Gaw v. Ashley

• Citation: 80 N.E. 790,195 Mass. 173
• Parties: GAW et al. v. ASHLEY et al.
• Decision Date: 02 April 1907
• Court: United States State Supreme Judicial Court of Massachusetts

195 Mass. 173

80 N.E. 790

GAW et al. v. ASHLEY et al.

Supreme Judicial Court of Massachusetts, Bristol.

April 2, 1907

COUNSEL

Doran & Bannon and J. E. Norton Shaw, for petitioners.

Benj. B. Barney, for respondents.

OPINION

KNOWLTON C.J.

This is a petiton for a writ of mandamus to compel the defendant Ashley, as mayor of the city of New Bedford, to restore the petitioners to office as members of the board of health of that city, and to restrain the other two defendants from interfering with the petitioners in the performance of their duties as members of this board.

The petitioners, after due hearing, were removed from office by the mayor, for a cause which he stated as follows 'Misuse of authority in the matter of an appointment of a subordinate, and conduct in regard thereto prejudicial to the welfare of the public service, and inconsistent with and contrary to public policy, in that, as members of said board they voted for and caused to be appointed as quarantine physician said Maunel V. Sylvia, then a member of said board in which position, when so appointed, that said Sylvia, under the city ordinances, was subject to the order and direction of said board of health, and eligible to receive compensation for his services, and in addition might be permitted to charge to the sick under his care, for medicine and medical attendance, such sums as the board of health might approve, said board of health at the time of said appointment and thereafterwards until this date being all the while composed of said Sylvia, Gaw and Stetson and no other persons.' The quarantine physician is an officer who, by the terms of the ordinance, is to hold office during the pleasure of the board of health, and in the performance of his duties he is to be largely subject to their direction. Besides receiving a regular compensation from the city, he may charge the sick for medicine and medical attendance, in extraordinary cases, such sums as the board of health may approve.

The first question is whether, under the ordinance, the board of health lawfully and properly could elect one of themselves to this office. We are of opinion that they could not. The ordinance contemplates the existence of a relation between the physician and the board which requires that he shall not be a member of it. He is to make frequent reports to the board, and from time to time is to make recommendations. His charges to the sick are to be only such as the board approve. His personal interest in these charges is inconsistent with the proper performance of his duty, as a member of the board of health, to fix their amount, in the interest of the public and for the protection of his patients.

Under Rev. Laws, c. 210, § 9, a member of either branch of the city council, or of a municipal board of a city, is not permitted to be personally interested directly or indirectly in a contract made by the city council, or either branch thereof or by such board, or by authority derived therefrom, in which the city is an interested party. In Rev. Laws, c. 26, § 36, it is provided that 'No member of the city council shall, during the term for which he was chosen, * * * be eligible...