368 Mass. 807

June 11, 1975

This case, which we transferred on our own motion for hearing here, presents substantially the same issues as House v. House, ante, 120 (1975), decided today. The Probate Court judge ruled that he would allow counsel fees of $1,000 to the wife if Rule 47 of the Rules of the Probate Courts (1959) were constitutional. He ruled further, however, that Rule 47 was unconstitutional as violative of not only the equal protection clause of the Fourteenth Amendment to the United States Constitution, but also art. 1 of the Declaration of Rights of the Constitution of the Commonwealth. The same judge did not rely on the unconstitutionality of Rule 47 under the State Constitution in his order in the House case, which was entered subsequent to his order in this case. It is not clear what State constitutional principle the judge relied on in citing art. 1. The State guaranty of equal protection of the laws is embodied in art. 10 of the Declaration of Rights. See Opinion of the Justices, 357 Mass. 827, 830 (1970). The parties have made no argument, however, based on the State Constitution, and we do not see how the result would be any different if they had. The reasoning of the House case is fully applicable here. The order denying the application for counsel fees is reversed, and the case is remanded to the Probate Court for further proceedings consistent with this opinion.

So ordered.


368 Mass. 807

June 12, 1975

The plaintiffs, suing in their own behalf and as representatives of the Assistant Principals Association, filed an application under G. L. c. 150C, Section 10, inserted by St. 1959, c. 546, Section 1, to confirm an arbitration award rendered pursuant to a collective bargaining agreement, and the defendant school committee filed a bill for a declaratory decree and for

Page 808

vacation of the award under Section 11 of the same statute. A judge of the Superior Court denied the application to confirm without acting on the bill to vacate. This was error. When "grounds are urged for vacating ... the award," Section 10 requires that the court "proceed as provided in sections eleven and twelve." Under Section 11 the judge either vacates the award or denies the application to vacate and then confirms the award. This means that the two proceedings must be consolidated and heard together. Cf. Sheahan v. School Comm. of Worcester, 359 Mass. 702, 711 (1971). The order appealed from is reversed and the case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.


[Note 1] Philip Mathews and John Vozzella.