Home CHARLES INGRAM vs. CITY PLANNER OF LYNN & another.

350 Mass. 762

January 3, 1966

A judge of the Superior Court of his own motion entered a decree dismissing this bill for declaratory relief. He assigned as his reason for refusing such relief (see G. L. c. 231A, Section 3) that "there is no basis in law for granting any relief to [the] plaintiff" We agree.

Decree affirmed.

Home LORLY I. GOLDSTEIN vs. EDWARD M. GOLDSTEIN.

350 Mass. 762

January 4, 1966

The husband appeals from a decree adjudging him in contempt for failure to comply with a decree of the probate judge directing him to pay $25 a week for his wife's support. The latter decree modified the decree nisi which incorporated by reference until further order of the court a stipulation by the husband and wife giving to the wife custody of the children, an allowance for their support and a lump sum for alimony and providing for mutual release of all demands. Jurisdiction of the subject matter and the parties is not disputed and noncompliance with the decree for payment is admitted. The case thus being properly before us on the merits of the contempt decree, Irving & Casson - A. H. Davenport Co. v. Howlett, 229 Mass. 560 , 562, the case is resolved adversely to the husband by what was said in Fabrizio v. Fabrizio, 316 Mass. 343 , 346. We add that, although appeal is a proper method for review of a decree adjudging contempt, Nickerson v. Dowd, 342 Mass. 462 , it does not reach back to the decree which was the subject of the contempt and from which no appeal was taken. State Realty Co. of Boston, Inc. v. MacNeil, 341 Mass. 123 , 124.

Decree affirmed.

Home EDWARD H. MCGRATH vs. MASSACHUSETTS PORT AUTHORITY.

350 Mass. 762

January 4, 1966

The trial judge reported the case after sustaining a demurrer to a substitute petition for a writ of mandamus. The petition sought an order which would reinstate the petitioner in his employment with the respondent following his discharge because he had refused in

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1963 to accept a new assignment as Superintendent of Laurence G. Hanscom Field. The petitioner had been Commissioner of Airport Management from 1952 to February, 1959, but in 1959 the respondent authority, created by St. 1956, c. 465, as amended by St. 1958, c. 599, assumed control, operation and maintenance of the two State owned airports and supplanted him. He alleges that in February of 1959 he was "transferred to the authority," being designated "Director of Airports." He claims that because he was a veteran and had been employed by the Commonwealth for more than three years as Commissioner of Airport Management, the authority was required by G. L. c. 30, Section 9A, to employ certain procedures under G. L. c. 31, Section 43, in reassigning him in 1963. The demurrer was properly sustained. As commissioner, he had been subject to appointment and removal by the State Airport Management Board under G. L. c. 6, Section 59B (St. 1948, c. 637, Section 2, since repealed), and with broad supervisory powers was plainly an "officer" not an "employee." Attorney Gen. v. Tillinghast, 203 Mass. 539 , 543-545. See Sullivan v. Committee on Rules of the House of Representatives, 331 Mass. 135 , 137-140; Simonian v. Boston Redevelopment Authy. 342 Mass. 573 , 582; Cieri v. Commissioner of Ins. 343 Mass. 181 , 185-186. The position of commissioner was abolished by St. 1956, c. 465, as amended, and the petitioner was, in effect, replaced by the authority which assumed his duties. He thus could not lay claim to those benefits which Section 22 of St. 1956, c. 465, provided for "employees" of the airport properties who had previously been under control of the State Airport Management Board. Thus, G. L. c. 30, Section 9A, granted no rights to the petitioner in 1959 and it is not contended that it became applicable to him later. Therefore the petitioner in 1963 could not insist that the respondent follow certain procedures in regard to his reassignment.

Order sustaining demurrer affirmed.