Commonwealth v. Allen, 128 Mass. 308

Commonwealth v. Allen

128 Mass. 308 | Mass. | 1880

Gray, C. J.

This is an information at common law, not regulated by any statute, for the usurpation of an office, which the attorney general has the right to file ex officio in the name and behalf of the Commonwealth, at his own discretion, and leave to file which the court has no authority to grant or to withhold; and the mention of relators is mere surplusage, and does not affect the validity of the information or the form of the judgment to be rendered thereon. Commonwealth v. Fowler, 10 Mass. 290. Goddard v. Smithett, 3 Gray, 116. Cole on Informations, 196. The lapse of time between the defendant’s assumption of the office and the institution of this proceeding, whatever effect it might have as against a private person, cannot bar the right of the Commonwealth suing by its attorney general.

By the St. of 1876, c. 80, it is enacted that, “in all cases in which appointments are directed to be made by the mayor and aldermen in any city of the Commonwealth, the mayor shall *311have the exclusive power of nomination, being subject however to confirmation or rejection by the board of aldermen.” The manifest intent and necessary effect of this enactment are that a person nominated by the mayor to any office must receive the votes of a majority of the aldermen voting upon the question, in order to be confirmed, and that, if he does not receive such majority of votes, his nomination is rejected. The authority to appoint police officers, conferred by c. 92 of the statutes of the same year upon the mayor and aldermen of the city of New Bedford, must be exercised in the manner prescribed by the previous statute.

The provision in the ordinance of New Bedford, that, “ in case the board of aldermen shall reject any nominations for the police force, made to them, the mayor shall make new nominations to fill the vacancies within two weeks after such rejection,” evidently contemplates rejection by failure to confirm, and, if construed as the defendant contends, would be repugnant to the statute, and therefore void.

The mayor could not, by the form of putting the question, or of announcing the result, constitute the defendant chief of police, without the requisite majority of the board of aldermen; nor could the silence of the aldermen at the time of such announcement, nor their subsequent approval of the defendant’s bond after he had taken the oath of office and become chief of police de facto, supply the want of the necessary vote of the board of aldermen to make him such de jure.

The defendant holding de facto, and not de jure, an office which, under the ordinance of 1879, does not expire with the year, but will be vacated only by the death, resignation or removal of the incumbent, this information is the proper process to oust him from the office to which he has no legal title. Attorney General v. Simonds, 111 Mass. 256. Commonwealth v. Hawkes, 123 Mass. 525. Judgment of ouster.