314 Mass. 272 | Mass. | 1943
This is a petition for a writ of mandamus to require the auditor of the city of Northampton to approve a payroll submitted to him by the board of health, to issue a warrant for the payment of the salary alleged to be due the petitioner, to approve such payrolls as may have been, or may be from time to time in the future submitted to him by said board and to issue warrants for the payment of such salary as may be shown to be due the petitioner by such payrolls. The writ is also asked for the further purpose of requiring the director of civil service for the Commonwealth to refrain from interfering with the city auditor in the performance of his duties and also from commanding or advising said auditor to refuse to approve payrolls submitted by said board or to issue warrants for the payment to the petitioner.
The case was heard upon the petition, answer and replication, and a judge of the Superior Court denied the petition as a matter of law subject to the petitioner’s exception.
The merits of this case cannot properly be determined in this form of proceeding. If the petitioner is entitled to the salary that he claims, he is entitled to recover it by action at law against the city. There is the well settled rule of practice that the extraordinary remedy provided by a writ of mandamus will not be permitted where there is other relief afforded either by the common law or by special provisions of statute. County Commissioners of Essex v. Mayor of Newburyport, 252 Mass. 407, 410, and cases cited. It is granted only where it is necessary to prevent a failure of justice, and where there is no other adequate and effectual remedy. Amory v. Assessors of Boston, 306 Mass. 354, 357-358, and cases cited.
The petitioner alleges that he was nominated and appointed as inspector of slaughtering for said city under the provisions of G. L. (Ter. Ed.) c. 94, § 128 (see G. L. [[Ter. Ed.] c. 129, §§ 15-17); that he duly qualified for such position; that the board of health caused a payroll to be pre
If the petitioner is entitled to the salary that he claims, the amount thereof being fixed by ordinance and an appropriation having been made therefor, he is entitled to recover his salary by an action at law against the city. The case of Wheelock v. Auditor of Suffolk County, 130 Mass. 486, was a petition for a writ of mandamus against the auditor of Suffolk County and the board of aldermen, acting as county commissioners, to compel them to audit a bill of the peti
Section 52 of said c. 41 provides, in part, that the auditor in cities shall approve the payment of all bills or payrolls of all departments before they are paid by the treasurer, and may disallow and refuse to approve for payment, in whole or in part, any claim as fraudulent, unlawful or excessive, and the treasurer shall not pay any claim or bill so disallowed. It was said in Lowell v. Massachusetts Bonding & Ins. Co. 313 Mass. 257, 271, that the approval of payrolls by the superintendent of streets under oath “and the certificate of the auditor provided for in G. L. (Ter. Ed.) c. 41, §§ 41, 52, were not conditions precedent to the obligation of the city to pay . . . [employees’] wages.” See Rappaport v. Lawrence, 308 Mass. 545, 549, and cases cited. The case at bar is distinguishable on the facts from Rooney v. County of Essex, 292 Mass. 473.
There are cases where, in actions of contract against municipalities to recover salary or wages or a sum alleged to be due on account of an alleged contract, the basic questions whether a valid appointment (Cook v. Overseers of the Public Welfare in Boston, 303 Mass. 544) or whether a valid contract (Bartlett v. Lowell, 201 Mass. 151) had been made, were considered in the course of determining whether the
If the petitioner in the case at bar should sue the city to recover the salary alleged to be due, it would be an issue in the case whether his appointment to the position of inspector of slaughtering was valid and subsisting. It is not to be assumed that the city would fail to raise this issue; nor is it to be assumed that, if the question was finally decided in favor of the petitioner, the city would refuse to make other payments to the petitioner, if any were or became due. See Police Commissioner of Boston v. Boston, 279 Mass. 577.
Nor is it to be assumed that the director of civil service would fail to recognize a final decision, even if it was adverse to the contention made by him in the case at bar. General Laws (Ter. Ed.) c. 31, § 31B, inserted by St. 1941, c. 165, § 1, provides, among other things, that the director of civil service shall keep a roster of all persons in the classified civil service of each city and of persons whose employment in such positions is legal; that a city treasurer shall not pay any salary or compensation for service rendered in any position in the classified civil service to any person whose name does not appear on such roster; and that a city auditor shall not authorize the drawing, signing or issuing of a warrant for such payment until the legality of the employment or appointment of such person is duly established. The roster therein referred to relates only to positions in the classified civil service and to persons whose employment in such positions is legal. The petitioner contends, and in this he is borne out by the city officials, that the position to which he was appointed is not under the civil service. The substance of the reason alleged for not approving the payroll is the contention that it is. If it is not, for all that appears he is entitled to be paid, and the question whether he was appointed to a position under the civil service, vital as it is to his right to recover the salary, will be open in an action at law.
It is true that there are cases in which this court has
If the function of the writ of mandamus is to be preserved, the attempt ought not to be made to invoke it except upon proper grounds.
Petition dismissed.