254 Mass. 404 | Mass. | 1926
This is a suit in equity wherein the plaintiff seeks to compel recognition by various city and county officers of his position as clerk of the Municipal Court of the Roxbury District of the City, of Boston. The case was submitted on an agreed statement of facts. It appears that he is and has been for many years last past the duly qualified clerk of said court. On the twenty-third day of December, 1923, he was reappointed as such clerk for a term of five years.
The question presented for decision is, whether St. 1922, c. 521, applies to the petitioner as clerk of said court. It is stated in § 1, that the purpose of the act is to improve the efficiency of the public service by the retirement of certain "employees.” By § 2 (b) it is provided that "'employee’ shall mean any regular and permanent employee of the city of Boston or county of Suffolk” with exceptions not here material. Narrowly and precisely stated, the question to be decided is, whether the clerk of said court is an " employee” as that word is used in the statute, or whether he is a public officer not included within the descriptive word "employee. ’ ’
It was said in Attorney General v. Tillinghast, 203 Mass. 539, at page 543: "The distinction between an office and an employment has been recognized in our decisions .... The holder of an office must have entrusted to him some portion of the sovereign authority of the State. His duties must not be merely clerical, or those only of an agent or servant, but must be performed in the execution or administration of the law, in the exercise of power and authority bestowed by the law .... A mere employee has no such duties or responsibilities. A public officer is one 'whose duties are in their nature public, that is, involving in their performance the exercise of some portion of the sovereign power whether great or small, and in whose proper performance all citizens irrespective of party are interested, either as members of the entire body politic or of some duly established subdivision of it.’ . . . Other important tests are the tenure by which a position is held, whether its duration is defined
It is too clear for discussion that the person charged with the performance of these duties is not an employee but is a public officer clothed with official functions of a highly important nature. "Under the authority of Attorney General v. Tillinghast, sufra, and the numerous cases there collected and reviewed, the petitioner is an officer and not an employee. The words of St. 1922, c. 521, § 9, as amended by' St. 1924, c. 251, § 2, to the effect that “A member of this retirement system who shall have attained age seventy shall be retired for superannuation within thirty days, except members of the judiciary, ...” do not require a different conclusion. There is nothing else in the statute which in
It follows that the plaintiff is entitled to relief, and restraining and mandatory injunctions are to be issued in accordance with prayers 1, 4 and 5 of his petition.
Ordered accordingly.