Scanlon v. Carey

• Decision Date: 04 January 1911
• Parties: SCANLON v. CAREY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 285

93 N.E. 697

SCANLON v. CAREY.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1911

Jan. 4 1911.

COUNSEL

M. A Cregg, for petitioner.

Sweeney & Cox, for respondent.

OPINION

KNOWLTON C.J.

The reservation in this case is informal, but the parties have treated it, and we treat it, as intended to report to this court questions of law that arose at the hearing, which was all that properly could be reserved or reported under the statute. Rev. Laws, c. 173, § 105; Com. v. National Contracting Co., 201 Mass. 248, 87 N.E. 590.

The principal question of law that appears upon the record is whether the petitioner has been legally appointed to the office of inspector of buildings of the city of Lawrence, so that he is entitled to perform the duties of that office which are now being performed by the respondent. The statute that bears directly upon the case is Rev. Laws, c. 104, § 4, which provides that 'in a city or town which accepts the provisions of this and the eight following sections, or has accepted the corresponding provisions of earlier laws, the superintendent of public buildings or such other officer as the mayor and aldermen of said city, or the selectmen of said town may designate, shall be inspector of buildings,' etc. These provisions have been accepted by the city of Lawrence and are now in force. For a series of years the city acted under them by a designation by the mayor and aldermen of the chief engineer of the fire department as inspector of buildings. In 1906 a building ordinance was passed that presumably was intended to be ordained under the authority of Rev. Laws, c. 104, § 1, which had previously been accepted by the city. This ordinance provided for the appointment by the mayor triennially of an inspector of buildings, whose appointment should be confirmed by the city council. It also provided regulations for the inspection, construction and materials of buildings. It is plain that the officer to be appointed under this ordinance was intended to hold the same office and perform the same duties that are referred to in Rev. Laws, c. 104, § 4. In the provision for his appointment by the mayor, subject to confirmation by the city council, instead of a designation by the mayor and aldermen, the ordinance is in conflict with the statute, which evidently did not intend to increase the number of persons holding office, but simply to add another office to...