O'Connell v. Ret. Bd. of City of Boston

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: O'Connell v. Ret. Bd. of City of Boston, 254 Mass. 404, 150 N.E. 2 (Mass. 1926)
• Decision Date: 08 January 1926
• Parties: O'CONNELL v. RETIREMENT BOARD OF CITY OF BOSTON et al.

254 Mass. 404

150 N.E. 2

O'CONNELL

v.RETIREMENT BOARD OF CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1926.

Report from Supreme Judicial Court, Suffolk County.

Suit in equity by Maurice J. O'Connell against the Retirement Board of the City of Boston and others, to compel recognition of his position as clerk of municipal court of city of Boston. Reported by a single justice. Mandatory injunction to be issued in accordance with prayers.

J. P. Feeney, of Boston, for petitioner.

J. P. Lyons, Asst. Corp. Counsel, of Boston, for respondents.

RUGG, C. J.

This is a suit in equity wherein the plaintiff seeks to compel recognition by various city and county officers of his position as clerk of the municipal court of the Roxbury district of the city of Boston. The case was submitted on an agreed statement of facts. It appears that he is and has been for many years last past the duly qualified clerk of said court. On the twenty-third day of December, 1923, he was reappointed as such clerk for a term of five years. Pursuant to such reappointment he was duly confirmed, qualified, and entered upon the performance of his duties. At that time he was seventy-five years of age. On July 15, 1925, the retirement board voted to retire the petitioner from active service as such clerk to become effective on July 31, 1925, petitioner then being between seventy-six and seventy-seven years of age, and discharging the duties of clerk in accordance with the statute. In consequence of the action of the retirement board, the auditor and the treasurer of the city of Boston refused to certify the plaintiff's name on the salary list.

The question presented for decision is, whether St. 1922, c. 521, applies to the petitioner as clerk of said court. It is stated in section 1, that the purpose of the act is to improve the efficiency of the public service by the retirement of certain ‘employees.’ By section 2(b) it is provided that “employee' shall mean any regular and permanent employee of the city of Boston or county of Suffolk' with exceptions not here material. Narrowly and precisely stated, the question to be decided is, whether the clerk of said court is an ‘employee’ as that word is used in the statute, or whether he is a public officer not included within the descriptive word ‘employee.’

It was said in Attorney General v. Tillinghast, 203 Mass. 539, 543, 89 N. E. 1058, 1060 (17 Ann. Cas. 449):

‘The distinction between an office and an employment has been recognized in our decisions. * * * The holder of an office must have entrusted 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. * * * A mere employee 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.’ * * * Other important tests are the tenure by which a position is held, whether its duration is defined by the statute or ordinance creating it, or whether it is temporary or transient or for a time fixed only by agreement; whether it is created by an appointment or election, or merely by a contract of employment by which the rights of the parties are regulated; whether the compensation is by a salary or fees fixed by law, or by a...