Murphy v. City of Cambridge

• Decision Date: 31 March 1961
• Citation: 173 N.E.2d 616,342 Mass. 339
• Parties: Edmond J. MURPHY v. CITY OF CAMBRIDGE et al. John W. MURPHY et al. v. CITY OF CAMBRIDGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 616

173 N.E.2d 616

342 Mass. 339

Edmond J. MURPHY v. CITY OF CAMBRIDGE et al.

John W. MURPHY et al. v. CITY OF CAMBRIDGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 7, 1961.

Decided March 31, 1961.

A. Kenneth Carey, Boston, for plaintiffs.

Richard D. Gerould, City Sol., Boston, for respondents.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

WHITTEMORE, Justice.

These are the plaintiffs' appeals from final decrees in the Superior Court which dismissed two bills in equity for declaratory decrees brought by five professional employees in the school department of Cambridge against the city and the members of the school committee seeking a declaration as to the validity of a referendum petition and the ensuing vote on November 5, 1957. Demurrers were overruled.

The bills alleged and the answers admitted the following: In a series of votes culminating in a vote in open session on December 18, 1956, the school committee voted to establish seventeen new positions, to appoint thereto named persons including the five plaintiffs, and to adopt a budget for the year 1957 which made provision for payment of the salaries for the new positions; the referendum vote on November 5, 1957, was adverse; the school committee on February 18, 1958, voted 'that, in accordance with the will of the voters of Cambridge who, on November 5, 1957, voted 'No' 21,704 to 10,400 on Referendum * * * the Cambridge School Committee record its acceptance of the results of the Referendum and its intention to honor the mandate of the voters.'

The evidence showed that earlier at the February, 1958, meeting the committee also voted 'that the sum of $2,000.00 for legal fees to test the validity of the referendum be stricken from the 1958 budget,' and 'that the salaries in the sum of $16,500.00, covering the position of one assistant superintendent of schools, two assistant headmasters at High and Latin School, one vocational and placement counselor, a principal of Abraham Lincoln School, two assistant directors of physical education and five submasters, be stricken from the 1958 budget' (emphasis supplied). The pleadings show that the plaintiffs had been appointed, respectively, in the categories emphasized in the foregoing quotation, one of the five plaintiffs having been appointed one of five submasters.

We do not reach several issues argued, including, notably, the issue whether the action of the committee was legislative, and hence subject to the referendum, or executive and solely for the committee. See Gorman v. City of Peabody, 312 Mass. 560, 45 N.E.2d 939.

Prior to the February, 1958, votes, the plaintiffs had only expectancies in respect of their new employments. They show no contracts. It was in evidence that they performed no duties in the new positions and that no provision was made for their compensation therein by the city council. We assume that the plaintiffs had tenure in the positions which they were occupying at the time of the 1956 votes, so that they could be dismissed therefrom only...