Rennert v. Board of Trustees of State Colleges

• Decision Date: 12 June 1973
• Citation: 363 Mass. 740,297 N.E.2d 60
• Parties: Abraham M. RENNERT v. BOARD OF TRUSTEES OF STATE COLLEGES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 60

297 N.E.2d 60

363 Mass. 740

Abraham M. RENNERT v. BOARD OF TRUSTEES OF STATE COLLEGES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 1973.

Decided June 12, 1973.

Morris M. Goldings, Boston (Robert A. Saggese, Boston, with him), for defendant.

James T. Grady, Boston, for plaintiff.

John M. Greaney, Springfield, for Massachusetts Teachers Association, amicus curiae, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

REARDON, Justice.

This is an appeal from a decree of the Superior Court granting declaratory relief. The plaintiff is an assistant professor of the faculty of Lowell State College. The defendant board is the electing and appointing authority, and as such employed the plaintiff on behalf of the Commonwealth pursuant to G.L. c. 73, § 16 et seq.

The plaintiff served as an assistant professor for four consecutive academic years from 1968 through 1972. In November, 1970, he received a letter from the president of the Lowell State College stating that an ad hoc faculty committee had voted not to recommend renewal of his non-tenured contract after June of 1972. On January 14, 1971, the defendant, on recommendation of its Committee on Personnel, voted not to renew the plaintiff's contract for the 1972--1973 academic year. On October 11, 1971, the plaintiff wrote to the chairman of the Committee on Personnel requesting a hearing and a written account of the reasons for the non-renewal of his contract, claiming that he was entitled to these by virtue of being a tenured faculty member. The defendant rejected both of these requests, asserting that the plaintiff was not serving on tenure and that its written policy 'on Appointment, Promotion and Tenure, dated May 15, 1967, as amended, expressly states that faculty members who began their period of service after September 25, 1965, are not entitled to be considered for tenure until they have served six (6) consecutive academic years at the college.' All of these actions produced from the plaintiff on December 13, 1971, this bill which alleges that he has been deprived of rights afforded him under G.L. c. 73, § 4B, and seeks an order that the defendant employ him for the 1972--1973 academic year and thereafter as a duly elected faculty member on tenure. The defendant, answering, alleged that G.L. c. 73, § 4B, had been superseded by St.1965, c. 572, § 44.

A judge of the Superior Court entered a decree declaring that G.L. c. 73, § 4B, was still in force; that the defendant had improperly terminated the plaintiff's employment; that he had tenure; and that he was entitled to the protection of G.L. c. 73, § 4B. The decree further ordered the defendant to employ the plaintiff for the academic years 1972--1973 and thereafter as a faculty member on tenure.

The sole issue before us is whether St.1965, c. 572, § 44, was repealed G.L. c. 73, § 4B.

General Laws c. 73, § 4B, as amended through St.1964, c. 561, § 10, provides as follows: 'The board of trustees, in electing a teacher in a state college, the Massachusetts college of art or the Massachusetts Maritime Academy who has served as such for the three previous consecutive school years, shall employ him to serve at its discretion, and notwithstanding any contrary provision of general or special laws, he shall not be dismissed from such employment except for just cause and for reasons specifically given him in writing by the said board. Before any such removal is effected, the said teacher, upon his request, shall be given a full hearing before said board, of which hearing he shall have at least thirty days written notice from said board, and he shall be allowed to answer charges preferred against him, either personally or by counsel.'

This section was added by St.1954, c. 350.

Statute 1965, c. 572, § 44, provides as follows: 'The professional staff of the department of education and the state colleges shall serve at the pleasure of their respective boards, provided that the tenure of office of any member of such staff on the effective date of this act shall not be impaired. The classification, title and salary of each member of the professional staff of the department of education and the state colleges immediately prior to the effective date of this act shall remain in effect until changed by their respective boards.'

This statute was approved on June 28, 1965.

It is true, as the plaintiff argues, that St.1965, c. 572, § 44, contains no direct repeal of the prior provisions in G.L. c. 73, § 4B, which are at issue here, and that we are loath to find that a prior statute has been superseded in whole or in part in the absence of express words to that effect or of clear implication. See Inspector of Bldgs. of Falmouth v. General Outdoor Advertising Co. Inc., 264 Mass. 85, 161 N.E. 899. However, we have held hitherto, where two statutes cover the same subject matter and are inconsistent and repugnant, that the later statute governs, for otherwise it would be rendered nugatory. See Porter v. City Council of Malden, 346 Mass. 368, 191 N.E.2d 694.

Furthermore, even in cases where it was logically possible that the prior statute continue in force as an exception to a more general subsequent statute, we held that there was implied repeal where it was necessary to give effect to the apparent legislative intent. Thus, in Doherty v. Commissioner of Admn., 349 Mass. 687, 212 N.E.2d 485, it was pointed out that G.L. c. 8, § 4, provided that the State Superintendent of Buildings had authority to appoint capitol police officers. Statute...