Sears v. Treasurer and Receiver General

• Decision Date: 03 May 1951
• Citation: 98 N.E.2d 621,327 Mass. 310
• Parties: SEARS et al. v. TREASURER AND RECEIVER GENERAL et al. ELLISON et al. v. TREASURER AND RECEIVER GENERAL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 621

98 N.E.2d 621

327 Mass. 310

SEARS et al. v. TREASURER AND RECEIVER GENERAL et al.

ELLISON et al. v. TREASURER AND RECEIVER GENERAL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 2, 3, 1951.

Decided May 3, 1951.

F. W. Grinnell and S. P. Sears, for petitioners Sears and others.

F. B. Wallis, L. Wheeler, Jr., and A. C. Conley, all of Boston, for petitioners Ellison and others.

L. E. Ryan, Asst. Atty. Gen., D. H. Stuart, Asst. Atty. Gen., for respondents.

Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and COUNIHAN, JJ.

QUA, Chief Justice.

The first of these cases is a petition by eleven citizens of the Commonwealth 'interested in the execution of laws' against the Treasurer and Receiver General and the commissioner of public welfare, praying for a writ of mandamus to command the respondents to refrain from paying out any money or taking any action whatever under a purported law proposed by the initiative which was voted upon favorably at the State election in November, 1950, and which would strike out c. 118A of the General Laws in its entirety and substitute therefor a new c. 118A containing many provisions substantially different from those of the existing law. It is alleged that in several enumerated particulars the new law was not adopted within the requirements for initiative laws laid down in arts. 48 and 74 of the Amendments to the Constitution.

The second case is a petition in equity brought under G.L. (Ter. Ed.) c. 29, § 63, inserted by St. 1937, c. 157 by forty-six taxable inhabitants of the Commonwealth against the Treasurer and Receiver General, the commissioner of public welfare, the Secretary of the Commonwealth, and the comptroller, praying that the respondents be enjoined from expending any moneys of the Commonwealth in payment of any debts, obligations, or commitments arising out of, or expending any moneys of the Commonwealth in connection with, the purported new c. 118A. This petition also attacks the constitutionality of the new law on grounds in general similar to those relied upon in the first case.

In the first case the respondents demurred jointly. In the second case the respondents demurred on grounds common to all, and each respondent also demurred on grounds applicable only to himself. The respondents in each case answered without waiving their demurrers. Each case comes here upon reservation and report by a single justice upon the demurrers, the answers, and a stipulation in each case as to certain agreed facts. As the demurrers in the two cases differ materially, it will be convenient to discuss them separately. The merits in the two cases can readily be considered together.

The Demurrer in the First Case.

The demurrer in this case asserts that the petition is 'replete with extraneous matter' consisting of references to the petitioners' connection with an organization not involved in the subject matter, of 'declamatory allegations,' of quotations from, or paraphrases of, the Constitution or of its alleged effect, of conclusions of law, of argumentative statements, and of incompetent quotations from a certain publication; and that the petition should not be entertained because of its 'discursiveness' and because of its 'unduly large content' of incompetent, irrelevant, and prejudicial allegations. Undoubtedly substantial portions of the petition are open to one or more of these objections. A bill or petition may be so overloaded with such matter as to obscure the cause of action intended to be stated and to render the preparation of an answer unduly difficult, and so to call for the sustaining of a demurrer. Davis v. H. S. & M. W. Snyder, Inc., 252 Mass. 29, 36-37, 147 N.E. 30; Taylor v. Neal, 260 Mass. 427, 439, 157 N.E. 646; Christiansen v. Dixon, 271 Mass. 475, 171 N.E. 451; Cole v. Cole, 277 Mass. 50, 177 N.E. 810; Bowles v. Clark, 326 Mass. 31, 92 N.E.2d 363. But in our opinion the petition in this instance does not call for such drastic treatment. The objectionable matter is readily separable. Much of it is common knowledge or self evident. It does not obscure the cause of action intended to be set forth, which is stated with clarity and reasonable conciseness. The objectionable matter could easily have been struck out on motion if it had been thought worth while to file such a motion. It can now be treated as mere surplusage to which no attention will be paid. See Jones v. Dow, 137 Mass. 119, 121; Feldman v. Witmark, 254 Mass. 480, 482, 150 N.E. 329; Fahy v. Melrose Free Press, Inc., 298 Mass. 267, 269, 10 N.E.2d 187; Ingalls v. Hastings & Sons Publishing Co., 304 Mass. 31, 35, 22 N.E.2d 657; Enga v. Sparks, 315 Mass. 120, 124-125, 51 N.E.2d 984; Coburn v. Moore, 322 Mass. 204, 205-206, 76 N.E.2d 640.

The demurrer in this case also sets up the grounds that the petitioners have no interest in the subject matter of the petition, and in any event that they have another adequate remedy. Both of these contentions are answered by Brewster v. Sherman, 195 Mass. 222, 224, 80 N.E. 821, and subsequent decisions. In Brewster v. Sherman a single petitioner was allowed to maintain a petition for a writ of mandamus to correct an error of the registrars of voters of a town in counting a ballot on the issue whether licenses should be granted for the sale of intoxicating liquors. The petitioner had no private interest in the subject matter and no interest at all different from that of other voters and taxpayers of the town. He was allowed to maintain the petition on the ground that the question was 'one of public right,' and that the object of the petition was 'to procure the enforcement of a public duty,' the people as a whole being 'regarded as the real party in interest'. This principle was foreshadowed as early as Attorney General v. City of Boston, 123 Mass. 460, 479. It was applied to a case of the same general type as the present case in Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 153 N.E. 322, where are collected many decisions which had accumulated since Brewster v. Sherman. It was again applied to such a case in Morrissey v. State Ballot Law Commission, 312 Mass. 121, at pages 131-132, 43 N.E.2d 385, where are collected more recent decisions, and it was applied again in such a case, without discussion, in Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 236-237, 69 N.E.2d 115, 167 A.L.R. 1447. It was applied in Loring v. Young, 239 Mass. 349, see pages 357-358, 132 N.E. 65, where, as here, the question was which of two purported laws (in that case drafts or forms of the Constitution) was the law actually in force. See Prescott v. Secretary of the Commonwealth, 299 Mass. 191, 198, 12 N.E.2d 462; Parrotta v. Hederson, 315 Mass. 416, 418-419, 53 N.E.2d 97; Lincoln v. Secretary of the Commonwealth, 326 Mass. 313, 93 N.E.2d 744. We accept the principle as fully established without further citation of the numerous cases that might be cited in its support. It is applicable here.

What has been said in effect also disposes of the contention that the petitioners have another adequate remedy and so cannot maintain a petition for a writ of mandamus. The other remedy suggested by the respondents as adequate is a petition under G.L. (Ter.Ed.) c. 29, § 63, inserted by St.1937, c. 157, to prevent the expending of moneys of the Commonwealth in connection with the new purported law, that is to say, a petition similar to that in the second case now before us. We do not consider the statutory remedy, aimed as it is only at the expenditure of money, as an adequate substitute for the broader remedy under the principle hereinbefore discussed. That remedy goes beyond the mere matter of the expenditure of money. It extends to all governmental action having to do in any way with the enforcement of the new law, even if no expenditure of money is involved. It covers activities which cannot be reached by the statutory proceeding. It settles by the direct judgment of the court the entire issue as to whether one purported law or the other will govern the subject matter. In short, the real question here is much more than a question of money. It is whether it is the public duty of administrative officers of the Commonwealth to administer an important public service according to one statute or according to another and different statute. It is not, as in Tuckerman v. Moynihan, 282 Mass. 562, 568-569, 185 N.E. 2, a question of the performance of what for the lack of a better term may be called a 'private' duty owed to the Commonwealth regarded as a corporation. That case is distinguishable. It might well be that the reasoning of the court in a proceeding under c. 29, § 63, would necessarily indicate whether or not the new law was valid, but that cannot, we think, be considered the full equivalent of a writ of the court directly and finally commanding the duties of public officers in all respects in relation to the new law. For these reasons we think that this case is distinguishable from Finlay v. City of Boston, 196 Mass. 267, 82 N.E. 5, where the petition was held to be in effect one to prevent the illegal expenditure of public money, and from other cases relied upon by the respondents, where it was stated or held that the existence of another remedy foreclosed any remedy by mandamus.

Another ground of demurrer is that the petition does not sufficiently allege 'the right, power, duty, authority or intent of the respondents or either of them to take or refrain from taking the action or actions referred to in the petition.' It is plain, however, that if the new law is valid, the Treasurer and Receiver General will have duties to perform in relation to its financial provisions and to the reimbursement of cities and towns for sums paid out by them for old age assistance, and since the new law would be administered under the supervision of the department of public welfare, the commissioner of public welfare, under G.L. (Ter.Ed.) c. 121, § 2, would...