Bell v. Treasurer of Cambridge

• Decision Date: 31 December 1941
• Citation: 310 Mass. 484,38 N.E.2d 660
• Parties: BELL et al. v. TREASURER OF CAMBRIDGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 484

38 N.E.2d 660

BELL et al.

v.TREASURER OF CAMBRIDGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 31, 1941.

Appeal from Superior Court, Middlesex County; Goldberg, Judge.

Petition in equity by Stoughton Bell and others against Andrew P. Carroll, treasurer of Cambridge, and the city auditor to restrain them from paying to one Lyons his salary as mayor. From an interlocutory decree overruling his demurrer, Lyons appeals, and from a final decree enjoining the treasurer and the city auditor from making payments of salary, the treasurer and city auditor appeal.

Affirmed.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.L. Wheeler, Jr., F. C. Cowan and W. R. Woodward, all of Boston, for petitioner.

F. T. Leahy, of Boston, for respondent.

RONAN, Justice.

This is a petition in equity under G.L.(Ter.Ed.) c. 40, § 53, brought by certain taxpayers of Cambridge to restrain the respondent Carroll, the city treasurer, and the respondent McKenzie, the city auditor, from paying to the respondent Lyons his salary as mayor for the month of May, 1941, and for every subsequent month during the term for which Lyons was elected or until such time, if any, as the conviction of Lyons for accepting bribes may be reversed on appeals now pending. Lyons appealed from an interlocutory decree overruling his demurrer, and from a final decree enjoining the other respondents from making payments of salary to him in accordance with the prayers of the petition.

Lyons was elected mayor for the term of two years commencing January 1, 1940. He accepted the said office and exercised its duties until March 20, 1941, when he was found guilty by a jury upon one indictment charging him, as mayor, with a conspiracy with another to accept bribes, and upon four other indictments charging him, as said mayor, with accepting bribes. He was sentenced on March 21, 1941, to imprisonment in the house of correction upon the conspiracy indictment and to imprisonment in State prison upon the indictments for accepting bribes. Lyons, at the time the sentences were imposed, moved for a stay of execution of each of the sentences. The judge then asked him: ‘if a stay of sentence is granted you, do you stipulate in open court that pending your appeal of these indictments and until final disposition of your appeal you will not perform any acts, render any opinions, make any appointments, or in any manner exercise any of the powers and privileges of your office or pertaining to your office as mayor of the city of Cambridge?’ Having received an answer in the affirmative, the judge then stated he would allow the motions for a stay of sentence but that such stay was ‘contingent and dependent on the carrying out of the stipulation.’ Lyons has not since exercised any of the duties of mayor. Following his sentence the rights and duties of the office of mayor of Cambridge were with certain limitations entrusted by statute to the president of the city council of that city, who was to be paid compensation at the rate of $7,500 a year, but the powers conferred upon the president of the council were not to be exercised by him from and after the date of acquittal of Lyons if he ‘should be acquitted in the criminal proceedings now pending against him.’ St.1941, c. 505.

The respondent Lyons, hereinafter referred to as the respondent, contends that he still holds the title to the office of mayor, that his right to that office cannot be tried in the present proceeding and that the payment of his salary is an incident to the office which in no way depends upon the performance of the duties of the office.

It was pointed out in Moore v. Election Commissioners of Cambridge, 309 Mass. 303, 306, 35 N.E.2d 222, that the present form of government of that city is Plan B as described in G.L.(Ter.Ed.) c. 43, §§ 56-63, inclusive, as amended. The chief executive officer of the city under that form of municipal government is the mayor. G.L.(Ter.Ed.) c. 43, § 58. He has general supervision over all departments of the city. Rollins v. City of Salem, 251 Mass. 468, 146 N.E. 795;Eastern Massachusetts Street Railway v. Mayor of Fall River, 308 Mass. 232, 31 N.E.2d 543. The incumbent of the office is a public officer. Attorney General v. Drohan, 169 Mass. 534, 48 N.E. 279,61 Am.St.Rep. 301;Attorney General v. Tillinghast, 203 Mass. 539, 89 N.E. 1058,17 Ann.Cas. 449;McLean v. Mayor of Holyoke, 216 Mass. 62, 102 N.E. 929.

The fixing of the salary of this particular office has been entrusted to the city council of Cambridge by St.1928, § 54, amending G.L. c. 43, § 62, which has been accepted by the voters of that city and provides that the mayor shall receive for his services such annual salary, not exceeding $7,500 as the city council may by ordinance determine. The city council thereafter passed an ordinance establishing a salary of $7,500 for such services. This ordinance was validated by St.1930, c. 106.

It has been said that the salary is an incident of public office and the obligation of the city to pay it rests upon some statute or ordinance and not upon any express or implied contract. Walker v. Cook, 129 Mass. 577;Cook v. Springfield, 184 Mass. 247, 68 N.E. 201;Amerige v. Inhabitants Saugus, 208 Mass. 51, 94 N.E. 297;Riopel v. City of Worcester, 213 Mass. 15, 99 N.E. 478;Police Commissioner of Boston v. City of Campbell v. Mass. 577, 181 N.E. 790;Campbell v. City of Boston, 290 Mass. 427, 195 N.E. 802;State of Mississippi v. Miller, 276 U.S. 174, 48 S.Ct. 266, 72 L.Ed. 517;Lynch v. United States, 292 U.S. 571, 579, 54 S.Ct. 840, 78 L.Ed. 1434. The obligation to pay, although not originating in contract, may be enforced in an action of contract because the statute or ordinance makes it the duty of the city to pay. Cook v. Springfield, 184 Mass. 247, 68 N.E. 201;Campbell v. City of Boston, 290 Mass. 427, 195 N.E. 802. But the relation between the official and the city in reference to his salary bears in some aspects a resemblance to a contractual right. The claim for salary was said in Hooker v. McLennan, 236 Mass. 117, 120, 127 N.E. 626, 627, to be one ‘which in legal effect is upon an express contract,’ and in McHenry v. City of Lawrence, 295 Mass. 119, 121, 3 N.E.2d 262, 263, it was said that ‘the appointment by a municipality of officers whose salaries are fixed by municipal action creates a contract of a sort.’ The abandonment of an office by the incumbent would have the same effect as would the breach of a contract to render personal services and would bar him from recovering his salary. Phillips v. City of Boston, 150 Mass. 491, 23 N.E. 202;Streeter v. City of Worcester, 177 Mass. 29, 58 N.E. 277;Ladd v. City of Newburyport, 232 Mass. 570, 122 N.E. 874;Branche v. City of Fitchburg, 306 Mass. 613, 29 N.E.2d 131. It is true that the respondent did not formally resign or expressly relinquish forever title to the office, but it is plain that he voluntarily relinquished the performance of all duties required by the office until the final disposition of the criminal proceedings. The appellate proceedings in these cases have not been submitted or argued in this court and it is evident that a decision cannot now be had until after January 1, 1942, the expiration of the term for which the respondent was elected. The respondent must be deemed to have intelligently understood the terms of the stipulation, and to have contemplated that, if there was no decision upon his exceptions or appeal before the expiration of his term, the effect of the stipulation was that he would never act as mayor during the rest of his term. He apparently made the stipulation with that intent and knowledge. In effect, he has abandoned his office by virtue of the stipulation. Scofield v. United States, 6 Cir., 174 F. 1;Wilkinson v. City of Birmingham, 193 Ala. 139, 68 So. 999;Brassell v. Brandon, 223 Ala. 324, 135 So. 577;People v. Spencer, 101 Ill.App. 61;Jacobson v. City of Chicago, 191 Ill.App. 511;Relender v. State, 149 Ind. 283, 49 N.E. 30;City of Williamsburg v. Weesner, 164 Ky. 769, 176 S.W. 224;State v. Harmon, 115 Me. 268, 98 A. 804;Attorney General v. Maybury, 141 Mich. 31, 104 N.W. 324,115 Am.St.Rep. 512;Rieke v. Hogan, 138 Ohio St. 27, 32 N.E.2d 9;Bunch v. Board of Commissioners of Grant County, 100 Okl. 268, 229 P. 185. Events happening since the filing of a bill in equity and which have properly come to the attention of the court may be considered in drafting a final decree in order that the relief granted may be adequate in view of the situation then existing. McMurtrie v. Guiler, 183 Mass. 451, 67 N.E. 358;Bauer v. International Waste Co., 201 Mass. 197, 87 N.E. 637;Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 107 N.E. 426, Ann.Cas.1917A, 145;Hotel & Railroad News Co. v. Clark, 243 Mass. 317, 137 N.E. 534;Giles v. Giles, 293 Mass. 495, 200 N.E. 378;Ogens v. Northern Industrial Chemical Co., 304 Mass. 401, 24 N.E.2d 1, 126 A.L.R. 280.

It could hardly be supposed that it was the intent of the ordinance, which dealt with the establishment of a salary for services, that one who has abandoned the exercise of all the powers and duties pertaining to an office should nevertheless be entitled to compensation. The amount of salary could not have been based upon any ground other than the value of the services rendered in the ordinary and usual administration of the office. Of course, we are not dealing with an instance where the officer is temporarily absent on account of illness, vacation, or for some other cause, but we confine our decision to the present situation where the officer has deliberately refrained from undertaking further any of his official duties. The ordinance cannot be stretched to require payment to a public official who, in order to avoid the immediate execution of a sentence to State prison following his conviction for bribery, relinquishes the exercise of all prerogatives of the office of mayor. The enabling act and the...