5 Mass. App. Ct. 778

February 10, 1977

The plaintiff, a sergeant in the Medford police department, commenced this action in the Superior Court by way of a petition for writ of mandamus, seeking to compel the defendant to fill a vacancy in the rank of lieutenant in the Medford police department by promoting him. The case was presented to the judge on an agreed statement of facts. The plaintiff appeals from a judgment dismissing his petition. The defendant, as chief administrative officer of the city of Medford (G. L. c. 43, Section 103, as amended through St. 1973, c. 128; City Manager of Medford v. State Labor Relations Commn. 353 Mass. 519 , 521, n.3 [1968]; see Allen v. Cambridge, 316 Mass. 351 , 353 [1944]), could properly decide not to fill a vacancy in the rank of lieutenant in the Medford police department. G. L. c. 43, Sections 104, 105. Compare 1937 House Doc. No. 233 with 1938 House Doc. No. 1710 (legislative precursors of what is now G. L. c. 43, Section 105). The petition was correctly dismissed for the reasons stated in the judge's findings, rulings and order for judgment.

Judgment affirmed with double costs.

Home DOROTHY M. ZEITLER & others vs. TOWN OF HINSDALE & others.

5 Mass. App. Ct. 778

February 17, 1977

At a town meeting held on November 22, 1971, the defendant town voted to appropriate $1,276,000 for the construction of "interceptor and lateral sewers" and to raise that amount by borrowing. The plaintiffs, eleven taxable inhabitants of the town, entered the present action in the Superior Court on March 1, 1974, seeking to vitiate that vote, alleging that certain procedural errors occurred during its passage. The judge found that the plaintiffs were guilty of laches and ordered that the bill be dismissed. On June 20, 1974, the plaintiffs appealed from the decree entered pursuant to that order. Laches is a question of fact. Provident Co-op. Bank v. James Talcott, Inc. 358 Mass. 180 , 187 (1970). That is true in actions such as the present one which are brought by taxpayers under G. L. c. 40, Section 53. See Fuller v. melrose, 1 Allen 166 (1861); Tash v. Adams, 10 Cush. 252 , 253-254 (1852); Conners v. Lowell, 246 Mass. 279 , 284-285 (1923). The judge's finding was warranted on the pleadings and on the testimony

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before him. As the outcome of this case would not be changed, we do not pass upon the remaining claims of error.

Decree affirmed.