This case is here on the defendant's application for further appellate review, the Appeals Court having overruled his exceptions. Commonwealth v. Kozerski, __ Mass. App. Ct. __ (1973). [Note a] We agree with the decision and the reasoning of the Appeals Court. The defendant's exceptions are overruled.
[Note a] 295 N.E. 2d 460.
On June 15, 1972, a single justice of this court denied the petitioners' motion to stay dismissal of their appeal under a standing order of February 8, 1972. The petitioners excepted. They argue that the stay should have been granted for the purpose of allowing them to establish the truth of exceptions in regard to their plea in abatement. We hold that there was no error in the ruling of the single justice. This case began over ten years ago and has already been before this court once. Cositore v. Dow, 356 Mass. 717 (1969). In its present posture, the petitioners' argument is no more than a minor variation on a single theme which has received more than ample consideration by this and lower courts. See id.
Brouillette, a police officer in Worcester, was duly notified under G. L. c. 31, Section 43 (a), by the city manager as appointing authority, that a hearing would be held to determine whether his services should be terminated because of his commission of specified acts constituting improper conduct as an officer. Appearing at the hearing on January 19, 1972, conducted under the same section by the city manager, Brouillette, on being called to testify, refused to take the stand or be sworn because, he asserted, some of the acts charged against him amounted to criminal offences, and he desired to seek a determination by a court as to his rights. When his request for a continuance for this purpose was denied, Brouillette withdrew from the hearing. The hearing proceeded; the city manager found that all the charges were supported by the evidence and terminated Brouillette's services on January 21, 1972. On January 24, 1972, Brouillette, as plaintiff, presented to a single justice of this court a bill against the city and the city manager, as defendants, for a declaration of rights with regard to testifying at a Section 43 (a) hearing and for an order declaring the city manager's decision to be void, enjoining him from taking further action on the charges, and restoring the plaintiff to his position. The bill was filed on the law side. The defendants demurred to the bill, and the single justice sustained the demurrer. The plaintiff filed a notice of appeal from this order. The defendants moved to dismiss the appeal; a single justice denied the motion, to which the defendants excepted, and the exception
is before the full bench on the defendants' outline bill of exceptions. The appeal must be dismissed. As the bill for a declaration was on the law side, review of the single justice's order sustaining the demurrer cannot be had by appeal, but rather by exceptions or report. Procida v. Ianiantuani, 295 Mass. 479 (1936). Lord v. Selectmen of Winchester, 346 Mass. 786 (1964). Arruda, petitioner, 347 Mass. 772 (1964). Even if the bill could be characterized as equitable, appeal fails because that requires a final decree, and an order sustaining a demurrer is not final. Rowe v. Bragg, 300 Mass. 298 (1938). Stow v. Commissioner of Corps. & Taxn. 336 Mass. 337 , 339 (1957). Elbaum v. Sullivan, 344 Mass. 662 , 665 (1962). In any event the bill for a declaration does not lie; on the present facts the plaintiff was required to follow the statutory system for attacking errors (if there were any, as to which we express no opinion) in the proceedings looking to the termination of his services as a police officer. G. L. c. 31, Sections 43 (a)-(d), 45, 46A. Police Commr. of Boston v. Ciccolo, 356 Mass. 555 (1969). See East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, ante, 444 (1973). Cf. Skowronski v. Worcester, 346 Mass. 778 (1964); Silverio v. Municipal Court of Boston, 355 Mass. 623 (1969).