The plaintiff’s right to recover is denied by the defendant on the following grounds.
1. That if the power to dismiss a superintendent of schools existed, it was not in the joint committee but in the municipality ; that the joint committee, after the annual convention, had no authority except to do the things which were necessary in order to secure the contribution of money from the Commonwealth : and that, after that, the relations of the superintendent were directly with the town.
2. That there is, indeed, no power anywhere to dismiss a superintendent.
3. That the superintendent could only be dismissed for cause, and that no sufficient or legal cause of dismissal is disclosed.
We will consider these objections in their order.
By virtue of St. 1892, c. 344, the towns of Sandwich, Bourne, and Mashpee united for the purpose of the employment of a superintendent of schools, in accordance with the provisions of St. 1888, c. 431, which authorized certain small towns to unite for this purpose, and to obtain a contribution from the Commonwealth. Before these statutes were passed, two or more towns were authorized to form a district for this purpose, but without any provision for obtaining money from the Commonwealth. Pub. Sts. c. 44, §§ 44, 45. It is expressly provided by St. 1888, c. 431, § 2, that, “ when such a union has been effected, the school committees of the towns comprising the union shall form a joint committee, and for the purposes of this act said joint committee shall be held to be the agents of each town comprising the *293union.” They are to meet annually in joint convention, in the month of April, and- choose a superintendent of schools, determine the relative amount of service to be performed by him in each town, fix his salary, and apportion the amount thereof to be paid by the several towns. The scheme necessarily implies that a superintendent can be employed or discharged only by the joint committee. The union is formed for the purpose of securing better service than the towns acting separately could obtain. For the purposes of the statute, the joint committee become the agents of each town, and their acts within the scope of their authority are binding upon each town. Separate action by the school committee of a single town would defeat the purposes of the union. It follows from this that the authority of the joint committee does not cease with obtaining the contribution from the Commonwealth. That contribution contemplates the maintaining of a superintendent of schools for an entire year. Suppose the superintendent chosen in April dies shortly after-wards, or resigns, or goes away, or becomes insane, or otherwise totally incapacitated, so that there is no performance or attempt at performance of the duties of the position. Some one must be appointed in his place, or else the money of the Commonwealth will have been obtained on a consideration which has failed. In such case, it is quite clear that the joint committee must act to fill the vacancy. Donnocker himself was chosen in this manner to fill a vacancy. The school committees of the towns cannot act separately. Whatever action is taken in respect to the employment of a superintendent must be by the joint committee ; and if there is any power of dismissal it rests with the same body. Ex parte Hennen, 13 Pet. 230.
We come then to the questions whether there is any power to dismiss a superintendent of schools so chosen, and whether a sufficient and legal cause of dismissal in this case is disclosed. We may assume at the outset that the choice was for one year. Chase v. Lowell, 7 Gray, 33. Kimball v. Salem, 111 Mass. 87. Nevertheless, the tenure, of an officer so chosen or employed is not like that of an officer whose term of office is fixed by law. His tenure depends upon the terms of his employment, and by construction the contract of his employment is deemed to be for a year, unless there is something to show that it is for a less *294term. But in the selection and employment of an officer of this character there is an implied condition which authorizes his dismissal, if circumstances arise which render him no longer able or fit to perform the duties of his position. The case of total incapacity has already been referred to. But there may be reasons not amounting to total incapacity which nevertheless furnish a practical disqualification, such, for example, as gross and habitual neglect of duty, or habitual intoxication. The power to dismiss officers who are employed for fixed terms, in case of misbehavior or other supervening unfitness, was recognized in Chase v. Lowell, 7 Gray, 33, and it has always been held to exist in the case of clergymen settled for life. Avery v. Tyringham, 3 Mass. 160, 177. Thompson v. Rehoboth Catholic Congregational Society, 5 Pick. 469. Peckham v. Haverhill, 16 Pick. 274, 288. Sheldon v. Easton Congregational Parish, 24 Pick. 281, 286-288.
In the present case, the superintendent who had been chosen by the joint committee was afterwards indicted in Maine for adultery. The indictment was returned at a term beginning on the first Tuesday of September, 1893, which was on September 5, and on October 3 of the same year a verdict of guilty was returned upon his trial. This verdict was afterwards set aside, for some reason not shown in the agreed statement of facts, and at two subsequent trials the jury disagreed. A nolle prosequi was afterwards entered. The votes of the joint committee declaring the office of superintendent vacant, and choosing his successor, were on October 2 and 9,1893. A subsequent vote of ratification of the above votes was passed on October 28 of the same year. The existence of this charge against the superintendent was known to the joint committee, and it is agreed that there was no other reason for discharging him from the position of superintendent of schools than the fact of the existence of the charges contained in said indictment, and the trials thereupon. A comparison of the above dates shows that the first vote of the joint committee was on October 2, and that the verdict in the first trial was on October 3. There can, however, be no doubt that the existence of the indictment alone would at least put him under just suspicion of having committed the offence therein charged. The joint committee did not act upon mere rumors more or less current in the community. Schools will suffer if *295those who conduct them are open to general and well grounded suspicion of this bind. It needs no extended argument to show that not merely good character, but good reputation, is essential to the greatest usefulness in such a position as that of superintendent of schools. In Chaddock v. Briggs, 13 Mass. 248, 254, it is said in respect to a clergyman, “ Even a reputation for immorality, although not supported by full proof, might in some cases be a sufficient ground for removal.” Where a superintendent of schools is under indictment for adultery, it is competent for the joint committee to declare that he has become unsuitable and unfit to continue in that position, without assuming for themselves to determine the question of his guilt or innocence. They are not bound to form a judgment upon that matter. That question is in the hands of the courts, and the determination of it by a final conviction or acquittal may be long postponed, and indeed, as in the present case, may never be reached. The pendency of the indictment, and especially the verdict of guilty before their final votes, were sufficient to warrant them in declaring his office vacant, and in choosing his successor.
No question is raised as to the regularity of their proceedings in matter of form.
Judgment for the plaintiff affirmed.