Leigh v. Commissioner of Public Health and Charities of Lawrence

• Decision Date: 25 November 1941
• Citation: 37 N.E.2d 1017,310 Mass. 343
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ELLEN LEIGH & another v. COMMISSIONER OF PUBLIC HEALTH AND CHARITIES OF LAWRENCE & others.

310 Mass. 343

37 N.E.2d 1017

ELLEN LEIGH & another v. COMMISSIONER OF PUBLIC HEALTH AND CHARITIES OF LAWRENCE & others.

Supreme Judicial Court of Massachusetts, Essex.

November 25, 1941

November 6, 1941.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & RONAN, JJ.

Old Age Assistance. Public Welfare. Mandamus.

Mandamus did not lie to compel certain public officials to continue the furnishing of old age assistance to the petitioner in 1941 after he had acquired over $1,600 in cash and his application for continued assistance had been refused by the respondents.

PETITION for a writ of mandamus, filed in the Superior Court on July 11, 1941.

Demurrers were sustained by Beaudreau, J. The petitioners appealed. H. Lord for the petitioners.

J. P. Kane, City Solicitor, for the respondents Commissioner of Public Health and Charities and another, submitted a brief.

R. T. Bushnell Attorney General, & R.

Clapp, Assistant Attorney General, for the respondents State Supervisor of Appeals for Old Age Assistance and another, submitted a brief.

RONAN, J. The petitioners in this petition for mandamus allege that prior to April 10, 1941, they were receiving old age assistance from the city of Lawrence, but that, having sold their real estate for a sum which netted them $1,645.29, they were refused further payments by the respondent Keegan, supervisor of old age assistance of Lawrence, and that her decision was affirmed on appeal to Rotch, State commissioner of public welfare, and Lipp, "State supervisor of appeals for old age assistance." The last six paragraphs of the petition having been waived in the Superior Court, it does not seem that any case was set forth against the respondent Shine commissioner of public health and charities of Lawrence. The petitioners appeal from an order sustaining the demurrers of all the respondents.

An applicant for old age assistance who is denied relief by the local authorities has a right to appeal to the department of public welfare of the Commonwealth, and although the "decision of the department shall be final and binding upon the local board or bureau," G. L. (Ter. Ed.) c. 118A, Section 3, as appearing in St. 1939, c. 481, we assume in favor of the petitioners that they have a remedy to determine the validity of the decision of the department denying their application. We also assume, without deciding, that the case is properly here on appeal. Codman v. Assessors of Westwood, 309 Mass. 433 .

This petition is not brought to enforce a public right and to compel the performance of a public duty by a public officer, not due to the government as such, and where no other remedy is open, Brewster v. Sherman, 195 Mass. 222; Brooks v. Secretary of the Commonwealth, 257 Mass. 91; Tuckerman v. Moynihan, 282 Mass. 562; Prescott v. Secretary of the Commonwealth, 299 Mass. 191, but seeks to vindicate a private right or interest which the respondents, it is alleged, were bound to recognize by making the payments which, the petitioners contend, they were required to make in compliance with the statutes. Jaffarian v. Mayor of Somerville, 275 Mass. 264 . Lowry v. Commissioner of Agriculture, 302 Mass. 111 . Turner v. Board of Appeals of Milton, 305 Mass. 189 .

The respondents, however, have not refused to act upon the application of the petitioners. They have decided that the petitioners were not entitled to further payments. It is not the function of a writ of mandamus to require public officers to make a particular decision on a matter within their discretion, French v. Jones, 191 Mass. 522; McLean v. Mayor of Holyoke, 216 Mass. 62; Eastern Massachusetts Street Railway v. Mayor of Fall River, 308 Mass. 232 , and we have no right to substitute our judgment for that of the official upon whom the Legislature has imposed the duty of making a decision. Morley v. Police Commissioner of Boston, 261 Mass. 269 . Downey v. School Committee of Lowell, 305 Mass. 329 . Gibney v. Mayor of Fall River, 306 Mass. 561 .

What the petitioners in effect seek is an order compelling the continuance of payments to...