Finlay v. City of Boston

82 N.E. 5, 196 Mass. 267, 1907 Mass. LEXIS 1081

• Court: Massachusetts Supreme Judicial Court
• Decided: October 14, 1907
• Status: Published

Opinion

Loring, J.

We are of opinion that the demurrer to the petition must be sustained for the second reason stated in the third assignment, to wit: Because the petition is intended to prevent an illegal expenditure of public money and therefore the petitioners’ only remedy is under R. L. c. 25, § 100.

The point has not been taken in the case at bar that a demurrer does not lie to a petition for mandamus. Doubts have arisen before this upon that point by reason of the provision of R. L. c. 192, § 5, that upon the return of the order of notice “ the person who is required to appear shall file an answer showing cause why the writ should not issue.”

A petition for mandamus is in many cases a petition which ought to be summarily heard and disposed of if the petitioner is to have what he is entitled to. And we are of opinion that this provision in R. L. c. 192, § 5, was inserted to insure a speedy hearing on the merits, by requiring a completion of the pleadings on the return day, and that it was not intended to forbid the court’s allowing the defendant to file a demurrer, if that is the ground on which he elects finally to put his ease, or to set up in his answer the matters which would be the subject of an independent demurrer where he wishes to take issue both as to the right of the petitioner to relief on the allegation of the facts contained in the petition and as to the truth of those allegations. The following cases have heretofore been disposed of on demurrer without objection. O'Connell v. Matthews, 177 Mass. 518. Perry v. Hull, 180 Mass. 547. Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294. Fowler v. Brooks, 188 Mass. 64,

The substance of the complaint now before us is that the ordinance in question requiring the employment of union men to the exclusion of non-union men in the City Printing Department, “ so far as it can legally do so,” is void, and that for this reason, in the words of the petition, “ The expenditure of the public moneys for the maintenance of such a plant, run in such a manner, is an abuse of corporate power and unlawful.”

The petition is in effect a petition to prevent the illegal expenditure of public money. The twelve citizens who bring this petition could have brought a petition under R. L. c. 25, § 100. The cases of Spaulding v. Peabody, 153 Mass. 129, Prince v. Crocker, 166 Mass. 347, indicate that such a petition could have been brought under the statute before the scope of it was enlarged by St. 1898, c. 490, now R. L. c. 25, § 100. We are of opinion that the matter here complained of is ground for a petition under that act.

It is settled that mandamus does not lie where there is any other adequate and effectual remedy. The earlier cases are collected in Selectmen of Gardner v. Templeton Street Railway, 184 Mass. 294, 297, 298. That case is not decisive against the right of these plaintiffs to maintain a petition for mandamus. The right which the plaintiffs in that case sought to enforce was a statutory one, while the right here in question is a right at common law.

But we are of opinion that it was the intention of the Legislature, in enacting R. L. c. 25, § 100, to make the remedy given by that act to ten taxable inhabitants for cases covered thereby, exclusive of other remedies. It follows that mandamus does not lie. See in this connection State v. Board of Education, 35 Vroom, 59; Ellison v. Raleigh, 89 N. C. 125, 130; State v. Board of Supervisors, 29 Wis. 79.

Petition dismissed.