(145 N.E.)

J. C. Mahoney and J. J. Moynihan, both of COMMONWEALTH V. MARKARIAN. Worcester, for defendant. (Supreme Judicial Court of Massachusetts.

WAIT, J. The defendant was adjudged Worcester. Nov. 5, 1924.)

guilty in the central district court of Wor1. Indictment and information om 139-Motion cester, after hearing, upon a complaint which to quash complaint for apparent defects must charged that he at Worcester, on November be taken before judgment by district court 3, 1923, "did expose and keep for sale inor trial justice, or before jury has been toxicating liquors with intent to unlawfulsworn in superior court.

ly sell the same, said defendant having been Under G. L. c. 278, $ 17, motion to quash before convicted of the offense of keeping complaint for formal defect apparent on face for sale with intent to unlawfully sell intoxthereof, must be taken before judgment has been rendered by district court or trial justice, icating liquors.” Sentence was imposed, and or before jury has been sworn in superior he appealed to the superior court. At the court.

trial in the superior court, after a jury was

impaneled and sworn, the clerk read the 2. Indictment and information Cu 119-Allega

complaint, containing the words quoted tion of prior conviction for violation of liquor law held mere formal defect to be treat. above, to the jury. The defendant then reed as surplusage.

quested a continuance on the ground that Allegation of former conviction for expos- the jury was prejudiced by the reading. Laing and keeping intoxicating liquors for sale, ter he withdrew this request and filed a mowith intent, under G. L. c. 138, $ 83, is formal tion to quash the complaint "for the readefect, not being statement of fact necessary son that the same states a former and disto be proved to make act complained of a tinct prior offense committed or alleged to crime, and may be treated as surplusage, have been committed by the defendant, and though chapter 279, § 11, permits court to miti- is prejudicial to the defendant's rights." The gate sentence if defendant shows that he has motion was denied; and the defendant exnot before been convicted of similar crime.

cepted. No evidence was offered to prove 3. Criminal law 335 — Statute authorizing the allegation of the prior conviction. The

mitigation of punishment of one not previo commonwealth rested after evidence had ously convicted of similar crime places bur. been given to prove the allegation of exposden upon defendant.

ing and keeping with intent unlawfully to Under G. L. c. 279, § 11, permitting mitiga- sell on the day alleged. The defendant resttion of sentence by court if defendant shows to ed thereupon; arguments were made; the court that he has not before been convicted of similar crime, reason for mitigation must be judge among other things charged the jury shown by defendant.

that they should disregard any notion they 4. Criminal law enn 1035(3)-Defendant hav- might have gathered from anything they had

ing withdrawn request for continuance can- seen or heard concerning a prior conviction; not object to reading of allegation in com- a verdict of guilty was returned ; and the plaint.

defendant was duly sentenced. The defendDefendant who requested continuance be- ant filed exceptions to the refusal of the mocause of reading of allegation in complaint and tion to quash; and presents here the single then withdrew his request for continuance can- question thus arising. not object in reviewing court to reading of al

[1] The motion to quash was filed too late. legation.

The law is thoroughly established that, as 5. Criminal law em 633(2) - Defendant held provided by G. L. c. 278, $ 17, an objection to not prejudiced by reading of allegation of a complaint for a formal defect apparent on prior conviction in complaint in view of the face thereof must be taken before a charge.

judgment has been rendered by a district Defendant, charged with keeping liquor for court or a trial justice or before a jury has sale under G. L. c. 138, § 83, was not preju- been sworn in the superior court. Commondiced by allegation in complaint of prior con

wealth v. Lynn, 154 Mass. 405, 28 N. E. 289; viction which was read to júry, where court charged that jury should disregard any notion Commonwealth v. Reid, 175 Mass. 325, 56 N. they might have gathered from anything they E. 617; Commonwealth v. Massad, 242 Mass. had seen or heard concerning prior conviction. 532, 136 N. E. 615; Commonwealth v. Dia

mond, 248 Mass. 511, 143 N. E. 503. The moExceptions from Superior Criminal Court, tion io quash was not filed until after the Worcester County; E. T. Broadhurst, Judge. jury had been sworn in the superior court.

[2] The defect apparent was the allegation Michael Markarian was adjudged guilty of of the former conviction; and this was a violation of liquor law, and brings excep- formal defect since it was not a statement tions. Exceptions overruled.

of a fact necessary to be proven to make C. B. Rugg and E. G. Norman, Asst. Dist. the act complained of a crime. State v. Attys., both of Worcester, for the Common- Amidon, 58 Vt. 524, 2 A. 154. The statutes in wealth.

force when the act occurred did not provide

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 145 N.E.-20

a penalty for conviction for any second or, 187 Ind. 73, 118 N. E. 355; State v. Reilly, later, offense of the kind complained of. The 94 Conn. 698, 110 A, 550. single penalty for exposing and keeping for [4, 5] The defendant withdrew his re sale with intent unlawfully to sell liquor quest for a continuance. If he was in fact obnoxious to the law is set out in G. L. c. prejudiced by the reading of the allegation 138, § 83, and is fine and imprisonment. he cannot now object. Nor, in view of the There is no provision such as earlier stato charge made by the judge, can we regard utes contained imposing a higher penalty for him as prejudiced thereby. the offense after a first or earlier conviction. Exceptions overruled. Had such provision existed, the allegation in the complaint objected to by the defendant must have been made in the complaint to justify a sentence for anything other than a first offense. This was clearly decided by INHABITANTS OF TOWN OF GREENTuttle v. Commonwealth, 2 Gray, 505, Com

FIELD v. BURNHAM. monwealth v. Holley, 3 Gray, 458, Garvey v.

(Supreme Judicial Court of Massachusetts. Commonwealth, 8 Gray, 382, and Walsh v.

Franklin. Nov. 5, 1924.) Commonwealth, 224 Mass. 39, 112 N. E. 486; and when a later statute (St. 1880, c. 221) 1. Estoppel Bww91 (1) Judgment Cm713(2), enacted that the allegation of the former con

One not insisting that bill be prosecuted held viction need not be inserted in the complaint

not precluded by judgment or estopped to or indictment, the act was declared uncon

deny validity of building lines. stitutional, Commonwealth v. Harrington,

Where landowner started construction of

building, not only within building line area, but 130 Mass, 35.

also within limit of highway, and town sued to [3] The only provision of existing law that restrain his act and he obtained license for exgives any importance to the allegation ob cavation in street, and then filled in excavation jected to is G. L. c. 279, § 11. This section and replaced sidewalk, and town abandoned of the General Laws descends from St. 1866, bill, he was not bound to insist that bill should C. 280, and provides that where the penalty be prosecuted to determine question of validity for an offense is fine and imprisonment, ex- of building line, and he was not thereafter escept in a case here immaterial, the court topped to claim building lines invalid. may in its discretion sentence the offender 2. Estoppel Om68(1)-Filing of petition for to punishment by fine only or by imprison- assessment of damages caused by establishment only “if he show's to the satisfaction ment of building line did not estop landowner of the court that he has not before been from claiming invalidity. convicted of a similar crime." It was de Landowner who several days before expiracided in Flaherty v. Thomas, 12 Allen, 428, tion of year filed petition for assessment of that this was substantially different from damages, caused by establishment of building imposing a heavier sentence for a second or validity of building lines pending petition,

line, was not estopped thereby from denying subsequent offense. Gray, J., says:

though in prosecuting such petition it would "But the St. of 1866, c. 280, $$ 1, 3, does not not be open to him to contest such validity, make a second offense a different one in de under G. L. c. 82, § 37. scription or character from a first offense, but 3. Equity Cam409—Finding of master involving imposes the same degree of punishment for

ruling of law not conclusive. each offense, and merely authorizes the court in its discretion to mitigate the punishment if

Finding of master involving a ruling of law the defendant shall prove to its satisfaction is not conclusive. that he has not before been convicted of a like 4. Eminent domain 186 Building line offense. * In the one case, the matter

plans placed in safe used by town clerk and of aggravation must be proved by the common

many other officers held not "filed" in office wealth; in the other, the reason for mitigation

of town clerk. of sentence must be shown by the defendant."

Plan of building lines not given to town The law so stated has been repeatedly up-clerk, but placed in safe not in his office, but held. Batchelder v. Commonwealth, 109

in vault in town building, where many other Mass. 361 ; Commonwealth v. Marchand, 155 town officers kept their records, was not "filed Mass. 8, 29 N. D. 578. Compare, also, Com- in the office of the town clerk," as required by

G. L. C. 82, & 23. monwealth v. Fontain, 127 Mass. 452, and Commonwealth v. Graves, 155 Mass. 163, 29 and Phrases, First and Second Series, File.]

[Ed. Note.-For other definitions, see Words N. E. 579, 16 L. R. A, 256.

The allegation in regard to the earlier 5. Eminent domain Omw 186_Layout of build. conviction was therefore not a description

ing lines not properly filed with town clerk

invalid. or characterization of the offense charged, but was formal only and it may be treated out of building lines be filed with town clerk

Requirement of G. L. C. 82, § 23, that lay. as surplusage. Commonwealth v. Farren, 9

at least seven days before action of town at Allen, 489; Commonwealth v. Walker, 163 meeting, is mandatory, and noncompliance renMass. 226, 39 N. E. 1014; Torphy v. State, I ders invalid establishment of layout.

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(145 N. E.) Appeal from Superior Court, Franklin meeting by the town engineer and was exCounty; Henry T. Lummus, Judge.

hibited and discussed at the meeting. After Bill in equity by the Inhabitants of the the meeting and on the same day, it was inTown of Greenfield to restrain Frederick w. dorsed and signed by the town clerk, and, Burnham from infraction of by-laws estab- thereafter, it remained in his custody. Exlishing building lines, to compel him to make cept this plan no other document or paper restoration of surface of sidewalks excavated relating to the establishment of the buildby him, and to exact performance by him of ing lines in question was ever filed in the stipulation made on his receipt of a license office of the town clerk. to excavate. Decree for defendant, and

Portions of the defendant's property on the plaintiff appeals. Affirmed.

corner of Main street and Davis street were

included within the building line W. A. Davenport, of Greenfield (C. Fair- shown on the plan on Davis street and on hurst, of Greenfield, of counsel), for appel- Main street. lant.

About July 20, 1923, the defendant, withH. J. Field, of Greenfield (F. J. Lawler, out first obtaining a license therefor, made of Greenfield, of counsel), for appellee.

an excavation along both streets at their

intersection. The by-laws of the town forWAIT, J. This is a bill in equity seeking bid any excavation in the highways without to restrain the defendant from infraction of license of the selectmen; and, if any excaby-laws establishing building lines on cervation is made under a license, they require tain streets in Greenfield; to compel him to restoration of the surface to the satisfacmake restoration of the surface of sidewalks tion of the selectmen before the expiration excavated by him, and to exact performance of the license. They authorize the selectmen by him of a stipulation made on his receipt to grant licenses but require the licensee to of a license to excavate. The answer denies execute a written agreement to hold the town the validity of the establishment of the harmless and to indemnify it against damage building lines. A replication sets up that or cost. The town, accordingly, at once the defendant is estopped to object to the filed a bill in equity to restrain the defendvalidity of the establishment of the building ant; but dismissed the bill on his applying lines by the pendency of a petition filed by for a license. The license was granted July him for the assessment of damages caused 25, 1923. The defendant signed a stipulation by such establishment.

reserving his rights if the layouts of the The cause was referred to a master who building lines were invalid. After obtaining reported in substance as follows:

the license, which expired in thirty days, he On February 2, 1923, the selectmen of made no further excavation; but did not, Greenfield, acting under G. L. C. 82, 8 37, before the expiration of the license, fill in which, with the provisions of earlier laws the excavation already existing. now embodied in said section, had theretofore On January 31, 1924, he filed a petition in been duly accepted by the town, gave a pub the superior court for a jury to assess damlic hearing on the establishment of building ages caused by the taking of land by eslines on Main street and on Davis street. On tablishing building lines. This petition is the next day, the town clerk saw a plan of between the same parties and relates to the the proposed layouts in a vault in the town same land involved in this bill. It alleges a building where he kept town records. This layout of building lines by the selectmen on vault was not in his office. It was not locked. February 2, 1923; a vote by the town on It was used by the town clerk in common March 17, 1923, at the annual town meeting with many other officials of the town includ- to accept the building lines as laid out; a ing the town engineer, all of whom had ac- taking of valuable land from the petitioner cess to it. The plan had not then been de- causing him damage and loss as regards livered to him. It had not been left at his the land and buildings thereon for which he office, nor had it been called to his attention has been awarded no damage and has been by any one. The town clerk, after he noticed unable to obtain adequate compensation ; and it, made no record of the plan, nor did he a deprivation from utilizing his land for the mark it or identify it in any way until after purpose of erecting a building thereon to his the town meeting held March 17, 1923. great loss and damage. It alleges, further,

At a town meeting on March 17, 1923, the that the petitioner “is aggrieved by the estown, acting under articles in the warrant, tablishment of said building lines and the "To see if the town will vote to accept build- taking of his land,” and prays that a jury ing lines (on Davis street and on Main street] may determine "the loss, injury and damage

as laid out by the selectmen Feb- sustained by him by reason of the establishruary 2, 1923, or pass any vote votes in ment of said buildi lines and the taking of relation thereto," voted unanimously to said land." This petition is still pending and "accept building lines on [Davis street and has not been tried. Main street] as laid out by the selectmen On August 2, 1924, the defendant erected on February 2, 1923."

a brick pier in the excavation at the corner The plan was brought to the place of of Main street and Davis street. On this he proposes to support a steel column, to It is obvious that the decree is not a consupport in its turn steel beams for an ad sent decree based upon an agreement for setdition to his present buildings which would tlement reached by the parties; but is a constitute a new structure within the build- determination of the merits of the controing line area. The plaintiff requested the versy. It decides that, apart from his acdefendant to remove the pier, fill the excava- tion in excavating within the limits of the tion and cease to erect buildings or structures highways which is treated as cured by his within the building line area except ordinary filling in the excavation and arranging satand incidental repairs to present buildings isfactorily for the restoration of the concrete and structures. The defendant refused to surface of the sidewalks, the defendant has comply; and, on August 5, 1924, the present not been in fault. It decides that the de bill was brought. On the return day of an fendant is not estopped from setting up the order of notice the defendant stipulated that invalidity of the establishment of the buildhe would "do no construction work outside ing lines by filing his petition for the asthe limits of the so-called building lines on sessment of damages caused by the establishthe northerly side of Main street and the ment of those lines; that the plan of the easterly side of Davis street until the fur- layout of the building lines was not filed in ther order of the court."

compliance with the law, and consequently The master reported that the excavations that there was no valid establishment of the made by the defendant on Davis street and building lines. Main street about July 20, 1923, with the pier By the appeal the plaintiff challenges the and the proposed structure for which the correctness of these conclusions. pier was designed, were within the property [1, 2] The defendant is not estopped. lines of the defendant and within the build- There is nothing in his conduct which fairly ing line area; but at the hearing on con- has indicated any intention to recognize the firmation of the report (to which no excep validity of the establishment of the building tions were taken) the judge found that there lines; and there is no action of the plaintiff was error in this, and that, in fact, portions which has been taken in reliance on any of the excavation thirty and one-half feet such intention, nor any failure by it to act, long by two feet wide on Davis street and due to such reliance. As early as July, 1923, ten feet long by two feet wide on Main street he began operations on his property within were within the highways and outside both the building line area in defiance of the act the defendant's property line and the build- of the town if valid. The bill in equity then ing line area. The hearing on confirmation of filed to restrain him was abandoned when he the report and the merits of the case was complied with so much of the law as he held on September 6, 1924; and the judge, admitted he had infringed. He was then in in addition to the finding already stated, al- fault. Whether or not the establishment of so found that the defendant had caused the the building lines was valid, his action in digexcavation outside this property line and the ging in the highways without license was building line area and within the highway wrong. He cured this fault by obtaining a to be filled, and had made satisfactory ar- ; license; and, at the same time, he asserted rangements to replace the concrete walk. his claim that the layout of the building lines The defendant contended that there was no was invalid. He was not bound to insist valid establishment of the building lines so that the bill should be prosecuted to deterfar as his property was concerned and that mine that question, after he had corrected his acts had not been illegal. The plaintiff the wrong for which it was certainly maincontended that the establishment of the tainable. In the event that the layout of building lines was valid; and that the de- building lines was valid he was injured in fendant by filing his petition for the assess- his property; and his only remedy to rement of damages arising from the establish-cover for this was a petition for the assessment of the building lines was estopped from ment of damages, which by the law must be questioning their validity. The master made brought within one year from a date which no ruling of law, but found that if there was he well might fear would be held to be either no estoppel and if there was no valid es- February 2 or 3, 1923. See Brookline V. tablishment of the building lines, the defend County Commissioners, 114 Mass. 548. He ant was acting within his rights. In an filed such a petition on January 31, 1924, earlier part of the report he stated, “I find when only two or three days were left of that the plan was not filed in the office of such period of limitation. It is true that the town clerk until the day of the town in prosecuting the petition, it was not open meeting on March 17, 1923, and then after to him to contest the validity of the layouts the meeting." The decree of the superior (Pinkham v. Chelmsford, 109 Mass. 225; court, made on motion of the defendant, re Murray v. Norfolk, 149 Mass. 328, 21 N. E. cited that the defendant had filled any ex- 757), and that the entire proceeding rests upcavation made by him within the limits of on the validity of the layouts and the allegaDavis street and Main street, and ordered tions of the petition assert it. Those asthat the bill be dismissed with costs to the sertions are essential. He must make them. defendant. The plaintiff appealed.

They were true, if he was wrong in his view


(146 N.E.) of the law. He was faced with a situation Failure to comply with it invalidated the eswhere if he did not file the petition he lost tablishment of the layouts. b:3 right to recover such damage as was The decree of the superior court was right, caused him by the layouts if valid; and if and it is affirmed with costs. he did file it, he might lose the right to chal- So ordered. lenge the validity, and suffer even greater loss. In our opinion it is not just to treat his action as a waiver of his claim of invalidity. ENTERPRISE PRINTING & PUBLISHING

CO. V. CRAIG. The petitioner relies on the decision in

(No. 24725.) Pinkham v. Chelmsford, 109 Mass. 225, as (Supreme Court of Indiana. Nov. 6, 1924.) authority that there has been a waiver. In the case at bar the defendant did not act Corporations w553(1)-Excluding minority

stockholders from office held not cause for without protest or notice of objection to

appointing receiver. the proceedings. In the stipulations in connection with both bills in equity he carefully from office, and that majority stockholders hold

Fact that minority stockholder is excluded guarded against admitting the legality of all offices and manage business, or that they the layouts. He did not file his petition until bave blended their individual business with that necessary to save his rights if he were in of corporation, and failed to account, is not the wrong; and he has not pressed or tried cause for dissolution or receivership, when busit. It falls within the principle of the cases iness is managed successfully in interest of all of Moore v. Sanford, 151 Mass. 285, 24 N. E.

stockholders. 323, 7 L. R. A. 151, which held that a petition for assessment of damages did not

Appeal from Circuit Court, Hamilton Counwaive the right to insist that the statute on which the taking was based was unconstitu- On petition for rehearing. Petition overtional, and of Corbett v. Boston & Maine ruled. Railroad, 219 Mass. 351, which at page 357, For former opinion, see 144 N. E. 542. 107 N. E. 60, 12 A. L. R. 683, discusses a position analagous to that presented here. These EWBANK, J. A petition was filed to transseem to us the controlling authorities. fer this cause after an opinion of the Appel

[3, 4] The plan was not filed as required late Court had stated that: (a) "Appellant by the statutes. G. L. c. 82, § 23, requires bas assigned as error the court's action in that the layout be "filed in the office of the overruling 'its demurrer to the complaint. town clerk” not less than seven days before *

The complaint was sufficient to it is accepted by the town at a town meeting. withstand appellant's demurrer.” (b) "It is All that the town clerk knew of the layout contended that a court of equity has no power before the town meeting was that he had at the suit of an individual to decree a disseen it in a safe, which was not in his office, solution of a domestic corporation, and to and which was used by the town engineer wind up its affairs, unless such extraordinary and many other town officers as well as by power has been conferred upon it by the terms the town clerk. The finding of the master of a statute.

But in the instant that the plan was not filed in the clerk's of- case the corporation was solvent, and the de fice before March 17, 1923, after the town linquent officers owned a majority of the meeting, involves a ruling of law, and is stock, and were excluding Craig from parnot conclusive. The judge of the superior ticipation in the management, thereby making court, however, with the finding of the de it impossible for him to protect his interest tailed facts before him, decided that the against their fraudulent acts, except by an plan was not filed, and we do not see how action in equity for a receiver and for dissohe could have reached a different conclusion. lution." After which that court had proThe facts in the case of Reed v. Acton, 120 ceeded to decide that a receiver was properly Mass. 130, cited by the plaintiff as decisive, appointed, and to affirm a judgment decreeare clearly distinguishable. There the docu- ing that the corporation be dissolved. Being ment in question was left with the town convinced that the decision was wrong on clerk in his official capacity; it was placed both propositions, this court so decided. Apby him in a safe used exclusively by him; pellee is obviously mistaken in asserting that and it was continuously in his custody. the Supreme Court reversed the judgment [5] The layouts were defective. The stat. "upon grounds not

considered in ute requirement (G. L. C. 82, § 23) that the the Appellate Court.” layout be filed with the town clerk at least Counsel cite decisions to the effect that, if seven days before the action of the town at the majority stockholders of a corporation a town meeting is not merely directory, nor and directors chosen by them shall frauduis the filing an unimportant detail. Jeffries lently so manage a corporation as to keep it F. Swampscott, 105 Mass. 535; Brookline v. from earning an income and otherwise fulCounty Commissioners, 114 Mass. 548; Blais-filling its corporate purposes, or so as to dell v. Winthrop, 118 Mass. 138; Howland absorb the income for the use and benefit of F. Greenfield, 231 Mass. 147, 120 N. E. 394. I the majority stockholders, paying no divi.

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