Nolan v. Boston Firemen's Relief Fund

128 N.E. 715, 236 Mass. 420, 1920 Mass. LEXIS 867

• Court: Massachusetts Supreme Judicial Court
• Decided: November 19, 1920
• Status: Published

Opinion

By the Court.

This petition for a writ of mandamus, although not carefully drawn, sets out membership by the petitioners in the fire department of the city of Boston, right by reason thereof to vote for twelve members of that department, who, together with the fire commissioner of that department, constitute the corporation established by St. 1909, c. 308, as amended by St. 1911, c. 134, and denial by the respondent of that right. The facts found support every one of these allegations. Although the petitioners are not active members of the respondent corporation, their franchise to vote for twelve of such members is indubitably secured to them and to every other member of the fire department of the city of Boston by the express terms of the statutes heretofore cited. The petitioners were excused from making an express demand upon the respondent because the circumstances show that it would have been manifestly futile. No justification whatever is shown for refusal by the respondent to afford to the petitioners every facility for voting provided for other members of the department. This is an appropriate case for the issuance of the writ of mandamus. It is too clear for discussion that the case in this aspect is covered in every particular by the decision in Fickett v. Boston Firemen’s Relief Fund, 220 Mass. 319. It has been found that the petitioners have not been refused by the respondent any pecuniary relief to which they were entitled; hence they show no present right to aid of the court in that respect.

Writ to issue.