331 Mass. 6 | Mass. | 1954
This is a petition for a writ of mandamus against the mayor and aldermen of the city of Gloucester, as they constitute the municipal council thereof, by a police officer of the city. It challenges the appointment of one Arthur Jacobson as a police sergeant.
A demurrer was sustained, and the petitioner appeals. G: L. (Ter. Ed.) c. 231, § 96. There was no error.
The petition sets out in effect that on June 11, 1952, the respondents made requisition on the civil service commission for certification of a name from an existing police lieutenant eligibility list for appointment as a police sergeant. At that time no sergeant eligibility list for Gloucester
The petitioner alleges no claim of title to the office held by Jacobson. He does allege that he is aggrieved by the action of the respondents because it reduced the number of vacancies in the grade of sergeant, and he prays that a writ issue directing the respondents to call for a competitive promotional examination for sergeant and to declare void the appointment of Jacobson.
The action of the judge was right. This petition in effect is a proceeding to try title to the office of sergeant held by Jacobson, and while it is true that one of the purposes of mandamus is to try title to a public office it does not lie when the petitioner does not assert title to the office himself. Sevigny v. Russell, 260 Mass. 294. Wardwell v. Leggat, 291 Mass. 428, 429-430. Hill v. Trustees of Glenwood Cemetery, 323 Mass. 388, 396. There may be other grounds upon which the demurrer could have been sustained but we think what we have said is sufficient. •
Order sustaining demurrer affirmed.
Petition dismissed.