SAUGUS AUTO THEATRE CORPORATION vs. MUNROE REALTY CORP.

HENRY A. MARIANI vs. TRUSTEES OF TUFTS COLLEGE.

1 Mass. App. Ct. 869

February 5, 1974

By these proceedings, commenced in 1972, the petitioner seeks a writ of

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mandamus to compel the respondent (1) to readmit the petitioner as a student in the doctoral program of the respondent's graduate school of arts and sciences and (2) to examine the petitioner on a doctoral thesis submitted by him in 1961. The petitioner has appealed from an order sustaining (without leave to amend) the respondent's demurrer to the petition. One of the grounds of the demurrer (see Channel Fish Co. Inc. v. Boston Fish Market Corp. 359 Mass. 185 , 187 [1971]), is that mandamus does not lie to compel a private institution such as the respondent to perform the acts prayed for in the petition. An examination of the respondent's charter (St. 1852, c. 141, as from time to time amended), of which we can and do take judicial notice (American Steel & Wire Co. v. Bearse, 194 Mass. 596 , 600-601 [1907]; Baizen v. Board of Pub. Works of Everett, ante, 602, 604, n. 5 [1973], and cases cited), discloses that the respondent is a private educational corporation [Note 1] in or in the property of which the petitioner has no rights personal to himself (cf. Moustakis v. Hellenic Orthodox Soc. of Salem & Peabody, 261 Mass. 462 , 467-468 [1928]). An examination of the petition in this matter discloses, as the petitioner all but admits in his brief, that the rights here sought to be vindicated are purely private and contractual in nature. Compare Curry v. Lasell Seminary Co. 168 Mass. 7 (1897); Hall v. Mount Ida School for Girls, Inc. 258 Mass. 464 (1927); Hood v. Tabor Academy, 296 Mass. 509 (1937). Mandamus does not lie for the vindication of such rights. Parrotta v. Hederson, 315 Mass. 416 , 418-419 (1944).

Order sustaining demurrer affirmed.

FOOTNOTES

[Note 1] We are not here concerned with any relationships which the respondent may from time to time have with an agency of government. Contrast Trustees of Tufts College v. Volpe Constr. Co. Inc. 358 Mass. 331 (1970).