173 Mass. 338 | Mass. | 1899
The principal question in this case is whether the mayor of Woburn, under St. 1897, c. 172, which is the revised charter of the city, can effectually appoint a member of the board of health without the confirmation of the city council.
It is contended by the petitioner that the reference to chapter eighty of the Public Statutes and the amendatory acts makes appointments to the board of health subject to confirmation or rejection by the board of aldermen. We do not so construe the statute. The amendatory act touching appointments which was in force when the charter was revised is the St. of 1895, c. 332, which repeals Pub. Sts. c. 80, § 8. The reference to this statute is not to show how or by whom appointments shall be made, but to show the nature and effect of the appointments when made. The St. of 1895, c. 332, begins with these words: “ In each city, except Boston, there shall be appointed by the mayor subject to confirmation or rejection by the board of aldermen, except where other provision is made in the city charter, a board of health,” etc. If there is
The respondent’s demurrer is therefore sustained on the last ground. We do not deem it necessary to decide the question whether the petitioner could prevail on the petition in its present form if his view of the law were correct. Although contrary to the general practice elsewhere, the right to a public office has sometimes been determined incidentally and relief granted in this Commonwealth upon a petition for a writ of mandamus ; but we know of no case where a writ has been issued simply to command one to refrain from attempting to act as a public officer, which is the only purpose for which the writ is asked in the present case. See Luce v. Board of Examiners, 153 Mass. 108; Keough v. Holyoke, 156 Mass. 403; Russell v. Wellington, 157 Mass. 100. Demurrer sustained, and petition dismissed.