applied only to the original bill before paragraph 31 was added by amendment. It is stated in the copy of the final decree, which has been furnished under G. L. c. 212, § 11, that the case was heard upon the plea ‘which by agreement of the parties shall apply to the amendments to the bill of complaint.’ Nevertheless, the parties seem to have treated the facts set up in paragraph 31, added to the bill by amendment, as subject to the answer which counsel for the defendants stated would be filed later, but which is not in the record and so far as we know never has been filed.

The case came on to be heard upon this state of the pleadings. Apparently the single justice at first thought that the hearing was upon the sufficiency of the plea in its several aspects as matter of law and not upon the truth of the fact therein set forth. Cole v. Wells, 224 Mass. 504, 512, 113 N. E. 189;Berenson v. French, 262 Mass. 247, 159 N. E. 909. But the plaintiffs persisted in offering evidence, and finally the single justice said that he would hear all evidence offered on the insufficiency of the plea. If the sufficiency of the plea as matter of law was the single matter to be heard, no evidence rightly could be introduced. Dorsey v. Corkery, 227 Mass. 498, 500, 116 N. E. 870. The ruling that evidence would be...