McCartin v. School Committee of Lowell

• Decision Date: 28 April 1948
• Citation: 79 N.E.2d 192,322 Mass. 624
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: VINCENT M. MCCARTIN v. SCHOOL COMMITTEE OF LOWELL& another (and a companion case [1]).

322 Mass. 624

79 N.E.2d 192

VINCENT M. MCCARTIN v. SCHOOL COMMITTEE OF LOWELL& another (and a companion case ^[1]).

Supreme Judicial Court of Massachusetts, Middlesex.

April 28, 1948

December 3, 1946 March 30, 1948.

Present: LUMMUS DOLAN, RONAN, WILKINS, SPALDING, & WILLIAMS, JJ.

School and School Committee. Mandamus. Equity Pleading and Practice Intervening petition. Words, "Teacher," "Superintendent."

Mandamus is not an appropriate remedy for the recovery of salary due to a municipal employee for the period between an invalid removal of him from his position and his subsequent reinstatement therein.

It was proper to dismiss a mandamus proceeding to compel the petitioner's reinstatement in a municipal position following an invalid removal therefrom, where it appeared that, while the petition was pending, he had been reinstated by action of the appropriate officers.

Action of a school committee demoting the superintendent of schools, serving at discretion, to the position of a teacher was a dismissal of him within G. L. (Ter. Ed.) c. 71, Section 42, as appearing in St. 1934, c. 123, and was invalid for want of the notice and hearing required by that statute.

Action of a school committee in 1944 demoting a high school principal, serving at discretion, to the position of a teacher was not a dismissal of him within G. L. (Ter. Ed.) c. 71, Section 42, as appearing in St.

1934, c. 123, and was not invalid for want of the notice and hearing required by that statute.

A reduction in the salary of one serving at discretion in public schools, made without his consent by a vote of the school committee whereby he was demoted from the position of high school principal to the position of a teacher, was invalid under G. L. (Ter. Ed.) c. 71, Section 13, where, although he was the only person holding the office of high school principal, no change in the salary attached to that office was made by the vote.

An exception to the denial of a petition for leave to intervene in a suit in equity must be overruled where it appeared that the result of the case reached by this court would not have been different had the petition been allowed.

PETITIONS, filed in the Superior Court on May 18 and May 26, 1944, respectively, and later amended as described in the opinion.

The cases were heard by Cabot, J. In this court, the cases were argued in December, 1946, before Field, C.J., Lummus, Dolan, & Ronan, JJ., and, after the retirement of Field, C.J., were submitted on briefs to all the Justices then constituting the court except Qua, C.J.

J. M. Russell, for the petitioner McCartin. F. M. Qua, for the petitioner Sullivan.

W. F. Howard, for the interveners and for the respondents.

LUMMUS, J. These cases began as petitions for writs of mandamus to restore the petitioners to the positions they held in the school department of Lowell prior to a vote of the school committee on May 5, 1944, which purported to "demote" them. The cases were referred to an auditor who reported thereon. Thereafter on February 8, 1945, the petitioners were by vote of the school committee restored to the positions which they held prior to the vote of May 5, 1944. Following the later vote the petitions for writs of mandamus were amended by the addition of prayers for declaratory decrees under St. 1945, c. 582, Section 1, which inserted in the General Laws a new chapter, 231A. Under that chapter the Superior Court has power to "make binding declarations of right, duty, status and other legal relations."

The cases were heard by the judge upon the report of the auditor which, after the amendment of the petitions, was apparently treated by the parties and the judge as though it were that of a master, and also upon the pleadings and the facts contained in a stipulation of the parties. Without approving the practice of not appointing the auditor as master after the petitions were amended into equity, we treat his report as the parties and the judge have treated it. Chapman v. Chapman, 224 Mass. 427 , 428, 429. See also Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347 , 352.

The pertinent facts may be summed up as follows. The city of Lowell is governed by a Plan E charter under G. L. (Ter. Ed.) c. 43, as amended by St. 1938, c. 378. See Moore v. Election Commissioners of Cambridge, 309 Mass. 303, 307. Up to May 5, 1944, both petitioners were serving "at discretion" under G. L. (Ter. Ed.) c. 71, Section 41. Nester v. School Committee of Fall River, 318 Mass. 538 . They could not lawfully be "dismissed" without compliance with G. L. (Ter. Ed.) c. 71, Section 42, as it appears in St. 1934, c. 123, the terms of which were not complied with because there had been no notice or hearing as required by that statute. If the purported demotion of either of them was in law a dismissal, it was invalid. On May 5, 1944, the school committee, consisting of seven members, by a vote of four of them, the other three having left the meeting, purported to demote the petitioner McCartin, who had been superintendent of schools at an annual salary of $7,000, to the rank of teacher in the high school at an annual salary of $2,900, and to promote to his place one James F. Conway, who had been submaster in the high school. The same vote purported to demote the petitioner Sullivan, who had been principal of the high school at an annual salary of $5,000, to the rank of teacher in the high school at an annual salary of

$2,900, and to promote to his place and salary one Joseph G. Pyne, previously a master in the high school. McCartin refused to serve as a teacher, and received no pay from the time of his purported demotion until his restoration under the vote of February 8, 1945. But Sullivan served as teacher from September, 1944, and received pay as such.

No question now arises as to the propriety of the denial of the petitions, so far as they prayed for writs of mandamus. Mandamus is not an appropriate remedy for the recovery of salary due the petitioners before their reinstatement. Henderson v. Mayor of Medford, 320 Mass. 663 , 668. The petitioners, having been reinstated, could no longer profit from the issuance of writs of mandamus, and the decrees, so far as they denied the petitions for writs of mandamus, are affirmed.

The judge entered decrees declaring as to each petitioner that the purported demotion of May 5, 1944, was valid and effective, and that each petitioner holds his position only by virtue of the vote of reinstatement of February 8, 1945, and has no right to the salary of that position between May 5, 1944, and ...