Scott v. Manager State Airport, Hanscom Field

• Decision Date: 06 November 1957
• Citation: 145 N.E.2d 706,336 Mass. 372
• Parties: Eric M. SCOTT v. MANAGER STATE AIRPORT, HANSCOM FIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 706

145 N.E.2d 706

336 Mass. 372

Eric M. SCOTT v. MANAGER STATE AIRPORT, HANSCOM FIELD.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 8, 1957.

Decided Nov. 6, 1957.

James P. O'Connell, Boston, for petitioner.

Hugh Morton, Asst. Atty. Gen., for respondent.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

The petitioner by this petition for a writ of mandamus brought in the Superior Court seeks to be restored to a position within the classified civil service as watchman at the State airport in Bedford. G.L.(Ter.Ed.) c. 213, § 1A, inserted by St.1939, c. 257, § 1. A judge reported the case without decision upon what is described in the report as an 'agreed statement of facts constituting a case stated.'

The power of a judge of the Superior Court to report mandamus proceedings is conferred by G.L. (Ter.Ed.) c. 213, § 1B, inserted by St.1939, c. 257, § 1, which prescribes taht the report must be 'in the manner provided' in G.L. (Ter.Ed.) c. 231, § 111, 'if such proceedings are at law.' Mandamus proceedings are at law. Albee v. Lamson & Hubbard Corp., 320 Mass. 421, 422, 69 N.E.2d 811. By § 111 only where 'there is agreement as to all the material facts' can an action at law be reported to this court without decision. Such an 'agreement' must be exclusively a case stated. Scaccia v. Boston Elevated Railway, 308 Mass. 310, 32 N.E.2d 253; Id., 317 Mass. 245, 248, 57 N.E.2d 761; Moore v. Election Commissioners of Cambridge, 309 Mass. 303, 305, 35 N.E.2d 222; Members of Bakery & Confectionery Workers International Union v. Hall Baking Co., 320 Mass. 286, 290, 69 N.E.2d 111, 167 A.L.R. 986.

Although the agreement is described as a case stated, its true nature must be determined by its essential characteristics and not by its name or the description applied to it. Frati v. Jannini, 226 Mass. 430, 432, 115 N.E. 746, 747. A case stated is an agreement upon 'all the material ultimate facts, on which the rights of the parties are to be determined by the law.' Id., 226 Mass. 431, 115 N.E. 747. The petitioner was appointed watchman at Hanscom Field on January 27, 1955, and performed his duties from January 29, 1955, until about July 1, 1955, at the 'Old Building.' On the latter date the 'entire operation' was moved to the 'New Building.'

The principal contention which the petitioner intended to present appears to be that under G.L. (Ter.Ed.) c. 31, § 20D, inserted by St.1945, c. 703, § 2, ¹ his service was wrongfully terminated during the probationary period, in that he was entitled to be judged by the appointing authority on his work in the position to which he was appointed, in this case that of watchman, and that instead he was judged on his refusal to work as janitor. This issue cannot be presented on the basis that the agreement before us is a case stated. In this agreement there are references to what various witnesses 'testified,' to 'testimony,' and to exhibits 'offered in evidence.' Moreover, if this was a pertinent fundamental issue of fact, it is left unresolved in the conflicting summaries of that to which the petitioner and the respondent 'testified.' The 'agreed statement' shows that the petitioner 'testified' that the duties were substantially changed to include a much larger amount of janitorial work than he had previously performed, whereas the respondent's 'testimony' was to the contrary. Obviously, this is not an agreement upon 'all the material ultimate facts on which the rights of the parties are to be determined by the law.' Paulino v. Town of Concord, 259 Mass. 142, 155 N.E. 870; Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 715, 51 N.E.2d 308; Cerwonka v. Town of Saugus, 316 Mass. 152, 153, 55 N.E.2d 1; King Features Syndicate, Inc. v. Cape Cod Broadcasting Co., Inc., 317 Mass. 652, 653, 59 N.E.2d 481; Lapp Insulator Co., Inc. v. Boston & Maine Railroad, 330 Mass. 205, 206, 112 N.E.2d 359. The report is not properly before us, and must be dismissed.

The questions argued are of public importance, and the ultimate disposition of this case may be accelerated by an expression of our views. As we are not dealing with a case stated, we may examine the pleadings. See Union Old Lowell National Bank v. Paine, 318 Mass. 313, 317, 61 N.E.2d 666. It is alleged in the petition, as amended, and admitted in the answer that the petitioner took the watchman examination pursuant to a civil service poster dated March 23, 1953, ² which gave the duties as follows: 'Under general supervision, during an assigned shift, to guard buidings, grounds, and movable property against trespass or damage by fire or other cause, to supervise inmates, and to care for fires, answer telephones, help with cleaning, or perform other incidental work assigned during the tour of duty.' The examination was held on April 11, 1953.

The notice of discharge, which it is agreed that the respondent sent the petitioner on July 22, 1955, assigned as reasons: '1. Your refusal to perform the duties of watchman as outlined in the civil service poster advertising the examination for watchman held 11 April 1953, from which list you were certified for this position at Bedford Airport. Among the duties listed for this position was to help with cleaning, which you refused to do. 2. At the time you presented yourself at this office for the position of watchman at Bedford, the duties were thoroughly explained to you. Specific questions were put to you as to the scope of the examination, particularly in so far as cleaning duties were concerned. You stated at this time that questions concerning cleaning duties were included in the examination. In view of the above and your general unco-operative attitude, it is regretted that your services are no longer of any value to this activity.'

Section 20D superseded Rule 18 of the civil service rules, which read, 'No person...