Underwood v. District Court of Lowell

252 N.E.2d 216, 356 Mass. 727

Opinion

This petition for a writ of mandamus, in which the petitioner alleges that a search warrant was improperly issued by the respondent, prays that this court command the respondent to recall and quash the warrant and order the return of the property seized. The petitioner excepted to the refusal of the single justice to issue an order of notice to the respondent. The single justice correctly ruled that the petition does not “present a matter of substance proper for judicial consideration.” Nichols v. Dacey, 329 Mass. 598, 600. There is no allegation of failure by the respondent to perform a legal duty upon the demand of the petitioner. Knights v. Treasurer & Recr. Gen. 236 Mass. 336, 337. Rather, without alleging any action below, the petition asks this court to dictate the substance of the action to be taken by the respondent. This is beyond the scope of the writ which is limited to compelling lower courts to exercise their jurisdiction in matters properly before them. Crocker v. Justices of the Superior Court, 208 Mass. 162, 164-165. Taylor v. Thompson, 232 Mass. 269.

Exceptions overruled.