241 Mass. 575 | Mass. | 1922
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
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. Mayor of Medford, ante, 336, 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.
The statute rightly construed does not authorize members of a city council to take the initiative in establishing salaries for themselves. That can only be done by a preceding city council. There was no salary attaching to the office of member of the city council when the plaintiffs were elected and assumed the duties of their several offices. The statute does not make mandatory the payment of a salary to members of the city council, but merely permits it. In the same section it is enacted that “The mayor shall receive for his services such salary as the city council . . . shall determine,” language significantly different from that
To establish by original action a salary where hitherto none whatever existed is to make an increase. It augments the income of the recipient. An increase to take effect during the year in which it is voted is contrary to the statute. The statute as a whole makes plain the legislative intent to remove from members of the city council the temptation to put their selfish personal interests above the public welfare in determining the amount of their salaries. It would do as much violence to this manifest design of the General Court to permit a city council to establish in the first instance salaries for themselves as to increase for their own benefit those previously established. Barrus v. Engel, 186 Mich. 540. Garvie v. Hartford, 54 Conn. 440. State v. Mayor & Aldermen of Jersey City, 5 Vroom, 429.
The case at bar is quite distinguishable from Mayor of Cambridge v. Cambridge, 228 Mass. 249.
It is unnecessary to consider whether the vote also was in violation of the budget provisions of the municipal indebtedness act. See Flood v. Hodges, 231 Mass. 252.
Petition dismissed.