Murphy v. Page

• Decision Date: 26 June 1922
• Citation: Murphy v. Page, 241 Mass. 575, 136 N.E. 70 (Mass. 1922)
• Parties: MURPHY et al. v. PAGE, Mayor.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 575

136 N.E. 70

MURPHY et al.

v.PAGE, Mayor.

Supreme Judicial Court of Massachusetts, Essex.

June 26, 1922.

Proceeding by Edward F. Murphy and others for a writ of mandamus against David P. Page, Mayor of Newburyport, requiring him to sign a draft or warrant for plaintiffs' salaries as members of the city council. Reversed on the pleadings and agreed statement of facts for determination of the full court. Petition dismissed.

When petitioners were elected and accepted their offices, no salary was attached to the office. After their election, they adopted an order over the mayor's veto, fixing the salary at $250 a year for the current year, and thereafter, upon the mayor's failure, on request, to recommend an appropriation to pay such salaries, adopted an appropriation therefor. A city ordinance provided that, when bills for services had been examined and recorded, a draft for the aggregate amount should be signed by the mayor, and bills for such salaries having been approved, a warrant was drawn, countersigned by the auditor, and presented to the mayor, who refused to sign it.Timothy S. Herlihy of Newburport, for petitioners.

Nathaniel N. Jones, of Jones & Lawton, of Boston, for respondent.

RUGG, C. J.

This is a petition for a writ of mandamus by certain members of the city council of the city of Newburyport to compel the mayor to draw his warrant for payment of salary alleged to be due them.

On November 4, 1919, the voters of the city of Newburyport adopted plan B of city charter (St. 1915, c. 267, pt. 3, as amended, now G. L. c. 43, §§ 56-63). The city election under this plan on these facts was required to be held on the second Tuesday of December, 1919, and the city government inaugurated on the first Monday of January, 1920. St. 1915, c. 267, part 1, §§ 15, 17. It must be presumed that there was compliance with the statute. The petitioners were members of the city council for a term beginning January 3, 1921. It was provided by said chapter 267, pt. 3, plan B, § 7 (see now G. L. c. 43, § 62), that--

‘The council may, by a two-thirds vote of all its members, taken by call of the yeas and nays, establish a salary for its members not exceeding five hundred dollars each [a year]. Such salary may be reduced, but no increase therein shall be made to take effect during the year in which the increase is voted.’

No salary for the city council was established at the time any of the petitioners were elected or took office. The council voted salaries for themselves for the year 1921 and passed an appropriation for the same over the veto of the mayor.

It is plain that the petitioners cannot maintain mandamus. If they are entitled by law to salary, actions at law may be maintained therefor. Since that remedy exists, resort cannot be had to this form of relief. Daly v. Haines (Mass.) 135 N. E. 307, where the authorities are collected. Although decision might be rested on this and other grounds, yet, since the case has been fully argued on its merits, and the judgment would be the same in any event, there appears ‘to be no objection to stating the grounds of substantive law which seem to us to support the result.’ Browne v. Turner, 176 Mass. 9, 12, 56 N. E. 969, 970.

The statute, rightly construed, does not...