Home RICHMOND BROTHERS, INC. vs. CITY OF QUINCY & others.

361 Mass. 857

February 9, 1972

The plaintiff (Richmond) seeks declaratory relief concerning the validity of an eminent domain taking "for highway purposes," with an award of $5,700, of its land (locus) in Quincy by a 1970 order of the city council dated April 6, passed on August 13, approved by the mayor on August 19, and recorded September 18, 1970. Richmond appealed from an interlocutory decree sustaining a demurrer and from a final decree dismissing its bill. The amended bill, in addition to the allegations outlined above, alleges (1) that State Street Bank and Trust Company (SSB) on August 22, 1969, offered to buy the locus from Richmond for $75,000; (2) that an attorney for SSB told Richmond's counsel by telephone that, if the offer was not accepted the city would probably take the locus; (3) that SSB in April, 1969, planned to develop about eighty acres next to the locus for its private purposes and prepared a site plan showing the locus as within SSB's project; (4) that since the filing of the original bill the proposed highway has been shown by plan as two ramps each about 250 feet long across the locus from a proposed street to the eighty acre parcel; (5) that an SSB officer has supported the city's application to the Department of Public Works to place fill on the locus; and (6) that this proposed highway would be for the sole benefit of SSB. These allegations do not set forth unequivocally specific facts sufficient to describe action by public officers in bad faith or the existence of other facts meeting the tests laid down in Poremba v. Springfield, 354 Mass. 432 , 434-435. See Moskow v. Boston Redevelopment Authy., 349 Mass. 553 , 562-563, 570. See also Luke v. Massachusetts Turnpike Authy. 337 Mass. 304 , 308-309; Omartian v. Mayor of Springfield, 354 Mass. 439 , 442. The taking order was recorded within thirty days after its approval by the mayor. See G. L. c. 79, Section 3, as amended through St. 1964, c. 579, Section 1; Bemis v. Leonard, 118 Mass. 502 , 506; Boston Penny Sav. Bank v. Assessors of Boston, 314 Mass. 599 , 600. Such approval is required in a Plan A city. See G. L. c. 43, Sections 30 (as amended through St. 1967, c. 59, Section 2) and 55; Shea v. Inspector of Bldgs. of Quincy, 323 Mass. 552 , 556-557.

Interlocutory and final decrees affirmed.

Home COMMONWEALTH vs. EDSON K. STEWART.

361 Mass. 857

February 10, 1972

This case involves the application of G. L. c. 277, Section 72A, as appearing in St. 1965, c. 343, granting to certain defendants the right to apply for a "prompt trial or other disposition" of any indictment, information or

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complaint brought against them. Complaints were filed and warrants issued by the District Court of Eastern Franklin on September 15, 1969, charging the defendant with unauthorized use of a motor vehicle, breaking and entering a building in the daytime with the intent to commit a felony, stealing in a building, putting in fear for the purpose of stealing in a building, and unlawful escape. At the time that these warrants were issued, the defendant was incarcerated at the Massachusetts Correctional Institution at Walpole. On December 2, 1969, the defendant, pursuant to G. L. c. 277, Section 72A, made application to the District Court for a prompt trial or other disposition of the complaints. In January, 1970, he was indicted and convicted of the unlawful escape charge. In May, 1970, he was indicted for the other crimes contained in the earlier complaints and was tried on those indictments on September 29, 1970. Prior to trial the defendant's motion to dismiss the indictments for failure to afford him a speedy trial was denied. The case is before us on his exception to that ruling. The judge was correct in denying the motion. We are not faced here with any constitutional questions involving delay so long that a presumption arises that a fair trial cannot be had. Commonwealth v. Green, 353 Mass. 687 , 689-690. Rather, we interpret a statute which establishes a priority for trials of defendants who are already in custody. Commonwealth v. Lauria, 359 Mass. 168 , 171. The statute provides that within six months after the defendant's application is received by the court, he shall "be brought into court for trial or other disposition of any such indictment, information or complaint, unless the court shall otherwise order." G. L. c. 277, Section 72A. In this case, the indictments returned in May, 1970, and the complaints filed in the District Court were for the same offences. The return of the indictments some five months after the defendant's application was made had the effect of dismissing the complaints and was, therefore, a "disposition" of them within the meaning of the statute. So construed, the time period contained in the statute and applicable to the present indictments began to run in May, 1970, the date upon which the indictments were returned. See Commonwealth v. Royce, 358 Mass. 597 , 599. Cf. Schlinsky v. United States, 379 F. 2d 735, 737 (1st Cir.); Commonwealth v. Horan, 360 Mass. 739 . Since the defendant was tried within less than five months from that time the judge was correct in denying the defendant's motion to dismiss.

Exceptions overruled.