Barry v. Treasurer of Essex County

271 N.E.2d 639, 359 Mass. 766, 1971 Mass. LEXIS 998

Opinion

This is a petition for a writ of mandamus brought by an employee of Essex County, seeking to require the respondent, the county treasurer, to recognize the petitioner’s job reclassification and to pay him the rate of increased compensation that such a reclassification requires. The respondent demurred to the petition on five grounds.¹ The trial judge sustained the demurrer on the fourth ground, namely, that the reclassification is illegal, improper and unauthorized by law. “If any ground of the demurrer is good it must be sustained.” Wade v. Ford Motor Co. 341 Mass. 596, 598. See Meskell v. Meskell, 355 Mass. 148, 149. We conclude that the demurrer can be sustained on the ground that the petitioner has an adequate remedy by resort to a contract action to recover the salary in dispute. Mandamus will not lie where there is available another and effective remedy. Madden v. Secretary of the Commonwealth, 337 Mass. 758, 761, and cases cited. We cannot say that an action for salary owed would not furnish full relief to the petitioner who has not been deprived of his employment. “It is not to be assumed, at least in the absence of facts not here alleged, that the . . . [respondent] will act in bad faith and refuse to make other payments to the petitioner in accordance with the decision in a single action of contract in which the controlling principle of law is settled.” Police Commr. of Boston v. Boston, 279 Mass. 577, 583. See Lattime v. Hunt, 196 Mass. 261, 267; Daly v. Mayor of Medford, 241 Mass. 336, 339; Lowry v. Commissioner of Agriculture, 302 Mass. 111, 121. The order sustaining the demurrer is affirmed.

George Anheles (Paul J. Liacos with him) for the petitioner, submitted a brief. James T. Ronan for the respondent.

So ordered.

1 “1, That the matters contained in said petition are insufficient in law to require the issuance of a writ of mandamus. 2. That the said petition does not state concisely and with substantial certainty the substantive facts necessary to require the issuance of a writ of mandamus. 3. That a claim for salary due is not a proper subject for the issuance of a writ of mandamus. 4. That a step in grade from J. 18-2 to J. 18-7 is illegal, improper, and unauthorized by law. 5. That Essex County is a necessary party and has not been joined at such action.”