Attorney General v. Tillinghast

Decision Date23 November 1909
Citation203 Mass. 539,89 N.E. 1058
PartiesATTORNEY GENERAL v. Tillinghast
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

J. B. Tracy, for appellant.

D Malone, Atty. Gen., and F. T. Field, Asst. Atty. Gen., for appellee.



The fundamental question in this case is whether the position of assistant city auditor in New Bedford is within the civil service rules (Rev. Laws, c. 19) and the statutes passed in amendment and addition thereto. The seventh rule of the civil service commissioners, prepared and in force under sections 6 and 7 of that statute, include among the positions to be filled in accordance therewith 'cashiers, paymasters, accountants, auditors, examiners of accounts, bookkeepers, and persons doing similar work in the service of the commonwealth and of any city thereof.' But the statute expressly provides in section 9 that 'judicial officers and officers elected by the people or by a city council, or whose appointment is subject to confirmation by the executive council or city council of any city,' and other officers specified, 'shall not be affected as to their selection or appointment by any rules made as aforesaid; but with the above exception, such rules shall apply to members of police and fire departments.'

The position of assistant auditor in New Bedford was created by an ordinance of that city passed on December 11, 1908, which provided that 'the city auditor may appoint subject to confirmation by [the] city council an assistant city auditor, who may be removed by the city auditor.' A subsequent ordinance, passed January 28, 1909, provides that 'the assistant city auditor shall be under the direction of the city auditor and shall assist him in his duties, and in the absence of the city auditor or vacancy in that office he shall discharge the duties of the city auditor.' Other ordinances provide that the city auditor shall be elected annually by the city council, and fix and define his duties.

If the assistant auditor of New Bedford is an officer of that city, within the meaning of Rev. Laws, c. 19, § 9, whose appointment is subject to confirmation by the city council, then his appointment need not be made under the civil service rules; and upon the averments of the answer the information could not be maintained. If he is not such an officer, the judgment of ouster must be affirmed.

It has been suggested by the Attorney General that the language of this statute is to be applied only to officers whose appointment was subject to confirmation when the statute was enacted, and should not be extended to cases like that of this respondent, whose office was not created and made subject to such confirmation until 1908, some years after the statute had taken effect. Such a construction of a somewhat similar statute was adopted by a majority of the Supreme Court of Illinois, in People v. Kipley, 171 Ill. 44, 49 N.E. 229, 41 L. R. A. 775, so far as concerned offices which existed when the act was passed and which did not then require confirmation by the city council. And it is claimed that the argument for this construction is supported by the statement in Ayers v. Hatch, 175 Mass. 489, 491, 56 N.E. 612, 613, that the words in the same statute, 'officers who are elected by the people,' signify officers whom the people are and have been accustomed to elect.

But we are unable to accept this construction. A similar contention was denied by the Supreme Court of Indiana in Indianapolis Brewing Co. v. Claypool, 149 Ind. 193, 198, 48 N.E. 228. The words naturally would include officers who, when the question arises, are required to be confirmed, not merely those who were so required in 1884, when the original statute was passed, or in 1893, when the words 'elected by the people or by a city council' were first used. St. 1884, p. 346, c. 320; St. 1893, p. 754, c. 95. If in any case confirmation ceased to be required, the statutory exemption also would cease. So if in or after 1893 the Legislature had seen fit to provide that in all cities certain public officers who previously had been appointed by their immediate superiors without any confirmation should thereafter be elected by the people or the city council, the effect of such legislation would be to bring such officers within the exception which we are considering. The provision is the same as to officers whose appointment is subject to confirmation as with reference to elective officers; it must be construed in the same way when applied to each class. And a change lawfully made by a city council must be treated in the same way as one made by the Legislature; for whatever is lawfully done by a city council is done by authority from the Legislature, which controls its municipal subdivisions. Graham v. Roberts, 200 Mass. 152, 85 N.E. 1009; Ware v. Fitchburg, 200 Mass. 61, 67, 85 N.E. 951. Doubtless a city council could not evade the statute by providing that a mere employé should be either elected or confirmed by the city council. Such attempts apparently have been made without success. 1 Opinions of Atty. Gens., 71, 73; Atty. Gens.' Report, 1908, p. 17. But no such question is presented here. And when the original statute was codified into Rev. Laws, c. 19, § 9, the same phraseology was preserved, and the present tense was still used. This would indicate that the Legislature did not intend in 1902, when the Revised Laws were enacted, that that section should be construed to read 'officers who in 1884 were elected * * * or whose appointment was then subject to confirmation.' And the repeal of the prior statutes (Rev. Laws, c. 227) and the enactment (Rev. Laws, c. 226, § 2) that the provisions of the Revised Laws should be construed as a continuation of the prior statutes and not as new enactments equally preclude the idea that the section before us can be read as referring only to elections or confirmationsalready provided for on December 31, 1901, from and after which the Revised Laws, by chapter 226, § 1, took effect.

We are brought then to the questions whether the position of assistant city auditor of New Bedford is an office as distinguished from a mere employment, and if so, whether that office has been lawfully created by the city ordinance of 1908 already referred to.

The distinction between an office and an employment has been recognized in our decisions. Brown v. Russell, 166 Mass. 14, 43 N.E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357; Opinion of the Justices, 166 Mass. 589, 44 N.E. 625, 34 L. R. A. 58; Attorney General v. Drohan, 169 Mass. 534, 535, 48 N.E. 279, 61 Am. St. Rep. 301; Ransom v. Boston, 192 Mass. 299, 78 N.E. 481; Garvey v. Lowell, 199 Mass. 47, 51, 85 N.E. 182, 127 Am. St. Rep. 468; Logan v. Lawrence, 201 Mass. 506, 88 N.E. 9. But it has not been found necessary to state exactly the distinction between these two branches of the civil service, or to formulate an exact definition of either of them. Nor do we think that it is now necessary. There are certain criterions which have been established both upon reason and by authority, and have been applied as tests in decided cases; and some of these tests in our opinion furnish sufficient grounds for the decision of the case at bar.

The holder of an office must have intrusted to him some portion of the sovereign authority of the state. His duties must not be merely clerical, or those only of an agent or servant, but must be performed in the execution or administration of the law, in the exercise of power and authority bestowed by the law. Opinion of the Justices, 3 Greenl. (Me.) 481; State v. Jennings, 57 Ohio St. 415, 49 N.E. 404, 63 Am. St Rep. 723; State v. Hocker, 39 Fla. 477, 22 So. 721, 63 Am. St. Rep. 174; Lindsey v. Attorney General. 33 Miss. 508; Barnhill v. Thompson, 122 N.C. 493, 29 S.E. 720; United States v. Maurice, 2 Brock. 96, Fed. Cas. No. 15,747. A mere employé has no such duties or responsibilities. A public officer is one 'whose duties are in their nature public, that is, involving in their performance the exercise of some portion of the sovereign power whether great or small, and in whose proper performance all citizens irrespective of party are interested, either as members of the entire body politic or of some duly established subdivision of it.' Morton, J., in Attorney General v. Drohan, 169 Mass. 534, 535, 48 N.E. 279, 61 Am. St. Rep. 301. The functions of a city auditor as established by statute (Rev. Laws, c. 25, § 79; St. 1904, p. 273, c. 322; St. 1909, p. 340, c. 371, § 6; Rev. Laws, c. 26, § 2) would bring that position under this rule. The duties imposed by the ordinances of New Bedford of 1907, of which a copy was annexed to the defendant's answer, have the same effect. The assistant auditor is to be under the direction of the auditor and to assist him in his duties, and, in the absence of the auditor or during a vacancy of that office, temporarily to discharge those duties. These are public functions, involving the...

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