Attorney General v. MaCcabe

• Decision Date: 07 January 1899
• Citation: 172 Mass. 417,52 N.E. 717
• Parties: ATTORNEY GENERAL v. MacCABE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 417

52 N.E. 717

ATTORNEY GENERAL v. MacCABE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1899

COUNSEL

Edgar S. Taft, for attorney general.

H.J Edwards and R.E. Harding, for respondent.

OPINION

FIELD C.J.

Section 13, c. 246, St.1873 (being the charter of the city of Gloucester), is as follows: "The city council shall annually, as soon after their organization as may be convenient, elect by joint ballot in convention, a treasurer collector of taxes, city clerk, one or more superintendents of highways, and a city physician, and by concurrent vote a city solicitor and city auditor, who shall hold their offices respectively for the term of one year, and until their successors are chosen and qualified: provided, however, that either of the officers named in this section may be removed at any time by the city council, for sufficient cause." Section 29 of said chapter is as follows: "All power and authority now vested by law in the board of health of the town of Gloucester, or in the selectmen thereof, shall be transferred to and vested in the city council, to be by them exercised in such manner as they may deem expedient." The report of this case by the single justice is as follows "It was admitted that the respondent was elected city physician on January 3, 1898, by city council of Gloucester by joint ballot in convention, and was sworn in as member of the body acting as board of health on January 4, 1898, subject to the question whether such an election was valid, and whether said board of health was lawfully appointed, as will be stated. He was elected chairman of said board, and has continued to act as such. At the foregoing date the respondent was an alien, although he was naturalized on January 15, 1898. By chapter 12, § 1, of the ordinances of Gloucester, printed in 1886, which may be referred to, 'In the month of January the mayor shall appoint, subject to the approval of the city council, two persons, not members of the city council, who together with the city physician, shall constitute the board of health of the city of Gloucester. The persons so appointed shall enter upon the duties of their office forthwith. ***' The board of health above referred to was appointed under this ordinance. The respondent denied the validity of the ordinance, on the ground that by the charter (St.1873, c. 246, § 29) 'all power and authority now vested by law in the board of health of the town of Gloucester, or in the selectmen thereof, shall be transferred to and vested in the city council, to be by them exercised in such a manner as they may deem expedient.' The respondent also contended that this was a 'different provision made by law,' which excluded the operation of Pub.St. c. 80, § 4, or St.1895, c. 332. The relator contended that, either by the charter or by the last-cited statutes, the appointment of the board of health was valid, and, if so, it was not denied that the respondent, if duly elected, would be a member of it, ex officio, under the ordinance. The respondent further contended that, if the above proposition should be ruled against him, still his office was open to be held by an alien. The relator maintained the contrary, and also that the election of the respondent was void by St.1878, c. 21, now embodied in Pub.St. c. 80, § 15, which he contended repealed section 13 of the charter, in pursuance of which the respondent was elected, so far as that section referred to the city physician; the city having continued to elect in the old way since the passage of the act of 1878. The city has appointed a board of health in the mode above stated since 1881,...