Freeman v. Town of Bourne

• Decision Date: 25 February 1898
• Parties: FREEMAN v. TOWN OF BOURNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 289

49 N.E. 435

FREEMAN v. TOWN OF BOURNE.

Supreme Judicial Court of Massachusetts, Bristol.

February 25, 1898

COUNSEL

H.P Harriman and C.F. Chamberlayne, for appellant.

A.S Hayes, A.E. Burr, and B.A. Lockhart, for appellee.

ALLEN J.

The plaintiff's right to recover is denied by the defendant on the following grounds: (1) That, if the power to dismiss a superintendent of schools existed, it was not in the joint committee, but in the municipality; that the joint committee after the annual convention, had no authority except to do the things which were necessary in order to secure the contribution of money from the commonwealth, and that, after that, the relations of the superintendent were directly with the town. (2) That there is, indeed, no power anywhere to dismiss a superintendent. (3) That the superintendent could only be dismissed for cause, and that no sufficient or legal cause of dismissal is disclosed.

We will consider these objections in their order.

By virtue of St.1892, c. 344, the towns of Sandwich, Bourne, and Mashpee united for the purpose of the employment of a superintendent of schools, in accordance with the provisions of St.1888, c. 431, which authorized certain small towns to unite for this purpose, and to obtain a contribution from the commonwealth. Before these statutes were passed, two or more towns were authorized to form a district for this purpose, but without any provision for obtaining money from the commonwealth. Pub.St. c. 44, §§ 44, 45. It is expressly provided by St.1888, c. 431, § 2, that, "when such a union has been effected, the school committees of the towns comprising the union shall form a joint committee, and for the purposes of this act said joint committee shall be held to be the agents of each town comprising the union." They are to meet annually in joint convention, in the month of April, and choose a superintendent of schools, determine the relative amount of service to be performed by him in each town, fix his salary, and apportion the amount thereof to be paid by the several towns. The scheme necessarily implies that a superintendent can be employed or discharged only by the joint committee. The union is formed for the purpose of securing better service than the towns acting separately could obtain. For the purposes of the statute, the joint committee became the agents of each town, and their acts within the scope of their authority are binding upon each town. Separate action by the school committee of a single town would defeat the purposes of the union. It follows from this that the authority of the joint committee does not cease with obtaining the contribution from the commonwealth. That contribution contemplates the maintaining of a superintendent of schools for an entire year. Suppose the superintendent chosen in April dies shortly afterwards, or resigns, or goes away, or becomes insane, or otherwise totally incapacitated, so that there is no performance or attempt at performance of the duties of the position; some one must be appointed in his place, or else the money of the commonwealth will have been obtained on a consideration which has failed. In such case it is quite clear that the joint committee must act to fill the vacancy. Donnocker himself was chosen in this manner to fill a vacancy. The school committees of the towns cannot act separately. Whatever action is taken in respect to the employment of a superintendent must be by the joint committee, and, if there is any power of dismissal, it rests with the same body. Ex parte Hennen, 13 Pet. 230.

We come, then, to the questions whether there is any power to dismiss a superintendent of schools so chosen, and whether a sufficient and legal cause of dismissal in this case is disclosed. We may assume, at the outset, that the choice was for one year. Chase v. Lowell, 7 Gray, 33; Kimball v. City of Salem, 111 Mass. 87. Nevertheless, the tenure of an officer so chosen or employed is not like that of an officer whose...