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(145 N.E.)

COMMONWEALTH v. MARKARIAN. (Supreme Judicial Court of Massachusetts.

Worcester. Nov. 5, 1924.)

1. Indictment and information 139-Motion to quash complaint for apparent defects must be taken before judgment by district court or trial justice, or before jury has been sworn in superior court.

Under G. L. c. 278, § 17, motion to quash complaint for formal defect apparent on face thereof, must be taken before judgment has been rendered by district court or trial justice, or before jury has been sworn in superior

court.

J. C. Mahoney and J. J. Moynihan, both of Worcester, for defendant.

WAIT, J. The defendant was adjudged guilty in the central district court of Worcester, after hearing, upon a complaint which charged that he at Worcester, on November 3, 1923, "did expose and keep for sale intoxicating liquors with intent to unlawfully sell the same, said defendant having been before convicted of the offense of keeping for sale with intent to unlawfully sell intoxicating liquors." Sentence was imposed, and At the he appealed to the superior court. trial in the superior court, after a jury was impaneled and sworn, the clerk read the complaint, containing the words quoted above, to the jury. The defendant then requested a continuance on the ground that Allegation of former conviction for exposthe 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

2. Indictment and information 119-Allegation of prior conviction for violation of liquor law held mere formal defect to be treated as surplusage.

not before been convicted of similar crime.

3. Criminal law 335-Statute authorizing mitigation of punishment of one not previously convicted of similar crime places burden upon defendant.

Under G. L. c. 279, § 11, permitting mitigation of sentence by court if defendant shows to court that he has not before been convicted of similar crime, reason for mitigation must be shown by defendant.

4. Criminal law 1035(3)-Defendant having withdrawn request for continuance cannot object to reading of allegation in complaint.

Defendant who requested continuance because of reading of allegation in complaint and then withdrew his request for continuance cannot object in reviewing court to reading of allegation.

5. Criminal law 633 (2) - Defendant held not prejudiced by reading of allegation of prior conviction in complaint in view of charge.

Defendant, charged with keeping liquor for sale under G. L. c. 138, § 83, was not prejudiced by allegation in complaint of prior conviction which was read to jury, where court charged that jury should disregard any notion they might have gathered from anything they had seen or heard concerning prior conviction.

Exceptions from Superior Criminal Court, Worcester County; E. T. Broadhurst, Judge. Michael Markarian was adjudged guilty of violation of liquor law, and brings exceptions. Exceptions overruled.

C. B. Rugg and E. G. Norman, Asst. Dist. Attys., both of Worcester, for the Commonwealth.

motion was denied; and the defendant excepted. No evidence was offered to prove the allegation of the prior conviction. The commonwealth rested after evidence had been given to prove the allegation of exposing and keeping with intent unlawfully to sell on the day alleged. The defendant rested thereupon; arguments were made; the judge among other things charged the jury that they should disregard any notion they might have gathered from anything they had seen or heard concerning a prior conviction; a verdict of guilty was returned; and the defendant was duly sentenced. The defendant filed exceptions to the refusal of the motion to quash; and presents here the single question thus arising.

[1] The motion to quash was filed too late. The law is thoroughly established that, as provided by G. L. c. 278, § 17, an objection to a complaint for a formal defect apparent on the face thereof must be taken before a judgment has been rendered by a district court or a trial justice or before a jury has been sworn in the superior court. Commonwealth v. Lynn, 154 Mass. 405, 28 N. E, 289; Commonwealth v. Reid, 175 Mass. 325, 56 N. E. 617; Commonwealth v. Massad, 242 Mass. 532, 136 N. E. 615; Commonwealth v. Diamond, 248 Mass. 511, 143 N. E. 503. The motion to quash was not filed until after the jury had been sworn in the superior court.

[2] The defect apparent was the allegation of the former conviction; and this was a formal defect since it was not a statement of a fact necessary to be proven to make the act complained of a crime. State v. Amidon, 58 Vt. 524, 2 A. 154. The statutes in 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 later offense of the kind complained of. The single penalty for exposing and keeping for sale with intent unlawfully to sell liquor obnoxious to the law is set out in G. L. c. 138, § 83, and is fine and imprisonment. There is no provision such as earlier statutes contained imposing a higher penalty for the offense after a first or earlier conviction. 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 Tuttle v. Commonwealth, 2 Gray, 505, Commonwealth v. Holley, 3 Gray, 458, Garvey v. Commonwealth, 8 Gray, 382, and Walsh v. Commonwealth, 224 Mass. 39, 112 N. E. 486; and when a later statute (St. 1880, c. 221) enacted that the allegation of the former conviction need not be inserted in the complaint or indictment, the act was declared unconstitutional, Commonwealth v. Harrington, 130 Mass. 35.

[3] The only provision of existing law that gives any importance to the allegation objected to is G. L. c. 279, § 11. This section of the General Laws descends from St. 1866, c. 280, and provides that where the penalty for an offense is fine and imprisonment, except in a case here immaterial, the court may in its discretion sentence the offender to punishment by fine only or by imprisonment only "if he shows to the satisfaction of the court that he has not before been convicted of a similar crime." It was decided in Flaherty v. Thomas, 12 Allen, 428, that this was substantially different from imposing a heavier sentence for a second or subsequent offense. Gray, J., says:

"But the St. of 1866, c. 280, §§ 1, 3, does not make a second offense a different one in description or character from a first offense, but imposes the same degree of punishment for each offense, and merely authorizes the court in its discretion to mitigate the punishment if the defendant shall prove to its satisfaction that he has not before been convicted of a like offense. * ** In the one case, the matter of aggravation must be proved by the commonwealth; in the other, the reason for mitigation of sentence must be shown by the defendant." The law so stated has been repeatedly upheld. Batchelder v. Commonwealth, 109 Mass. 361; Commonwealth v. Marchand, 155 Mass. 8, 29 N. E. 578. Compare, also, Commonwealth v. Fontain, 127 Mass. 452, and Commonwealth v. Graves, 155 Mass. 163, 29 N. E. 579, 16 L. R. A. 256.

The allegation in regard to the earlier conviction was therefore not a description or characterization of the offense charged, but was formal only and it may be treated as surplusage. Commonwealth v. Farren, 9 Allen, 489; Commonwealth v. Walker, 163 Mass. 226, 39 N. E. 1014; Torphy v. State,

187 Ind. 73, 118 N. E. 355; State v. Reilly, 94 Conn. 698, 110 A. 550.

[4, 5] The defendant withdrew his request for a continuance. If he was in fact prejudiced by the reading of the allegation he cannot now object. Nor, in view of the charge made by the judge, can we regard him as prejudiced thereby. Exceptions overruled.

INHABITANTS OF TOWN OF GREENFIELD v. BURNHAM.

(Supreme Judicial Court of Massachusetts. Franklin. Nov. 5, 1924.)

1. Estoppel 91(1)-Judgment 713(2)— One not insisting that bill be prosecuted held not precluded by judgment or estopped to deny validity of building lines.

Where landowner started construction of building, not only within building line area, but also within limit of highway, and town sued to restrain his act and he obtained license for excavation in street, and then filled in excavation and replaced sidewalk, and town abandoned bill, he was not bound to insist that bill should be prosecuted to determine question of validity of building line, and he was not thereafter estopped to claim building lines invalid. 2. Estoppel 68(1)-Filing of petition for assessment of damages caused by establishment of building line did not estop landowner from claiming invalidity.

Landowner who several days before expiration of year filed petition for assessment of damages, caused by establishment of building validity of building lines pending petition, line, was not estopped thereby from denying though in prosecuting such petition it would not be open to him to contest such validity, under G. L. c. 82, § 37.

3. Equity 409-Finding of master involving

ruling of law not conclusive.

Finding of master involving a ruling of law is not conclusive.

4. Eminent domain 186 Building line plans placed in safe used by town clerk and many other officers held not "filed" in office of town clerk.

Plan of building lines not given to town clerk, but placed in safe not in his office, but in vault in town building, where many other town officers kept their records, was not "filed in the office of the town clerk," as required by G. L. c. 82, § 23.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, File.]

5. Eminent domain 186–Layout of building lines not properly filed with town clerk invalid.

Requirement of G. L. c. 82, § 23, that layout of building lines be filed with town clerk at least seven days before action of town at meeting, is mandatory, and noncompliance renders invalid establishment of layout.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(145 N.E.)

Appeal from Superior Court, Franklin | meeting by the town engineer and was exCounty; Henry T. Lummus, Judge.

Bill in equity by the Inhabitants of the Town of Greenfield to restrain Frederick W. Burnham from infraction of by-laws establishing building lines, to compel him to make restoration of surface of sidewalks excavated by him, and to exact performance by him of stipulation made on his receipt of a license to excavate. Decree for defendant, and plaintiff appeals. Affirmed.

W. A. Davenport, of Greenfield (C. Fairhurst, of Greenfield, of counsel), for appel

lant.

H. J. Field, of Greenfield (F. J. Lawler, of Greenfield, of counsel), for appellee.

WAIT, J. This is a bill in equity seeking to restrain the defendant from infraction of by-laws establishing building lines on certain streets in Greenfield; to compel him to make restoration of the surface of sidewalks excavated by him, and to exact performance by him of a stipulation made on his receipt of a license to excavate. The answer denies the validity of the establishment of the building lines. A replication sets up that the defendant is estopped to object to the validity of the establishment of the building lines by the pendency of a petition filed by him for the assessment of damages caused by such establishment.

hibited and discussed at the meeting. After the meeting and on the same day, it was indorsed and signed by the town clerk, and, thereafter, it remained in his custody. Except this plan no other document or paper relating to the establishment of the building lines in question was ever filed in the office of the town clerk.

Portions of the defendant's property on the corner of Main street and Davis street were included within the building line areas shown on the plan on Davis street and on Main street.

About July 20, 1923, the defendant, without first obtaining a license therefor, made an excavation along both streets at their intersection. The by-laws of the town forbid any excavation in the highways without license of the selectmen; and, if any excavation is made under a license, they require restoration of the surface to the satisfaction of the selectmen before the expiration of the license. They authorize the selectmen to grant licenses but require the licensee to execute a written agreement to hold the town harmless and to indemnify it against damage or cost. The town, accordingly, at once filed a bill in equity to restrain the defendant; but dismissed the bill on his applying for a license. The license was granted July 25, 1923. The defendant signed a stipulation 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:

On February 2, 1923, the selectmen of Greenfield, acting under G. L. c. 82, § 37, which, with the provisions of earlier laws now embodied in said section, had theretofore been duly accepted by the town, gave a public hearing on the establishment of building lines on Main street and on Davis street. On the next day, the town clerk saw a plan of the proposed layouts in a vault in the town building where he kept town records. This vault was not in his office. It was not locked. It was used by the town clerk in common with many other officials of the town including the town engineer, all of whom had access to it. The plan had not then been delivered to him. It had not been left at his office, nor had it been called to his attention by any one. The town clerk, after he noticed it, made no record of the plan, nor did he mark it or identify it in any way until after the town meeting held March 17, 1923.

At a town meeting on March 17, 1923, the town, acting under articles in the warrant, "To see if the town will vote to accept building lines [on Davis street and on Main street] as laid out by the selectmen February 2, 1923, or pass any vote or votes in relation thereto," voted unanimously to "accept building lines on [Davis street and Main street] as laid out by the selectmen on February 2, 1923."

the license, which expired in thirty days, he made no further excavation; but did not, before the expiration of the license, fill in the excavation already existing.

On January 31, 1924, he filed a petition in the superior court for a jury to assess damages caused by the taking of land by establishing building lines. This petition is between the same parties and relates to the same land involved in this bill. It alleges a layout of building lines by the selectmen on February 2, 1923; a vote by the town on March 17, 1923, at the annual town meeting to accept the building lines as laid out; a taking of valuable land from the petitioner causing him damage and loss as regards the land and buildings thereon for which he has been awarded no damage and has been unable to obtain adequate compensation; and a deprivation from utilizing his land for the purpose of erecting a building thereon to his great loss and damage. It alleges, further, that the petitioner "is aggrieved by the establishment of said building lines and the taking of his land," and prays that a jury may determine "the loss, injury and damage sustained by him by reason of the establishment of said building lines and the taking of said land." This petition is still pending and has not been tried.

On August 2, 1924, the defendant erected 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 support in its turn steel beams for an addition to his present buildings which would constitute a new structure within the building line area. The plaintiff requested the defendant to remove the pier, fill the excavation and cease to erect buildings or structures within the building line area except ordinary and incidental repairs to present buildings and structures. The defendant refused to comply; and, on August 5, 1924, the present bill was brought. On the return day of an order of notice the defendant stipulated that he would "do no construction work outside the limits of the so-called building lines on the northerly side of Main street and the easterly side of Davis street until the further order of the court."

It is obvious that the decree is not a consent decree based upon an agreement for settlement reached by the parties; but is a determination of the merits of the controversy. It decides that, apart from his action in excavating within the limits of the highways which is treated as cured by his filling in the excavation and arranging satisfactorily for the restoration of the concrete surface of the sidewalks, the defendant has not been in fault. It decides that the defendant is not estopped from setting up the invalidity of the establishment of the building lines by filing his petition for the assessment of damages caused by the establishment of those lines; that the plan of the layout of the building lines was not filed in compliance with the law, and consequently that there was no valid establishment of the building lines.

By the appeal the plaintiff challenges the correctness of these conclusions.

The master reported that the excavations made by the defendant on Davis street and Main street about July 20, 1923, with the pier and the proposed structure for which the 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

(145 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.

The decree of the superior court was right, and it is affirmed with costs. So ordered.

CO. v. CRAIG. (No. 24725.) (Supreme Court of Indiana. Nov. 6, 1924.)

Corporations 553(1)-Excluding minority stockholders from office held not cause for appointing receiver.

Fact that minority stockholder is excluded

his right to recover such damage as was caused him by the layouts if valid; and if he did file it, he might lose the right to challenge 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 The petitioner relies on the decision in Pinkham v. Chelmsford, 109 Mass. 225, as authority that there has been a waiver. In the case at bar the defendant did not act without protest or notice of objection to the proceedings. In the stipulations in connection with both bills in equity he carefully guarded against admitting the legality of the layouts. He did not file his petition until necessary to save his rights if he were in the wrong; and he has not pressed or tried it. It falls within the principle of the cases of Moore v. Sanford, 151 Mass. 285, 24 N. E. 323, 7 L. R. A. 151, which held that a petition for assessment of damages did not waive the right to insist that the statute on which the taking was based was unconstitutional, and of Corbett v. Boston & Maine Railroad, 219 Mass. 351, which at page 357, 107 N. E. 60, 12 A. L. R. 683, discusses a position analagous to that presented here. These seem to us the controlling authorities.

[3, 4] The plan was not filed as required by the statutes. G. L. c. 82, § 23, requires that the layout be "filed in the office of the town clerk" not less than seven days before it is accepted by the town at a town meeting. All that the town clerk knew of the layout before the town meeting was that he had seen it in a safe, which was not in his office, and which was used by the town engineer and many other town officers as well as by the town clerk. The finding of the master that the plan was not filed in the clerk's of fice before March 17, 1923, after the town meeting, involves a ruling of law, and is not conclusive. The judge of the superior court, however, with the finding of the detailed facts before him, decided that the plan was not filed, and we do not see how he could have reached a different conclusion. The facts in the case of Reed v. Acton, 120 Mass. 130, cited by the plaintiff as decisive, are clearly distinguishable. There the document in question was left with the town clerk in his official capacity; it was placed by him in a safe used exclusively by him; and it was continuously in his custody.

from office, and that majority stockholders hold all offices and manage business, or that they have blended their individual business with that of corporation, and failed to account, is not cause for dissolution or receivership, when business is managed successfully in interest of all stockholders.

ty.

Appeal from Circuit Court, Hamilton Coun

On petition for rehearing. Petition overruled.

For former opinion, see 144 N. E. 542.

EWBANK, J. A petition was filed to transfer this cause after an opinion of the Appellate Court had stated that: (a) "Appellant has assigned as error the court's action in overruling its demurrer to the complaint. * The complaint was sufficient to withstand appellant's demurrer." (b) "It is contended that a court of equity has no power at the suit of an individual to decree a dissolution of a domestic corporation, and to wind up its affairs, unless such extraordinary power has been conferred upon it by the terms of a statute.

* But in the instant

case the corporation was solvent, and the delinquent officers owned a majority of the stock, and were excluding Craig from participation in the management, thereby making it impossible for him to protect his interest against their fraudulent acts, except by an action in equity for a receiver and for dissolution." After which that court had proceeded to decide that a receiver was properly appointed, and to affirm a judgment decreeing that the corporation be dissolved. Being convinced that the decision was wrong on both propositions, this court so decided. Appellee is obviously mistaken in asserting that the Supreme Court reversed the judgment "upon grounds not considered in the Appellate Court."

[5] The layouts were defective. The statute requirement (G. L. c. 82, § 23) that the 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 v. 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 v. Greenfield, 231 Mass. 147, 120 N. E. 394. the majority stockholders, paying no divi

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