111 Mass. 90 | Mass. | 1872
By the terms of the charter the city government of Lawrence has the right to prescribe by ordinance the time and mode of electing a commissioner of streets. St. 1853, o. 70, § 8. Under this power an ordinance has been passed providing that the city council in convention, by ballot, shall annually appoint a commissioner of streets, who shall hold until a successor be appointed. Upon the first organization of the city government in May 1853, this officer was appointed in that month, but since then, until the present year, he has been annually appointed in the month of January.
The duty is thus plainly imposed upon the city council annually to elect the officer named. No time is fixed within which it must be performed, but the law adds the requirement that it must be done in a reasonable time. What that is, when the facts
The duty to proceed to this election in the manner pointed out is not a matter of discretion nor dependent upon the judgment of either branch of the government or of the members of either branch. If it were so, there could be no remedy by mandamus. The court does not attempt to control the judgment and discretion of the individual members when assembled in the choice then to be made. But it may properly, by mandamus, require the two branches to meet in convention as a required preliminary step to the election of some one to this office. Otherwise the anomaly would arise of a minority of those who must constitute the convention being able to defeat an election if they were only a majority of either branch. Morse, petitioner, 18 Pick. 443. Gibbs v. Hampden, 19 Pick. 298. Strong, petitioner, 20 Pick. 484, 495. Lamb v. Lynd, 44 Penn. State, 336. The King v. Norwich, 1 B. & Ad. 310. Rex v. Cambridge, 4 Burr. 2008.
Peremptory writ to issue.
