DANIEL J. O'CONNOR vs. DEPUTY COMMISSIONER AND COMPTROLLER OF THE COMMONWEALTH.

SPIEGEL, J. The petitioner, a retired Deputy Commissioner of Banks, seeks a writ of mandamus to compel the respondent to certify that the petitioner is entitled to receive $1,218.01 for "vacation allowance" pursuant to Rule LV-8 of the "Rules and Regulations Governing Vacation Leave," which are authorized by G. L. c. 7, Section 28, as amended through St. 1963, c. 352. The respondent appealed from the order of the trial judge that a writ of mandamus issue. The evidence is reported.

We note at the outset that "[i]t is an elementary principle that mandamus will not lie where there is available another and effective remedy." Madden v. Secretary of the Commonwealth, 337 Mass. 758, 761. Pioneer Steel Erectors, Inc. v. Commonwealth, 344 Mass. 195, 200. Cleary v. Licensing Commn. of Cambridge, 345 Mass. 257, 260. The petitioner's underlying claim is governed by

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G. L. c. 258, Section 1. See McCarthy v. Commonwealth, 204 Mass. 482; Wier v. Commonwealth, 225 Mass. 309. Cf. Thomas Bros. Corp. v. Commonwealth, 345 Mass. 384. The requirement of G. L. c. 7, Section 13, and c. 29, Section 18, as amended, that certain demands against the Commonwealth for the payment of money shall be certified by the Comptroller before being paid, "does not have the effect of enabling a party to try out the merits of an action at law in a petition for a writ of mandamus." Daly v. Mayor of Medford, 241 Mass. 336, 340. Even if the respondent's duty in this connection is "purely ministerial," his refusal to perform it "does not affect the legal liability of the . . . [Commonwealth] on a claim [which might be] otherwise fully established." Daly v. Mayor of Medford, supra. Seney v. Board of Health of Northampton, 314 Mass. 272, 275. Cf. Ward v. Comptroller of the Commonwealth, 345 Mass. 183, 185. We conclude that the merits of this case cannot properly be determined in this form of proceeding.

Nevertheless, we think it appropriate to make the following observations: [Note 1] The petitioner's right to receive a "vacation allowance" depends on whether, prior to May 29, 1963, he was included within the definition of "officers of the Commonwealth" as used in Rule G-5 of the "Rules and Regulations Governing Vacation Leave," authorized by G. L. c. 7, Section 28, as amended. That rule excludes "officers of the Commonwealth" from the "Rules and Regulations Governing Vacation Leave," thus excluding them from a right to receive "vacation allowance" pursuant to Rule LV-8. According to Rule G-6, "[T]he words `[o]fficers of the Commonwealth' . . . shall mean a person who is in charge of or, in fact, the head of a department, division, commission or committee established by statute or who is in fact the appointing authority of such state agency, whose appointment must have Governor and Council approval, and is for a term, certain in duration, or the person approved by the Governor and Council to replace such head

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of department, in his absence." We do not here state whether, in our view, the petitioner was within this definition, since we would prefer clearer evidence than is now before us on this record from which to make such a determination.

We do observe, however, that the powers of the Comptroller are plainly set forth in G. L. c. 7, Section 13 (as amended), which provides that "The comptroller shall examine all accounts and demands against the commonwealth . . . [with exceptions here immaterial]. He may require affidavits . . .. The comptroller shall make a certificate specifying the amount due and allowed on each account or demand so examined, the name of the person to whom such amount is payable, and the account to which it is chargeable; and if it appears to him that there are improper charges in said accounts or demands he shall report the same to the governor and council, with a separate certificate therefor. He shall keep copies of all such certificates and transmit the originals to the governor, who, with the advice and consent of the council, may issue his warrant to the state treasurer for the amount therein specified as due" (emphasis supplied). Regarding this section in Ward v. Comptroller of the Commonwealth, 345 Mass. 183, 186, we said: "It is clear that the Comptroller himself has no authority to direct the withholding of payments. If he thinks that some charge is improper, it is then his function to report it to the Governor and Council." The statute is thus free from ambiguity, and our examination of the record reveals no defensible reason for the respondent's failure to comply with its provisions.

Order reversed.

Petition dismissed.