Vigoda v. Superintendent of Boston State Hospital

• Decision Date: 05 February 1958
• Citation: 336 Mass. 724,147 N.E.2d 794
• Parties: David VIGODA v. SUPERINTENDENT OF BOSTON STATE HOSPITAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 794

147 N.E.2d 794

336 Mass. 724

David VIGODA v. SUPERINTENDENT OF BOSTON STATE HOSPITAL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1957.

Decided Feb. 5, 1958.

Joseph H. Elcock, Jr., Asst. Atty. Gen., for respondent.

Louis W. Black, Boston, for petitioner.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

SPALDING, Justice.

This is a petition for a writ of mandamus to compel the respondent, who is superintendent of the Boston State Hospital, to restore the petitioner to the position of psychiatric social worker at the hospital. The trial judge found that the petitioner had been improperly removed, and ordered a writ of mandamus to issue commanding the respondent to restore the petitioner to the position sought. From a final judgment entered in accordance with this order the respondent appealed. G.L.(Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4 (see now St.1957, c. 155).

Although the appeal presents substantial questions on the merits that are by no means free from doubt, we do not reach them. The petitioner argues that the controversy is now moot. We agree. It appears that judgment was entered on December 31, 1956. From an affidavit filed in this court by the petitioner's counsel (see Hubrite Informal Frocks, Inc., v. Kramer, 297 Mass. 530, 532, 9 N.E.2d 570) it appears that on August 2, 1957, the petitioner was reinstated by the respondent to the position here in controversy and that he now holds that position. The reinstatement was made retroactive to March 24, 1956. These facts not only are not challenged by the respondent but are in substance admitted in his brief. In these circumstances we are of opinion that there in nothing to litigate. Any decision on the merits of the case would be purely academic, for the petitioner now holds the position to which he sought in these proceedings to be restored, and this would be true whether we affirmed or reversed the judgment below. That this court does not decide questions which have become moot is so well settled that a citation or two will suffice. Hubrite Informal Frocks, Inc., v. Kramer, 297 Mass. 530, 534, 9 N.E.2d 570; Henderson v. Mayor of Medford, 321 Mass. 732, 734, 75 N.E.2d 642.

In opposition to the contention that the case is now moot the respondent argues that the restoration of the petitioner to his position was not voluntary but was done pursuant to a court order. This contention is not borne out by the facts. It appears from our docket that the respondent's appeal was entered in this court on July 31, 1957. As stated above, the petitioner was retroactively reinstated on August 2, 1957. Under G.L. (Ter.Ed.) c. 214, § 19, a final decree in equity is vacated upon the entry of the appeal in this court and 'all proceedings under such decree shall be stayed.' Carilli v. Hersey, 303 Mass. 82, 84, 20 N.E.2d 492. Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 189, 52 N.E.2d 27. Section 19 is made applicable to mandamus proceedings by G.L. (Ter.Ed.) c. 213, § 1D. Hence when the petitioner was reinstated there was no judgment in force requiring reinstatement. We need not decide whether our conclusion would be different if the reinstatement had occurred prior to the entry of the appeal in this court. See American Book Co. v. State of Kansas, 193 U.S. 49, 52, 24 S.Ct. 394, 48 L.Ed. 613; Brownlow v. Schwartz, 261 U.S. 216, 218, 43 S.Ct. 263, 67 L.Ed. 620.

The respondent asserts that there is now pending an...